WARDEN'S COURT.

Thames Star, Volume XIII, Issue 4228, 20 July 1882, Page 2

WARDEN'S COURT.

THIS DAY. Before H. Kenrick, Esq., Warden An Important Decision.

a. S. CLATK V. Hi E. CAMPBELL AND OTHBES

This case was adjourned from last Court day, and was an action to recover the Old Beach Claim on account of the length being more than twice the breadth. Mr Miller appeared for complainant. H. E. Campbell deposed that he gave instructions to Dan Sullivan or P. K. Donnelly to peg out the Brian Boroimhe and the adjoining ground, and the shareholders in the Brian Boroimhe were to have interests. Never employed anyone to work in the ground. Work was knocked off when the. application was made. Mr Bayldon surveyed the ground by his authority, deceived intimation from Mr Burgess in conversation that there was a defect in the plans. Immediately took steps to bare it rectified, but delay occurred through the absence of parties necessary. D. H. Bayldon, surveyor, deposed that he suiyeyed the Old Beach Claim by instruction from Donnelly, who pointed out the pegs. Did not then know Mr Campbell in the matter. That survey was represented in the plan produced. Before the*alteration in the plan was made the length was more than twice the greatest breadth, but he was not then atgre of it. On June 7th received a notice »m Campbell stating that Donnelly would fall upon him in a few days relative to altering the boundaries as required by the Mining Inspector. Donnelly did not call in a few days and the first time he s w him was on the 27th about 10 pm. Next day in the afternoon he made the alteration. When he went down to the office the second time he heard that a plaint was laid against the defendants bat that bad nothing to do with the alteration of the plan, for he set about it as soon as he got instructions from Donnelly. Mr Campbell paid for the survey. Heard the plaint was laid before he went on the ground. When the ground was first surveyed it was unoccupied on the eastern side.

J. M. McLaren, Mining Inspector, deposed he made an objection on Feb. 28th, that the length exceeded twice the breadth and returned the plan. On tie morning of 28th Jane, Mr Bayldoa and Mr Donnelly came op. Donnelly wanted to take in fresh ground but Mr Bayldon objected. They came a third time and Mr Bayldoa said they had decided to reduce the claim as they had heard a plaint was made. Eeceired the amended plan at 230 p.m. No work Jbad been done since the plan was lodged. Mr Miller, solicitor, deposed that he lodged the^plaint at 10 o'clock on the 28th.- ■■ :i. .. : -.-k. -..:.■ : .. ■..,.-,: /

His Worship, without calling on the defence, gate judgment against the complainant on.the following grounds:—He held that originally the defendant had no legal claim at all, as the length exceeded twice the breadth. But there was a principle involved. Men cannot always tell when they are pegging out whether tbeir claim would be in strict con/ormity with the regulations. Io rery rough or heavily timbered couutry it would to a large extent be guesswork. Now, this was a parallel case, for the surveyor himself was deceived; his evidence went to show that he did not know that the length was more than twice the breadth. He could not go against the law, and he must hold that the application was bad. But here equity came in. The defendants re-pegged correctly on the 28th, and so close was it upon that of the complainant that be felt justified in refusing the order. It was clear, that the defendant was taking steps to remedy the defect, and that altogether irrespective of the complainant's action. Responsibility for the delay lay in several places. The practice of the department was at fault. During ten days from the lodging of the application the ground was protected; but this ground bad been protected seven months. In acting good naturedly the Mining Registrar had placed himself in

the wrong. Knowing Mr Campbell had gone to Te Aroha, he did not Bend the notice to his address, but waited autil he could communicate, with him personally at Te Aroha. Mr Campbell also was wrong. His evidence at last Court day was to the effect that he was under the impression that the license bad been granted, and he therefore should have taken steps to man the ground. In future notice would be sent to the address lodged when the plans were not satisfactory, and a week allowed for making the alterations required, If that rule were not complied with, the application would be. refused.. He held that the ground in the firstinstsnce had been illegally pegged out, but had been properly pegged out by the defendants on June 28tb. He thought the original holders who had taken steps to remedy the defects should not be ousted for the difference of a few hours. He presumed Mr Miler did not wish his client to figure as a,jumper, and he considered that'when the complainant saw that the original holders were taking steps to place themselves on a proper footing, and more especially when it was very unlikely their so doing could have been the result of his action, he should have withdrawn the proceeding, as he Had incurred little or no expense. This judgment did not affect'the question of non-working, and very probably the ground could be forfeited on such ground?, ■ : Each party to pay their oWn costs. The Court then rose. _j*