ROWLEY AND OTHERS, APPELLANTS; HENDERSON AND OTHERS, RESPONDENTS.

Kumara Times, Issue 2004, 31 January 1883, Page 2

ROWLEY AND OTHERS, APPELLANTS; HENDERSON AND OTHERS, RESPONDENTS.

DISTRICT COURT, GREYMOUTH.

This is a mining case which has been several times brought forward at the Warden’s Court, Kumara, since October, 1881. In December of that year Henderson and party applied to have double-area certificate No. 7023 and the special or machine site 7024, held by Rowley and party, cancelled, on the ground that they were not marked as required by law; and the Warden (H. A. Stratford, Esq.) upheld that plea so far as it related to the double-area certificate, stated a case for the Supreme Court (which Court declined to interfere), and eventually gave judgment in April, 1882, confirming his decision as given in the case he stated for the Supreme Court. Rowley and party then sought to have this judgment reversed, on the plea that they had been working this ground for some years, and that it had not been proved that their claim was not properly marked. The appeal was heard at the District Court, Greymouth, on Monday last, before his Honor Judge Broad. The evidence and argument in the case occupied the Court all day, and yesterday morning His Honor delivered judgment as follows :—The fifth count in the respondents’ complaint, and from the decision of which in the Warden’s Court, Knmara, this appeal has been brought, is “ That at the time of taking possession of the claim held under certificate No. 7023, it was not marked as required as law.” The Warden, upon the evidence before him, found “ that the double-area claim so called, and presumed hitherto to have been held by virtue of certificate No. 7023, dated the 3rd of December, 1879, has never been lawfully taken into the possession of the original holders of the said certificate, &c., but has been during the period from the 3rd December, 1879, until now Crown lands on goldfields open to all holders of miners’ rights,” In their grounds of appeal the appellants allege that it was proved before the Warden that the claim was marked and taken possession of according to law, on a particular date. This reopens the whole question raised by the sth count in the complaint. I do not think the appellants are necessarily restricted to proof of possession having been taken on the specific date stated to have been proved in the Warden’s Court, but that they may make here another and a different case always limited to the question bona fide in issue, viz., Was the ground held under certificate 7023 lawfully taken possession of ? That certificate is dated 3rd December. It is evident, therefore, if there was any marking, it was prior to that date. This certificate was put in by the respondents. A considerable portion of their evidence was directed to the state of the pegs and trenches in October; in fact, their case seems to depend upon the marking or non-marking at that date. The appellants, in stating a specific date in their grounds of appeal may have been misled by the finding of the Warden, It is evident if the claim was not marked according to law, it was, if the Warden’s view of the law is correct, vacant Crown lands during the entire alleged period of possession, and not merely from 3rd December. In this case it is sought to dispossess persons who have been in actual occupation of

a claim under a registered title for some years, on the ground that the boundary marks were not of the prescribed size, and that some of them were not put in at all, at the time possession was taken. The plaintiffs say they knew from the beginning of this alleged defect in title, but yet, taking no steps to oust the defendants, they stood quietly by, while they expended months of hard work and perhaps considerable sums of money in developing the claim. Now, while the quantum of proof required may vary with the special circumstances of each case, there mnst always be substantial weight of testimony to justify the Court in decreeing a forfeiture. Speaking generally, to justify forfeiture in any case such as this, the proof should be certain and not doubtful. Even if the fact of some defect in the original marking were clearly proved. I must not be taken as assenting to the doctrine that there was never any possession at all. The only decisions on the point I know of are upon the construction of certain Beechworth and Otago rules, which differ from those in force here. However, I am not called upon to decide the point, as the evidence is not of sufficient strength to satisfy me that this claim was not properly marked. The balance of testimony is, I think, the other way. The decision therefore is, that it.is not proved that the double-area claim held under certificate 7023 was not marked as required by law; and the order of the Warden’s Court directing such certificate to be cancelled must be reversed. But as much of the evidence for the defence upon which this judgment proceeds was not produced, as it might and ought to have been, in the Warden’s Court, and as the peculiar way in which the witness Rowley gave his testimony in the Court below conduced to this protracted and, I suppose, expensive litigation, there will be no costs allowed the appellants.