DISTRICT COURT, LAWRENCE.

Tuapeka Times, Volume III, Issue 206, 11 January 1872, Page 5

DISTRICT COURT, LAWRENCE.

(Hefore His Honor Judge Gray.)

Gillies, Appellant; v. Wilson, Respondent. — The following is a note ofthe judgment in this appeal, given by the District Judge on the 12 th December. The appellant and respondent had agreed to rest their case on the principal point of controversy between them, which was a question of law and they each argued the question in person. The appeal was from a decision of Mr. Warden Simpson's made at Waitahuna, on the 20th October last. Mr. Gillies, t'ue appellant, being the holder of ten miner's rights, had marked off at Table Hiil, Tokomairiro, by virtue of these rights, in a single block claim, ten men's ground, being one thousand feet along the line of reef and of the usual width for a quartz reef claim. Mr. Wilson the respondent, relying on section 1, regulation 5, of the Goldfields Regulations, 1870, conceived that not more than 600 feet could be marked out in a single block-claim, and consequently that all the ground over this amount was in excess of the quantity that Mr. Gillies was entitled to. He consequently proceeded by virtue of an adequate number of miner's rights, to mark out "trria excess aa a block-claim • -for himself, or himself and party. Mr. Gillies, being of opinion that section 4 of the Goldßelds Act 1869, was an implied repeal of the power to frame regulations imposing the refitriction contained in the regulation in question, and of the regulation itself, treated Mr. Wilson's entry on the land as a trespass, and summoned' him before the Warden. The Warden considered that the restriction continued to be valid notwithstanding the Act of 1869, and dismissed the complaint. From this decision Mr. Gillie* now appealed. The regulation in question is in words as follows :—": — " A quartz claim shall not exceed 100 feet in length, to be measured along the supposed course of the lode or vein, by a width not exceeding 150 feet upon each side of the supposed course, for each holder of a miner's right : Provided that no miner or party of miners shall hold under this rule more than 600 feet along the course of any reef." His Honor said that both parties seemed to be agreed as to what was intended by this regulation, viz., that it was meant to prevent any one block-claim that was to be worked as a unit under the regulations dealing with the v orkingoFclaims, from exceeding in area the prescribed length and breadth on a quartz reef It was susceptible of a different meaning, but the parties seemed to be agreed unon this meaning and he (the Judge) thought it was the reasonable interpretation. They both interpreted this regulation in the sense that if it was valid, tl.en Mr.. Gillies if he wished to take up one thousand feet alonsr the line of reef by virtue of his ten miner's rights, was bound to take it up in two separate claims, to be dealt with as two separate units in respect of the regulations affecting the working of claims, and that when he took tip 1000 fret in one block-claim, he took up an excess of 400 feet which was liable to be entered upon by any other miner or party of miners, holding the requisite number of miner's rights. But Mr. Gillies contended that since the passing of the .Act of 1869, tin's restriction had ceased to have any force. His Honor proceeded to say that \i was not contended that the Act of 1569 , expressly repealed this regulation, or expressly repeated any pow'qr given by previous Ads to frame such a re>rul;jti(>ri ; } but it was contended that, it jimj/ljedly' repealed them ; that it was inconsistent with them; -t'lat. both ,<v>uld ( nofc stand toaftheiy and therefore, that the earlier' enactment must yield, and make way for the later enactment.

This later enactment, section 4 of the Act of 1869, substituted a new section for section eight of the Act of 1566 and was in words as follows : — " Section eight of the Goldfields Act of 1866, is hereby repealed and the < following clauses substituted : — It shall be lawful to issue any number of miner's rights to any person, company, or corporation applying for the same, and the holders of such miner's rights shall be entitled to occupy or hold any number of claims or parts of or interests in claims : Provided that the aggregate area so occupied or held, does not exceed the quantity of Kind which can for the time being, be lawfully held or occupied under such miner's rights. Provided also that there shall be employed not less than after the rate of one man being the holder of a miner's right for every claim so held or occupied, and in this section the word claim shall be taken to mean the greatest area, which according to the regulations relating to the area of claims of each respective kind for the time being in force on the Goldfields where such claims are situate can be lawfully ot-cupied by one holder of one miner's right." Now the question was, whether this new clause was so inconsistent with the regulation in question and the powers given in former Acts.to frame such a regulation, that both could not stand together. He the Judge thought that they could both stand together, and therefore, that neither the regulation nor the portion of the Act of 1866, which authorised such a regulation were repealed by the later enactment. The very admissions made in the argument, that the regulations, if valid, would only have compelled Mr. Gillies to take up under his ten miner's rights two block claims, one of 600 feet aud the other of 400 feet, showed that this enactment could stand with— wa"^

consistent with — the restriction created by «the regulations and the powers hi former Acts authorising the regulation. If Mr. Gillies had so taken up two block-claims the regulation would be satisfied, the enactment of 1869 would be satisfied, and no privilege conferred by either would be denied, , and thus they would stand together/ He (the Judge) could not conceive any casein which the enforcingof therestric-\ tion of the regulation would be a de- * nial of any privilege conferred by the J later This, he thought,^ was the test. He thought, too, that it was at this point that the error of Mr. Gillies originated. He evidently interpreted the words " provided that," &c, as meaning " subject to the following restriction, and subject to no other restriction." This error he could very well understand ; but it ivas an error. When the words " provided that," &c, in an Act of Parliament introduced a restriction upon the previous enactmin^'isaey did not imply^ " and subject to no other restriction." ] The expression might be used to add another to many restrictions already i existing, or it might, as it did here,

enact by direct parliamentary authority, one, or one portion of some one restriction already existing by virtue / of bye-laws or regulations, making/, that particular restriction perman^tfc^ as the enactment itself, and removing { it from the shifting influence of i regulations made and revoked at will by the „ authorised framers of such/, regulations. The clause said thay k the privilege of taking out anli number of miner's rights, and hy * virtueofthem,takingupaproportionate < number of claims, should be subject to /j one restriction at least, the restrnMfiM^ there enacted, but did not say should be subject to no other/^^M proviso in an Act of Parliament^^H "something engrafted in ar^-^^M ceding enactment." It oftenß "contained all unconnected ma^l ters disposing of whatever_>rarfM incapable of combination with the^ rest of any clause." Dwarris on Statutes. His' Honor made some observations on the introduction of the words, "at the rate of," into the clause which were perhaps in some degree misleading and calculated to make an, erroneous ii- f, pression on the mind of the lay reader, j but these words were quite consistent J with the continuance of the other(l restrictions. Having made .jspja^ observations on the'saTutliriness of tn^m restrictions that applied a unit of m labour to a unit of area, the Judge 1 said that he conceived the later enact- 1 ment stood well with the previous restrictions, and, therefore, did Duotrepeal them. As Mr. Gillies, however, was so strenuous in his opinion, which he had argued very ably, and to which he had evidently given a great deal of consideration, he (the Judge) would not hold up his own judgment as J infallible, and would enable him, if so 1 advised, to take the opinion of Supreme Court, provided he appliefl for a case within a week, depositing £25 as security to the appeHant^oi* any costs, that might be awarded- byfl the Supreme Court. ~ M We understand that Mr. Gillies is not about to bring the question before the Supreme Court.

Casey, ' "appellant ; y. MoJlison, repondeht-, and Casey, appellant; y. Clayton and others', respondents. — -This was 3m] appeal against a decision" of W'vj Warden Simpson's, made on the 29tljjl November, IS7I.- It was agreed vf\f j the parties that the two cases -feeing exactly similar, the case of Casey'jrß Mollison. should be heard aiuU»^H

second case should abide the result of tbe first. The appeal was heard and

numerous witnesses examined, on

Thursday the 14th of December, and Friday the 15th ; and on Saturday, the 16th the Judge visited the ground. The complaint before the Warden was that tbe defendant had raised such an accumulation of tailings, discharged from their claim at the Blue Spur, as obstructed tbe water-course and flwamped the tail race of plaintiff, who had a sluicing claim higher up the valley in Gabriels Gully. The Warden had given the plaintiff £10 damages in each case. Plaintiff appealed against this decision on the ground that the damageß were insufficient. When the Judge of the Appellant's Court visited the ground he expressed bis intention of increasing the damages to £65 in each case, but it was understood that the defendant intended to ask his

Honor for a special case on several

points of law which had been raised in the course of the trial. The case was ■^.afterwards adjourned to the 27th of December, when an adjourned sitting of the Court would be beld to dispose of this and other matters. On the 27th, the final day of the adjourned sitting, the cases stood over to the 30th, when tbe law points were argued at great length by Mr. Gooday for respondent and Mr. Copland for *ap.pellauts. The principal points which respondent desired to have reserved were, Ist: Whether respondents, having a certificate for a tail-race terminating at a point in Gabriel's Gully, and of an earlier date than appellant's certificate, were not thereby rightfully entitled to run their tailing^ at the mouth of their tail-race without being accountable for any injury which might thereby accrue to the appellants w.honG certificate wa? of later date.

2. Whether the appellant, who, when ( >^Tpl^iu^ for, -his tail-race, bad never- ' given notice ro respondent of their intention, were not thereby precluded from suing: respondent for any damage occasioned to their tail-race by respondent working. 3. Whether, although

respondent had not entered any cross

appeal, and appellant had appealed jonly as to the quantum of damages, respondent might not avail himself \of the above points wliich went to the V.'hole course of action, at least, for the purpose of showing that the damages '"ou!_ r ht not to be increased.

, The Judge took time to consider -whether he would state a case or not,