WARDEN'S COURT.

Tuapeka Times, Volume III, Issue 198, 16 November 1871, Page 5

WARDEN'S COURT.

(Before W. L. Simpson, Esq., Warden.) Monday, Tuesday, ai?d Wednesday, 6th, 7th, asd Bth -Novkmbeb. .Higgins v. Dyer. — This was a case of what is commonly called jumping. . The complaint was as follows : — Ist. That complainant \did, on the 18th October, 1871, apply under the Golduelds Regulations for lQacres ofjjround or thereabouts, he having previously duly marked the same; 2nd. That defendant, with his servants, did, on the 20th day of October, 1871, unlawfully enter upon said claim that had been applied for, and commence • to mine thereon, and. therefore should be adjudged a trespasser^ and claiming a penalty of £50 as damages. Mr. M'Ooy appeared for plaintiff, and Mr.' "Taylor, from Tokoroairiro, for the : defendant.. After various little objections were,dispgsed of, Mr. Abel was' called end produced copies of the appUcation^or mining ' Mr. Taylor asked if' jthe necessary deposit was'paid. ' " ' '" Mr. M'Coy objected', and said that a jvitneßa called specially to "prove one

hing kad no right to be asked other {uesdbns. The' 'Magistrate remarked that 410 ap- , plication was received unless the deposit was paid. However, the question was alkmed to | be put, and answered in the affirmative. Mr. Adams, surveyor, was then called, and produced a plan that he had made from measurements taken by him of the Ocean View claim. The plan exhibited the grounds originally applied for by Higgins. .The other lines represent the ground jumped-by Dyer. \ Mr. Taylor at thia' stage stated that Adams should be sworn. Mr. M'Coy showed cause that it was not necessary. Ultimately Mr. Adams was sworn. The plan produced represents sections 13, 14,' ! a'nd 16 of the old survey. 16 is the old Oce^n .View, and. is coloured green," 1 Biggins" mining lease is coloured yellow, Dyer's' ground, as pegged by him, iscoloured blue, ' and the portion coloured pink is '.that appjied for by Dr. Smith. On TJyer's ground there is a shaft. The ground ' marked by Dyer is about two acres nearly,' dimensions about 4 chains, square — 3 square chains is about an acre. The pink line takes off about half an acre from lliggins' " application. Higgins' claim is about six acres'. His claim is coloured yellow^ Dyer's application is altogether within Higgins' :l)6undary: Cross-examined by "Mr. Taylor — i am an authorised surveyor. I was on the ground on last Friday and' Saturday. I knew Higgins applied for a mining lease. I knew it because the Warden se,nfc me a copy of the application. Witness was asked, as a scientific ma,n, did ho know what was required to mark out a mining claim. Mr. M'Coy objected, as the question did not come within the meaning of scientific knowledge. He had no objection to any question about the correctness of survey, but he did object to the question asked, as the^regulations were plain on the subject. Witness continued I placed signals at each corner. There was one peg at each corner and two trenches. I did not measure the pegs, I don't know their size. They were manuka pegs, averaging 3 feet high, and from 2 to 3 inches in diameter.. They were neither round nor square, but they are what we call round timber. I did not measure the whole of the trenches. I did some of them. These measured were under 5 feet long, depth about 6 in. I did see a store and dwelling. I .think they belonged to Higgius. I noticed a peg at the north-west corner with a trench. I believe the^trench was pointed out to me. f was asked if I did not think it was fresh. The surface looked as if cut within two or three days. The same might be originally cut, but renewed. I noticed a great number of trenches. The trench to the north-west was the freshest one in my opinion. The other three comer trenches in Higgins' claim did not appear so fresh — similar in appearance to those in Dyer's claim. One .of Biggins' trenches is in a gully. This might account for its looking so fresh. Dyer's claim is about two acres — about. Booo square yards, or nearly. I noticed a trench on north-east of Ocean View Claim. I saw three — one on the north-east, one to the east, and one to the west, all joined like a broad arrow, or rather like the letter T. The length of the one to th.c south-east I don't know. The same was pointed out to me as the I boundary of the Ocean View. I don't I think the peg wa» five feet. The trenches appeared to have been cut very recently. The trenches might be four feet. I can't speak as to the depth! Cross examined by the Bench — The trenches would be about four feet. Any one could* see that they were marks indicating some boundary. No one could mistake them. .Surveyor's pegs are different from claim pegs. We sink ours almost to the level of the ground. Joseph Higgins, sworn, deposed — I made application on the 18th October for a gold mining lease— (produced). The ground was marked out previous to application. It was marked out three months ago, but re-marked, on the 18th. Trenches were cut. I have five mates. I was on the ground on ■the'lSth and 21st. We sunk three Shafts since we commenced work. We were interfered with on the 20th'by Dyer and Crossau. They marked out a claim on that day. I did not see them. I saw Marshall on j'ihe ground, who was along with Dyer and Crossan. He was going to commence to sink a shaft. I told him it was our ground. He, after my informing him it was our ground, ceased working. He said he would have nothing to do with it. This was about eight o'clock a.tn. • He told me he was employed by Dyer. On the 23rd I saw new pegs within our boundary. Dyer's man, Marshall, placid them there. He told me so. Their interference with our claim has caused damage to us. Since we were served with the injunction we have been idle. They have sunk two shafts on the ground. I don't know the names of the workmen. I would not take £500 for my share. Jumping our claim has a tendency to lower its value. We lost time in getting out summonses. lam manager of the claim. The rights produced belong to my mates. Lewis holds a share in an adjoining claim. He also holds a share in our claim. Cross-examined by Mr. Taylor — I have not had great experience in mining. About five years in New Zealand. lam not well posted up in the regulations. I marked out the Ocean View claim myself, f did not go to a lawyer. I don't know how many claims I have marked out— probably a dozen. I can't tell to a few. If marking out a- quartz claim, I would put pegs at the corner from three to four feet long, and cut trenches. I know of nothing else required. I don't know the regulations. Six men's claiw would be 600 feet/ I would, in marking out, place pegs at each corner, and likewise trenches. I don't think that I ever read the regulations through. I did not put the pegs in myself. The pegs were about the thickness of my arm, and from three to four feet long. I would not swear they were more than three feet. I will awearthat the pegs are more than two feet out of ground. I won't swear that 1 the pegs were exactly round. Trenches I were put at each corner. I can't swear to the exact length. I think they were five feet. lam satisfied that at the" northeast corner there was a trench on the 20th October. I will swear to the fact. The trench wae there on : the. J.9th. If there

were §OOQ witnesses who would swear the contrary, , they would not be telling the truth. On the 20th, our trench \ras filled up by the ground tal:«n fromj Dyer'a. F. Marshall, jbeing sworn, deposed — Itemembeijed the 20th October, about half past four in the morning. Dyer t>nd Crossan called on him |o assist them in pegging off ground. Did no pegging on that day^ther than what Dyer told him. Cut trencher ; pegged off 300 feet from east end of Hoggins' qlaim, and put a peg at each end. Dyerjind Cropsnn were with him at the time. ' told Higgles he was going to sink a shaft. Un^erstQoocl from Dyer that Riggins had applied for a lease and was refused. This was on t tne morning of the 20th. Dyer stated that ,the lease was not worth the snap of his fingers. Higgins informed him that the application i ■was not rejected, and he in consequence did not sink a shaft. Cross-examined by Mr. Taylor — Dyer told him that the lease was not worth a snap of his fingers. Remembered the 20th October. Dyer and Crossan called on him. Accompanied them to the Canada Quartz Reef. Went to Higgins' claim, j Pointed out the Ocean View pegs on the morning of the 20th.' At the west corner there was a rough manuka peg about three inches through, and about three feet high. Saw no trenches. Saw the peg frequently i before. At that corner dug a trench for Dyer.' Quite certain that in cutting the trench did not fill tip another. Dyer's was the only trench near the peg. Only presumed that the peg he saw belonged to the Ocean View. Henry- Weiss, being sworn, deposed — Working on the Ocean View claim. The claim was marked out before the 18th. Did not see the pegs the day before. Knew they were three feet high, and trenches at each peg. Could not say as to the length. Trenches were cut same time as these of the Alexandra claim. Did not find any of their trenches 611 ed up. Was working always underground. Showed Dyer one of their pegs before he fixed his pegs. Did not know how the notice disappeared. Cross-examined by Air. Taylor — Pegs were about three feet high. Made a trench at the east corner. Been fourteen years digging. Could not read English. Would swear that he placed pegs and cut trenches at each corner of the claim. H. Schroeder, being sworn, deposed — Remembered the 18th ; was on the claim that day. Saw the pegs on the claim. They had the same appearance as when put in the ground. They were at least two feet above ground. Also saw the trenches on that day. Cross-examined by Mr. Taylor — The pegs were two feet high. Could not swear to the length or depth of trenches. . Bennetto, being sworn, deposed — Remembered the 18th October. Saw the pegs and trenches on the 18th, the day the Warden was on the ground. The pegs were manuka saplings, four feet high and about three inches in diameter. The trenches were about five feefc long. There were trenches at the foot of each peg. When Dyer was cutting his trenches he filled up one of those referred to on the north-east corner, inspected thj pegs and trenches on the 18th October, aud also on the 17th. Cross-examined by Mr. Taylor — Would swear positively that he visited and examined the trenches aud pegs on the 18th. , Cleared out the trenches filled by Dyer. That took place on the day his Worship was on. the ground. Jdhn L. Gillies,' being sworn, deposed —Knew the claim called the Ocean View. Saw it about the 18th October. Saw the boundary pegs, more particularly the two next the Alexandra claim. They were wo large, prominent pegs, fully two feet high. They were larger than those used for marking claims. Saw the trenches ; could not swear to their length. They were sufficient to attract attention. No one could mistake them. At the other end of the claim I saw a large peg four feet loug. The pegs of the Ocean View and Alexandra claims stand about three or four feet apart. The Ocean View pegs are larger than those of the Alexandra. Saw no new pegs there on the 20th. Saw pegs on the adjoining claims, but not on the Ocean View. The trenches on both claims were cut by the same spade and on the same day — some time before the 18th. Saw no trenches said to be cut by Dyer. Cross-examined by Mr. Taylor — Could not swear to the 1 exact height of posts. Two trenches were cut to each claim — the Ocean View and Alexandra, on the west boundary of the Alexandra. Could not tell the length or breadth.. Could not speak positively of the other end of the claim. There were pegs and trenches on the Ocean View at the latter end of September. The trenches were cut by the same spade. Saw notices on the Ocean View claim. Wrote to the Warden, as he had a priority of selection. The trenches were cut before he wrote to the Warden. For the defence, Mr. Tayler addressed the Court in a lengthy speech, commenting on the evidence given, and pointed out the contradiction and non-agreement , of witnesses. He applied for a nonsuit, on the ground that the plaintiff had not proved that he had duly marked out the ground according to the regulation, which was imperative, and consequently had failed to prove his >e_a3e. The learned'! Couusel cited several Victorian, authorities ill support of his contention. . W. Dyer, being sworn, deposed — Remembered the 20th October. On the 16th of the same month he was on the ground with Mr. M'Neil of Balclutha. Went to niark out ground for Dr. Smith. Went on the ground, but saw no pegs. Marked out a claim for Dr. Smith. Examined the ground very carefully. There were no trenches on the 18th October. Saw the peg behind Higgins 1 store on the 16 th, but no trenches, Visited the ground again on the 18th. The ground on that day was in the same condition as on the 16th — still no 'trenches. Left a man of the name of Cameron to. look after the pegs and trenches that we put in the ground. On the Friday Crossan came to him and asked him if he was on for a spec. He told witness thai the ocean View h&d too much, ground, and asked him if he would go with him, and further stated that if they did not go, others would go and take the ground. They started about one o'clock a.m., and went to Marshall's hut. Marshall told them that the Ocean View had*too much ground. They commenced to measure on the 20tlo They measured 1000 feet one way and" 300 auotlier. They did not take more

than 300 feet one way .because they "wished to avoid an old shaft on the ground, Saw a peg, but no trench. Calles Crossan'B attention to the fact. In another <dßߣtion saw a peg and trench. Measure^ the trench, and found it was the proper si#e. On the south- west corner saw a peg an,d trench. Measured them. In one direction the trench was three feet ; in the other, three" feet eight inches. On the other corner, saw a peg and trench, which trench was not there on the 18th. Afterwards witness was on the ground. On the 20th there was no working on the ground. There was a shaft in working order a little distant. Saw a trench newly dug, and called the attention of the surveyor to the circumstance. Cross-examined by Mr. M'Coy — Could not swear who sunk the shaft. Held three miners' ri«lits, and was a Holder- of t -three claims. One of the miners' rights was in his own name. Jam.es Qrossan, being aworn, deposed — Remembered the 20th October. Was on Canada J&e^ef on that day. Dyer was with him. Was told that the Ocean View had too much ground. Julius told him this. He told this to Dyer. ' On their way to the, reef .they found Marshall. They looked carefully after pegs and trenches. Saw Julius and party's trenches. Down the hill saw a small peg and a small trench. Went to the different corners of the Ocean View claim, and neither corner was properly marked. Cross-examined by Mr. M'Coy-r-Had no interest in any claim now. Sold out to Mr. Dyer his interest for £150. He did not get cash. He only got bills. They visited the ground about half-past four in the morning. He could not go at any other time, his business as a baker preventing him. Examined by the Bench — Went to the ) north-west corner. Dyer called my attention to the fact that there were- no trenches. Dyer v. HiggiTis. — This was a case the exact converse of the other, plaintiff suing defendant for LSO damages for encroachment. The same counsel appeared. It was agreed upon both sides that as the cases were alike, that the evidence already taken should hold good, to be supplemented by any further evidence that the parties might choose to bring forward, fn virtue of this agreement, a few witnesses were brought forward on both sides, but nothing of /any consequence was elicited, with the exception of the evidence of Mark Hi§gins, who positively swore that on the. 18th he was on the ground, and.Jn presence of the Warden asked Bennetto to go round the claim and see that their pegs and trenches were all right. That lie himself also went round the.claim' and saw the pegs and trenches. - The pegs were at least four feet, and'the trenches in conformity with the regulations. The evidence in regard to pegs along the boundaries was not clear on either side. Mr. Taylor addressed the Court at great length, contending that the other side had not complied with the regulations. The word " shall" in the regulations was mandatory.- They were bound to put the proper length pegs, and cut the proper trenches ; , and when the word "shall" was taken in conjunction with the other words in the i*egulations, " with pegs not - less/ it was perfectly clear and evident that the word is mandatory, and the regulations must be strictly complied with. Mr. M'Coy, on ike other hand, contended that the word " shall " as used in the regulations was not " mandatory " but " directory."

Wkdnesday, Nov. 14. ("Before the same. Magistrate.) The Warden gave his decision in the cases Higgwis v. Dyer and Dyer v. Higgbis. After going over the whole of the evidence, he non-suited both parties. In the case of Higgins v. Dyer, Mr. M'Coy gave notice of appeal ; and in the case of Smith v. Pym, Mr. Taylor gave notice of appeal. We are informed that fresh proceedings have been commenced in the case of Dyer v. Higgins, and that the applications for mining leases by Higgins and Smith are at present in abeyance.