APPEAL DISMISSED

Hokitika Guardian, 24 December 1932, Page 3

APPEAL DISMISSED

.WARDEN’S DECISION UPHELD

Decision has been given by Mr Justice Blair, in an appeal from thn decision of th e . Warden (Mr W. Meldrum) in the cars-3 of David Bishop Jellie, farmer, of Arahura, appellant, and Thomas Clarence Gill, -miner, of

Hokitika, respondent. The appeal was h jard at the sitting of the Supreme Court at Gi’eymout-h, in September last, but the illness of His Hono r delayed the giving of hi s decision. The judgment is of a lengthy nature occupying ten foolscap page-s, typewrit |>.i. ...... ‘■The facts ar e really not in dig- | pute,” commences the judgment. “The respondent holds an ordinary .prospecting license, dated October 1, 1931, affecting 100 acres at North Haast B.eacli. The appellant, as th e holder of a miner’s right, applied to the Warden for forfeiture of the respondent’s license, on the ground that for a period of over six months, the lands comprised in such lic ( n- c e wer,3 unused and unoccupied, and that default had .been made in the conditions of such Terns?. The respondent holds, on behalf of a prospecting .-syndicate, altogether five licenses, each for 100 acres, in respect o-f land situated near the mouth of the Haast River. Jellie is applying for the forfeiture oi the ,licens e relating to 100 acres on north -side- of that river. Gi.]l holds another prospecting lic-nse on the north side of the Haast River, and holds three licenses, on the south njde of that river. . . It cannot be disputed that the syndicate for whom tire respondent has acquired the five areas he took up, has carried on operations and expended such sums that, if divided among 'ail tb e five ai’ear, taken up, would be enough adequately to .satisfy the work required for each area. . . The W’arden ] s concerned

to inquire only whether ther e has been ‘vigorous and continuous •pro.-e----cution of prospecting operations,’ to h : s satisfaction. Hje, with Ids knowledge of mining, having heard the ■evidence, h,a. s come to the conclusion that Gil] has fulfilled his obligations under all his prospecting licenses. It is obvious to me that, in view of the admission that only a few' hours’ dish prospecting had been done on the disputed area, the Warden

must have coueidered that the. pros pecting proved to have been done or other portions .of the total area taker up, constituted prospecting as well ir: respect of the disputed area, though actually done outside .it. In so find, ing, I cannot say that the Warden’s decision |wn,s jwroug. I think ~ that, had I been trying the question he had to decide, I would have come to the game conclusion. But e ven if my view were that on the •facts I would have come to a different conclusion, this j would not havte justified me in allowing the appeal, unless my view was either that the Warden had decided the'case on a wrong principle, or that the Warden on the evidence could .not have come to the conclusion he did. .., Xo conditions have be e n laid down >by the Act or the regulations as to what does or does rot constitute vigorous prospecting, The matter is 1 ft to tlie judgment of the -'Warden, and h e would no doubt have rjegard to. what practical would consider adequate for the condit’ons existing in the locality, and the purpose for which the areas were, if found suitable, intended to be used. There is authority which recognises the doctrine of ‘constructive occupation’ of a mining claim. "I am unable to disagree with the finding of the Warden, and the appeal must therefore be dismissed. 1 wish to make it plain that had the Warden in his discretion found on the facts in thi 3 case against the respondent, it would, I think, have been <V ,a Hy difficult to disturb hig finding. I take thp. real objection to the 'Warden’s finding to be that he had looked beyond the disputed area itkelf. to ascertain whether vigorous i prospecting had been dorij. Ho has,! to my mind, rightly .regarded the whole area as, in effect, a unit, a nd , ha.s treated the prospecting done on the constituent part, s of suc’i unit ar, referrable to the whole. Prospecting a property d(\>s not mean working jt • •it means only examining it with • a view to its suitability for working. The appeal is dismissed, with costs £7 7,5 and disbursements.”

At the hearing, Mr J. A. Murdoch, of Hokitika, appeared fo r the appellant, and Mr J. W. Hannan, of G‘V ymouth, .for the respondent.