O'BRIEN AND OTHERS, APPEL LANTS; M'MAHON AND OTHERS, RESPONDENTS.

Kumara Times, Issue 1626, 13 December 1881, Page 2

O'BRIEN AND OTHERS, APPEL LANTS; M'MAHON AND OTHERS, RESPONDENTS.

Judgtuent in the above appeal fiora Warden Stratford's decision was delivered by his Honor judge Broad at the District Coiirt,- Nelson, on Monday, sth December. The appeal was heard at the District Court, mouth, on the 21st and 22nd u'lt.-, when his Honor reserved judgment, in order that he might go over all the evidence adduced at both Courts; The concluding portion of the decision appeared as a special telegram in last Tuesday's issue of this journal. The following is the full text of the reserved judgment: -= The.appellants in this case (who were! the defendants in the Court below) are charged with not having taken and maintained possession of their claims with such boundaries and marks as directed by the Mines Act, 1877, and the Regulations made thereunder, and that their certificate was obtained by misrepresentation. The prayer of the" summons is that the appellants may be declared to be in illegal possession of the ground, and that the same be de-dared-to be forfeited and the respondents entitled to a certain portion thereof, and that the certificate be cancelled, or such other order made as the Court may deem, proper. The Warden decided that the certificateshould be cancelled, but refused to make any other order. O'Brien and party appealed, both on fact and law, from the Warden's judgment, and the case accordingly came before the District Court for rehearing. It appeals appellants took up a double-area claim in old ground, that -is, in ground that had been formerly prospected and partially worked; They made application to the Warden in the usual form, and, no objections having been lodged, the certificate was granted. They went to work and after a good deal of labor including driving a tunnel 120 feet long, succeeded in striking some gold. This fact became speedily known, for they do not appear to have made or to have wished to make any secret of their discovery, and thereupon the respond enta, who were owners of the neighbor- 1 ing claim, commenced these proceedings admittedly with the view of getting a part of the appellants' claim. It is proved that the claim was properly worked as regards the pegs, but as to the trencher it is said that they were

either not cut aTall or so inperfectly as not to even substantially comply with the Regulations. This,"it is urged, is sufficient ground for a decree of forfeiture ; but, further, that the statement 5n their application that they had forked the ground was a misrepresentation sufficient to justify the cancellation of the certificate under Rule 102. It is proved that the respondents knew from the very first the boundaries claimed by the appellants; they were not, therefore, in any way misled by the alleged absence of trenches, nor was feny injury caused thereby to any intertests either public or private. The evidence does not prove that the alleged neglect was wilful ; on the contrary, I think the appellants fully believed until someone raised a doubt that they had Substantially complied with the Rule. And this finding sufficiently disposes of the question of misrepresentation, which I take to mean a wilful misstatement 'of some fact made for the purpose of obtaining a certificate from the Warden. But there still remains' the question •whether the ground was, in fact, properly marked at first: was such marking duly maintained? and, if not, should the claim be forfeited 1 The evidence as to the trenching is, unfortunately, very contradictory, and it would perhaps have been better if this question bf fact has been submitted to a jury. After maturely weighing the evidence, I have come to the conclusion that there was not a sufficient compliance at the outset with the prescribed measurements, although the trenches have been properly cut since, and that for Borne time there was no maintenance of trenches of the necessary size; and therefore this Court may declare the appellants to be in illegal occupation of the ground and decree a forfeiture as prayed. But the Court ean in its discretion mitigate the severity of such an extreme penalty, and it only remains, therefore, to consider if this is a fair base for Buch mitigation. The Warden is clearly right in insisting upon a strict Observance of the by-law as to the Maintenance of proper boundary-marks because where that is neglected persons mar unintentionally commit trespasses for which, if they cannot he made to pay damagPßj they may nevertheless be put to much inconvenience, annoyance, and loss of time. Besides, the maintenance of such marks often saves claimholders from vexatious litigation as to boundaries. Here the respondents simply say that appellants did not so maintain their boundary-marks that their claim ought to be declared forfeited. Now, having regard to the spirit of our goldfields' laws, this seems a case in which forfeiture may be fairly mitigated by the infliction of h monetary penal ty t Seeing that appellants have done so much upon the claim, and that but for their discovery of gold nothing would have been heard of this ease} although the respondents were as well acquainted with all the facts as to non-trenching before such discovery as they were after, it would be harsh to decree an Utterly destructive forfeiture, confiscating all the appellants' propefty and giving the fruits of their hard work to other persons. The judgment of the Warden's Court will therefore be varied by declaring that a forfeiture had been incurredj but ordering that there be substituted for the forfeiture a penalty of i-20, of which £l9 is to be paid to respondents and £1 to the Queen. The deposit rrlade on appeal to be returned to appellants; No other order as to costs. The objection ad to misjoinder bf Quinlivan, one of appellants, is overruled.