WARDEN'S COURT.

Kumara Times, Issue 1635, 23 December 1881, Page 2

WARDEN'S COURT.

The following is the case stated ia yesterday's issue as having been referred by Warden Stratford for the" 1 opinion of the Supreme Court. To the Honorable the Supreme Court op Westland, sitting at Hokitika. special case, Stated by the Warden of the Westland Goldfield, sitting at Kumara, for the opinion of the Supreme Court, asked for under the provisions contained in section 129 of "The Mines Act, 1877."' (Signed) H. A. Stratford, Warden. In the Warden's Court at Kumara,Westland Goldfield. In the case, of John Henderson, Thomas O'Neill, George Clapton, Nicholas Rochford, John Henderson, Thomas O'Neill, Denis Neville, and Owen M'Natly, plaintiffs; and Daniel Rowley, James Nichol, and James Wood,defendants. statement of complaint. The plaintiff* sue the defendants for—1. They are the registered owners of double-area claim held under certificate No. 7023. 2. That they aire the registered owners of a machine or special site held under' certificate No. 7024. 3. That on or about the 7th day of November, 1881, they refused to show the pegs- under which they claimed to hold double-area- claim 7023, when requested by plaintiffs, who then disputed their' rights to the ground* 4. That certificate for double-area claim No. 7023 was obtained by misrepresentation,, for, whilst purporting only to have taken possession of one hundred and sixty thousand feet of ground, a considerably larger area had been marked and taken possession of. o'. That at the time of taking possession

\>i the claim held under certificate, No. 7023 "and the special site held under certificate No. 7024 were not marked as required by law. 6. That defendants hold a larger area bf ground than by law they are entitled to hold. 7. That they have not maintained the begs and trenches of double-area claim No. 7023, or of special site No. 7024. 8. That defendant Wood's share in tiouble-area claim 7023 has been abandoned and unrepresented. Wherefore, the plaintiffs pray—1. That certificate No. 7023 for doublearea claim be cancelled, and that forfeiture and surrender of the ground be flecreed. 2. That certificate for special site No. 7024 be cancelled. 3. That defendants be ordered to forfeit the surplus ground, to be measured from the two corner pegs next plaintiffs' claim. 4. That plaintiffs be put in possession of the forfeited ground, or that the Court shall make such other order herein as it may deem fit. The defendants pleaded a general denial to all the charges contained in the several counts ; and, further, that the charges contained in counts 4,6, 7, and 8, were subjects of a former trial in the Warden's Court at Kumara, viz : —in plaints Nos. 41 and 42, Exhibits A and B. That the said causes had been heard and adjudicated upon, and that the court had no jurisdiction to try—admitted by counsel for plaintiffs, who added that he had only just been instructed, and he elected to prove only count 5, which alleged that—At the time of taking possession of the claim held under certificate, No. 7023 and the special site held under certificate No. 7024 were not marked as required by law. In this case the complainants proved that defendants did not (before obtaining a certificate for their claim, known as a double-area claim, situate on the west side of Ross Terrace, Kumara, and held by virtue of certificate No. 7023, dated 3rd December, 1879, granted under the provisions of clause 10 Mines Act Regulations), comply with the necessary provision contained in clause 3, Section 11., Mines Act Regulations, which compels the applicant to make eacli corner of the area he is applying for by a peg not less than two inches in diameter, or cairn of stones, or stacks of sods not less than two feet high, and by > trenches not less than six inches in depth and five feet in length, extending on either side of every such peg, cairn, or stack, in the direction of the boundaries of the claim. When any corner cannot be marked on account of the nature of the ground, the peg trench or mark may be placed at the nearest practicable point; and consequently never alienated, such proposed area or claim from Crown lands nor take possession of the same lawfully ; and that in consequence of such neglect the double-area claim, so called and misnamed and presumed either to hitherto to have been held by virtue of certificate No. 7Q23, and dated the 3rd December, 1879, in the names of Daniel Rowley, James Nichol, and James Wood, has never been lawfully taken into the possession of the original holders, their assigns, heirs, or transferees, but has been during the whole period from the above-mentioned 3rd December, 1879, until the date of hearing the complaint, Crown lands on goldfields, and as such iB open to all holders of miners rights ; and I order that the aforesaid certificate No. 7023 be cancelled as a document conferring no right to a claim, and therefore having no virtue, and it is cancelled accordingly, each party to pay its own costs. The Warden said he gave this judgment strictly in accordance with the ruling of the late District Judge Wilson Gray in several cases heard before him, in the cases "Harris Vi Lahey" "Ah Fan v. Kapatza," and especially in the case of *' Higgins v. Dyer" (see " New Zealand Jurist," new series, VoL I. > 1875-6). That the miner must clothe himself in the manner prescribed by the rules under the Act, before he can be said to be in lawful possession of a claim, and the area he pro- j posed to possess himself of) remains Crown lands on goldfields until the special rate referring to the manner in which possession is taken is complied with. The question of the opinion of the Supreme Court is—Was the Warden right in ruling that applicants for a claim to be marked off under Clause 3, Regulation 11., Mines Act Regulations, do not become possessed of the same until they have complied with such regulations* and that failing to comply by making the comers with pegs and trenches of such dimensions as laid down by the said rule, the land remains unalienated Crown lands on goldfields, notwithstanding that a certificate may have been issued in due form by the Warden on the assumption that such marking had taken place; (Signed) H. A. STIUTtORD, Warden.