MANORBURN COMPANY v. RIVERS.

Otago Witness, Issue 2894, 25 August 1909, Page 29

MANORBURN COMPANY v. RIVERS.

THE COURTS DECISION. The following is his Honor Mr Justice Williams's decision in the appeal case the Manorburn Sluicing Company v. James Rivers: — On the 23rd March last James Rivers applied for -a special alluvial claim, and in -his application gave notice that upon the hearing he would apply for a certificate of abandonment by operation of law of a special alluvial claim held by the Manorburn Sluicing Compa.ny_ (Limited). , ,The application came on for hearing before the warden at Alexandra. The company appealed as objectors to the application, and the warden direcetd that a certificate of abandonment should issue, dated as from the 21st March last, and granted to Rivers tho claim applied for by him. The present appeal is from that decision. Section 185 of " The Mining Act, 1908," defines the circumstances Ln which a mining privilege is to be deemed to be abandoned by operation of law. Section 190 enacts that the warden, upon being satisfied that any mining privilege has been abandoned by operation of law, shall either inflict a fine not exceeding £100 or certify in writing that such abandonment has been established, and also the date on or before which it occurred. By section 185 a mining privilege is to be deemed to be abandoned by operation of law if the land comprised therein has been entirely unused for its proper purpose or unoccupied or neglected for any continuous period of one month in the case of a mining privilege on which machinery, buildings, erections, or works adopted for the efficient bona. fide working or use thereof do not exist or are not in bona fide course of erection, or construction. Section 192 provides that no miningprivilege shall be deemed to be abandoned j by operation of law in any case where j the acts, defaults, or events relied on to 1 establish such abandonment were caused | by reason only of the matters specified in the section. The only two causes which it is suggested have any bearing on the pressnt case ai-o those in subsections (c) and (d) of -section 190. These sections are as follow:— (c) The failure of water; (d) the occurrence of any accident or natural contingency which could not reasonably have Seen provided against or prevented. Phe company had three other claims besides the olaim in question. All had bc-en ' granted -to the company in June, 1908. They had been originally taken up about four years before by a syndicate which was turned into the company. One of the claims adjoined this claim, the other two were ■together, some distance away, and "had no connection with this claim. There was «, water race which had been constructed \ by the syndicate from the Government iace to the other two claims. A few chains of a water race branching off in the direction of the claim in. question from the race which led to the other two claims nad be«n constructed by the syndicate, but there were still three miles of that race to 1 be constructed before it would reach the j claim. Until this race was constructed the claim could not be utilised by the com- | pany for sluicing. To construct- it. would take three or four months and would cost about £750. There was no plant on the claim, and nothing was being done on the claim. After the grant of the claim in June 1908 to the company nothing was done either on or off the claim for the purpose of bringing it into Uric. Nor, in- | deed, apart possibly from prospecting, j had the syndicate done anything on the ~ claim since it took it up originally. In. considering, however, whether there has been an abandonment of this clam by operation of law, the acts and defaults of ihe company to which it was granted can silone be considered. The company had ;i. fresh grant under -a new title, and the old- title which the syndicate had held had been extinguished. It was •ob the ' failure of water that prevented working. There was water in The Government race available from Sep1 ember 1, 1908, onwards. The company -could not use it because 'it had made no provision for carrying the water to the < iaim. Then it is said that the company

• lid not take any steps to work the claim because there was a risk of the tailings injuring Howden and Moncrieff's land, and Howden and Monerieff had threatened to apply for an injunction. But "when the company applied for the claim Howden and MoncriefT objected to the grant on this ■very ground, and the claim was granted to the company notwithstanding their objection. If there was any risk the company took up the claim knowing the risk and subject to it. To apply for and obtain a grant of the claim in the face of an -objection that the working 1 of the claim will do an injury to others amounts to an assertion on the part of the company that it will not do them an injury, and that the company is prepared to work the claim and take the -risk. It certainly cannot be said that any accident or natural contingency occurred ■which could not reasonably have been provided against or prevented. The company took ap the claini with its eyes open. 'There was, therefore, an abandonment by operation of law of the claim by the company: Then comes the question Avhether the' warden ought not to have inflicted a fin 6 instead of. giving a certificate of aban•ek>nment. This is a matter in the discretion of the warden. There is no doubt. however, that an appeal lies, and, as was said in Ewinc: v. the Scandinavian Waterraee Company (24 N.Z.L.R., at page 234), while paying due respect to a proper exer•oise oj its "discretion by the court below, especially in matters where the court is dealing with a special subject, this court necessarily reviervs such a decision whore the' occasion calls for such a review. The oiscretion having- been exercised, thi= court on appeal ought to be satisfied that it vas exercised. In order to determine

whether or no it has been wrongly exercised, one must look at the state of things as they existed when the matter came before the wardsn. It is legitimate also to look at what took place when this and the other claims were held by the syndicate which preceded the company. The court, indeed, was asked to do this by counsel for the company, as the fact that a considerable sum of money had been spent Ly the syndicate was relied on to show that a fine only ought to have been inflinted. We find, then, that this particular claim was taken up about the year 1904, and that from that time to the present nothing has been done on it except prospecting. We find also that over three miles of race had to be constructed at a cost of £750 to \ ring in water to work the claim, and that no steps had been taken in the way of such construction. The money spent by the syndicate had been for the most part spent in makiner a race to the ether two claims, which were entirely separate from this one, and in plant and working expenses on these claims. Beyond protecting and the construction in 1907 of a few chains of a branch race in the direction of the claim, which, until continued for more than three miles further, is utterly useless nothing whatever has been done on or off this claim for the purpose of utilising it from 1904 to the present time. Since the grant to the company in June, 1908, nothing whatever had been done on any of the claims. The company also had no funds. The nominal capital was £5000, and of this £2500 in fully-paid-up shares had been issued to members of the syndicate. Only 122 contributing share"! had been taken un. and there were liabilities t of about £100. It was only if persons could be found to take up the unissued contributing shares that the conrpany would be able to carry on operations. Whether a fine ought to be inflicted or a certificate of abandonment granted must depend in oacn cosa on th-3 special circumstances. In the present case I am satisfied that the warden was justified in granting a certificate. Appeal dismissed, with ccsts.