RESTDENT MAGISTRATE'S COURT, LAWRENCE.

Tuapeka Times, Volume III, Issue 205, 4 January 1872, Page 5

RESTDENT MAGISTRATE'S COURT, LAWRENCE.

(Before W. L. Simpson, Esq., R.M ) Thursday, 21st Dec McD.mald v. Francis.— Claim £4. £2 «vas paid since summons wasi issxud. No appearance of defendant. Judgmen r'<.r £2, with ousts. McDonald 'v Ford — Claim £6 5-s Judgment by default, f.)r amount, with ••osts. HarTia v. Mai-s, — Clrtim, £10 43. T>ffendant ad mitred the debt, but, pleadec i:ia 'ility to pay. Jnd »netit. wa3 givei* for the amount claimed, to be paid in in *t.»lin«n«;a of £2 per month ; first payment forthwith. xMcx3v ath (Tuapeka Mouth) v. Br urn. —Claim, £2 10s. (balance of aceo-m--. ■ N<> appearance of Jef iidaut. Ju.L; von fv.tr am »nnt, with costs. Hall v. Muiiro.— Claim, £9 13*., f<>: wa-es. No appearance of defendant. Judgment for amount, with Co3ts.

DISTRICT rsovrtT, LAWRENCE.

( Before His Honor JiHge G "ay.)" Wednesday, December 27. Best, Mullen and others v- MNab an-i others. -The pl«muif>««-'"ghttort c<»v« r til sUOi of£lsoofjom defendants, forinjune. sustained by tiiem, "by and througu tii »vor^i"4» °f defendants, l'laintifia »h o.iught to rec >ver tlie sum of £70u speciai d-unagas foi-a quantity of a\iritVrouß eaith u.sed by defe.idauts, same ijeins: the property of p'aiutiffs. Mr. Gi)»lay foi piatWiiffa, a.id My. Coplaudfor defendants, ihe wholu nf the evidence adduced i b'lis case ,v;i3 about slips, blists, Qament layers, strata, and water. During ihe pro of the case, more than oae (loteinp was made to settle the mattev not 03 Court. .At last they succeeded in settling their differences. The defendants o! c -id LIOO3 to pldatiffs t>r rh whole tf their cbiiin with he?«i racj* am. triil-r.it es, which they accepted, tlm* settling a case that was opeuiug c^asiderable proportions.

Saturday, Decembeh 30. Higyins, Appellant; v. Dyer ann others. Respondents. — In this ,appeal which had been tried on the 13th- an^ 14th of December,* witnesses examined ut great length, his HonoT- Judge Gray now gave bis judgment The Ap. pel Ian t Hi.ggins, who was the plaintiff in the Court b. 1 ny, had applied for a lease of land at Table Hill, Toko • mairiro, extending about a thousand . feet along a line of quartz reff, and of the. usual width on, each side of the reef. The 103 th section- of the GoLl fields Act,, 186(J provides that any applicant for a lease shall' mark out the land for the lease of which .he applies, in the .manner prescribetl by, regulations to be framed under the\Act r . and if any person who has previohsh been inlaw-fnl occupation of the land, •shall'at any. time thereafter, until 01 miless'the application for the lease", 'be ■refused, enter upon the lanrl, or in rfn\ nmnner interfere with it, such entry, &c, shall be deemed a case of trespas3 or encroachment,- and the applicant may proceed airainstAthe trespasser for damages, &c. In this'-c-ise, Ifiggins. the applicant for the le-tse, had marked out the land in sufficient conformity (as 1 he contended) with the regulations Pyftr and othere, the. respondents (defendants- below) considering that the ground was not properly marked out, entered upon it by virtue of their miners' rights, and marked off three ni(jn's ground, that is three hundred feat along - »the /reef with the usual wiflth. The appellant, (plaintiff below) treated this as *a trespass under tliQ 108 th section, and, proceeded against the respondents for damages hofpre the Warden, the chief questions in ' dispute being— first, -whether the applicant (plaintiff) had so niarkeioni *his' ( ground as to. entitle himto proceed rinder the 108 th section ; and secondly, whether Dyer and party had" not themselves so failed. tp mark-out their ground, .that . they- were mew? vrrongdoers againstr" whom, the appellant (plaintiff) could maintain, his action on his possession iflerety,- independently of the VOBtE* section. "The Wavden dismissed , .the- totupUint ' .and, from : thisT d^si^tW^jjl^Stir-took .Ue present appeal, The regulation relal-

ing- -to' "goldtnining. leasen (parfc :\ section 9} provides that persons intepd* ing to- apply for a l^as^, sball-ereotat .each angle of the land, a post three inches- square, and sfcindin^ at least three . feet in height above th« surface of the ground,. <fee, and that trenches, not less than six inches in deptb, shall lie cut for a distance of five fee-t ou either side of such pos's, in the direction of the boundaries of the land proposed to be leavsed, &c\ His Honor suid that as respected the marking out by theapplicant, the controversy in this raserelated chiefly to the trenches. As to» the posts it was almost conceded that they were of the proper dimensions ; at all events his conclusion from the evidence was that the posts were, sufficient. He had come to a different conclusion as to the tienches. Tiierer was a good deal of contradictory evideuce as to what the actual dimensions, of the trenches were. The evi-. dence adduced for the respondents (defendants below) would _ro far to show that at one of the ;>osts there were no treiv.'hes at all r md that at t'«o ot'ier three posts the trenches but little exceeded three feet in length. The exidence^on part of the appellant, (pliinliff below) was very va^ue. There was no actual measurement made by appellant or >ny of his witnesses, and taking their e\idenee simply as it was adduced on oehalf of appellant, he couM not con•lude that t'^e trenches exceeded four - feet in length. But he principally -elied on the testimony of Mr. Adams, the surveyor, who visited tie groundon tlie 4th of November, with aspecifi lievv to this dispute, which wns then a, fortnight old,- and his testimony was f hat the trenches, as he then saw *'ietn, did not exceed four feet in. ''•ntrth, Annnllflnt conreniled th t. ■ lt!-,ouu;h a suhstaulial compli mcc ui^h • 'se regulations, as (-) the mode of '■arkinjf ont mi\'ht bp necessary in irder to entitle them to proceed uml?** the. 108 th, section an t-xact^»<l }&■s&■ •ompliance with tije" presided me isuiv'inentß was not requisite But, "\ ■>is Honop sai.!, where trp- 1 "^ 3 " ye eet Vw\\l w«rc urescrih. <!. llfl '-"usidered

- at ironi-V/thn* «-rrtiinlv did n-it 'Xcped four fV" 11 wei>(> not even a su'o-(.f.inpliMK-e with tlie rej^ulatdutr, a»<l hetierefore thought that Mi© appellant ( ilaintiff below) could, not maintain his .ac-tion under the". 108 th section against Dyer and party, if Dyer and pa r ly were provided with Diners' rights, ami by virtue of these n'ners' riirh^s. nmri-n^i-f-^^'ieir cla-'iu 11 r!ie manner prescr.'b >d by fie iv.ru- •. '•if ions sfo nio.le of m;irkiu<r off claims slider miners' rights. Tt wp.aconten.lcd,.. owever. by the appellant t'mt ■*P.\sfti\\ ■ud party did not so mark off tlu-ir. ground ; that. they were therefore mere .vrong doers, and that the appellant", vas en'itled to maintain his'ftction .of trespass asraiiiat them on his mere lossession without the aid of the 103 th section at all. If Dyer and party did [ •lot mark off their ground in such a nanner as oiOiinoccupied ground would -ntitle them to their claim, by virtue of :l ieir miners' rights, then he (the fudgi-) thought that they were mere vvrong-doers, and t!iis question he nmz^ >roi-eeded to consiiler. In the first" Jace he thought that the rounlations" 1 (to whi«?h hia Honor referred in some ■leta : l) entitled the respondents (defend mts below) who weie- three in nimbar, and holding each a miner's' n^ht. to take up a single block-claim - i quil to three*men's ground, in acoor-. lance with the coii'iit.ons prescribed •is to form of a -single block-claim. There was a distinction as to dimensions •md form and as to the modeof ranrkrng out between ordinary claims— that is, claims in alluvial ground and quartz claims. Ordinary cLims were to be of 'm area equivalent to 100 feet by 100" feet for each holder of a miner's right, '•md might lie of any form, provided the length did tio'fc exceed twice the breadth. — Regnlation 2, section 4 • -regiiUfcioa 3, section 1. Qaartz claims were tobe not exceeding 100 feet in length along the line of reef, by a width not .-breeding 150 feet on each side of it.— Regulation 5, section 1. Then as to marking out : every claim taken up under a miner's right was to be" marked •it each corner by a peg not less than two feet high, &c, and by trenches not less than six inches in depth and five feet in length, &c— Regulation 2, section 1. But in quartz claims, in addition to the p'gs and trenches at the corners, there must be similar pegs placed at intervals not less than 100 ! feet along the line of reef. His Honor [,3a ; d he was particular in noting thete distinctions, because it might prove that if Dyer ktid party had failed, by 4heir marking off, to entitle themselves' ton quartz claim, they might possibly, be hekPto have at least entitled tbernselvos to an ordinary cillavial cl-jnuv •111$ it" they had entitled themselves. to eiti ler, they could not "come within the category of mere wrongdoers, againstwliam the appellant, having no titlo , hir iself. but having the jxwsession only, sbujuld be in a position to maintain ail, action of trespass independent of thd ' 108 th section. The fact's with' regard to pyar nwrking out were these; On thej 20th October he and the other two * respondents, went to the ground, and examining the appellant's trenchep, concluded that they wero not in accord-. - ance with the regulations. Each of tba thi;ee had a miner's right. They nieasuiied off three men's ground, measuring it according to the measurement of a qtmrtz claim— 3oo feet along the reef, with ft width th.c a^uremen.t of which

did i^-pTeciselylippear tiftine mtMSbbbt it all events not exceeding 150 feet on each Bide of the reef—probably' about 100 feet on each side. They (Dyerandparty) put the proper pegs* and the proper trenches at each corner of their groitnd thus measured out, and one peg was put at one end of the line of reef, JTow, as regards the mere marking, and putting aside questions of intention and questions of area (the form "was sufficient), this was marking enough for an ordinary claim ; but for a quartz claim

there was further required four pegs

ftlong the centre, at intervals of 100 feet. The pegs, however, were not at hand, and' were not procurable nearer than Tokomairiro, nine miles distant. Dyer told a workman whom he had been* employing in marking the ground, that it would be necessary to put in

these additional pegs, and that he would send a man, and, as he (the Judge) retoerabered, the pegs to him the next day from Tokomairiro. On the next day (the 21st), he did send the man, and accoi'ding to his (the Judge's) memory of the evidence, the pegs ; but this man failed to find the workman who had been left on the ground, The following day (Sunday, the 22nd), Dyer again visited the ground, and found that the centre pegs were not yet in. Early in the morning of the 23rd, at eight o'clock, Dyer was again on the ground, and himself put in. the centre pegs, Tims, on the 23rd, the ground was perfectly marked out, in compliance with the regulations relating to quartz claims— po persons having meantime intei vene'd to Gomplete for themselves a title that could "oust Dyer— neither the appellant to complete his inhcoate title as applicant for a lease, nor any person to complete "any other title. If any such persons had intervened anil gob theiv title completed before Dyer had put in the centre line of pegs, Dyer would at least have been ousted from his title to a quartz claim, though possibly he might sfciU be held Pw^ed to an ordinary claim ; but no one dia*-ratetvene, and it would seem .. as if e n the 23nJ, D.yer's mavking-out, and consequently his title to, the quartz claim was r^ r fept. But the appellant alleged tbu.t a*, complaint was for a trespass on the 2Obh, tae t ifclo was not complete ; and lh> contended >i.,thafc he could maintain his action for the entry on that day, even tfootigh Dyer's title. .was completed three days . afterwards (one of ihV three days beingaccounted for as a Sunday). No doubt, his Honor- said, if the appellant had _ inferposed, and, marking out according to tjje regulations, natJ succeeded in niaking his title before Dyer had completed his title, he would have ousted 'his (Dyer's) title at least to a quartz claim, though even then he doubted if he could. sue him for trespass for entering on the ground in competition .with him, h.e having a right so to compete with him, though he was ultimately beaten in the race ; much less did his Honor think that laying a complaint against Dyer- after his title was completed, he could maintain an action against hira for the first entry that must necessarily have preceded by gome interval, inor-e or less, the last steps of completion. Dyer had followed up the first steps of taking possession with reasonable diligence, though not with a speed that would have availed him in a race for title if he had been subjected,+o a keen .competition at the "moment. He thought, therefore, that although Dyer had -.not- all the acts necess ary to the niakinjr good his title completed before the 23rd, he was not, a wrongdoer when he entered on the 20th, even regarding their claim as a quartz claim only. • he was disposed to think that even on the. 20th Dyer and party had completed their title, though not to a quartz claim, yet to an ordinary- claim. .They had marked; it out -, sufficiently, for it was only tlie special additional markings of a quart? claim". that were wanted, and it was not objectionable in form, for its length did.ript exceed twice its breadth. The only objection to it as an ordinary claim," was- that the area (330 feet by say_2oo) was more than- they were entitled. to take up., ' This area would amount, to .six. men's ground, by the measurement of an ordinary claim ; while Dyer, and party, had only -three miners}' rights; hut this additional ground TO.igb.t probably be considered only an excess, not avoiding the title to the "whole ground, but to the excessive, portions p'nJyV This view he consider ',<. was'a't. least arguable^ but he preferred to rest h\s Judgment on tb,e fact that the entry on the 20th, w&s but the first step ' towards, making a title, that must ' nee_d i have ' taken some fame in completing' it, and that this first step was followed- up with a diligence that under all the circumstances of this case was reasonable enough, and that alt was completed on the 23rd. He - therefore did not chink that the first «t*>p taken on the 2.oth, could be, treated, as the aot of a, n>ece wrong-doer , by a party who had .himself no title bat possession inily. He would, dismiss the appeal, wrtth tosts, against the appel- , taut, £26 In., but subject to a special ; -rase, reserving such points p.f la^w for tUe .opinion nf the Supreme Court us AO.un«el for the appVUant might bujjfrestr tn him, and he niight think fife, points to reserve, The Rpeeijil-case^fco I be applied for not later than that day I three weeka, and £25 to . be lodged ' within the same time as aeourjty to tho respondents for any costs that liuffht he awarded them by the Supreme Court,' Otherwise this judgment tp be absolute.