THE Grey River Argus. PUBLISHED DAILY. THURSDAY, OCTOBER 5, 1871.

Grey River Argus, Volume XI, Issue 996, 5 October 1871, Page 2

THE Grey River Argus. PUBLISHED DAILY. THURSDAY, OCTOBER 5, 1871.

What is the effect of a miner's right as an element of title? Does it bar any person from taking possession of a claim in which there has been a break in the holding of a right ? The consideration of this important question has been brought under our notice in consequence of a case recently tried in Otago by the District Judge, Mr Wilson Gray, the full details of which have now been printed, and laid before Parliament. Perhaps there is no judge in New Zealand so thoroughly conversant with the law of mining as Judge Gray, and he confesses himself unable to solve the difficulty, and" has drawn the attention of the Hon. Mr Gisborne to the subject. The case in which the question arose was an appeal from the decision of the Warden of the Tnapeka District, in the matter of Harris v. Labes, the facts of which are shortly these : — The appellant Harris and his partner Morrison were possessed of an extended claim of three aores, which, was left in charge of a wages-man, named David Lewis. The claim had originally been taken up in 1869, and had gone through several assignments ; the immediate predecessors of Harris were Lewis and Mears. In consequence of the expensive nature of the work, Lewis and Mears fell into difficulties, and the claim was sold, underaßesidentMagistrate's distress warrant, on the 22nd March, to Harris and Morrison. At the time of the sale, Harris and Morrison held miners' rights, and so did Lewis ; but some time during the holding of the claim by Lewis he had suffered his right to run out, and did not renew it for several months, but he had renewed it prior to the sale. It was doubtful whether Mears ever held a miner's right. The sale was subject to a mortgage of .£l6O, with interest, which had been paid off. On the 27th April, 1871, tho respondents (Labes and Molzow) were looking for ground, and were proceeding to examine the piece in dispute, when they were told by Lewis that it belonged to Harris and Morrison, and on asking to be shown the boundaries, two pegs were pointed out to them,- but the other two could not be seen. Ultimately, one was found lying on the grass, and the other bent down nearly flat, while the trenches were nearly obliterated. Labes and his mate contended that the boundaries had not been properly maintained, and immediately proceeded to mark out an extended claim of two mens' ground. Harris was negotiating a sale for a portion of the claim at the time, but the proposed purchaser hearing of the proceedings of Labes, broke off the sale, and Harris commenced an action in the Warden's Courb against Labes, for interference with his claim, laying his damages at £100. Now, it is not as to the question •whether the boundaries were properly maintained or not that we wish to draw the particular attention of all persons interested in mining pursuits ; but to the more important, the immensely greater point of the break in the miners' right, and the more it is considered so much more necessary does it appear that immediate legislation should be brought to bear upon it, for it would be far easier to establish a title to a large landed estate in England, extending over a period of several centuries, than to establish a legal claim to a mining property which had in the course of several years passed through several different parties hands. The respondents (Labes and Molzow) justified their action

on two grounds. First—" That as Lewis ' had no miner's right for some months before his interest was sold under the execution (although he had it when the sale took place) his title had altogether lapsed, and the ground had become free Crown land open to the first comer ;" and us they had been in the same position before they executed the mortgage just alluded to, any miners' right that might have been held by the mortgagee made no difference. Secondly—" That the boundaries were not properly maintained." The Warden dismissed the case mainly on the ground that in the time of Lewis's ownership there was an interval of several months during which Lewis was not a holder of a miner's right. He was of opinion that the break discovered in the chain of miners' rights two links back in the devolution of title, had made the ground at that time once more Crown land— imblici juris — open to any person holding a miner's right ; " and that as no new title had been afterwards acquired, either by marking out an ordinary claim or by an application for an extended claim, the ground was still in the same condition as when the respondents (Labe's and Molzow) marked it out ;" and on this ground he gave his decision, without referring to the question of boundary at all. Thus it will be seen that the Warden for Tuapeka held that should a break occur in the holding of a claim by the lapsing of a miners' right, and the right should be again taken up shortly afterwards by the identical party holding the claim, it would not be valid without all the usual preliminaries of marking out a new claim , an ditwon Id be ' ' j umpable' ' although it had passed by purchase into the hands of several successive parties. Against this decision Harris and Morrison appealed, and so important did Judge Gray consider the matter, that he says :— " Two questions lay before him for decision — the effect of the break in miners' rights, and the effect of the imperfect maintenance of boundaries." He proceeded to say that "If he were obliged to give a decision on the break in the miners' rights, he would have reserved the point at law for the Supreme Court, as he considered the point was so important that it should not rest upon the decision of an inferior Court, especially when that Court would be giving its decision with great hesitation, as he must have done."' . But the counsel for the appellant waived the point and elected to take his Honor's decision on the point of imperfect boundaries, and therefore his Honor would give no decision on the point, but discussed at considerable length the arguments that had, been used by both sides on this question. The respondents contending, aa we have before pointed out, that the break in the chain of miners' rights was a fatal bar to the title, and that taking up the right afterwards did not renew the title, and this was borne out by the sixth and ninety-seventh sections of the Gold Fields Act, 1866. On the other side for the appellants it was contended tliat the 6th and 97th sections of the Act must be read in conjunction with the 112 th section, which it was argued provided that no person should be attacked while in possession of a miner's right, and that if he allowed his right to lapse and then afterwards took it up, the opportunity to attack was lost. It was also further urged that some limit should be put to the question of title possessed by a miner's right, and this, it was alleged, was done in the 112 th section. The learned judge stated that on this point his leaning was in favor of the appellants, but as he was not called upon to decide upon' this, lie should only decide on the question of boundaries, and dismissed the appeal with costs. Therefore this important subject is still in abeyance, and till it is settled it will be necessary for purchasers of mining stock to institute rigid inquiries into all matters affecting miners' rights. The thanks of the whole mining community is due to his Honor Judge Gray for bringing this important question before the Government, and it is to be huped some legislation regarding it will take place during the present session.