THE STONEY LEAD CASE.

Grey River Argus, Volume VII, Issue 504, 8 April 1869, Page 3

THE STONEY LEAD CASE.

SUPREME COURT, NELSON. (Before his Honor Mr Justice Richmond.) (From the Nelson Colonist.) A special sitting in chambers was held on Wednesday, 31st March, in order to hear the arguments in an action for an injunction at the instance of Charles Edward Button, Solicitor, Hokitika, against Edward Gadd and others, miners, on the South Beach, Grey District. The case first came on at Hokitika, when the Judge made an order on the defendants to show cause why a writ of injunction should not issue to restrain them from holding possession of and injuring certain lands purchased from the Crown and transferred to the plaintiff by the purchaser. The facts are briefly these. On the 6th October, 1868, Mr W. C. Roberts of the Bank of New Zealand, Hokitika, purchased from the Crown certain lands, being Sections No. 1100 and 1101 of Block 11, first-class rural lands, in the Grey district of the County of Westland, for the sum of Ll2O, and on payment of the money on the same date, received from Mr Commissioner Sale and his cocommissioners, a license stating that the said lands had been so purchased and paid for, and empowering the purchaser his heirs or assigns, to enter upon and hold and enjoy the same for his and their absolute use and benefit. On the 9th October, Mr Roberts in consideration of the sum of L 330, by deed sold and conveyed the said lands to Mr Button, the plaintiff, and his assigns, for ever. The land comprised about 80 acres, having a frontage from a road line particularly specified, of about 20 chains. The plaintiff further avers, that on 13th October, the defendants (who are miners and number about a dozen persons) entered upon the said land, and cut away the surface thereof, and took and carried away or removed, certain metals, minerals, and other substances ; tlras doing injury to the said land, and rendering it of far less value, and for which plaintiff claims damages to the amount of LIO,OOO. The case is one of importance, as bear^ ing really on the action of the Crown, although nominally directed against a few miners. The Waste Lands Commissioner, of Westland afterwards refused to give a Crown grant, having discovered that the ground was occupied by miners. Mr Prendergast, the Attorney-Gene-ral, and Mr Harvey, appeared for the defence. The Attorney - General, in showing cause why the injunction should not be granted, read various affidavits by some of the defendants, in which it was stated that they held claims on Stoney Lead, under miners' rights regularly issued and registered, and that the property was in no wise injured but rather improved. Mr Prendergast proceeded to argue that neither Mr Roberts nor the plaintiff ever took possession of the land, and do not aver that they did so. Several of tbe defendants declared that at the date of the sale of the property to Mr Roberts, and long prior to that date, they were in possession of part of the same, and had entered the land for the purposes of goldmining. Mr Button : But they did not act as entering on private lands for the purposes of mining, for which there are very different rules. The Attorney-General continued to narrate certain points in the defendants' affidavits, to the effect that the land was of no value for agricultural purposes, beingstoney, and thickly timbered, barren, and swampy. The Judge : It is called first-class rural land, is it not ? Mr Button : Yes, your honor ; and paid for at the rate of L 2 per acre ; secondclass being worth only LI. The Attorney-General showed, by defendants' affidavits, that benefit had been done to the land, which had been well drained, and that no minerals but gold had been extracted from the land ; that plaintiff or Mr Roberts had never taken possession ; and that Gadd had seen a surveyor's man on the ground, who said he was there to mark out Mr Button's land. An affidavit by Mr Sale, Chief Commissioner of the Westland Waste Lands Board, was also produced. This document showed that Mr Roberts had purchased the land from the Waste Lands Board ; that Mr "Sale was not aware at the time of the sale that miners were at work on the land, although he knew that it had been worked for gold ; and that about a week after the purchase he was informed that defendants and other miners were in occupation ; that he then waited on plaintiff, and saw his partner and told him that the Government would re-purchase the ground and defray any legal expenses which had been incurred by plaintiff for conveyance or otherwise. This resolved itself into nothing, and on the 19th October it was advertised and notified to Mr Roberts that a meeting of the Waste Lands Board would be held to reconsider the sale of land, and that at that meeting the said sale was cancelled, and Mr Roberts was immediately afterwards informed of the fact, and that the money paid by him would be refunded to him on application ; that Mr Roberts afterwards applied for a Crown grant of the land, which was refused; that no conveyance by Mr Roberts to plaintiff was registered; that an appeal to the Supreme Court, against the decision of the Waste Lands Boards' Appeal Act, 1867, did not apply to Westland. The Attorney-General proceeded to argue that the plaintiff had no legal title to the land, and was really out of possession, and in fact had never been in actual possession. The Jndge : No legal title as against the Crown because he had no Crown grant ; but as against mere wrong-doers, has he not a right of protection under his license, pending the issue of the Crown grant 1 The Attorney-General contended that the Crown Solicitor should have been made a party, to the action, and that the Crown not having been made so, no right of action could properly lie in the plaintiff. He maintained that the plaintiff ought to allege that he was in possession, and not having done so he could not claim damages for alleged injury ; and action for trespass could not be maintained without entry by plaintiff. The Judge : Your argument, Mr Prendergast, is that plaintiff has really no redress, because, not being able to show a title to the land, he cannot obtain an order of ejectment. But he might set the Crown in motion and perhaps prevail , on the Attorney-General to issue a Crown

grant, in terms of the sale and license. Very slight possession would constitute a title to sue for trespass. Under a license to occupy, is he not entitled to do so ? The Attorney-General : But he never took possession ; he never was seen on the land at all. The miners' right giyos a title to occupy against all but the Crown. With respect to the removal of metals, only gold was removed, and he denied that the ordinary Crown grant passed tho gold. In Victoria, as in England, gold ia not the property of the owner of the land. Mr Button admitted that the gold belonged to the Crown. The Attorney-General : The removal of ground was simply undermining, and did not damage the soil. The Judge : If you take away clay there is loss and damage to the inheritance, if the vegetable soil is taken away there is damage. It is not only turf cutting, but the land, after the miners have been on it, looks as if some mammoth pigs had been rooting all over the ground. The Attorney-General, respecting the Waste Lands Act and the Gold Fields Regulations of Westland, contended that both must go together. He did not deny that the Crown would be entitled to terminate the operation of a miner's right and to turn him out ; but he also claimed for the Crown the power of refusing a Crown grant or rescinding a license, in the event of an error having been committed. The Judge : That would seem to be a dangerous power, for it has always beeu assumed that a vested interest rested in the first applicant. The Attorney-General : Yes ; but the Crown, or the Waste Lands Board as representing it, may give an application a rehearing and reverse their decision. The license was revocable ; it did not give possession, it gave merely the right to enter. The learned gentleman cited various statutes and precedents in support of his case. The Judge : The license is evidence of a contract with the Crown for certaiu valuable consideration. It is the regular instrument by which the Waste Lands of the Crown is sold to purchasers. The ordinary vendor could not have refused to fulfil the contract entered upon under such an instrument ; and the question is that of a right of equity against the Crown ; that is where the difficulty lies. Mr Button for the plaintiff, with whom was Mr Pitt, after reply to some of the more technical objections, contended that it was not absolutely necessary at this stage to set up present possession, because, even if this application were dismissed, possession could be taken which would relate back to the date of trespass. But this contention was not necessary, because the Crown was in possession, and authorised the plaintiff, on purchasing the land, to enter immediately, and the inference therefrom was that, as the Crown held possession, and on the 6th October gave its right of possession to the plaintiff, that right in equity was still vested in the plaintiff. The legal estate still lay in the Crown because it had never conveyed, but the equitable right to a conveyance remained in the plaintiff. The present action was not a legal but an equitable one. If thi3 were an action of ejectment he need not prove possession to obtain an order for ejectment, but he merely asked for an injunction on equitable grounds. He had a beneficiary interest in the land from the Crown under a license granted for valuable consideration, and he requested protection of the Court from damage being done to the land. The title lay in the Crown, and if he showed something less than the absolute fee, something entitling him to present enjoyment, that of itself would go a far way towards absolute possession and right to prevent another from occupying and damaging his property. The bona fide selling of this land and the issue of the license to occupy, gave him a right as coming from her Majesty, to order the miner to go out. The miners' rights were issued subject to the regulations then in force, and with one or two exceptions the miners' rights under which defendants professed to occupy had expired before the land was offered for sale ; or new rights had been given to them after that event, and after the sale had actually been effected. The putting up of the land for sale was a withdrawal of the miners' right, as respected that land, under the regulations', and the miners' right expired after the publication of these regulations. The Judge : It would be highly inequitable to a miner if he were to be deprived of his land and of the improvements he had made when his right required renewal. You don't mean to say that he is not entitled to renewal ? Mr Button : He would be entitled to a renewal of his right ; but if any change took place in the regulations, he would be liable to the operation of these regulations so changed, especially with respect to that piece of land sold by the Crown. Renewed rights were at least liable to all new regulations made and in force at the time of their renewal. As regarded this land, so soon as it was sold it became private property, and there were clauses in the Gold Fields Act which prevented mining on private property, and prescribed certain proceedings which a miner must take before going on private property to mine. The Attorney-General had shown that the Crown might revoke a miner's right, and he (Mr Button) contended that these rights were revoked by the sale, so far as they could have applied to this piece of land. Mr Button then showed by the dates of the defendants' miners' rights that the privileges under those rights had in most instances accrued after the land was opened for sale, and in some cases after the actual sale ; and with regard to these he was certainly entitled to the injunction. Mr Button also referred to one statement in the affidavit of one of the defendants, who said he "had seen the surveyors! man marking off Mr Button's land," which of itself was an acknowledgement that the land did vest in the plaintiff. . The Attorney-General replied, and His Honor said that as the points raised were very difficult to decide, he would reserve judgment. '