WARDEN'S COURT.

Tuapeka Times, Volume III, Issue 172, 25 May 1871, Page 4

WARDEN'S COURT.

(Before W. L. Simpson. Esq , Warden.) Wednesday, May 17. James Taborn applied for an fi^ricuL tural lease— granted,

Ah Fou and party applied for an extended claim— granted. Ah Let and party applied for an extended claim — granted. Ah You and party applied for an extended claim — granted. James Pettigrerc and party applied for an exten<toj .claiiysrgranted. William Labes and party applied for an extended claim — adjourned to the 25th inst. James Pettigrew and party applied for a right to construct a water race — granted. Several other applications for tail races and residence areas were also granted.

James Harris v. Labes and Another, — Mr Copland appeared for the plaintiff, and Mr M'Coy for the defendants, Mr Copland stated that there were two matters to be considered — one was an application for an extended claim, and the other for interfering with that claim, and he thought it would be better if both cases were heard together. This was an action entered by James Harris, the owner of a certain mining claim and property on the Tuapeka River, known as Lewis' claim, for the recovery of LIOO damages from Labes and another for certain proceedings taken by the defendants on his claim. Mr. Copland contended that the claim was properly marked, and the regulations complied with. No proceedings had been taken to show that it ever had been forfeited. Mr Harris was still in possession of the claim, and very valuable machinery had been erected upon it. His client ■was surprised at finding an application made by the defendants for the very same spot of ground, and not only so, but they had marked it off with peg 3. The Warden stated that if the claim was registered, the first thing the applicants required to do was to apply to have the registration cancelled in accordance ■with Regulation V., Sections 2 and 3. Mr Copland said he wished to show that his client had a good claim for substantial damages, as the proceedings of the defendants had been such that he could not proceed with the work. Borne of those parties who would have taken a share in the claim, declined to do so while the defendants kept interfering with it. In asking for a LIOO he was asking a merely nominal amount. James Harris was called, and deposed to the following effect: — A fortnight since he heard that the defendants were interfering with his claim. (Here the certificate, dated July, 1870, by which the claim is held, was produced, and in answer to Mr M'Coy, witness said that the application of Labes and party was for the very same ground.) He sent them a written notice, and had since conversed with them about the matter. Labes acknowledged that he had entered upon the particular claim in question, known as Lewis' claim. He said. " 1 took it thinking it was an a' andoned claim, and did not know that it was yours." There was a party coming from Bungtown to purchase one-third of the claim for LI SO, and when he heard of the action taken by Labes, he gave up all idea of it. He considered LIOO a fair sum, as he was now paying Lewis 303 a week to look after the claim. David Lewis was then sworn. He was in possession of the claim for Mr Harris, aa£ had been at Tnapeka Mouth for over tUL/ears. About three weeks since he saw defendants cutting trenches, and asked them if they were marking out the ground. They replied by saying "we ■will take a slice of this." They said the marks were not according to law. They went away, and the next day came back and stuck up application forms for a tail race and a two-acre claim. They cut eight trenches, and prepared for sinking a shaft. Cross-examined by Mr M'Coy — WitngsChad not worked any iv the ground since he had been with Mr. Harris. He was once owner of the claim, but signed it over to Mr Livingston. He had not a miners' right from the 31&t of August in the 12th of December. He had no miners' right when Frederick M ears' deed was executed, nor when he (witness) sold to Livingston. He gave Mr M'Xickb money to purchase a miners' right before the old one had expired, but M'Nickle put him off two or three times, and at last told him that he did not require a miners' right, as the claim belonged to ■ Livingston. Mr M'Coy asked for a dismissal of the case on the ground that no damages had been proved. The Warden said that trespass had been proved, and it was for him to show the effect of a miners' right not beinsc held by Lewis. Mears may have had one. By the Goldfields Regulations of 1869 it is shown that a minere' right is the foundation of all titles. Mr M'Goy- Lewis says that he never saw Mears with, a miners' right ; but, even supposing the titles were perfectly good, the present owners had so acted that the license should be cancelled. The claim has not been worked for two months, and that being so, it could not be of great importance in their eyes. The Warden -The price paid for the machinery ought to show its value. Mr Copland contended that the absence of a miners' right beyond the prescribpd period was not equal to abandoning the claim — it did not make the claim void but voidable , and here Mr Copland quoted from Judge Chapman's decision in the celebrated case of Blundell to prove this point. Judge Chapman said the occupation by a license was revocable, but the occupation by a miners' right meant more — it meant permanency, and the expenditure of labour and money, a right to reap some benefit from the land, and was capable of transmission. But even although some time elapsed without a miners' rightj it was a fact that the Crown had renewed that right, and the registration certificate requires to be caueelled before the defendant's application could be received, The Warden said the whole case hinged upon the point whether owing to the cessation for a time of the miners' right * beoame void or voidable, Mr MOoy — Even that did not prove damages,. The Warden could not see that damages to the full extent could be allowed. Mr M'Coy said he would make appliestion for forfeiture. U. The Warden said he could not grant it. Hferith regard to the objection, he could

not give a definite answer till hs considered the matter of the miners' right. He would reserve his decision till Monday.

Monday, May 22. The Warden delivered judgment in the case of Harris v. Lobes and Another. This case is brought as follows : — To recover LIOO damages for an alleged encroachment or interference with a claim said to be possessed and owned by the plaintiff; the interference being that the defendant entered on the ground, and pegged off the ground, and subsequently posted a notice intimating that he had applied for it to the Warden. The point raised by the defendants, and on which they rested their case, was whether the plaintiff, by his failure to take out a miners' right from the 31st August to the 12th December, 1870, had lost his possession of the claim, rendering it necessary for him to repeg and formally take possession of it on the 13th December, 1870. The plaintiff argued that the taking out of the miners' right on the 13th December, 1870, healed the breach, if any, and that the claim, although perhaps it might have been forfeitable during the period alluded to, was not now affected thereby. This was the first time that the point had been raised in a case where the claim had gone into third parties' hands, and doubtless would seem harsh if held that the plaintiff had lost all right, as no doubt he had an equitable claim in this case. The Warden was of opinion that the miners' right was a document without which none desirous to mine had any persona, and without which no one could acquire any rights or privileges on tire goldfields ; and he was further of opinion that any rights and privileges acquired ceased on the expiring of the term for which the miners' right was granted. It had been argued by the plaintiff that the case of Wlundell v. Kobertson decided differently, out a perusd of th it ca^e would show that the quest ion here sought to be decided was not raised. The Warden was therefore of opinion that by reason of the neglect of tue plaintiff's predecessor to take out his miners' rig'it from August to December, he had lost his possession ; and that unles-i he could show that he had, subsequent to December, marked out his £io md in terms otthe rules now in force. — for it must be born in mmcl that between 1868, the time when plaintiff took up his ciaim, and December, 1870, there had be n a change in the mode of taking possession, and applied for and obtained his ground in terms of these regulations, — it must be held that the ground became Crown lands without being subject to any easement on the 31st August, JB7O, and had not until the defendant marked out the ground undergone any change, A miners' right was in his opinion a right to subject the Crown lands to certain easements for the period of twelve months. Judgment for defendants with costs.