WARDEN’S COURT

Kumara Times, Issue 2964, 3 May 1886, Page 2

WARDEN’S COURT

Friday, April 30. [Before J. Giles, Esq., Warden.] SUITS. WAGSHAW AND ANOTHER V, A. REID AND FIVE OTHERS. Complainants stated that defendants had abandoned special site No. 29937, and that the said site was auriferous. Mr Hannan for complainants; Mr Purkiss for defendants. The following evidence was taken : H. J. Wykle, surveyor, produced plan shewing site in question. The site as surveyed by him contained nearly double the area of ground mentioned in the certificate. H. Richards, sworn, stated that the machine site had not been used for stacking stones thereon for over eighteen months. The ground was highly auriferous. He had not tried it, but there were strong indications on both sides of it. R. Wagshaw, sworn, said he worked within two claims of the site in question, It had not been used for eighteen months. The defendants had worked very near to it, and the. ground was payable.

Examined by Mr Purkiss : He held no claim. The claim he held he got cancelled so as to be free to go for this special site. He had some recollection of a Government race; the same race crossed the special site. Government Stave him £SO, and the other parties using the water out of it gave him £6O not to interfere with that part ot the race that crossed the claim he had got cancelled. This occurred just prior to Chiistmas last. To witness: If you got this special site, what then ? Witness: All depends.

Mr Purkiss ; Oh ! I see, all depends whether you make another rise ! [Laughter.] Charles Goodwin, sworn, said : The special site has not been used for stacking stones for eighteen months • it may have been used for other purposes. There is a dray road runs alongside of it.

For the defence, Mr Purkiss contended that the special site was not limited alone to he used for stacking stones thereon, there not being a word about stones on the certificate. The defendants from the position they were working, could not at present use the site ; they had used it within the last nine weeks, and had no intention whatever to abandon the same.

A. Reid, sworn, said : The site had never been abandoned, and the claim could not be worked without it. Stones had not been stacked for some time past; but the site had been used for stacking timber blocks and appliances within the last nine weeks ; they were not working any part of the special site at the time complainants commenced proceedings. It was their intention to erect machinery on the special site; they could stack stones upon the stones already stacked, for the new plant would be on a higher level than the winze was. About onehalf of the site had been used.

John Corrigan and John Rae gave similar evidence. Rae, in cross-ex-amination, denied that he told plaintiffs they could take the special site. Mr Hannan rec tiled plaintiffs, who swore (hat Hae said if the special site would do them any good they might take it. They could not say whether or not he was joking.

This closed the case. After counsel had addressed the Court,

The Warden, in delivering judgment, held that no abandonment had been proved \ that it would be absurd to say that once a party of men held a stone site, they must continually keep stacking stones thereon. If, in working the claim, they came across some drift°witli no stones in it, were they to go else where for stones, or go to the Court for protec'ion ? He held .such a course unnecessary, and againsf reason and ? etlsc i The claim was being

worked in a bona fide manner, and with the working of the claim the easements were protected against interference. As regarded the conditions of the certificate that the ground must be given up if proved to be auriferous, conditions bad been held by a superior Court to be ult>a vires, and could not enter into this suit Jud»m ® n^o^ defendants, with costs; CounWagshaw and another v. A. Reid AND FIVE OTHERS. The complainants stated that defendants held surplus ground within their ' oub e-area claim, held under certificate No. 29911. Mr Hannan, solicitor, and Mr Hannan, agent, appeared for plaintiff; Mr Pnrkiss, solicitor, and Mr Seddon, agent, for defendants. Mr M. Hannan briefly addressed the Court, and said the case for his clients was very simple. He had only under section 94 of the regulations to prove that defendants held surplus ground ; on that being proved, the complainants were entitled to he put in possession of the said surplus. Mr H. Wylde, Surveyor, sworn, produced a plan showing the claim in question, and stated that the spot where the pegs were was indicated and shewn him hy Alexander Reid. The area, without any reservations, was 123,707 square feet. There was no peg at point A on plan, but at point B on plan there was a peg. The pegs in the ground at point A and at Netzband’s claim did not correspond with the boundaries as ascertained from the plans of Netzband’s, Isbester’s and Reid’s claims lodged in the Court. He had not been instructed to make any reservation. He was on the ground with Mr Murray, the Surveyor. At point A, Reid and party told Mr Murray that their peg was sft. from Meade’s peg, in a southerly direction, the sft. at this pev, the Ift. at Netzband’s peg, and the Ift! at Isbester’s peg would make the area held by Reid and party considerably less than he made it.

Mi’ Murray, sworn, produced a plan shewing Tleid and party’s claim. The survey was ordered hy the Court. He had called on hoth parties, and they were both present on the ground when he took his instructions what to survey. Reid and party’s claim exclusive of reservation, contained 111,367 square feet. The reservations were—sludge channel, 2,970 square feet; M’Colter’s tent ground, 1,152 feet; tail race, 316 ft. ; Knight’s tent ground 1,152 ft. • old Government race, 3,120 ft.; Dea’s tent ground, 1,152 ft. ; total/ 9,862 squaie feet, "Within the area, exclusive of reservations, there was 121,229 square feel. According to his computation the area within the plan of the boundaries as shown on Mr Wylde’s plan should be 122,267 square feet. His instinotions were when across any Government race or the sludge-channel, he had to reserve the channel and races to a width of 27ft. By Mr Hannan : He had not shown the same boundaries as Mr Wylde because Reid and parly denied those boundaries as being correct. He had however, the data, whereupon to tn ike the calculation of what Mr Wylde had surveyed.

R. Wags haw, sworn, said that on soing on the ground with Mr Wylde A. Reid had, whilst they stood on the -tone site, pointed to point A and to the other boundary of Meade’s claim, and said they were peg and peg with Meade and party.

H. Richards, sworn, corroborated the evidence given by Wagshaw. Charles Goodwin, sworn, stated he was always under the impression that the pegs of his party’s claim and those of Reid and party were together. The peg at A was near to Morris and party’s peg, about five feet west of his party’s south-west peg. This closed the plaintiff’s case.

Fur the defence Mr Parkiss said defendants relied upon certain rights that existed within the pegs of the claim iti dispute prior to 'certificate 29911 being issued, it being mentioned that the claim was granted subject to existing rights especially that the Government race. If he proved that certain rights existed at the time the claim was granted, (hen, notwithstanding these rights may have been abandoned, the fact of their bein* abandoned did not make the land so abandoned form part of defendants’ claim, seeing they had not re-pegged or re-registered. He cited authorkies— Barton v. Langtry, M'Favland’s Digest Victorian Mining Law, in support* of the contention.

A. Reid, sworn, stated that at the time the claim was taken up, M‘Coiter, Claussen and West had tent ground on tile claim. I he G'imminent' race am! sludge-channel went (hruiieii j t . Tim ground occurred (> v M Outlet’s mid (Jlnus.-eu or Knigh hots had been worked by hL pans , ..U 0 the Governs

meut race. West’s hut was now occupied by Charles Deas. He never told Mr Wylde that his parly’s pegs and Meade’s pegs joined at point A; they joined at two other points, but at- point A there was sft. between them. Where the Government race now stood was part of their claim. The Government race now was a far more extensive structure than the race was when they took up the claim, and that was why they refused to bear any part of the cost of renewal. Theie was Ift. of a space between their pegs and Isbester’s and Netzband’s. It was hard to say exactly where some of the pegs should be seeing they had been washed away. M'Cotter and J. Corrigan gave corroborative evidence. Wm, Harrold, sworn stated that lie was working for Meade and party at the time they took up their extended claim. At point A there was close on 15ft. between Meade’s and Reid and party’s claim pegs. This closed the defendants’ case, Mr Purkiss had nothing farther to add to his previous arguments, having clearly proved the existence of other rights on the claim, the defendants (exclusive of these rights) did not hold surplus ground. Mr Hannan contended that existing rights could not be recognised, seeing there was no proof that any miners’ rights were held at the time by those who occupied the tent ground ; neither had any proof been given of separate pegging, which was necessary. In regard to the dispute as to the position of the pegs at point A the evidence was in favour of his clients, and the sft. difference was an after-thought. Warden Giles, in delivering judgment, said the case was surrounded with difficulties, and several nice points of law were involved. He could not agree with counsel for plaintiffs that it was for the defendants to prove that the owners of ihe tent-ground were holders of miners rights at the time the claim was marked out. There was no dispute between the parties, and the natural presumption would be that those occupying the tent-ground had a legal right to do so. The argument as regarded the pegging was entitled to some consideration; but even that was in favour of the defendants. The owners of the tent-ground would, in their own interest, peg when taking possession. He could not agree with counsel for the defendants that notwithstanding the tent grounds held by Knight and M'Cotter, and the Government race, had been abandoned worked and washed away by defendants, that the area did not form part of their claim. The fact of their working it and receiving the profits, and by work- j ing and removing the pegs was against j them. As regarded the different measurements and surveys, from the evidence he was of opinion that the area shown on Mr Murray’s plan was the most correct. Seeing the boundaries had been worked and the pegs from time to time been shifted, it was im- j possible new to get a correct measure- i meut of the ground as it stood when | first marked out. The area shown or, j Mr Murray’s plan was 121,229 square j feet. There was then a deduction to j be made of 1152 ft., on account of Deas’ i tent-ground and double-area claim for i six men, being 120,000 ft., there would j be over and above that amount 77 i square feet. With the difficulties in 1 the way of obtaining a correct measurement, he was not prepared to say there was any surplus at all ; it would be manifest.ly unjust for him to do so. The verdict would be for defendants, it not having been proved that they held any surplus ground. Costs of survey, £5 • surveyor, £1; counsel, £3 3s.—[Manifestation of approval, by those in the Court, of the verdict was : given, th£ sympathies being with the claim-owners as against the jumpeis.] APPLICATION’S. Applications were (hen dealt wuh : E. Brennan applied for an extended claim, which was granted. R. ,J. Seddorqfor a residence area ; granted. Mrs Thomas, for a residence area ; granted.

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