The Westport Times AND CHARLESTON ARGUS. In the cause of Truth and Justice we strive. THURSDAY, DECEMBER 7, 1871.

Westport Times, Volume V, Issue 897, 7 December 1871, Page 2

The Westport Times AND CHARLESTON ARGUS. In the cause of Truth and Justice we strive. THURSDAY, DECEMBER 7, 1871.

Mb Wtlsox Gray, District Judge of the Otago Goldiields, lias furnished to the Government a valuable paper on the miner's right as an element of title. Without authoritatively laying it down as the state of the law, Mr Gray is of opinion that there should be some limitation of the miner's right as an element of title, and he brings the matter forward in consequence of the request of the Government for information in view of their consolidating, amending, and revising the laws relating to the Goldfields. Mr Gray had occasion to give the question grave consideration in connection with an appeal he had to try lately, in which the hearing of evidence and the arguments of counsel occupied the greater part of three days. The case referred to was Harris v. Lobes, and was in substance as follows : Harris was possessed of an extended claim, in which William Morrison was his partner, and on which they had a hired workman (David Lewis) in charge. The claim had come to Harris and partner through several assignments from parties who had taken up the claim in the year 1869The late owners, of whom Lewis was one, had put up extensive works in connection with the claim, had constructed a dam and experimental machinery for the purpose of raising water from the creek to the dam. TJltimately, the property was sold under execution for debt, and the appellant Harris, with his partner Morrison, were the purchasers. For some time before the sale the claim was unworked, but was in charge of Lewis, one of the owners, who, however, did no actual work. The ground was neglected, and the pegs and treuches to denote the boundaries were not carefully kept up. JFor several months before the sale Lewis had failed to take out a miner's right, but after the sale be 'leld one, as also did Harris and Morrison the purchasers. A few weeks later the respondent Lobes took up the ground under an extended claim of two men's ground. The treuches of the old claim were nearly obliterated, and Lobes said that they were not legal boundaries, and had not been properly maintained. Harris had meantime been negotiating with some third party for the sale of his portion of the claim, at the price of of £l5O, but the proposed purchaser broke off on hearing of the proceedings of the respondents. A complaint against the latter was laid in the Warden's Court, with damages at £IOO. At the hearing the respondents justified their conduct, firstly, on the ground that the title through Lewis bad lapsed in conseqence of his holding no miner's right for some months before his interest was sold: and secondly, that the title had lapsed, by reason of the boundaries not haying been maintained. The Warden dis-

iniased the complaint founding his judgment upon the break in the miner's rights. He was of opinion, that the ground had reverted to the Crown, and was open to any person holding a miner's right, no new title having been subsequently acquired by Harris, either by marking out an ordinary claim, or by an application for on extended claim. On the appeal being tried, IVTr Gray dismissed it with costs, on the ground that the marks and boundaries had not been maintained. He expressly stated that the decision was not to be taken as a " decision with respect to the opinion pronounced by the Warden as to the effect produced by the break in the miner's right upon the chain of title," and added that if he were obliged to give a decision based on the b'-eak in the miner's rights, he would have reserved the point of law for the Supreme Court. In connection with the same question, we think, it must be admitted that the reasonable limitation of the miner's right as an element of title is an absolute necessity. Otherwise, no title under the miner's right would be secure, since it would be nigh impossible for any one purchasing mining property to obtain the proof that every predecessor through numerous assignments or successions possessed a miner's right, held it continuously, and in respect to the identical property then purchased. Were this the state of the law the miner's right should apply to a particular piece of ground and be transferable. But it is not so. A.fter the holder has abandoned or assigned the piece of ground originally taken up, he does not abandon his miner's right nor hand it to his assignee, but posses on to the occupation of other ground by virtue of it. Thus, if a man were compelled to produce an unbroken chain of title to mining property it wonld become a more difficult and entangled operation in the majority of cases than a title to a landed estate complicated by the settlements and devolutions of centuries. We take it that a right should only be open to attack while the holder is without a miner's right; to use Mr Gray's expressive way of putting it—the nonholder must be caught out. If the non-holder is not attacked until he has legally qualihed himself by the possession of a miner's right, the opportunity of attack, it is contended, should be deemed passed, and he should suffer no prejudice in respect of title on the ground of having at some time previous failed to hold a miner's right. It would be desirable we think to have a general enactment limiting the tracing of title under a miner's right to some given period of very moderate length.