4—No. 8.

6

PAPERS RELATIVE TO

more entangled and difficult of investigation in a couple of years than the title to a great estate in England, complicated by the settlements and devolutions of a couple of centuries. The present case, it was said, was a striking example. This claim was taken up less than two years ago by three persons. In that time it had gone through six devolutions of title, passing generally to three purchasers, so that there were about twenty persons already involved in the title. But this was not all. An attempt had been made to show that one person, who, it was contended, did not hold the necessary miner's right, was to be accounted a non-holder, not because he was without a miner's right at any time while he owned the property, but because he was alleged to have been at the same time a holder of other mining property ; and it was contended that he could hold only one piece under one miner's right ; and that the miner's right which he did hold possibly made title to that other property, and not to the piece now in question. So that if the miner's right was admitted, without limitation as an element of the title, it would be necessary, it was said, not merely to trace the stream of title upward, but to follow it sideways, as each documentof title passed away with its owner to make title to other properties ; and further, to. pursue it along still another dimension, and to- establish at each point whether the miner's right, which each predecessor in title might be ascertained to have- held applied to the property in question, or to some other property of which he might have possibly been contemporaneously the owner.—(See section 4, Act of 1869.) To these inquiries might be added another crowd of inquiries as to what; wages-men had been employed by each former owner, and what miners' rights these wages-men might have held to help out the title of their employer. —(See section 7, Act of 1869.) It was contended, therefore, that it was absolutely necessary, at the framing of the Act, to set some limit to the extent to which the miner's right should be an element of title, and this limit, it was was said, was found in the. 112th section. It was desirable that the miner's right should be to some extent a self-collecting tax, and therefore, by the 112th section, it was made to afi'ect the title to a certain extent, but only so far as this—that a man found without a miner's right might be caught out; but then it was said that if he was not caught out, the opportunity was gone. Such, His Honor said, appeared to be the arguments available on. tho two sides. He would not give any decision on this point, as it did not appear to him to be necessary, and not being necessary, he could not help his own doubts upon the subject by the aid of the Supreme Court, but he would say that the leaning of his opinion was in favour of the appellants; and he was disposed to think that here, as well as in Victoria, the miner's right was no part of the title beyond the limits prescribed by the 112th section of the Act of 1866. He then came to the point on which he felt compelled to decide the case. It was required by regulation 2, section .1, not only that claims should be marked out and bounded in a certain manner at the first taking possession of them, but that these marks and boundaries should be maintained. In the present case, these marks and boundaries had not been maintained. Two out of the four pegs were down, and the trenches were almost wholly obliterated. ■ There might be some doubt as to the weight of the obligation imposed by the latter part of the section, and as to the consequence of disobeying it, but at the least it imposed on the owners of the claim a duty of some degree of obligation to keep up the boundarv marks, and whatever consequences came from their omitting to do so must fall on themselves, and could not be cast upon persons who were misled by their neglect. Respondents seeing no sufficient pegs or trenches and finding the ground unworked, marked it out for themselves, and set up the proper notices in order to put their right to it into a course of investigation before the Warden. This was the extent of their interference. If, thereupon, there arose a question as to the title to the claim, which produced to the appellant tho inconvenience of having a negotiation for the purchase of it broken off, this was occasioned by his own fault, not the respondents'. He, therefore, dismissed the appeal with costs, but this decision must not be taken as a decision with respect to the opinion pronounced by the Warden as to the effect produced by the break in tho miner's right upon the chain of title. On that matter he indicated the leaning of his.opinion, but gave no judgment. Mr. Copland appeared for the appellants, and Mr. McCoy for the respondents. Note I. — Supplementary to the above Printed Report of Judgment. Besides the observations noted in the above printed report, I took occasion to observe with regard to our 112th section that I had heard it casually observed, as against that view of its operation to which my opinion leaned, that the section was not comprehensive enough to embrace all that tho Legislature must be supposed to have contemplated, inasmuch as it provided only for the case of plaintiffs and did not touch the case of defendants. In fact, in a very heavy mining case lately tried at Dunedin, before Mr. Justice Chapman, in which the question of miners' rights was now and again lightly touched upon, but no decision respecting it was ultimately required, the observation I have alluded to had been made. Mr. Justice Chapman said, in answer to it, but in a somewhat humorous way, that the answer given to that observation, when made in Victoria, was, that to a defendant it would have been rather a boon to enact that he should not come or be brought into Court. But I observed, in commenting on the case before me, that this was scarcely a serious way of disposing of the objection, as it might very well happen that a plaintiff holding a miner's right might need to bring into Court a defendant not holding a miner's right, and the complaint might be founded on the very fact that the defendant was then, at the time of the complaint made, occupying ground without holding a miner's right, which ground was therefore unoccupied Crown land, and which the plaintiff was entitled to take possession of; and I conceived it was a serious omission in the 112th section (copied from the Victorian section) that it did not in terms enact that such a defendant, not holding a miner's right, should not be permitted to defend his possession; and I thought this omission did seriously militate against that view of tho 112th section to which my opinion leaned, viz., that that section was intended to comprise the whole disability in respect of title that the non-holding of the miner's rights should impose. The only mode I saw of meeting this objection was, that as the general intent of the section was obvious—viz., that no person not holding a miner's right should have the assistance of any Court in repelling an attack of any kind made upon his possession while he was so unprovided with it—and that possibly, by an equitable mode of construction which had sometimes been adopted by the Courts, the enumeration of instances used in this section