"WARDEN'S COURT.

Tuapeka Times, Volume III, Issue 121, 2 June 1870, Page 5

"WARDEN'S COURT.

(Before W. L. Simpson, Esq , Warden.) Monday, May 30. Wong On v. J. Ilutter,- Rntter was charged with mining on residence area belonging to plaintiff. Adjourned for one week to enable plaintiff to produce certificates. Meantime the defendant to desist from working the ground. The Warden gave judgment in the case Felton and Barkman v. Tudor and other as follows : — I have given the case every consideration, and I think it might well be taken into the Supreme Oourt, as many cases of a like nature may possibly arise. The circumstances of the case are these — Felton and Barkman came before me and made complaint that they were holders of a lease from the Queen to mine for coal over an area of five acres on the west side of the Tuapeka TCiver, Evans' Flat, elated 22nd3April, 1870, and executed on that date ; that Tudor and party had encroached on said area, and were mining on it, and therefore subjected themselves to the penalty set forth in section 28>f the Goldßelds Act. The defendants adduced their certificates as being the title to the ground. The defendants applied for a gold mining lease of five acres on Crown Lands, Kvans' Flat ; they duly posted the notices prescribed by the Goldfields Regulations, and a certificate was in due time issued to them. It seems that a portion of the ground applied for- by defendants was within the alleged boundary of plaintiff's lease^ It alsa appeared in evidence- that the plaintiffs saw the notices on the ground, and were aware of the encroachment. It also came out in evidence that the lease dated 18th April, 1870, was applied for in 1868 or earlier, and the plaintiffs pleaded that said application protected them until a lease was granted. From all the circumstances I can't come to that conclusion. The plaintiffs knowingly allowing the defendants to mine for over a twelve month on the ground without challenging them, it was a tacit consent, and I am of opinion that they cannot now withdraw that consent except under conditions. That alone, and allowing certain actions to take place, appear to me to be a consent in every way (cases cited in support of opinion.) Here are two parties- holding a title from the same source, the one- to mine for gold, and the other for coal. Is it possible for the said source to grant two different titles for the same piece of ground ? I think not. The defendants acquired right to the ground when the plaintiffs had no title. Leasing by deed cannot be departed from at pleasure. I am therefore of opinion, and find that the plaintiffs cannot withdraw their consent ; the defendants are not working upon private property without consent, therefore tho plaintiffs are not entitled to the penalty as claimed in his complaint.