IMPORTANT DECISION IN MINING LAW.

Te Aroha News, Volume V, Issue 253, 7 April 1888, Page 2

IMPORTANT DECISION IN MINING LAW.

An important p,>int was decided at the 1:1*5 1 sitting of the District Court at Queenstown upon the hearing of an appeal from a decision of Mr Warden Ificfcson. The appellants, Robertson and Craig, were the plaintiffs in the Warden's Court, and the respondents, Ilalliday and the Colonial "Bank of New Zealand, were the defendants. It appeared fhat the appellants instituted proceedings in the Warden's Court against the respondents to have a certain water light declared forfeited on account of actual or constructive abandonment. The "Warden gave judgment to theVffoct that the water right was abandoned, but he substituted a monetary penalty in lieu of forfeiture. Robertson and Craig appealed to the District Court mainly upon ihe ground that the Warden ought to have made an absolute decree of forfeiture and should not have substituted a fine instead. Upon the hearing of the appeal the question was raised whether the appeal would lie under such circumstances, and Mr Wesley Turton, for the respondents, cited a decision of Judge Wards upon a case just converse of this, to the effect that, it would not. After hearing Mr Gilkison for the appellants, Judge Broad said that section 240 of -'The Mines Act 18(50 " gave the right of appeal to the District Court, from any decision of the Warden's Court, but here the appeal was not from a decision of the couit, but from the exercise of a discretion iry power. Section •i of " The Mining Act 1886 Amendment Act 1887" gave the Warden power in any case, on sufficient cause being shown, to substitute a monetary penalty in lieu of forfeiture. The imposition of a penalty was entirely discictionary with the warden after cause shown, and tho Actfaile! fo provide for nn appeal from the exorcise of siu'h a discretionary power. To put it another way, the exeroise of such a discretionary power was no 1 , a decision within the meaning of section 249, and therefore there was no appeal. The case wag struck out, the Judge remarking that the Act did not permit him to give the lespondents costs. Otago Witness.