IMPORTANT DECISION.

Dunstan Times, Issue 304, 21 February 1868, Page 3

IMPORTANT DECISION.

[Abridged from the “ Daily Times” of the 12th inst.] Robinson v. Elundel. Mr. Justice Chapman, at the “ Sitting ! io Banco,” on the 7th inst., delivered the following judgme t * 1 This is an appeal from a decision of Mr. Warden Croker. The appellant was the plaintiff below. He complained hat the respondent, the defendant below, had tr < i» m jI o i ujiVj.vin land which he, the plaintiff, hold under live agricultural leases, dated in 1805 and 1566, before the Goldfields' Act of I Sill) was passed. The de--1 aidant justified under a license or certificate, entitling him to cut a water-race, which license, under the Goldfields’ Act < f 1862, and the regulations nude nnur the authority of that Act, is of date prior to the date ol the said Ic. ses. The case was heard at Lawrence, before the Warden and assessors. The latter fun d that the dc-! fen-’ant had not trespassed, and he had judgment accordingly. Tr. m this judg-i ment the plaintiff appealed to the District Court, and.a case has been stated for the ♦pinion of this Court, under the 83rd section of the Goldfields’Act, “ The question which this Court has to! decide is thus stated ‘ Whether, under' the circumstances stated, the leases under which the appellant occupies so over-ride the licenses of the mq oi drnt as to disentitle him in r r ‘<r men the appellant's laud without making him couponsation.’ “The respondent's right commenced in 1863, ‘by purchase from prior holders.’ He then came under the regulations which are described in the case its published in a small blue book, but they are repeated in the regulations described as published in a small yellow book. Both arc similarly worded, and they were made under ihe authority of the Act of 1562. The sth section of that Act authorises the holder cf a miner s right to occupy for mining purposes waste lands comprised within a goldgeld, and I cannot doubt that the construction of a water-race, to convey water for the use of minors is a ‘ mining purpose’ within the meaning of the Act. The Regulations printed in 1863 and 186-1 so consi 'ered it, and, I have no doubt, rightly. Any doubt that may have existed on that point is set at rest by the oth section of the Act of 1867 ; hut that section is declaratory, and only states what the law was before the passing of the Act ; and in Victoria, where the subject has often been considered, it has always been held that the making of a race is a ‘mining purpose’ within the meaning of Acts from which all of our Mini; g Acts are more or less borrowed. “ What then is the nature of the right which the holder of the instrument called a miner’s right acquires in the waste land of the Crown under the Goldfields’ Act, I SC2 V On the one hand, it is clearly not an estate, for that has a technical meaning which the nature of the miner’s enjoyment docs not amount to. The certificate which the Regulations provide for is often called a license, and is so designated in this case ; but we must not permit our judgment to bo clouded by the use of a word. A mere license in law is revocable. If I give another leave to enter and pass through my

t land to-day, I may revoke that leave tomorrow. This was the well-known decision in ‘ Wood v. Ledbitter,’ so often cited to , show that a license is revocable. But, , although called a license, is not the certifi- , cate under the Goldfields’ Regulations of ISG3 and 1564, and the occupation under it, something more ? The word license, indeed, seems rather to be the popular designation of the instrument than a word designed to express the legal right of the holder of the miner’s right. What the Miner’s legal right is must be sought in the Act of 18G2, repeated, with more or less elaboration, in the subsequent Acts. It is a right ‘to occupy, for mining purposes, the waste lands of the Crown within the goldfields.’ Now, the very expression of the purpose seems to assume two things, namely, permanency, or a certain measure of permanency, and the expenditure of capital and labor. It is precisely that kind of right which one man may confer upon another by grant—a right to a beneficial enjoyment in the lands of another : not an estate in the land itself, but a right to reap some benefit from the land. It is, as it seems to me, that sort of right which is properly called an easement. It is an incoiporal right, capable of transmission. This right was vested in the respondent in ISG3, but at that time not in such away as to touch the land comprised in the appellant’s leases. In 18G4, however, ho secured a further license to exten l his right along a course (specified in detail in the case), which would ultimately carry the race through the leased land on which the alleged tresspass was committed. He renewed his certificate, an ' so continued his right under the Goldfields Act, 1865, by a license, No. 470, dated Sept. 1860. It seems to me therefore, that at the very earlie t date of the leases to the appellants, May, ISGS, the Crown had, by the Statute •and Regulations, irrevocably conferred on the respondent an casement in the waste lands of the Crown, which could be only put an end to by judgment or matter of record. It is analogous to the case of A granting to B a right of way on bis own lands, except that the casement in the case before me is created by statute. When, therefore, the Croi\ n, under the ant' ority of the 34th section of the same statute, grants what is called an agricultural lease of the same lands, it can only grant subject to the previously created right. The crown like the subject, can grant no more than it has. If the Crown lias demised for a term it can afterwards grant in fee, no doubt, but only subject to the term ; and in like manner, if the Crown has granted an assess merit, the subsequent dem se is subject to [ that easement.. The learned Judge, in I considering the operation of the lease, ap- ! pears to have been much impressed by the j words in the sth Section of the Act of I8G?, | ‘ except as against Her Majesty ;’hut the distinction which he himself has drawn in the case of forfeiture is anal ago us to this ease. The Crown must enforce its rights in the same manner as the subjects, throng the Court of the Queen. A subject even in wrongful occupation must bo ejected by process of law. It is true the proceedings differ inform, but the principle is the same and the Oown cannot disno? > even of the quest! in ibl i right of an occupant, so long as it is unquestioned, by granting the thing enjoyed to another. Whatever rights the Crown may retain against the occupant they had not been determined at the date of the subsequent grant of the former ! lease ; and therefore, I am of opinion that I the leases were subject to the preceding right. I have ventured to characterise that right as an easement. It is certainly not an estate. It is not a mere license, the very nature of which is to bo revocable, Confining myself, therefore, to the only question submi ted, and which [ have a!rea ! y read, I answer that question in the negative ; and therefore ‘ the appeal is to bo dismissed, without costs as regards the proceedings already had in the District Court. Appeal dismissed.