A.—No. 8.

PAPERS RELATIVE TO LAWS ON GOLD FIELDS: THE MINERS' RIGHT AS AN ELEMENT OF TITLE.

PRESENTED TO BOTH HOUSES OF THE GENERAL ASSEMBLY, BY COMMAND OF HIS EXCELLENCY.

WELLINGTON.

1871.

A.-No. 8.

THE MINER'S RIGHT AS AN ELEMENT OE TITLE. No. 1. Judge Geay to the Hon. W. Gtsboene. Sib,— Dunedin, Otago, 6th July, 1871. By letter dated tho 24th of October last, and marked No. 911, you did me the honor to inform me that the Government had under their consideration the subject of consolidating, revising, and amending the laws relating to the Gold Fields, and requested me to submit to you such suggestions as mv experience of the working of these laws might enable me to offer. In reply to this letter I forwarded to you a memorandum dated the 30th of November, containing some observations on several sections of the Acts, such as my] very moderate experience of them suggested. I may say that I have had little to do with these Acts, except in appeals involving generally narrow issues, and these appeals have not been very numerous. I new take the liberty of drawing your attention to some observations I then made upon the subject of miners' rights. They were made upon the Bth section of the Act of 1866, a section repealed by the Act of 1869, and for which the 4th section of the Act of 1869 has been substituted. I pointed out some difficulties which I apprehended might arise in connection with the miner's right considered as an element of title (if it has to be considered as such). My observations were brief, and I said " I have not had sufficient experience, nor given the matter sufficient thought, to suggest any remedy." I. have lately had occasion, in connection with an appeal which I have had to try, to give the question of the miner's right, as an element of title, a great deal of consideration; and although this consideration has not resulted in my entertaining any confident opinion as to the state of the law, and, owing to the circumstances of the case with which I was dealing, I have not been able to take the opinion of the Supreme Court by reserving the question for its determination, the case presents so strongly the difficulties growing out of the miner's right operating as an element of title (if such it be), that I take the liberty of enclosing to you a printed copy of notes of the observations I had occasion to make upon the case. It is cut from a local paper, to which I supplied the notes thus fully chiefly with the view of laying these considerations before you in a more readable shape than if I had submitted them in manuscript. I much regret that there did not arise a fair opportunity of obtaining the opinion of the Supreme Court as to the existing state of the law. It is quite possible that, without my knowing it, this matter may have received judicial decision cither at Auckland or at the West Coast, and that it has already been brought under your notice. In that case, I owe you an apology for troubling you with this letter. If any such decision has been made, it is as yet equally unknown to the other members of the profession here as it is to me. I have appended to the printed note of judgment a note in manuscript supplying some observations which for sake of shortness I omitted in furnishing my notes to the newspaper, but which, on afterthought, I think it desirable to bring under your notice, as important to keep in mind with regard to the 112th section of the Act of 1866, if the matter should prove to have the importance that in the present state of my knowledge lam attributing to it. I have also added another note of a more general character. May I further suggest that his Honor Mr. Justice Chapman, who is now going to Wellington to attend the Court of Appeal, has had great experience of the mining law of Victoria, having sat as Mining Judge at Ballarat for more than a year, besides sitting as single Judge in Equity in Melbourne for, I think, two years; and that if it so happens that the Government is desirous to be better acquainted with the Victorian law concerning miners' rights, his presence in Wellington will offer an easy opportunity of consulting him on that subject. I have, &c, The Hon. the Colonial Secretary, Wilson Geat, (Judicial Branch), Wellington. District Judge, Otago Gold Fields. P.S.—As you may possibly desire to lay before each of the Law Officers a copy of the printed notes of judgment, as the easiest way of acquainting them with the suggested difficulties, I enclose two extra copies.

Enclosure in No. 1. Haeeis v. Labes. In" this case the hearing of evidence and the arguments of counsel occupied the greater part of three days. The facts have already appeared in our report of the case as heard before the Warden ; so far as it is necessary again to refer to them, they are set forth in the judgment of His Honor given upon the appeal, wljich was in substance as follows:— His Honor said : The appellant, Harris, was possessed of an extended claim (three men's ground, three acres) near Tuapeka Mouth, in which William Morrison was his partner, and on which they had a hired workman in charge (David Lewis). The claim had come to Harris and his partner (Morrison) through several assignments from parties who had taken up the claim in the year 1869. Some of the late owners (among whom Lewis, the working miner just named, was one) had put up extensive works

PAPERS RELATIVE TO LAWS ON GOLD FIELDS.

A.-No. 8,

PAPERS RELATIVE TO

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in connection with it. They had constructed a dam upon elevated ground, at a considerable height over the neighbouring creek, at a cost of several hundred pounds : and they had likewise erected, at a cost of several other hundreds, machinery of an experimental character, for the purpose of raising water from the creek to the dam. Experience proved that this machinery required many improvements to make it work efficiently and to a profit. But the capital of the owners was exhausted. They had borrowed money on the claim and had incurred other debts. The property was sold under execution for some of these latter debts, and the appellant Harris, with his partner Morrison, were the purchasers. .For some time before this sale, the claim itself, owing to these pecuniary embarrassments, was unworked, although efforts were being made to get the machinery perfected. Lewis, who was one of the owners at that time, was in charge of the ground, but was doing no actual work on it. The ground itself was neglected, and the pegs and trenches, directed by regulation 2, section 1, to be maintained as boundaries, were not carefully kept up. Nothing in the case turned upon the nonworking of the claim, as this could only be a ground for an application to the Warden for a forfeiture, which was never made, but the failure to keep up the boundaries was material. The sale alluded to took place under a Eesident Magistrate's distress warrant against Lewis and his partner Mears, who. were then owners. It was made on the 22nd of March, 1871. For several months before the sale Lewis had failed to take out a miner' b right, and it did not appear that his partner Mears at any time held one. There was some evidence that he did not. The fact that Lewis for several months of his ownership did not hold a miner's right was another material fact in the ease; and the legal consequences of it excited most controversy in the discussion. The sale having taken place to Harris and Morrison, Lewis was left in charge of the claim as a hired workman. Lewis was at that time, and had been up to the present, the holder of a miner's right, so also were Harris and Morrison, the purchasers. Many arrangements had to be made after the purchase. Among others, the claim had to be redeemed from a mortgage of £IGO, with accumulated interest. This money being paid off, contracts had to be made for perfecting the machinery, and this was in progress. About the 27th of April, the respondents Labes, and his mate Molzow, looking out for ground came upon this claim, considered it likely ground, and were proceeding to examine it when they met Lewis, who told them that the claim belonged to Harris and Morrison. They asked to be shown the boundaries. Two of the four pegs were still standing, and were shown to them. The others could not then be seen, but were ultimately found —one of them lying among the grass, and the other bent down nearly flat. The trenches were nearly obliterated. Labes and his mate said that these were not legal boundaries, and that they had not been properly maintained ; that they had a right to treat the ground as open to be taken up, and they thereupon proceeded to mark out an ordinary claim of two men's ground. Next day they came again, and marked out an extended claim of two men's ground (two acres), comprising the ordinary claim, and posted the usual notices of application to the Warden for such extended claim. Harris had meantime been negotiating with some third party for the sale of his portion of the claim, at the price of £150, but the proposed purchaser broke oft' on hearing of the proceedings of the respondents. Harris immediately enter a complaint in the Warden's Court against the respondents for their interference with his ground, laying his damages at £100. This case came to be heard on the 22nd of May. The interference complained of was the marking out of the ground, and the damages were estimated chiefly on the loss of the sale by Harris, in consequence of the claim thus set up by the respondents. At the hearing the respondents justified their conduct on two grounds. They contended that as Lewis had held no miner's right for some months before his interest was sold under the execution —and it seemed to have been taken for granted that his partner Mears was in the same position —their title (respondents contended) had altogether lapsed, and the ground had become free Crown land, open to the first comer; and as they had been in the same position before they executed the mortgage just alluded to, any miner's right that might have been held by the mortgagee made no difference in the material points. They likewise contended that as the boundaries were not maintained as required by regulation 2, the title had lapsed on this ground also ; and they further contended that to sustain an action, injury and damage must concur, and that in this case there had been no damage— that the only interference complained of, the marking out of the ground, was no damage to the complainants. The Warden dismissed the comA'aint, founding his judgment mainly on the fact that in the time of Lewis's ownership, there was an interval of several months during which Lewis was not the holder of a miner's right. He waa of opinion that the break discovered in the chain of miners' rights, two links back in the devolution of title, had made the ground at that time once more Crown land — public i juris —open to any person holding a miner's right; and that as no new title had been afterwards acquired, either by marking out an ordinary claim, or by an application for an extended claim, the ground was still in the same condition when the respondents marked it out. His opinion on the subject was so decided that he did not advert much to the matter of boundary. Against this decision the plaintiff below had taken the present appeal, which raised a question of the utmost importance to the mining community, as seriously affecting all titles held under miners' rights. All the evidence produced before the Warden had been again repeated before him, probably with much greater fullness. Two questions lay before him for decision—the effect of the break in the chain of miners' rights, and the effect of the imperfect maintenance of the boundaries. Ho proceeded to say that if ho were obliged to give a decision based on the break in the miners' righte, he would have reserved the point of law for the Supreme Court, as he considered the point was so important that it should not rest upon the decision of an inferior Court, especially when that Court would be giving its decision with, great hesitation, as ho must have done. He had put it to the appellant's counsel whether he would waive his point respecting the imperfect maintenance of the boundaries, and the effect of that imperfect maintenance on the question of damages, letting the case rest upon the break in the miners' rights— thus enabling him (the Judge) to refer the latter point to the Supreme Court; but counsel did not think it was the interest of his client to do so. Thus, on the view which he (the Judge) look of the whole case, it became impossible for him to have the question as to the miner's right decided on the authority of the Supreme Court, and he would not unnecessarily give any decision upon it. He would not, however, avoid pointing out the principal points that seemed to him capable of being raised on

LAWS ON GOLD FIELDS.

5

a.—jf«. <r.

either side. Probably it might be of use to draw attention to them at a. time when we were on the ere of a new Gold Fields Act, and the Legislature might deem it advisable to put some doubts to rest. The learned Judge then proceeded to discuss at considerable length the arguments as to this question of the miner's right as they had been used or might be used on either side. The respondent, he said, contended that the break in the miner's right at any link of the chain of title was fatal, and insisted that the land, upon the occurrence of that break, was Crown land once more, until some one—either the old occupier or some other party —made a new title to it; and that a miner holding a miner's right and coming to take possession of it was not a stranger nor a wrong-doer intruding on a person in possession, but was a person with a perfect title coming to assert that title against a person who was in possession, not only without any title whatever, but in defiance of the law which made his occupation Tinder such circumstances an offence punishable with fine and imprisonment. The 6th section of the Act of 1866, it was said, limited the duration of the authority to occupy by virtue of the miner's right strictly to the continuance of the miner's right, after which it ceased to be of any avail; and the 97th section made every unauthorized occupation an offence, punishable with fine and imprisonment. It was urged, therefore, that on the expiration of the miner's right every shadow of rightful occupation was gone ; and that a mere continuance of the occupation after taking out new miners' rights was of no avail to set up the title again without a renewal of all the steps that were originally necessary for the taking up of open Crown lands, as the claim had then become. For the appellants it was argued that the Act did not leave the question to depend upon the 6th and 97th sections, but proceeded by the 112th section to define and limit the disability in respect of title which it was intended to impose upon the non-holder of a miner's right. It was argued that the 6th section defined the authority to be conferred by the miner's right; that the 97th section defined what penalties of a quasi criminal character should be incurred by the non-holder of a miner's right; and that the 112th section defined what disabilities of a civil character, so to speak, touching the title, should be incurred by the non-holder of a miner's right. It was contended that these sections must be read together, and that nothing as to the civil disabilities was left by the Legislature to be deduced by inference from the 97th section when they chose themselves to say expressly in the 112th section what these liabilities should be, in terms defining and limiting them, and excluding all inferences that would extend them farther. It was reasoned that no one with the responsibility of framing this Act or of interpreting it could read the 6th and 97th sections without being sensible that if they stood alone an effect would be produced upon titles held under the miner's right that the Legislature could not possibly contemplate, and feeling that something had still to be expressly said on that subject. That something, it was argued, was said in the 112th section, which defined what effect should be produced on titles by the non-holding a miner's right, and by so defining it excluded all further effect. The 112th section, it was contended, limited the effect to this—that no person whose right to his claim was attacked at a moment when he was without a miner's right should have aid of any Court to make good that right; but it was contended that if the time of his being a non-holder was allowed to pass, and he was not attacked until he became a holder of a miner's right, the opportunity of attack was gone, and he must suffer no prejudice in respect of title on the mere ground of having at some previous time been a non-holder. In fact, he must be caught out. It was argued that the 112th section must either have this meaning or else have none at all. According to the argument of the opposite reasoner, the 6th section and the 97th section had done all that the 112th section did, and a great deal more besides. Where, then, it was asked, was the need of the 112th section? For what purpose was it inserted in the Act? If the former sections had imposed unlimited disabilities as to title, why add this section to impose limited disabilities, which were only a small portion of those that had been imposed already ? The only possible purpose of the 112th section was by expressly imposing disabilities within a certain limit to fix the extent of such disabilities and to exclude all inference beyond them. And it was argued that this reasonable limitation was an absolute necessity ; that otherwise no title under the miner's right would be secure, as it would be impossible for any one purchasing mining property to ascertain whether every one who preceded him in the numerous assignments or successions had a miner's right, and had it at the right time, and had it in respect of the identical piece of ground that was then being purchased. The 112th section of our Act was a transcript from the 90th section of the Victorian Gold Fields Act, continued in the Victorian Act of 1865, section 246 ; and in Victoria this section was always made the touchstone of any disability as to the right to sue affecting the non-holder of the miner's right. In the Victorian Courts, no objection based on the non-holding of a miner's right ever went behind the time prescribed by this section —viz., the time of the attack made upon the title of the person alleged to be a non-holder ; and the familiar expression in the mouths of the Victorian Judges was, that the " miner's right was no part of the title." It was admitted that the Victorian Act did not contain the clause making the occupation of Crown land without a miner's right liable to be punished by fine and imprisonment. In Victoria that seemed to be left to the operation of some other Act, probably the Waste Lands Act; but that circumstance did not, it was contended, meet the argument that our Act must be interpreted as a whole. The cases collected under the head of " Miner's Right " in McFarlane's " Digest of Mining Law in Victoria " would show, it was said, that the objection based on the non-holding of a miner's right always rested on the sections answering to our 112th ; and yet an examination of the original reports of these cases would show that there was abundant opportunity for taking the objection behind the date there fixed, if it was thought available. It was strongly argued that there was an absolute necessity of limiting this objection to title, as it was limited by the 112th section. The miner's right did not apply to any particular piece of land, and it was not transferable. After the holder had abandoned or assigned the portion of land which he had originally taken up with it, he did not abandon the miner's right, nor hand it to his assignee, but passed on with it to other pieces of ground, which he occupied in succession by virtue of it. Any number of these pieces he might assign, and with none of them would he transmit the miner's right. If a purchaser of mining property was obliged to be always provided with legal evidence of the existence at the proper time and in the right hands of these pieces of parchment, none of which passed to him along with the property that they affected, the title of mining property, it was contended, would become 2

4—No. 8.

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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

A.—No. a.

LAWS ON GOLD FIELDS.

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might be held to cover the whole class of cases, which was evidently in the contemplation of the Legislature.

Note 2. — Supplementary generally to my Observations with respect to Miners' Rights. It may be convenient here to enumerate the several sections of our Acts in which the operation of the miner's right is provided for. I would call especial attention to two of them. There is one of them the effect of which is obscure, and which suggests that there was some special emergency, probably in the Thames Gold Fields, in which the Legislature has already found it necessary to pass a sort of amnesty or curative Act, to cure tho faults in title that might possibly have arisen from want of miners' rights, but have done it partially and obscurely. There is another, which might readily escape notice, but which ought to be borne in mind. The sections making provision with regard to the miner's right are: —Act of 1866—Sections 4,6,7 ; section 8, now repealed by the Act of 1869, and section 4 of that Act substituted ; section 97 ; sections 99,100, not material here ; and section 112. Act of 1867 —Section 9, not material here. Act of 1869— Sections 4, 5, 9, 10, 11, 12, and 13, which relate to Native lands only. '' The Mining Companies Limited Liability Amendment Act, 1869," section 10. With regard to two of these sections adverted to above, I wish to observe — First, as to section sof the Act of 1869. This seems to have grown out of some emergency arising on the Thames Gold Fields, and to have been intended to cure some faults, possible or actual, affecting the property of corporations or great companies, in consequence of any failure as to miners' rights occurring previous to the passing of the Act —and no doubt, being a remedial enactment, would, in the interpretation of it, be extended to all companies great and small, and be held to include ordinary partnerships, but it seems to have no application to properties held by a single miner's right; and properties of great value and permanency may be represented by single miner's rights—as quartz claims, extended alluvial claims, water races. The clause is, on the whole, very obscure. He recognizes however the principle, that if the miner's right is to enter into title, it will from time to time be found productive of great mischiefs to suffer it to operate on title for an unlimited time backwards, and the interference of the Legislature on this point will be called for more or less often. Possibly, if the Government comes to the conclusion, that as a matter of law the miner's right has hitherto in New Zealand entered into title, and that as a matter of policy it is desirable that it continue to be part of it hereafter, then they may likewise be of opinion, that instead of passing from time to time temporary and partial enactments like this, there ought to be one general enactment, that in tracing title it shall not bo necessary to follow up the miner's right for more than some given period, of very moderate length, behind the time at which the question arises. In Victoria, where they appear to act only on what answers to our 112th section, and where, consequently, the inquiry as to tho holding of miners' rights can only comprise facts of a very recent and a very limited character, they had at one time to pass a curative amendment of a similar character to this section 5 of our Act of 1869 ; but they made the enactment general, extending to all mining properties, whether held by single miner's rights or by many, and not like ours partial, confined to the properties of companies and corporations. And it is also observable that, in providing this curative enactment, it was only thought necessary to cure all disabilities that up to that time might have arisen by reason of the section that answers to our 112th indicating, I should say, that that was the only section which created any such disabilities. The enactment to which I refer is the Bth section of the Victorian Gold Fields Amendment Act of IS6O (24th Victoria, No. 115). The reading again of this Bth section of the Victorian Act, 1860, suggests to me that it seems desirable that some provision should be made with regard to persons taking mining property by operation of law, and who would be very likely not to be holders of miners' rights at the time when the property devolved on them as trustees in bankruptcy, and executors and administrators; and I would add, that it would appear that purchasers under executions should also be considered. Secondly, I would briefly point attention to section 10 of "The Mining Companies Limited Liability Act Amendment Act, 1869." It provides that it shall not be necessary for any shareholder in any incorporated company to bo the holder of a miner's right in respect of any of his shares. This enactment not being found in any of the Gold Fields Acts is apt to escape notice, and in the framing of a general enactment it might possibly be inadvertently repealed, and no similar provision substituted. Wilson Geat, Dunedin, 6th July, 1871. District Judge, Otago Gold Fields.