IMPORTANT JUDGMENT.

Tuapeka Times, Volume VI, Issue 283, 3 July 1873, Page 5

IMPORTANT JUDGMENT.

The following is the judgment delivered in the Court of Appeal on June 7th, in the case* of Clayton and Others v. Morrison and Others. This was an action tried at the Circuit Court held in February last at Lawrence, in the Otago and Southland district. The declaration contains three counts. By the first count the plaintiffs aver the possession of a ' parcel of land, or gold-mining claim, situate \ at Blue Spur, Gabriels, in the Province of Otago ; and that they were entitled to h<ive the same supported by the land contiguous thereto. They then go on to aver that the ■ defendants have wrongfully mined upon and / under, and have removed rock, earth, and ; soil contiguous to the plaintiffs land, without leaving proper support ; whereby it has i

given way, and Ifccorae wholly lost to the plaintiffs. The second count alleges that the i defendants are continuing to mine without leaving proper support to the plaintiffs' j land ; and are so causing the same to be and remain without proper support, whereby great loss a.ncL damage will accrue to tlie plaintiffs. The ihiru count is for the conversion of auriferous earth ami gold, the ', property of the plaintiffs. The defendants have pleaded a general denial, accompanied by a statement that they rely .is a part of their defence upon certain documents set out or reforreel to in the plea. This statement seems intended to comply with the requirement of R. G. 79, so as to enable the defen lants to set up an adverse right of ownership to the auriferous ennh and gold mentioned in the third count. They have also pleaded to the first and second counts, that the injuries in the said counts mentioned wei\> caused by the negligence of the plaintiffs themselves. The issues stated on these pleadings are as follows : — 1. Were the plaintiffs possessed of the goLlmining claim in the plaintiffs declaration mentioned, as in the said declaration alleged ? 2. Did the defendants, by mining in and upon laud contiguous and near to the plaintiffs said claim, wrongfully leave the said claim without any i easonable or sufficient support, and cause the same to give way, as iv the plaintiff's declaration alleged ? 3. Were the defendants, at. the time of the ! commencement of this action, by their said operations, continuing further to remove the support from the said mining claim of the plaintiffs ? 4. Were the injuries in the first and second counts of the declaration mentioned, or any of them, caused and occasioned by the negligent, careless, and improper mining of the plaintiffs ? 5. lUil the defendants wrongfully, and ■without the license of the plaintiffs, take away and remove, and convert to their own ute, a large quantity of auriferous earth nd gold, the property of the plaintiffs ; and, if so, what was the quantity and value of the said auriferous earth ? To each one of these five qnestions the jury have replied, without qualification, in the affirmative. In answer to what is called the 9th i&sue, stating the usual question, " What damages are the plaintiffs entitled to recover ?" the jury have found, under the first and second couuts, "No damages." Under the third count, for conversion, they have found damages divided — by direction of the learned Judge— into three portions, according to certain divisions of the ground from which the auriferous earth is supposed to have fallen. It appears that in the course of the trial a claim was set up by the defendants to the equitable ownership of two pieces of ground, parcel of the ground described in the declaration, which is known as the Perseverance Company's claim. One of these pieces, said to have been sold by thy Perseverance Company (now represented by the plaintiffs) to Spit-rs, through whom the defendants' claim forms the northern extroinity of the plaintiff's original ground. The othiv piec •, next adjoining the last mentioned pice to the southward, is claimed by defendants under an oral agreement for ex-. cLauge alleged to have been made by the Perseverance Company with Morrison and Co., whom the defendants now represent. The jury found that both the sale to Spiers, and the exchange, actually took place as alleged by the defendants. The damages, therefore, in respect of earth falling from, these two pieces of ground, were only awarded contingently on the Court being of opinion that the evidence of ownership adduced by the defendents to this earih was insufficient. The verdict was actually taken for the sum of £625, 1 eing the estimated value of 5000 cubic yards ot earth supposed to have fallen from that part of the Perseverance claim which lies south of the exchanged ground ; and the plaintiffs had leave to move to increase the damages by the sum of £250. in respect of 2000 yards estiina ed to have fallen from the piece sold to spiers, and by th" sum of £1500, in respect of 12,000 cubic yards estimated to have fallen from the exchanged ground. On the 29 h April lasr, the plaintiffs obtained a rule nisi pursuant to the leave so reserved. On the same day the defendants obtained a crsot-rule nisi for entering a non-suit, for entering a verdict for the defendants on all three counts, and for a new trial The grounds for these several applications are exceedingly numerous. We sha'l refer only to those on which our decision turns. Both rules have been removed for argument into this Court, under the 18th section of " The Court of Appeal Act. 15(52." In the first place, we think it clear that the finding of the jury on the 'Ith issue entitles the defendants to judgment in respect of the cause of action stated in the lirsc count. Taking the 2nd and 4th issues together, it appears that the plaintiffs have contributed by their own negligent and improper mining to the slipping of the ground. The defendants cannot, therefore, be charged with consequences brought about in part by plaintiffs themselves. As to the 2nd count, the case of Bonomi v. Backhouse, 34, L.J., Q. 8., 181, since followed by the case of Smith v. Takerah, L.J., 0.P.. 270, establishes that excavations on a man's own Land furnish no cause of action against him unless and until appreciable damage to adjacent lands results therefrom The 2nd count, therefore, merely averring that great loss and damage will accrue to the plaintiffs, discloses no cause of action. Probably the 2nd count was meant only to serve as ground for the claim of an injunction. Had it disclosed a substantive cause of action, we might, as the Attorney- G-eneral suggested, have had jurisdiction to cause nominal damages to be entered upon it. As the count shews no ground of action, and no damages are found thereon, we think the defendants are entitled to judgment, notwithstanding the finding on the old issue. Nor can the finding, based upon this same count, be ground for an injunction. It. may be said that the jury thereby affirm that the defendants have been, and are, mining in an improper manner ; and it may be urged that the past contributory negligence of the plaintiffs is no reason why the defendants should not be restrained in future from unlawful acts which they are found to have committed and to be continuing to commit. The answer is, that, in point of fact, though the finding on the second issue stigmatises the acts of the defendants as wrongful, those acts appear to have caused as yet no appreciable damage, and thus, on the authority of the cases cited, have not become actionable. The jury have given no damages on the Ist count. They have found, indeed, that damage to the plaintiffs' claim has resulted from the joint operations of the plaintiffs and defendants. But no separate responsibility can, under such circumstances be fastened upon the defendants for what is past ; and, as regards the future, no cause of action can accrue until damage accrues. Tsst the issue of an injunction under X, G. ' 457, is not. warranted, unless it is established \ that some injury has actuilly been committed . The injunction is ayain^t the repetition or continuance of an injury, or against the committal of an injury of like kind wjth some which has been proved. Here there i has been ss yet damum abst[ue injuri'% I Next aa to the questions whether the plaintiffs are entitled to retain t'ue verdict ioa the third count ; and, if so, whether the

damages should be increased by the two sums contingently awarded by the jury, or l>y ci her of those sums. One ground of the defendants' rale is, that the plaintiffs failed co show they were in possession of the ground in dispute, which, in reference to the 'MA coimt, means tip; ground from which the auriferous earth has fallen. As part of heir case, the plaintiffs put in a milling lease, bearing date 27th January. ISiiu". au.l purporting to be made by the Governor under the powers of the Gold fields Act, 18i)2, whereby the ground referred to by the declaration, under the first of the two descriptions which the declaration contains, appear.- 1 to be demised to the plaintiff Henry Carey Clay on, and five other persons, for the tjru of 15 years from the <lav <»f the .lafce thereof. The five co-lessees of Clayton are not jjb.Lutiffs in this action ; and although a m;mW of documents of title were put m l>y the plaintiffs, i* is objected t u at tliere was no comple'e deduction of title from the lessees to the present plaintiffs. We are of opinion that this objection must be overruled, strict deduction of title being unnecessary to enable the plaintiffs to recover on the 3rd count. For the purposes of this count, ami in order to raise an inference of plaintiffs' property in the washdirt which has slipped, it was sufficient to show lawful possess!' hi in the plaintiffs of the site from Avhich it slipped. O£ this there was (subject to the question of boundaries, with which we are presently to deal) ample evidence. Tt was not disputed that the original lessees constituted a copartnership known as the " Ihe Perseverance Company " ; and it appeared that the plainj tiffs are the members of a co-partnership which has succeeded to the name and rights of that Company. Supposing the legal deduction of title to be imperfect, the jury was still justified in the inference that the i present plaintiffs are in possession, and workI ing Ihe ground, with the leave and license of | the persons in whom the leasehold title is vested. Several other objections were made to the verdict, which, with the exception of the question as to boundary, we find it unnecessary to notice. As regards the claim of the plaintiffs to increase the damages, this stands upon the objections made by them to the title set up by the defendants to the ground sold to Speirs, and exchanged by Morrison and Co. The objection must fail for the same reason as the defendants' objection, of which we have just disposed. It was enough for the defendants, in answer to the plaintiffs' clai'n on the 3rd count, to show a lawful possession tor mining purposes of the ground from which the washdirt slipped. It was plain that the defendants could have no legal title under the memorandum of sale to Speirs, and the parol agreement relative to the exchange. But there was convincing proof that they were, and had long been, iv possession ; and ample ground afforded for the inference that they had, if not a good equiti! able 'i le in themselves get lawful possession uivler the equitable owners. It was objected on behalf of the plaintiffs, that under the terms of H.fi 79, the evidence of property in the washdirt put in by defendants was not admissible ; the defendants' plea not fulfilling the requirements of the rule. But this objection should have been made at the trial. The admission in evidence of JSpeirs's agreement seems to have been objected to, but upon another t ground. Jhe objection in question is now too late. Williams v. Wi/cox, 8, Ad and X., 314, 337. Neither is this ground taken in the plaintiffs' rule Tliere remains the question to which we have adverted as to the boundary of the plaintiffs' ground. This is a case in which ! the actual possession of a small strip of j ground lying on the north-east boundary of ! the plaintiffs' claim, next the ground of the defendants, can only be determined by ascer- \ taining the right to possess. It being im- | possible to say which of the iwo par ies has | aci ually held the ground, it is necessary o ask which was enii'led to hold it. Here everything turns on ihe position of ihi nor i hern corner peg cf the ground comprised in Clay ion's lease of 27 h January, 18(56 — known as peg 85 -it. being in evidence 'hat the original peg has long ago disappeared from the ground. Of the two descripiions of the ground given in ihe declaration, the fi^ is in the words of the lease, and appears io have been furnished by a surveyor named Drummond, no longer in the employ of the Provincial Survey JJepuMnent, nor called as a winess. The second description is from what the declaration calis, and no doubt properly calls, " more recent and accurae surveys," by a Mr. Adams. Mr. Adams firs'; went on the ground in 1887, and surveyed the Perseverance Company's claim in April, 1808. This gentlenrn then was, and still is, in the employment of tho Provincial v urvey Department. He was called as a witness for the plaintiffs. In construing the description in the lease, we are first met by a difficulty which arises on the instalment itself, so soon as its language is interpreted by a skilled surveyor. It appears that, the lines described, if plotted according to the bearings and distances given, will not perfectly enclose a space. I here is* a deficiency in length of .10 links. If this be supplied by lengthening ihe eastern side by 50 links, all the other distances, and also the size of all the four angles of the figure, may be retained, together with the area stated in the lease of 2a. 3r. 4p. If, on the other hand, the length of the eastern side be assumed to be as described, that is 413 links, one, at least, of the other sides must be lengthened, and two, at least, of the angles must be varied in order to moke the boundary nieef, nor will the altered figures enclose the sta'ed area. We have, therefore, so far, no hesitation in laying down, as a matter of law, that the eaastern boundary is the one which ca Is for modification, were ihere no other extrinsic controlling circumstances in the case. The figure of the ground being four-sided, and bounded by straight lines, depends on eight elemenis— the length of the four sides, and ihe size of the four angles. If the deed requires correction, the true principle is to alter as few as possible of these elements. It. was admit 1 ed on all hands that the starting point of the boundary, as described in the lease, was a p ">int abon* the middle of the eastern side of the ground, marked by peg No. 53 This peg Mr Adams found on ihe ground on or before April, IStiS. Both pari es agree that the peg was in its original and proper position. At or a bout the same time, Mr. Adams also found a peg in the western boundary, No. 16", and a peg, Xo 19, marking the south-western angle of the claim. He is of opinion that these pegs, also, remained in the po&itioiis in which they had been placed by Mr Draramond. There is a great deal of evidence confirmatory of this view, and very lit le to set against it. The jury must have adopted it, am we see no ground to question their conclusion. Tue boundaries being all straight lin^s. pegs 10 and lf> gave the bearing of the western side of the claim, which ihus ascertained, 'here appeared to be a discrepency between hut bearing and tlie 'lescrip ion in the lei «s of abon' 10 deg . t lie pctn\l lie.u'iir^ ' er.ig XGileg 30tnin , instead of 2«»«lug. l!'»im:i. In this bfcate of facto we think thut Air, Adams ac'ed properly in preferring marks, on the gr-mnd, pat in .at or before r h ; il ite of ( the lease —marks which had regulate 1 the I actuxl occupation of the <_r->an.l u> li j uoui'id of thu \ve3tern boundary as giv<;n in the lease. The Amerioan oa&ua cued by Air.

, ' . _ , ■r _ iiu'c k> which we wer< a.* ,i '. -. ,%, •.tbcrncy-ficneral (2. Taylor'; .. o. lh.~>. i>. IO"P, 4th edition) an t:\ vei y uvr.eh t>> tbc purpose Assuming us- .' '0 "s the soinfn-wi'-stt'rn ans>lc, fiud assiun h\<t iutLv. 30mm. to he the bearing, audlOo; links the length of the west side, peg 8-W-iuld ho placed at a point about 41 feel S.W- of the place assigned to it by Mr. A.Unis. If Aye now proceed to the eastern boun ilnrVj we rimi that Mr. Adams in Ins rc-sur vey has assume . ttavfc the bearing of this line alao is mis-doscriheri, in the lease, mi though, in this instance, without a sreme peg to .i\ the direction, he lias assumed th i' Ihe same correction, within a. few .n'7iua^ as that Which he adopts in tho wosrorr boundary, is here also iiecessary. Heassurvs the bearing of 3ldeg 25 miv, inrtead o Drummond s2ldeg. 2f)inin. Measuringnorth Yards 216 links froji peg ,i 3. he thus a* er tains the position of peg 7S at the soiitlvn extremity of the north -euucin ".ju.i"'darv; So far we entirely agree in his pio cedure as pitting a proper construct ion or the terms ot th** !».i ,. — : -v! this was tiu thing which if was h'.r, b tsiness to do. Th< allowance of lOinin. in each case to ccrreci Drummond's error, would, if adhered to have preserved unaltered all ths •u-oes o1 ih? figure. lint he:v besrii!? -i <'cf i "-v.ir( from the terms of the i . -sa. i. V'.y v 'j.uled for. hisiea lof again t.ji:e -„ ._; 'lie heari 1^ of the norrh-eastern bojiicLiry us g .cr I.j L'runimond hy about lOnun. i.., 01.0 sarveyo: chooses to assume a lir.e ulno.rl ig i :p.l. tu" 1 .:: 13 degrees from Dm r :r:.t',' c . Thl, iri.. intersects the line of the western boundary ab a point which Mr. Adams fees rs the proper site of peg S." ; the hot/ bearing involving the leii/ohemng of I'lo wessen. side by 62 links ami of :>o • c" c: •U"i. £.. by 41 lr.iks : altering ah., t\ otf th i.-, ;u the figure ; whereas, by adhering to ti. o corre'ciion of lOmin., ever" one rr' i-e^-'lera-iions would have been avoi led, ami i\e yvn tion of peg So aithe apex of the claim v/ouiu nave been fixed, as already indicated, 41 feat to ihe S. YV. of the position assigned to it by Mr. -idams. We believe that the surveyor "was led h.;o this error — for such in the view ol a Court of Law it certainly is — for the purpose oi preserving the length of that part of the eastern bouiuiajy vhieh lies south of peg s.'j, and \vhich the lease gives as 197 links ; the whole length being, as already mentioned, "418 links aceoiilimT to bhe Jease. This was the very line whieli demonstrably required "alteration. Yot *Vv no apparent reason but to preserve its Icntrth, the southern boundary is set out with a te.irmg of 107deg. Slmin.; the difference from Drammond's bearing of the same line being here arbitrarily Viken Grieg, inst? id ct lO.ieg. Besides increa^rg tin l^v^a <>f the southern b-oYintVvy, i/.id \ai_>i.uj Mij siye <>f both Ihe adjacent angles, tais proceeding *SVo'il(l hnvxi dn;iim-.h'/<l the axea, ; nniuss tritli a view nf cori'ecti'v/ this new error, the north-cist »-;ni boundary had been extended in the war aliLa.'-j noh'sed. ;i the whole ih-.j r^nilr '•=, th?i c , in Rlr. Adam's plan. thv<?<? >i f'io lifles and all the angles ditf^r froni t-n 1 f'o^'.'ipt'on m Iho lease. Out of oi^m' 3 ''ts of ir.e r^nri d-M-ieati'd rm the ]\\a mven are uh.utged to save one : \t h^ve.is ihe re''j.idsite alauwtion in this o>ie .vonlu have made endless all the s^ven ohii^ds acuially adopted. I'his wi'! . ."'""r-ar vc once, if a tracing of DrnmuK^id's su'vey co:recced only 50 liaks in the length of the eastern side, bo applied to A dam's plan, on the same scale, so as io make the ■force ascertained points nZ, X 9. and 16, 'coincide in the two drawings. So far onr cojicln.aon is one of law. Tt depsn'ls (>n the rational principle, that Vvhen parol evidence of r^xtrinsic f-.^t?, or the interpretation of skilled wi..i?->S"s, or, as in the pres^it case, I'ic use of both t3iese_ sources of information, has dhS»!.»sed an in'oonsistency in the description 'of parcels, that interp w tation is best which involves leust departure from the terms of tho instrument. But u;iu<«ibtedly the actual jiusiHou of the boundary 'cii tlie Lcronmi, mvi »iving ihe question <if 'rjarcei or 'io ])arctl, is for the jiiry It is not the function of the Court to determine absolutely the true place of peg 85, liut merely to determine its place upon the state of the facts found by the jury. But it is our duty to sco that the findings "are consistent with themselvp*. ?nd with tlie terms of the written instrument. The Instrument detininix the boundary, properly interpreted, buiny always an essential pai't of the evidence pari of die evidence of boundary to bo presented io the ininds of the jury ; wo canuot doubt that the unintentional mis-interpretation by ihe surveyor of Clayton's lease — for little as Mr. Adams thougho of such a thing, ho was in fact pretending to interpret the kase— has swayed their minds to a wrong conclusion. It is plain from the tei M ns of the rider to the verdict that they w. j re not themselves satisfied with the results of ftlr. Adams's survey, although they did siot see their way to reject any part cf it without rejecting the whole, whicJi was manifestly impossible. Had the; 7 been able to rid themselves of the notion lliat t^S mvi description of the ground, taken fr'Mii the lo:ise, must pLice ihe northern angle where Air. Adams put it, we tnink ihat they would h:>ve given 'vei^h!, to the testing >ny of bpeirs and other witnesses for the defendants, who distinctly deposed to a more southerly position of peg 85. Therefore, without the lease blame impntable to the j'." r y, we aro of opinion thflt their f">r.ciusion as to ihe position of the north-oj stern bimndai-y of Clayton and Co.'s ]p>t»,se v/as Against the weight of evidence. "Unfor-'i-■nate'ly tliis will involve r. n<?w trial ot trie isdue stated on the ihird count. The assessment of damage £625 must be taksn to ha made on the b-isis of Mr. Adams's survey, as giving the true boundary I.? +h« PetS'jverance Company's original ground. The ruling of this Court goes to roironfh tho?.e boundaries by a tvi inyular piece of ground, measuring 62 links on S^iers's boundary, and running •to a p"int at peg 78. It also shifts the Wvisidary of the exchanged land further :gouth, thereby diminishing the remitining ?i'ont-\g& vi tho plaintiffs on Morrison's ccli'iin, .us woll .vs reducing tihe-. breadth oi •the pLiifttiffs' ground, whioh is supposed -fee have slipped. The sth issue must therefore </•> .fjr.in to a jury, v, ith the "View, ;y> Frr '•'s'bh «' ioutt ink nd?, merolj k>£ r«-a t <-.'.--iig d:unago% '>vz of course Vi£fe tlte }jn'-sioiiity of tho total reversal ~ky a mr.v jury oi the conclusion of the %A\ca'\ <»ne. In cnunng io n, coi-.dii.sion respecting the «C6)istrr.'jti"n of Clayfc.m's loaso, we have er^t o-verl'O<ed i'h'i l <issil>siity that the •e.'.Hvkem b.mndary may ovei'lapthc adjh.WHI Jiiiiii. We use, aware that peg 7(X vrJii-, it »i irk& tho last point but one )!] *'/sxi'-vr .lid's tf.ivevse l : nes by which the

c poi»)t, D, must on our construction fall s within the boundary ; 'whereas, in the s plan on the lease itself, it appears to be I rcpivsentefl as on the boundary line: If " this were correct, it is not apparent vhy : peg 79 was not taken as the starting point I instead of peg 53. However this may be, the supposed necessity of bringing this ' point into the boundary, even were it shown to be the corner of another claim, 1 could not justify liberties such as were 2 taken in the re-survey of Clayton's ground. 1 ' The possibility of two descriptions conl tninect in Crown Grants or leases ovort L'jpincr, or leaving an interval, must . ! ai ways" be admitted by public survey de1 ' partmersts as by Courts of Law ; and the 3 | boiaidiii-ios of adjacent claims can bo used f j only to axjjLun, and not to control, the " i instrument whioh is for the time the sub- ! joou of interpretation. It must not l>e 1 attempted to make things fit somehow. . j Whore, upon tho true construction of two , j insh'Viaients tho boundaries granted over- :, ' lap. the oarlior title will of course prevail. ) But the meaning of each instrument must 5 be ascertained from ita own terms. The . legal effect of those terms in conferring a f title is a -wholly different matter, f The defendants' rule is made absolute, •■ with costs, for a now trial of the fifth '- I iss.ifc. beiiit the issue stated upon the ', [ old count and tli3 plea thereto. ; j The plaintifis' rule is discharged, with 00,-. 1 ",. - ' The provision.il injunction granted by . i the Court below is di&solveJ. ! The costs of the former trial, sc far as s i re'atvrs to the tilth issue, will abide the ; | e-. out. _^ . j —