DISTRICT COURT.

Grey River Argus, Issue 608, 9 December 1869, Page 2

DISTRICT COURT.

Tuesday, Dec. 7. (Before His Honor Judge Clark.) . . ' MINING APPEAL. Edward Slattery and party"Vi.May and party. — This was an appeal agaihst.a decision of Mr Warden Keogh at Greenstone. Mr Guinness appeared for the appellants, and Mr South for the respondents. In the Court below the appellants were plaintiffs and the respondents defendants. 'The action was brought in order to secure a quantity of surplus ground alleged to be held by the defendants in their claim at Cement Creek, No Name. The defendants held 60ft. x 60ft. under the belief that their ground was over 50ft. deep, ancl the plaintiffs claimed a portion of it, alleging that the depth was not 50ft. , and that i they were entitled to claim the surplus. The following evidence was taken :— Edmund Slattery : I am a miner at Cement Creek, No Name, ancl know May and party. In October last I went to assist in taping them off, with my mates. They were driving into a terrace, but 1 cannot say how far they were in. I saw their pegs on the sth or 6th October, and again some time after, when I could see that they had been shifted. Cross-examined by Mr South : It is a customary thing to tape men off. I did not shift May and party's peas. We put pegs into their claim about 45ft. in. At that time we had not communicated with the Warden. He was. first acquainted with the matter on the 20th October. We might have been, working five weeks in our claim before we interfered with the respondents' ground. 1 know nothing personally of the depth of May and party's ground, only what I have heard. The Warden dismissed the case when it came before him. He said he would dismiss the case in order to give all parties an opportunity of having a surveyor on the ground. The first notice the defendants had from the Court -was the summons. Re-examined ; There was a plan drawn of the ground for the trial. Cross-examined : It was rejected by the Warden. Michael O'Ronrk : I am one of the appellants. In October last we taped off May and party. They showed their pegs' when asked. I took the measurements of their ground. It was 134 feet at the creek side, the north side 85 feet, the east side 110 feet 5 inches, and on the west side 91 feet. One claim was a little piece of ground on the spur at the west side. 1 found they held 10,600 feet, or three men's ground at a depth of 50 feet. After this we employed Mr Cooper, District Surveyor, who made a plan with a certificate, which was addressed to the Warden at Clifton. I handed it in during the hearing of the case, but Mr Keogh rejected it. He did not tell me that the surveyor was in the neighborhood and could be called. The respondents' tunnel is in eighty feet ; there is scarcely any dip in it. I never interfered with the respondents' pegs. When I went back with the surveyor I found two pegs had been shifted higher up the terrace. James Burke, the other appellant in the case, gave precisely similar evidence to the last witness. W. M. Cooper, District. Surveyor, produced a plan of the disputed claim at Cement Creek. I made the survey at the instance of Mr Burke. I produce the plan and certificate I made. The certificate is as follows :— " Report on No. IG3, Bourke v. May. — Dispute. "The question in dispute being as to whether May and Co. are entitled to hold 60 x 60 feet of ground, I have taken the levels and surveyed the claim. I find that the greatest height of any portion of the ground, viz., at the N.E. corner, is 61 feet above the floor of the tunnel, the N.W. corner is 53 feet, and I consider the average depth of the ground to be about 30 feet, a few feet more or less. " The amount of ground at present held by May and Co. is 10,600 square feet, which is correct for 60 x 60 feet, but if they are restricted to 45 x 45 feet, a strip of ground a^ eraging 68 links or 45 feet wide, can be cut off the western side." Cross-examined :. The tunnel was quite, sufficient for me to know the depth of the line of the lead ; it was acknowledged to be on the lead by the respondents. The' average depth of the claim is considerably under 50ft. I have no doubt that tl;e average is under 35ft. The dip was so slight as not to materially alter the results I arrived at. . This was the appellants' case. Mr Souths said he would move something in the naturj'of.a nonsuit point. , He had no hesitation in saying, from his lar^e amount of experience on 'the gold fields, that he could rest his case on one point. In this case it had been proved that ' there was a sinking of more than 60ft., and although that lessened down to almost nothing, yet it had been proved that there was a sinking of from 50 to 60ft; ; It could not, by any straining of the rule, be made to appear that the average or mean depth was intended to be conveyed. The case ought to be dismissed if any portion of the claim exceeded 50ft. in depth 1 ", '2 and it had been proved that there was a sipking of from 63 ft. to 50ft. ; •: The Judge said the rules were very vague on the point, and it was difficult to put a proper construction on them. But he was not inclined to dismiss the case at this stage. . Mr Guinness said that with all his. learned friend's experience he seemed 'to 1 have overlooked rule three, which provided "that in the event of any claim being worked by means of a tunnel, the size of the claim shall be determined by the average depth of the ground from the surface." After an adjournment, Mr South asked his learned friend on the other side to consent to certain elements in the case, and leave it on certain points of law for his Honor to decide. The rule mentioned by Mr Guinness did' not apply, because this was not, strictly speaking, a tunnel claim, as it was in con-' templation to work it both by shaft andtunnel, so that the depth would not be reckoned from the average. Mr Guinness could not consent, as his chief contention was that this was a tunnel claim. Mr Soufh then opened his case, and contended that up to the time this case came into Coxirt every act of the appellants was il'c^al, and not in accordance with the gold fiel is rules and regulations. Patrick May, one of the ; respondents : Wi! h:i\ v held this claim thirteen weeks and tunnelled it 100 ft., being about 10ft. more to be tunnelled. VVe came to the .conclusion, that wo would sink a shaft.

Some may call it a tunnel claim, and; some a shaft claim. We coiild work ii' either way. The appellants had. been working the adjoining claim for about si^ weeks, and we gave them all the infprma^ tion as to the nature of the ground. After: that |Slafctery and Burke came to us and said we had too much ground. I said we had not— -only 60ft. a man. They then put pegs in the centre of our ground. We ; gave no consent to them to .do so. They took out a summons on the 10th or IJth, and the case came on on the 20th, when it was adjourned to the "Greenstone, "where"' it was dismissed' with costs: The Warden j would not accept the. plan as evidence.] without tlie Surveyor being present to j give evidence. He' was iv town that day. Some parts of the claim are over 50ft. deep. Cross-examined : We have, no shaft in. the claim yet, but we resolved to sink one. I decline to answer when we came to this conclusion. The Judge : Answer the question. Witness : To-day. Mr South : And under my advice, I say so advisedly.' Witness; I cannot say whether it can. be worked more advantageously by a shaft? or a tunnel.:; I did not order the appellants off the ground. I never taped a man off in my life. Philip •M'Cormick, . one of the respondents : The Surveyor did not go into the tunnel. His man went in. There ia a dip in the tunnel of about one foot in sft. as near as I could average. Cross-examined : It began to dip after driving 45ft. The. drain at the month of the tunnel is cut 3ft. 6in. to drain the water off. Mr South said the remaining evidence: would be simply a repetition, and, he" would not take up the time of the court. He then addressed the court, arguing that the appellants had not complied with the rules and regulations of the Gold Fields. This was a shaft as well as a tunnel claim, and the system of average measurement could not be taken into consideration. It was the whole spirit of the Gold Fields' Regulations that no person can interfere in any way whatever, with his neighbors' claim unless the sane- - tion of the owners thereof, or the authority of .he Warden is first obtained. He I asked the court to read these rules' strictly, otherwise the door would be opened to a malicious kind of intrusion, which would be very annoying. TJnder the circumstances the case ought to fall to the grouud. Mr Guinness replied to the points raised, and argued that the decision of the Warden should be reversed; The Judge said it was immaterial to the issue what the characters of the persons were, or whether they were aware that they were holding more than their own ground. The rule was very distinct ' ' that in the event .of a i claim being worked by a tunnel, the size of the claim shall be deterr mined by the average depth from the surface." There was no such thing known as a tunnel claim. This claim, call it what they liked, was worked by means of a I tunnel, and the only reliable evidence on a scientific question of this sort was given by an experienced person, Mr Cooper. There was no doubt that the appellants were holding more ground than they were entitled to, and owing to the manner in which the preliminaries were gone about he was inclined to dismiss the,appeal. The rnli.'s provided that no person shall interfere with any claim, race, or apparatus, without, the consent of the owners thereof or the authority of^ the Warden ; and, in tins instance; thore had been a violation of the general rules, for an interference had taken place wilh the appellants' claim. But the Gold Fields Act provided that any person committing a breach of these regulations mipJitbe fined LlO for the first nftv.n co, and L2O for the second, and, consequently, the appellants might have beeii summoned and fined ; but that would not make valid the claim. of the .other persons to the surplus ground. They ought, at the first stage of their proceedings, to have gone to the Warden to make their claim good. The appeal would be allowed, as there was no doubt that the respondents were holding more ground than they ( were entitled to. Mr South : Will your Honor remit the case back to the Warden ? The men had an impression ' The Judge : We cannot talk of impressions. The men may have been under any impression they chose. Mr Smith : Then I ask your Honor not to alloy costs in the case, as, a great wrong has been • d one the respondents. The Judge : I will not allow costs, because the appellants in this case did not act properly, in not producing proper evidence before the Warden. The Warden was perfectly justified in refusing to receive the plan and certificate when the evidence of the surveyor could, have easily been obtained. Each party shall pay their own costs. Mr Guinness asked an order for the appellants to be put in possession of the ground. Mr South objected. The Judge : I allow the appeal, but make no comment on it. The Court then adjourned until Wednesday.