TRESPASS CLAIM

Hokitika Guardian, 20 October 1933, Page 3

TRESPASS CLAIM

WARDEN’S COURT JUDGMENT

JUDGMENT FOR PLAINTIFF,

In the Warden’s Court yesterday

Henry Ernest Joseph Manera (Mr Murdoch), claimed £8 from Janies Kildare

(•Mr Elcock), being alleged loss of 'black saiicl and’ gold, and general damages. James Kildare -proceeded against Henry Ernest Joseph. Manera, alleging that defendant had not observed the provisions and conditions under which a le.’se had been issued in fesprct or, a sea beach claim at Kalcapotahi; and that- for twelve monnhs prior to yutgasi 1 last, the claim had been unused, unoccupied and neglected. Plaintiff, claimed that defendant’s mining privilege should be declared abandoned, and forfeited, and the license therefore cancelled.

It was resolved to hear the evidence, the two suit s to he taken together. •Manera said, he was the holder, of a special-sea beach claim license at Kakapotahi, and said he "had sent Kildare a warning to desist trespass, but tr.e latter, ignored the warning, ,'ince the summo-ns had (been served -he haa gone on working .on the-' ground. Between August 1 and August 31 he had seen him about ten -or- twelve times on the ground working the -black sand- Witness told him the, claim was his, but Kildare said that witness did not have <t proper title, and -that he (Kildare) was going to kdep on working. Witness' said that the marking out -of the -claim was quite in order. There wore three, sets of gear .and two copper plates at present. On September 28 Kildare was., ".'gain bl-atksanding and -he claimed £3.. ifpr loss of . gold, £t> general d?.«nages,.»and ian-order to restrain Kildare, .from further trespass.- j

I In 1930, ■ he, or others, workeci the 1 sand cfn every opportunity. Sometimes i four of them- were, out working, ac--1 cording to the quantity of sand. He I supposed they had worked two months I. in 1930, three or. four months in 1931, and -fully tiwo months last year. Kildare. first came .there during August, iand .went straight down on the »ea«R to work. dM,anen?,a . exhibited .nine ounces of gold which he had gathered this .year, • and (he • considered. there /would be | about -an four- Ounces on -eaioli copper 'plate' on tlieir: claim. He s -also •'produced' bank- receipts rar' Y - gold sold, which- had come -• -off their claim, ' which''they'had-never had any intention 'of abandoning/ ,; He' had’* had odcS-sidn t to warn- ; two 1 'others off : his claim - 'at Easter. Divriiigitlie last ’ twelve months * the • bl~4m' had yielded over £lOOl ‘h- j To Mr 'Elcock, witness said' His- claim was' -a mile'’in length- He nad i‘freqneiitly ’ worked the : sa'hd-—week-ends, visits’ eairly in the' morning; in. 'fact in aIL his spare time. Kildare had been workiffg within a , distance or . • , r,' JiHV .v\** three osr four chains of .Jus .bpund'ary, /working on, the. Jfiig-h . wafer m:.rk /-round where/.the. .gold ,was.. He ..affiirmqd, that ibis...pegs./'had always been , trenyhed. Kildare had interfered;.with their yvork .on.their., 'beach, s ince .the .summons-was '-issued, /- . -v w>,, ; l. '•• •:..; ■■ I

:/,,(J'o,seph father.- of . - the,; pre,yipU; S f*witne.ss,- oorroboa’ated the ■■. previous ‘.evjtlepc.e,.'Re ; said. that hefylpcl-. waiwd | :.‘K:?1 dare -thafcj he. iv.r s.; workhnr t, on -tohis ■(iwitness’) s ' claim, . and had seen him: working: at different . places . on' the area.fi••• .He- considered- his son had .worked constantly, and had put in a lot of time much. ■ If- Kildare considered the claim had not been worked consistently, it was because it

was . due to * which ■made work impdssiibie. ; sfjiames ’Manera, A'(•brother -of ■- complainant, said that he had seen Kildare; working on his brother’s cl-im several times since August, and keeping the gold. The aiotice on him had been defied. During . the twelve montns prior to last August, he considered that

they had put in about four months’ work in all. iFrpm A/pdl to June ne visited the 'beach, say, every second day, and worked the black sand when nece.ssary.

EVENING SITTING. The .Court adjourned at 5.45 p.in. j and .resumed at 7.10 p.m. | Arthur Gresham, ia lad of 15, gave 1 evidence that !he was working ,at Mane- | ra’s. He .knew the sea beach .- claim, ' since he went there some eight months' ago. He knew the pegs of the cl-im •and the trenches, and h d helped to clean out the latter. He had seen Manera working the claim. He -had , assisted, working at , the feeder. He knew Kildare, having seen him working ■on Mane re’s claim a- couple of times, taking black sand from within the Iboundary of the claim, and putting it over the copper plate. To Mr Elcosck : He had seen Manera at work often, himself helping, and had also . seen Bannister there several times. The - claim bad ’ always; been 1 trenched, -but it was only lately they had been cleaned out. • ■ Thi s was the case for Manera, Mr Elcock then led evidence. James. Kildare said he was a miner residing .at Kakiapotahi, .producing a miner’s- right ...qf •-November, 1932. He wftnt there ahput Apgnst, 6. Since then he had been away ja; jit-tle -over a week'He- 1 had madw' inquiriesi and' -found Bannister had, been working? (there /before, ■(but ’hdd gone'away.' Nd- ope -else was working there, .and he d : d not . know anyone.owned the--beach. He-had been working there about a fortnight before Mr Manera came along and spoke, hut Mh.ue'm- .’laised *0 objection to witness being there. During the fortnight, witness missed three a-ays not!, working. He received -labout August 28, a notice to stop working, and went 1 along to look for pegs of the claim, j (but could see nothing definite. .Later he was shown two pegs. There was a | trench showing on one side but: .no sign of a trench on the other. After the first fortnight (Manera came to work 1 on the beach. Witness did not inteiy;fore with them. f . ! I : To Mr Murdoch: He had continued;

working on till the previous ;ctay, after d he hod got the jsumrnonsL: He had ’g'o.t i about If ounces bf gold >fpr, ahqitt" six . week’s ''inquities he hkdU

made he gathered that/. IManera. hafl Abandoned the claim,? and do he work-, cd there. 'v '' l ,4 ' : : ; William Bdnnister gave evidence that lie was a sawmill-hand and miner, and was working on that beach, in ..April, '.May iand June, being there very day,:, blacks-anding. .'l.ir'that period he saw Manera four d'ys alto-get-hei' working on two claims. Maneva.'had befn .work. ing ,at Perry’s'mill for ’over . twelve months. '.-,N .y •./ i • •

To Mr Murdoch:.. Witness .knew it ■was Manana’s-claim.., Witness-‘had been orde’ed ofi'. but witness d : d not go.

| itjJoih:} Btiapflj - • !ewiden.ce,.that he hid worked on the beach fa<?iTh ! ®asteir to the end of Jilly. Saw ■plaintiff _ woi’k two days on his claim. There'was gold .there to work on many occasions. 1 .Hem's William Tianniptor supported the evidence of his brother. The Warden (Mr W. Meldrum), giving. judgment, s,gid that in the fi-st, ease, that of trespass, it was quite clear that that Henry Ernest J. Manera was the licensed owner of. the Sga beach claim. He held that defendant knew within a day or .two of that f.’ct, but he .continued to; work there knowing it was another man’s claim.. He was working on. a miner’s right only, which did i not give ithe|oghfc ; to.- work- a spa beach claim. He was cldarly, 'On.lthe question of damagessihe plaintiff Iclamed £3, which very rear sonablo amount and he (was entitled to if. |On general damages the .plaintiff w,--i‘| very easy and he would allow £2amd give judgment . fob plaintiff for ,£5 arid costs, and .would grant the injunction asked for. ,

On the ic’afm Ihy James Kildare .for forfeiture, he pointed out .that ia sea ■beach claim Vis not like .an alluvial claim, but depends 'on the lection of the tides. It is only .intermittent, depending on-the action of the tides in throwing up -black sand. To treat a black sand -claim as an ordinary alluvial claim would be unreasonable. He did not think it was an idle claim.

The licensee had produced receipts of the gold won from- the claim up to £IOO value for the year. Th© .application. would be dismissed. ~oosts. were allowed fManei’a, solicitor’s fee .£3 3s, and disbursements in ©"'eh case, with

witnesses in one. Court ,cO s t s £1 4s a n d witnesses £3 ss. '