CONTENTdm
British Columbia Historical Books Collection
Reports of mining cases
Martin, Archer, 1865-1941
xxviii, 898, 3 pages ; 26 cm
application/pdf
REPORTS OF MINING CASES DECIDED BY THE COUBTS OF BEITISH COLUMBIA AND THE COUBTS OF APPEAL THEBEFBOM TO THE 1ST OF OCTO- BEB, 1902 ; WITH AN APPENDIX OF MINING STATUTES FROM 1853 TO 1902 ; GLOSSARY OF MINING TERMS THE HONOURABLE ARCHER MARTIN " The Hudson'* Bay Company's Land THE CARSWELL COMPANY, Limited, Toronto, Canada. ng to Act of the Parliament of < ne hundred and three, by the Honoj of the Minister of Agriculture. MEMORY RICHARD MARTIN, ESQUIRE, MR (3 geo. iv., cap. 71, 1822). THIS VOLUME |b l&etierenti}) Sebkateb THE AUTHOB. *Notb.—The first statutory protectio mals by any civilized PREFACE. A\NE hundred and seventy-two million, two hundred and forty- ^-^ one thousand, nine hundred and eighty-eight dollars, represent the value of the mineral production of British Columbia down to the end of the year 1901, and the output for that year was the largest in the history of the Province, amounting to $20,086,- 780. The mineral production of the Yukon Territory for the same year is given at .$18,000,000.* Of the grand total first above mentioned, gold, lode and placer, takes first place at $80,716,006 ; coal and coke second at $54,157,315; and silver third at $16,534,554. Gold, so far as officially known, was first discovered within what is now British Columbia, by the Indians in Queen Charlotte's Island, in 1850, and the fact was reported to the Secretary of State for the Colonies by Governor Blanshard (of Vancouver Island) in his despatch^ of August 18th of that year. The results of expeditions fitted out by the Hudson's Bay Company, and later by others, to work the vein so discovered on Mitchell Harbour, are given in the succeeding despatches in the same blue book. Mr. Matthew MacFie, F.R.G.S., writing in 1865, states thatj "the existence of gold in Vancouver Island has been known since 1850," and Mr. J. D. Peniberton, Surveyor-General of Vancouver Island, says§ that, "In 1852 I broke off almost at random pieces of gold-bearing rock in various places within a walk of Victoria, and the report (at p. 160) on them by Mr. James Tennant, of the Strand, will be read with interest, enumerating as it does the geological formations tisually met with in the south-eastern portion of the Island, and showing that * Report of the B. C. Minister of Mines for 1901, pp. 919-931. t " Correspondence relative to the Discovery of Gold in Queen Charlotte's Island "—Beturn to House of Commons, 19th July, 1853. ■J "Vancouver Island and British Columbia." London, 1865, p. 151. § " Facts and Figures relating to Vancouver Island and British Columbia." London, 1860, p. 42. I vi PREFACE. it is extremely probable that Vancouver Island, when properly plored, will be found to be a gold-producing country." Recent eve have fully justified this opinion. So far as gold on the Mainland of British Columbia is concen the first official notice thereof is contained in the despatch * of Go-v nor Douglas to the Secretary of State for the Colonies, dated April 1856, wherein he states that Angus McDonald, clerk in charge ', a Hudson's Bay Company's post in the Upper Colum District, had reportec gold had bee: 1 found ritory on the Upper countrj Governor the " Couteau Mines" (so inhabiting that part of the country), < to extend to the Fraser River, and 1 great rush of 1858 to that regioj year continued their prospecting i Lytton ; from Lytton to Cayoosh Fountain (Pavilion) ; from the Fountain thence next year, 1859, to the Quesnel Ri so-called, where, to quote Governor Douglas :eon led to the niners in that i Fort Yale to River, and the Fort Alexandria, and and Cariboo, properly uvial diggings of extraordinary value" were discovered on Horsefly and Antler Creeks, and, later (1860-1862) on Keithley's, Lightning, Williams and other and following ye; the great rusli to Caribo rs.t On Vancouver Island gold was first obtained to any considerable- extent from Leech River, discovered in 186-1 by an expedition organized by Governor Kennedy under the command of Dr. Robert Brown and stimulated by the prospect of a reward of £1,000 offered for "the- discovery of paying gold fields," and earnings as high as $34 per day to the rocker were obtained, t * " Correspondence relative to the Discovery of Gold in the Fraser's Biver District in British North America." Return to House of Commons, July 2,1858. t " Papers Eelative to the Affairs of British Columbia." In 4 Parts 18591862 • House of Commons Return. See Part II, pp. 28 9, 39, 46, 57-8 • Part III m> 29* 36, 50, 66-7, 93 ; Part IV, pp. 5, 12, 30, 46-50, 52, 58 et seq. ' **' i "The Mineral Wealth of British Columbia," by Geo. M. Dawson D S Annual Eeport of Geolog. Survey, 1887, Part R., p. U2b. In the previous year, 1863, at Goldstream, near Victoria, several •companies had engaged in working quartz veins with indifferent success. With this exception lode mining is of comparatively recent ■date.* Dr. Dawson + notices the "premature quartz excitement of 1877 and 1878 " in Cariboo, yet as he states, \ it was not till 1886, -after the discovery, in Kootenay, of a group of mineral deposits on Toad Mountain, near Nelson, that the development of lode mining, as it at present exists, began. But so small was the industry that the total value of its output so late as 1893 only amounted to $297,400 ; after that date, however, it rapidly increased, and last .year amounted to $13,683,044.|| Silver was first officially reported as existing, in Lillooet, by Mr. J. W. Mackay in his report of October 2nd, 1858, to Governor Douglas,§ and was also mentioned by Lieut. Richard C. Mayne; R.N., in May, 1859 ;1F but its existence was first authentically established by Charles Forbes, M.D., of H.M.S. " Topaze," who, by direction of Governor Douglas, reported in October, 1860, on the minerals of the country bordering upon Harrison Lake and Lillooet, and found and examined many argentiferous veins as shown on the map and geological sections accompanying his report.** Coal was first discovered in 1835, on the north-east coast of Vancouver Island, doubtless at Suquash, specimens being brought in that year by the Indians to' Dr. W. F. Tolmie, then stationed at the Hudson's Bay Company's post, Fort McLoughlin. on Milbank Sound, tt and used in the following year by the first steamer on the coast—the Beaver. " The coal at Nanaimo was first discovered by Mr. Joseph * MacFie, supra, p. 155. t Supra, p. 56r. I lb. p. 60e., also Journal of Roy. Col. Ins Report of B. C. Minister of Mines, supi itute for April, 1893, p. 8 i, p. 921. e the dates of location, or record, of some of ihe earliest mineral i in the vicinity of Kootenay Lake, as follows : —The " Blue Bell" was local July 31, 1882; the "Kootenay Chief" on October 5, 1882; the " Comfor -October 6, 1882; and the " Lulu " was recorded on October 6, 1882. The " King " on Toad Mountain was located on July 6, 1887. § Papers Relative to the Affairs of B. C, House of Commons Return, Part II, p. 31. •[ lb., Part III, p. 33. ** lb., Part IV, p. 32, and cf. Dawson, supra, p. 55r. viii PREFACE. W. Mackay [then in the H. B. Co.'s service] in May, 1850, who was directed to it by*the Indians in the neighbourhood."* The development of the industry is traced by Dawson and the annual Reports of the British Columbia Minister of Mines, to which authorities reference should also be made, and also for information and statistics relating to the other minerals of the Province. Though the first proclamation and regulations (see Appendix) relating to mining in what is now British Columbia were issued so far back as 1853, the earliest case on that branch of litigation appearing in the Law Reports of this Province was decided in 1883. From the nature of the litigation, almost exclusively relating to placer mining, the earlier decisions of the Courts, though important to those primarily concerned, were not as a rule of permanent interest, and I have only felt justified in including in the present volume two cases earlier than 1883. It is proper to note here that so early as 1864 there was published in Victoria by Mr. Joseph Park, Barrister-at'-law, an instructive and now very scarce little book entitled "A Practical View of the Mining Laws of British Columbia." In March, 1897, the writer compiled an I Annotated Synopsis of the Mining Laws of British Columbia,'* which appeared in the "Directory of Mines," published in Victoria, which is believed to be the first attempt to collect and classify all the legal decisions on the mineral Acts, so far as then known, and in the next year the same plan was followed by Messrs. McPherson and Clark in Chapter XVIII. of their "Law of Mines in Canada." Latterly, keeping pace with the progress of lode mining, litigation of this character has so much increased, and the reports of cases are so widely the ad ( idic Privy Cc tha xlui j with that This volu: law of British Cob the subject of permanent interest decided by the Courts of thi vince, so far as I have been able to collect them as the result own efforts and circulars addressed to the Bar. Most of then already been reported, but I have added several others of utility *" The Great Goldfields of Cariboo," by William Carew Hazlitt Barrister t-Law, London, 1862, p. 63 ; Dawson, supra, p. 80r. 1^8^ so far have not been. All the head-notes of cases already reported have been revised and nearly all re-written, and the report itself amplified and corrected wherever necessary. It is a difficult matter to define exactly what is properly a " mining case," but it is clear, on the one hand, that the term is not confined to- cases decided on the Mineral Acts alone, and on the other, it is just as clear that cases which are determined on the ordinary principles of law applicable to tort and contract should not be included, even though between rival mining companies, or the master of a mine and his- servant employed therein. If I have erred in a doubtful case it has been on the side of including it, or at least giving a note thereon, so- that it may not be overlooked. The cases have been arranged in order of time, and when a case has gone to appeal the date of the decision of the final Court of appeal is taken as the date for the purpose of classification. As regards the collection of proclamations, ordinances and statutes,, the scope and plan of arrangement thereof will be more conveniently explained in the Appendix relating thereto, where will also be found some remarks on the origin of such laws. It is only necessary to add a word in regard to the notes to the- cases reported in this volume. These will be found to deal almost exclusively with eases decided on the mining laws of British Columbia. There are, Tt is true, some mining cases in some other provinces of Canada, particularly Nova Scotia, but the laws upon which the casea- are decided differ so materially from those of this Province, that, after a consideration of them, it has not been thought advisable to refer to them except in a few instances. There will be found in a note to Manley v. Collom a list of cases, more or less relating to mining, decided by the Supreme Court of Canada, which it is thought proper to include as being decisions of an appellate Court from this Province. My thanks are particularly due to Wm. Fleet Robertson, Esq., the Provincial Mineralogist of British Columbia, for his kind assistance- in the preparation and revision of the " Glossary of Mining Terms."" ARCHER MARTIN. , British: Golum October 1st, 190%. CONTENTS Preface (Historical) v Table of Cases Reported xiii Table of Cases Cited xvii Reports of Cases 1 Appendix A— Table of all the Mining Proclamations, Ordinances and Statutes (1853-1902) .... 531 Reprint of all of the above which are of Practical Utility 535- Appendix B— Glossary of Mining Terms Index -Digest .... 85a 875- TABLE OF CASES REPORTED IN THIS VOLUME. (Note.—An * placed before the name of a case signifies that it is not iwhere reported, or that it is inadequately or incorrectly elsewhere reported.) . Aldous v. Hall Mines Co 213 Alexander v. Heath, et al 333 ♦Almoure ct al., Pellent et al. v 134 American Boy Mineral Claim, Re . . 304 Anderson et al. v.. Godsal 416 ■ Archibald, McNerhanie v 320 Atkins v. Coy SS Atty.-Gen. of Brit. Col. v. Atty.- Gen. of Canada 52 Atty.-Gen. of Canada, Atty.-Gen. of Brit. Col. v 52 Attorney-General v. Dunlop 408 B. Bainbridge v. Esquimalt & Nan- *Beaman et al., Paulson v 471 Beamish v. Whitewater Mines, Ltd. 405 Bentley et al. v. Botsford et al 454 Bltafchard, Noble v 373 Bfosdel v. Hunley 31 Biee&ir et al. v. Chisholm *Boie v. Saulter Bbseowitz-, Cleary et- al. v. Botsford et al., Bentley et Botsford et al., Fry et al. v *Boyer et al., Pellent et al. v Bradley-Nicholson Co., Jenny Lind Co. v Bright ProspSdte I t^M' BiHniBg; Co., Holden v Brit. Col. Southern Ry. Co., Centre Star Mining Co. et al. v 421 Btftt Col. Southern Ry. Co. et al. War Eagle Consol. Mining & Devel. Co., Ltd., 4t al. V...422 Brown, Stussi v ^Bryden.v. Union Coll. Co. of B. C. Ltd., et al a Bfcri v, Tunstall 61 Htttler, Victor, et al. v 438 Byron N. White Co., Star Minjng- & Milling'Co., Ltd. Ly., v 468 *Byron N. WMte Co., Star Mining & Miring Co. v 513 . 240 . 506 . 454 . 520 . 292 460 337 ♦Galdwell et al. v. Davys 387 Callahan v. Coplen 348 ♦Callanan et al. v. George et al 242 ♦Canadian Company v. Grouse Creek Plume Co., Ltd 3 Can: Pac. Explor'n Co., Ltd., McDonald v 379 Centre Star Mining Co. et al. v. Brit. Col. Southern Ry. Co. 421, 460 Centre Star Mining Co. v. Iron Mask Mining Co 267 Centre Ster Mining Co., Iron Mask Mining Co. v 300, 362 Chisholm et al., Bleekir et al. v 112 Christopher et al., Wise v 413 *Clarke et al., Creelman v 228 Clark, Gelinas ~et al. v 428 Clark v. Haney 281 Cleary et al. v. Boscowitz 506 Coal Mines Reg. Amend't Act, 1890, Re 116 Cole, Pope v 257 Collom, Manley v 487 Columbia River Lumber Co. v. Yuill et al 64' Connell v. Madden 359 Cook et al. v. Denholm et al 447 Coplen, Callahan v 348- Corbin v. Lookout Mln. & Mill. Co. 126 Coy, Atkins v 88 Cranston et al. v. English Canadian Co 394 ♦Creelman v. Clarke et al 228 ♦Cunningham et al., Sunshine Ltd. v. 286 Curtis et al., Powers v 401 Curtis et al., Rammelmeyer et al. v. 401 D. Dart v. St. Keverne Mining Co., Eimitea 331 ♦Davys, Caldwell et al. v 387 Denhofen et al.. Cook et al. v 447 Dunlop, Attorney-General v 408 Dunlop v. Haney 232, 344, 390, 369 I, gumlap/ Haney v 311 Dunlop, Nelson & Ft. Sheppard Ry. TABLE OF CASES REPORTED. E. I English Canalian Co. Cranston gj g^ English, Fancoeur et al. v. ... • • • • • 20 Esquimau & Nanaimo Ry. Co., Bainbridge v, ...••• • • • • • •••• -J ■ Esquimalt & Nanaimo Ry. oo. v. New Vancouver Coal 0o--;|||; 284 F. Farrell, Hogg v „J| Fero v. Hall • ^? Fotheringham, Granger v. <£ Francoeur et al. v. English ^w Fry et oJ. v. Botsford et a* 5ZU Fry, MacQuillan v &20 G. Gelinas et al. v. Clark . 428 ♦George et al., Callanan et al. v ^ Gibson v. McArthur et al 3!W Godsal, Anderson et al. v. ••■••••• 41° Golden Butterfly Fraction and Coun- tess Minejal Claims, Be 12o ■ Good Friday, Timber, Indiana, Old Ken tuck and Good Hope, Mineral Claims, Re 84 Granger v. Fotheringham 71 Gray et al. v. McCallum et of 206 ♦Grouse Creek Flume Co., Ltd., Canadian Co. v 3 Grutchfield v. Harbottle 396 H. Hall Mines Co., Aldous v 213 Hall, Fero v 238 Hall Mines Co., Stamer v 314 ♦Hamilton, Partridge v 246 Hand v. Warren 376 Haney, Clark v 281 Haney, Dunlop v 232, 344, 369, 390 Haney v. Dunlop 311 ♦Hammil v. Sproule 31 Harbottle, Grutchfield v 396 Harris, Kinney v 137 ♦Harris, Spencer v 294 Heath et al., Alexander v 333 Hogg t. Farrell 79 Holden v. Bright Prospects Gold Mining, etc., Co 292 Holden et al., Sehomberg v 290 Hudnut, Woodbury v 31 Hunley, Blasdel v 31 I. Iron Mask Mining Co. v. Centre Star Mining Co 300, 362 Iron Mask Mining Co., Centre Star Mining Co. v 267 J. Jenny Lind Co. v. Bradley-Nichol- Jerry et al.', Nelson & Fort Sheppard Ry. Co. v 1 K. Kilbourne v. McGuigan i Kilbourne, Troup v ^ Kinney v. Harris .- 3 Lanark and Maple Leaf Mineral Claims, Re 68 Lawr v. Parker 456- Le Roi Mining Co., Ltd., McKel- vey v • 477 Liftchild, Waterhouse v 153 Little, Regina v 220 Lookout Min. & Mill. Co., Corbin v. 126 Mc. McArthur et al., Gibson v 382- McCallum et al., Gray et al. r. ... 206 McDonald v. Can. Pac. Exploration Co., Ltd 379 McGuigan, Kiljjourne v 142 McKelvey v. Le Roi Mining Co., * Ltd 477 McNaught v. VanNarman et al ... 516 McNerhanie v. Archibald 32fr MacQuillan v. Fry 520 McQuillan, Ryan v 289 M. Madden, Connell v 359- Manley v. Collam 487 Maple Leaf and Lanark Mineral Claims, Re 6S ♦Marino v. Sproat et al 481 Meyers, Woodbury v 31 Montgomery, Webb v 129 ♦Murphy v.' Star Exploring and Mining Co 450 N. Nelson & Fort Sheppard Ry. Co. v. Jerry et al 161 Nelson & Fort Sheppard Ry. Co. v. Dunlop 414 New Vancouver Caal Co., Esqt. & Nan. Ry. Co. v 223, 237, 2S4 Noble v. Blanchard 373 Parker, Lawr ♦Partridge v. : ♦Paulson v. E * placed before the name ! or that it is inadequately c Pellent, Trask Peters v. Sam Petty, Wells v. Pope v. Cole . Rammelmeyer et al. v. Curtis et al.. Regina v. Little Reginam, Peck v ♦Richards v. Price Richards v. Price S. Sampson, Peters v. ..' ♦Saulter, Boie v Schomberg v. Holden et al Snow, Pavier v ♦Spencer v. Harris ♦Sproat et al, Marino v Sproule, Hammill v. St. Eugene Ming. Co., and Lane Reg. Act, Re St. Keverne Ming. Co., Ltd., Dart v Stamer v. Hall Mines Co, Star Ming. & Millg. Co. Ld. Lb., v N. White Co. .. phy v AAA.. Stussi v. Brown ♦Sunshine, Ltd. v. Cunniughai 384 450 286 U. don Coll. Co. of B. C, Ld., et al. Bryden v 337 V. n Norman et al., McNaught v. .. 516*" ctor et al. v. Butler 438 W. ar Eagle Conso.1.' Ming. & Dev. Co., Ld. et al. v. B. C. Southern Ry. Co. et al 422, 465 arren, Hand v 376 ater Clauses Oonsol. Act, Re .... 421. 422, 460, 465 aterhouse v. Liftchild 153 ebb v. Montgomery 129 'ells v. Petty " Vhitten, Wilson v hitewater Mines Ld., Beamish v iVilliams Creek B. R. F. & D. Co. Ltd. v. Synon iVilson, Payne Consol. Ming. Co. Ltd. Lby. v iVilson v. Whitten vVise v. Christopher et al 'oadbury v. Hudaut foodbury v. Meyers Y. 38 (N<y -An ■ TABLE OF CASES CITED IN THIS VOLUME. . 423. lRj h. : Asher ... Q. B. 1 Atkins v. Attorney-G 14 App. 100, 105 (1890), 19 Ont. 191 . Bainbridge v. Esquimalt & Nanaimo Ry. Co 60, 407 Baker v. McLelland (1895), 24 S. C. 416 505 Baker v. Oakes (1877), 2 Q. B. D. 171 374, 450, 452 Bank of Toronto v. Lambe (1887), 12 App. Cas. 575 121 Banks v. Woodworth (1900), 7 B. O. 385 139 Banner v. Johnston (1871). 5 E. & I. Appeals 157 374, 375 Banner v. Johnston (1871), L. R. 5 H. L. 170 84 Baring Bros. & Co. v. North-Western of Uruguay Ry. Co. (1893), 2 Q. B. 406 301,302 Barrett v. Day (1890), 43 Ch. D. 449 • 313 Bartlett v. Pickersgill (1759). 1 R. R. 1 148 Barton v. Muir (1874). L. R, 6 P. C. 134 491 Batlev v. Kynock (1874). 19 Eq. Attorney-Ge malt & 1 7 B. C. E B. C. v. Dunlop 4, 347. 378. 415, 5 E B. C. v. Esqui-. d Ry. Co. (1900), TABLE OF CASES CITED. Booth v. Turle (1873), 182 Bradlaugh v. Clarke (1£ D. 38; (1883), 8 Api Bradlaugh v. Newdegat« Q. B. D. 15 Brai---" _ >-J» -. - Morr D. 5( Bridges Besv Briggs S. Brook< 3. C. ■ Ch. : Burgess 136 .. Bulmer v C. R. Burk v. 'J RepT' Bushell i Caddick v. Scidmore (1857), 2 De Caldwell v. Davys .... ..." ' 83 291' 5 Callahan v. Ooplen . .256, 413,' 430' 431, 434, 435, 436, 487, 489, 490', 495, 497, 499, 500, 501 502 509 olO, 511, 520, 521, 522, 523, 524,' Callahan v. George 246, 490, 500', 5 Campbell. Ex parte (1870) 5 Ohv App. 706 '... 250" 4 Can. Pac. Ry. Co. v. McBrvan Can- Pac Ry. Co. v. Parke (1897)', 6 B. C. 6; (1899) A. C. 535;... OF CASES CITED. $\>& (i887) 36 CI .D. idsw^r^D 'srrW01 nawi . 14 212 H°°d 1858) 28 L . J. .. . 1- v.IneeHa 1 Co. 1876) W. v. Phibbs (1867 , L. 1 j. 149 . Ingram ( 1887), 35 Ch • D- 3( v. Lookou t Min ng Co >f Parkdale v. 'West App. Gas. 602 .. 166, •Cusac t W. ©1), B. 348 . 4Jusnmg v. Dupuy U»»"), ° -app- Cas. 409 1 •C. W. Mining Co. v. Champion Mining Co. (1894), 63 Fed. Rep. 540. 1 D. Dahl v. Raunheim (1889), 132 U. Dale' v. Hamilton ' '(1846)',' 5* Hare 369 197, 324. 326, i Dallow v. Garrold (1884), 54 L. J. .Q. B. 78 4 Danford v. McAnulty (1883), 8 App. . Cas. 460 250, 4 Daniel v. Gold Hill Mining Co. (1899), 6B. C. 495 1 Dann v. Spurrier (1802)7. Ves. 234 Darby v. Darby (1850), 3 Drew 495 i Dart v. St. Keverne I Dauphinais v. Clark (1885), 3 Man. f Davenport v.' Reginald (1877)'. L.' R. f 3 App. Cas. 128 8, 13. 250, i Davidson v. Taylor (1890), 14 L. R. 78 i Davies v. LeRoi, &c, Co. (1899), 7 B. C. 6 : Davis v. Butler (1856), 1 Mor. M. Davis v.'a P.' R '(1886)',' 12'a'.'R. ' ivis v. Grown Point Mining Co. avis v. Riley (1898), 1 Q.B. 3....' 345 avis v. Sheppard (1866), L. R. 1 Ch. 410 13 avis v. Steohenson (1899) 24 Q. B. D. 529 491 avis v. Weibbold Q890), 139 U. S. 518 168, 176, 184 avis v. Whitehead (1894), 2 Ch. 133 326 avison v. Gent (1857), 1 H. & N. 744 439 e Beauvoir v. Welch (1827), 7 B. & C. 266 250 efferback v. Hawke (1885), 115 TJ. S. 404 176, 183 e Groot v. Van Duser, 20 Wend. 390 500 el Monte Mining & Milling Co. v. Last Chance Mining & Milling Co. (1898), 171 TJ. S. 55 360, 429, 434 emers v. The Queen, vide Queen v. entT.^Turpin (1861), 30 L. J. Oh. 495 524 Derry v. Beek (1889), 14 App. Cas. 359 261 Derry v. Ross (1881), I Mor. M. O. 6 177 Dobie v. Temporalities Board (1881), 1 Cart. 352 116, 117 over Gaslight Co. v. Dover (1855), 1 Jur. N. S. 813 475 Dowdeswell v. Francis (1874), 30 L. T. N. S. 608 87 Downing. Re (1891), 65 L. T. N. S. 665 90 Doyle v. Kaufman (1877), 3 Q. B. D. 7 374 Dublin, Wicklow, & Wexford Ry. Co. v. Slattery (1878), 3 App. Cas. 1155 316 Duchess of Kingston's Case (1776), 2 Smith's L. C. (10th ed.), pp. 813-826 178, 199, 525, 527 Ducondu v. Dupuy (1883), 9 App. Cas. 150; (1886) 6 Can. S. C. R. 425 262 Duke of Brunswick v. Harmer (1850). 19 L. J. Q. B. 456 471 Duke of Marlborough, In re (1894), 2 Ch. 133 287, 326 Dunlop v. Haney . .2, 78. 115, 136, 231, 283, 289, 291, 372, 408, 409, 410, 411, 428, 432, 433, 489, 500, 504, 508, 510, 528 E. Earl of Lonsdale v. Curwen (1799), 3 Bligh O. S. 168 225 Earl of Northumberland's Case (1568), 1 Plowd. 310. .53, 57, 102, 104, 106 East Indian Co. v. Kynaston (1821), 3 Bligh O. S. 153 225 Eddowes v. The Argentine Loan & Agency Co. (1890), 59 L. J. Ch. 392 471 C CASES .CITED. Erhardt v. Boaro (1884), 113 U. 527; (1885) 15 Morr. 473 . .16 Esdaile v. Paine (1888), 40 Ch. ) Fielding v. Morley (1899), 1 Oh. 1 .. Figes v. Cutler (1822), Fisher v. Tully (1878), Ford v. Kettle '(1882) 139 Forster v. Farquhar (1 3 Starkie 1319 141 r. Hale (1798). 3 Ves. 696.. 197, 287, 324. 328. 329 v. Kaufman (1885), 16 Q. . 286 250, 491 Fullwood v. Fu 9 Ch. D. 17< Fry v. Botsford Gedye, Re (185! Gelinas v. Clar 289, 291, 35{ General Finance, &c. Co. v Libe ChrD^U24 ^ SW°.iet.y (18Y8K 3 Germanic! The '(1896), P. 84. '. " ' Gesner v. Gas Company (1853), Gettring v. Atkins (1896) 138 Gibson v. Cook (1897) 5 B C Gilbert, In re (1885) 28 Ch " Giles v. Grover (1832) ' 128 ......'.. D. i Heartf y'. Pilley (1869), L. R. 4 Ch. S. C. R. 291 .'. '..315, 316, 318 Helsby, Re (1894), 1 Q. B. 742 144 12 Morr. 217 ' .' 445 Hewett v. Barr (1891), 1 Q. B. Higguas v.' Senior '(1841)', 8 M." & W. 834 40 Hill v. Crook (1873), 42, L. J. Ch. 716 180 Hill v. East, &c, Dock Co. (1882), 22 Ch. D. 23; 9 A. C. 454 . .172, 249 Hindley's Case (1896), 2 Ch. 128.. 147 Hobbs v. Esquimalt .& Nanaimo Ry. Co. (1898), 29 S. C. 451; (1898) 6 B. G. 228 407, 505 Hobbs v. Norton (1682), 1 Vern. 135 : 383 Hodge v. The Queen (1883), 9 App. Cas. 117 120, 121 Hogg v. Farrell.. .115, 152,194, 202, 218, 433 Holden v. Bright Prospects Gold Mining & Dev. Co 292. 417 Holtby v. Hodgson (1889), 24 Q. B. D. 107 410 Hooper v. Coombe (1888), 5 Man. 65 489 Hope v. Caldwell (1871), 21 U. C. C. P. 241 201 Hornby v. New Westminster Southern Ry Co. (1899), 6 B. C. 588.. 67 Horsefly Mining Co., In re (1895), 4 B. C. 165 433 Houston v. Marquis of Sligo (1885), . D. Hom Huddersfield Banking Co. v. Henry Lister & Son (1895), 2 Ch. 273.. 262 Hudson's Bay Co. v. Kearns & Rowling (1896), 4 B. C. 536 251 Hyman v. Wheeler (1886), 29 Fed. Rep. 347 270 I Inte .144, s Co. (1ST? City of Mosco 7 Ch. D. 241 oi Ireland v. Livingston (1871), 5 H. of L. 395 147 Iron Mask v. Centre Star . .128, 273, 275. 362, 515 Mining Co. v. Chessman 885), 116 U. S. 529.... 175 Company v. Mike & Starr 7 (1891), 143 U. S. 404.. Iron Silver J. Q. B. 257 i .... Jordan v. McMillan (1901), 8 B. K. Kane v. Kaslo (1896), 4 B. C. 48 Kansas Pacific Railway Co. v. D meyer (1884), 113 U. S. 641- Kay v. Johnston (1856), 21 B< 537 1 Keating v. Sparrow (1810), 1 E & Beattie, Irish Ch. Rep. 367. Kelly v. Wade et al. (1890), 14 R. 66 Kennedy v. Trafford (1897), A. ISO Kilbourne v. McG 410 Lang v. Kerr, Anderson & Co. (1878), 3 App. Cas. 529 4 Langton_v. Hughes (1813), 1 M. & : Co. '.' Tyler (1895)7"l5i jy'(1860)',' 30L. ,J.' \ lty Council . B.~ Lees v. Nuttall (1834) Legeev. Croker (1811) •'. 506,'; ABLE OF CASES CITED. Maddison vTAlderson '(1883)78 App" Cas. 467 - M:u-lcJeiLv- Connell—See ConnelV V. ' Madden. Magdalen College Case (1857) 6 TT L. C. 189; 11 Rep. 716 U" Manley v. Collom 2'37'Vs 115, 136, 155, 160 199 20< 218, 231. 241, 246, 256 266 283' BLE OF CASES CITED. (1852), 16 Beav. 3 Ins! Co." '(1881)', if,' 119.' i20,' 'l23', 1& 13 Peacock v Pearce V.' Watts'' (1875),' L.' R. '26 Pellent v. Almo Pender v. War I lr37'2','393,"4'33.'564,' 528 3agle (1899), 7 B. C. Pennell v. Deffell (1853), 4 D. M. & p3^S SS pMfti:504 SsVlT ip's"(i878)','i'Q. B. Phillips v. War Place v'. Alco'ck 1 (1863), 2 ii. & c! '('i866),"4"F."&'F. 1 IT 742)', 2 Atk! 515 . . 582) ,47L. T N.' S". AAM&iiA VaT.' TABLE OF CASES ( (1832), You. Sons (1901),j £■'. (iS93)j 3 IE Rogers v. Pitehei (1815), R T aunt. 202 26 R. R. Rogers v. Reed (. v. Saunders (18 sions 641 PeterTrin 1884), 11 ('„ C. R. 706 .. Rossi v Bayley 1868), L. It. 3 Q. B. 6 28 v. The Qu een (1882 Ryanav 829 McQuilla 370, 372, 393, 404, 432, 449, ' (1889), 13 P. R. 322 St. Louis Mining & Milling Co. Montana Co.. Ltd. (1890), Pac. Rep. 510; (18981, Ii"! U. 651 2" Salmon v. Duncombe (1886), App. Cas. 627 Salter v. Salter (1896). P. 293 . .. Sanders v. Barker (1890), 6 T. R. 324 Sandiman v. Breach (1827), 7 B. C. 99, 100 Sanford v. Sanford (1891), 139 S. 642 at 646 ! Savage v. Foster (1723) 9 Mod. 3 Schomberg v. Holden j 389! 428| 432," 433' 447' 449' 5( Schultz v. Archibald (1892), 8 Ms 284 :... . . Scott v. Brown Doering. McNab Co. (1892), 2 O. B. 724 .. Scott v. Midland Ry. Co. (1901) _ Q. B. 317 (1896). 64), 3 H. & C. Cas. 300. London & N. W. R. Oo. 21 L. 0. Ch. 450 lott (1886), 14 S. C. 734; 23 S. C. 384.322, 323, 326, i rown 83. 97, 152, 324, I ing (1901), 8 B. C. 423.. : limited, v. Cunningham. . 152, 155, 202, 239, 330, E North Eastern Ry. Co. 74 L. T. 88 c . Maguire (1875 ..101 The (1890), 15 . Portington (1855 G. 328 •. Salmon (1838), 4 , 7 DeG. M.'&C. 1 (1874), L. R. 10 !nport'"(i829V, 2 I.J TAB LE OF C 1 XXV Wes r'tbury'Vl'S- 0),'L. . .' 115 Wes rsi l- 36^ R ^fH mt. 366, 144, : 16 S. C. Valin v. Langlois (1879), 1 Cart. 177 I Velati v. Braham (1877), 46 L. J. C. P. 415 2: Victor v. Butler 37, 51, 92, 5l W. Wakefield v. Turner (1898), 6 B. C. 216 4 Wakelin v. London & S. W. Ry. Co. (1886), 12 A. C. 41 3 Wales v. Thomas (1885). 16 Q. B. D. 340 4 Walker v. Brown (1868), 14 Gr. 237 War Eagle Oonsol. Mining, &c, Co. v. B. C. Southern Ry. Co Warmington v. Palmer (1902), 32 S. C. 126; 8 B. C. 344 3 Warner v. Don (1896), 26 S. C. 389. 5 Waterhouse v. Liftchild 37, 115, 288, 290, 291. 370, 387, 500, 5 Waterlow v. Dobson (1857), 27 L. J. Q. B. 55 Webb v. Montgomery 266, 4 Webster v. Bray (1848), 7 Hare 159 1 Weir, In re (1898), 31 N. Sc. R. 97 3 Weston v. Collins (1865), 34 L. J. Ch. 354 Wells v. Petty. .2, 83, 202, 239, 288, S R. ,13 30, 37, 78, 136,' 152, 194, 231, 256, 266, 372, 395 Wilson v. Church (1879), 12 Ch. D. 454 346 Wilson v. Merry (1868), L. R. 1 (H. L. Sc.) 341 3.18 Winona v. Barney (1885), 113 U. S. 618 175 Wise v. Christopher 504 Wolverhampton N. W. Co., The. v. Hawkesford (1859), 28 L. J. C. P. 246 2!i7 Wood v. Boozey (1867), L. R. 2 Q. B. 340 3*4 Wood v. Leadbitter (1845),. 13 M. . & W. 838 151 Woodbury v. Hudnut 2, 78, 92, 155, 433, 439, 443, 504 Woodland v. Fuller (1840), 11 A. & E. 859 517 Woolley v. Attorney-General of Victoria (1877), 2 App. Cas. 163.. 53, 102,104, 105, 106, 107, 108 Wylie v. Wylie (1853) 4 Gr. 278... 329 Y. Yale Hotel Co. v. V. V. & E. Ry. Co. (1902). 9 B. C. 66 527 Yarmouth v. France (1887), 19 Q. B. D. 647 316 Young v. Halloway (1895), p. 87 . . 524 Young v. Thomas (1892), 2 Ch. 137. 364 TABLE*- OF THE JUDGES OF THE SUPREME COURTS Yancouyee Island and British Columbia, 1853-1902. Colony of Vancouver Island [ Colony (1849). The Hon. David Cameron , Chief Justice and Judge in Admiralty; appointed Dec. 2, 1853, resigned Cct. 11,1865. The Hon. Joseph Needham, Chief Justice and Judge in Admiralty; appointed Oct. 11, 1865, resigned March 29,1870. British Columbia. (1858). The Hon. Matthew Baillie Begbie, appointed Judge, Sept. 2, 1858. 1866, Nov. 17.—Union of the Colonies under the Name of British Columbia. The Courts of the two former Colonies were not merged till 29th March, 1870, on the resignation of the Chief Justice of Vancouver Island. 1870, March 29.—The Hon. Matthew Baillie Begbie, first "Chief Justice of British Columbia," also Judge in Admiralty -; received Knighthood November 24th, 1874 ; died June 11th, 1894. 1870, March 11.—The Hon. Henry Pering Pellew Crease, first Puisne Judge; received Knighthood January 1st, 1896; retired January 20th, 1896. — <t0^c<A '•[ * For further particulars see the Author's " Chart of the Judges of the Supreme Courts of Vancouver Island and British Columbia," 1899. xxviii TABLE OF THE JUDGES OF THE SUPREME COURTS. 1871, July 20.—Union with Canada. 1872, July 3.—The Hon. John Hamilton Gray, Puisne Judge, died June 5th, .1889. 1880, Nov. 26.—The Hon. John Foster McCreight, Puisne Judge, retired Nov. 17th, 1897. 1880, Nov. 26.—The Hon. Alexander Rogke Robertson, Puisne Judge, died Dec. 1, 1881. 1882, May 23.—The Hon. George Anthony Walkem, Puisne Judge, vLuuX', 1889, Aug. 14.—The Hon. Montague,Willi am Tyrwhitt Drake, Puisne Judge? *^-*-iuL 1895, Feb. 23.—The Hon. Theodore Davie, Chief Justice and Judge in Admiralty, succeeding Sir Matthew Baillie Begbie, died March 7th, 1898. 1896, Oct. 13.—The Hon. Angus John McColl, Puisne Judge, Aug. 23,1898, appointed Chief Justice and Judge in Admiralty, succeeding the Hon. Theodore Davie ; died Jan. 16th, 1902. 1897, Dec. 18.—The Hon. Paulus ^Emilius Irving, Puisne Judge, Aul 1898, Sep. 12.—The Hon. Archer Martin, Puisne Judge. 1902, March 4.—The Hon. Gordon Hunter, Chief Justice, succeeding the Hon. Angus John McColl. 1902, March 4.—The Hon. Archer Martin, Judge in Admiralty, succeeding the Hon, Angus John McColl. COURT AS AT PRESENT CONSTITUTED. The Honourable Gordon Huntek, Chief Justice. " " George Anthony Walkem, Puisne Judge. - eA&Jr^Jk , " Montague William Tyrwhitt Drake, Puisne -<A±jM*\ Judge. " Paulus ^Emilius Irving, Puisne Judge. - <2*oLA-^A- " " ArchbW' Martin, Puisne Judge and Judge in Admiralty. Note.—The appellate court of the Province, known as the Full Court, is composed of the Judges of the Supreme Court, or any three of them, sitting in banc. MARTIN'S MINING CASES. -Re-Entry—Gol Though the intei end of a year, where there is An interest in a i Appeal fr< ' (Richfield, Cariboo, by Begb: The facts sufficiently apj H. P. Walker, for appel Respondents, according apparently not represented )ck Flume & Ditch Co. Ltd. v. Synon.* « Jul; llaim—Lease—Abandonment—Forfeiture—Crown Br(j~ miner in his claim expires, unless renewed, at the Crown, may relieve against the forfeiture in cases led to take advantage of such expiry, bias not been renewed is an abandoned interest. of fre Gold Commissioner (Ball) heard at Sut* ;bie, C.J., on July 3rd, 1867. tnt, Synon. 3 the notes of th r counsel. learnecLjjudge^Jwere Begbie, C.J.:—In this case several points of law were raised, and • it was attempted also to go into the facts. These I am perhaps at liberty to look into, so far as to explain the way in which I" consider that the law applies. Now the first point to fix is, what interest has Synon' to protect ? It turns out that three of the six interests in the California ground claimed to have been purchased by him on 17th May expired on the 8th May, the other three on the 13th May. The interest which a free miner has in a recorded claim is, one year's lease renewable at the end of that and each subsequent year on the terms mentioned ir the gold laws. If he do not renew, he has, at law, nothing in the land after the end of the year. Now if there be (as is generally the case) no person to take advantage of the expiry of right, the defective title to a renewal would probably as against his lessor, the Crown, be made good to him, i.e., he would be relieved against the lapse, perhaps, on proceedings properly framed, on the terms of his making good to the lessor all money payments, &c, as if the statutable provisions had MARTIN'S MINING CASES. [vol. 57. been duly observed; much the same as where in ordinary leases, condi- lth< tions are broken which expose the lessee to a re-entry by the landlord. '■> C'J- But it by no means follows that such relief would be given where the condition was not only followed by a provision expressed or implied for re-entry by the lessor, but by an actual gift over to a third party. And here the private Act of 1866 (The Williams Creek Flume Ordinance) operates as a gift to the Flume Company of all ground | vacant" or I abandoned | at any time up to 1874. This was certainly " vacant or abandoned" ground before the defendant ever purchased at alL What the sheriff sold in October to Weston was the residue of a lease which would expire as to three interests on the 8th May, and as to the other three interests on 13th May; though renewable on the statutable terms by whomsoever should be the owner on those days. When Weston executed the bill of sale to Kirwan on 13th May, the whole leasehold interest, or at all events three interests, had expired, and had not been renewed. This expression is surely only a periphrasis for an " abandoned " interest. Being abandoned it was by Act of Parliament the property of the Flume Company at that time. At all events, the 13th May was wholly past, when on 17th May, Kirwan conveyed to the defendant. What will this repeated conveyance of a zero effect ? What effect can the defendant's registration of 20th May produce? He only registers that interest which Kirwan gave him and Kirwan had nothing to give. Note.—As to interest of free miner and rights against Crown, see next case,, and Peck v. Reginam, post, p. 13; Wells v. Petty, post, p. 147; Cranston v. English Canadian Co., post, p. 394; Peters v. Sampson, post, p. 247; Pope v. Cole, post, p. 257; Gelinas v. Clark, post, p. 428; Manley v. Collom, post, p. 487;. Rammelmeyer v. Curtis, post, p. 401. As to abandonment generally see the next case, and Peck v. Reginam, post, p. 13; Woodbury v. Eudnut, post, p. 31; Granger v. Fotheringham, post, p. 71; Pellent v. Almoure, post, p. 134; Creelman v. Clarke, post, p. 228; Peters v. Sampson, post, p. 247; Dunlop v. Haney, post, p. 369; Cranston v. Eng. Can- Co., supra. CANADIAN ( r Company v. Grouse Creek Flume Co., Ltd. Cessation of mining operations for want of funds is not proof of intention to abandon, even if that question could be raised by strangers to the lease. The act of recording a claim is the act of the party and not of the Crown, so . Ejectment in the Supreme Court of Civil Justice of British Columbia, tried at Barkerville^ Cariboo, before Needham, C.J., of Vancouver Island, by Special Commission, on August 16th to 27th, 1867. Park, for plaintiff. Walker, Walkem, and Rocke Rtiuertson, for defendant. The facts sufficiently appear from the judgment. vull. September 27th, 1867.. "tJeedham, C.J.T.I.:—This is an action of ejectment tried by consent without a jury to determine the title to certain mining'ground situate tfn Grouse Creek in the District of Cariboo. A sum of $3,668.50 has been paid into Court by the parties to abide the judgment and order of this Court. The following are the material facts as proved. The plaintiffs are free miners acting in co-partnership under the style of the Canadian Company. The defendants are a joint stock company, limited, registered and incorporated under the Joint Stock Companies' Act. On the 30th of April, 1864, the Crown, by Peter O'Reilly, of Cariboo, Esquire, acting on behalf- of Her Majesty the Queen, by indenture of lease of that date, in consideration of the rents and covenants therein mentioned, granted and leased to the defendants a tradr of land situate at Grouse Creek, Cariboo, B.C., described therein as commencing from a point at the old trail on the divide at the head of Grouse Creek, thence proceeding down such creek for a distance of four and six-tenths statute miles, and embracing a strip of ground one hundred feet wide, through the entire distance between the said MARTIN'S MINING CASES. [vol. extreme points for the purpose of laying a bed-rock flume therein, 7" and for other the purposes in the said indenture mentioned, together with all and singular the lode and lodes, vein and veins, branch and branches, reef and reefs, of gold, silver and every other metallic mineral within and under the said described premises, and with liberty to follow the dips, angles and spurs thereof respectively, within or under and for 200 feet beyond any part of the said demised premises (except as therein excepted), to hold the said demised premises to the use of the said Grouse Creek Flume Company, Limited, their successors and assigns for the term of ten years from the 1st of May, 1864, rendering the tent therein mentioned; provided that if the said company should fail to pay the said rent, or if default should be made in the observance or performance of all or any part of any of the covenants agreements or stipulations therein contained, of which default the Gold Commissioner of the district for the time being should be sole and uncontrolled judge, then it should be lawful for the said Peter O'Reilly, or his successor ,in office for the time being, by any writing under his or their hand addressed to the said Grouse Creek Flume Company, Limited, their successors and assigns, and affixed to some conspicuous part of the said premises thereby granted, to declare the said demise forfeited, and that after the expiration of 30 days from the day of so affixing such notice, these presents and all rights, privileges and authorities thereby granted and conferred, or intended so to be, should ipso facto cease and be void. . Prior to this grant the said tract of land had been staked out by the defendants, a survey thereof made and a map lodged with the proper authorities in pursuance of the requirements of the Mining Act, and this map contained a datum centre magnetic line running through the property from which it was proposed that the 50 feet on each side should be measured. Under the above indenture of lease the defendants duly entered upon the land and became possessed of the term thereby granted. They commenced the contemplated flume and works, and in doing so expended on. the land from $20,000 to $30,000. The full conditions of the lease were not, however, complied with, and on and prior to the 8th of October, 1866, the said lease had by reason thereof become liable to forfeiture, and the Crown entitled to -enter for conditions broken. Fo adjudication of default, however, or declaration of forfeiture ihad then, or has at any time, been made by the Gold Commissioner in pursuance of the above proviso, nor has any step been taken by or on On the 8th of October, 1866. the nlain+iffs PT,t*™»q 4' *& -T^ EK FLUME CO. )oo, Esquire, acting st part, and the dei i grant of the 30th of the pre thereby r signs all id i Ma id i id i of the 30th day of April, 1864, other than the land, rights, privileges and premises thereinafter retained by and confirmed unto the said company, their successors and assigns, and that freed and cleared, and forever discharged from the provisions and conditions of the said grant or demise, and in consideration of such release and concessions, and in pursuance of such agreements and in consideration of the rents and covenants and conditions and stipulations thereinafter contained, and by the said company their successors and assigns to be respectively paid, observed and performed in lieu of the rents, covenants, conditions and stipulations theretofore respectively imposed' upon the said company under the said grant or lease of the 30th of April, 1864, the said W. R.. Spalding so acting on behalf of Her Majesty as aforesaid did thereby confirm, demise and lease unto the said defendants all that, &c. To hold the said premises thereby confirmed and assured to the use of the said defendants, their successors and assigns for the term of two years, from the 23rd of March,. 1867, rendering the annual rent of $100 quarterly. The indenture contains also a similar proviso as to following the lodes, &c, and as to forfeiture and the mode of adjudication and declaration thereof by the Gold Commissioner as that contained in the deed of the 23rd of April, 1864. The ground so demised includes the ground now claimed by the plaintiffs. The conditions of this deed have not been complied with by the company and the lease is at this moment liable to forfeiture, but no steps have been taken by the Crown to forfeit the lease. The defendants have paid and the MARTIN'S MINING CASES. [™L, Crown has accepted the rent reserved by this demise up to the 29th 1 day of September, 1867. At the time the land was taken possession of and recorded by the plaintiffs, viz: on the 8th of October, 1866, there was no person actually on it on behalf of the defendants. During the whole of the year 1865, the defendants were doing work on the land demised, but from the 5th of September to the 1st of November, 1866, they did none. They ceased to carry on the works from want of funds. But there is no proof of an intention finally to abandon either the works or the land. On the above state of facts it was contended on behalf of the plaintiffs that, as free miners, they were entitled to enter and locate the land under the powers contained in the Mining Act* as vacant and abandoned land, and that they legally effected this by the entry and record of claim on the 8th of October, 1866. But assuming that the steps taken by the plaintiffs formed a sufficient compliance with the Mining Act (which is open to doubt), I am of opinion that the land was not at that time the subject of location. It was neither vacant, nor abandoned, nor waste land of the Crown; but was then under express grant by the Crown to the defendants. I think there was no abandonment nor intention to abandon on the part of the defendants, nor, indeed, could there legally be so by such means and under such circumstances. It was contended that the record of claim on the 8th of October operated as a re-demise by the Crown to the plaintiffs, and that the defendants taking no steps to defeat it worked a legal surrender. But it seems to me that the act of record in tne Gold Commissioner's Court is the act of the party and not the act of the Crown, and could have no such legal operation, nor can any such construction with propriety be put on the conduct of the defendants. 2nd. It was contended by the plaintiffs that the defendants had forfeited their lease by non-compliance with its conditions, and that the plaintiffs, as free miners, were entitled to enter and claim the lands as forfeited. But in my judgment the lease had only become liable to forfeiture, and had not in fact been forfeited; nor could it be forfeited in any way but by the means laid down in the proviso in that behalf contained in the indenture, and these means had not been adopted. None but the Crown could enter on the terms granted, and the Crown took no steps whatever to forfeit the lease; but on the contrary indicated in the most direct way that there never existed any intention to do so (by the deed of the 23rd of March, 1867). at.] CANADIAN COMPANY v. GROUSE CREEK FLUME CO. That deed contains a surrender by the defendants at the request 1867. •of the Crown of a large portion of the land previously granted which September is inconsistent with the supposition of those lands being at that time Needhak vested in the -Crown by forfeiture. Moreover the Crown could at any iime, by law, waive the forfeiture, and the deed of 1867 is in itself :a waiver of the most distinct character. Again the assumption by the plaintiffs that the defendants' lease having become liable to forfeiture, they, as free miners, were entitled to enter cannot be supported in law. The plaintiffs were altogether strangers to the lease, and could have no rights under or over it. The Crown, as lessor, could alone enter for conditions broken; or the Crown could waive the forfeiture •at any time, and this it did by the new grant, and by the release of the covenants, and byjhe acceptance of rent. Neither of the above views therefore can be supported in law. But failing on these grounds the plaintiffs still contend that they ■are entitled to a portion of the land in question, 12 ft. 2 in. in width, as not having been included in the original grant to the defendants. This raises a question of boundary, and depends on the value to be placed on the evidence adduced. Witnesses have been called on both sides, and by consent of the parties L am asked to decide the question of fact without the intervention of a jury. It is not necessary in this judgment to go through the evidence in detail, and I abstain for obvious reasons from remarks on the value to be placed on the testimony of the individual witnesses. The main struggle has turned upon two points, viz. whether a post called Baker's stake was on the east boundary of the defendants' land, and whether a stake called the Heron Sapling was the centre stake from which the defendants were entitled to measure 50 feet on each side. If the Heron Sapling was the true centre stake and the correct datum point of measurement, then it was admitted by the plaintiffs' counsel, and indeed could not be denied, that the true boundary line was that claimed by the defendants, and that they were (with the exception presently mentioned) entitled to the whole of the land including the strip of 12 ft. 2 in. in width. After a full and careful consideration of the evidence I have arrived at the conviction that the defendants are right in their contention, and that the Heron Sapling, or the point where that sapling stood, is the true datum point, and that stake was placed there in 1864 as the centre stake. But then it is contended by the plaintiffs that even measuring from that stake 50 feet on the east side, the defendants' boundary would fall short of the 12 ft. 2 in. by some 2 feet. MARTIN'S MINING CASES- [V°L- But to my mind this is a reliance on the measurement which r- neither the circumstances admit of nor the facts justify. The defendants have always been in possession of this ground as part of their grant. The adjoining owners claim up to the defendants' boundary, and yet have never claimed this, and there seems no reasonable ground for supposing that a strip of 2 feet should be left unappropriated behind the adjoining owners. No such piece has ever been staked out or recorded by the plaintiffs in the Gold Commissioner's Court, nor can I find that the plaintiffs, until this trial,, ever set up such a claim. I cannot but look upon the claim as imaginary, an afterthought. I am of the opinion that the whole of the land belongs to the defendants on the east side up to the line of the Black Hawk and Heron claims, or in other words, that the whole of the 12 ft. 2 in. is included within the defendants' boundary. There will be judgment for defendants accordingly, and they will be entitled to an order in their favour for the money now in court. I have only this to add. I cannot be blind to the fact that much public excitement has existed with regard to this case. Nor can I hope that the judgment which I have now pronounced will be equally agreeable to all. But I do hope and believe that all will acquiesce in the decision of this court. I can only say that it has been arrived at after anxious consideration, and a simple desire to administer justice according to law. I hope and firmly believe that, armed alone with the authority of the law, a child may execute this judgment, and that no one will here be found whose wish is not to uphold and obey the judicial tribunals of his country—tribunals which have always been regarded by Englishmen as the foimtain of justice and the bulwark of their freedom. I desire to express my thanks-to the gentlemen of the Bar for the' able and honest assistance I have received at their hands during a protracted and somewhat difficult inquiry. It does them the highest honour. » Judgment for defendants. Notes.—Those who desire further information regarding this celebrated case are referred to the Governor's proclamation relating thereto in the British Columbia Gazette for Aug. 24, 1867, and to the files of the contemporary press such as the Cariboo Sentinel for Sept. 26, Oct. 3 and 7, 1867, and Mr Justice- Begbie's Note Book, No. 4, at pp. 49, 76, 79-82 and 87,-July, 1867. As to interest of free miner and his rights against Crown, see preceding- case and note thereto. See also generally as to rights of lessee from Crown: Attorney.General of Victoria v. Etterskank, (1875) L. R. 6 P. C. 354 ; Davenport v. The Queen (1877). 3 A. C. 115 ; Smith v. The Queen, (1878) 3 A. C. 614 ; Osborne v. Morgan, 1888). "" -i v. Morgan, lb., 238; Peterson v. The Queen, (1889) 2 Ex. 74 >.n, (1893) 23 S. C. 488. Water Right—Gi ) Mr. Justice Walkem, sittii made bj Nicholso: ield, from an order dng the Bradley- privedofit. ' Irving, for appellants, the Jenny Lind Co. Wilson, for respondents, the Bradley-Nicholson Co. September 13th, 1883. Walkem, J.:—I have first to decide whether I have any jurisdiction in this matter, as Mr. Wilson contends that the appeal should have been made to the Full Court, and not to the Supreme Court, under the Supreme Court Rules, as amended in 1881. These amended rules were before the Court, consisting of the three . senior Judges, on the argument of the Thrasher case, in November, 1881, 1 B. C. pt. 1, 153; (1884) 9 S. C. 527; and their validity, apart from constitutional questions as to the power of the Executive Council to frame them, was then doubted by the Chief Justice, on the ground that the order in council purporting to introduce them seemed insufficient in form for the purpose. The form of the order was, as a general form, obtained from the clerk of the Privy Council, in 1872, but I find that, since then, it .has been abandoned for the clearer form in which their orders now appear, as may be seen by those annually published with the Dominion statutes. In view of this circumstance, and bearing in mind the fact that the rules referred to, when properly put in force, become part 10 MARTIN'S MINING CASES. [™L. 1883. of the statute under which they are promulgated, it follows that the September 13. language of the order in council intended to give them effect, should Walkem, J. be clear and free from doubt. In this latter respect, I am inclined to agree with the Chief Justice, that the order in council m question is too defective to be operative, and that the rules embraced m it are therefore not in force. The appeal therefore has been properly brought before this Court under sec. 14 of the " Mineral Act, 1878." The solution of the main question in dispute depends on a firmly established interpretation given to the mining laws bearing upon it by the Supreme Court, from 1867 onwards. Each of the litigants has, for some years past, owned a hill-claim fronting on the right bank of Williams Creek, the claim of the Bradley-Nicholson Co. being further up-stream than that of the Jenny Lind Co. On the 4th of September, 1877, the Jenny Lind Co. obtained a licence from Mr. Commissioner Ball, under Part'X. of the "Gold Mining Ordinance, 1867," to take 75 inches of the water of the creek, into their ditch at its head, which is above the Bradley-Nicholson claim, as well as their own, and use it for mining their ground. On the 20th of June, 1878—eight months afterwards—the company brought an action of trespass, before the same Commissioner, against the present respondents, for depriving them of the water so granted to them; and an order was made, quoting its language, " that the Bradley-Nicholson Co. be confined to 150 inches of water for the working of their claim," &c. With great respect for the acknowledged ability of the Commissioner, the order is only intelligible on the assumption that he considered that as the Bradley- Nicholson Co. were owners of ground higher up the creek than the Jenny Lind ground, they were entitled to the prior use of the water, under sec. 36 of the Mining Ordinance, which gives a miner "the right to use so much of the water flowing through or past his claim" as may be required to work it. This, as I shall point out hereafter, "was a misconception of the effect of the section, for it does not apply to hill-claims such as those of the parties to this appeal. On March 22nd, 1882, the Jenny Lind Co. applied again, under Part X. of the Ordinance, for a licence to use 150 inches of the water •of the creek for five years. It appears that all the conditions of the mining laws in connection with this application were fully complied with. No protest against the grant of the water having been entered by the Bradley-Nicholson Co., Mr. Commissioner Bowron granted the application on the 20th April, 1882, "subject to existing rights." The Jenny Lind Co. used the 150 inches thereafter, and as the ' Bradley-Nicholson Co. ran short of water in July last, they entered ^a complaint against the Jenny Lind Co. for diverting the 150 inches, «nd asked for an injunction, and that Mr. Commissioner Ball's order :o? •of Jun followi ig order that tl should be Le decision le ord 3d: Mi on the 20th of June, -" It is ordered 1878, by H. M. Ball, C rold Co mmissione r, whc rein it is stated th it the Bradley- is still Nichols amy Li shall be al , which r ad Co.). into eithe ght si "The of tl 150 in iall be leir pr of water to v, respected by 1 to be taken -sent ditches a rork their claim he defendants" iy the Bradley- s they shall see "Richfield, 12th July, 1883." The reason given by Mr. Bowron for making this order is that he •conceived he was bound to uphold Mr. Ball's order, as it had not been appealed from. But Mr. Ball's order was not binding on him; its only effect was to settle the particular act of trespass with which he had to deal. Moreover, the relative positions of the parties were ■changed after the date of Mr. Ball's order, by the grant of the licence to the Jenny Lind Co., in April, 1882. It will be observed that both Commissioners seem either to have ignored the effect of the respective licences granted to the Jenny Lind Co., in September, 1877, and April, 1882, or, probably, to have considered that as they were issued ■" subject to existing rights," the Bradley-Nicholson Co. had " existing rights" under sec. 36, which were superior to those conferred by the licences. This, indeed, is the position now contended for by the respondent's counsel. Dealing with the last licence (for the first one has either been merged in it or abandoned), it is clear that the Jenny Lind Co. took the proper legal steps to obtain it, and that they thereby acquired the right to divert and use 150 inches of the creek water for their own mining purposes for five years. By no other method could they have acquired such a right. The provisions of Part X. of the Ordinance were purposely framed to enable owners of hill-claims, which had no water running down or over their slopes, to acquire the right to use the water of adjacent creeks or lakes. It is admitted that the Bradley-Nicholson Co. have not taken advantage of these provisions. They consequently have no licence to use any Williams Creek water; nor have they, under sec. 36, any " existing right'* whatever in or to that water, beyond the absolutely valueless right to use what " naturally flows past" the base of their hill-claim. It is true, that they now contend that this is the water that they claim; but such is not the case, for what they seek is the use of the water which they intercept, or propose to intercept, and turn into their ditch at a point much higher up the stream than the site of their mine. The water thus intercepted and removed from its channel into the ditch cannot possibly be said to be " water naturally flowing past" the mine. MARTIN'S MINING CASES. Lvol. The contention of the Bradley-Nicholson Co. has therefore, in ' my opinion, wholly failed. The respondent's counsel has objected to.the form of the licence given to the Jenny Lind Co., which is written in the following words, at the foot of their application for water:— 1150 inches of water are hereby granted to the Jenny Lind Co., of Williams Creek, to work their claim, for a term of five years, if so long requisite to work the claim—subject to any existing rights." (Signed) "John Bowron, G. C." " Richfield, 20th April, 1882. He contends that the word "grant to water-privileges, necessarily implii i Mini: conveyed by deed. But this is c use a chattel interest with the required to be under seal. Undi the privilege of mining on was of the privilege as required by written licence to mine, sign familiarly known as a " E for one, two, or three yeai ig Act, as applied ;hey should be given or ie grant of a privilege to :ommon law conveyance Acts, a miner is granted e Crown, and the grant y the Acts is issued in the form of a ned by the Gold Commissioner, and Miner's Licence." The licence may be- A licence is defined by Wharton as " a rer or authority given to another to do some ither written or verbal; when written the grant of permission, a p lawful act. It may be paper containing the authority is called a licence." The Mining Ordinance authorizing the " grant" of a right " to- divert and use the water " of a stream or lake does not require such grant to be in writing, although grants of bed-rock flume and mining privileges must, be in writing. In any event the form of licence given to the Jenny Lind Co. has been in use ever since the Mining Ordinance became law, and under the circumstances is, I think, unobjectionable. The decision of the Gold Commissioner must, therefore, be reversed, and the appellants be declared entitled to the water-privileges mentioned in their licence of April, 1882. The usual injunction will also issue, restraining the defendants, &c, from interfering with these water privileges while the licence lasts, and they must pay the costs of this appeal. Appeal allowed. ights, see Columbia . Yuill, ^p1 PECK v. REGINAM. Peck v. Reginam. ^ Coal—Mineral Ordinan ^is=S=£HHHsE Petitioners held a prosp the Mineral Ordinanc their claim, they' reli " that no objection to Held (1) That the cerb (2) That the certificate dence of compliance ecting licence for coal over 2,500 acres of land under s, 1869, and applied for a Crown grant. In support of ed on a certificate of the Assistant Commissioner of t they had duly posted notices of their application, and the issue of such grant had been substantiated." ficate was not in accordance with the Act. with the statutory conditions, and the presumption arising from the certificate could be rebutted. (3) That the Department could not dispense with the performance of preliminary conditions imposed by the Legislature. (4) That in a proceeding to enforce specific performance by the Crown, unreasonable delay on the part of the petitioners is fatal to the application. (5) On the facts, that the claim had been abandoned. Quaere, whether to entitle prospecting licencees to a Crown grant of coal lands under the Mineral Act, it is not essential that they should have found coal on the land selected by them for purchase? Petition of Right. statem< M. W. T. Drake, Q.C., for the petitioners. Argum. A. E. B. Davie, Q.C. (Attorney-General), and Harrison, for the Crown. Pooley, on behalf of parties claiming to be interested under subsequent legislation. The following statutes, authorities, and cases were cited and referred to during the argument:— The B. C. Mineral Ordinance, 1869; the B. C. Mineral Ordinance Amendment Act, 1873; Fisher v. Tulley (1878), L. R, 3 App. Cas. . 627; Weston v. Collins (1865), 34 L. J. Ch. 354; Austin v. Tawney (1867), L. R. 2 Ch. 147; Brooke v. Garod (1857), 27 L. J. Ch. 226; Ranelagh v. Melton (1864), 34 L. J. Ch. 227; Davenport v. Regina (1877), L. R. 3 App. Cas. 128; O'Brien v. Regina (1880), 4 Can. S. C. R. 575; Davis v. Sheppard (1866), L. R. 1 Ch. 410; Stuart v. London & N. W. R. Co. (1852), 21 L. J. Ch. 450; Milward v. Thanet (1801), cited 5 Ves. 720n; Mills v. Haywood (1877), L. R. 6 Ch. D. 196; B. C. Statutes, 45 Vic. ch. 15, and 46 Vic. ch. 14; Prender- gast v. Turton (1843), L. J. 13 Ch. 269 ; Lindsay Petrohum Co. v. Hurd (1874), L. R. 5 P. C. 239; Alley v. Deschamps (1806), 13 Ves. 225; Walker v. Brown (1868), 14 Gr. 237; Rogers v. Saunders MARTIN'S MINING [v (1839), 33 American Decisions 641; Attorney-General v. Ettershanh (1875), L. R. 6 P. C. 354; Bridges v. Longman (1857), 24 Beav. 27; Fullwood v. Fullwood (1878), L. R. 9 Ch. D. 176; Parkin v Thorold (1852), 16 Beav. 69; Dann v. Spwer (1802), 7 Ves. 234; Thomas v. Regina (1874), L. R. 10 Q. B. 36; Fry on Specific- Performance, 312. edir ader the Marc ■ " Mi . 17th,. 1884. Ordinance,. k to obtain, ition of the- in the said enacts that ) forth i tly denies he Ordin- Geat, J.:—This is a 1869," by which the petitioners, i) from the Crown a grant of 1,000 a due performance of the terms ar Ordinance; and, on compliance v they shall be entitled to such a gra The Attorney-General, on belli the performance of the terms and ance, and the compliance by the petitioners with the requisites, which; would entitle them to claim such grant, and avers an abandonment by the petitioners of their alleged claim. Sitting, therefore, as a Judge in this Court to determine what that law is, and to decide upon the facts in dispute, it will facilitate- arriving at a correct conclusion, briefly to state the requirements of' the Ordinances, the issues raised, and the evidence of the.facts as proved before me. The Mineral Ordinance of 1869, gives the right to any person or company of persons to enter and explore for minerals, including coal, in and under the mineral lands embraced in the Ordinance, and under the conditions therein set forth, and-subject to any other regulations affecting the acquisition and tenure thereof subsequently prescribed by law, to obtain a grant of 1,000 acres of land. Application must be made to the Assistant Commissioner of Lands and Works for the district, within which the mineral lands lie, before entry thereon, for a prospecting licence over such land for any term- not exceeding two years from the date of application. The application to the Assistant Commissioner must contain the- best practicable written description of the plot of land sought—after having located the same—with a proper plan or diagram shewing the position of the boundary posts to be set up, and a description of any other landmarks of a noticeable character. Such application and plans shall be in duplicate, one to be filed in the office of the Assistant Commissioner at the time of its being received by him, and the other forthwith transmitted by him to the Chief Commissioner of Lands and Works, and retained by him for general reference. Certain regulations as to shape and natural boundaries are then- set forth, with the preliminaries required before even the application nave oeen complied witn,. a two (») years' prospectmg licence may be granted, and the applicant shall, on satisfactory proof to the Assistant Commissioner that he has bona fide explored and worked for coal (or other minerals, as the case may be), during the said term of two years, be entitled to an extension of the said term for the second period of one year, and such further time as the Governor shall think fit. Section 11 of the Ordinance then enacts that, when the application is for coal alone, the application may include within the general limits therein defined 500 acres to each individual applicant, or 2,500 to any association or company of not less than ten persons; and that out of the said quantity, the licensees may at or before the expiration of the licence, or any prolongation thereof, select for purchase the portion of mineral land to be included in a Crown grant. Section 12 defines the form of the licence and the powers of the licensee, with the distinct provision that at or before the expiration of such licence, or any prolongation thereof, upon compliance with the terms and conditions in the Ordinance contained, he may claim a Crown grant of such portion of the mineral land included in his- licence as is afterwards in that behalf more' particularly described. By section 13, it is enacted that "the interest of every licensee under this Ordinance shall be deemed to have absolutely ceased and determined on the expiration or other sooner determination of his licence, or any prolongation thereof, unless he shall have, priorto such expiration or determination, made application- for a Crown grant as. therein provided;" and a new prospecting licence over the same location, or any part thereof, may be made to a new applicant. Section 16 limits the quantity of mineral land for coal to any licensee applying for a Crown grant, and fulfilling the conditions afterwards in that behalf more particularly mentioned, to each association or company of ten or more persons to not more than 1,000 acres, selected out of the premises included in such licence. Section 22 then states what the conditions are, to be complied with by the licensee before any Crown grant could issue:— First. He was to leave with the Assistant Commissioner of Lands and Works, and post on a conspicuous part of the premises sought for, and on the Court House of the district, if any (for at least two^ calendar months previous to the record of his application for such Crown grant, and prior to the expiration of the term included in his- licence. or any prolongation thereof), a notice of his intention to apply for such Crown grant, with a diagram of the premises; and" shall for the same space publish such notice in the Government Gazette- and a newspaper published nearest to the- said mine and premises. MARTIN'S MIXING CASES. [V°L- The Assistant Commissioner is to post such notice in his office for two calendar months, and (if no adverse claim is filed), to give a certificate'to the licensee to that effect. On the application of the licensee, and delivery of such certificate, the Chief Commissioner of Lands and Works (on the payment to him by the applicant of such sum as the Chief Commissioner may estimate as the probable cost of survey), shall cause a survey and xplan thereof to be made, and to be endorsed with his approval, designating such land by its number on the official records, with the estimated value of the improvements and labour expended on the said land. By section 23, upon proof satisfactory to the Chief Commissioner of compliance with the foregoing provisions, and payment of the amounts next provided, together with the balance (if any), remaining unpaid of the actual cost of survey, a Crown grant shall be issued by the Chief Commissioner to the licensee applying for the same. The next section (24), designates the amounts. " For coal lands the price shall be as follows: " For any quantity up to and including 1,000 acres, at the rate •of $5 per acre; provided that on proof, to the satisfaction of the Government, that $10,000 has been beneficially expended on any land under prospecting licences for coal, a grant of 1.000 acres of land included in such prospecting licence shall be issued to the company holding such prospecting licence, without payment of the upset price of such land." The 29th section then enacts, that the issue of a Crown grant to any applicant under this Ordinance, save where obtained by fraud or wilful misrepresentation, shall confer an indefeasible title. Section 38 provides that, in any mineral lands not included in any particular district of any Assistant Commissioner of Lands and Works, the Chief Commissioner is to act. And by section 39, the Government, by publication in the Gazette, has power to define the districts for the purpose of the Ordinance. The 43rd section defines the meanings of the terms "Assistant Commissioner," and the word " mine," &c, as used in the Ordinance. By the "Mineral Ordinance Amendment Act, 1873" (No. 3), sec. 4, it is enacted that, coal lands then held under any prospecting licence issued under the provisions of the " Mineral Ordinance, 1869," from and after ninety days have elapsed after the passing of that Act (viz., 21st February, 1873), shall have continuously and bona fide worked until the Crown grant for the said lands be issued; and if such work be not done, the Chief Commissioner of Lands and Works may cancel the prospecting licence including such lands. Such being the provisions of the coal statutes governing the case, it will become necessary, briefly, to state the issues raised as between I.] PECK v. REGINAM. ' the ^petitioners and the Crown, and the fs .rights and privileges granted under this Ordinance, and also the right to claim a Crown grant under the Ordinance, and subject to that is until 26th November, 1874. 2. That they entered on the land in the licence described, and before the 26th April, 1874, had " selected the portion of such land which they desired to purchase under the said licence and Ordinance," having, in the meantime, incurred great expense in prospecting and working said land for coal. 3. That within the prescribed time—at least two months previous to 26th November, 1874—they left with the Assistant Commissioner and posted on a conspicuous part of the aforesaid land, which they had selected, and on the Court house of the district, previous to the application for such Crown grant, a notice of their intention to apply for such Crown grant, with a diagram of the premises, and did cause such notice to be published as required by the Ordinance. 4. That in November, 1873, they received from the said Assistant ■Commissioner a certificate " That the said Thomas Eric Peck, on behalf of himself and ten others, had posted, for 60 days, on a conspicuous part of the pre-empted claim, No. 7, and upon the adjacent land, and upon the Court house of the district, a notice, for 60 days, that he intends to apply for a Crown grant of the land comprised in such claim, and that no objection to the issue of such grant had been substantiated." 5. That the petitioners were ready to pay whatever sum the Chief •Commissioner might lawfully claim as probable cost of survey, and •on the 20th April, 1874, caused the said certificate to be sent to the •Chief Commissioner, accompanied by the following letter:— 20th April, 1874. To the Chief Commissioner of Lands and Works : <• Str,— We have the honor to enclose you a certificate of Thomas L. Fawcett, made in pursuance of the 'Mineral Ordinance, 1869.' certifying that Thos. E. Peck, on behalf of himself and ten others, has complied with the terms of the Act, in respect of Mining Licence No. 7. On behalf of Mr. Peck, we beg to apply for a Crown grant of 1.000 acres of land, and to request from you a note of the amount that you will require in order to pay for survey. We may mention that from $8,000 to 810,000 has been expended on this claim in proving it. "We have, <$rc, (Signed) Drake & Jackson." That they received a reply from Mr. Beaven, the Chief Commissioner of Lands and Works, acknowledging the receipt and informing them that the usual survey fee was $50, and that if they desired MARTIN'S MINING CASES. [vol.. to have the claim surveyed at once, they could appoint a surveyor to do the work at the company's expense, subject to his approval and under instructions from his department; and, further, calling attention to the fact that the notice of intention to apply for a Crown grant had to be given in the Gazette for 60 days, whereas this had only been for one month. That, in consequence, the petitioners caused the said notice to be published in the Gazette, continuously, from 2nd May, 1874, to end of August. 7. That in 1882, the petitioners believing that the time had arrived at which the coal mine they had discovered might be^ worked to advantage, applied to the Chief Commissioner for permission to employ a surveyor to survey the land of which notice of their intention to purchase had been given, and employed men in cutting out roads and doing other prehminary work to open the mine, and had kept them so employed to that time. 8. That to this application to survey the selected land, they received a reply that the Government could in no way recognize their claim, but would treat the same as abandoned. 9. That the petitioners asserted that they never abandoned their claim, but have at all times been in continuous occupation of the- said land except when driven therefrom by Indians, and have at all times had buildings and tools there for the use of their representatives; that they were never notified to complete the purchase or pay the purchase money; that the purchase could not have been completed until the land was surveyed, and that they were at all times ready and willing to do whatever was necessary to complete the purchase. The Attorney-General on behalf of the Crown, takes direct issue- as to all the material facts alleged by the petitioners. That they did not leave with'the Assistant Commissioner—nor post on a conspicuous part of the land which they desired to purchase, nor on the Court house of the district previous to their application—a notice of their intention to apply for a Crown grant, with a diagram of the lands selected, in the manner prescribed by the Ordinance. That they did not, at any time before the expiration of their licence, select the portion of the lands, in the pleadings mentioned, which they desired to purchase; nor did they incur great expenses in and about the working the said land for coal; nor were the notices of their intention to apply for a Crown grant published, as required by the Ordinance; nor did they apply for a Crown grant of any selected 1,000 acres of land. He then alleges that they did not appoint a surveyor, in accordance with the Chief Commissioner's letter of 28th April, 1874; that they neglected taking any steps in support of their claim until September, 1882, when they asked for permission to employ a surveyor in answer to which the Government replied that they must treat the- p PECK v. REGINAM. claim as abandoned by reason of laches, and he denies their assertion 1884. that they never abandoned it. He further describes the location of M?rch 17' the lands on Vancouver Island, and alleges that they have recently Gray, J. increased greatly in value; denies, that since September, 1873, that they have continuously and bona fide worked the said lands; nor have they paid, or offered to pay, the purchase money for the lands. To these allegations the petitioners join issue, and further say— that if they have not since 1873, continuously and bona fide worked the said lands, their licence has never been cancelled; nor, if cancelled, did they receive any notice of the cancellation, or of any intention to cancel it. On behalf of the petitioners, the first witness was Thomas Eric Peck, who stated that he was one of the petitioners and licensees; that the notice was written by Nixon, acting as secretary for the corporation, dated September 12th, 1873. The notice was produced, and is as follows:— In detailing the expenditure on in November, 1872, prior to the he the la ence, 1 Henry Franklin, with a canoe manne dbyl ing on this land, three at one time, it $3 p at the same—they were driven off by the In he verbally complained to the Chief the Indians—nothing official. That and provisions; they were prospec house, and running drifts. That ti ey did the house. That they have since, occasionally, had people on the land. That in 1878, he paid Levi an order for $20, from May, for taking care of the tools. That, in November, 1882, he was last on the land; he took up two men—they wintered there. ' On his cross-examination, he says :^He has no account of his expenditure; examines a memorandum of sums he paid out and collected, which he thinks was done in 1873, perhaps some in 1874. The Euclataw expulsion was in the fall of 1874. The men were next sent up in November, 1882. During that interval no work was done beyond looking after the tools, for which purpose $20 was paid to Levi, MARTIN'S MINING CASES. tVOL- $30 to Roselli, an Indian or half-breed; that he is owing something to an Indian, perhaps $40 for the same purpose. That covers all the money during that interval, looking after tools. That the arrangement for taking care of the tools was made by May with the Indians. That he (Peck) prepared the diagram that was left with Fawcett about the time he got the certificate from Fawcett, m November, 1873. May, one of the licensees, made an arrangement with an Indian to take care of the tools. On his re-examination, he says:—May was.not under pay by the company after he was driven off by the Indians. That the total amount received since 1873 or 1874 has been about $1,112; perhaps a little over $100 was on account of expenditure before 1873, the remainder during the period up to 1882. When cross-examined on this new statement, he said:—" The remaining $1,000, or about that, was spent in November, 1882—not before—and the spring of 1883. These last expenditures were because we thought we would get our title from the Crown, and were on no ■other account whatever. $500 of it was advanced by myself." This witness here disavowed, in the strongest manner, the statement in Messrs. Drake & Jackson's letter of the 20th April, 1874, "that from $8,000 to $10,000 had been expended on this claim in proving it," affirming he never could understand how such a statement was made. The next witness was Solomon Levi, who stated that he was one of the petitioners; that he worked on the claim from November, 1882, to some time in January, 1883; that he was on the land in 1877 or 1878; there was an Indian there—a Euclataw—Pleast by name; ■cashed an order for $20 for him, from May on Peck; went to where they had been drifting for coal, on the Campbell river; saw two drifts, they were full of water; could not say how far t tools were there in 1882. He had paid towards tl Peck, $155. On his cross-examination, he says:—He had b( on along the coast up there, from 1875 to 1882. went to the house was in 1882; fixed it up to live ii ing tools and cooking utensils—2 axes, 1 hatchet, a frying pan, 1 tin plate, 1 tin cup, and some cr tools were covered with bark, and the Indians might have trampled on it; the house was nailed up; the chimney was a hole in the roof and there was a place where a window ought to have been- it was open. Next went to find the old trail from the house to the drift; found it second day; re-blazed it; remained there two months. Lock- hart, and three Indians with him, went down to the drift several times to try to work; looked out for croppings, shovelled avay dirt. States, as one of the promoters, he paid $20 in 1872, $40 in 1873; cashed ey went i q. The e expenses to ilr. n trading off and The first ime he , found so ne min- 1 shovel, 2 picks, I.] PECK v. REGINAM. in 1878, order for $20, and in November and December, 1882, $40— his proportion for expenses since 1882. He is one of the eleven. States that in December, 1883, he paid $25 towards expenses of this lawsuit; that he became a promoter of this company before he was involved, and before his discharge in bankruptcy; that in his list of assets it was put down, but no valuation attached to it—that was in 1875; and he got his discharge in 1876; that when he got the order from the Indian, in 1877 or 1878, he was living at the Indian house on Campbell river. In answer to the Judge, he stated that the. old house and roads may not have been used for six years; he always thought there was something good there, but was glad when not called upon for assessments; kept dark. Thomas L. Fawcett.—Was appointed Government Agent and Land Recorder at Nanaimo, 22nd March, 1873, and subsequently Assistant Commissioner of Lands and Works in July, 1874. In November, 1873, gave the certificate set out in paragraph 4. Has some slight recollection of Willow Point being posted in his office; believed the certificate to be correct; was satisfied of the fact from his routine of business; don't remember who made the proofs; I must have been satisfied; was well acquainted with the requirements of the-law at that time. I put into that certificate everything I had reason to believe they did, and if there was anything required by the Act to be done which is not in the certificate, then I am satisfied they did not do it. I gave the certificate to Mr. Peck. Don't recollect sending a certificate or copy to the Lands and Works; if the Act requires it, I did it. I kept a record, and the record must be up there—that is at Nanaimo. On behalf of the Crown, the first witness was John Dick, who went to Willow Point in April, 1883; saw a house and trail on the premises, the latter well blazed, very fresh, only a few months old; a small log cabin, appearing to him recently built—four or five months. Had • heard Levi's evidence; did not see any trail leading from there to Campbell river; saw neither a ranch or a coal mine about there, or any indication thereof. I was, myself, on account of Indian reports, looking for coal on the Djon river, a tributary of the Campbell; did not see any trace of coal within twelve miles of the course I took. Captain William Raymond Clarke, one of the petitioners, states in his examination that he was interested in the matter in 1872; that he paid his last payment in March, 1883; that he was one of the original licensees; heard nothing of it from 1874 to 1883. Robert Dunsmuir—Is owner of a coal mine; knows Willow Point well. The lands have increased, in value in consequence of the contemplated railway, and are within the railway belt. They are coal Gray, J. 22 MARTIN'S MINING CASES. [vol. 1884. lands above Comox, and I was therefore induced to take up the rail- March 17. wa contract • was aware of the application by Peck and others in 1872 and that for many years afterwards nothing was done. In conse- ouence of information relative thereto, from the Chief Commissioner cords shewing* that Willow Point was not within the District of Nanaimo. That there was a Government Agent at Nanaimo before 1874 but his district was not defined. Also, produced the counterpart of the prospecting licence, dated 25th November, 1872, to continue in force for two years. Attached to the entry, is a counterpart of the certificate signed by Fawcett, set forth in the petition; the form is from the " Land Ordinance, 1870 "-—there is no form attached to the " Mineral Ordinance, 1869." Has searched but not been able to find in the Land Office any duplicate or other record of this transaction. That is the proper office to search. Mr. Harrison called attention to the action of the Legislature in dealing with these lands in 1882 and 1883, citing ch. 15, 1882, passed 21st April, 1882, incorporating the Vancouver Land and Railway Company, commonly called the Clements Bill; by sec. 18, setting apart and reserving for the said company, «on the carrying out of their Act of Incorporation, the very lands referred to in the petition; and also to ch. 14, 1883, passed 12th May, 1883, " Ai l Act relating to the Island Railway, the Graving Dock, and the Ra ilway Lands of the Province," again ceding these lands for rairw ay construction, the incorporators under the Clements Bill having ft iled to comply with the conditions of their Act of Incorporation. Such are the requirements of the local statu tes under which the petitioners claim their right against the Crown; such the allegations of facts set forth in their petition; such the re ply of the Crown to their petition; such are the facts which have bet n established by the failed oj est. No garded what might b Assistan almost every ground on which they alleged th only so, but in their petition they have set forth did not exist—facts of too serious a nature t dental or inadvertent. Laying aside all niin termed technical objections to Mr. Fawcett's ap Commissioner of Lands and Works, at the time'he gave his certificate, and to the non-definition at that time .of the mineral district in which he gave his certificate in November, 1873, believing the parties were entitled to it, it does not mend the matter. Mr. Drake contends in m PECK v. REGINAM. 23 behalf of the petitioners, that the agent or officer of the Government 1884. having given the certificate under the Act, it must be taken as con- March 17- elusive that the conditions required by the Act were fulfilled, and that Gray, j. it is too late now to say that they were not. For the sake of the argument, supposing that position were correct—though clearly not admitting it—the certificate given is not the certificate which the Act requires. It is in the form prescribed by the Lands Ordinance of 1870, regulating the issue of Crown grants to pre-empted lands. No such form is given under the Mineral Ordinance of 1869, and the conditions to be complied with, for* obtaining a mineral licence and a subsequent grant under the last named Ordinance, are different from those under the Land Ordinance. The certificate Fawcett was to give was of compliance with the Mineral Ordinance; but what says Mr. Fawcett himself as to that certificate? "That he believed it to be correct; was satisfied of the facts from his routine of business; don't remember who made the proofs; I put into that certificate" (says he) I everything I had reason to believe they did, and if there was anything required by the Act to be done which is not in the certificate, then I am satisfied they did not do it." On this statement, the certificate shews that the Requirements of sec. 22 of the Mineral Ordinance were not complied with, because they are not set out in the certificate, and Mr. Fawcett says—therefore were not done. Mr. Peck's evidence is conclusive on the same point. Not only does he say no diagrams were with the notices put up, but that he prepared the diagram he left with Fawcett, about the time he got the certificate from Fawcett in November, 1873. How then could the Assistant Commissioner (Fawcett) at that time, give a certificate that it had been posted for at least two calendar months in his office? It is somewhat singular that, though Mr. Fawcett states he kept an official record in his office at Nanaimo of his acts and correspondence, and that on removal from office he left those records there, not the slightest evidence from such records has been produced, or even an allegation made of an effort to search for them. But, says Mr. Drake, it must be taken that as the Crown received this certificate without objection, it must be deemed that the Crown waived the performance of the conditions; and to shew that a statutory right had been thereby acquired, he cited two important cases; The Attorney-General of Victoria v. Ettershank (1875), L. R. 6 P. C. 354; and Bridges v. Longman (1857), 24 Beav. 27, where somewhat similar questions arose, in which the Crown was concerned, as sustaining his views. After a careful examination of these cases, I cannot agree with Mr. Drake's conclusion. On the contrary, I think they are a direct authority against him. In Ettershank's case, the party had performed the preliminary conditions by which the right was to be acquired; had entered into possession; had been recognized by the MARTIN'S MINING CASES. [vol. Crown as possessor, as having acquired his right by performance of the preliminary conditions, but had omitted to do something afterwards, which omission would operate as a forfeiture, and make his lease voidable—not void; the knowledge of which subsequent omission had been brought to the knowledge of the Crown, by the Crown not only acted upon, but positively condoned by the issue of a new grant. This is not a waiver .of a preliminary condition, by which a right is to be obtained, but the waiver of a penalty, by which the right already obtained would be forfeited, and which, after the action of the Crown by the subsequent issue of another grant, it was too late to press. There was, in reality, an affirmation of the right. A forfeiture is simply a penalty, and may be waived. The very term " forfeiture " implies that a right had been acquired, but has been jeopardized by something that was done or omitted to be done after its acquisition. The opinion of the Master of the Rolls, in Bridges v. Longman, is to the same effect. This is the essential distinction between those two cases and the present. In the latter, the preliminary conditions had not been performed; no right had been obtained; there was no Act of the Government admitting its attainment. It is a misuse of the term " waiver " to say it is operative in the present instance. A Government, in the disposal of the public domain, cannot waive the performance of conditions specifically ordered by the Legislature, unless directly authorized by the Legislature so to do. A Government may dispense with the proof of performance to some extent, but that is based on the presumption that the conditions have been complied with. It may accept the certificate of its officer as satisfactory proof (see sec 23) of that presumption, but that is simply prima facie " donee pro- betur in contrarium." When the contrary has been proved, the presumption fails, and the conclusion based on the presumption goes. Without the express sanction of the Legislature, a Government has no power of dispensing with conditions absolutely required by law. Inaction of a Government is not to be construed as an admission. Unless you have performed, or it is assumed you have performed, the conditions, you have acquired no right. Hnder sec. 13, the licence had actually expired; it was not therefore incumbent on the Government to proceed to cancel the licence under the fourth section of the " Mineral Ordinance Amendment Act, 1873 " (as so strongly urged by Mr. Drake), because the lands held by the petitioners had not (supposing the petitioner had found coal lands to work) been continuously and bona fide worked. The expression is " may cancel the prospecting licence,"—not must or shall; it was clearly optional with the Government. It would be a novel principle indeed, that, a party could take advantage of his own wrong, and say to the Government, because I did not do what the law said I should have done, and because you did not at once exercise your power and take advantage of my omis- id i adei obi and must give me 1,000 acres of land; by violating the law, I have | thus acquired a right which I had not before; you did me that favour, not to punish, I have therefore a statutory claim to 1,000 acres of land —not because I did right, but because I did wrong. Such reasoning I will not hold good. The petitioners are here the moving party; the onus is on them to shew they have complied with the law. They are I seeking to drive the Crown. When you take the bull by the horns, you ought to be stronger than the bull. With reference to the equit- pect s tion ( ■ut of the 2,500 acres ov< coal, "the licensees may or any prolongation the lie dei edt tokd ed an ined In the let to the CI ■ other sooner determination of the licence, or any :, unless he shall have prior to such expiration or application for a Crown grant, as herein provided. lissioner of Lands and Works, applying for the these provisions, no selection whatever is made, lisition confined or limited to the lands specified l the petition, or in the evidence is there one word' ■ res ha the I selei the pe MARTIN'S MINING CASES. [TOi» Crown, but he was to receive something, and that amount was to be settled'by the Crown. It was therefore not open to the Crown to say the amount was undetermined. In this case it is directly the contrary. The licensee here is to select out of a given area the particular portion he wants—the onus is on him to choose, ask, and define. The Government is simply to ascertain the correctness of the definition on payment to the Chief Commissioner of the " estimate of the probable cost of surveying such premises, by a survey and plan thereof to be made and endorsed, designating such land by its number on the official records, with the estimated value of the improvements and labour expended on such land." How could the Chief Commissioner make a survey and plan of land, and estimate the value of the improvements and labour expended thereon, if he was not told where it was? It; was surely the business of the petitioners to tell him what they wanted. Equally objectionable and equally fatal, in view of the 13th section and of the whole case, is the great delay—the absolute inaction amounting to a practical and legal abandonment of the object for which the licence was granted. By efflux of time it expired in November, 1874. From November, 1874, to November, 1882—for eight years—not one step is taken by the petitioners towards the object for which the licence was granted. The case of Mills v. Haywood (1877), L. R. 6 Ch. D. 196, shews great delay to be fatal when asking the Court to enforce a specific performance. There, says the learned Lord Justice Cotton, at page 202:—" It is a well established principle, as laid down by Lord Alvanley, in Milward v. The Earl of Thanet, that a party cannot call upon a Court for a specific performance, unless he has shewn himself ready, desirous, prompt, and eager." This rule is specially applicable when the contract is of a somewhat speculative and fluctuating value as the tavern—the subject of the present suit— must necessarily be; and the delay which has occurred from May, 1868, till May, 1873, unless satisfactorily explained, must be fatal to the plaintiffs' title to a decree for specific performance." In that case, the delay was only five years—here it has been eight; and it will hardly be questioned that, during those eight years, the value of the Crown lands in British Columbia have not been of a somewhat speculative and fluctuating value. The allegation of expulsion by the Euclataw Indian, in 1874, sounds like a passage from Fenimore Cooper's "Last of the Mohi- -cans "; and, if the Court can judge from the evidence, may be deemed quite as imaginary. It was, according to that proof, with a Euclataw Indian, the petitioners left their frying-pan and scant tools evidences -of their alleged active mining operations and ownership-^-during the long period of inaction, from the expulsion in 1874 and the revival of their confidence in 1882. Even the Government was not seriously motified by the petitioners of this hostile violation of the rights and option of p Ordinance. This i entitle then be gravely of 1869 wa land. Sec. question s entitle 11 des "coal" or coal at the 1 coal land other m ." It w the c rownha. been nd pa th rti at these es havh) peti- g the 11 0 £ the M tinctly ineral hewn not complied with the conditions which would Ordinance to have that option. Indeed, it may whether any one under the Mineral Ordinance ;o that option, unless coal was found upon the bes, in two sub-divisions, the option as of sral lands; and sec. 24 gives the option as to quantity of 1,000 acres, and the price as for the object of the Legislature to encourage coal mining. Pre-emption lands were under the " Land Ordinance, 1870," and mineral lands under the " Mineral Ordinance, 1869," and it is under this latter Ordinance the petitioners put forward their claim. Successful mining had been the baptism of British Columbia. It brought the Province within the family of known countries, and gave it " a local habitation and a name." The Legislature recognized the ..•importance of this industry, and held out to coal mining inducements which it did not extend to other lands or pursuits, as well as putting a higher value on the land to be operated upon. In this case, the evidence shews that no coal was found within the limits of their licence by the petitioners. However, the point was not raised on the argument, and for the purposes of the judgment it is not necessary now to decide it. I cannot leave this, the legal branch of the case, without acknowledging the very great assistance I have derived from the ability and research displayed by the counsel for the Crown, as well as by Mr. Drake, on.behalf of the petitioners. It was an excellent argument, of immense advantage, to which it was a luxury to listen . For another purpose I must now turn to the second branch of this case—the position of the petitioners on the merits—it being my duty to consider the facts as well as the law, acting both'as Judge and jury. Omitting reference to those parts of the evidence bearing upon the performance of preliminary conditions necessary to obtain the right to petition, under the Mineral Ordinance, for a Crown grant of 1,000 acres, we will turn to a few salient points bearing on the conduct of the petitioners. It will be noticed that in the fifth paragraph the petitioners state that, on the 20th April, 1874,—that is about sixteen months after they had obtained their licence—they caused Fawcett's certificate to be sent to the Chief Commissioner of Lands and Works, MARTIN'S MINING CASES. [vol. accompanied with a letter from Messrs. Drake & Jackson, in which letter they applied for the Crown grant of 1,000 acres of land, and state " that from eight to ten thousand dollars had been expended on this claim in proving it." The significance of this statement is apparent by reference to the 24th section of the " Mineral Ordinance, 1869," where it is enacted: "For coal lands the price shall be as follows: For any quantity up to and including 1,000 acres, at the rate of $5 per acre; provided, that on proof, to the satisfaction of the Government, that $10,000 has been beneficially expended on any land . included in such prospecting licence for coal, a grant of 1,000 acres of the land included in such prospecting licence shall be issued to the company holding such prospecting licence, without payment of the upset price of the land." That little statement was weighed down with $5,000; yet, at the time it was made, not $200 had been expended in the whole matter, even including expenditures prior to obtaining the licence, if we are to believe the petitioners and their evidence. On this point, hear Mr. Peck, in the first place observing that he states he has no account of his expenditures—nothing but a memorandum of sums he paid out and collected, he thinks in 1873, perhaps some in 1874; that the total amount received since 1874 was about $1,112—a little over $100 was on account of expenditure before 1873, the remainder during the period up to 1882. When cross-examined on this point, he says, "the remaining $1,000, or about that, was spent in November, 1882, and the spring of 1883, not before." From his extremely loose statement, we learn that, between 1874 and 1882, $50 were paid and $40 were owing for services in looking; after tools; "that covers all the money during that interval." From his unbusinesslike statement, it is impossible to say what was actually expended in 1872, or, indeed, in 1873; but from the account of employment, it may be safely said, that not $200 had been expended up to the time that letter was written and sent to the Government in April, 1874—certainly not shewn. Yet that letter says that at that time " from $8,000 to $10,000 had been expended in proving the claim." Mr. Peck says he never could understand how such a statement could be made. His oWn petition says, " the petitioner's caused it to be sent." It is not disavowed in the petition which commenced these proceedings in October, 1883. It was not disavowed in the application to the Government for the grant in 1882. Nor is it shown to have been disavowed at any time or place, or on any occasion, until Mr. Peck was examined on oath in this cause on the 29th of January last. Messrs. Drake & Jackson never put that statement in that letter without instructions from their clients, some or one of-them, and by adopting and using it in their petition in this Court in 1883, without disavowal or explanation—it being a matter- peculiarly within their own knowledge—the petitioners must take the- consequences. net sworn as a witness on one of the promoters, and ie of the eleven petitioners. left); found it nailed up; the chimney, a hole in the roof, and a place where a window ought to have been, found some tools, 2 axes, 1 hatchet, 1 shovel, 2 picks, a' frying-pan, 1 tin plate, 1 tin cup, and some broken crockery covered over with bark, on which the Indians '•might have trampled. He fixed it up to live in; remained there two months, working on the claim from November, 1882, to January, 1883. That the old house and roads at that time may not have been used for six years. That he always thought there was something good I Says Mr. Peck: From the fall of 1874 to November, 1882, no work was done there beyond looking after the tools. Mr. Levi has already described how they were looked after. Captain Clarke, one of the petitioners, when called as a witness, stated, with manly straightforwardness, that he was interested in 1872; made his last payment in 1883; that he was one of the original licensees; heard nothing of it from 1874 to 1883. And, being very judiciously not cross-examined by Mr. Drake for the petitioners, stepped out of the witness box as if a mountain load had been lifted from his shoulders. And on this point, and as bearing on this evidence as a fact, one cannot omit to notice in reply in their pleadings to the statement made by the Attorney-General in relation to the abandonment, namely, "that if they had not, since 1873, continuously and bona fide worked the said land, their licence had not been cancelled, or if it had been cancelled they had not received any notice of the cancellation, or of any intention to cancel the said licence." In olden times, that would have been called a " confession and avoidance," and is entirely inconsistent with the affirmative assertion they had made. The question of cancellation has been disposed of. What had occurred in 1882 ? On the 21st April, the Vancouver Land and Railway Company Bill, commonly called the Clements Bill, had passed the Legislature; and in November, 1882, this neglected claim suddenly became of deep importance to the petitioners. The seventh paragraph of the petition says: That the 30 MARTIN'S MINING CASES. [vol. 1884 petitioners, in the year, 1882, "believing that the time had arrived March 'l7. at which the coal mine they had discovered might be worked to advan- GkaTTj. tage, applied to the Chief Commissioner. . ." Is that true? The evidence shews that, so far from a coal mine having been discovered, not one ounce of coal had been found by the petitioners within the limits described in their licence. John Dick, a witness, called, sworn, and examined, who had heard Levi's testimony, stated that, in April, 1883, he went to Willow Point himself searching for coal, on account of the Indian reports, saw the cabin and trails described by Levi, but saw neither a ranch or coal mine about there, or any indication thereof, nor within twelve miles of it. And Mr. Peck, himself, throughout his long examination, has carefully abstained from saying that they found even a sign of coal; yet they petition for this grant, saying that " believing that the time had came when the coal mine they had discovered could be worked to advantage;" and in the prayer of the bill they asked for a grant of the 1,000 acres of land " selected"" by them. The time of their licence expired in November, 1874, and they had not complied with one of the conditions which would entitle them to the statutory grant asked for. It is useless to go further. It was not true that they had spent from $8,000 to $10,000- in proving their claim. It was not true that they had bona fide explored and worked that claim for coal during the term of the prospecting licence, in the spirit and meaning of the Mineral Ordinance, in consideration of which they would have been entitled to ask this grant. It is not true that they had found a coal mine on the premises which they could work to advantage; and it is not true that they had " selected " any portion of the land embraced within the limits they were entitled to prospect over, as stated in their petition and prayer for relief. Who comes into a Court of Equity must do equity. On every principle of law and justice, on every principle of equity and good faith, the petitioners have entirely, utterly, and absolutely failed. Considering the language of the petition, the pecuniary value of ■ the object sought to be obtained, the statement of facts by which they alleged they were entitled to obtain it, and the facts which were proved by the sworn evidence of the petitioners themselves and their witnesses; without one harsh English expression, I may say, I know of nothing so adequately descriptive of the case as an old Monkish couplet of the middle ages:— "Mel in ore, verba lactis, " Fel in corde, fraus in factis." Let the petition be dismissed, with costs against thepetitioners. Petition dismissed with costs. Notk.—As to abandonment, see Williams Creek, dc, Co v Synon ante p. 1. WOODBURY \ Woodbury v. Hudnut. Woodbury v. Meyers. ^ Blasdel v. Hunley. Hammil v. Sproule. (1 B. C. Pt. ii., 39). Mineral Claim—Leave of Absence—Representation—Abandonment—Assessment Work—Close Season—Lay Over—Gold Commissioner —Appeal—Location— "Jumping"—Possession—Title—Damages—Mineral Act, 1882, and Amend- During the close season there is no obligation to represent a claim, the whole of that season being for such purposes expunged from the calendar, and an attempt to locate another claim on the same ground during that season is merely an unauthorized trespass—a "jumping." Unless actual damage be shown, nominal damages ($1), only will be awarded for the trespass. Buildmg a residence on or working a claim is doing of the Mineral Act, 1882, countries it would not be The decision of the Gold Commissioner be interfered with unless for fraud- Where a free miner finds another in possession of his claim so that to insist upon working it might lead to a breach of the peace he is exonerated from the performance of assessment work until the title is determined. In proving title one party cannot set up as against another a righ* to a third which he himself contends he has des a. place manifestly convenie ner-like work on such claii s. 48 and 50, though in old t for the purpose of within the meaning and highly organized" l granting leave of absence will i Absence of 72 hours abandon. If a claim-holder does r ^here one man pretends t< strong evidence that his worthless. i all c svidence of a : properly represei ertheless, if he § irking, and be ii 3 colourable and s Appeals to the full Court from the Gold Commissioner of Kootenay. The statements made before that official were exceedingly diffuse, but the substance is sufficiently stated in the judgment- In Woodbury v. Hudnut the matter in issue was the right to cer tain mining ground, claimed by the plaintiff as the Comfort claim, and relocated by, or rather on behalf of, Hudnut as the Gem claim. The decision of the Gold Commissioner, who apparently assigned no reasons in any of his judgments, was " Judgment for the defendant, with costs, who is established in the ownership of the land in dispute." 32 1884. In Wc odb March 25. same land ;M .Full Court. the claim foi MARTIN'S MINING CASES. [vol. Meyers, damages were claimed for trespass to the lad been employed by Hudnut to stake off and work The decision followed immediately on that of Woodbury v. Hudnut~-{lh.e evidence and arguments being, by agreement, the same in both), and was in these words: "The case is decided against Woodbury, who had the case now called against Meyers - for trespassing on the claim just decided in favour of Hudnut. Judgment, with costs, for Meyers, the defendant, who is established in the ownership of the ground in dispute." Blasdel v. Hunley was an action to try the right to a claim which the plaintiff alleged had been improperly "jumped" by Hunley. The Gold Commissioner's decision was:—" Judgment for defendant, with costs, who is established in the ownership of the ground in dispute." Hammil v. Sproule was a similar action, with judgment in the The hearings before the Gold Commissioner appeared to have extended over six or seven weeks. On 25th March, 1884, the appeals in the several cases now came on to be heard before Begbie, C.J., Crease and Walkem, JJ. The Attorney-General (A. E. B. Davie, Q.C.), for the appellants (plaintiffs). Drake, Q.C., and Wilson, for the respondents (defendants). March 25th, 1884. Begbie, C.J.:—These cases seem to have excited a great deal of interest. But many matters have been mentioned which, in our opinion, are not material for the decision of the questions at issue. It unfortunately happens that the claims now in dispute are situated at a considerable distance from the residence of any Gold Commissioner, and the miners often act upon what they honestly enough construe the gold laws to mean, without, in general, having a copy of those laws to refer to, acting merely upon their general impression of what they suppose the regulations to be. Taking first the two eases of Woodbury v. Hudnut and Woodbury v. Meyers. It appears reasonably clear that on the 5th and 6th of October, 1882, Woodbury was in possession of a claim!, which he called the Comfort. He was there on the ground. It was staked out for him by Hammil and Maxwell by his directions. On the 6th of October, the Gold Commissioner happening to be on the ground, Woodbury obtained from him leave of absence by reason of sickness. This leave of absence extended over the close time. Until the expiration of that time (1st June, 1883), his claim would not be liable to be treated as I-J an abandone 1 claim him as if he continu not really ui lwell. ] and proved, no doub led to reside on it. It was insinuated that he was w If fraudulent simulation of sickness were alleged Fu i would be some way of preventing a miner be obtaining such an unfair indulgence. But the Gold Commissioner is in the first place to decide both on the alleged inability, and on the fraud. This Court could scarcely interfere except as an Appellate Court. And there has been no attempt to induce the Gold Commissioner to cancel the leave of absence given by him, and therefore, of course, no appeal to us from his decision in that respect. But although the point is not for our decision, we have had extraneous statements concerning Woodbury pressed on our attention, and we may say that, judging from these statements, the Gold Commissioner was perfectly justified in granting such leave of absence. Then during Woodbury's permitted absence, and during close time, on the 25th Maj^, 1883, part of the ground of the Comfort claim is located as the Gem claim, in the name and on behalf of the defendant Hudnut, by Meyers his agent. This is the whole case. It is, in our opinion, a merely unauthorized trespass on the Comfort claim. I said, this was the whole case, but in fact Hudnut was not on the 25th May a free miner at all; his certificate is not dated until the 4th June, and he was on the 25th May incapable of acquiring or holding any right in a claim. It was indeed alleged before the Gold Commissioner that one Sproule, the defendant in another of the cases now appealed before us, had previously, on the 17th May, handed $5 to one Sharpe, who was to give it to the first man he could trust to take it to the Gold Commissioner for a free miner's licence for Hudnut. It would be absurd to treat this as sufficient to antedate the certificate of Hudnut. The Gold Commissioner's decision now under review is in favour of the defendant Hudnut, " who is established in the ownership of the ground in dispute," i.e., the Gem claim, about two-thirds of the area of the Comfort. We think this decision must be reversed. The next case, in which Woodbury is plaintiff, is against Meyers, " for trespassing on the claim just decided in favour of Hudnut." In this case the Gold Commissioner also found against the plaintiff and in favour of Meyers. This decision would be a matter of course, after the previous decision in Woodbury v. Hudnut, declaring the ground to belong to Hudnut. Woodbury could claim no damages against Meyers for trespassing on Hudnut's ground. But then the judgment of the Gold Commissioner goes on to say that Meyers " is established in the ownership of the ground in dispute," i.e., we must presume the Gem. It is not exactly clear what is meant by establishing two different persons in the ownership of the same ground; Meyers could not clearly claim the Gem for himself; he had located it and recorded it, he says, 34 MARTIN'S MINING CASES. [vol- 1884. in the name and for the account of Hudnut. We think he certainly, March 25. by doing SOj committed a trespass on the 25th May, and continued to Poll Coubt. trespass subsequently, by refusing to leave the ground, as we are of BBGBnTc.J. opinion, contrary to the Gold Commissioner, that the land was Wood- ''"' bury's, and not Hudnut's. We think judgment ought to have been given for the plaintiff, Woodbury, in this case of Woodbury v. Meyers. But no evidence is given of the amount of any damages sustained by the plaintiff by reason of this trespass. We can give no more than he has proved; i.e., we must reverse the decision of the Gold Commissioner, but we can only give nominal damages—$1. The next case, Blasdel v. Hunley, is governed by almost exactly the same considerations. The claim called the Kootenay Chief was located for the plaintiff by Hammil on the 5th October. Between that day and the 20th October, work ,was done on Blasdel's behalf equivalent to 26 days' work; sometimes by a single man, sometimes by five men at a time. This work was for the most part applied in building a log house on or adjacent to the claim, such as four or five men could live in. It was said that the work to be done on a claim (which is to be worked continuously) must be minerlike work—that building a house is not miner like work at all; and, moreover, that the house in question was not on the Kootenay Chief ground at all, though not far off. Now, of course, in Cornwall or Northumberland, building a house is not miner's work—it is not mining at all. In old and highly organized countries the landlord mines with hired labour, and puts up houses for his men. Yet the cost of those houses is just as much part of his mining capital invested in the mines, and the houses are just as useful for working the mines as pumps and furnaces with which the water is removed or the ore roasted. And among the hills of British Columbia the first thing a miner does (when he intends continuous working) is to secure, or to build if necessary, a cabin in a . spot convenient as possible to his claim. It is not necessary that it should be actually on his ground. There may be overwhelming advantages in wood and water a quarter of a mile off. It is quite sufficient if it be in a place manifestly convenient for the workers. The building of a cabin on first settling down to the serious working of a mineral claim is therefore just as much miner's work in reference to the holding and working of the claim as is afterwards, the sinking of a shaft or the driving a tunnel, or building a pump. And without saying that fifty men working on a claim for one day are in all cases to be deemed equivalent to fifty days' continuous work by the claim-holder or his- representative; yet in house building, five men in one day can often do far more work than one man in five days. And the house was significantly identified during these proceedings, and there is no ir& sinuation that it was inadequate, or merely make-believe. On the evening of the 28th October, Blasdel's work ceases, and the defendant l sha Early in November the Kootenay River—the best available line of retreat—was closed by ice. The defendant himself does not appear to have remained there for the three days after Blasdel's agents had retreated- But on the 25th May he located in his own name the whole of the ground, substantially of the Kootenay Chief, by the title of the Lucy Long. Now, we by no means wish to intimate that no claims can be taken up during the close season. But as far as " jumping " is concerned, the whole of the close season is as if it were expunged from the calendar, so that the 1st June becomes the same as the 1st November, for the purpose of testing the propriety of Hunley's " jump " on the plaintiff's ground; and between the 31st October and the 1st June, no act or neglect of possession or working is to affect the right to a claim one way or the other. On the 1st June, the plaintiff going on the ground, finds the defendant already in possession. In our opinion, that exonerates him from the necessity of working until the title is determined. In the first place, if the plaintiff insisted on working, that might obviously lead to a breach of the peace; in the next place, no man can be expected to expend labour and capital on ground which may be taken from him. Hunley, in our opinion, was not justified in thus locating the Lucy Long, and in this case also we think the appellant must succeed. There are some allusions to the fact that substantially the same ground as that now known as the Kootenay Chief had been previously located by one Gay Reeder, and known as the Mogul. But it is not clearly shown that it ever was so located legally; nor that it was occupied on the 5th October, when Blasdel's location was made, nor for months previously; nor is it even alleged that Hunley had acquired any right or interest, mediately or immediately from Beeder; which could only be conveyed by written documents. In fact, his location of the claim was just as much in derogation of Reeder's supposed rights, as against Blasdel's. Hunley cannot set up a right (Reeder's) which he at the same time claims to have destroyed. And as between Blasdel and Hunley, the latter is a mere trespasser and Blasdel's title as against Hunley is perfect and unimpeachable. There remains the case of Hammil v. Sproule. Sproule has been endeavouring to do too much, I think, and has very nearly succeeded r. in doing -nothing. He alleged (not on oath) to Hammil that he was - in October, 1882, representing Gay Reeder in the Mogul claim. But he was in fact, as he states on oath in this case, representing his own claim—the Blue Bell. Where one man pretends to represent the two claimholders, it is strong evidence that his representation in .both cases is colourable, and so worthless. A miner might as well attempt^ to sleep in two bunks. But we give him the benefit of the doubt, i.e., we take it that he was representing his own claim; and on the whole we do not find enough in the evidence to justify our interfering with the Gold Commissioner's decision in this case. Sproule had taken up this claim long before—it was recorded to him on the 31st July, 1882. With or without reasonable cause, he seems from time to time to have left it, sometimes for several days at a time, during August and September, always returning, however, until the 25th October, when he left in his boat for the season—leaving a notice on his claim that he had left from ill-health, and to get provisions. He had written for leave of absence on the 14th October, but of course could get no answer by the 25th. On 25th October, Hammil, who says " he does not know " that he was watching from the opposite shore for Sproule's departure, but who certainly does not appear to have been doing anything else, and who equally does appear to have made himself in some way or other very well acquainted with Sproule's movements, crossed over to the east side, to the Blue Bell claim, saw and well understood Sproule's notices; but took upon himself to disregard them; to decide in his own favour that Sproule's former absences had operated as an abandonment of his claim; that he had never legally re-possessed it, and that his then absence was without excuse. And Hammil accordingly took up the ground for his own benefit, Silver Queen. Now/ it is as well to point absence mentioned in the gold laws, though i sufficient evidence of intention to abandon a claim in any case, yet it is by no means conclusive evidence in all cases. The miner may return, and find his claim intact, and recommence working. In such a case he would be probably held to be in " as of his old estate " without being required to re-locate and re-record. His absence may have been sanctioned by the previous permission of the Gold Commissioner • or it may be for sickness, fire, or flood, or such other necessary or reasonable cause as that the Gold Commissioner may subsequently approve of it. Nothing of all this seems to have occurred to Mr. Hammil. He decides all these matters in his own favour and jumps the claim. In our opinion this is not shown to be justifiable. Then his occupation six days before the expiry of the close season goes for nothing in his favour, unless he had already secured some title to g the nam e to the at the 72 hours' e and gen erally is I.] WOODBURY v.-HUDNUT. which that occupation might be referred. On the contrary, for the if reasons already stated, this tortious occupation excuses all irregularity, l m if any, in Sproule's continuous working on and after the end of the Fdli' close season. The Gold Commissioner's decision in favour of Sproule Begb will therefore in this case be adhered to. It is impossible not to be struck with the fact prominently put forward in the printed documents before us, that the whole of this wearisome, expensive, and mischievous litigation has been caused and fostered by the unauthorized intrusion of a stranger, who seems to have succeeded, before the Gold Commissioner, in raising such a cloud of irrelevant statement and controversies, as to entirely obscure that officer's view of the few material facts in each case. This interference, it is scarcely necessary to state, is entirely illegal. The gentleman in question may have conceived himself to be impelled by the highest motives. So, undoubtedly, was that estimable gentleman Mr. Newdegate, in assisting Clarke to prosecute his suit against Bradlaugh; but Lord Coleridge's judgment in Bradlaugh v. Newdegate (1883), L. R. 11 Q. B. D. p. 15, clearly points out the illegality of such officious interference, and Mr. Newdegate was compelled to recoup Mr. Bradlaugh all the expenses thereby occasioned. We must now make the orders which the Gold Commissioner ought to have made, i.e., in three cases, judgment for the plaintiffs, the appellants, with costs, and the unsuccessful respondents must further repay to the successful appellants all such sums as they have (as we think, erroneously), received from them as and for the costs in the Court below. In Sproule's case we do not interfere. Costs of appeal to follow the result in all cases. Note.—As to close season see the next case; and Victor v. Butler, post, p. 438. As to " jumping," see Granger v. Fotheringham, post, p. 71; Atkins v. Coy, post, p. 88; Victor v. Butler, post, p. 438. As to abandonment, see Williams Creek, &c, Co. v. Synon, ante, p. 1. As to invalidity of re-location on existing valid location, see Manley v. Collom, post, p. 487; and see in note thereto list of cases on defects in location. As to breach of the peace, see Waterhouse v. Liftchild, post, 153. MARTIN'S MINING CASES. 1889. January If Full Cour' Min al i Wilson v. We t, 188It, and Amendments. Under the Mineral Act, 1884, and Amendments of 1880-7, a Gold Commissioner has no power to declare a close season or lay over mineral claims so as to supersede the necessity of compliance with the statutory requirements relating to the representation of such claims by annual assessment work or expenditure of $100. Powers of Gold Commissioner to declare a close season and lay over mineeal claims considered. Decision of Walkem, J., affirmed. Per Walkem, J.:—The interest of a principal in a mineral claim may be transferred by his agent by bill of sale though executed by the agent in hiB own Appeal from Walkem, J., sitting as a County Judge in the County Court of Kamloops, Mining Jurisdiction. Summons for ejectment of defendant from the plaintiff's alleged mineral claim the Mammoth, re-located by the defendant as the Domingo, and for damages for trespass. Tried, and the action dismissed, at Kamloops, 23rd October, 1888. Spinks, for plaintiff. Eberts, for defendant. The facts, not disputed, fully appear in the judgment handed down later, on 5th December, 1888, by Walkem, J.:—This action was brought by the plaintiff as alleged owner of the Mammoth mineral claim, in Nicola district, to eject the defendant from it, and to recover $250 damages for alleged trespass upon it. The defence was that the ground in question having been abandoned by non-representation, the defendant located and recorded it, on the 26th of June, 1888, as the Domingo claim; and had since occupied it, and made and recorded improvements upon it, to the value of $100, in compliance with the mineral laws. Objection was also taken to the plaintiff's documentary title to half of the claim, as will appear hereafter. At the close of the trial, which took place on the 23rd of October, last, I dismissed the action with costs, for reasons then given- but at counsel's request, promised to give a written judgment, as the case involved a mining question of some importance, which was alleged to I.] WILSON v. WHITTEN. 3c be much misunderstood both by mineral claim holders and the gold 1889. Commissioners. " January 18. According to the evidence, Robert Scott first located the Mammoth Full~Court. claim and recorded it at Kamloops, on the 17th of December, 1886. On the 20th of July, 1887, he sold an undivided half interest in it to Mr. G. B. Wright, by bill of sale, which was duly recorded. On the 20th of September, 1887, Mr. Wright appointed Mr. Josiah Fletcher his agent, in respect of his purchase, by a letter in the following terms: Victoria, Sept. 20, 1887. Josiah Fletcher, Esq., You are hereby authorized to act as my agent in regard to the Mammoth claim, situated in Nicola Valley, and to work the same or dispose of it, as you snail see fit, and this letter is intended as a power of attorney for that purpose, I hereby agreeing to ratify anything which you may do in this respect. Yours, &c, (Sig.) G.B.Wright. On the 24th of October, 1887, Mr. Scott gave Mr. Fletcher a similar authority, his letter being, in fact, a copy of the above, with the necessary changes in date and signature. Mr. Fletcher thus became agent for the whole claim; and, assuming that the letters gave him power to sell, he sold it to the plaintiff, j , and signed in manner below, the following document, purporting to be below. a bill of sale of it, which was submitted to him by the plaintiff: alkem, j. Victoria, 29th Dec, 1887. 1 of four hundred dollars, the receipt of e this day sold to Wm. Wilson all our a the Mammoth claim situate between Stump Lake and (Sgd.) Jos. Fletcher, for R. Scott. Witness, (Sgd.) J. E. Wilson, (Sgd.) Jos. Fletcher. Recorded Dec. 31st, 1887. Wm. Dodd, Mining Recorder. At the trial it was contended for the defence that although the first signature, "Jos. Fletcher, for R. Scott," might, possibly pass Scott's interest in the claim to the plaintiff, the second signature, I Jos. Fletcher," was insufficient to pass Mr. Wright's, as no agency for the latter appeared on the face of the document and, that as there was, consequently, no valid written transfer of Mr. Wright's, interest, the plaintiff was barred from enforcing his alleged title to it by reason of sec. 32 of the "Mineral Act, 1884;" which enacts that—"No transfer of any mineral claim, or other claim, or of any interest therein, shall be enforceable, unless the same, or some memorandum thereof, shall be in writing signed by the transferrer, or by his agent authorized in writing, and registered with the Gold Commissioner or Mining Recorder." MARTIN'S MINING CASES. [vol. In the body of the document, no mention is made of the owners of the claim; and, as signed, it obviously means, in its literal sense, ■• that " We, Josiah Fletcher, for R. Scott, and Josiah Fletcher, for self, have this day sold to Wm. Wilson all our right, title and interest in the Mammoth claim." The second signature, admittedly bound Mr. Fletcher; but it was argued that it did not bind Mr. Wright also. I, however, admitted Mr. Wright's letter to Mr. Fletcher, although objected to as explanatory evidence, to show that it did; and that the contract was, in regard to Mr. Wright's interest, his contract, by virtue of the authority given by him to Mr. Fletcher to make it. In Higgins v. Senior (1841), 8 M. & W. 834, such evidence was held to be clearly admissible, on the ground that it did not contradict the written agreement, or relieve the persons who signed it from liability, but showed that another person, viz., the principal, on whose behalf the agreement was made, was also liable upon it, by reason of the act of the agent being, in law, the act of the principal. The general rule is, that written contracts executed by agents should show the agency on their face, so as to make them the contracts of the principals; but, as stated in Story on Agency, "the liability of the principal depends upon the act done, and not merely upon the form in which it is executed. If the agent is clothed with the proper authority, his acts bind the principal, though executed in his own ' name, the only difference is, that, when the agent contracts in his own name, he adds his own responsibility to that of the principal who has employed him." (Story Ag. sees. 147, 270). This doctrine has been the law in England for many years, (see the notes to Thomson v. Davenport, (1829), 2 Smith's L. C. 368, 9 B. & C. 78.) In view of these authorities, and the evidence, the objection taken to the plaintiff's documentary title cannot prevail. The main objection of the defendant's counsel was that the plaintiff had forfeited any title he may have had to the disputed ground, by neglecting to represent it according to law. The law referred to is' contained in sec. 8 of the " Mineral Amendment Act, 1886," as amended in 1887, by 50 Vic. ch. 22. I shall quote the section presently. The facts proved at the trial were that the Mammoth claim was originally recorded as a mineral claim, in the Yale district, on the 17th of December, 1886. No question, I may say, turns upon this record. ' On the 10th of December, 1887, the claim was re-recorded—the plaintiff becoming its purchaser in the same month. After this re-record, the claim was left wholly unrepresented by the plaintiff. The defendant, consequently, located it as vacant ground, about six months and a half after the re-record, viz., on the 26th of June, 1888, and recorded it for himself as the Domingo claim. L] WILSON v. WHITTEN. He continued to occupy it thereafter, and on the 23rd of August procured and recorded a certificate of improvements upon it, in accord-, ance with sec. 8, above mentioned. On behalf of the plaintiff, it was shown that, by a notice inserted in the B. C. Gazette, in January, 1888, page 42, all mineral and other mining claims, in the Yale district, had been laid over by Mr. Vernon, as Gold Commissioner, for a period of five months—extending from Jan. 18th to June 15th, 1888. It was admitted at the trial, and, indeed, clearly shown, that according to the literal construction of sec. 8, the plaintiff had for-' feited his ground by neglecting to comply with any of its conditions; but it was contended, on his behalf, that the " close season," so appointed by Mr. Vernon, had relieved him from any obligation to do so literally, and had practically given him five months longer, or eleven months in all within which to fulfil them. The question, therefore is, had the close season that legal effect? Section 8 of the Mineral Amendment Act, 1886, as amended in 1887, is as follows: " Section 72 of the Mineral Act, 1884, is hereby repealed, and instead thereof the following is enacted: " Any free miner having duly recorded and located a mineral claim, shall be entitled to hold the same for the period of one year from the recording of the same, provided— (a) That within the first six months from s expended on the claim itself, money or labor to the ; (6) Shall have satisfied the Gold Commissioner expenditure, and, (c) Obtained from him and recorded within 8 of such expenditure. If the certificate shall not be so obtained and deemed vacant and abandoned; and in like manne the holder of the mineral claim shall be entitled t< from the re-recording of the same, if (a) he shall expend within the first six months from such re-recording money or labour on the claim to the amount or value of $100. (6) to the satisfaction of the Gold Commissioner, and (c) shall have obtained and recorded within such six months a certificate of such expenditure." I have divided the section into paragraphs a, b, c, to more clearly mark its requirements. The first observation to make is, that the section, and the Act of which it forms part, place mineral claims, which mean mineral lodes or veins, on a distinct legal basis of their own. The Act, in fact, withdraws them from the operation of the rules embodied in the " Mineral Act, 1884," with respect to alluvial mines and to their continuous representation, and provides that upon a mineral claim being recorded, it may be held for one year upon improvements to the value of $100 being made upon it and recorded " within the first six months." The old system of holding mineral claims, as permitted by sec. 72 of the ch recording he shall have nount or value of $100, and Dr Mining Recorder of such ch six months a certificate ecorded, the claim shall be as to each succeeding year hold the same for one year 42 MARTIN'S MINING CASES. [vol. 1889. " Mineral Act, 1884," enabled a miner to hold his claim for a year, January is. provided he gpent $200 upon it, and recorded that expenditure within Full Court, the year. He had thus, practically, a year's option to decide whether he would spend that sum on the claim or abandon it. This led to the mineral lands of the country being, to a mischievous extent, " locked- up," as it were, without any attempt to develop them. The system was therefore condemned and abolished by the local legislature, and replaced by one set forth in sec. 8, which, at the outset,- enacts the repeal of sec. 72. While the remedial object of sec. 8 will thus be obvious, it will be equally obvious that the mischief, so remedied, would be revived in a worse form, if the plaintiff's contention were well founded, for, in that event he would only have to spend $100 in eleven months, as against the $200 formerly required, by sec. 72, to be spent within twelve months. Again, if the plaintiff were • allowed the eleven months for his improvements, he could not record them within the time prescribed by sec. 8; for iF is almost needless to point out that improvements made -Judgment after the lapse " the first six months " could not possibly be certified below, to and recorded within such " six months," as the section requires. ■ The legislature has clearly indicated that the time limit of "the first six months" should not be exceeded; for it has emphasized its- views in that respect, by specifically repeating that limit, for instance on the 3rd, 7th, 12th and 15th lines of the section. No person, with or without the aid of a Gold Commissioner, can make the words "the first six months" mean "the last six months," or the words " six months " mean seven months or eleven months. Yet this secondary meaning is what has been gravely contended for. Grammatically speaking the section is not as well constructed, especially in the last part of it, as might have been the case; but its intention plainly is that mineral claims, whether recorded in the first, or re-recorded in any subsequent year, should be placed on the same legal footing as to annual improvements, and as to forfeiture for default in making them. Even if this were not so, every mineral claim, which is not legally held under sec. 8, is open to preemption by any free miner,' by virtue of sec. 22, of the " Mineral Act, 1884," " as land," to quote the section, " not for the time being lawfully occupied, &c." But resort to this extraneous section is unnecessary, for sec. 8 ■ contains all that is required to enable the holder of a mineral claim to clearly understand what his rights and responsibilities are, and how those rights may be acquired and lost. The value of the improvements, the period within which they shall be made and recorded, and finally, the penalty for failure to so make and record.them are so •expressed, as to leave no room for doubt; and " If the language of a statute admits of no doubt or secondary meaning, it is simply to be obeyed" Max. on Stats, p. 49. P WILSON v. WHITTEN. With" respect to the Gold Commissioner's authority to establish a " close season," or which is the same thing, to grant a general or ' special leave of absence to mineral claim owners, it is to be observed, * that that authority can only be exercised subject to the provisions of the mineral laws under which that officer is appointed, and which he is bound to obey, and to see obeyed. He has judicial as well as ministerial functions, and in granting a leave of absence he acts ministerially. If he errs judicially, his decision stands, unless corrected in a Court of Appeal; and if, in acting ministerially, he should do so in excess of his authority, his act, for that reason, becomes a mere nullity. It is almost superfluous to say, for it is a matter of common sense, as well as of law, that he has no power judicially, much less ministerially, to violate or break any-one of the provisions of sec. 8. Such a power, if he had it,would place him in a position paramount to that of legislation; for by merely inserting a notice, for instance, in the Gazette, of a six months' close season, he could so neutralize the conditions of sec. 8 as to render them completely inoperative. It is no answer to say that no Gold Commissioner would have done so, for I find on p. 43 of the number of the Gazette that was put in evidence, a notice by Mr. Dewdney as Gold Commissioner, proclaiming a close season in the same district, of seven months, extending from the 15th of November, 1887, to the 15th of June, 1888. As the earliest notice , of a close season in the district, and as the notice under which the miners probably acted, effect should be given to it for what it was worth. It certainly would protect alluvial claims; but in respect of mineral claims, which it specifically mentions, it is, in relation to sec. ■8, more objectionable, but as inefficacious, in a legal sense, as Mr. Vernon's notice. Why the latter was given, in view of Mr. Dewdney's notice, is not apparent. No claim was made on plaintiffs behalf under Mr. Dewdney's notice—probably because the utter fallacy of the contention advanced for him would be made manifest. If the plaintiff had the right to claim, as he has done, any benefit from Mr. Vernon's notice, he possessed the same right with respect to Mr. Dewdney's. His case, however, in effect, is that by reason of Mr. Vernon's notice, he, impliedly, had his permission to disregard the declarations of the legislature, as contained in sec. 8, and to practically repeal the time limit of six months fixed by that body, and substitute for it another of •eleven months. A leave of absence, whether to an individual- miner, or to the miners of a district, is, as the term implies, purely permissive. Hence in the present case it rested with the plaintiff to avail himself of it or not as he pleased. The absence was in no case compulsory. As he -ohose to take advantage of the general leave given, he alone is responsible for the result. season is c inferred by sec. 5 of s follow s: ' ' The Gold Commis- for sue hp ;riod and reasons, as Eurther Act bv " the word \ claim' ec. 100 of the same o repres ent bis claim during the ng over claims in lieu of sees. i the date < s re-record, in every succeed- a shall be bound to represent MARTIN'S MINING CASES. The authority to establish a ' the " Mineral Act, 1884," whicl • sioner may lay over any or all c he may think proper." By the interpretation clause may include a mineral claim;" Act " No free miner shall be bo close season." In passing the Mineral Amendment Acts of 1886 and 1887, the legislature must be presumed to have had the above provisions in view. Their barren legal effect, however, when considered in relation to sec. 8, may be best shown by illustration. Supposing that instead of vesting the power of layi in a Gold Commissioner, the legislature of 1884 had, 5 and 100, enacted the following as sec. 5: "Every mineral claim shall, notwithstanding any law to the contrary, be deemed to be, and is hereby, laid over for six n: record, and for a similar period fn ing year; and no free miner hdldin it during such close season of six montns." Such an enactment would, it will be conceded, have fully covered or embraced-the question under consideration. It would, however, as being clearly repugnant to sec. 8, have been inoperative, on the ' principle stated in Maxwell on Statutes p. 46, that " When two passages of an Act are so repugnant as to be mutually destructive, the earlier passage gives way to the later which is taken, as in a will, to speak the latest intention." Hence, the earlier enactments of the " Mineral Act of 1.884," which I have quoted, must yield to the later mineral enactments of 1886 and 1887, or, in other words, to the provisions of sec. 8. The " close season " established by Mr. Vernon had not, consequently, the legal effect claimed for it in the present ease by the plaintiff's counsel. As the plaintiff neglected to comply with any of the conditions of sec. 8, his claim became, by virtue of that section, vacant and abandoned, on and after the 10th of June, 1888, viz., on and after the expiration of six months from the date of its re-record, on the 10th of December, 1887. His title to the ground having thus become forfeited his action must be dismissed with costs. I might observe that the plaintiff's laches in connection with his alleged rights deserve some notice. Instead of taking immediate steps to recover his ground, if he considered he had any right to it, he allowed the defendant to occupy it and proceed to obtain and record .a certificate-of improvements upon it, which he did, on the 23rd of August last. A further delay of a month occurred before the present proceedings were instituted. WILSON v. WHITTEN. This undue delay has not, however, influenced my decision in any 188 ,y, as that is based upon the legal reasons I have already given. Jan!! Full Corn The plaintiff appealed, and the appeal was argued on 16th January, 1889, before Begbie, C.J., Chease and McCheight, JJ. Wilson, for appellant. Eberts, for respondent. Cur. adv. vult. January 18th, 1889. Begbie, C.J.:—The few facts necessary, for our consideration are as follows: On the 17th December, 1886, Scott recorded the ground in question as the Mammoth claim; and on the 5th March, 1887, recorded his certificate of having performed the statutory work. On the 1st November, 1887, a close season was declared by a Gold Commissioner up to 15th June, 1888; but it was doubtful whether this was properly done. On the 10th December, 1888, Scott rerecorded his claim; and on the 29th December, 1887, he sold out to the plaintiff by an instrument recorded on the 31st December, 1887. On the 18th January, 1888-, Forbes Vernon, Esq., Chief Commissioner, declared that the close season would continue till the 15th June, 1888. Neither the plaintiff nor Scott ever did any work on the claim since the 5th March, 1887. On the 26th June the defendant recorded the Mammoth ground for himself, treating it as vacant and abandoned by the plaintiff. The whole of the statutory provisions applicable to the case are contained in the code of 1884 as altered and amended by the Statutes of 1886 and 1887. The question is as stated by the learned Judge in the Court below (viz.), what effect the proclamation of the close season or general laying over has upon the reckoning of the period of six months, within which work to the value of $100 on a mineral claim, must be entered, ■certified and recorded under sec. 8 of the Statute, 1886. For the purpose of this case we take "laying over" to mean the grant by the Gold Commissioner to a claim holder of leave of absence from his claim, whether personal or by representation, coupled generally with exemption from any statutory penalties, forfeitures or losses to which the claim holder would be exposed by reason merely of his absence. But this exemption may be taken away either partially or wholly by express limitation, whether such limitation be imposed by the Gold Commissioner himself, or by any statute. The circumstances under which a Gold Commissioner may lay over claims are either denned by statute, or ascertained by the custom of many years. By custom the Gold Commissioner lays over claims in 46 MARTIN'S MINING CASES. [vol. 1889. cases of sickness, or scarcity of provisions, or where there is either January 18. such a scarcity or such an over-abundance of water, want of machm- Fdll Court, ery, &c, as that the claim cannot with any reason or utility be worked BBGBnTcJ at the time—the Gold Commissioner judging of the necessity, and ' ' ' of its probable duration. The Gold Commissioner also by custom possesses a power of partial laying over (i.e.), not only for a limited time,.but by allowing claims held in common to be represented by fewer workers than the whole number of co-owners. In all such eases he exercises a discretion as to time, numbers, and other conditions which will not be lightly interfered with. To these cases the statutes have added the case of new discoveries (1884, sec. 5), and of miners assisting the exploration of neighbouring claims (1886, sec. 11). In addition to these particular powers the Gold Commissioner has a power which he always exercises at the approach of winter of declaring a " close season " whether in any particular mining camp, or in his whole district (1884, sec. 2), of which he announces beforehand the commencement and the termination. But as to this last, there is a statutory fetter on the effect of such a general laying over by sec. 42 of 1884, which enacts that no claim located after, or less than 14 days before, the commencement of the close season, is to enjoy the advantages of the general " laying over," unless certain extra work be performed upon it: of the sufficiency of which the Gold Commissioner was to judge. This clause in 1884 evidently applied to mineral claims as well as to other descriptions (of claims), and if that clause had still been in force, probably the present litigation would not have arisen; for this claim, recorded and re-recorded during the close sea- ■ son Would have derived no benefit from the general laying over. But in 1886 sec. 5 repealed sec. 42, of 1884, as to mineral claims, and then sec. 8 of the same year makes a -new provision, more thoroughly to prevent as to this class of claims what miners appear to strive after as individuals, but to reprobate as a body (viz.), the holding a claim without working it. Sec. 42 and sec. 72 of 1884, which might under certain circumstances have given rise to embarrassing contradictions, being thus both set aside in 1886, this new provision is made to prevent the last mentioned practice, by enacting (sec. 8), that as to mineral claims the holder must within 3 months from his record (increased in 1887 to 6 months), perform $100 worth of work to the satisfaction of the Gold Commissioner; and obtain, and record a certificate to that effect, otherwise his claim was to be deemed vacant and abandoned: and "in like manner" a similar certificate was to be obtained and recorded within 6 months after every re-record. We think that this means that a re-recorded claim is to be deemed" vacant and abandoned under similar circumstances to those which would involve the vacating and abandonment after the original record. The plaintiff's claim, recorded on the 17th December, 1886 was re- M WILSON v. WHITTEN. recorded by the original holder on the 10th December, 1887. The 6 months from the re-record would therefore expire on the 10th June, 1888, or, at the latest, on the 17th June, 1888, if we take the re-record 3 to enure as from the 17th December, though actually requested and ' paid for on the 10th December—and it is admitted that no work whatever was done on the claim in that interval. But the plaintiff contends that the 6 months are to be reckoned, not from the 10th or 17th December, the actual or virtual time of the re-record, but from the 15th June, the termination of the close season, the whole of which, he contends, the. claim holder may pass in a state of permitted idleness, without incurring any forfeiture thereby: relying especially upon sec. 100, which provides that " during the close season no free miner shall be bound to work his claim." The defendant on the other hand insisted that the Gold Commissioner possessed since the Statute of 1886 no power of paying over these mineral claims. But we think otherwise. The power is expressly recognized in sec. 11 of the Statute of 1886, which, indeed, extends to a case not previously recognized. The Statutes of 1884 and 1886 are to be read, so far as possible, as one statute; and the general power is certainly given in the earlier statute to lay over " any or all" claims: which may certainly include . mineral claims: and in fact these claims are expressly mentioned in sec. 5 as being entitled to this as an indulgence in the case of a new discovery. Nor has there been one passage pointed out in any statute, nor have we found any passage expressly stating that mineral claims when laid over are to derive less advantage than other descriptions of claims from that act of the Gold Commissioner. But the defendant argues that sec. 72 as amended by sec. 8 of 1886, the effect of which is already set out, does deprive (a claim holder of), or at least very greatly modify, these advantages: enacting in the simplest and clearest words that, unless the holder of a mineral claim, within, the first 6 months from his record, or any re-record, expend on his claim, money or labour, to the satisfaction of the Gold Commissioner, to the amount of $100; and also within that period obtain and record a certificate to- that effect, "the claim shall be deemed vacant and abandoned." It is clear that if this declaration of forfeiture is to override everything else in the statutes about the working or non-working of mineral claims, it will operate very hardly in some cases where evidently the- legislature intended to confer peculiar advantage: for instance, where a miner discovers a new mineral lode, sec. 5 of 1884, or where there- are several mineral claims in contiguity on one lode, and the owners of all are willing to concentrate their energies upon one only, in order to effect a more rapid and thorough exploration of the lode (sec. 11 of 1886). If in these cases the meritorious parties take advantage of the leave of absence thus accorded to them as a privilege they would* on their return, find that their claims were declared vacant and aban- MARTIN'S MINING [v doned under sec. 8 (1886). But these two cases in which it is manifest that the laying over would entirely defeat the benevolent inten- . tion of the statute, do not arise here. Should they arise at any time the Court will endeavour to deal with them. In the present case the ' question is whether there is such a manifest incongruity as to prevent the literal application of the new sec. 72 (sec. 8 of 1886). The appellant relied on the words used by this Court in the Kootenay mining cases (1884), 1 B. C. Ft. 2, 39 (ante, p. 31). There the plaintiff (and appellant), Blasdel had been at the close of the working season in lawful and undisputed possession of his claim. The close season had been proclaimed from the 1st November to the 1st June, following. On the 1st June the plaintiff returned to work on his claim—but he found that the defendant (respondent) Hunley had on the 25th May (during the close season) recorded practically the whole ground for himself, under a new name. The Court said . (p. 42), " Now, we by no means wish to intimate that no claims can be taken up during the close season. But as far as jumping is concerned, the whole of the close season is as it were expunged from the calendar: so that the 1st June becomes the same as the 1st November, for the purpose of testing the propriety of Hunley's jump on the plaintiff's ground; and between the 31st October and the 1st June no act or neglect of possession or working is to affect the claim one way or the other;" and the plaintiff's lawful possession was not allowed to be prejudiced by the defendant's intrusion during the close season, which Justified and protected the plaintiff's absence till the 1st June. We see no reason to doubt the accuracy of that view. But does it assist the present plaintiff? There, Blasdel had on the 25th May, when Hunley jumped his claim, fully complied with all the requirements of the law entitling him to continue in possession. But in the present case, the plaintiff had on the 25th June, 1888, when the defendant staked out the ground, entirely failed to comply with the provisions in sec. 8 of 1886. There was time for him, had he been so minded, to perform $100 worth of work before the 17th June, or even before the 10th June, on whichever day his 6 months expired. Ten days' work would probably have sufficed;' for $10 or $12 per day are -easily expended upon a partially opened mineral lode. It is not perhaps quite regular to look at any evidence or facts not stated by the learned Judge. But it appears that the Gold Commissioner had given and recorded a certificate of sufficient work done during the first year dated 5th March, 1887; which must, therefore, have been wholly commenced and performed during the close season of that year. And as intimated in our judgment in Blasdel's case, there is nothing to prevent a miner lawfully working on his claim during the close season; There is therefore nothing in that judgment which can support the plaintiff's contention. But then we were told a clear exception was made and permission of idleness given by sec. 100 of the Statute of 1.884, which expressly declares that " During the close season no free miner shall be bound to work his claim:" a provision which is expressly ex- P tended in mineral claims by sec. 104. In citing detached words of a statute, as in citing detached words of the judgment just referred to, there is great danger of being misled unless we consider the subject matter which is being dealt with, and also the context before and after the detached words. Section 100 is in that division of the statute which deals solely with mining partnerships (sees. 95-104), and it means that as between the partners, and so far as partnership duty is concerned, no partner shall be compellable to work. But the immediately following words considerably limit this permitted inactivity, (viz.), "Provided, however, that any mining company shall have the right to work their claim if two-thirds or more of the full interests so decide, and in such event all the partners shall as in ordinary cases be responsible for the expenses of such working," i.e., shall work or pay a representative. This clause therefore, rightly understood, really declares that a partner in a claim need not work during the close season, unless two-thirds of the partnership decide otherwise—i.e., that in some cases a miner must work (or represent) his claim, notwithstanding the close season. But in truth it does not either one way or the other concern claims held in severalty. There is therefore no judicial decision or dictum nor any enactment that we discover which prevents the application of sec. 8 of 1886. That section peremptorily directs that the claim is to be deemed vacant and abandoned unless $100 worth of work is executed, certified, and recorded within the first 6 months after every re-record of the interest in the claim itself. Why is that provision to be denied operation ? There seems no reason why the plaintiff should not, between January and June, 1888, perform similar work to that performed by his predecessor between January and March, 1887. Vis major— the act of God—would perhaps, if proved, excuse a forfeiture—but it is difficult to conceive of a vis major enduring continuously for 6 months; nor is anything of the sort now alleged, much less proved. I see no ground for the appeal: and my judgment is for the respondent. Crease, J.:—[To the same effect.] McCkeight, J.:—The question seems to be " has the Gold Commissioner any general power of laying over mineral claims so as to supersede the necessity of obedience to the specific requirements of sec. 8 of the Mineral Act of 1886, as to the annual expenditure of $100 in money or labour on the claim ?" MARTIN'S MINING CASES. [vol. In order to determine this, we should according to the well known 1 rule inquire into the state of the law at the time the section was passed, r. with a view, to ascertain its meaning. j. Now there is no general unqualified power in the Act of 1884 of laying over mineral claims, for sec. 5 of that Act, which was urged to the contrary by Mr. Wilson, must be taken as materially qualified by sec. 42, which makes it a condition precedent to such laying over " that so much work shall have been bona fide expended On the claim by the holder as' shall, in the opinion of the Gold Commissioner, fairly entitle him to have such claim laid over" (and see sub-sec. 43 and 44), and sec. 72 as to the annual expenditure of $200, which, as well as sees. 42, 43 and 44, is repealed by the Act of 1886, pointed in the same direction, such having been the former law. The Act of 1886 certainly confers no such general power, and sec. 8 thereof, by its stringent and even minute provisions, seems to be quite inconsistent with its existence. We certainly have no right to read into see. 8 a sort of dispensing power to enable him, the Gold Commissioner, at his discretion, to treat its provisions as practically void, or, at least, subject to qualification. Again, sec. 62 of Act of 1884 as amended by sec. 6 of the Act of 1886 must now be read as omitting the provision "that every mineral claim shall, as in the case of ordinary mining claims be fully and separately represented, and not colourably worked." This alteration no doubt was made because the expenditure in money or labour to the extent of $100, as in sec. 8 of the Act of 1886, was to be thenceforth treated as a substitute for that representation; but this is inconsistent with the argument that the Gold Commissioner has power to dispense with the substitute of labour or money. Both Acts are, of course, to be read together as being in pari materia as Lord Campbell points out in Waterlow v. Dobson (1857),. 27 L. J. Q. B. 55. Section 8 of the Act of 1886 is now the governing section with reference to the duties of the holder of a mineral claim, and the " cardinal rule that the Court should be guided more by the words of the clause dealing specifically with the matter than by any general inference to be collected from the whole,"—per Mr. Justice Willes— Roberts v. Bury Commissioners (1869), L. B. 4 C. P. 760 and 761, must be attended to if we wish to ascertain the present state of the law. The several provisions of the Act of 1886 point to the same conclusion as to the want of the power in the Gold Commissioner now contended for by the appellant. For instance the Act of 1887 extends the period of three months mentioned in sec. 8 of the Act of 1886 to six months, an alteration scarcely required if the Gold Commissioner mero motu, practically- could have done the same thing. I.] WILSON v. WHITTEN. 51 Again sea 11 of the Act of 1886 enabling holders of claims on the 1889. same lode to unite so as to prospect one of such claims would not have Jamiary 18- • been necessary if the Gold Commissioner had the powers contended Full Court. for by the appellant. McCr^ot.j. Mr. Wilson urged that sec. 100 of the Act of 1884—" During the close season no miner shall be bound to work his claim "—was material and almost decisive in favour of the appellant, but examination shews this is only one of a group of clauses dealing with mining partnerships generally, and, I think, especially legislates on the relations of partners inter se—'and we find this provision in sec; 100 may accordingly be superseded at the election of two-thirds of the partners (see the remainder of sec. 100). Some of these views were not discussed in argument, accordingly something, possibly, may have been overlooked, but this is the conclusion which I have come to, and I think the appeal must be dismissed with costs. Appeal dis —See preceding case, and Victor v. Butler, posi ed with costs. >W&: U IN IW -GASES A convevance by the Province of British Columbia to the Dominion of Canada of "public lands," being in substance an assignment of its right to appropriate the territorial revenues arising therefrom, does not imply any- transfer of its interest in revenues arising from the prerogative rights of the Crown. - The precious metals in, upon, and under such lands are not incidents of the land but belong to the Crown, and under sec. 109 of the British North America Act, 1867, beneficially to the Province, and an intention to transfer them must be expressed or necessarily implied. Decision of the Supreme Court of Canada reversed. Appeal by the Attorney-General of British Columbia from a judgment of the Supreme Court of Canada (Dec. 13, 1887), confirming the judgment of a Judge of the Exchequer Court of Canada upon a case stated under "The Supreme and Exchequer Court Act," and British Columbia Act, 45 Vict. c. 2. The case stated was as follows:—" The Attorney-General of Canada alleges, and the Attorney-General of British Columbia denies, that the precious metals in, upon, and under the public lands mentioned in sec. 2 of the Columbian Act, 47 Vict. c. 14, are vested in the Crown as represented by the Government of Canada, and not as represented by the Government of British Columbia." The way in which the controversy arose is stated in the judgments of their lordships. The report of the case in the Supreme Court will be found in (1887) 14 S. C. E. 345. The Supreme Court decided by three Judges out of five in favour of the respondent. Eitchie, C. J., held that the principle applicable to the case of grants of land from the Crown to a subject was not applicable to the present case, which was not the ease of a grant or conveyance at all, but of a statutory transfer to the Dominion by the Province of British Columbia of- the right of that Province to the public lands in question, the title to the lands remaining throughout in the Crown. He held that the expression " public lands " was sufficient to pass the interest in question. He also relied upon the wording of a British Columbia minute of the 10th of February, 1883, as shewing how the transactions in question were understood by the Provincial Govern- J. (Taschereau, J., concurring), agreed with the Chief relied upon the fact that nearly the whole of the belt value i or agricultural or oth in the ^^^31 the su Acts ei •face owner by the M disposs ess him upon payment water Precioi from the mountain sti nsowne r as against >h Colun Lbia, which )f the lat ter, and to d to app opriate the ulJdusor j and of no value. Fookniee, J., held that the transfer under which the lands in question passed to the Dominion was in effect a contract between the Queen, as chief of the Executive Government of the Province, and the Queen, as chief of the Executive Government of the Dominion, whom for this purpose he held to be in effect different legal persons, and that to this contract the principles enumerated in the Earl of Northumberland's Case (1568), 1 Plowd. 310, applied. He considered that the words " public lands " in the British Columbia Act, 47 Vict. ch. 14, did not transfer the right to the precious metals on or under such lands, that in sec. 109 of the British North America Act, 1867, the words " mines and minerals " are specified in addition to lands, and he drew a distinction in this respect between these words in the 109th section of that Act, and the words "public lands," in the 91st section of the same Act, which latter words he held were used in a sense exclusive of mines and minerals. He was also of opinion that the legislative control over the lands in question would pass to the Dominion. B Henry, J., based his judgment upon a previous decision of his own, in a case of The Queen v. Farwell, 14 Sup. Ct. (Canada) 392, ih 1886, in which he decided that the title to the lands in question was not vested in the Queen. The appeal was argued on Nov. 22nd and 23rd, 1888. Svr Horace Davey, Q.C., Jeune, Q.C., and Clay, for the appellant, contended that this decision was erroneous. As to the prerogative Tight of the Crown to the precious metals found in mines reference was made to In re Earl of Northumberland's Mines (1568), 1 Plowd. 310; and to Woolley v. Attorney-General of Victoria (1877), 2 App. Cas. 163. It is a rule of law, settled by those authorities, that this prerogative right will not pass under a grant of land by the Crown unless by apt and precise words the intention of the Crown that it ■fehtfiild pass is expressed. By the British North America Act, 1867, sec. 109 and sec. 10 of the order in council (May 16th, 1871), by ii^Mchi'the Province of British Columbia was admitted into union MARTIN'S MINING CASES. [vol. with the Dominion of Canada, that prerogative right remained vested in the Crown on behalf of the Province. Eeferenee was made to British Columbian Acts, 43 Vic. No. 11, and 47 Vic. ch. 14. No transfer of prerogative right was effected thereby, nor by the grant in question made by the Province to the Dominion Government. That grant was in reality a "grant of land to the Canadian Pacific Railway Company to aid in the construction of the railway. The lands in reference to which this question has arisen have not ceased to be part of the Province and subject to provincial legislation. Mining for gold and silver in these lands is regulated by the Provincial Gold Mining Ordinance, 1867, sees. 4 and 15, and by the Mineral Act, 1884. Under those Acts miners must be licensed by certificate of the provincial authorities. See also the Land Act, 1875, sees. 80 and 81, and Land Act, 1884, sees. 64 and 65, which reserve to such miners the right to enter on lands alienated by the Crown and search therein for precious metals. This is inconsistent with an intention to transfer to the Dominion the prerogative rights of the Crown to precious metals found in provincial territory. The claim of the Dominion is in violation of British North America Act, 1867, sec. 109: see Attorney-General of Ontario v. Mercer (1883), 8 App. Cas. 767. Rigby, Q.C., Sedgewick, Q.C. (Canada) and Gore, for the respondent, contended that the principle established by the cases in Plowden's Eeports, and 2 App. Cas., did not apply. This is now the case of a grant of land from the Crown to a subject. No question is involved of a grant from the Crown, nor any question as between the Crown and a subject. The title to the belt of territory, in question remained in the Crown after the cession by the Province to the Dominion, just the same as before the cession. The cession was made by the Queen as represented by the Province to the Queen as represented by the Dominion. Under these circumstances the expression " lands " prima facie includes the prerogative right of the Crown to the precious metals upon and under the soil of such property. Such a right is an ordinary incident to the title to the soil on the part of the Crown. " Public lands " in sec. 92 of British North America Act, 1867, do not exclude mines and minerals upon such lands. If mines and minerals were excluded therefrom the legislative control over the sale and management thereof in the Province would not belong to the Province under sec. 92, but would be vested in the Dominion -under sec. 91. This would be contrary to the case on both sides, as shown by the. whole course of Provincial and Dominion legislation since 1867. " Public lands," in sec. 92, are equivalent to the several descriptions of landed property specified in sec. 109, that is, include the precious metals. The same expression has the same meaning when used in art. 11 of the Terms of Union, and in sec. 2 of British Columbian Act, 47 Vic. cap. 14. Consequently the right to the precious metals in question I.] ATTY.-GEN. OF BRITISH COLUMBIA v. ATTY.-GEN. OF CANADA. passed to the Dominion Government, and is no longer vested in the Province. Sir Horace Davey, Q.C, replied. April 13th, 1889. The judgment of their lordships was delivered by Lord Watson:—-The question involved in. this appeal is one of • considerable interest to the parties, but it will be found to lie within a very narrow compass, when the facts, as to which there is no dispute, are explained. By an order in council, dated the 16th of May, 1871, Her Majesty, in pursuance of the enactments of sec. 146 of the British North America Act, 1867, was pleased to ordain that the Province of British Columbia should, from the 29th day of July following, be admitted into and form part of the Dominion of Canada, subject to the provisions of that Act, and to certain articles of union which had been duly sanctioned by the parliaments of Canada, and by the legislature of British Columbia. The eleventh of the. articles of union is in these terms: " 11. The Government of the Dominion undertake to secure the commencement simultaneously, within two years from the date of the union, of the construction of a railway from the Pacific towards the Rocky Mountains, and from such point as may be selected east of the Rocky Mountains towards the Pacific, to connect the seaboard of British Columbia with the railway system of Canada; and further, to secure the completion of such railway within ten years from the date of the union: " And the Government of British Columbia agree to convey to the Dominion Government, in trust, to be appropriated in such manner as the Dominion may deem advisable in furtherance of the construction of the said railway, a similar extent of public lands along the line of railway throughout its entire length in British Columbia not to exceed, however, twenty (20) miles on each side of said line, as may be appropriated for the same purpose by the Dominion Government from the public lands in the North-West Territories and the Province of Manitoba. Provided, that the quantity of land which may be held under pre-emption right, or by Crown grant, within the limits of the tract of land in British Columbia to be so conveyed to the Dominion Government shall be made good to the Dominion from contiguous public lands- and, provided further, that until the commencement within two years, as aforesaid, from the date of the union, of the construction of the said railway the Government of British Columbia shall not sell or alienate any further portions of the public lands of British Columbia in any other way than under right of pre-emption, requiring actual residence of the pre-emptor on the land claimed by him. In consideration of the land so to be conveyed in aid of the construction of the said railway, the Dominion Government agree to pay to British Columbia, from the date of the union, the sum of $100,000 per annum, in half-yearly payments in advance." After the union, owing to engineering and other difficulties, there was considerable delay in constructing the line of railway through British Columbia. Various differences arose between the two governments, and these were ultimately settled, in the year 1883, by a provisional agreement, which was subsequently ratified by the respective legislatures of Canada and the Province. Part of the agreement had MARTIN'S MINING CASES. [vol. reference to the 11th article of Union, which it modified to the following extent. The Government of British Columbia agreed to convey to the Government of the Dominion, as therein provided, the public lands along the railway, wherever it might be finally located, to ,Na width of twenty miles on either side of the line, and, in addition, to convey to the Dominion Government three and a half millions of acres of land in the Peace Eiver District, in one rectangular block, east of the Rocky Mountains, and joining the North-West. Territory of Canada. On the other hand, the Dominion Government undertook, with all convenient speed, to offer for sale the lands within the railway belt, on liberal terms, to actual settlers; and also to give to persons who had squatted on these lands a prior right of purchasing the lands improved, at the rates charged to-settlers generally. In accordance with this agreement, the lands forming the railway belt were granted to the Dominion Government, in terms of the 11th Article of Union, by an Act of the Legislature of British Columbia, 47 Vict. ch. 14, sec. 2. In 1884, a controversy arose between the Dominion and the Provincial Government in regard to the gold, which had then been found to exist in considerable quantities within the forty-mile belt. With the view of judicially ascertaining which of them was entitled to it, a special case was adjusted, commendable for its brevity, which simply states the issue to be, whether the precious metals in, upon, and under the lands within the forty-mile belt are vested in the Crown, as represented by the Government of Canada, or as represented by the Government of British Columbia ? The case was first presented to Fournier, J., in the Exchequer Court of Canada, who, without hearing parties on the merits, gave a formal judgment in favour of the Dominion. On appeal, his judgment was, after a full hearing, affirmed by a majority of the Supreme Court of Canada, consisting of Sir William Ritchie, C.J., with Taschereau and Gwynne, JJ., the dissentient members of the Court being Fournier and Henry, JJ. It was not disputed, in the arguments addressed to this Board, that the question raised in the special case must be decided according to the principles of the law of England, which, " so far as not from local circumstances inapplicable," was extended to all parts of the colony of British Columbia by the English Law Ordinance, 1867. Whether the precious metals are or are not to be held as included in the grant to the Dominion Government, must depend upon the meaning to be attributed to the words " public lands " in the 11th Article of Union. The Act 47 Vict. ch. 14, sec. 2, which was passed in fulfilment of the obligation imposed upon the Province by that article and the agreement of 1883, defines the area of the lands, but it throws no additional light upon the nature and extent of the interest which was intended to pass to the Dominion. The obligation is to " convey " the L] ATTY.-GEN. OF BRITISH COLUMBIA v. ATTY.-GEN. OF CANADA. 5' lands, and the Act purports to " grant" them, neither expression being 18n9:„ strictly appropriate, though sufficiently intelligible for all practical ' — purposes. The title to the public lands of British Columbia has all c^,cil along been, and still is, vested in the Crown; but the right to admin- :— ister and to dispose of these lands to settlers, together with all royal D ATS0 and territorial revenues arising therefrom, had been transferred to the Province, before its admission into the federal union. Leaving the precious metals out of view for the present, it seems clear that the only " conveyance " contemplated was a transfer to the Dominion of the provincial right to manage and settle the lands, and to appropriate their revenues. It was neither intended that the lands should be taken out of the Province, nor that the Dominion Government should oceupy the position of a freeholder within the Province. The object of ".he Dominion Government was to recoup the cost of constructing the railway by selling the land to settlers. Whenever land is so disposed of. the interest of the Dominion comes to an end. The land then ceases to be public land, and reverts to the same position as if it had been settled by the Provincial Government in the ordinary course of its administration. That was apparently the consideration which led +0 the insertion, in the agreement of 1883, of the condition that the- Government of Canada should offer the land for sale, on liberal terms, with all convenient speed. According to the law of England, gold and silver mines, until they have been aptly severed from the title of the Crown, and vested in a subject, are not regarded as partes soli, or as incidents of the land in which they are found. Not only so, but the right of the Crown to land, and the baser metals which it contains, stands upon a different title- from that to which its right to the precious metals must be ascribed. In the Mines' Case (1568), 1 Plowd. 336, 336a., all the justices and barons agreed that, in the case of the baser metals, no prerogative is given to the Crown; whereas " all mines of gold and silver within the realm, whether they be in the lands of the Queen or of subjects, belong to the Queenby prerogative,, with liberty to dig and carry away the ■ ores thereof, and with other such incidents thereto as are necessary to- be used for the getting of the ore." In- British Columbia the right to public lands, and the right to precious metals in all provincial lands, whether public or private, still rest upon titles as distinct as if the- Crown had never parted with its beneficial interests;: and the Crown assigned these beneficial interests to the Government of the Province, in order that they would have been applicable if they had remained in the possession of the Crown. Although the Provincial Government has now the disposal of all revenues derived from prerogative rights- connected with land or minerals in British Columbia, these revenues differ in legal quality from the ordinary territorial revenues of the- Crown. It therefore appears to their Lordships that a conveyance by- MARTIN'S MINING CASES. [VOL. the Province of "public lands," which is, in substance, an assignment, of its right to appropriate the territorial revenues arising from such lands, does not imply any transfer of its interest in revenues arising from the prerogative rights of the Crown. >N The grounds upon which the majority of the learned Judges of the Supreme Court decided in favour of the Dominion are briefly and- forcibly stated in the judgment delivered by Sir William Ritchie, C.J. 'They were of opinion that the rule of construction which excepts the precious metals from a conveyance of land by the Crown to a subject has no application to the provisions of the 11th Article of Union, which they regarded as a statutory compact between two constitutional governments. The learned Chief Justice said: "This was a statutory arrangement between the Government of the Dominion and the Government of British Columbia, in settlement of a constitutional question between the two Governments, or rather giving effect to and carrying out the constitutional compact under which British Columbia became part and parcel of the Dominion of Canada, and, as a part of that arrangement, the Government of British Columbia relinquished to the Dominion of Canada, as represented by the Governor-General, all right to certain public lands belonging to the Crown, or to the Province of British Columbia, as represented by the Lieutenant- Governor." If the 11th Article of Union had been an independent treaty between the two Governments, which obviously contemplated the cession by the Province of all its interests in the land forming the railway belt royal as well as territorial, to the Dominion Government, the conclusion of the Court below would have been inevitable. But their Lordships are unable to regard its provisions in that light. The 11th Article does not appear to them to constitute a separate and independent compact. It is part of a general statutory arrangement, of which the leading enactment is, that, on its admission to the Federal Union, British Columbia shall retain all the rights and interests assigned to it by the provisions of the British North America Act, 1867, which govern the distribution of provincial property and revenues between the Province and the Dominion; the 11th Article being nothing more than an exception from these provisions. The article in question does not profess to deal with jura r-egiaj it merely -embodies the terms of a commercial transaction, by which the one government undertook to make a railway, and the other to give a subsidy, by assigning part of its territorial revenues. Their Lordships do not think it admits of doubt, and it was not disputed at the bar, that sec. 109 of the British North. America Act. must now be read as if British Columbia was one of the Provinces, therein enumerated. With that alteration, it enacts that "all lands,- mines, minerals, and royalties," which belonged to British Columbia X] ATTY.-GEN. OF BRITISH COLUMBIA v. ATTY.-GEN. OF CANADA. -at the time of the union, shall for the future belong to the Province 1889. =and not to the Dominion. In order to construe the exception from that PI!_ enaetment, which is created by the 11th Article of Union, it is neces- Co^™L ^sary to ascertain what is comprehended in each of the words of the — enumeration, and particularly in the word " royalties." The scope and LoED Wati meaning of that term, as it occurs in sec: 109, underwent careful -consideration in the case of Attorney-General of Ontario v. Mercer (1883), 8 App. Cas. 767, which was appealed to this Board by the Dominion Government, in name of the defendant Mercer. In that •case their Lordships were of opinion that the mention of " mines and .minerals " in the context was not enough to deprive the word " royalties " of what would otherwise have been its proper force, 8 App. Cas. 777. The Earl of Selborne, in delivering the judgment of the Board, said, 8 App. Cas. 778: " It appears, however, to their Lordships to be ■a fallacy to assume that because the word ' royalties' in this context •would not be regarded as inofficious or insensible, if it were regarded -as having reference to mines and minerals, it ought, therefore, to be limited to those subjects. They see no reason why it should not have its primary and appropriate sense, as to (at all events) all the subjects with which it is here found associated, lands as well as mines and minerals—even as to mines and minerals it here necessarily signifies rights belonging to the Crown jure coronae." It is not necessary for the purposes of this appeal to consider whether the expression " royalties," as used in sec. 109, includes jura regalia other than those connected with lands, mines and minerals. Attorney-General of Ontario v. Mercer, (1883), 8 App. Cas. 76*7, is an authority to the effect, that, within the meaning of the clause, the word " royalties " comprehends, at least, all revenues arising from the prerogative rights of the Crown in connection with " lands," " mines," and " minerals." The exception created by the 11th Article of Union, from the rights specially assigned to the province by sec. 109, is of " lands " merely. The expression " lands " in that article admittedly earries with it the baser metals, that is to say, " mines," and " minerals," in the sense of sec. 109. Mines and minerals, in that sense, are incidents of land, and, as such, have been invariably granted, in accordance with the uniform course of provincial legislation, to settlers who purchased land in British Columbia. But jura regalia are not accessories of land; and their Lordships are of opinion that the rights to which the Dominion Government became entitled under the 11th Article did not, to any extent, derogate from the Provincial right to " royalties " connected with mines and minerals under sec. 109 of the British North America Act. Their Lordships do not doubt that the 11th Article of Union might have been so expressed as to shew, by necessary implication, that some or all of the royalties dealt with by sec. 109 were to pass to the 60 MARTIN'S MINING CASES. [vol. 1889. Dominion along with the lands constituting- the railway belt. But ApriU3. there ig not a gingle expressi011 in the context which is applicable to Pwvt gold or gold-mining rights On the other hand, the whole terms of OonNciL. ^ Artipleg of rjnion3 as well as 0f ^ subsequent agreement of 1883, Lord Watson appear to their Lordships to point to the conclusion that the high contracting parties were dealing with public lands, in so far as these were available for the ordinary purposes of settlement, and had neither excluded gold mines from their arrangements, or had them not in contemplation. It is right, however, to notice that the learned Chief Justice refers to a minute of the Council of British Columbia containing the recommendation of a committee, which was communicated to the Government of Canada, as evidencing an understanding, on the part of the Provincial Government, that mines of gold and other precious metals were to be conveyed along with the belt lands. The passage upon which the learned Chief Justice relies is in these terms:—" That it be one of the conditions that the Dominion Government, in dealing with lands in the Province, shall establish a land system equally as liberal, both as to mining and agricultural industries, as that in force in this Province at the present time, and that no delay shall take place in throwing open the land for settlement." The words "mining and agricultural industries," taken per se, might be of dubious import, because they would not disclose whether gold digging was referred to as one of the mining industries. But these industries are described as an integral part of the " land system;" and when it is considered that, at the date of the report, the system of land settlement in the Province, which included the baser metals, was regulated by special statute, and that gold mines, which were not given off to settlers, were not treated as part of that system, but were the subject of separate legislation, it becomes apparent that the committee did not make any reference to gold in their recommendation. Their Lordships are for these reasons of opinion that the judgment appealed from must be reversed, and that it ought to be declared that the precious metals within the railway belt are vested in the Crown, subject to the control and disposal of the Government of British Columbia, and they will humbly advise Her Majesty to that effect. There will be no order as to costs. Appeal allowed. Note.—It is not considered profitable to it decision of the Supreme Court of Canada; a sj Judge of that Court is given. This case considered in Farwell v. The Q. &iM,bhid(je v. Esquiimali 'arid* Ndtiaimo Ry. Co Miming. Co., post, p. 406. See ajso.,GpJvRimer 1 As to right to minerals under public harbour, and "Nanaimo Ry. Co. (1900), 7 B. C. 221, at ' . TUNSTALL. Bdkk v. Tunstai [2 B. C. 12.] Rule absolute to prohibit defendant, a Gold Commissioner, from LStat sitting as a Judge in a Mining Court. Wilson, for the rule. Arg No one contra. Cur. adv. vult. June 24th, 1890. Drake, J.:—This was an application for a writ of prohibition Jlld< against George Tunstall to. restrain him, as Gold Commissioner for West Kootena)', from further proceeding in an action brought in his Court by Robert Burk to recover $70, for labour performed in the Cariboo mining claim in Illecillewaet, in the district of West Kootenay. The grounds taken by Mr. Wilson in applying for rule nisi were that Mr. Tunstall is a Gold Commissioner appointed b}' the Provincial Government, and that the powers given to a Gold Commissioner, sitting as a Judge in a Mining Court, under sec. 11 of the Mineral Act, are ultra vires of the Provincial Legislature, the power of appointing Judges being solely vested in the Governor-General. It is to be regretted that no argument was addressed to me in support of the powers claimed by the Gold Commissioner under the Act, as no one appeared in opposition to the rule. The sections of the Mineral Act, so far as they are of importance with reference to this application, are as follows:— Section 4 authorizes the Lieutenant-Governor in Council to appoint Gold Commissioners, either for the whole Province or for a particular district. Section 5 establishes in every district a Court called the Mining Court, over which the Gold Commissioner shall preside. Such Mining Court, by sec. 6, is to have original jurisdiction as a Court of Law and Equity to hear and determine all mining disputes, and is to be a Court of Record, and the Gold Commissioner is to have Gold Commissioner to issue writs of a all cases in which by law he has jurisdi in all cases in which the Act clothes hi We here find a very large and extra Gold Commissioner, unlimited as to an fact that the questions to be decided by engaged in mining, or in respect of Thii sdic edi powers vei fettered by any restric these sections may invi questions of the greate powers, the Gold Com] specting the recording ( ing over claims, and o mining community, bu before me. Prior to Confederat: sary authority for esta pointing the presiding < to Confederation. Since Confederatior stitute, maintain, and o in civil matters, under America Act." So fai creates its jurisdiction, lature, but when the Pr< of the Courts thus cons 96 of the " British Nor ms, lay- ice to a on now ig procedure^ itish North \ Court and onial Legis- point officers , it ■alt I.] BURK v. TUNSTALL. But there is a further view which I think is conclusive on this point. It is a prerogative of the Crown to appoint all Judges, and such prerogative cannot be taken away except by express words. This prerogative has been delegated to the Governor-General, and there is nothing in the Act taking this right away and vesting it in the Lieutenant-Governor. In the Magdalene College Case (1857), 6 H. L. C. 189; 11 Rep. 716, it was held that when the King had any prerogative, estate, or interest, he shall not be barred of them by the general words of an Act of Parliament; and Lord Cairns, in Theberge v. Laudry (1876), 2 App. Cas. 102, says their Lordships wish to state distinctly that they do not desire to imply any doubt whatever as to the general principle that the prerogative of the Crown could be taken away except by express word. I, therefore, hold that the power of appointing Judges of the Mining Courts is vested in the Governor-General, and that, although the appointment of a Gold Commissioner for certain purposes of a ministerial nature, which are defined in the Mineral Act, is entirely within the powers of the Provincial Legislature, yet to clothe that officer with the important and extensive judicial jurisdiction which sec. 11 of this Act purports to do, is entirely beyond the power of the Provincial Legislature. I may point out that, under the 7th sec. of the Mineral Act, the' County Court, if there is one whose jurisdiction extends over the district for which a Gold Commissioner is appointed, has exclusive jurisdiction in all mining questions under the Act, and it will be for the- Government to make provision to meet the difficulty that has now arisen. I therefore direct that the rule for a prohibition be made absolute.. Rule absolute. ■ Note.—See as to jurisdiction in actions of damages for Injury received in a mine: Beamish v. Whitewater Mines Ltd., post, p. 405. Exception to jurisdiction must be taken below Gelinas v. Clark, post, p. 4281. As to transfer of action to Supreme Court, see Richards v. Price, post, p.. MARTIN'S MINING CASES The Columbia River Lumber Cc (2 B. C. 237). Rights- -Rwan an Propri -.tor—Lessee from Domii ion G ov t, B. C 1891. ber-Injunc wn—1,3 Vi ot. B. 0 i the Canadia are entitled Pac • Rail Belt , after Lessees of the Dominion Gover to an injunction restraining Provincial free miners, located up-stret occupation by said lessees, and having a mining water record, from fouling such stream, the natural source of the water supply, so as to interfere with lessees' user thereof. A grant of water privileges under the Placer Mining Act, 1S91, does not sanction the user of the water to the detriment of, the rights of others. The Dominion Government is in possession of said lands within- the railway belt, as trustees to administer same, and it was competent to it to grant a timber lease to the plaintiffs, who would have the right; to the use of the water flowing through their limits in its ordinary and natural condition. Motion to dissolve injunction. The action was for an injunction to restrain the defendants from fouling the waters of Quartz Creek in such a manner as to prevent the proper working of the plaintiffs' sawmill. The plaintiffs had owned and operated their saw-mill by means of water power derived from the stream for several years prior to the defendants commencing operations at their mine. The stream, after passing defendants' mine, ran through the lands upon which the plaintiffs' saw-mill was situated, they being in possession of said lands as holders of timber licences from the Dominion Government. The defendants were free miners, holding their claim under the Mineral Act, 1891, Stat. B.C., 54 Vict. ch. 25, and were using the water from the stream for hydraulic mining, a system in which a jet of water is employed to wash down a.bank of gold-bearing gravel or earth. This resulted in fouling the stream, and by forcing down earth, roots and " tailings," obstructed the plaintiffs'. mill-race, blocked their flume and machinery, and prevented the operation of their mill. The fact that the plaintiffs were injured in the operation of their mill by the operations of the defendants was not denied, but defendants claimed that it was damnum absque injuria. An interim injunction having been granted by Drake, J. ].] THE COLUMBIA RIVER LUMBER CO. v. YUILL et al. Wilson and Bodwell, for the defendants, now moved to dissolve same. The relative rights of the parties acquired respectively from the Dominion of Canada and the Province of British Columbia de- ] pend on the effect of the Provincial Statute, 43 Vict. ch. 11, granting J to the Dominion Government public lands of the Province, 20 miles wide on each side of the track as located by the Canadian Pacific Railway, in aid of the construction of the railway, as varied by 47 Vict.' B.C., ch. 14. The statutory grant by the Province to the Dominion was subject to all servitudes and Crown rights. The only conveyance intended by the statute was a transfer to the Dominion of the provincial right to manage and settle the lands, and to appropriate their revenues for the purpose indicated. It was neither intended that the title to the lands should be taken out of the Province, nor that .the Dominion should occupy the position of a freeholder within the Province, Attorney-General of B.C. v. Attorney-General of ■Canada (1889), 14 App. Cas., ante, p. 52. Lord Watson, at pp. 57, 58. The plaintiffs ought to have obtained a licence from the Provincial Land Commissioner of the district—in order to obtain the right to the water privileges claimed by them—see Land Act, C. S. B. C, ch. 66, sec. 45. The defendants having the provincial recorded grant to use the water the plaintiff's rights, since they hold no licence from the Provincial Government, are subrogated to the rights of the defendants. A. E. McPhillips, for plaintiff. The plaintiffs as occupiers of the land under lease from the Dominion of Canada are entitled to all the Tights of riparian proprietors. The effect of the statutory grant was to place the Dominion in that position at least, and the plaintiffs hold under them. Attorney-General of B.C. v. Attorney-General of Canada ■only decided that prerogative rights of the Crown as represented by the Provincial Government, did not pass by the statutory grant. The defendants were wrongdoers, and possession was sufficient as against them. Booth v. Ratte (1889), 15 App. Cas. 188. The only exception to the statutory grant is contained in sec. 2 of the Act 43 Vict. B.C. ch. 11, "This Act shall not affect . . . the rights of the public with respect to common or public highways," etc. Expressio unius ex~ clusio alterius. The Dominion Government, as administrator of the lands in the railway belt, can grant privileges of cutting timber, and nothing in the Act prevents it granting the use of the water. The power of dealing with the lands, and incidents thereto, in any manner in order to raise a revenue, was vested in the Dominion by the Act. and therefore it was competent for it to have granted the use of the. water, which was by implication conveyed to the plaintiffs, as riparian proprietors, under the lease: Chasemore v. Richards (1859), 7 H. L. Cas. 349; Stockport Water Works Co. v. Ration (1864), 3 H. & C. MARTIN'S MINING CASES. [vol. Cas. 300; Goddard on Easements, p. 84; Orr Ewing v. Colquhoun (1877), 2 App. Cas. 839, Drake, J.:—The defendants move to dissolve the injunction granted by me on 16th June last, restraining the defendants, who are mining on Quartz Creek, from so fouling the stream as to inflict a serious injury on the plaintiffs, by allowing their tailings to run into plaintiffs' flume and so stop the saw-mill owned and occupied by them. The plaintiffs have been in occupation of their mill for the last four years. The mill is erected on timber limits granted to them by the Dominion Government under an annual licence." The plaintiffs, therefore, are in possession as tenants of the- Dominion, and the use of water for their mill is an easement necessary for the full enjoyment of their property. The defendants, on 16th September, 1890, recorded a discovery claim some two miles above the mill on Quartz Creek, and on 5th December, 1890, recorded 280 inches of water in Graham and Yuill Creeks, to be utilized in working their dam. These creeks naturally flowed into Quartz Creek below the mining claim. This year the defendants commenced work, and the effect was to fill up with their tailings a small dam constructed by the plaintiffs for the purpose of obtaining a sufficient head of water to work their mill, and also partially filled a box flume which led the water, from the dam to the mill; the result was to stop the mill and the plaintiffs suffered serious loss and inconvenience. If the matter rested here it is admitted that the plaintiffs would be entitled to the protection of the Court, for water is public property, and no one unless by grant or prescription is entitled to deprive another of the beneficial use of the water which would naturally descend to him. Chasemore v. Richards (1859), 7 H. of L. 349. The defendants' contention is that they have, as miners, a statutory right to use water for mining, and this statutory right is equivalent to a grant, and if, in the use of water by them another is injured, it is damnum absque injuria. I do not think it necessary for the decision of this case to discuss at length the respective rights of the Dominion and the Province in regard to the precious metals and the right to work them. The precious metals have been authoritatively decided to belong to the Province, and the effect of the decision of the Privy Council in the Attorney-General of the Province of British Columbia v. The Attorney-General of Canada, supra, as I understand it, is practically to allow the working of gold and silver mines in the lands "of the railway belt; but whether this working is to be carried on under the Provincial regulations as regards water rights and privileges, or under Dominion regulations, may be a matter of interest, but, is not, I think," • T] THE COLUMBIA RIVER LUMBER CO. v. YC Attorney-General of B.C. and the Attorney-General therefore they have no riparian or other water rights streams flowing through these lands, and can give streams. The Dominion Government are lawfully in lands in the railway belt, practically as trustees for id can administer these lands as they think most >r, and all licencees, while in occupation, have the of the water flowing through their limits in its iral condition. In Booth & Ratte (1889), 15 App. Leld that if the plaintiff occupied the lands bv per- Ler he had a sufficient title to enable him to maintain iry caused by the fouling of the stream by the de- in any Act or regulation which authorizes the de- it the nuisance complained of. If the defendants Bradley-Kicholsc v. Farwell (1887) 14 S. C. 392; (1893) 3 Ex Queen v. Demers (1894), 22 S. C. 482. MARTIN'S MINING CASES. Re The Maple Lej Adverse Clai n-Evtending TinJlrBn oti n-Mi, era t, 1891, and Abandonin i~Ar>r>eaT wmona 0UT t Jut An appeal lie s to the Divisional Court fr :>m the Di-d« r of a lud ge es tending the time for bi inging an adverse action un der sec 37 of the Mi nera Act, 1891,. and amendments. The fact tha t a writ has already been issued aaterial to the application and should have been disclosed. Such a circu nstance can be taken advan on to rescind the order. tage of up on appe al from as well as After judgme it allowing the appeal, and adjourn mei t of th =• C ourt but before the order \ ?as drawn up, it was brou e Court bi special lea e, that a notice (of whic hd nts' co ins el w as not in- bandoning the appeal had been serv ed spo ts' solicitor on the mor ling of, but before, the argu th Held, that th appeal was at an end upon the givin abandoning it,' and the order allowing the appeal not ha\ ing been d n u p no order would be is ued. but the appeal should tand as if struck ut of t le paper. Appeal from an order of Drake, J., made in Chambers on 10th of December, 1892, allowing Alexander P. McKinnon, the owner of the Maple ieaf mineral claim, a period of 30 days further time within which to commence proceedings in respect of an adverse claim filed by him on the 10th day of November, 1892, against the issuance of a certificate of improvements in favour of W. P. Snowden, for the said Lanark claim, under sec. 14 of the Mineral Act (1891) Amendment Act, 1892, amending sec. 37 of the Mineral Act, 1891. The facts appear in the judgment. Drake, J.:—The property in question is in Illecillewaet. The claimant has filed his notice of claim, within time allowed by sec. 36 of the Act. Under sec. 37 of the Act, the claimant must, within thirty days after the filing, unless the time is extended by order of the Court, commence proceedings in a Court of competent jurisdiction,' and prosecute with diligence. Here notice was given on November 10th, 1892, and the time within which the claim was to be prosecuted expired December 10th. The claim can be proseeuted either in the Supreme Court or the County Court. As no time had been fixed f oi the sittings of the County Court, it is doubtful if it is possible foi proceedings to be commenced, as the plaint is the first step, and plaints are only issued by the Registrar when a day is fixed for holding Countv Court. An application for a plaint which will not then be issued can hardly be treated as commencement of proceedings. The claimant is therefore driven to the Supreme Court, and unless he is prepared with a proper survey, showing the over-lapping, he cannot well proceed. No survey can be made until the snow is gone, and a delay of thirty days will not prejudice the applicant for a Crown errant. RE MAPLE LEAP AND LANARK MINERAL CLAIMS. I to the Divisional Court, and the , 1893, before Begbie, C.J., Crease ' and Wal Taylo objection the Maple Leaf Company. We take the prelii the appeal does not lie. The order was not mi )roceeding pending in any Court. The right to de : ers is a special jurisdiction conferred by appeal from them unless provided in ex- 3 Supreme Court Act does not cover the rom orders, final or interlocuto] a the Supreme Court. To cove ided for an appeal from any ;rspe Bodwell, for the Lanark Company, appellants. Sec. 67, supra, is wide enough to cover the right to appeal. The fact that an order is not made within the frame of a pending action is immaterial if it is in contemplation of and directory in regard to one to be brought, e.g., Per jriam:—We think we jurisdiction to entertain the Judgmen Objection overruled. Bodwell, for the appeal:—A terial filed, the appellants have order appealed from, that at tb Mr. Justice Drake to extend th spondents had commenced an Supreme Court. This fact Mr though it did not appear in the ma- diseovered, since the making of the 3 time of the respondents' motion to time for bringing an action, the reaction by issuing a writ, out of the Justice Drake was not made aware of, or he would not have made the order appealed from, which was therefore useless and without proper foundation for the exercise of the discretion. Taylor, contra:—We admit the issue of the writ before the motion to Mr. Justice Drake. It was done as a precaution against the possible refusal of the extension upon, the respondents believed, the last day to sue. The respondents desired the extension of time to enable them to sue in the County Court in the mining district, which would be much more convenient. They never intended to prosecute the Supreme Court writ if the leave was granted. The suppression, if any, was of an immaterial fact, as, if it had been before Drake, J., with this explanation it would not, it is suggested, have affected, his discretion in granting the extension of time in order to sue in the County Court, permitting the applicant to abandon the Supreme Court MARTIN'S MINING CASES. Appeal 8 f^JLUj &AJL G J cLxJuk, -IAA, IS: f on this appeal ssed wi h costs. ary 12tl IJ. on of th I'd*?: i, 1902 '2 Present:—Begbie, C.J., Walkem and Ci Settling order. Taylor, by special leave, now spoke to the be made upon the appeal. After the judgment allowing the appeal and the adjournment of the Court, counsel for respondents were for the first time instructed that the respondents' solicitor had, on the morning of and before the argument of the appeal, been served by the appellant's solicitor with a notice abandoning the appeal. The argument, therefore, proceeded upon a mistake on the part of counsel. Upon receipt of the notice the appeal was at an end, and no other could be made except to strike it out of the paper. Conybeare v. Lewis (1880), 13 Ch. D. 469. Bodwell, contra:—li the appeal had been dismissed with costs, the appellants would have bee abandonment, by the appi notice, and an agreement % for, by not instructing the to argue the appeal, by w successful, they are estopr Conybeare v. Lewis, the : after judgment. idee the hstanding the notice of msel in support of the Lrawal by consent of the the result of the appeal, ice, but permitting him re obtained full costs if back to the notice. In med. Neglect to place [round for re-opening it Per Curiam :—Notice abandoning the appeal having been given, the appeal was at an end; and it would have appeared that the Court had no jurisdiction to make any other order than to strike it out of the paper, had the notice of the abandonment been brought to its attention. The order of yesterday allowing the appeal not having been drawn up, no order will now be drawn up, but the appeal will stand as if struck out of the paper. Order that appeal stand struck out accordingly. . FOTHERINGHAM. GHAM, ET AL. Where owners of a mineral claim, the title to which they considered defective, permitted a third person to re-locate it in his own name, who afterwards without previous binding agreement to that effect, conveyed his title to them Held, not a re-location by the owners of the original claim so as to render A location on land already lawfully occupied for mining purposes' is invalid. The owner of shares in an incorporated mining company is not an owner of any The location of a mineral claim is not void because, as staked, it exceeds the length directed by the Mineral Acts. An owner of a mineral claim may abandon any portion thereof by specifying it and recording the abandonment. The Court should deal with mining disputes upon the principles of a Court of Equity, and should discountenance a plaintiff, whose action is based upon defects in title, knowledge of which was acquired by him while a Government employee in a mining record office, it being contrary to his duty to the public •for him to use such information. Practice of " jumping " claims should be discouraged. Action to declare the plaintiff entitled to a certain mineral claim staten- located by him under the name of the Safety, and to recover possession thereof, and damages from the defendants. The defendants claimed under a location of the same claim by their predecessor in title, under the name of the Robert E. Burns, prior in date to that of the plaintiff. The plaintiff alleged that the Robert E. Burns location was void as insufficiently staked, in that it exceeded the 1,500 feet in length permitted by sec. 3 of the Mineral Act (1891) Amendment Act, 1893; and also because it was, in effect, a re-location by the defendants, without the written permission of the Gold Commissioner, as required by sec. 29 of the Mineral Act, 1891, of a mineral claim owned by them called the Bobbie Burns, the title to which was defective. The trial took place at Vancouver on July 26th and 27th, 1894, before Crease, J. The facts fully appear from the judgment. Part's, Q.C, for the plaintiff. Argun Pooley, Q.C, for the defendants. MARTIN'S MINING CASES. . [vol. November 8th, 1894. Crease, J.:—This case is one of considerable importance to the mining community. It discloses the attempt to wrest the possession of a claim from a set of men who had done a great deal of mining work, and expended large sums of money on it in labour and machinery, by one who has done no work and expended nothing on it. As the facts are numerous and somewhat involved, a statement of the leading circumstances of the case and the practical effect of the pleadings becomes indispensable. The action is to determine the title to a mine, and for its possession and for damages. The plaintiff claims to have a right as an independent miner to the ownership of a claim called the Safety. It runs over one which has been worked for several years by the defendants, or some of them, called the Bobbie Burns;, and on which, it is not denied, the defendants have expended in labour, machinery and roads upwards of $20,000.00. On the Safety the plaintiff has expended practically nothing. The Bobbie Burns was recorded on the 12th of May, 1891, by Archibald McMurdo, in (what is called from his discovery) the McMurdo basin, about 50 miles from Golden, on a branch of the Similkameen river. The Bobbie Burns was recorded under the Mineral Act of 1891. The other two claims—the Robert E. Burns and the Safety—were recorded under the Act of 1893. The last two claims are virtually the same claim; they run much on the same lines, and both cover the Bobbie Burns. The documents and transactions affecting the Bobbie. Burns, which I take first, and the first in the order of record, are as follows:— On the 3rd August, 1891, Archibald McMurdo being then the discoverer and sole owner of the Bobbie Burns; conveyed to John English Askwith, three-fourths of his interest in that mine; retaining one- fourth in himself. On the 3rd November, 1891, Askwith conveyed to Fotheringham seven-eighths of his three-fourths. Later on Askwith conveyed the remaining one-eighth of his said three-fourths, leaving McMurdo his one-fourth. In September, 1892r McMurdo made a written agreement (called a bond) with Fotheringham to convey to him that remaining one-fourth interest/ On 4th July, 1893, Fotheringham gives Askwith, his brother-in-law, a power of attorney to deal with the Bobbie Burns. On the 22nd July, 1893r Fotheringham conveys the Bobbie Burns to the defendants Ellis and Irving (with certain provisions as to the defendant, McCabe). On the 31st July, 1893, McMurdo gives, in pursuance to the bond, a quit claim of all his interest in the Bobbie Burns to Fotheringham. The instruments recorded affecting the Robert E. Burns are as follows:— On 29th July, 1893, record of Bobert E. Burns filed at Golden by George McCabe, one of the defendants. On 31st July, 1893, a bill of Ip GRANGER, v. FOTHERINGHAM. sale given by George McCabe to Fotheringham, in consideration of $500.00 of all his interest in the Robert E. Burns. As to the Safety claim the instruments recorded were:— On 30th September, 1893, record of the Safety claim by Allan Granger. On 30th September, 1893, a protest filed against the Bobbie Burns by the plaintiff, Allan Granger, under the Mineral Act, 1892, ch. 32, B.C. All these documents were produced and proved at-the trial. The statement of claim merely sets out the Safety claim. The defence is a general defence, and sets out the possession. The amended and equitable defence is, that McCabe had staked out and recorded the Robert E. Burns and had agreed to convey it to the defendants. Defendants, therefore, rely on the Robert E. Burns. Plaintiff in reply objects:—That the Robert E. Burns was defectively staked in certain particulars, viz.: 1. That it covers a greater area than the Act allows. 2. That the distance between two stakes of the Bobert E. Burns is over 1,500 feet. 3. That the location line is not distinctly marked, sub-sec. 6 of sec. 5 of reply; Stat. B. C 1893, ch. 29, sec. 3, requiring that such hue " between posts 1 and 2 can be distinctly seen." 4. That No. 2 post of Robert E. Burns is undated. -5. That the Robert E. Burns is merely a re-staking of the Bobbie Burns. The issue was: 1. Was the Robert E. Burns sufficiently staked to comply with the Mineral Act? Whether the location of the Robert E. Burns by McCabe was merely a re-staking of the Bobbie Burns on behalf of its owners. 3. Whether McCabe was not in equity so interested in the Bobbie Burns as to make him in equity a part owner, and, therefore, under the latter part of sec. 29 of Stat. B. C, 1891, ch. 25, unable to re-stake without getting the written permission of the Gold Commissioner. The facts which were proved during the trial That by various conveyances from McMurdo, the discoverer, the Bobbie Burns came into the possession of Bobert Fotheringham as owner. During the years 1891 and 1892 there were duly obtained and recorded the proper certificates of assessment work done on the Bobbie Burns, as required by Stat. 1891, ch. 25, sec. 24, work done each year on the claim itself to the value of at least $100.00. It was proved that Fotheringham expended in labour bona fide done, on the- Bobbie Burns, $1,500.00 of assessment work in the year 1893. He expended in erecting mill machinery adjoining and for the purposes of that mine and making a road from the mill, $12,500.00, with about $2,500.00 worth of work done on the mine, making altogether $15,000.00. Askwith, who had a general power of attorney from Fotheringham, his brother-in-law, to transact all business for him in and relating to the Bobbie Burns claim, on leaving for the East, made specific arrangements with Harry Cummins, a duly qualified' MARTIN'S MINING CASES. tvOL. local surveyor, to survey the claim, make and record the proper affi- ' davits and "documents required by the Mineral Act to entitle him to a Crown grant—obtain the necessary certificates from the mining recorder, and insert the necessary notices: 1. In the Nelson papers. 2. Also in the British Columbia Gazette, and 3. To file the same with ' the mining recorder, and, with the necessary certificate of improvements, get the Crown grant. Mr. Askwith returned in 1893, expecting to find a Crown grant, and all his orders complied with. Instead of that he found that his instructions had not been complied with—except that the notice had been inserted in the Nelson papers. This, though far short of his instructions, is so far confirmatory of the fact that the work was done, and the instructions on the part of the owner given, as defendants alleged. The notice was not inserted in the British. Columbia Gazette, nor was the certificate of the year's work, from 12th May, 1892, to 12th May, 1893, obtained and recorded. Finding this, one George McCabe engaged to stake a new claim in a new name, including within its limits the Bobbie Burns. This was done, and the new claim now called the Robert E. Burns was staked out, located and recorded by McCabe in his own name. This was effected with the assistance of David Dickey and Manuel Dainard, who appeared'as witnesses, and one Rury who was not called. The former two proved the correct staking. As a jury, I am of opinion, from a consideration of all the evidence, that the claim Robert E. Burns was properly staked, and recorded, and is a valid* and subsisting claim, the 1894 work done thereon having been duly done, proved in detail, and recorded by McCabe, as by the certificate of the 20th July, 1894, more particularly appears; and all this I find accordingly. It has been objected that the location of the Robert E. Burns by McCabe was, in effect, a re-location of the Bobbie Burns claim, and that it was not bona fide done on his own behalf, but collusively as ' agent of the owners of the Bobbie Burns, and that by Stat. 1891, ch. 25, sec. 29, they should have obtained the written permission of the Gold Commissioner to make this new location, but I am of opinion that, having made the location in his own name, and no binding agreement to convey to the defendants or agency for them having been proved, the objection fails. It has also been objected that his claim, Robert E. Burns, was wrongly staked, and was invalid, because, by sec. 5, ch. 32, of the Mineral Act, 1892, while he staked the right breadth of 1,500 feet, he exceeded the maximum length of 1,500 feet, and that therefore his staking is invalid. ^3BES25kaa all the three claims are stai north and west sides, and the cess in length, o\ er 1,500 feet, of th e Robert E with exact prec ision by a line par allel to the dary lines of the tion of the locati Robert E. Burns wi 1 the Provincial Lai thout inter- n, of which les above sub-sec (a)—empowered t o move No Uy any other po st„ except post Sfo. 1, " for the y, that the evidence satisfies me partly staked, with proper and lawful Indeed, it is but reasonable and common sense that when a claim is-staked by others than actual surveyors, as by ordinary miners, unskilled in actual measurements on the ground, such changes, not take place under the eye and orders of the regular authority under the Act. By the portion of the ground complained of as overstaked in this instance, no other person's right was interfered with. That portion was entirely below the Safety claim; indeed, the Safety claim was not in existence till two months after the Robert E. Burns was staked. There is nothing substantial, therefore, in that objection. Moreover, I cannot find anything in the Act by which such excess of itself works a forfeiture. If it did, no claim could be retained by a prospector unless it were laid out and staked with mathematical pre- •cision, in the first instance, by some duly qualified surveyor; and that, in* practice, seldom, if ever occurs; and is not called for by the necessities of the case nor in accord with the spirit and intention of the Act. I consider, therefore, that while liable hereafter to this rectification, or, as the Act calls it, " correction of distance," the Robert E. Burns is substantially properly staked in compliance with and within the protection of the Act, and is a good, valid and subsisting claim. And now, while upon this subject, I see no valid or good reason why the owner of a claim who, by the process laid down by sec. 29 of the Act of 1891, ch. 25, can abandon a whole claim; since omne majus MARTIN'S MINING CASES. Lvol. continet in se minus may not, by the same process, abandon any speci- ;' fie portion of a claim—provided he specify and record such abandonment. Holding, therefore, as I do, that the Robert E. Burns is a valid and subsisting claim, it follows as a matter of course that the Safety claim is not a legal claim; for irrespective of the defect in one post, which as a jury I consider proved—and which injuriously affects the record—it is made on ground which is neither waste land of the Crown, nor abandoned nor forfeited land, but in the legal occupation of other persons; to wit, the defendants in this case, by purchase from the recorder of it—McCabe. And here I must digress for a moment to interpose a remark, that the $500 in the sale to Fotheringham does not represent all the consideration McCabe received. While that was the substantial part of it, for the value of the claim is still in nubibus, he also was to receive a certain value in the stock of a prospective company. But this he was quite entitled to do, and it did not, therefore, make him either a co-owner or agent of the other defendants. It did not even require cate in order to keep his shares, for the above conclusion, which, despite ed counsel for the plaintiff, I think mili- right to stake out a claim over another, j to oust the title of the defendants—that ich the information which led to the attempt was acquired. He who comes for equity must do equity. The plaintiff himself bore witness in the box, and the evidence was drawn from him, that while doing business as a miner and mine dealer, he obtained employment from the Mining Recorder in copying out the Government mining records at Golden and at Donald; that it was in May, 1893, while copying out such records at Golden, that he discovered the slip made on the 12th May, 1893, through the laches of Harry Cummins, the surveyor employed on Fotheringham's behalf to complete the survey, notices, affidavits, and certificates required by the Act, as preliminary to obtaining the Crown grant of the Bobbie Burns. He claims that he was allowed by the Mining Recorder at the same time that he was so employed—living, too, for some time in his house having constant access, in the course of his duty to the Government to the records—to practice his calling as a mining agent; in other words allowed to look out blots in mining titles—a permission which the Mining Recorder, who appeared as a volunteer witness at the trial, ■. him to hold a. miner' There is another the depreeat on of th tates againsi the pla the effect of which w is the mode in whicl p (MtA.M ,i;K v. F() 1AM. 77 hadr while self, or hi preju Now, no person ii frant, and tage of, d £5? I^1 honou owed be mal rable man 3d it him- to expose, search all iff -Novea =£ publi c officer, entrusted w ith the elj¥ irge of pu jhcmij ling re cords can only, except in exceptions iTdflv ord coi ning h i at night ah tl e difference, allow i ike his own, except i rithin reas onabteho* ad sear le day h records, and then only, for very obvious r me duly authorized in his st the presa >ad to pro tect th the Re ds, which are f times A requently the only t , a vast amount of ] iroperty. the worki ty or favo usual t.im >s -i-f In er has in the to, some- keeping, will hr-PPrl uldt ng population as will seriously affect lent; a result which is earnestly to be red by all manner of evil consequences WM t working and expenditure of capital, which was undeniably the case here, in the opening and exploration of the mining ground, and in the employment of labour, should be, within lawful limits, encouraged; while mere colourable working, or neglect of working, should, under the stringent provisions of the Act, in that behalf, be followed by forfeiture of the privileges which the holders have been edl ice in a mining country requiring the safe investment of capi- \ ts development, and the steady employment of labour, that . tice of jumping claims by persons—who, not working them- I ake a business of hunting for accidental or unintentional slips j Is happening to men more engaged in hard work underground I :ustomed to clerical employment (prospectors, who undergo \ labour and hardships in bringing hidden wealth to light), I )arasites who always hang about rich mining camps. ■ experience in mining camps, including British Columbia it- m Cariboo downwards, shows that there is no more fertile f insecurity to investment (and money is a sensitive plant), ill-feeling, not unfrequently culminating in violence and MARTIN'S MINING CASES. [vol. : For the reasons already given, and after a most careful consideration as a Judge, of all the sections of the Gold Mining Acts, and, as a jury, of the evidence and arguments adduced on both sides, I find 1 myself constrained to give judgment for the defendants, with the I usual accompaniment of costs. Judgment for defendants. As t abandonment: • Wi i Creek, £c, Manley Collom, post, p. 487; and s location. As to relocation without permission of Gold Commissioner: see Pellent v. Almoure, post, p. 134; Creelman v. Clarke, post p. 228; Dunlop v. Haney, post, p. 369. As to " jumping ": see Woodbury v. Hudnut, ante, p. 31. As to policy of Mineral Acts in general cf. pp. 88, 139, 140, 187, 194, 236, 304. 333, 336. 414. 44(>. By regulation of Sept. 10th, 1898, under sec. 143 of the Mineral Act, all Gold Commissioners, Mining Recorders, clerks and employees connected with the ad- laims, are prohibited from taking out free miner's certificates on holding interests directly or indirectly, or as trustees for others in mining property, under chs. 135, 136 or 137, of the R. S. B. C. or amendments. See appendix of statutes, &c, post. Hogg v. Farrell. ind not only will be disregarded but the allegations ted. non-compliance with the requirements of the Mineral otherwise, this must be specifically pleaded and the i which reliance is placed. cannot be raised in appeal for the first time. Appeal by the defendants from the judgment of Crease, J., pro- Stat nounced 9th October, 1895. The plaintiffs were Alexander L. Hogg and Frank Houghton, and the defendants were Charles C Farrell and G. H. Johnson. They were all free miners and resided at Fort Steele. The pleadings were as follows: . Hills 1 Mo: i 13th Jun , &c. of the clain 4. The plaintiffs duly performed the representation work required by law and duly received and recorded certificates of work on the said claims. 5. Contained an allegation that Pugh, on 2nd November, 1893, conveyec claims to plaintiff Hogg. 6. Under and by virtue of the said records and instrument, the plaintiffs art the lawful owners of the said mineral claims. 7. Contained allegation that one Charles Farrell located, and on 18th July 1893, dulv recorded the Lake Shore mineral claim. 8. Contained allegation that on 27th March, 1894, the said Charles Farrel! quired by law, and duly received and recorded a certificate of work on the saic Lake 10. The said Mc 12. The defendanl .13. The defendant :a claim adjoins the said Queen of the Hills claim, and the a adjoins the said Moyea claim. intiffs' claims were located and recorded the defendants orded in the office of the Mining Recorder at Fort Steele, as the Dea,dwood and Legal Tender claims, and the same of each of the said Queen of the Hills, Moyea and Lake cloud i e of t i their said work and their MARTIN'S MINING CASES. [vol. trespassing, and the plaintiffs fear that they will continue to do so unless re- 2. strained by the order and injunction of this Honourable Court. 14. Allegation of damages. 15. The plaintiffs claim that the said records of the defendants should be cancelled and set aside and removed from the record books of the Mining Re- I corder at Fort Steele, as a cloud upon the plaintiffs' title. 16. Asked that the defendants might be restrained from trespassing, &c. 17 and 18. Asked for damages and costs. Statement or Defence: 1. Admitted paragraph 1 of claim. 2. The defendants also admit the location and recording by them of the mineral claims, Deadwood and Legal Tender, mentioned in- paragraph 11 of the 3. The defendants deny all the other allegations contained in the said statement of claim, and put the plaintiffs to the proof thereof. 4. The defendants disclaim any interest in the ground' included within the boundaries (proper) of the Queen of the Hills mineral claim referred to in paragraph 3 of the said statement of claim, and have never claimed any por- 5. If the plaintiffs and the said Pugh did duly locate and record the Moyea mineral claim as alleged in said paragraph 3 of the plaintiffs' statement of claim, then the defendants say that the said Moyea mineral claim is on the same vein or lode as the said Queen of the Hills mineral claim, and. that the plaintiff's location and record thereof is illegal and invalid. 6. In further answer to said paragraph 3 of the plaintiffs' statement of claim, the defendants say that in the month of October, 1893, the plaintiffs or I their agents located the mineral claim Mono, being a relocation of the said Moyea mineral claim, without the written permission of the Gold Commissioner in that behalf. 7. In answer to paragraph 7 of the plaintiffs' statement of claim, the defendants say that the said Charles Farrell in the said paragraph mentioned, did, in the month of September, 1893, relocate the said Lake Shore mineral claim, or attempted so to do by putting up two new stakes and changing the location line of said claim, as well as including thereby other and different ground than that included in the said claim as located on 18th July, 1893, to the knowledge of the plaintiffs. 8. The defendant, Charles C. Farrell, located the said Legal Tender mineral ■claim on 1st July, 1894, and duly recorded the same, and the defendant, Johnson, located the said Deadwood mineral claim on 8th July, 1894, and duly recorded the same. 9. In any event the defendants say that upon a correct survey of the ground included within the proper boundaries of the said mineral claims, some portion thereof belongs to them. The defendants before trial obtained an order to add to the pleadings an additional or alternative defence, to wit: that HOGG v. FARRELL. of the defence, he held, that i , no part of either of them though these pleas were t: proved, and they therefore failed. His Lordship held that defendants' said claims did overlap the plaintiffs' claims, and he accordingly'gave judgment in favour of the plaintiffs, granting them an injunction, $1.00 damages for trespass, and ordering the cancellation of so much of the records of the Deadwood and Legal Tender claims as over lapped the tiffs' From this judgment the defendants appealed on the grounds (1) That the mineral claims Moyea and Queen of the Hills are both on the same vein or lode. (2) That no discovery post was placed on either of said mineral claims. (3) That neither of said mineral claims was located under sec. 84, ch. 25, B. C Stat., 1891, and that if they were, the requirements of that section have not been carried out. (4) That the plaintiffs' title to the said mineral claims was not proved, and the requirements of the Mineral Act, 1891, and Amending Acts, were not complied with. (5) That certain evidence on behalf of the plaintiffs was improperly admitted. (6) That there was no proof that the said mineral claims were staked according to the Mineral Act, 1891, and Amending Acts. (7) That no partnership agreement was recorded. (8) That the defendants are entitled to some part of the ground in dispute. Th app. al was argued 12th December, 1895, before the Full iing of McCreight, Walkem and Drake, JJ. , Q.C. Q.C, k Wilsc jfused. for respondents. pplied for leave to introduce fresh evidence, but leave Per Curiam:—Th< is dismissed with costs. 1896, the reasons for the judgment of Subsequently, on 1st Jui the Court were handed down McCreight, J.:— Mr. Wilson for the appellants and defendants Farrell and Johnson in this case, made several objections to the decision of Mr. Justice Crease which was decided in favour of Hogg and Houghton, the plaintiffs. MARTIN'S MINING CASES. [vol. First he objected that the plaintiffs didn't prove that they had '■ satisfied the requirements of sec. 3 of ch. 29 of the Act of 1893, • as to posts and other conditions of location, but to this objection there r. are several answers; first, the general denial in paragraph 3 of the statement of defence is bad (see Rule 171) and must be disregarded; next the failure to comply with the requirements of the said sec. 3 of the Act of 1893, should have been specially set out under Rule 169, and the last part of paragraph 5 of the statement of defence does not get over the difficulty, as was contended, for that paragraph only applies to acts done regardless of the proviso in sec. 84 of the Mineral Act of 1891, as the context I think fully shews. Again, if the defendants intended to rely on the absence of proper posts and other conditions of location as suggested by Mr. Wilson, Rule 158 requiring the party pleading to " state the material facts on which he relies " especially as their omission would be likely to take the " opposite party by surprise," words to be found in Rule 169, should have been attended to. The plaintiffs' witnesses were not much, if at all, cross-examined as to there being a proper location, &c, and I gather from the evidence of McVitty, the Land Surveyor, that all was properly done— and see the evidence of Frank Houghton. Indeed I don't see that compliance with section 3 of the Act of 1893 was discussed or a point made about it; anyhow, for the reasons I have given, I think the point is not now of importance. I may add that there appears to have been no examination or cross-examination as to the evidence on the three points that Mr. Wilson made with reference to sec. 3 in the Full Court on appeal: (1) Posts not legal and that they must be on the line of the lode. (2) Want of location notice. (3) No discovery post as to rock in place. Mr. Wilson objected that having taken up in partnership the Queen, they couldn't take up the Moyea, but the answer is that by ' proviso in sec. 84 of the Mineral Act of 1891, the law seems to be otherwise, as they were partners. Moreover, the trial Judge finds that no | vein or lode " was proved to exist there. Mr. Wilson, says, that certain documents referred to in the statement of claim were not duly proved. The trial Judge seems to have thought they were. Anyhow the remark applies again that the general denial, see paragraph 3 of statement of defence, is bad under Rule 171, and such allegations must be taken as admitted. The defendants further pleaded in answer to paragraph 3 of the statement of claim, that in October, 1893, the plaintiffs or their agents located the mineral claim Mono, being a relocation of the Moyea claim, without the written permission of the Gold Commissioner. The trial Judge finds : that though this defence was denied it was not proved by the defendants who seem to have called no witnesses. FtJLI The next plea of the defence was that Charles Farrell, mentioned McC in paragraph 7 of the statement of claim, in the month of September relocated or attempted to relocate the Lake Shore, by putting up two new stakes and changing the location line of that claim, as well as including therein other and different ground than that included in the said claim .in the location of it on 18th July, 1893, to the knowledge of the plaintiffs. The learned trial Judge finds that this pleading though denied by plaintiffs, was not proved. The cases of James v. Smith (1891), 1 Ch. 384, and Clarke v. Callow (1876), 46 L. J. Q. B. 53 (C.A.), per Lord Esher, shew the Court will give no facilities in the raising of such defences as are made in this case, especially under sec. 3 of the Act of 1893; see Rule 169, and to amend would I think be plainly unjust; compare what is- said by Lord Herschell in The "Tasmania" (1890), 15 App. Cas. 225, and see p. 230; and Connecticut Fire Insurance Company v. Kavanagh (1892), A. C. at p. 480. I mention this as Mr. Wilson wanted to call fresh evidence before the Full Court to shew that sec. 3 of ch. 29 of 1893, had not been complied with. I think the appeal must be dismissed with costs. Appeal dismissed with costs. Note.—See to same effect as regards pleading Wells v. Petty, post, p. 147;. p. 195; Aldous v. Hall Mines Co., post, p. 213; and as to' defences in the County [IN1NG CASES. Re Good Friday, Timber, In Motiox by the owners of the Timber, Indiana, C Dod Hope mineral claims, made after the lapse of e filing of their adverse claims, to extend the tin: encing proceedings in a Court of competent jurisdic e right of possession to the said mineral claims, gucd before Davie, C.J., on 8th February, 1896. L. P. Duff, for the motion. P. M. Irving,, contra. leral Act (1891), mant shall within shall be extended Davie, C J.:—Section 14, sub-sec. 2 of the Mi Amendment Act, 1892, requires that an adverse cla thirty days after filing his claim (unless such time by special order of the Court upon cause being shewn). commence proceedings in a Court of competent jurisdiction to determine the question of the right of possession, and the question upon this application is whether after the lapse of the thirty days provided by the statute the Court has power to extend the time. The omission to commence proceedings within the required time has been satisfactorily accounted for upon the affidavits, and in view of the fact that no decision on the merits has yet been reached, and bearing in mind the principles laid down in Collins v. Vestry of Padding ton (1880), 5 Q. - B. D. 368, it is clear tha t th i exten sion oi lits it. I th nk that it does; e employed bi r the Act imposes the light ordina f the "Banntr^l Jo mstc n (18 71), L. 2"4th section o f the Engli sh Con ghtto the >lii anted if the ,ry meaning of and the statute rules of the Court, which sedings of the Court, and under statutes similarly R. 5 H. L. 170, decided ipanies' Act, 1862-, which which time shall not be I.] Re GOOD FRIDAY, ETC., MINERAL CLAIMS. exceeded unless the Court of Appeal shall extend the time, and in that case Lord Hatherly remasks'Uhat ifr would be a narrow construction of.the Act, and one which the circumstances under which the : Act was passed, and the magnitude of the questions which must have been foreseen as possibly arising under it. would not warrant, and one likewise which it would be impossible to hold in itself a sound construction of the Act, to say that the word " extend" must be taken to mean that the application must be made before the original time has elapsed, because the time having elapsed there is nothing remaining to I think the applicant is entitled to the extension, and I order that his time be extended for thirty days from date. .The costs of this application must be paid by the applicants to the claim-holders, except the costs of the second adjournment. From their costs will be deducted the applicant's costs of the second adjournment. Order made. lolden Butterfly' ; ATo?>Ze v. Blai MARTIN'S MINING CASES. Practice—Appeal—Extending Time for—Counsel. The appellant was advised by counsel, up to a period considerably beyond the time for appealing from the judgment of an inferior Court, to acquiesce in it, but he had since been advised by other counsel to appeal, and that special hardship would probably result to him if the judgment were allowed to stand: Held, an insufficient ground for extending the time for appealing. Motion to the Full Court (Davie, C.J., McCreight and Walkem, JJ.), to extend the time for appealing from the judgment of Spinks, Co. J., at the trial dismissing an action in the County Court to enforce their adverse claim to a certain mineral claim upon the ground that their stakes were less than four inches face, as required by the Mineral Act, 1891, sec. 2. It appeared that the stakes of the defendant's location, which covered the same ground and was brought in contest with the plaintiff's location by the action, were open to the same objection. The plain- . tiff, upon the advice of counsel, did not appeal, but relying upon the correctness of the decision of Spinks, Co. J., re-located the same ground with unobjectionable stakes, and such new location was brought into dispute with the defendant's location referred to, in a subsequent action now pending in the Supreme Court. Flaintiffs herein were then advised by counsel against the decision of Spinks, Co.J., and that it would probably not be followed in the Supreme Court action, in which event the plaintiff would lose his claim although right in his contention at the trial in this action. E. V. Bodwell, for the motion. A. J. McColl, Q.C, contra. Cur. adv. vult. April 27th, 1896. The judgment of the Court was delivered by McCreight, J. S—This was an application by Mr. Bodwell to I extend the time to appeal from a judgment of Judge Spinks, in the County Court of Kootenay, in a mining cause, though the time for appealing had elapsed. It appears to me that there are two serious difficulties in acceding to this application. Firstly, by the County Courts Act Amendment Act, 1896, sec. 4, the words of sec. 29, C. S. B. C 1888, ch. 82, or of " a County Court in a mining ' cause," are to be struck out of the said sec. 29 of the Mineral Act, and the proviso at the end of such sec. 4 of the Act of 1896, does not . PELLENT. Frar, clusi t (18 ±), 30 L. T. K S. ; have done if appeal proceeding from 18 id been duly taken " within ten days _ ' I think the case of Dowdeswell v. *<"*■] 608, obliges me to come to this con- MoChh The second difficulty is, that the numerous English decisions on the subject of extending the time to appeal, see Annual Practice, 1896, pp. 1062-3, do not warrant us in making such extension, see especially International Financial Society v. City of Moscow Gas Company, (1877), 7Ch.* D. 241. Mistakes of counsel or attorney, or both, on points of law cannot be ground for extending the time to appeal, and I think what was said by Lord Justice Lindley, in Esdaile v. Paine (1888), 40 Ch. D. 520, " that it is for the interest of the public that litigants should know as soon as possible when certainty has been reached," applies particularly in mining cases; and I also refer to what is said by Lopes, L. J., at p. 535, where he says, " That though a strict adherence to rules as to time may sometimes produce hardship, I think that a legal adherence to them is best for the public and for litigants." I observe from the affidavit of Mr. McLeod that after the decision of Judge Spinks the owners of the " Green Mountain," located under the name of the " Defender," and allowed the time for appealing to elapse, and then only took advice which appears to have been unsound, and now, seven or eight months after Judge Spinks' decision, say they have found out their mistake and wish to appeal against that decision. Mr. Bodwell cited Powell v. Peck et al. (1887), 12 Ont. Pr. 34. Now, if Judge Spinks had a discretion by statute either to give or refuse leave to appeal, and had exercised that discretion by giving the leave, I dare say we should be reluctant to reverse his order. Such a state of circumstances would be in conformity with Powell v. Peck, but vary materially from those in the present case, and I think that having regard to sec. 29 of ch. 82 C S. B. C, 1888, and sec. 4 of the County Courts Act Amendment Act, 1896, in the first place, and the English decisions as to extending the time to appeal, in the ■second place, this application should be refused with costs. Application refused. MARTIN'S MINING CASES. 1S36. May 9. Atkins v (5 B. C Coy 1888, s ecs. 87 d—P al—i and light to , sees. 10 an II A location on ground already lawfully occupied for mining purposes is prohibited and invalid, and the recording thereof is of none .effect. The policy of the Mineral Acts is to discourage miners from trespassing on valid locations—•" jumping." Sections 50 and 51, Mineral Act, 1891,'introduce into the law relating to transfers the policy of the Land Registry laws, namely, that a prior unregistered, conveyance must be postponed to that which is subsequent but duly regis- Quaere,—'Whether mining records constitute notice, and to what extent? A cross motion to the appeal applying for a new trial having been served by respondent, and adjournments obtained by her to obtain affidavits in support of it, which were subsequently filed, the Court, on objection by defendants,, refused to permit the plaintiff to withdraw such application. Observations upon the difficulty of obtaining evidence in a mining country. Decision of Spinks, Co.J., reversed. Statement. Appeal- from a judgment of Spinks, CoA, of Kootenay, mining- jurisdiction, in favour of the plaintiff. The plaintiff's predecessor in title, one Shea, located the ground in dispute as part of the Rambler mineral claim on 10th June, and recorded the location on 13th June, 1893. The defendants had applied for a certificate of improvements for the purpose of obtaining a Crown grant as the successors in title of John King, alleging that he had located the ground in dispute as part of the Cariboo on 9th June, and recorded the location on 15th June, 1893. The plaintiff's adverse claim, and statement of claim in the action, charged that in fact King had located the Cariboo on 15th June, and had fraudulently ante-dated his location stakes so as to cut out the Rambler claim. At the trial the only question left to the jury- was which claim was in fact located first. The jury found that the- defendants' location, the Cariboo, was first, being made on 9th June, as alleged. On motion for judgment the learned County Court Judge held, in the following judgment, that the priority of location was immaterial, as priority of record determined the priority of right. J btfw"' Spinks, Co.J. :—The point reserved in this action is whether the- Spinks-, Co.J. Mineral Act (1891) Amendment Act, 1892, made the record the root of title to a mineral claim in contra-distinction to the Mineral Act, 1891, which expressly made the location the root of title. i.] ATKINS v. COY. In order to fully understand the intention of the Legislature this point it is necessary to consider the history of the law. Pri to the Act of 1891, the Courts held that the prior location gave t prior right, without reference to the date of the record. This w held notwithstanding sec. 50 of the Mineral Act, C S. B. C, 1888 :- othei befoj sec msidered that the words " not lawfully occupied by any " excluded lands properly located as mineral claims, even 1, and that such lands were therefore within reservation. The Mineral Act, 1891, set all doubts upon this point at rest, by 18, which enacted: " In case of any dispute as to the location . mineral claim, the title to the claim shall be recognized according ;he priority of such location, subject to any question as to the . dity of the record itself, and subject further to the free miner ing complied with all the terms and conditions of this Act. The Mineral Act (1891) Amendment Act, 1892, sec. 2, repeals 18 of 1891, and in sec. 9 enacts: " Sectio enacted: 25. of record will the record, ai sions of this nges the l i thereof be it of title from the location >t to 1891, .18 ofihe This section expre to the record. It is possible to argue the law back to what it was prb but it is impossible to do so without in effect re-enacting se< Mineral Act, 1891, and repealing sec. 9 of the Mineral Act (1891) Amendment Act, 1892. Maxwell on Statutes, 2nd cd. p. 45, says: ■ Where a part of an Act has been repealed it must, although not of operative force, still be taken into consideration in construing the rest. If, for instance, an Act which imposed a duty on race-horses,, cab-horses, and all other horses, were repealed as regards race-horses, the remaining words would still obviously include them, if the enactment were read as if the repealed words had never formed a part of it." MARTIN'S MINING CASES. Lvol. What counsel for the defendant asks me to do is to interpret the Mineral Act as if sec. 18 had never formed a part of it. Although it would be very convenient to do this, I know of no law by which it Judgment for the plaintiff. From this judgment the defendants appealed to the Full Court. After the appeal was in the paper for argument, the plaintiff obtained an adjournment for the purpose of filing affidavits in support of a cross motion for a new trial, upon the ground of discovery of fresh evidence that King's location was not the prior location, and a notice of such cross motion was given by respondents to appellant's solicitor. The affidavits in support of the motion were filed. Upon the appeal and motion coming on for argument on the 17th, 18th and 22nd January, 1896, before Walkem, McCreight and Drake, JJ. : A. J. McColl, Q.C, and E. V. Bodwell, for the respondent: We desire to withdraw the motion for a new trial, as it appears that the respondent has made a similar motion, now pending before the County Court Judge, who is in a better position to deal with it. TF. J. Taylor and Robert Cassidy, contra: A party has no right to withdraw an appeal or motion for a new trial without the leave of the Court, and the Court will refuse the leave unless satisfied with the reasons for desiring it, and leave the motion to be dismissed, if not supported, Tod Ileatley v. Barnard (1890), W. K 90, 130; Re West Devon, &c, Mine (1888), 38 Ch. D. 51, 36 W. B. 342, 58 L. T. ■61, 57 L. J. Ch. 850; Re Downing (1891), 65 L. T. X. S. 665. It is necessary for the whole matter to be disposed of in this Court, otherwise it is open to the possibility that the defendants may succeed in this Court on the point of law involved in the appeal, and an appeal be taken elsewhere, subject to the whole proceedings being rendered nugatory by an order for a new trial made by the County Court. The judgment of the Court was delivered by Walkem, J.:—The Court has upon the appeal complete jurisdiction, under sec. 29 of the Mineral Act, 1888, over the whole subject, and power to grant a new trial as an alternative, whether moved for or not. It would be an anomalous position if this Court were to decide the question of law raised on the appeal, an appeal from which judgment might be taken before a higher tribunal with the result that : ■the whole of these Rule 6, tha al. The policy < were argued before Statemen tth and 25th March, in John King to Richard She* til after the date of record of ch bill of sale was not nils 01 sale to the de- -i.;May"9th, 1896. McCreight, J.:—This case seems to have been determined by His Honour Judge Spinks, with reference to certain sections of .the Mineral Act' (161,1) Amendment Act, 1892, which Act, by sec. 2, repeals sec. 18 of the Mineral Act, 1891, relating to priority ■of location in case of disputes, and by sec. 9 enacts: " That in case ■of anv dispute as to the title to a mineral claim priority of record will determine the right, subject to any question as to the validity of The jury have.found that the location of the Cariboo claim was on 9th June, whilst it seems to have been admitted that the location of the Rambler was on 10th June. It was agreed by counsel before Judge Spinks, at the trial, that the record of the Rambler was made on 13th June, and of the Cariboo on 15th June. The learned County Court Judge, on the construction of the Acts, held that the prior record " over-rode the prior location," and decided in favour of the Rambler company on that ground. The Cariboo ■company appealed to the Full Court, and the Rambler company considering that though successful before Judge Spinks, on the ground of Mvnig a prior record, their position would be materially strengthened should conclude, not as the former jury did, viz., that the Cariboo location was on 9th June, but, on the contrary, that it was after (by some days) 10th June, the date of the location of the Rambler, moved in the Full Court for an order for a new trial, and the question was argued at length and many affidavits were read on the part MARTIN'S MINING CASES. of the Rambler company, for the purpose of shewing that the Ca claim, which included a material part of the Rambler claim, wa located till many days after the location of the Rambler, which . admittedly located on 10th June.. June. the learned Judge, that mere priority erroneous, and that his judgment shov. sec. 9 of the Mineral Act (1891) Am Ad r'th ispu the right," but the concluding part of the section contains the following material qualification: "subject to any question as to the validity of the record, and subject also to a compliance by the free miner with the provisions of this Act." The " provisions of this Act," in this respect, I think, are mainly to be found in sec. 10 of the Mineral Act, 1891, and I think give no encouragement to locate on land lawfully occupied for mining purposes, but, on the contrary, practically prohibits it. In short, I do not think sec. 9 of the -Mineral Act (1891) Amendment Act, 1892, was intended to encourage one miner to trespass on the location of another: in other words, to do what may be known, perhaps questionably in forensic language, as "jumping."* I gather the meaning of the Legislature to be that there shall be a good location not obtained of course by trespass (see sec. 10 of the Mineral Act, 1891), and a good record, made of course within the time required l,v law. I can. therefore, quite understand that the periods of location of the Rambler and Cariboo claims might be of nmeh importance in case of a question arising between the original locators and recorders of those claims respectively, and, in that point of view, I can understand the strenuous effort that has been made to displace the verdict of the jury as to the location of the Cariboo, having taken place on the 9th, and to shew that it was made several days after the location of the Rambler, which was on 10th June, admittedly. I may add, moreover, that if it was material to justice, I think a case might be made out for a new trial, for I am by no means satisfied that the Cariboo claim was reallv located on 9th June; but whatever might be, or rather have been, the correct course to pursue as between those companies in the summer of 1892, we are now concerned with a very < qui ibury v. Hudm The present parties to this action, representing the Rambler and iriboo claims respectively. are Jessie Wright Atkins, plaintiff, repre- nting the Rambler company, and Belle Coy, A. L. Davenport, and . D. Wolfard, representing the Cariboo company. None of them was a party to the conveyance or bill of sale from :ing to Shea of June 25th. 1892, and that document, as to third irties, " must take effect from the date of record and not from the ite of such document." The date of record of the bill of sale of June 25th, 1892, was not ltil November 25th, 1894, and, of course, it can only take effect from the the . transfers to and records by Belle Coy, A. L. Davenport and Lake D. Wolfard, all of which took place in the years 1892 or 1893. Jessie Atkin's claim is through a conveyance from R, Shea, dated December 5th, 1894, and recorded December 29th, 1894, but she can of course have no better claim than R. Shea had through King's conveyance to him dated 25th June, 1892, but not recorded until 28th November, 1894; and, in other words, I do not see that she can prevail against Coy, Davenport and Wolfard, or that her position could be in any wav improved if a second jury should happen to find a verdict to the" effect that King did not locate the Cariboo on 9th June, 1892, but several days afterwards, that is to say on some day subsequent to the day on which the Rambler was located. I think, there- . fore, that there should be no new trial on the proposed issue as to the date of location of the Cariboo claim. MARTIN'S MINING CASES. Lvol. I may add that a repudiation or an abandonment by Shea of the- bill of sale of 25th June, 1892, to him from King, appears to have Rt- been deliberate, not only from the great delay in recording it, but T> j. from the evidence of Shea, where he says Aspinwall gave him the ■ $3.00, the fee for the intended recording back in September, and he ■ said he would destroy the bill of sale. However this may be, the effect of the records is plain: Jessie- Atkins is obliged to invoke the bill of sale of June 25th,'1892; and the date of the record thereof in the margin, of 28th November, 1894,. puts her out of Court in a contest with Belle Coy, A. L. Davenport, and Lake D. Wolfard. This, it will be observed, is quite consistent with full effect being given to the sections of the Acts of 1891 and 1892, already referred to, and constituting the ratio decidendi of Judge Spinks in favour of' the Rambler, though I think erroneously, for they deal with the subject of " location " and the primary record connected therewith, whilst sees. 50 and 51 of the Act relate to subsequent transfers, and are obviously necessary for the purpose of rendering those subsequent transfers safe. Without some such provision we should have a repetition of frauds as to alleged location difficult and perhaps impossible ; to detect, and far more numerous than those which we too frequently find in the English Reports, arising in non-registry counties. It seems to me quite clear that there is no conflict between the - above sections and sees. 50 and 51; and what is said in Maxwell on Statutes 3rd ed. at p. 228, is very applicable: " Their objects are different, and the language of each is therefore restricted to its own object or subject. When their language is so confined they run in parallel lines without meeting." The author is dealing with sections of different statutes, but of* course his remarks are still more applicable to sections in the same- statute; see also page 319 of the same work and same edition. It was argued on behalf of Coy, Davenport and Wolfard, that Jessie Atkins must have taken with notice, which she must have had by read-: ing the records, as she probably did of the Cariboo claim, but I had rather not rest my judgment on this ground, because it was held in Bushell v. Busliell (1803), 1 Sch. & Lefroy, 90; 9 R. R. 21, that the registry of deeds under the Irish Land Registry Act was not notice, and Lord Redesdale's reasons are given at page 23 of the Revised. Reports. Now I am inclined to think that the question of whether ■ Neve (1747), 2 Whr Redesdale's reasons 1 TKINS v. COY. itle, as d< the date penden I had written the above jui was no question as to the accu admitted though a part of the entitled to a new trial on the one which governs the case, a new trial should take place'if eitl party wishes to discuss the question of title as shewn on the regist As the Cariboo records are prima facie correct, I think that if they i not successfully challenged by the plaintiffs within two months, si that judgment should be entered for the defendants, Coy, Davenpi and Wolfard. As regards costs, I think the costs of the first trial should ab: the event of the second, if it shall take place; if not the defendar costs, and the costs of this appeal, should be the defendants' costs the cause. Wa County Court Judge Spi priorit locatin f defendants from the decisio: teld that priority of record | . 19, coir pels a claim to record the same with the proper officer within fifteen days, or such further time as the distance requires; if he fails tqimake his record, the claim is considered as abandoned. By sec. 18 of that Act priority of location was to govern in case of any dispute- of title, subject however to any question as to validity of record. This section was repealed by sec. 2 of the Mineral Act, 1891, Amendment Act, 1892, and in lieu of sec. 25 of the Act of 1891 a new section was inserted making priority of record govern in cases of dispute. From a careful examination of the clause repealed and the clause substituted, it is evident that the repealed clause had reference to cases where assessment work had been done in a claim and not where it had been simply located and recorded, but as this is the only clause existing in the Act of 1892 respecting disputed titles, the respondents rely on the plain words of the Act,that priority of record must over-ride priority of location. ■ Admitting that this view is correct, it is necessary to examine the clause and find out its meaning. The section says that priority of record will determine the right, subject to any question as to the $§pty of the record and compliance with the provisions of the Act. MARTIN'S MINING CASES. h'o:.. We find by sec. 10 of the Mineral Act, 1891, that a free miner, during the existence of his certificate, shall have the right to enter, locate, prospect and mine upon any waste lands of the Crown, excepting out of the above description of lands, land occupied by buildings, or in cultivation or any land lawfully occupied for mining purposes. This being the authority for a miner to enter, locate and prospect, no me else, after a proper location has been made, can enter on the same ground until the period has elapsed for recording. re the second location of the Rambler, as far as it in- he defendants' ground, was not a valid record, because the cation; this is of course of J hi location has a temporary title, liable to be dis- iced by a failure to record or by non-compliance with other provi- ms of the Act, such as non-possession of a miner's licence, or for t placing the posts as required by the Act, &c. In this case the Cariboo was alleged to be located on 9th June and ;orded June loth. The Rambler located June 10th and recorded ne 13th. If the location of the Cariboo is right, they were in time th their record and the Rambler had no right to locate on the In my opinion the judgment of the Coun ; the Rambler obtained a priority by rec ig made within the statutory .time, is wrc : Judge adjudging s first, both records the appeal should:■ true that the parties agreed .to leave only one question to ! , that was which party located first, and this the jury found in favour of the Cariboo. A copy of the records of the two claims was put in, which was' necessary in order to shew that both the records were made in due time, but the records contain other matters shewing certain transfers had oeen entered on the register, but no evidence was adduced to prove the validity of these transfers, and. I do not consider that the produc-' tion of the copy of the records proves anything further than that the ; original record was made in due time. But it having been shewn that''' an application for a new trial was pending before the County Court, and which had been postponed until the judgment in the appeal was given, the Court (considering that they had seizin of the whole case •and that it would be better for the whole matter to be decided) desired" the plaintiffs, who were moving for a new trial before the County Court, to bring the evidence on which they intended.to move before1' this Court. This view is in strict accordance with the statute giving an> -appeal, see sec. 29 of the Mineral Act, C S. B. C 1888. Bv that sec-: r~ ATKINS . COY. )rder a new trial or enter up a new itigants. materials before us to hear de novo ] for either party. The affidavits brought tion this Court can het judgment for one or ot It would be imposs or to enter up judgm forward by the plaintiffs shew that there is evidence now in their possession, and which I think it is sufficiently clearly shewn that they could not have and did not have at the trial, which might have materially altered the verdict. The difficulties of obtaining evidence in a mining country, where the people are continually moving about from one camp to another, prospecting over a large area, has not been exaggerated; communication is very difficult, and I think if it had not been for the views held by the learned Judge on the question of prior record over-riding prior location, and which drew the attention of miners all through the district to this case, this evidence would not have been obtained. It is hardly necessary to critically examine the affidavits. I think, as I stated before, they substantiate the plaintiff's contention that a new trial should be had in the interest of justice. Whether or not the County Court has a larger power to grant new trials than the Supreme Court is an interesting question, but in the present case I do not think it is necessary to decide it. Neither do I think it necessary to decide the question as to whether the parties had such a notice of the dealings with these claims as would preclude them from litigating their rights. This question, and it is an important one, will doubtless have careful consideration when the rights of the parties are under consideration again. In my opinion there should be a new trial, the question of lociv- tion not to be a subject of trial, and the costs of the first trial should abide the result of the second. With regard to the costs of this appeal, I think they should be defendant's costs in the cause. Judgment accordingly. Note.—On 11th May, 1896, Bodwell obtained leave to appeal to the Privy Council, but the appeal was abandoned. As to registration of conveyances and notices: see Nelson and Fort Shcp- . pard Ry. Co. v. Jerry, post. pp. 161, 187; Stussi v. Brown, post, p. 195; I Alexander v. Heath, post, p. 333; and Grutchfield v. Harbottle, post, p. 396. And see sec. 130 of the Mineral Act. As to invalidity of re-location on existing valid location : see Manley v. Col- lom, post, p. 487; and see note to that case for list of decisions on objects in As to' policy of Mineral Acts: see pp. 71,139, 187, 194, 236, 307, 333, 336, 414, 446. 98 MARTIN'S MINING CASES. [vox,.. 1896. July 28. Bainbridge v. Esquimalt and Nanaimo Ry. Co. Privy (1896 A. C. 501; I H. C. 181). Council*. Precious Metals—Free Miner's Rights—Esquimalt and Nanaimo Railway By sec. 3 of the British Columbia Act (47 Vict. ch. 14), land was granted to the Dominion Government, the appellant company's predecessor in title, " including all mines, minerals, and substances whatsoever thereupon, therein,, and thereunder:" Held, in an action for wrongful ejectment by the holder of a free miner's certificate under the Placer Mining Act, 1891, applicable to a part of the land granted, that he was entitled to mine for gold and other precious metals thereon, the above Words not being sufficiently precise to transfer to the appellants' predecessor the right of the Provincial Legislature to administer the precious metals in the lands assigned. Decision of Pull Court of British Columbia affirmed. Appeal by the Esquimalt and Nanaimo Railway Company from an order of the Full Court (Aug. 7, 1895), affirming an order of Drake, J. (Oct. 17, 1894), whereby it was adjudged that the respondent was entitled to enter on and mine the lands of the appellants upon complying with the conditions contained in s. 11 of the Placer Mining Act of 1891. The question in issue was as to the right of the appellants to the mines of precious metals within the belt of land granted to them by the Crown, as represented by the Dominion of Canada, for the purpose of constructing and to aid in the construction of their railway. The facts are stated in the judgments. The judgments delivered in the Courts below are as follows:— October 2nd, 1894. Drake, J.:—(On the original motion for injunction). This is a motion by the plaintiff to restrain the defendants from interfering with the plaintiff in his alleged right to mine for gold in a certain placer claim in Alberni District known as Blue Ruin claim, and by consent of both parties the motion was turned into a motion for judgment. On 21st June, 1894, the plaintiff, a free miner, located a claim on China Creek, Alberni, and duly recorded the same with the mining recorder at Alberni, and all necessary preliminaries were complied with to enable the plaintiff to prosecute his work. On the 23rd June, 1894, the plaintiff was summarily ejected by the defendants. The defendants' case is, that by Act 47 Vict. ch. 14, sec. 3, the Legislature of British Columbia granted certain lands in Vancouver * Present:—Lord Watson, Lord Hobhouse, Lord Davey, and Sit Richard- X] BAINBRIDGE v. ESQUIMA Island, which included the land i sented by the Dominion Governme Esquimalt and Nanaimo Railway, the Crown, by deed, granted to the them by the Provincial Legislate the deed and Act, they are entitl G-consfcraction of the ;he 21st April, 1888, the lands granted to K Ine statute m question was passed to carry out an agreement Ijaich had been arrived at between the Dominion and Provincial governments, and was confirmed by a Dominion statute of 17 Vict. ch. 6. By the Provincial Act, 37 Vict. ch. 14, sec. 3, the land granted to the Dominion is denned by metes and bounds, and is stated to include aUnCoal, coal oil, ores, stones, clay, marble, slate, mines, minerals and substances whatsoever. The grant from the Crown to the defendants uses the same terms as to the land and its appurtenances as that contained in 47 Vict. ch. 14, sec. 3. The Attorney-General {Theodore Davie, K.C), on behalf of the plaintiff, relies on the judgment of the Privy Council in the case of The Attorney-General of British Columbia v. The Attorney-General of,Canada (1889), 14 App. Cas. 295, ante, p. 52. Mr. Pooley, Q.C, for the defendant, argues that although gold and silver are not expressly mentioned, yet they are included in the term " minerals and substances whatsoever," and points cut that the term "lands" would have been quite sufficient to pass everything but the precious metals; that the terms used sufficiently indicate an intention bMnclude both gold and silver, especially as in the then existing and antecedent legislation of the Province the term " mineral" was used to define gold and silver, -kjgy the gold mining ordinance of 1867, ch. 123 of the Consolidated Acts of 1877, the term " mine " is stated to mean any vein, stratum or natural bed of auriferous earth, and in the Mineral Act, ch. 82, of the Consolidated Statutes of 1888, sec. 2, "minerals" include all nsBfiierals, precious or base (other than coal), found in veins or lodes, or-rock in place, and whether such minerals are found separately or in combination with each other. And by the Crown Lands Act, ch. 98, of the Consolidated Acts, 1877, sec. 80, and ch. 66 of the Consolidated. Acts of 1888, sees. 95-6, it is enacted that nothing therein contained should be construed so as to interfere with the rights of miners under the Mineral Act or subsequent Acts relating to gold mining. The use of a general term to indicate the precious metals in these statutes does not, in my opinion, extend the meaning of the term minerals when used in any other Act. The interpretation clause in these Acts is merely a, dictionary to define particular expressions in the Acts towhwsh. it is attached/and unless there is any clause incor- 100 MARTIN'S MINING CASES. [voiv 1896. porating the Mineral Act in the statute in question in this case, I do ' 1L?8' not consider that I can give to the terms used, any other meaning than Privy their ordinary legal signification. If I might hazard a conjecture why the special terms which are used in the present Act were inserted, it is possible that the parties interested in the agreement did not desire to have their right to coal and coal oil questioned, as coal is expressly excepted in the Mineral Act, and does not pass under the term "mineral" there. Gold or silver mines, as Lord "Watson says in the case of The Attorney-General of British Columbia v. The Attorney-General of Canada, supra, until they have been aptly severed from the title of the Crown and vested in the subject, are not regarded as partes soli or as incidents of the land in which they are found. The question is, have these royal mines been severed from the title of the Crown by the language used. Here, under the terms " mines," " minerals," " substances," they would not pass. The statute in question commences with coal and coal-oil, indicating, in my opinion, all minerals and mines which would pass under the term of " lands " in ordinary cases in a grant to the subject, and has no reference to mines royal. , A further question arises in this motion, and that is, have the de- > fendants the right to prevent the extraction of gold or silver from their lands, owned and occupied by them, by free miners ?. The rights - "oefow" °f miners to enter upon lands for mining purposes is apparently not Drake,',I. limited to Crown lands. See sees. 11-12 Placer Mining Act, 1891, ch. 26. Independent of statutory authority, no person has a right to tres-. pass on private lands; but sec. 95 of the Crown Lands Act, 1888, authorizes free miners to enter upon any lands in the Province to search for and work gold and silver, following in substance the language used in the Act existing at the date of the grant of these lands to the Crown. These lands, in my opinion, are therefore subject to the right oft entry by free miners to search for the precious metals, subject to the conditions precedent contained in sec. 11 of the Placer Mining Act, 1891, ch. 26, which conditions both parties admit have been complied with. I, therefore, give judgment for the plaintiff with costs. FoL^OonKT From this judgment the defendants appealed to the Full Court, and the appeal was argued before Crease, McCreight and Walkem, J J., on the 10th day of May, 1895. Hon. C. E. Pooley, Q.C, for the appellants. The Attorney-General (Eberts, Q.C), contra. Cur. adv. vult iSQUIMALT AND NANAIMO RY. CO. Au t7th, P Crease, J.:—This is a test case which puts in issue the exclusive lights of the E. & N. Railway Company to the precious metals in what is known as the E. & N., or Island Railway belt. Briefly stated, the facts are as follows:—The plaintiff, William Herbert Bainbridge, a free miner under the British Columbia Gold Mining Acts, having duly fulfilled all the preliminary requirements of the law for the purpose, and having taken up, recorded and worked a gold mining claim at Alberni, called the Blue Ruin placer claim, within the said belt, was ejected by the defendant company as a trespasser. Thereupon he obtained an injunction against them, which, by consent, was turned into a motion for judgment before the Supreme Mr. Ju ;Di thel , 1894, by two ques tions raised in the case in favour of the plaintiff:— 1. That the precious metals, gold and silver, had not been conveyed by the Crown to the company; and 2. That such being the fact, a free miner, on fulfilling the ordinary statutory conditions in that behalf, had the same right to mine and work a placer claim for gold within that belt, as he had in other private lands in the Province. It is conceded that the title to the lands and minerals within the Island Railway belt depends on the statutes, local and Dominion, and the Crown grant affecting it, cited in extenso on both sides, and set out in the appeal book. And the two points at issue depend on the construction which the law places on those authorities. It is admitted also that the plaintiff's mining claim is situated ' within the Island Railway belt, and included in the lands, the fee in which is granted to the defendant company. The railway company claim that the Province, by the B. C Act, 47 Vict. ch. 14, 1884, ratified and confirmed by the Dominion Act, 47 Vict. ch. 6, 1884, and the Crown grant from the Dominion to the company, 1887, each passed the same public lands and all mines and minerals whatsoever, in the same language, which also included the right to the precious metals. They further maintain that, by implication, such of the legislation of B. C as to private lands, before and at that time, which deals with gold mines, points with sufficient clearness to the interpretation, which includes the precious metals in their grant, and claim a decision But an examination into the actual wording of the statutes and of the grant, and the settled construction which the law places upon the wording employed in them, does not bear out that conclusion. MARTIN'S MINING CASES. [vol The 47 Vict. ch. 14, B. C (the Act relating to the Island Railway, J the graving dock and the railway lands of British Columbia), and the grant of April 21, 1887, made in pursuance thereof, after granting the lands of the railway belt to the Railway Company, granted also " all coal, coal oil, ores, stones, clay, marble, slate, mines, minerals and substances whatsoever in, on or under such lands," unto and to the use of the said company, its successors and assigns " forever," subject to. certain conditions and stipulations, which do not affect the present settled, are not " precise and apt" to grant with them a grant of the roval mines of gold and silver. From the earliest time, in an unbroken chain down to the present, nothing less than unmistakeable language conveving the gold and silwr is allowed by law to pass these royal mines and metals. The law on the subject 'in England is the law in British Columbia, and has been so, at least, since 1858. As far back as the time of Elizabeth, and before (see Plowden, 310-33) it was settled that "nothing of prerogative can pass without express and determinate words," and since then the precious metals have always been recognized as a part of the prerogative rights of the Crown; and the above rule for their transmission has ever since then been strictly observed and handed down. In the case reported in (1568), 1 Plowden, 336 (a) Re Earl of Northumberland's Mines, " all the Justices and Barons agreed that a mine royal, whether of base metals containing gold and silver, or of ' land' and ' mines ' should be taken to common intent, and shall not make the ores royal, or the mines royal to pass, to convey which there ought to be in the patent precise words expressing them." And there are none such here. Nay—even more strongly—for be says: " That in many cases the construction of law may, for the benefit of the King, be against the expressed letters of the grant; and, when the King granteth the Manor of Dale, and all manner of underwoods, mines and quarries in the same; yet the mines of gold and silver shall not passe." And the other high authorities, Davis 576, Littleton 116, Hobart 243, all express themselves on the point to the same effect. In a later case (1877) before the Court, Woolley v. Attorney- General of Victoria, supra, in an appeal before the Privy Council, the same rule of construction is emphatically confirmed. There the question was whether upon the sale of waste lands of the Crown, the gold which might be found therein passed to the pur- JNBRIDGE v. ESQUIMALT AND NANAIMO RY. CO. iere being no words in the grant of the Crown exp: the 'Mi » II srred to (1 Plowden 336), laid down that "it is perfectly clear that ever since that decision it has been settled law in England that the prerogative right of the Crown to gold and silver found in mines will not pass under a grant from the Crown, unless by apt and precise words the intention of the Crown be expressed that it shall pass." In another part of the same judgment the same learned Judge says: ".There is no reference to the rights of the Crown in the precious metals to be found under the soil; and it is a recognized principle of the construction of statutes that the prerogative right of the Crown can be affected only by express words, or necessary implication." In the case under citation it was conceded that " this rule must be taken to have been introduced as part of the common law of England into the colony of Victoria." And it is not disputed that the same rule has been introduced and obtained here as part of the common law of England in British Columbia. In a case of considerable importance heard before the Privy ^T Council in 1889, The Attorney-General of British Columbia v. The Crease, J. Attorney-General of Canada, supra, the question raised was whether the grant by the Province of certain public lands to the Dominion— admittedly carried with it the baser metals, "mines and minerals," and I might add for this case " substances," as incidents of land also carried with it the right of the precious metals. Lord Watson, in a long and well considered judgment reviewing all the authorities on the question from Plowden downward, delivered the decision of the Court that jure regalia (of which the right to gold and silver is one) " are not accessories of land." And he declared that the precious metals within that railway belt are vested in the Crown, subject to the control and disposal of the Government of British With regard to the company's contention that the use and interpretation of the words " mines and minerals " in several British Columbia Acts passed before, as well as at the time of the grant, indicated the intention of the Crown that the words " all mines and minerals whatsoever " in the grant shall include " gold and silver," a very short examination, however, of these shews not only that such could not have been the case, but that the B. C House of Assembly has been anxious, if only for the sake of the miners themselves, in all their legislation and Crown grants, whether relating to land or mines, care- MARTIN'S MINING CASES. [vol.. fully to give public notice in them that the Crown- retains intact all its prerogatives with regard to the precious metals. In 47 Vict. ch. 10, sees. 1-61-69 (The B. C Mineral Act) and amending Acts, under which the plaintiff claims—and which was passed at the same session as the Island Bailway Act—the word "mineral" is declared to mean and include "all minerals precious and base (other than coal) found in veins, or lodes, or rock in place," and the Crown grant under it is declared " to pass and transfer the right to all metals precious or base (other than coal!) found in veins, lodes, or rock in place." But this only refers to the rights which the Legislature intended to be conveyed to gold miners under the particular Acts in which such / special sections occur. And shews that when they wished the precious metals in any case to pass, having the power to do so, the Legislature knew very well how , to do it, and invariably used " apt and precise " and clear words to effect that object. Whereas, in this case, they did not do so, the only inference is that they omitted to do so designedly, and that their real intention was that by the words used in the railway grant the precious metals should not pass. The same observations and reasoning apply to the B. C Acts referring to the royal prerogatives, passed before the railway grant, such as the Mineral Acts and Land Acts, and the forms of Crown grants attached to them. Throughout, the Legislature seems to have taken as a matter of course the long-established rule that the Crown only expresses its intention to part with the precious metals by apt and precise words, , the meaning of which cannot be mistaken. I am, therefore, of the opinion that the judgment of Mr. Justice Drake must be supported, and the appeal dismissed with costs. it McCreight, J.:—The law seems to be so thoroughly settled to the' Tj effect that mines of gold and silver will not pass by a grant from the Crown without express words granting them (Woolley v. Attorney- General of Victoria, supra, and see the distinct admission of the counsel for the appellant at page 165, whilst arguing before the Judicial Committee to the above effect, and the judgment of the Court at page 166), that it would not be right to dwell on all the authorities to the same effect, such as Earl of Northumberland's Mines, supra, where it is said that "nothing prerogative can pass without express and determinate words," with which agree Abert's Reports 243, Davis 57b, Lyttleton's Reports 116, Mayor 175, and see Woolley v. Attorney-General of Victoria, supra, p. 167. The Judicial Committee say in their judgment at p. 166, that the point is " simply I.] BAINBRIDGE v. ESQUIMALT AND NANAIMO RY. CO. whether upon the sales of waste lands of the Crown, etc., the gold i« that might be found in such lands passed to the purchasers, there Jl being no words in the grant from the Crown expressly granting it. c£* Now, whatever may be the reasons assigned in the case in Plowden" for the rule thereby established, and whether they approve themselves or not to modern minds, it is perfectly clear that ever since that position has been settled law in England, that the prerogative right of the Crown to gold and silver found in mines will not pass under a grant of land from the Crown unless by apt and precise words the intention of the grant is expressed it shall pass. It was fairly stated by the learned counsel for the appellant that this rule must be taken to have been introduced as part of the common law of England into the colony of Victoria." See also Attorney-General of British Columbia v. Attorney-General of Canada, supra. These authorities seem to me to leave no doubt that under 47 Vict. ch. 14, sec. 3, B. C, the words "including all coal, coal oil, ores, stones, clay, marble, slate, mines, minerals, and substances whatsoever therein, thereupon and thereunder," do not pass gold and silver, that is the precious metals. No doubt the local Legislature might ■ have, by apt and precise words, altered the law in this respect, but as the Judicial Committee say in Woolley v. Attorney-General of Victoria, "it is a regular principle of jUdg the construction of statutes that the prerogative rights of the Crown *j0cm can be conveyed only by express words or necessary implication;" and when we come to look at the British Columbia Acts, it is apparent the Legislature have always been anxious to retain unimpaired the rights of free miners, or, to adopt the grave and respectful language of the law, the prerogative rights of the Crown in respect of the precious metals; and with a view, no doubt, to prevent misapprehension, care has always been taken that in Crown grants to individuals (ch. 16, 47 Vict.), notice of the retention by the Crown of its prerogatives in reference to precious metals should be inserted. Again, in 47 Vict. ch. 10, we find the word " mineral" included all minerals, precious or base, other than coal found in veins or lodes. By sec. 61 the word mineral as used in this Act shall mean and include all minerals, precious and base, other than coal found in veins or lodes. Again, in sec. 69 we find, " Such Crown grant shall be deemed to transfer and pass the right to all minerals, precious or base, excepting coal," &c, and the same expression is to be found in the form of Crown grant, page 39. These Acts were passed during the same session as that in which the Act relating to the Island Railway was passed, and show that the Legislature knew well that the precious metals could only be conveyed by apt and precise words, and were certainly far-from showing any disposition to alter the law in that respect, or in any way to affect the prerogatives of the Crown in reference to precious metals.' Not merely do these contemporaneous Acts of the Province shew this, MARTIN'S MINING CASES. [vol. but antecedent legislation is in the same direction. See the form of Crown grant in the Mineral Ordinance of 1869, and sees. 80 and 81 of the Land Act of 1875, continued or re-enacted by the Land Act of •1884, and see form No. 7 of Crown grant in the schedule reserving to free miners the right to enter on land alienated by the Crown and search therein for precious metals. For these reasons I think the judgment of Mr. Justice Drako is correct, and the appeal should be dismissed with costs. Walkem, J.:—By sec. 3, ch. 14, of the statutes of 1884, the Provincial Legislature "granted" (I am quoting the words) "to the Dominion Government for the purpose of constructing, and to aid in the construction of, a railway between Esquimalt and Nanaimo, and in trust to be appropriated as they may deem advisable ... all that piece or parcel of land situate in Vancouver Island, and described as follows" (here follows the description), "and including all coal, coal oil, ore, stones, clay, marble, slate, mines, minerals and substances whatsoever thereupon, therein and thereunder." In furtherance of the same project, the Dominion Government, subsequently by patent from the Crown, granted the same tract of land and inclusive substances to the Esquimalt & Nanaimo Railway Company, the now appellants in this action. Briefly stated, the question we have to deter- ' mine is whether the words " all mines, minerals and substances whatsoever," &c, had the effect of divesting the Crown as represented by the Province of its prerogative right to the precious metals. In Woolley v. Attorney-General of Victoria, supra, the Judicial Committee, after referring to the Earl of Northumberland Mines' Case, supra, makes the following observation: " It is perfectly true that ever since that decision it has been settled law in England that the prerogative right of the Crown to gold and silver found in mines will not pass under a grant of land from the Crown unless, by apt and precise words, the intention of the Crown be expressed that it shall pass." The words " all mines, minerals, and substances whatsoever thereupon, therein and thereunder," are certainty very comprehensive, and in their ordinary sense would probably be deemed to include precious as well as base metals; but in the present instance their meaning is controlled and limited to base metals by the several words which precede them, in accordance with the maxim noscitur a sociisj and consequently that meaning cannot be expanded so as to include prerogative rights or jure regalia, which admittedly do not exist in respect of the grant of the coal, coal oil, lands, beds of clay, and stone, slate and marble quarries mentioned. It seems to me that the Legislature, by its very act of minutely particularizing the substances mentioned, designedly meant to exclude the precious-metals. Had it been otherwise, the term precious metal, i.] BAINBRIDGE v. ESQUIMALT AND NANAIMO RY. CO. Lr perhaps royalties (as in sec. 109 of the B. N. A. Act), or some equivalent term would have been found in the section Nor, in my opinion, was the omission to include the precious metals an oversight on the part of the Legislature, for during the same session it had before it a measure in amendment of what is erroneously known as the Gold Mining Act, 1882, in which " mines " and " minerals " are respectively defined, in substance, as auriferous earth or rock, or lodes or veins containing any .minerals excepting coal. (Sec. 45, Vict. ch. 8; 4(> Vict. ch. 19.) While thus careful to define these words in the red to. In an] ;o shew that th< ,s of the Crown Id be in faVou: 'eneral of British Columbia v. The Attorney- supra, Lord Watson observes that " gold and hey have been aptly severed from the title of the t only so, but the which it Contains ti its right to the humble opinion, be said to strengtl v. The Attorney-General of Victor in the case of Woolley The appeal must be The appeal was argued before the Judi incil on July 9th, 1896. Cozens-IIardy, Q.C, and W. H. Clay, i of the Privy appellants, contended that the letters patent under the Great Seal of Canada, dated April 21, 1887, undiarwhich the Crown, after reciting the local Act 47 Vict. ch.l4,and the Dominion Act (47 Vict.ch.6),granted to the appellants the precious metals contained in the lands in suit. According to the feftB'Construction of those Acts, a grant of those lands effected a grant of the gold, silver, and precious metals I therein and thereunder. The mfads " mines, minerals, and substances whatsoever," used in both AWare apt and precise words, in order to sever from the title of the Crown and to vest in the appellants the mines in question. As to the .instruction of the word " mine," see " The Gold Mining Ordinance, 1867," of British Columbia; Consolidated Acts, 1877, ch. 123, sec. 1; and as to " minerals," see the same Consolidated Acts, ch. 126, sec. 1; Compare the "Mineral Act" (1884, eh. 10, see.: 154), (Consolidated Acts, 1888, ch. 82), a6 to both words. The precious metals being vested <m MARTIN'S MINING CASES. ,or the "Land Act, Capp°ella their c L," sec. Pla 10, 6 cer claims could and having rent. The word oes not include for the purpose of locating or work "Land Act, 1875," (Cons. Acts, 188 1884," ch. 16, sec. 75 (Cons. Acts, cl N not be lawfully located or recorded gard to the terms of their grant " lands " in the " Placer Mining A lands in which the precious metals have been previously granted away by the Crown. Reference was made to the Attorney-General of British Columbia v. Attorney-General of Canada (1889), 14 App. Cas. 295, ante, p. 52; Chitty on Prerogative, p. 294; Woolley y. Attorney-General of Victoria (1877), 2 App. Cas. 163, 166. Bigham, Q.C, Eberts, Q.C. (Attorney-General of British Columbia), and C. A. Russell, for the respondent, contended that the words in the local Act, 47 Vict. ch. 14, relied upon were not intended to vest the precious metals in the lands in suit in the appellant. They were not in themselves sufficiently precise for that purpose. The right of mining for them, therefore, remained in the Provincial Legislature; and the respondent, under the terms of the Placer Mining Act, 1891 (54 Vict. ch. 26), having complied with the conditions contained in sec. 11, was entitled to enter upon the lands for that purpose. The respondent's case rested solely on this, that the letters patent did not and were not authorized to make any reference to the precious metals, and that " mines, minerals, and substances whatsoever " could not be deemed to include them. Cozens-Hardy, Q.C, lied. The 3 ju ent of the Lordsk as deliv Lord Watson :—The respondent in this appeal is the holder of a free miner's certificate under the " British Columbia Placer Mining Act, 1891" (54 Vict. c. 26), authorizing him to work the Blue Ruin claim, 100 by 100 feet, which is situate within lands in Vancouver Island belonging to the appellant company. The Act of 1891 by sec. 10 gives the holder of such certificate the right to mine for gold and other precious metals " upon any lands in the Province of British Columbia, whether vested in the Crown or otherwise, exceut troon * gove: ,nd c upn iild> ing and any land falling within the curtilage of any dwelling-house, and any orchard, and any land lawfully occupied for placer mining purposes, and also Indian reservations." By sec. 11 the free miner is bound to give adequate security to the satisfaction of the Gold Com- I.] BAINBRIDGE v. ESQUIMALT AND NANAIMO RY. CO. missioner for any loss or damage which may be caused by his entry, and to make full compensation to the occupant or owner of the lands for any loss or damage which may be caused by reason of his entry; such compensation, in case of dispute, to be determined by a Court having jurisdiction in mining disputes, with or without a jury. L' The appellant company ejected the respondent from the land specified in his certificate, which he had entered upon for the purpose of gold mining; whereupon he brought the present suit against them before the Supreme Court of British Columbia, in which he concludes (1) for damages, and (2) for an injunction restraining them from interfering with his working, for gold and other precious metals, the Blue Ruin claim, as described in his certificate. The defence to the action is disclosed in an affidavit filed by James Dunsmuir, the president of the appellant company. Omitting details, the substance of the allegations made in defence is, that the company were, before the issue of the respondent's certificate, fully vested with the whole right and interest of the Crown to and in the mines of gold and other precious metals within the whole lands belonging to them in Vancouver Island, including the land embraced in the respondent's Blue Ruin claim. Accordingly, the main, if not the only question arising for decision is: Whether the appellant company have right to the mines of gold and other precious metals which may exist within their lands. Drake, J., before whom the case was tried, has found that they have not, and has ordered and adjudged that the respondent is entitled to enter upon and mine the lands belonging to them upon complying with the conditions contained in sec. 11 of the Placer Mining Act of 1891. On appeal, his judgment has been unanimously affirmed by the full Court, consisting of Crease, McCreight and Walkem, JJ. The respondent does not maintain that his free miner's certificate would give him any right to enter and work if it were held that the gold and other precious metals in the lands of the appellant company are their property. The circumstances under which the title of the appellant company to gold and other precious metals is asserted are as follows. By Order of Her Majesty in Council, dated May 16, 1871, the Province of British Columbia was admitted into the Federal Union of Canada, in terms of sec. 146 of the British North America Act, 1867, subject to articles of union which had previously been agreed to by the Governments of the Dominion and the Province, and sanctioned by their respective legislatures. These articles included an undertaking by the Dominion to construct a line connecting the Canadian Pacific Railway with the sea-board of Vancouver Island; in consideration of which, the Government of British Columbia became bound to grant to the Dominion, (1) a belt of land twenty miles in width, on either side of the new railway, across the mainland of the Province, and (2) a MARTIN'S MINING CASES. ; [vol.. large area of land in Vancouver Island, described by boundaries which it is unnecessary, for the purposes of this appeal, to refer to. The railway has been made in terms of the undertaking, given by the Dominion Government, who delegated its construction to the British Columbia were sanctioned, and given effect to, by the British Columbia Act, 47 Vic. ch. 14. Section 2 of that Act granted to the Dominion Government the public lands along the line of railway to a width of twenty miles on each side of the line. Section 3 granted to the Dominion Government the area of land in Vancouver Island, already mentioned, " including all coal, coal oil, ores, stones, clay, marble, slate, mines, minerals, and substances"" whatsoever thereupon, therein, and thereunder." .on, to the effect that the company, when formed, should construct the ine now known as the Esquimalt and Nanaimo Railway. After the Act (47 Vic. ch. 6), which also authorized the Governor in Council to grant to the company all the lands situated in Vancouver Island which had been granted to Her Majesty for behoof of the Dominion, by the Legislature of British Columbia, in aid of the construction of the railway, " and also all coal, coal oil, ores, stones, clay, marble, slate, mines, minerals, and substances whatsoever in, on, or under the lands so to be granted to the said company." In pursuance of that statutory authority, the Dominion Government, by deed under the Great Seal of Canada, dated April 21st, 1884, granted and assigned to the appellant company, inter aliu. all the lands and minerals in Vancouver Island which had been granted to that Government by sec. 3 of the British Columbia Act (47 Vict. ch. 14). The extent of the appellant company's interest in these lands and minerals must therefore be determined by reference to the terms of that clause. •In Attorney^General of British Columbia v. Attorney-General of Canada (1889), supra: it was held l>v this board that sec. 2 of the British Columbia Act, which relates to the lands comprised in the forty-mile belt, did not give the Dominion Government any right to gold and other precious metals in those lands, which were held by the Crown under its prerogative title. The 2nd section, which I profess to grant any subject, other than " public lands." The appel- upon the enumeration of minerals which is coupled with the grant of lands in see. 3 as sufficient to show the intention of the Provincial ^SSEi&Iia,, 0 BAINBRIDGE v. ESQUIMALT AND NANAIMO RY. CO. Legislature to transfer to the Dominion Government their right to administer the precious metals in these lands. The words relied on are, "including all coal, coal oil, ores, stones, clay, marble, slate, mines, minerals, and substances whatsoever thereupon, therein, and thereunder." The only expressions occurring in that enumeration which can possibly aid the argument of the appellant company are "mines, minerals, and substances." Not one of these expressions can be rightly described as precise, or, in other words, as necessarily including the precious metals. According to the usual rule observed in the construction of the concluding and general items of a detailed enumeration, they may be held to signify alia similia with the •als ! pr usly ed; their lordships to be sufficient for the decision of the pr they may be aptly limited to minerals or substances v dents of the land, and pass with the freehold. Being of the same opinion with the learned Judges below, in whose reasoning they concur, their lordship advise Her Majesty to affirm the judgment appealed f spondent's costs of this appeal must be paid by the z appe tha Appeal dismissed with costs. 112 MARTIN'S MINING CASES. Ivor,. 1896. McCreigh Bleekir et al. v. Chisholm et al. 19 rT (8 B. C. 148). Location—Conflicting Locations—Location Line —Measurements — Evidence— Pleading—Burden of Proof—Mineral Act, 1901, and Amendments. A location line which is not run as near as possible on the line of the ledge or vein invalidates the location. Where a location is purported to be made on ground already covered by a valid and existing location the junior location is invalid to at least the extent of the ground already covered by the senior location. The provisions of the Mineral Acts as to location are imperative. Where the area of a mineral claim is in dispute, the evidence of one who has made no measurements is of little if any value. Adverse action tried before McCreight, J., at Rossland on September 29th, 1896. The facts appear in the judgment. A. H. MacNeill and F. M. McLeod, for plaintiffs. Hamilton, for defendants. Cur. adv. vult. November 19,1896. McCreight, J.:—The question in this case appears to be whether, the Red Oak claim having been located before a year from the location or rather the record of the Blue Bird Mineral claim had expired, and the Back Pay having been located after the expiration of such year the Red Oak or the Black Pay is entitled to the lands and minerals claimed by both claim owners. I may observe that sec. 24 of the Mineral Act of 1891, in dealing with the duration of the claim refers to the time of the "recording of the same." The location of the Blue Bird took place on the 20th day of April, 1895, and the record on the 3rd of May, 1895. No doubt by the Mineral Act, 1891, as already referred to, any free miner having dul; • located and recorded a mineral claim is entitled to hold the same for a period of one year from the recording of the same. The Red Oat appears to have been located on the 21st of April, 1896, and prima facie too soon with reference to so much of the ground included therein as appears to be likewise included in the Blue Bird and Back Pay. But the defendants representing the Red Oak attack the location of the Blue Bird as having failed to satisfy certain statutory requirements in the Mineral Acts, and that chiefly referred to and relied BLEEKIR e jr. ©KISHOLM E 113 upon by them is that the Blue Bird location line is bad, because such '1896. location line is not placed on or as near as possible on the line of the ovemer ledge or vein: see B. C statute, 1894, ch. 32, sec. 4. Before proceed- MoGjmighi,*. ing further I would here refer to a map prepared by Mr. Ellicott, a Provincial Land Surveyor, and as far as I can judge carefully prepared. The objection that the measurements were trigonometrical measurements, and not actu'al measurements, I cannot attend to, as I believe measurements on any large scale or in irregular ground are thus' made—and if carefully made must be accurate—•' and a claim is to be measured irrespective of inequalities on the surface of the ground •Oj^trigonometrically:" B. C Statute, 1894, ch. 32, sec. 4. At all events I cannot say that the value of the map is much, if at all affected by the evidence of the plaintiff Bleekir, who does not appear to be a surveyor, admits he made no measurements, and that his diagram is not made to scale. He, moreover, says that the Red Oak was staked over the whole of the Blue Bird ground, whilst the surveyor's map seems to .shew that this remark holds good as to only about one-third of the Blue Bird, and lastly, though the diagram was produced, it seems not to have been put in evidence by plaintiff's counsel. The objection that the location line of the Blue Bird was not placed as near as possible on the line of the ledge or vein, seems to me to be serious. There can be no doubt of the fact that it was not so placed, for the evidence of Bleekir when asked what he did when he located the Back Pay mineral claim is that " I started to run my line the same way as the Blue Bird line and blazed a line about 200 feet. I changed my line and ran my location in a westerly direction, instead of southerly because I was, &c.—the location line of the old Blue Bird was southerly/' See also the evidence of Merrill and Waterhouse. He is asked to draw a line representing the Back Pay, then he is asked to draw the Blue Bird line—" the respective distances shewing where they cross." Then Waterhouse is asked " The two lines are at right angles, about at right angles ? A. Well, as near as I can tell, they are .about twenty or thirty feet apart, I should judge." No doubt he mistook; feet rfox ftegrees. This piece of evidence is criticized by counsel for the plaintiff on his argument, but my own note is that Waterhouse says the jEtiscovery Post of the Blue Bird and Back Pay are on the same ledge—now Bleekir deliberately departed from the Blue Bird location line evidently thinking it to be incorrect, and chose one instead going to the Discovery Post of the Blue Bird, and seems to have placed his Back Pay Discovery post close to the other Discovery Post, and as the law required on his location line, and " as near as possible " to the ledge. This all appears very clearly fromjEJljicptt's map, where the deviation of the Blue Bird location line from the line of the ledge, and Bleekir's location line appears to be between forty-five and ninety degrees. It is said that the burden of proof of the deviation of the Blue Bird lane 114 HARTIN'S MINING CASES. [vol. 1896. and that it was unnecessary, is on the defendants. Supposing that November 19. to be so^ an(j j am not gure ttiat it ^ j think the evidence I have re- McCreight,J. ferred to amply satisfies that burden. Bleekir's evidence and conduct shews the deviation, and that there would have been no difficulty in running the location line of the Blue Bird along the ledge as he seems- to have done with the Back Pay. It is said that this objection should have been specifically raised in the pleading, but the answer is that the evidence was introduced without, as far as I know, any objection,, and moreover consists not of evidence brought forward by the defendants, but of voluntary statements made by the plaintiff and his- witnesses, and having been introduced I must deal with it. Bleelar was evidently anxious to locate along the ledge and comply with the law, and to prove that he did so, and I don't think he would or could have called witnesses to prove the reverse, or that there would have- been any use in doing so—there was no surprise on the plaintiffs, no suggestion of another ledge, and the action of the three companies- shows that they were thinking of ho ledge save that along which Bleekir ran his location line for the Back Pay: see Ellicott's map- where the three Discovery Posts are all close together. This map can hardly be considered as evidence hostile to the plaintiffs, for it represents the deviation as less than what I gather from the evidence of Waterhouse and Bleekir, or at all events the latter, though more than sufficient to amount to non-compliance with the law. I think the- provisions as to location in ch. 32 of 1894, must be construed as conditions precedent or imperative to a good location, see especially the- "Examples of various modes of laying out claims." I believe they have been always looked upon as imperative, and if they are to be construed as directory they might as well be repealed, and I gather from sec. 16 (d) of the Mineral Act of 1896, that the Legislature always- considered them to be imperative prior to the passage of that Act. I have already said, though I scarcely thought it necessary, that I thought no burden of proof should be cast on the defendants, and this will appear plain by a simple pleading test. Counsel for the Back Pay (plaintiffs), says: "The next objection taken to the validity of the Blue Bird is that the posts of the Blue- Bird were not placed as nearly as possible on the line of the ledge or vein. In order to ascertain whether that was done or not, it is first necessary to shew where the line of the ledge or vein is, and then that the Blue Bird line is not as nearly as possible along such line. The burden of proof of both these questions lies on the defendants. The- record having Feen issued and admitted in evidence for the Blue Bird prima facie everything leading up to that record was regular." Now I don't know that there is any presumption in favour of the- location of a claim that the proceedings of the free miner have been regular except perhaps under sec. 28 of the Mineral Act of 1896, not BLEEKIR et a . CHISHOLM et applicable in favour at least of the plaintiffs in this case, but the case T 1896. of Toleman v. Portbury (1870), L. R. 5 Q. B. 295, shews that the »°pSl burden of proof as to where the line of the ledge, of the Blue Bird is MoCbbioi would lie in this case on the plaintiffs (Back Pay), and not on the defendants, owners of the Red Oak. The plaintiffs (I will suppose) complain that the defendants (Red Oak) have no claim to the ground in dispute through having located too soon. The defendants (I will suppose) plead that the Blue Bird location line is bad as not having been " along the line of- the ledge or vein, or as nearly as possible along such line." The plaintiffs must reply traversing this allegation and then the language of Baron Channel!, an eminent pleader, applies : " I agree that where there is an allegation in language which is negative, if that is traversed, the party who traverses the negative allegation has substantially the burthen of proof thrown upon him." Of course Baron Channell's remarks equally apply whether we are supposing the case of questions in separate defences, or one defence raising both questions as seems to be the correct course. I think according to the above doctrine the burden of proof is cast on the plaintiffs, although I think the defendants principally through the plaintiffs' witnesses have fully proved their defence, but I thought it better not to leave the point of law in doubt. I think the location of the Blue Bird was bad, and therefore did not interfere with the location of the Red Oak, and that the plaintiffs' case must be dismissed with costs. Action dismissed with costs. Note.—It will be observed that, as between the parties, the defendants' claim, the Red Oak, was the senior location. As to invalidity of relocation on existing valid location: see Manley v. Col- lom, post, p. 487. As to measurements-: see Waterhouse v. Liftchild, post, p. 153; Dunlop v. Haney, post, p. 369. As to pleading and proving a prima facie case: see Hogg v. Parrell, ante, p. 79; Schomberg v. Holden, post, p. 290. As to defects in location: see list of cases in note to Manley v.. Collom, supra. MARTIN'S MINING CASES. In re The Coal Mine: Begulation Amendment Act, 1890. (5 B. C. 306). The provision in sec. 4 of the Coal Mines Regulati Coal Mines Regulation Amendment Act, 1890, s< shall be employed in, or allowed to be for the pur mine to which this Act applies, below ground," I m Act, as amended by the c. 1, that "No Chinaman 3 within the constitutional Reference to the Supreme Court of British Columbia, sitting as a Full Court, pursuant to the Supreme Court Reference Act, 1891, of the following case: "Has the Legislature of the Province of British Columbia jurisdiction to pass the Act passed in the 53rd year of Her Majesty's reign, ch. 33, intituled An Act to Amend the Coal Mines Regulation Act ?" The question was argued before Walkem, Drake and McColl, JJ., on 11th December, 1896. C. E. Pooley, Q.C, against the Act: The prohibition of Chinamen from working the coal mines is ultra vires as an interference with the. subjects of trade and commerce and also of aliens, which are reserved to the Dominion Parliament by sec. 91, sub-sec. 2, of the B. N. A. Act. If the subjects falls within any one of the sub-sections of see. 92, the Provincial Legislature has jurisdiction. If not, the Dominion Parliament has sole control. Parsons v. Citizen's Ins. Co. (1881), 1 Cart. 273, Dobie v. Temporalities Board (1881), Ibid. 352. This is not a matter of purely local import. The prohibition is further void as discriminating against a class: Reg. v. The City of Victoria (1888), 1 B. C pt. II., p. 331; Reg. v. Wing Chung (1885), Ibid. p. 150; Tai Sing v. Maguire (1878), 1 B. C, pt. 1., p. 101; Reg. v. Taylor (1878), 36 TJ. C Q. B. 183. The wholesale prohibition of Chinese from working in coal mines is, in the known circumstances I of the industry, a substantial interference with that industry, which j is principally dependent upon export, and therefore of trade and commerce. See Low v. Routledge (1865), 11 Jur. 939, as to the right: of aliens and their reciprocal obligations, also Doutre, on Constitution of Canada, 186; Cooley on Constitutional Limitations, 491 to 493. If a Chinaman owns a coal mine, under this Act he cannot work himself. Charles Wilson, Q.C, contra: The whole field of legislative power is exhausted by the British North America Act. If sec. 92 does not ■cover the particular subject, then it is dropped into sec. 91. An inter- j terence with trade and commerce is necessitated in some degree by! 3 COAL MINES REGULATION AMENDMENT ACT. 117 every law dealing with property, and the regulation of industry, and 1896. yet, if the object and effect of the legislation be to regulate a purely Decem^lr U: local industry, it does not become ultra vires because incidentally and FullC^um. unavoidably it may be said in some degree to affect trade and com- Walkem* j. ntfirce; see Dobie v. Temporalities Board, supra.^ The presumption is in favour of the validity of the Act: Attorney-General of Ontario v. 2%e Attorney-General of Canada (1894), A. C 189. Compare sees. 4 and 11 of the Act. As to the question of aliens, see Clement on the Canadian Constitution, p. 406. The legislation is an exercise of the right to deal with property and civil rights, Citizen's Ins. Co. v. Parsons, supra, and is a restriction of the right of contract, both of the owner and the Chinese, in relation to the employment of the latter: L'Union St. Jacques v. Belisle (1874), L. R. 6 P. C 31. If Dominion legislation overlaps legislation of the Province, the Dominion governs. If the Dominion has not legislated, the Province may do so: Tennant v. Union Bank of Canada (1894), A. C 31; Re Adam (1837), 1 M. P. C 460. H. D. Helmcken, Q.C, on the same side: The legislation is valid as within sub-sees. 10, 13, 16, of sec. 92. Local Legislatures have power to establish lawful restriction under which trade may be carried on: Attorney-General of Ontario v. Attorney-General of Canada (1896), A. C p. 348. This is a mere matter of regulation and not of prohibition. C. E. Pooley, Q.C, in reply. Cur. adv. vult. February 3rd, 1897. Walkem, J.:—The question referred to this Court by His Honour Judgment, the Lieutenant-Governor-in-Council is as to whether the Coal Mines Regulation Act, 1890, is constitutional or not. The Act consists of two short clauses, namely, the Short Title Clause, and the clause impeached, which is as follows: " Sec. 4 of the Coal Mines Regulation Act is hereby amended by inserting between the words 'age' and 'shall' on the second line, the words'and no Chinaman.'" With the amendment, as shown in brackets, sec. 4 will read thus: " 4. No boy under the age of twelve years, and no woman or girl of any age [and no Chinaman], shall be employed in, or allowed to be foi the purpose of employment in, any mine to which the Act applies, below ground." Thus, the employment underground of any of the persons specified is prohibited. Part, only, of this prohibition is objected to, viz., that referring to Chinamen. The objection is based on two constitutional grounds, viz., that the prohibition trenches upon the Regulation of Trade and Commerce, and also deals with aliens—two matters assigned to the control of the Dominion by sec. 91 of the B. N. A. Act. 118 MARTIN'S MINING CASES. [vol; | 189L u If^ respect to the first ground, it is said that the exclusion of — ' Chinamen is not only unjust and oppressive in their case, but is FullCodrt. equaipy s0 ^ ^ case 0f mine owners, as it materially lessens competi- Walkem, j. tion in labour and thereby increases the expense of the production of their coal, thus, in a measure, regulating its price, and to that extent interfering with it as a trade or business. jT'itfli.' '■. . The exclusion of the women and boys, although not complained of, would, obviously, be open to the same objection. The exclusion of women, however, is in their interests, as it is evidently done on moral, grounds; and the exclusion of boys is for their benefit on account of their youth,- as well as for the protection of others, who. might suffer from their inexperience. Sections 5 to 19 shew this to be the case, for they place a limit on the women's working hours above ground (wbere they may be employed), so as to save them ffom being over-tasked, and fix a scale of working hours for boys of varying ages between twelve and eighteen; and, moreover, define the class of work which the latter may, or may not, be put to. Section 79 consists of thirty-five rules, intended for the protection of life and property, such as .rules regulating ventilation, fencing, signalling, blasting, and other matters; and, amongst them, rule 34 provides that " No Chinaman, or person unable to speak English, shall be appointed to, or shall occupy any position of trust or responsibilitySB in or about a mine subject to this Act, whereby through his ignorance, carelessness or negligence he might endanger the life or limb of any person employed in or about a mine, viz.: As banksman, onsetter, signalman, brakesman, pointsman, furnaceman, engineer, or to be employed at the windlass of a sinking pit." This is the only enactment, save that under discussion, where; Chinamen are specially mentioned; and I refer to it, as well as to sees. 5 to 19, as affording some explanation of the reasons of the Legislature for prohibiting Chinamen from being employed below ground. There are also other parts of the Act, from sec. 80 onwards, which provide for the adoption by any mine proprietor of What are termed Special Rules, after they have been posted up in a conspicuous place and approved of, in amended form or otherwise, by the miners, and sanctioned by-the Government Inspector. As a matter of notoriety, exceedingly few Chinese -labourers understand our language, and this? may account for Chinamen being bracketed in Rule 34 with persons " who do not speak English." Special Rules would therefore, be unintelligible to them; and any orders or warnings requiring instant attention by reason, for instance, of danger would be equally so. In construing the enactment under discussion, I must be guided by the foregoing sections, as they are part of the principal Act in which that enactment has been incorporated. " It is beyond dispute," observes Lord Hershell, in Colquhoun v. Brooks (1889), 14 App. t.] In re COAL MINES REGULATION AMENDMENT ACT. U9 ■ €as. at p. 506, " that we are entitled, and indeed bound, when constru- 1896. ing the terms of any provision found in a statute, to consider any Dece^er11- other parts of the Act which throw light upon the intention of the ggH-0opRr- Legislature, and which may serve to shew that the particular provi- Walkem, J. •sion ought not to be construed as it would be if considered alone and apart from the rest of the Act." Rule 34 is, as I have said, one of a group of thirty-five rules which are designed to protect life and property; and the present impeached provision, as well as the section it amends, and the fourteen sections which follow, are apparently regulations in the same direction. Admitting, for the sake of argument, that any one of them is unjust and oppressive, that is no ground for declaring the Act in question invalid, if its subject-matter is within the jurisdiction of the legislature. " A Court can not declare,"—I am quoting from Cooley's Const. Lim. ch. 7, sec. 4—"a statute unconstitutional and void solely on the ground of unjust and oppressive provisions." The Act in question comes within sub-sees. 13 and 16 of sec. '92 of the B. N. A. Act, by which the Legislature is empowered to " exclusively make laws in relation to . . . " 13. Property and civil rights in the Province; and * 16. Generally all matters of a merely local or private nature in the Province." " The object of the British North America Act," as Lord Watson points out in the case of the Maritime Bank of Canada v. Receiver- General of New Brunswick (1892), 61 L. J. P. C at p. 77, "was neither to weld the Provinces into one, nor to subordinate Provincial Governments to a central authority, but to create a Federal Government, in which they should all be represented, entrusted with the exclusive administration of affairs in which they had a common interest, each Province retaining its independence and autonomy." What possible common interest could the other Provinces have with us in a set of coal mining regulations such as those before us? And yet it is only that common interest which would give them a federal character. Mining regulations, whether for gold or coal, must, surely, be exclusively a matter of local concern. The contention -with respect to the impeached regulation is, in effect, that the Dominion Parliament can alone prohibit an alien from working at any particular place in a coal mine here, or holding any of the positions, such as that of signalman, banksman, &c, that are mentioned in Rule 34, as such a prohibition would, in an indirect way, be a regulation of trade and commerce, inasmuch as it would trench on that subject. The meaning of the term " regulation of trade and commerce " is explained in the Citizens' Insurance Company v. Parsons (1881), 1 Cart, at p. 278 (or 5 App. Cas. 98), to be a term which "would 129 MARTIN'S MINING CASES. [v< 1896. include political arrangements in regard to trade requiring the sanc- Decemberii. tion of parliameiltj regulations of trade in matters of inter-provincial | Fun, Coubt. concern, and ... a general regulation of trade affecting the whole Dominion . . . but not . . . tbe power igulate the contracts of a particular business or trade in. aaiy Province so as to conflict or compete with the power over property and civil rights," or matters of a merely local nature, " assigned to the Provincial Legislatures." This would seem to settle the question; for the employment of labourers or others in mines is necessarily a matter of contract, and therefore a matter which, in view of the above authority, is under the exclusive jurisdiction of the Provincial Legislature. We have a Pharmacy Act on our statute book, and there is one of somewhat similar scope in the Province of Quebec. Both Acts restrict the right of selling drugs to persons possessing centain specified qualifications. To some extent this restriction must necessarily affect trade and commerce; yet, when for that reason, the constitutionality of the Quebec Act was questioned, the Act was upheld on the ground that it did not deal directly with trade and commerce, but with pharmacy, which was a matter of a local nature, and also one involving civil rights. Bennett v. Pharmaceutical Society of Quebec (1881), 2 Cart. 250. The case of the Citizens' Insurance Company, and that of Riisdell v. The Queen (1882), 7 App. Cas. 829, illustrate the principle "that subjects which in one aspect and for one purpose fall within sec. 92, may, in another aspect and for another purpose, fall within sec. 91." See Hodge v. The Queen (1883), 9 App. Cas. 117. In this last case it was also held that in relation to the subjects enumerated in sec. 92, the Provincial Legislature has " authority as plenary and as ample . . . as the Imperial Parliament in the plenitude of its power pos- sessesi; . . . within these limits of. subjects and area the local Legislature is supreme and has the same authority as the Imperial Parliament or the Parliament of the Dominion." Again, " within the same limits, the legislation of each Province contiiMes to be free from the control of the Dominion and as supreme as it was" before Confederation, as stated by Lord Watson in the ease of the Maritime Bank of Canada, supra. . The case of the Quebec Pharmacy Act is ttit instance, as I have pointed out, of Provincial legislation trenching upon a subject assigned to the Dominion; and Valin v. Langlois (1879), 1 Cart, at p. 177, is aj^instance of the converse, that' is* to say, of B'bminion legislation trenching upon a matter reserved to the Provinces, viz., procedure in ciMil matters in our Courts; Numerous instances are given in that calse,i M the judgment of Ritc^cb, C.J., of Dominion legislation on subjects wiflaaft its controly ia! wbMi -riftes of ci*il procedure are en- I.] In ee COAL MINES REGULATION AMENDMENT ACT. acted to meet the exigencies of the case. The legislation as to the 189 Canadian Pacific Railway, which, as an inter-provincial line, is under ecem_ the jurisdiction of the Dominion Parliament, includes a system of FollC civil procedure which is to apply throughout the several Provinces of walkj the Dominion in any litigation which the Railway Company may be involved in. The principle upon which these encroachments of jurisdiction by both Legislatures are permitted is that when an Act such, for instance, as the B. N A. Act, " confers a jurisdiction, it impliedly grants also the power of doing all such acts or employing such means as are essentially necessary to its execution." (Maxwell on Stats., 2nd ed. 433). In the case of the Attorney-General of Ontario v. Attorney-General of the Dominion (1894), A. C 192, counsel for the plaintiff, Mr. Blake, in the course of his argument, accurately and concisely sums up in the five following propositions the result of the decisions of the Privy Council in the cases I have referred to, and in the further cases of Bank of Toronto v. Lambe (1887), 12 App. Cas. 575; 1/Union St. Jacques de Montreal v. Belisle (1874), L. B. 6 P. C. 31; and Gushing v. Dupuy (1880), 5 App. Cas. 409, namely: " (1) The presumption is in favour of an enactment: " (2) The enactment should be so construed as to bring it within the legislative authority;" (Macleod v. Attorney-General of N. S. Wales (1891), A. C 455) : " (3) The true nature and construction of the enactment must be determined in order to ascertain the class of subjects to which it relates: " (4) It must be ascertained if the subject falls within sec. 92, and if so, whether the Court is compelled by sec. 91, or other sections, to cut down the full meaning of sec. 92 so that it shall not . include the subject of the impugned Act: " (5) Subjects which in one aspect fall within sec. 92, may, in another aspect and for another purpose, fall within sec. 91. Applying the passages which I have quoted from Hodge v. The Queen, and the Maritime Bank of Canada case, to the present case, the Legislature could, in my opinion, if it had been considered expedient, have excluded any particular class of British subjects from working in the mines,—for instance, non-residents of the district in which the mine is situated. A fortiori, it could have excluded aliens, as it has done; otherwise it would not have the plenary powers ascribed to it in Hodge's case. A treaty between China and Great Britain was spoken of by Mr. Pooley, but was not produced. If one exists it cannot affect this ques- .tionj inasmuch as it is impossible to conceive that the status of a Chinaanan in any of the British possessions has been placed by it on a higher plane than that occupied by a British) subject. 122 MARTIN'S MINING CASES. [VOL 896. The Dominion Naturalization Act, ch. 113, Rev. Stat. Can., is the ecember u. q^ auft10vfty we j^g before us -^th respect to aliens; and in sec. 3 Foll Court. ^ states that an alien may acquire and hold real and personal prop- Drake, j. erty and dispose of it in all respects as if he were a British subject: " but nothing," it says, " in this section shall qualify an alien for any office, or for any municipal, parliamentary, or other franchise; nor shall anything herein entitle an alien to any right or privilege as a British subject, except such rights and privileges in respect of property as are hereby expressly conferred upon him." The section, although liberal, clearly shows that aliens in Canada are not placed on the same footing as British subjects. In this Province they are prohibited from acquiring Crojm lands by pre-emption, from voting for, or becoming, members of the Legislative Assembly, and from being members of the legal profession. These circumstances are, of course, no authority one way or the other on the question before us; but as Ritchie, C.J., observes in Valin v. Langlois, this class of legislation is valuable as being evidence of the opinion of the Legislature on questions affecting aliens. It will be observed that sec. 3 of the Naturalization Act states that it is not to be construed as giving aliens rights of office or franchise. It, in effect, leaves the Province free to deal with those rights. See Attorney-General of Ontario v. Attorney-General of Canada (1894), A. C 189. The object of the Act before us is to regulate the working of coal mines, and not to define the rights or disabilities of aliens. The latter subject, as dealt with in the Act, is merely incidental to the main object of the Act. In my opinion the Act is within the competence of the Legislature. Drake, J.:—The question submitted to the Court is, whether the restrictions against the employment of Chinamen, underground in coal mines, is within the legislative authority of the Province. The argument against its validity was presented under different heads. 1st. As being an interference with the rights of aliens. 2nd. As an interference with trade and commerce. 3rd. Class legislation. 4th. Infraction of British treaties. It is necessary to examine the Act in which this restriction appears. The Act is one making regulations with respect to coal mines and miners, and is divided into parts under different captions. In the first part we find regulations regarding the employment of women, young persons and children; then regulations as to payment of wages, the construction of shafts, and so on. The Act is strictly confined to regulating the.manner in which coal mines are to be worked, in the interest I.] In re COAL MINES REGULATION AMENDMENT ACT. of the employees and for their protection, as the occupation of miner 18i)6 is one of danger and risk. Dec!^ The first portion of the Act is the one with which we are concerned. FuLL Co ■Section 3 prohibits the employment of boys under twelve years of age Drakk in or about a mine; sec. 4 prohibits the employment of women and girls, and also Chinamen, below ground; sees. 5, 6, 7 and 8 regulate the hours of labour for boys, women and young persons. Every one of these sections, in some sense, affect trade and commerce, but they are not thereby ultra vires,—the protection of women and children is a subject which every Legislature is entitled to control, until such time as the Dominion Parliament passes a law applicable to the whole Dominion. This protection is of dual character. In one sense it protects the women and children from being employed in work unsuitable to their sex and powers; and in the other, it protects the miners from the risk arising from want of skill and knowledge in persons employed with them in a dangerous occupation. The Legislature has thought fit to place Chinamen in the same category, the reason of which is not obvious, for they aire as able and as well fitted to work a mine, below ground, as men of any other nationality. The restriction, apparently, was imposed on the ground that by the employment of Chinese the wages of the white labourer were reduced, and that involves the larger question of right of employer and employee to absolute freedom of contract. It is a clear principle of law that the employer of labour may engage whom he pleases and that an employee is free to contract for his labour with whom and at what rate and upon what terms he chooses. But the Legislature has imposed a restriction on this freedom of contract; a restriction which may be supported on the ground that it deals with property and civil rights and is a merely local matter. Property and civil rights, the Privy Council, in Citizen's Insurance Company v. Parsons (1881), 1 Cart. 274, held even sufficiently large to embrace, in their fair and ordinary meaning, rights arising from contracts not included in sec. 91. But if this is a matter affecting property and civil rights, then only so far as the Dominion Legislature has not under cognate powers • affected the rights of the Province, the Province can legislate. The Dominion, under the Naturalization Act,.ch. 113, Revised Statutes of 1886, has exercised a partial control over the rights of aliens by declaring that their rights to real and personal property shall be as free and as unfettered as if they were natural-born British subjects; and a naturalized alien shall, in Canada, be entitled to all political and other rights, powers and privileges of a natural-born British subject. This partial control does not, however, overlap the 124 MARTIN'S MINING CASES. [tot.. 1896. rights of the Provincial Legislature to deal with the subject as to who ecem_er " shall not be employed underground in a coal mine. PullCoukt. What the meaning of the language used in the Act is, or how it MoColl, J. is to be construed, is not before us, but with regard to the question Whether this is an infringement of the Dominion rights to deal with trade and commerce. The Privy Council, in the Citizens' Insurance Company v. Parsons, supra, laid down the principle upon which the words " regulation of trade and commerce " are to be construed. They mean, political arrangements as regards foreign trade; regulations of trade in matters of inter-provincial concern, or general regulations affecting the whole Dominion; but do not include the power to regulate contracts of a particular business or trade. The subject was considered in Bennett v. Pharmaceutical Association of Quebec (1881), 2 Cart. 250. At page 255, Dorion, C.J., says: " The determining of the age or of other qualifications required by those residing in the Province to exercise certain professions, or certain branches of business, attended with danger or risk to the public, are local subjects in the nature of internal police regulations, and in passing laws upon those subjects, even if those laws incidentally affect trade and commerce, it must be held that this incidental power is included in the right to deal with the subjects specially placed under their control." Applying these principles to the present ease we must come to the conclusion that this is not a case affecting trade and commerce, but a question of property and civil rights, and regulations of a particular business hitherto untouched by the Dominion legislation. The cases cited by Mr. Pooley: Reg. v. Corporation of Victoria. (1888), 1 B. C Pt. I. 331; Regina v. Wing Chong (1885), Ibid., p. 150; and Tai Sing v. Maguire (1898), 1 B. C Pt. I. 101, all turned on the subject of special taxation imposed on the Chinese; and, although, incidentally, the powers of the Provincial and Dominion Legislatures were discussed, the points decided are no guide to the present case. The question of how far treaty rights are involved in this legislation was not argued, and we were not referred to any treaties alleged to have been violated. We must, therefore, consider that no such objection exists. Hnder the circumstances, I am of the opinion that the questions put to us must be answered in the affirmative. McCc ll, J., concurred. Act declared constitutional. Note.- And as —But see Bryden v. Uii to enforcing penalty: s on Colliery Co., post, p. 337. e Regina v. Littiei post, p. 220. Re GOLDEN BUTTERFLY FRACTION MINERAL CLAIMS. Re " Golden Bu' and "Countess" Mineral Claims. (5 B. C. 445) The boundaries of the Countess and Golden Butterfly mineral claims overlapped. The Countess having applied for a certificate of improvements was adversed on the ground of defective location by the Golden Butterfly, with a view to secure the ground common to the two claims. The Secretary of the Golden Butterfly company had re-located the remainder of the -Countess ground in his own name as a fraction. He, upon the* assumption that, if the adverse of the Golden Butterfly were sustained, the whole of the Countess location would be invalidated, did not bring an action attacking it on his own behalf until after the expiration of the statutory sixty days from the publication of the notice of application for the certificate of improvements to the Countess. He then applied to the Court for leave to bring an action. Held, That circumstances were sufficient ground for an order extending the Motion by Thomas Gilmour, locator of the Golden Butterfly Statemei Fraction mineral claim, for leave to commence an action to establish ■ an adverse claim notwithstanding the lapse of time. The facts fully appear from'the headnote. Archer Martin, for the application cited Re Good Friday (1890), Arsumen 4 B. C 496, ante, p. 84. G. H. Barnard, contra: The applicant made a mistake as to the law in thinking that the action already instituted would be sufficient. As secretary of the company owning the Golden Butterfly, he had notice of all the facts. The time should not be extended, especially after its lapse: Collins v. Vestry of Paddington (1880), 5 Q. B. D. 368. Walkem, J.:—I will give leave to commence action, costs of the judgmei application to be paid forthwith. ineously stated i > Re Good Friday, supra Motion :e to the r MARTIN'S MINING CASES. McCj 1897. Corbin v. Lookout Ming. & Millg. Co. (Foreign). ruary 6. SBfe. (5 B.C. 281). Jury in Adverse Action—Ejectment—Mineral Act, 1896.-County Court. ' Generally in adverse actions the issues cannot be tried by a jury though it is- possible cases might arise wherein it could be done. Decision of McCreight, J., affirmed.- Per McCreight, J.:— The right to a jury under sec. 150 of the Mineral Act, 1896, is restricted to the County Courts. tement. Aepeal from a judgment of McCreight, J., dismissing an appli cation by the defendants for a trial by jury. The application was airgued on 23rd December, 1896. The facts fully appear from the- judgments. ;ument. iff, j. Taylor, for the application. E. V. Bodwell, contra. elow, McCreight, J.:—This is an action in the Supreme Court by the- (eight,. -p2ajn^g t0 enforce his alleged right to a certain claim, and I gather would have been the subject of an equity suit before the Judicature Act. The defendants claim that they are entitled to have the issues of' fact tried by a jury under sec. 150 of the Mineral Act, 1896, and took out a summons before me for an order to that effect, but on consideration I think the group of sections commencing with sec. 144 and including sec. 150 deals only with County Courts, and according to the law laid down in Hammersmith R. R. Co'y v. Brand (1868), L. R. 4 H. L. 171, the headings of different portions of a statute are to be referred to to determine the sense of any doubtful expression in a section ranged under any particular heading. This group of sections is headed County Courts. I cannot read into sec. 150 the words " Judge of the Supreme- or County Court, as the case may be," or make a corresponding insertion in sec. 149. I think every section in the group deals with County Courts alone. Further adverting to the well-known canon of construction that the state of the law, i.e., before the year 1896, is important, I refer- to rules of the Supreme Court, 329-333, which I think indicate that. I . LOOKOUT MINING AND MILLING CO. prior to the Act of 1896 this application for a jury would have been refused, and if the Act of 1896 was intended to make a different pro- ] cedure as regards the trial of Supreme Courts cases, i.e., quoad mining 1 cases, that we should expect explicit language would have been used. ] I think the right to trial by jury in mining eases in the Supreme Court is not changed by the Mineral Act of 1896, and accordingly I must decide that the defendants are not entitled to a jury in this ease. Application refused. From this judgment the defendants appealed to the full Court on the grounds that the learned Judge erred in holding that in an action to enforce an adverse claim under the Mineral Act the parties are not entitled to a jury because it is an action of an equitable nature and that the defendants were entitled to have the action tried before a jury as a matter of right. The appeal was argued before Davie, C.J., Drake and McColl, JJ.,.on 6th Fehnuny, 1897. W. J. Taylor, for the appeal. E. V. Bodwell, contra. Davie, C.J.:—This is an action to enforce an adverse claim. The plaintiff in his statement of claim prays "a declaration that he is entitled to the right of possession of that portion of the Paul Boy mineral claim in conflict with the Lookout mineral claim and that the- said Lookout mineral claim, in so far as the same conflicts with and overlaps the said Paul Boy mineral claim, be declared to be without fight and illegal and void and that the title thereto be forever vested in the plaintiff and (2) A further declaration that the defendants are not entitled to any rights therein whatever." In considering the scope of the action I propose to treat it as it is framed on the pleadings.. Now prior to the Judicature Act the only Court which had jurisdiction to make a declaration of title, or a judicial declaration of any kind, was the Court of Equity. The Courts of Common Law exercised no such jurisdiction. It is said that this is an action of ejectment,* but it evidently is not. so. . The right of the grantee from the Crown of a mineral claim is not a right to the land or to the possession of it, as land. One person may be the owner of the land and another may acquire the right to< the minerals thereunder, together with the incidental surface rights- given by the Mineral Acts. It is possible that the frame of the statement of claim and of the relief asked for in an action to enforce an adverse claim might be such that the issues would be proper for trial * See Clark v. Haney, post, p. 281. MARTIN'S MINING CASES. [vi by a jury. This is not such a case. It presents questions which before the Judicature Acts must have been tried without a jury. The Eng- • .lish Rule 427 provides that causes or matters assigned to the Chancery Division shall be tried by a Judge, unless the Court or a Judge shall otherwise order. The words " or a Judge 'Shall otherwise order " are left out of our rules. The British Columbia Rule 330 leaves no discretion. I am therefore of opinion that this appeal should be dismissed. Drake, J.:—I agree with the Chief Justice. What is asked is a declaration which could not have been granted by a Court of Common Law prior to the Judicature Acts. The action is for a declaration that ' the plaintiff has the right to possession of the ground in dispute to the extent ,t° which such possession belongs to the grantee of a mineral claim under the Act. If the action were differently framed, either of the parties might be entitled to a' jury. There is no hard and fast rule as to the form Or frame of an action to enforce an adverse claim. This is a purely equity action and should be tried without a jury. Appeal dismissed. 1 be found in Iroi . MONTGOMERY. Webb v. Montgomery. (5 B. C. 323). An agreement for the sate of mineral claims provided for payment by instalments and contained a proviso that " failure to make any of the above payments to render this agreement void as to all parties thereto, and the said (vendees) can quit at any time without being liable for any further payments thereunder from such time on." At the request of the vendees the vendors, without consideration, extended the time for payment of one of the instalments. After the original, but before the extended period for making the payment, the vendees notified the vendors that they had quit. In an action to recover the amount of the instalment. Held, that the liability of the defendants, the vendees, to pay the instalment in question was absolute upon the day named in the original agreement, and remained unaffected by the voluntary concession of further time to pay. Decision of Walkem, J., rruled. Appeal from a judgment of Walkem, J., dismissing the action, which was to recover $5,000.00, being $2,000.00, balance of second Stat instalment of $3,000.00, and a third instalment of $3,000.00 of purchase money of a certain mineral claim bought by the defendants from the plaintiff under an agreement between them which contained the following provisions: (1) The parties of the first part claim to be the owners ■of two certain mineral claims recorded at New Denver, B.C., as the Fishermaiden and Silver- ton No. 1, and situate about seven miles from Silverton up Four Mile Creek, as shewn by the records made of said claim, that said claims are free from all incumbrances and that they will warrant and defend the same from all claims whatsoever, and they the said first parties; hereby agree to sell to the said second parties the above-mentioned claims on the following terms, to-wit: Six hundred ($600.00) cash in hand, three thousand ($3,000.00) on September 15th, 1894, six thousand ($6,000.00) on March 15th, 1895, and eight thousand four hundred ($8,400.00) on September 15th, 1895, making in all the sum of eighteen thousand dollars. The parties of the second part agree to make the payments as above specified and also to further pay to Jap King for them at the time specified above, viz.: in hand, sixty-six dollars, sixty-seven cents ($66.67) ; on September 15th next, three hundred and thirty-three dollars and thirty-four cents ($333.34) ; on March 15th, 1895, six hundred and sixty-six dollars and sixty-seven cents ($666.6*7), and on September 15th, 1895, the further and final sum of nine hundred and thirty-three dollars and thirty-four cents ($933.34), making in all MARTIN'S MINING CASES. failure to make any of the :o all parties thereto, and without being liable for any further! two thousand dollars to be paid to the said B above payments to render this a( said second parties can quit at ai ■ payments thereunder from such 1 The said first parties shall at and upon the signing of this agreement execute I good and sufficient conveyance of a bill of sale to said second parties of the before-mentioned mineral claims, said bill of sale to be placed in escrow with Hunter & McKinnon at New Denver, and upon the faithful fulfilment of conditions of this agreement by the parties of the second part, said bill of sale shall be delivered to said second parties, their heirs or assigns. On making the first payment under this agreement, the parties of the second part are hereby authorized to enter upon and take possession of the said mineral claims and work them as to them may seem best, to ship and sell any ore taken therefrom, but the proceeds of the said ore, after deducting all expenses (except for mining the ore), shall be applied in payment of the several sums due from the said second to the said first parties in the order in which said payments are to be made. All payments under this agreement (except the first) shall be made through Hunter & McKinnon and in current funds of Canada. Before the date fixed for the payment of the second instalment the defendants, having paid $1,000.00' of it, asked the plaintiff to grant them an extension of time within which to pay the balance. This was acceded to by the plaintiffs. On the day before the lapse of the extended period, which was also the day before that fixed for the payment of the third instalment, the defendants notified the plaintiffs that they had quit work and abandoned the option. The appeal was argued before McCreight, Drake and McColl, J J., on 8th December, 1896. Chas. Wilson, Q.C, and R. M. Macdonald, for the plaintiffs (appellants). E. P. Davis, Q.C, for the defendants (respondents). March 1st, 1897. McCreight, J.!—I quite agree with the judgment of my brother Drake. I think the defendants are liable to pay the sum of $2,000.00, being the difference between the sum of $3,000.00, due on 15th September, 1894, and the sum of $1,000.00 then paid. The extension of time from September until the 15th March, 1895, was without consideration and a mere voluntary, indulgence; see the ease cited by Drake, J. There was no binding agreement, and an action could have been maintained at any time during the interval for the $2,000.00. It was due thus for six months anterior to 15th March and could not be repudiated as if only due on or after that date, and the defendants cannot* invoke the following provision in the agreement of 4th April, 1894: " And I-] WEBB v. MONTGOMERY. said second parties can quit at any time without being liable for any further payments thereunder from such time on." But though the defendants cannot rely on this provision as exempting them from payment of the $2,000.00, I think they can rely on it as excusing payment of the $6,000.00. I think the agreement was practically put an end to and the mine quitted on 14th March, and I am by no means sure that it would not have been sufficient for the defendants to have quitted at any time of the day on the 15th, for they were not called upon to pay till 12 o'clock at night of the 15th; see the authorities collected in Clarke v. Bradlaugh (1881), 8 Q. B. D. 63; though I do not think the defendants need rely on this point. With respect to Hunter and McKinnon, the agreement of 4th April, 1894, shews they were merely tcC hold the escrow and receive payments to be made to the plaintiffs. They were not parties to the agreement or trustees for the ore or the proceeds, nor do I understand that the judgment of the learned trial Judge as to them is complained of. I believe Mr. Justice McColl also agrees in the decision of Mr. Justice Drake, though he has not seen either his judgmeat or mine. I think the plaintiffs are entitled to $2,000.00. Drake, J.:—The plaintiffs on 4th April, 1894, entered into an agreement with Montgomery & Mann, Geo. Hughes and Robert Ewart for sale and purchase of two mineral claims on the terms of $6,000.00 cash, $3,000.00 on September 15th,' 1894, $6,000.00 on March 15th, 1895, and $8,400.00 on September 15th, 1895, and in addition to the above payments the sum of $2,000.00 was to be paid to J. King on certain specified dates; and it was agreed that a failure to make any of the payments was to render the agreement void as to all parties and ■ the second parties could quit at any time without being liable for any further payments thereunder from such time on." The intention of the parties, to be gathered from the language used in this document, was that this was a conditional sale, and the purchasers, after having proved the mining claims, were to be able to withdraw at any time, and in case of withdrawal they were not to be liable for any further payments becoming due after the date of the withdrawal. And it was further agreed that the proceeds of all ore, after' deducting all expenses (except for mining the ore), should be applied ' in payment of monies due under the agreement and that all payments under the agreement were to be made through the defendants, Hunter ' & McKinnon. The plaintiffs claim payment of all monies due under the agreement and an account of all ore mined by the defendants. HN'S MINING CASES. From the evidence it appears that the defendants paid the $600.00 and entered on the mine and expended considerable sums of money in Fnix Coubt. testing the mine, some ore was got out and sold, but the defendants Dbakb, J. alleged that the proceeds did not recoup them their outlay in opening up the works. On loth September, 1894, when the instalment of $3,000.00 became due, the defendants paid $1,000.00 and asked for and obtained an extension of time for the payment of the balance due until 15th March, 1895. The extension of time was given on the distinct understanding that the agreement should not be treated as varied in any other respect. The defendants contended that, the payment being thus postponed, if they quitted the mine before the date when the $2,000.00 was payable under the extended agreement, they were free from all liability. In other words, they claim that the new agreement was an accord and satisfaction of the original contract. Accord without satisfaction is no answer, and there was no satisfaction here. There was no consideration for the promise, it was a mere voluntary indulgence and in law the plaintiffs could have demanded the whole sum on 15th September, 1894: McManus v. Bark (1870), L. R. 5 Ex. 65. The debt having become due when the time was given, the defendants cannot now be allowed to take advantage of the clause enabling them to terminate the agreement and thus become freed from the payment of this sum, although they can free themselves from the payment of all sums not then due under the original agreement by quitting the mine. I think the.evidence is sufficiently clear to shew1 that the quitting took place on 14th March; a notice was given that day. The defendants, having told Popham that they would have to quit work if they did not get a new agreement, and when this was refused, they told the firemen to pack up everything, and the defendants, Mann and Hughes, both swear that on 14th March they notified the plaintiffs they were going to quit. Under the agreement no notice was necessary, but it was given and acted on, and although only given by Mann and Hughes, it was operative for all parties. The other branch of the case was charging Hunter and McKinnon with breach of trust in not paying over the proceeds of all ore to the plaintiffs. There is no evidence of any trust, either expressed or implied)" affecting these gentlemen, and although a good deal of evidence wafr > adduced to prove what Was meant by the term " mining the ore," I cannot see how the fact that ore was mined and sold from that claim can affect the defendants' liability. The clause in the agreement on! which the plaintiffs rely is simply this, that the net proceeds of any7 ore sold shall be applied in payment of the instalments as they be*- come "due under the agreement. If such payments were to be madfeJ . MONTGOMERY. through Hunter and McKinnon, they were not parties to the agreement and undertook no duty to the plaintiffs, and there was no evidence that any money had come into their hands for the plaintiff. I Fu therefore think the action was rightly dismissed against them. Mi In my opinion the judgment of the Court below should be varied and judgment for $2,000.00 entered for the plaintiffs against the defendants Montgomery & Mann, George W. Hughes and Robert Ewart, with costs here and of the Court below, and that the order stand as regards the other defendants. McColl, J., concurred. Appeal allowed. Note.—For breach of an agreement to sell claim, and form a of which vendor was to have a " reasonable" amount of stock: see Briggs v. Newswander (1902), 32 S. C. 405; 8 B. C. 402. As to sham sale of a claim to directors of a company: see Daniel v.'Gold Hill Mining Co. (1899), 6 B. C. 495; and see Pope v. Cole, post, p. 257; and Marino v. Sproat, post, p. 481. MARTIN'S MINING CASES. Pellent et al. v. Almoure et al. Pellent et al. v. Boter et al. —Overlapping— Failure to put up legal posts as required by the Min ments invalidates a location. It is necessary to record the abandonment of a permission of the Gold Commissioner before r Where a location is purported to be made on valid and existing location, the junior loeati extent of the ground already covered by the se When the titles to conflicting claims have been i the County Court mining jurisdictio between the si r their ; Act, 1891, and Amend- i invalid location and obtain -location. ground already covered by a . n is invalid to at least the dor location. ivestigated and determined in le question cannot be raised i title in the Supreme Court. Adverse actions tried at Vancouver on April 29th and 30th, 1896, by Drake, J. Leave was given to put in further evidence on certain points at a day later to be fixed, but the parties later not desiring to do so, judgments were delivered on the facts before the Court, which appear in the judgment. McColl, for plaintiffs. Bodwell, for defendants. March 1st, 1897. Pellent v. Almoure. Judgment. Drake, J. :■—This action is brought by the plaintiffs for a de claration that they are owners and entitled to the possession of the Anaconda mineral claim, which was located and recorded on the 26th of April, 1895, and they allege that one T. P. Trask and the defendant Jos. Almoure entered on this claim on the 17th of September, 1895, recorded a portion of the same land as the Defender claim. On the 17th of October, 1895, the defendants gave their usual notice of their intention to apply for a Crown grant of the Defender 1 • claim, and the plaintiffs on the 10th of December filed the usual I cLaJ^u JLAJiH^vcf affidavit advertising the claim. The defendants allege that on the 18th __ j of Apri^ 1895j"qT-J' Tragk locatedj and on the 22nd of April recor(jea, the Green Mountain mineral claim, which covers a considerable portion of the same ground as subsequently located and recorded by the Defender claim. It was admitted that the Defender claim was lawfully posted, and there was no objection on the ground that the provisions of the Act as to locating and recording had not been complied with, if it was open to. Trask to make a location on this ground. Lawry is the owner of all Trask and Almoure's rights both in the m PELLENT et a Green Mountain and Defender claims. The defendants counter- 1897. claimed to have the Anaconda location and record declared void. To M^hl this the plaintiffs replied that the Defender claim was not lawfully Drake, j located. A great deal of evidence was directed to the posting of the Green Mountain claim, which has but little bearing on the issue before me, further than to satisfy me that the evidence of Pellent and Boyer respecting the position of that claim was untrustworthy. In April, 1895, the defendant Trask and one Brown brought an action in the County Court of Kootenay in its mining jurisdiction, and by the judgment of that Court rendered on the 20th of August, 1895, it was adjudged that the Green Mountain mineral claim, as against the Anaconda mineral claim, was an invalid and illegal location. That judgment still stands unreversed, and I cannot in this action interfere with it. The only point to be noted is that one Brown appears as a plaintiff with Trask, and I cannot discover that he ever had any interest in the Green Mountain claim, or why he was made a party. The subject "matter, moreover, of that judgment was, as far as the dispute in this action relating to the Green Mountain exists, for the same cause of action, and the parties plaintiffs were the predecessors in title to the present defendants. The evidence adduced satisfied me that the Anaconda claim was insufficiently posted, the posts not being legal posts as defined by the Mineral Act Amendment Act, 1894. ",. But the plaintiffs set up against the Defender claim, which was admittedly insufficiently posted, sec. 29 of the Mineral Act, 1891, as amended by sec. 11 of ch. 32 of the Act of 1892, which enacts that no free miner shall be entitled to relocate any mineral claim, or any portion thereof, which he shall have abandoned or forfeited, unless he shall have obtained the written permission of the Gold Commissioner to make such re-location, and he shall hold no interest in any portion of such mineral claim by location without such permission. It has to be b&srne in mind that Trask located and recorded the Green Mountain mineral claim on April 1st, 1895; he also located and recorded the Defender claim in September, 1895, and he did not obtain any permission from the Gold Commissioner for that purpose. It may be eon- tended that Trask does not come, under the limitation in this section, as he did not abandon the claim or forfeit it willingly, but he forfeited the claim because he had, in locating the claim, failed to comply with the requirements of the Act. I think this section is clearly applicable to Trask, and his location of the Defender claim was never valid. The result of my judgment then is that the plaintiffs are not entitled to the declaration they ask for, as their location of the Anaconda claim was invalid for want of proper legal posts. The defendants are MARTIN'S MINING CASES. [vol. not entitled to have the Green Mountain declared a valid location, as that question was disposed of by judgment of the County Court, neither can they rely on the Defender record, as they have not produced any licence from the Gold Commissioner authorizing the relocation. The plaintiffs will have to pay the costs .of the action and the counter-claim. Pellent v. Boter. All the parties are free miners. This action is brought by the miners for a declaration that they are entitled to the mineral land embraced within the limits of Anaconda. This claim was taken up on the 26th of April, 1895, and recorded. The defendants on the 1st of June took up and recorded the Jersey mineral claim on and over part of the lands included imthe Anaconda, and in consequence of a notice of application for a Crown grant, published 22nd of October, 1895, the plaintiffs adversed the defendants. The defendants contend that the Anaconda was located on land already occupied for mining purposes, and that the notices and the posts were insufficient under the statute. The evidence called by the plaintiffs was that the No. 1 post of' the Jersey, when examined on the 14th of April, 1896, was only three feet three inches high, and the evidence taken in the previous action by the same plaintiffs against Almoure et al., was relied upon to establish the plaintiff's rights. The plaintiffs raised the further issue that under any circumstances the Jersey stakes were not lawful stakes. I adjourned the action in order to get testimony on this point. I appointed W. Prank O'Reilly to examine those posts and report. His evidence was that the Wo. 1 post is four feet five inches high, and is squared perfect, and did not measure less than four inches on any side; and No. 2 post fulfilled the requirements of the statute. Hnder these circumstances I find that the Jersey mineral claim was properly staked and located, and, as, I have declared in the action of Pellent v. Almoure, that the Anaconda was insufficiently staked, I find that, as between the parties to this action, the defendants are entitled to a declaration in their favour, with costs of action. Judgment accordingly. Note.—As to invalidity of re-location on existing valid location: see Man- ley v. Collam, post, p. 487; and see in note thereto list of cases on defects in As to necessity to record abandonment before re-location: see Oreelman' v. Clarke, post, p. 228, where a contrary view is taken. As to abandonment generally: see Williams Creek, &c, Co. v. Synon, ante, p. 1. As to res judicata: see Dunlop v. Haney, post, v 390; Fry v. Botsford, post? p. 520. KINNEY v. HARRIS. Kinney v. Harris. (5 B. C. 229). Justice—Appeal—Time—Extending—A bandonm eni —C. S. B. C. 1888, ch. 82, sc Maroh 4. Full'Couri In ( snding t Applic; >nly be exercised procure the Judge's ) of appeal has been abandoned. Appeals from Mining Com brought a the strongest grounds. to set down appeal on the ground of inability t ;s should be made to the Court for which notic m, and if not so made the appeal will be treated e y despite C. S. B. C. 1888, ch. 82, sec-29,* b Drdinary procedure and not only by way of a Appeal by the defendants from the judgment of Spinks, Co.J., at the trial, entered on 11th March, 1896, in favour of the plaintiffs, declaring that the plaintiffs' mineral claim, Slocan Sovereign, which had been located on 28th June, 1889, over- part of the defendant's mineral claim, Omega, was a valid and subsisting mineral claim, on the grounds that at the time of the locating of the Omega mineral claim on 26th October, 1892, that part of the ground covered by it was already located as the Apex and Toughnut mineral claims, located on 1st November, 1891, and the Belle Isle mineral claim, located on l<2th May, 1892, which were valid and subsisting mineral claims at the time of the location and record of the Omega, but not at the time of the location and record of the Slocan Sovereign. Security for the appeal was deposited on 11th March, 1896. Notice of appeal was given on 18th March, 1896, "to Her Majesty's Supreme Court of British Columbia at Victoria, sitting as a Pull Court, at the next sittings of said full Court." The defendants could not procure the •Section 29.—An appeal shall lie from any judgment of a Mining Court to the Supreme Court at Victoria sitting as a Full Court. The appellant shall, within ten days from the date of such judgment, give notice of the appeal to tie other party, and also give security, to be approved of by the Judge of the Court appealed from, for the costs of the appeal, and for fulfilling any orders which may be made in the course of such appeal by the Supreme Court; and the said Supreme Court may either order a new trial on such terms as it shall think fit, or order judgment to be entered for either party, or try the cause de y,ovo, and make such order as to costs as may be deemed proper. The appeal may be in the form of a case settled and signed by the parties or their solicitors; and if they cannot agree, the Judge of the Court appealed from may settle and sign the same upon being applied to by the parties or either of them. MARTIN'S MINING CASES. [vol. notes of the learned trial Judge until December, 1896, and being unable therefore to make up appeal books did not set the appeal down ' for the July Court. On 26th January, 1897, the defendants gave notice of motion for leave to set their appeal down for argument at the February Pull Court, upon the grounds that they were unable • through no fault of their own to obtain from the trial Judge a copy of his notes of evidence and proceedings at the trial, such notes being necessary to be obtained before the defendants could set down the appeal, it being the practice of the "Court that appeals should not be set down without five copies of such notes and proceedings being filed, and the Registrar of the Court when asked refusing to set down the appeal without same. It appeared from the affidavits filed by the defendants that from the day of the trial repeated applications had been made to the trial Judge for his notes. On 25th February, 1897, the defendants duly entered their appeal for hearing before the March Full Court. The appeal and motion came on together for hearing before the Full Court, Walkem, Drake and McColl, JJ., on 4th March, 1897. Robert Cassidy, for the appeal: The defendants may now bring their appeal on for hearing. The County Courts Amendment Act, 1896, by sec. 4, does not apply to proceedings already taken, and sec. 19 of the Supreme Court, Oct., 1896, also excepts from the operation of the Act appeals from judgments given in the Supreme Court prior to the passing of the Act. This appeal is governed by S. C. Rule 684, which provides that appeals from final judgments shall be brought within one year; see County Court Amendment Act, 1896, sec. 6. In any event the time should now be extended. It was not the fault of the defendants that the appeal was not set down before. The affidavits shew that constant attempts were made to procure the Judge's notes, without which the appeal could not be entered. L. B. Duff, contra: The defendants' appeal is under C. S. B. C. 1888, ch. 82, sec. 29, and should be " in the form of a case settled and signed by the parties or their solicitors." By not bringing on their appeal for argument before the July Full Court, according to their notice the defendants have lost their right to appeal, and it must be treated as abandoned. The grounds shewn are not sufficient to warrant an extension of the time to bring on the appeal. Robert Cassidy, in reply: Abandonment is a question of intention, and the conceded facts clearly shew that the defendants had no intention of not proceeding with their appeal. The words of the statute as to the form of the case are permissive only. jment of the Court , J.:—The ordinal practi Court appeals applies to mining may be brought by case stated if 'endants by not duly setting dow otice, for the July Full Court a ow apply to the discretion of tb und tha should procun shewn ties so desire, but ppeal pursuant to abandoned that notice and e Court, which will only be hey. should have applied to ir notice, to extend the time ■ocure the Judge's notes. It he public that mining cases iger grounds are required to in in ordinary cases. Those »eal must be struck out and Appeal struck out and motion to extend the time dismissed with costs. 8 Re Good Friday Clusky, lb. 2S <1901), 8 B. As t o polk ?36, 414. 446. 58, 146, 187, 194, 236, 304, 1 MARTIN'S MINING CASES. March 6. Richards v. Price. )avie7c.J. InrP mty Court Min ing Jurisdiction—Ac ion— Tra isfer to Supreme Cour * CHAMBERS An ac tion pending in a County Court wi 1 not be ransferred to the Sup Court unless some peculiar questions of expediency arise. Summons by defendant to transfer an action from .the County Court of Victoria, Mining Jurisdiction, to the Supreme Court, under sec. 144, sub-sec. 11 of the Mineral Act, 1896. Potts (Drake, Jackson & Helmcken), for the application. Walls, contra. March 6th, 1897. Davie, C.J.:—Clause 144, sub-sec. 11, Mineral Act, 1896, authorizes a Judge of the Supreme Court to transfer an action pending in the County Court relating to a mineral claim to the " Supreme Court if satisfied that it is expedient such action, suit or matter, should be so transferred." Here the dispute is as to a mineral claim on sec. 49, Metchosin District, which Price has located (as he alleges) on behalf of a company of seven, of whom Mrs. Richards and himself are members, and Mrs. Richards has located on her own behalf. It is alleged that in the antecedent relations of the parties F. G. Richards, the husband of Mrs. Richards, took advantage of knowledge acquired whilst an official in the land office, to acquire sec. 49, whereas such property ought to have been acquired, if at all, for the benefit of the company of seven, and Price has commenced an action in the Supreme* Court to have Mrs. Richards, to whom Richards has transferred the property, declared a trustee of the same, but the writ has not yet been served, and meanwhile Mrs. Richards has brought suit in the County Court to substantiate her right to the property on her own behalf. Section 49 is evidently believed to be valuable, chiefly on account of the mineral claim in dispute, and the contention will of • course be, whether the question is fought out in the Supreme Court or the County Court, " is the claim that of the company or of Mrs» Richards ?" It is unlikely that there will be any further dispute as to the land, except so far as it is necessary for the working of the claim, or if there is, there is nothing to prevent that point being fought out after the mineral question has been determined. There are also questions as to whether the land is properly staked and bonds given, v that Ri id, and that 3n the othe (until the present assertion that the claim was located on behalf of the company). These are all questions which will arise and can be fought out in the County Court action which is now before the Court, and was postponed merely for the purpose of making this application. By conferring upon the County Court by the Mineral Act the power to adjudicate upon these claims, the Legislature has shown its intention that such matters shall be disposed of summarily, and with as little delay and expense as possible. If I were to order this case into the Supreme Court I should largely defeat this object, and by my act encourage the protraction of the law suit. The County Court is made a competent court for the trial of these cases, and unless some peculiar questions of expediency arise, is the proper tribunal to adjudicate upon such claims. No such question of expediency has been shown to arise in this case, and I must, therefore, refuse the application. As this summons is a proceeding independent of either Supreme or County Court suit, I must dispose of the costs at once, and in dismissing the summons, I do so with costs. Application dismissed with costs. MARTIN'S MINING CASES. Kilbourne v. McGuigan. (5 B. C. 233.) Practice—Adverse Claim—Time—Extending — Appeal — Service of Notice on Agent of Solicitor of Party to proposed Action—Mineral Act, 1891, Sees, 21, 126; Mineral Act Amendment Acts, 189J, sec. U; 1893, sec. 9, sub-sec. (h), and sec. 10; 1894, sec. 6. Under the Mineral Act Amendment Act, 1892, sec. 14, the filing of an adverse claim in the office of the Mining Recorder is a condition precedent to right of action. The Court has no jurisdiction to extend the time for so doing. The rules as to time governing ordinary cases are to be more stringently applied in mining cases following Kinney v. Harris, ante, p. 137. A notice of appeal may be served on the agent of the solicitor for the proposed defendants. Decision of Dbake, J., affirmed. Appeal from a judgment of Drake, J., delivered on 22nd February, 1897, dismissing a motion by the proposed plaintiffs to extend the time for commencing action to sustain an adverse claim notwithstanding the expiration of such time. The proposed defendants, as owners of the American Boy mineral claim, on 27th December, 1895. published in the British Columbia Gazette, a notice of intention to apply to the Gold Commissioner for a certificate of improvements, for the purpose of obtaining a Crown grant of the above claim, and further gave notice "that adverse claims must be sent to the Gold Commissioner and action commenced before the issuance of such certificate of improvements," the notice being in the precise form given in sec. 6 of the Mineral Act Amendment Act, 1894. The proposed plaintiffs were the owners of the Treasure Vault and Ajax mineral claims, the boundaries of which conflicted with those of the American Boy, and caused an adverse claim to be filed in the office of the Gold Commissioner on 26th February, 1896, before the expiration of the sixty days. It appeared from the affidavit of the agent of the proposed plaintiff that he instructed J. B. McArthur, his agent, to commence proceedings in the County Court of Kootenay to establish the adverse claim, and that he attended at the office of the Registrar of that Court at Nelson with Mr. McArthur, about 12th March, 1896, within thirty days after filing the adverse claim, when Mr. McArthur informed him that he was filing the necessary papers and leaving instructions with the Registrar to enter the plaint and issue the necessary summons thereon; that, until about July, when the Reg KILBOURNE v rar informed him the plaint had not been entered, he believed that the proceedings had been commenced; but at that time he was negotiating a settlement with the proposed defendants, dur- p ing which they disclosed to him, by their solicitor, their knowledge of the fact that proceedings had not been commenced; notwithstanding which, all but Joseph Boss, husband and business agent of Eva Boss, on 27th October, 1896, agreed to a settlement, which was subject however to the ratification by Boss, who was then in England, but had before leaving expressed his willingness to settle. After Boss' return he, on 18th December, 1896, finally refused his assent to the settlement. The applicants also brought in an affidavit of J. B. McArthur that he prepared the necessary papers and attended at the office of the Registrar to enter the plaint and was convinced that he had done so, and that afterwards, by consent of the proposed defendants' solicitor, he caused a successive summons to be issued. The proposed plaintiffs, on 6th January, 1897, gave notice of motion to extend the time to commence action. The motion came on before Drake, J., on 19th February, 1897. A. E. McPhillips, for the motion: The Mineral Act, 1896, does not apply to this case. If the adverse claim was filed with the wrong officer the applicants should not be prejudiced, having followed the notice inserted in the Gazette, which is in the form contained in sec. 6 of the Mineral Act, 1894: Kane v. Easlo (1896), 4 B. C. 486. There is a discretion to extend the time under circumstances such as those shewn here, where the conduct of the proposed defendants has been such as to estop them from setting up that the adverse claim was not properly filed, as they had knowledge of all the facts during the- negotiations. The negotiations were continuous [Drake, J.:—You were not, by the negotiations for settlement, prevented from bringing action.] We thought until July that Mr. McArthur had instituted the proceedings. The grounds shewn are sufficient: Re Good Friday ■ (1896), 4 B. C. 496, ante, p. 84; Cusack v. L. & N. W. Ry. Co. (1891), 1 Q. B., Lord Esher, at p. 348, practically overruling Collins v. Vestry of Paddington (1880), 5 Q. B. D. 368, is in my favour, Re Maple Leaf and Lanark Mineral Claims (1893), 2 B. C. 323, ante, p. 68. [Drake, J.:—The decisions in this Court go to this, where there is some inability to bring action or to serve writ, and the time has expired but a few weeks, it may be extended, here more than a year has elapsed.] Gordon Hunter, contra: There is no jurisdiction to entertain the application. By the Mineral Act, 1891, sees. 21 and 126, the adverse claim, (the due filing of which is a condition precedent to the right of action, should have been filed in the office of the Mining- Recorder of the district where the claim was registered, i Unless- March MARTIN'S MINING OASES. [vol. this is done the proposed defendants' title cannot be impeached. The applicants might as well have filed their adverse claim) in Full Coukt. the Land Registry Office. A direction of this character in a statute must be strictly followed: Maxwell on Statutes, ed- 1883, 453. The form is repugnant to the statute and must give way: Hard- castle on Statutes, 287; Institute of Patent Agents v. Lockwood (1894), App. Cas. 347; Wood v. Boozey (1867), L. R. 2 Q. B. 340, Blackburn, J., at p. 353. As to extending time, the grounds shewn are not sufficient to warrant an exercise of the discretion. Much stronger grounds are required for extending the time after than before the expiration thereof: Ex parte Lovering (1874), L. R. 9 Ch., Mellish, L.J., at p. 590; as to mistake, see Re Helsby (1894). 1 Q. B. 742, per Lord Justices Halsbury and Lopes; Trask v. Pellent (1896), 5 B. C. 1, ante, p. 86. .A. E. McPhillips, in reply: Where there has been an accident or mistake, as here, the time should be extended, Ann. Prac. 1896, 1062-3. [Drake, J.:—There is no hard and fast rule, each case must be decided on its own merits.] The form is contained in the section, and is therefore in a higher position than a schedule. The Act says the adverse claim must be filed with the Mining Recorder; the Amending Act of 1894 sets forth the form, and according to the form it must be filed with the Gold Commissioner. It is misleading and a trap; see Armour, C.J., in Truax v. Dixon, (1899) 17 Ont. 366. [Drake, I J.:—Take it in its broadest sense, there are two duties, one imposed by the Act itself to file the adverse claim with the Mining Recorder, the other under the form in section 6, supra, to file it with the Gold Commissioner.] Cusack v. L. & N. W. Ry. Co., supra, shews that the time should be extended, when upon the facts it is in the interests of justice; and it is submitted that this is a proper case for the exercise of discretion. Cur. adv. vult. February 22nd, 1897. Judgment Drake'., J.:—Thomas McGuigan and another, as recorders of the claim American Boy, on 27th November, 1895, gave notice in the Gazette of their intention to apply for a certificate of improvements, and that notice follows the form of notice in sec. 6 of the Mineral Act Amendment Act, 1894, and states that notice of adverse claims .must be sent to the Gold Commissioner and, action commenced before the issuance of such certificate of improvements. This was substituted for the notice set out in sec. 17 of the Act of 1893, by which notice was to be sent to the Mining Recorder and not the Gold Commissioner, and that section was substituted for Form F. to the Act of 1891, where the term " Gold Commissioner" was P KILBOURNE v. McGUIGAN. used. It appears by the affidavit of J. B. McArthur, mine owner, that he was instructed by E. J„ Matthews, who is stated to be the agent of Frank H. Kilbourne and William Braden, the claimants, that adverse -claims on behalf of the Ajax and Treasure Vault had been filed in the office of tHe Gold Commissioner at Nelson previous to 27th February, 1896. These claims I presume were filed as adverse claims to the American Boy. The American Boy is a claim situated within the New Denver mining district, and there is a Mining Recorder there, but no notices ■of such adverse claims were filed at the office of New Denver. Kilbourne and Braden contend that notice having been given to the Gold Commissioner at Nelson, they have sufficiently complied with the Act to establish their right to bring ah action- I do not think they have. By see. 21 of the Mineral Act of 1891, mineral claims are to be recorded in the Mining Recorder's office within whose district the claim is located; and by sec. 126 all documents affecting claims held as real estate or mining property shall be recorded in the Mining Recorder's office of the district; and whenever anything is required to be done at the office of the Gold Commissioner or Mining Recorder, it shall be done at the office of the Mining Recorder of the mining division wherein such claim is situated. Section 9 of ch. 29, 1893, says: "At the expiration of the term of the publication, provided no adverse claims shall have been filed with the Mining Recorder, he shall forward the documents to the Gold Commissioner." Section 14 of ch- 32, 1892, enacts, " that in default of . . filing an adverse claim . . no objection shall be permitted . . to be heard in any Court." The claimants there allege that they were misled by the statutor ,r notice into giving notice to the Gold Commissioner and not to the Mining Recorder; but the Act is clear that whether or not notice is given to' the Gold Commissioners it must be given to the Mining Becorder of the district. This has not been done, and no adverse claim can now be set up. The claimants contended that as negotiations for settlement of boundaries had been pending for a considerable time but eventually failed, that that is a sufficient ground to permit me to exercise the discretion now to give time. I do not think it is. If a proper notice of adverse claim had been given in time, and good reasons were shewn why the period for commencing the action should " no doubt that the Court could exercise a discr proper notice of adverse claim has been given I 1 tion. The motion must be refused with costs. Motion dismissed with t March 11. FuliTcoub-i tended, I have ut when no such discre- MARTIN'S MINING CASES. [vol. I 1897. From this judgment the applicants appealed to the Full Court, Marchjti. and tne appeal was argued before McCreight, Walkem and McColl, x Court. JJ., 0n 11th March, 1897. Gordon Hunter, for the respondents: We object that a proper notice of appeal has not been given. The notice of appeal was.served on me as agent of the solicitor of the respondents; there being no action there is no authority for service on the solicitor,. it should be on the party personally; service on the agent of a solicitor is not sufficient. Per Curiam :—We are of opinion that the service is good. Argument. ^ j£# McPhillips, for the appellants: We were misled by the form prescribed by the statute. Where the mistake arises from the misleading provisions of the statute it should be relieved against. If the adverse is irregular the Court may in a proper case hold the adverse claim filed as sufficient, vide Mineral Act Amendment Act, 1893, sec. 10. The fact that no certificate of improvements has yet been issued shews that the respondents have not been vigilant and did not intend to take advantage of the statutory provisions. There was a mistake: Lord Bowen. in McNair v. Audenshaw Co. (1891), 2 Q. B. 502; Cusackv. L. & N. W. Ry. Co. (1891), 1 Q. B. 347. Until July we believed that action had been commenced; it was then too late and the negotiations for settlement were proceeding, and later an agreement of settlement was executed by all the proposed defendants except Gordon Hunter, contra, was not called on. Per Curiam:—We have already decided in Kinney v. Han ante, p. 137, that the rules as to time governing ordinary cases are to be more stringently applied to mining eases. It is of the firs; importance that mining cases should be quickly determined and the statutory time not extended, except on very strong grounds. The grounds shewn are not sufficient. The judgment appealed from is correct, and the appeal must be dismissed with costs. Appeal dismissed with costs. Note.—An application was made by the appellants for leave to appeal to the Privy 'Council, the motion coming on before the full Court, consisting of Davie, C.J., McCreight and Drake, JJ. The motion was refused. Application of this case considered In re American Boy, post, p. 304. See also Re Good Friday Mineral Claim, ante, p. 84, and note thereto. As to condition precedent, see Paulson v. Beaman, post, 471. As to policy of Mineral Acts, see pp. 71, 88, 187, 194, 236, 304, 333. 336, 414, 446. WELDS v. PETTY. Wells v. Petty. (5 B. c. 353.) Mineral Claim—Whether an Interest in Land—Statute of Frauds—Trustee— Estoppel — Partnership — " In on it " — Parol Agreement — Uncertainty — Practice—Pleading. A verbal agreement between two free miners by which they are both to be "in on it" in a mineral claim imports a co-ownership or partnership, and the presumption is that the interest shall be equal. Whether or not an interest in a mineral claim is an interest in land within the meaning of the Statute of Frauds is doubtful, but under the above circumstances the defendant was a trustee for the plaintiff and could not set up said statute as a defence against him. ' Per McCreight, J.:—That, if the title to a mineral claim is an interest in land within the Statute of Frauds, it is so only by reason of the Mineral Act, and that in order to take advantage of the defence of the Statute of Frauds, the Mineral Act should also be pleaded. Decision of Walkem, J., reversed. Appeal from the judgment of Walkem, J., at the trial dismissing the action. The facts sufficiently appear from the judgments. The appeal was originally heard before McCreight, Drake and McColl, JJ. McColl, J., had been counsel in the action and sat only, for the purpose of making a formal quorum and took no part in the judgment. McCreight, J., delivered judgment allowing the appeal, Drake, J., delivered judgment dismissing the appeal, which he subsequently withdrew, whereupon the appeal was allowed with costs. Upon subsequent motion to the Court the appeal was ordered to be re-argued, and was heard before. Davie, C.J., McCreight and Drake, JJ. E. P. Davis, Q.C, for the appellant. W. J. Taylor, for the respondent. The following authorities were cited by counsel on the use of ambiguous terms, and the admission of evidence of custom in the interpretation of contracts: Ireland v. Livingston (1871), 5 H. of L. 395; Fowkes v. Assurance Association (1863), 3 B. & S. 929; Hindley's Case (1896), 2 Ch. 128; Place v. Alcock (1866), 4 F. & F. 1074; Robinson V: Mollett (1874), 7 H. of L. 815; Chitty on Contracts, 12th ed. p. 116; Figes v. Cutler (1822), 3 Starkie,139j Cooper v. Hood (1858), 28 L. J. Ch. 212; Pearce v. Watts (1875), L. R. 20 Eq. 492; Taylor v. Portington (1855), 7 DeG. M. & G. 328; Coombe v. Carter (1887), 36 Ch. D. 348.' MARTIN'S MININ [v, Ma ch, 1897. i without a place as to Id be in on the argument, and so we may rities Co. v. Massey (1896), 1 :arefully perused the evidence, :ould have arrived at no other Davie C.J.:—The learned Judg '" jury finds "that the conversation al . " float,' and as to its being agreed th it,' did actually take place." This finding was not attacked up fairly assume was right: Colonial Se Q. B. 38. I wish to say that, having I think that the learned trial Judge conclusion. The conversation to which reference is here made occurred on 11th May, 1895, at Three Forks. The plaintiff, in prospecting, had found some float galena, and the defendant asked him. to show where he had found it, remarking " I will go and look for it" (meaning the ledge) " and if I find anything you will be in on it." The plaintiff thereupon, on those conditions, discovered to the defendant where he had found, the float, and the defendant accordingly, within three days afterwards, having found a ledge in the vicinity indicated to< him by the plaintiff, located and recorded the ledge in his own name, but refused to give the plaintiff any interest in it. Hence the present suit. The defendant sets up the Statute of Frauds, and, if that statute is to be held applicable to transactions governed by the Mineral Act, I should agree with the learned trial Judge that the plaintiff's action fails, were it not for the case of Rochefoucauld v. Boustead (1896), 75 L. T. N. S. p. 502, to which our attention has been called by Mr. Davis, and which was decided since the judgment of the Court below, and reported since the case was first argued in the Appellate Court. In Bartlett v. Pickersgill (1T.V>). 1 R- B. 1, parol evidence was deemed inadmissible to show that a party having agreed for the purchase of an estate in his own name had, in fact, purchased it on behalf of another person. That case has been followed in many subsequent cases, and is referred to as good law in James v: Smith (1891), 1 Ch. 384, and seems a very strong case, because there the •defendant, for denying the trust (success fully in point of law), was nevertheless indicted and convicted of perjury. If parol evidence would be incompetent to prove the defendant merely plaintiff's agent in making a purchase, equally so would it seem to be to prove him a trustee in making a pre-emption. n«rlb>lt v. Pickersgill, however, is expressly overruled by Rochefoucauld v. Boustead, which proceeds upon the principle laid down in McCormick v. Grogan (1S69), 4 H. of L. 97, Rose v. Peterkin (1884), 13 Can. S. C. B. 706 and other 3S, that it is a fraud on the part of a person to whom land is con- ;yed as a trustee, and who knows it to have been so conveyed, to he trust and claim the land, and that consequently, notwith- ;he Statute of Frauds, it is competent for a person claiming** I.] land conve3'ed to another, to prove by parol evidence that it was so conveyed upon trust, and that the grantee knowing the facts, is denying the trust. I can see no reason why, so far as the Statute of 3 Frauds is concerned, the same principle is not applicable to the location of a mining claim held, or partly held in trust. The provisions of the B. C. Mineral Act are not pleaded. It may be a serious question whether, or how far, the provisions of the Mineral Act, so far as relates to rights governed by the Mineral Act, supersede or displace the Statute of Frauds. That question, however, does not arise here, for the reason as before remarked that the Mineral Act is not pleaded, and, I take it, could not, any more than the Statute of Frauds, be relied upon to defeat a parol agreement under pleaded: James v. Smith (1891), 1 Ch. 384, as further answering the Statute of Frauds, and as pointed oi it by McCreight, J., the position of the plaintiff apart from his sta tutable rights and liabilities as a free miner, would be merely that of a licensee of the Crown, having no title whatever to land, and cc nsequently no interest to be defeated by the Statute of Frauds A mi mber of witnesses were called at the trial on both sides, to give their c pinions as miners and experts as to the meaning and measure of the .xpression " You will be in on it." Some of these witnesses thought the expression " could only be satisfied with an equal partnership," other s again, considered that the expression would be covered by a smalle r interest, but all agreed that the words pointed to an interest, to som e extent, in the mine. I think, however, that quite independently of he opinion of the witnesses, the Crown is bound to place a construe ion on these words. It is not as if the expression were of technical significance, or a term of art. In that case, of course, the evidence of experts would be requisite. It is clear and is admitted on all s ides that " to be in on it" means an in- terest of some measure or another; and it seems to me that the well known maxim, "equality is equity," supplies that measure, when, as in this case there is no evidence showing that less than an equal share was stipulated for or intended. As an instance of the application of this principle, the case of Robinson v. Anderson (1855), 7 DeG. M. & G. 239, 20 Beav. 98, is in point. There two separate solicitors were retained by the same clients in the same business, and it was held that the presumption of law was that the profits were to be equally divided. I think, therefore, that judgment should be given decreeing the plaintiff entitled to an equal half-interest with the defendant in the Monitor No. 2, and to an equal share with him in the extension as to which a half interest has been acquired. There will be the usual account of the workings of the mine and division of net proceeds (if any), and, if so desired by either party, a sale of the property. In the meantime there will be a receiver and injunction, if required. MARTIN'S MINING CASES. Lvol. The appellant will be entitled to his costs in the Court below, and of the appeal, which will not include the costs of more than one argu- ■ ment. McCreight, J.:—In this case the alleged agreement is found by the learned trial Judge to be in substance as follows, that the defendant said to the plaintiff " If you will show me where you found the float I will prospect for the ledge, and if I find it you will be in on it," and further that some partnership interest was implied, but that the contract was in reality an illusory contract, because judging from the evidence as to the importance of the words used in it, it might be that the plaintiff was " to get a half or three-quarters or one- eighth, or whatever fraction it is." But I think this difficulty must be taken to be entirely obviated by the legal presumption that shares of partners are equal. Of course if witnesses as to fact had satisfactorily proved that the contract de facto was for less than a half share, the legal presumption would or might have been rebutted by such evidence, but the learned trial Judge has found as to the facts in favour of the plaintiff, and I think perusal of the evidence fully warrants him in so doing. The evidence that has induced the learned Judge to decide that the plaintiff has not succeeded in proving his case is that of experts, or merely expert testimony called by the defence to show that the agreement could not be interpreted as dealing with any particular share or its amount, and so was illusory; but it could not have been distinctly pointed out to him that the presumption of law was, or in truth the law presumed that it was, a partnership in equal shares in the absence of evidence of fact to displace such presumption, and that the presumption of law remained whatever the opinions of experts might be. In Lindley on Partnership, ed. of 1891, 348, it is said that " In the event of a dispute between the partners as to the amount of their shares, such dispute, if it does not turn on the construction of written documents, must be decided like any other pure question of fact, and if there is no evidence from which any satisfactory conclusion as to what was agreed can be drawn, the shares of all the partners will be adjudged equal." The first case to which he refers is Robinson v. Anderson (1855), 7 DeG. M. & G. p. 239, where two separate solicitors were retained by the same clients in the same business and it was held that the presumption of law was, &c, that the profits were to be equally divided. Knight Bruce, L. J., said: " The evidence satisfies us that the result of it cannot be represented more favourable for the defendant than that the statements on one side neutralize those on the other. So putting it, I conceive that the presumption of law remains, which is equality. I believe, indeed, that this was the agreement and that the decision of the Master of the Rolls, with which I entirely agree, is not less according to the truth and honour than it is according to the technical equity of the case." I.] WELLS v. PETTY. Turner, L.J., entirely agreed and said, "That in the absence of evidence of an agreement for a different division the presumption is in favour of equality, &c. The burden of shewing an agree- 1 ment to the contrary is on the defendant." In this case the learned trial Judge has found that the defendant has not satisfied this burden. Reference is also made to the case of Webster v. Bray (1848), 7 Hare, p. 159, in which case the V.-C. said at page 179: The conclusion to which the evidence would probably have led me is that to which I should perhaps have come as a conclusion of law without the evidence, namely, that in the absence of previous arrangement between the parties the remuneration to be paid to either for personal labour, exceeding that contributed by the other, must be left to the honour of the other; that where that principle was wanting a Court of Justice could not supply it, and that equality in the division of the profits would be the rule. In support of this, some observations may be found in the judgment of Lord Eldon in Peacock v. Peacock (1809), 16 Vesy 49. But the defendant has pleaded that the agreement does not comply with the Statute of Frauds. In considering this defence, it seems proper to consider what the position of the plaintiff would have been as a licensee of the Crown authorized by the Lieutenant-Governor to mine for gold on Crown lands, supposing that there had been no legislation as regards his rights and liabilities as a gold miner, would the Statute of Frauds have had any application?—and I think it is easy to shew that it would have had none. The well known case and the elaborate judgment in Wood v. Lead- bitter (1845), 13 M. & W- 838, shews he would have a mere revocable licence, and that upon revocation he would have had no rights whatever : to use words of the judgment at page 845: But suppose the case of a parol licence to come on my lands and there to make a watercourse to flow on the lands of the licensee. In such a case there is no valid grant of the watercourse, and the licence remains a mere licence, and therefore capable of being revoked. On the other hand, if such a licence were granted by deed, then the question would be on the construction of the deed whether it amounted to a grant of the watercourse; and if it did, then the licence would be irrevocable. This shews that as such licensee he would have had no interest in land, and the sections of the Statute of Frauds dealing with such interests would have had no application to him; and judging from the cases cited in the last edition of Maxwell on Statutes, it would have had none with respect to the Lieutenant-Governor. The defence then of the Statute of Frauds cannot be material. On turning to the Mineral Act of 1891 we find two sections which if pleaded might have possibly afforded a defence, namely, sec. 34, which makes an interest in a claim a chattel interest equivalent to a lease for a year, and sec. 51, which says that "no transfer of any MARTItf'S MINING 1897. _ mineral claim or of any interest then * "3- same shall be in writing signed," &c i. Court, nor the Act are pleaded. It may be ~ j. in Odger on Pleading at pp. 62 ani shew in his statement of claim that complied with. It is for the defend it will then be for the plaintiff to pn the Statute of Frauds seems to be fut supposing it to be a defence if plea the statement of defence, and the merits which I think are with the ph Statute of Frauds might be satisfied In i first i has been 3 not, and Lght well be that the reement I forgot to say that though the learned trial Judge says, "there must be mutuality" here we have the same kind of mutuality that exists in cases of I offers of rewards for the recovery of lost property, &c., where it has never been doubted that there is sufficient mutuality. The Mineral Act was referred to in the particulars of a defence subsequently withdrawn, and not referred to in the amended pleadings where only the Statute of Frauds was alluded to. Again particulars do not form any part of the pleadings nor can they have the effect of the pleadings nor can they be looked at with a view to construe the pleadings. On the second argument it was not suggested that the Mineral Act had been pleaded as a defence. I agree substantially in the decree suggested by the learned Chief - Justice. I can't feel quite sure as to the Hustler Fraction, and if either party wishes, it should be spoken to, I think, on notice being left in the Registry to that effect within fourteen days. Drake, J., concurred. Appeal allowed. Note.—As to pleading, i As to free miner's interest i Co. v. Synon, ante, p. 1; Stuss 238; Pope v. Cole, p. 257; Sum Nerhanie v. Archibald, post, p. bald v. Goldstein (1883), 1 Ma 5 Hogg v. Farrell, ante, 79. J20; McNaught WATERHOUSE i m lTERHOUS (6B. i V. LlF rCHI Mineral Cla of Work- Misleadinc im—Occt, -Right —Mineri I Act n and Wo nother to , 1896. sec. rking of- Re-loca 28. -Defc c—M Occupation of a mineral claim ordinal Mining ground actually occupied and open to location. lly consists of Defects in a other loca location ions, and made bona fide i which do not m i endeavc islead, at uring Where the a rea of a ntei al claim i of little i in disp ut 3 Action for a declaration that plaintiff was the owner of the lands embraced within the limits of the mineral claim, Buffalo Bill, which had previously been located by defendant as the Grand Prize mineral claim. The trial took place at Rossland before McColl 1897. The facts appear in the judgment. A. H. MacNeill (Armstrong with him), for plai: Hamersley, for defendant. April 1st, McColl, J.:—The Grand Prize mine: June, 1894, by one McDougall. A certi 3rd June, 1895. The defendant on 27t claim for $4,700. Another certificate June, 1896. The plaintiff having ascertained the! of the purchase money) from Mr. Kirku from searching the records in the Mining the defendant was in active occupation of, and was in working the claim, as the plaintiff then himself saw (except the amount fining Recorder, and der's office, and while engaged ;eeded to locate the ground as another claim by the name of the Buffalo Bill fraction, on 24th July, 1896, and recorded it on the next following day in his own name. In the affidavit required by sub-sec. (c) of sec. 16 of the Act (1896), the plaintiff, instead of stating his belief that the ground was unoccupied " by any other person as a mineral claim," states that in his belief it was not " lawfully " so occupied. MARTIN'S MINING CASES. [vol. The plaintiff claims the right to make his location because it is alleged that the posts of the Grand Prize were situate outside the limits of that claim. At the time of the location of the Grand Prize the only claim located adjoining it was the Deer Park, which, however, was not then surveyed. I can place no reliance upon the testimony of the plaintiff or that of Bleeker, from the unsatisfactory way in which they gave their evidence; nor can I accept the evidence of George Ellis as satisfactory upon the question of distances,- as it does not appear that he measured them. Mr. Kirk, a land surveyor, called by the plaintiff, had not seen either No. 1 or No. 2 post, but was able to speak as to their situation by referring to the field notes of the Grand Prize mineral claim, which was produced. The way in which the Grand Prize claim was located in itself, shews the desire of the locator to avoid infringing upon the ground of the Deer Park claim, the exact boundaries of which he did not know, as it had not then been surveyed; and it is quite consistent with the- exercise of reasonable care upon his part, that the No. 1 post, should, upon a survey, be found where it was. The record of the Grand Prize states it to be situate north of and adjoining the Deer Park claim. The other posts were, upon the survey, found to be upon what were then waste lands of the Crown. Mr. Kirk himself says it is impossible for a prospector to locate a claim accurately, owing to the roughness of the ground, and admits that an error of 100 to 200 feet might well happen. I am of opinion that the defects referred to were, in the circumstances of this case, such as were cured by the certificate of work issued. I think, however, that the ground comprised within the limits of the Grand Prize claim, being actually occupied, and being actively, worked by the defendant under his title to it, at the time of the location of the Buffalo Bill fraction, was not open to location by the plaintiff, or any other person. The point is an important one, which, so far as I am aware has never before arisen, and I regret that I have not- had the advantage of hearing argument upon it. Reference was not! even made to it at the trial. I think it clear that the circumstances of this case constitute an 'occupation within the meaning of the Act, even assuming the location to be defective, and the defect not to have been cured; though ordinarily occupation may be found to consist of a valid location, and record under the Act. In the latter case it is intelligible that, but for substantial compliance with the provisions of the Act, there can be no real occupation. But in the former case it is difficult.to see, whatever may be the rights of the Crown, or of a lawful occupant for other than mining purposes, how another person can enter upon the ground for the purpose of acquiring a mineral claim. Such person cannot locate m ODS . LI TG & claim upon the same ground wit occupation of the ground surely en as against some one having a betti having had at the time of entry, •cumstances, without committing 8 .should be so construed as to permit way contended, for it is not consi t entry, and the previous actual :s the occupant to hold it except tie which such other person not ; lifestly cannot get in these cir- ;spass. I do not think the Act the acquisition of a claim in the ;ent with any general principle of law. It is, I think, not in accordance with the policy of the Act. If ^permitted, it might and probably would, lead to violence, with results of the most serious character. I think that the plaintiff's attempt, (which I cannot help characterizing as a most impudent one), to deprive the defendant of a claim which I find was located with a bona fide attempt to comply with the law, merely because of alleged defects which could mislead no one, tails, and the action is dismissed with costs. Actio ?sed with costs. 31; Sunshine, Lin -As to measurements, see Bleekir v. Chisholm, ante, p. 1 nisleading, see Manley v. Collom, post, p. 487; and as to ee list of decisions in note to that case. Kieup''^ ."round and breach of peace, Woodbury v. Hudni . Cunningham, post, p. 286. MARTIN'S MINI: Richards v. Pr] A bona fide attempt to cc sec. 16 {d), does not m form as provided in sec. ties provided by sec. 16 tion by four corner post «toUiffi£aa* Eil^cS Mineral Act, 1S96, an attempt. "Discovery" in sec. 16 (( to any locator. )does not merely n ean original discovery; it appHes Action in the Con lty Court of' Vic oria, minii g jurisdiction, by the plaintiff as owner o f the Spero mine al claim f o r possession there- of, and that the record of a claim by the defendant covering the same ground be declared voi 1 and ordered to be cancelle 1. The defendant counter-claimed, allegi ng that the Sp« to locatioi i and record was illegal, and claiming ti at the record the reof be can celled. The action was trie d at Victoria on 13th Marcl l and 1st and 2nd April, 1897, before Harrison, Co. J. J. P. Walls, for the plaintiff. A. S. Potts (Drake, Jackson & Helmcken), for the Cur. adv. vult. April 5th, 1897. I Harrison, Co.J.:—The plaintiff in this action claims that she duly and lawfully on 23rd February, 1897, located the Spero fractional mineral claim, situate on section 49, Metchosin District, and duly recorded the same, and that the defendant illegally located and. recorded a mineral claim called the fractional Last Chance on the same land and claims possession of the land, and that the defendant's record may be declared void and cancelled. The defendant counterclaims that he duly and lawfully located the Last Chance, and that the plaintiff unlawfully entered his claim, and illegally located the fractional Spero claim, and that the plaintiff's record may be declared void and cancelled. ;H« clai defendant and others, called the aim the defendant had assisted in :ed on the initial post of the Gari- lowing words were written: " Last post, running 175 feet west from ieence 90805." initial post or as a discovery post, this; Henry Price, Free Miner's a 1 He did not mark any post as a nor did he number any post as a number 1 or number 2 post, nor did he mark out any location line. On 25th January, 1897, he made an affidavit before the Gold Commissioner, in; which, among other things, he swears that he had placed a No, 1 and a No. 2 post and a discovery post, of the legal dimensions, on the said Last Chance fractional mineral claim. That he had written on No. 1 post the following words: " Henry Price, Free Miner's Certificate No. 90805, Last Chance post No. i," and that he had written on No. 2 post, the following words: " Henry Price, Free Miner's Certificate No. 90805, Last Chance post No." 2," and that lie had marked the line between No. 1 and 2 posts, as required by sec. 16 of the Mineral Act, 1896. On the back of the affidavit is a sketch plan, referred to in the affidavit, shewing the boundaries of the claim marked by posts at each corner, " Post No. 1," "Post No. 2," " Post No. 3," and " Post No. 4." On 27th January, 1897,- a record of the fractional Last Chance mineral claim was issued to him, in which it is stated that " the^direc- id i i lei the clai Th the Atkins his record and subsequently er and drills, but Atkins would not MARTIN'S MINING CASES. [vol. allow him to work there. Atkins had worked at the old shaft, and there was a post with his name on near the shaft, but he did not record a claim there, nor does it appear that he was a free miner. On 23rd February, 1897, the plaintiff's agent, F. G. Richards, located, and on 24th February, 1897, recorded, on sec. 49 for the plaintiff the fractional Spero mineral claim, covering within a minute fraction the Last Chance. No person was then on the Last Chance; no work had been done by the defendant. No question arises in this case as to there being a vein or lode or rock in place in the ground claimed by these parties. The plaintiff attacked the defendant's location and record on the grounds of his want of compliance with the Act, both as to locating and recording. The defendant's counsel admitted that if it were not for sub-sec. (d) of sec. 16, it would be impossible to give judgment in his client's favour. As to sub-sec. (d), the plaintiff's counsel contended that that subsection did not apply to this case, but that it was only intended to benefit Discoverers, and the Placer Mining Act shews what the meaning of the word Discovered is. That neither the plaintiff nor the defendant were Discoverers of the mineral in place, but it had in reality been discovered by Atkinsf _ or whoever had sunk the shaft near the spot where the defendant had placed the south corner post before-mentioned, and close to which the plaintiff had placed his discovery post. And as regards both plaintiff and defendant, the Act must be strictly construed. I do not agree with the construction sought to be placed by the plaintiff on sub-sec. (d), and it is not necessary to depart from the Mineral Act and resort to some other statute to ascertain the meaning of the words " actually discovered." The word " locator," as used in the Act, evidently includes " free miner " and is used with reference to free miners generaUy. - The Act {vide sees. 12, 13, 16, 24 and 19,) does not" restrict the location of a mineral claim to the first discoverer of rock in place, or to the discoverer of a new mine, but gives any free miner the right not only to locate claims, but also to locate claims abandoned and claims located but not duly recorded. And the locator (free miner) must mark any mineral claim he locates by posts, and sec. 16 requires him to also place a legal post at the point where he has discovered rock in place, on which shall be written " Discovery Post"; the affidavit he is required to make shews that the word " Discoverer " in that part of the section and the word " Locator " are used synonymously, and the words " Discover " and " Found " are used without any qualification. In other words, every free miner locating any claim is, at the point where he has removed the covering from, or exposed ith, . (d) is « ictually. To support the construction advanced it would be necessary to give the word " discovered " in sub-sec. (d) of sec. 16 a meaning which would be obviously different to the meaning it has in the earlier part of sec. 16. Neither the sense of the section nor the sense of the Act . requires this to be done. A number of objections to the validity of the defendant's location and record based on his non-compliance with matters specified in the preceding sub-sections of sec. 16 were raised and cases prior to the passing of that sub-sec. were cited, in which locations of mineral claims were decided to be invalid. But it is not necessary in this case to decide as to what non- observances of sec.-16 are material or immaterial, as the question which first presents itself upon the facts as they appear in evidence is, " Does the defendant, having discovered mineral in place, come within the provisions of sub-sec. (d) so as to be entitled to any benefit it may confer?" and I think not. Neither sec. 16 or any other section of the Act is repealed. Sub-section (d) deals with failure to comply with and non-observance of the provisions of see. 16, but sec. 16 still remains part of the Act, and there must, I think, still be a bona fide attempt to comply with the provisions of the Act, including sec. 16. The Act requires that every mineral claim must have a location ' line, which must be marked at each extremity by a post, and the location and location line must be defined on the ground in such a way that the initial point and final point and the direction of the location line and the extent of the claim on each side of the line clearly appear,. and until the claim is so marked and particulars shewing this has been done are furnished to the Recorder, the locator is not entitled to a record. Section 16 goes into particulars and states how this intention and general requirement of the Act is to be carried out, but without dwelling oh the minutiae of the manner in which sec. 16 provides it is to be-. carried out, the provisions as to survey and the other references in that section to the location line and sees. 18, 19 and 20 clearly shew that the claim must be located in the way I have stated. And I do not think that sub-section (d) in see. 16 overrides the Act and allows the locator in locating to disregard not only the details of sec. 16, but also the requirements of the statute. Here the defendant made no attempt to mark out his claim, as required by the Act. . But further, sub-section (d) seems to me to only apply to cases of non-observance or non-feasance. Sec. 16 provides that a claim shall RTIN'S MINING CASKS |v< s the application shall be accompanied by an ind 20 also require information, and particulars ! are to be furnished to the Recorder, not fail to file an affidavit, but in it he swore the law, and gave particulars which were lilure to comply or non-observance, but a onditions of sub-sec. (d), which he claims ;cord, is that there, should be a bona fide provisions of the Act, but his record is tempt to comply with, but on a violation The defendant's location and record are d is to be cancelled. Nothing has been ff's location or record, except the alleged I record of tile defendant. The counter refore give judgment for the plaintiff, on on the counter claim, with County Court Judgment for plaintif r Nelson & Fort Sheppard Ry. Co. v. Jerry et al. (5 B. C. 396.) ] Mineral Claim—De facto—"Rock in Place"—" Valuable Deposit "—Abandonment—Location—Status of Landowner to attack Validity of—Certificate of Improvements whether Bar to—Entry on Occupied Premises — Security — Bond—Whether requisite to Valid Location—Pleading—Mineral Act, 1891, and Amendments—Mineral Act, 1896—Land Owner. 1. The doctrine of implied surrender by conduct does not apply to a valid location, and the only abandonment by which the owner can be concluded is that by notice of abandonment given by him to the Crown under sec. 27 of the Mineral Act Amendment Act, 1892. 2. The exception from the plaintiff's Crown grant of " lands held as mineral claims " means de facto claims, and the word, " lawfully," cannot be imported. . 3. A claimant to the land as land has no status to question the due performance by the free miner of the conditions required by the Crown as pre-requisite to his right to a valid location thereon. 4. The requirement of a bond by sec. 10 of the Act of 1891 is a directory provision for the protection of the land owner, and is not a pre-requisite to the acquisition by the miner of mineral rights from the Crown. 5. The discovery of a mineral vein or lode is not essential to a valid location; I rock in place " is sufficient. re satisfied by rock in situ, bearing valuable t lying between defined walls, or in a vein or 6. The words, " rock in place, deposits of mineral, although 7. A certificate of improvements is a bar to those claiming adversely to the validity of the location in any right and on all grounds except fraud. 8. The expression " valuable deposits of mineral " means " capable of being valued," not " costly." 9. If it is proposed to attack a certificate pf improvements obtained since issue of writ, that issue must be raised on the pleadings. Decision of Davie, C.J., reversed. Action for a declaration that the plaintiffs were entitled to the Statement, exclusive use and possession of certain lands, including portions thereof, occupied by the defendants as a mineral claim. On June 15th, 1892, the Zenith mineral claim was located on waste lands of the Crown. On March 23rd, 1893, the railway company, pursuant to powers contained in their Land Subsidy Act, 55 Vict., B. C. (1892), ch. 38, selected a block of Crown lands to be taken by the Company thereunder, within the area of which lands the Zenith was situated. The work required to be done on the Zenith during the year following its location, under sec. 24 of the Mineral Act, 1891, was not done, the locators having stopped work and left the claim MARTIN'S MINING CASES. [tol. prior to the date of the selection of the lands by the railway company referred to. On December 24th, 1894, the Paris Belle mineral c claim was located, its area including part of the ground occupied by the Zenith location of 1892, as well as other ground. On March 8th, 1895, there was issued to the railway company a Crown grant of the lands selected by them " excepting thereout all lands prior to 23rd March, 1893, held as mineral claims." The defence maintained that the Zenith was a subsisting mineral claim from 15th June, 1892, the date of its location, until the expiration of a year thereafter, and equivalent to an estate for a year in its owners by virtue of sees. 24 and 34, supra, and that its area was cut . out of the lands open for selection by the railway company, and was within the exception from plaintiff's Crown grant. The defendants also claimed as to the ground covered by the Paris Belle, that it was properly located as a mineral claim, assuming the lands, as lands, to be the property of the plaintiffs under the Subsidy Act and their Crown grant. The plaintiffs replied that, though the locators of the Zenith might have had a right to hold that claim till the expiration of a year from its location, that their conduct amounted to an abandonment of such right; and as to the whole of the Paris Belle ground, that there was not any " rock in place " found upon it, nor any mineral vein or lode, and that the lands were not therefore subject to location and record, and could not be held as a mineral claim. The plaintiffs further claimed that the absence of a bond of indemnity to them as owners, for damages caused by the location, &c, as provided by sec. 10 of the Act, invalidated the Paris Belle. The defendants rejoined that they had obtained a certificate o improvements to the Paris Belle, and that same operated under sec. 46 of the Act, as an estoppel and bar to all the objections of the plaintiffs One of the allegations in the statement of claim was that " The defendants, or some of them, now claim to be the lawful owner or owners of the said alleged mineral claim, and further claim to be entitled to the surface of all the lands comprised within the limits o:'. the said claim; and they have caused notices to be posted at various places upon the said lands forbidding the plaintiffs,. or any of their agents, or any other person or persons from entering upon or in any way interfering with the surface of the lands comprised within the boundaries of the said claim, and the defendants, or some of them claim the right to sell and dispose of the surface of the said lands, anc to deal with the same generally as if they were the owners' thereof in fee simple," which was admitted by the defence, and the question of law raised as to the extent of the defendants' right to the surface as holders of the mineral claim. The ground, in fact, adjoined the town of Rossland and was valuable for townsite purposes. r I.] NELSON & FORT SHEPPARD RY. 00. v. JERRY et al. The action was tried before Davie, C.J., January loth and 16th, 1896. E. V. Bodwell, for the plaintiffs. ' W. J. Taylor, for the defendants. Cur. adv. vult. May 3. jll Court. May 30th, 1896. Davie, C.J.:—The plaintiff company, incorporated by special Provincial Act (1891, ch. 58), to construct, and which has constructed, T a railway from a point near the town of Nelson to a point near Fort Sheppard, British Columbia, which work was declared by competent authority to be a railway for the general benefit of Canada, received a grant of public land in aid of its railway, and in this action sues for possession of certain lands comprised within its grant, to which the defendants claim title under locations as mineral claims alleged to have been made on the 15th June, 1892, by E. J- Noel, and on the 3rd January, 1895, by the defendant Jerry, the benefit of both of which locations has passed to the defendants, the Paris Belle Mining Company. The plaintiff's title proceeded upon 55 Vict. (1892), ch. 38, which authorized the Government to grant lands in the Electoral District of West Kootenay, not exceeding 10,240 acres for each mile of railway ■ constructed, and that upon the filing and giving by the company of certain plans and securities, there should be reserved from pre- 'emption and sale of a tract of land on each side of the line of the proposed railway. Accordingly, on the 12th August, 1892, a reservation was made of a tract sixteen miles in width on each side of a line running from the north-east corner of Lot 97, Group 1, to the international boundary line. It is not disputed that the conditions as to plans and security were complied with. The Subsidy Act provided for the selection and projection upon a plan to be filed by the company of alternate blocks of an area of sixteen miles, and that as the work of construction proceeded the Government might issue grants of lands within the alternate blocks. On the 23rd March, 1893, the plaintiffs filed a plan shewing the projection of alternate blocks, among which was exhibited Block 12, containing a tract of land commencing at the boundary line of the Province, and extending northward and including the lands in question in this action. The evidence shews that the actual survey on the ground was begun on the 24th September, 1894, and finished on 29th November, 1894, and field notes were deposited in the land department on the 10th January, 1895. In pursuance of such selection, the Crown, on the 8th March, 1895, granted to the company what is now known and described as sec. 35, township 9a, comprising the former block 12 as MINING CASES. [v defined on the plan filed on the 23rd March, 1893. Such grant excepts all mineral claims held prior to the said 23rd March, 1893. The . Subsidy Act declares that the company shall be entitled only to unoccupied Crown land, and that to make up for any area within any of the blocks of land to be selected by the company which shall, before their selection, have been alienated by the Crown or held by preemption or lease, or as mineral claims, the company shall receive areas, of not less than one mile square, in. other parts of the district. The question in this action is, whether the defendants have a title paramount to that of the plaintiffs over the lands covered by the alleged mineral locations, or either of them; whether, in fact, the locations are to be deemed excepted from the plaintiffs' grant- The claims were located and recorded, the one as the Zenith, and the other as the Paris Belle. The location of the Zenith, which, according to the evidence, was made on the 15th June, 1892, occupied most of the land which was afterwards staked as the Paris Belle. The place where the present shaft of the Paris Belle is sunk is at the point where Noel did part of his assessment work on the Zenith. Sec. 10 of the Mineral Act provides that in the event of a free miner entering upon lands already occupied for other than mining purposes, he shall, previous to entry, give adequate security to the satisfaction of the Gold Commissioner, and after entry shall make compensation for any loss or damage which may be caused by reason of such entry. It is admitted that in this case no security was given, or compensation paid or tendered. The plaintiffs contend that at the time of the Paris Belle location the land was already occupied by them for other than mining purposes, and was therefore not subject to location as a mineral claim, except under conditions which it was admitted were not complied with; in support of which contention the uncontradicted evidence of Edward J. Roberts proved the situation of the claim in block 12, adjoining the town of Rossland on the north-east; that the railway company had upon block 12 a line of road and the station at Wanita; that the road was located in 1892 and was finished in 1893, and that the station of Wanita was built in May or June, 1893. It was burned down or de- . stroyed, and a new station, in the same place, constructed in the fall •of 1893, and the railway company has occupied-the station from the time of its building until now, and has operated the railway since it was constructed. The records, both of the Zenith and the Paris Belle, were further impeached, on the ground that no vein or lode of mineral had been discovered, that no mineral in place had been discovered, and that, therefore, the land was incapable of being located as a mineral claim. To the defendants' contention that the Zenith location existed at and prior to the 23rd March, 1893, the plaintiffs replied that the SHEPPARI RY JERRY He 1 he n never properly located, or staked, represented or worked, mdoned by Noel in 1892, and had consequently lapsed and in waste lands of the Crown. Upon the evidence the plea l iment by Noel of the Zenith seems clearly established, the land in partnership with Joseph Villendre, although I in his own name only. He tells us that three or four the did i some work st; e of fifty dollars. His ssment work, but did : did no more- Noel f ^s part of the assessme think he would do his portion; Noel 1 shaft. The as supposed I and conse- emonstrated i f or when jing to do his worl , I < nev< ir did •sonsthe Zenith.-' Th is not done of No that 1 1 he was not ny more assessment work lence at variance with the lat any further work was The Zei op thati the f upon aba .bandoned, I am of verted to and became )4), 22 S. C. R. 482, ltiffs on 23rd March, rwards adopted as a 3yed to the plaintiffs jph ler attempt ffs' railway lit thereon, inn of it at ag that the iff company laving been Ldonment it t. Demers (: le within the plan filed by the pi 1893, as part of block 12, which block was ai division of the land by the Government and co] in one lot by one conveyance by the Governn It is established upon the evidence that be: at location of a mineral claim within block 12, was constructed and the station at Wanita bui The block therefore' became lawfully occupied, as to ] least, for other than mining purposes, the evidence si line was located in 1892 and finished in 1893. The pL being then in actual, visible occupation of part of the block was in point of law, and, following well recognized legal authorities, to be deemed in constructive occupation of all of it. In Davis v. C. P. .R. (1886), 12 0. A. B. 724, it was held that " occupied lands " under the Railway Act (Can.) 46 Vict. ch. 24, denote lands adjoining a railway and actually or constructively occupied up to the line of the railway by reason of actual occupation of some part of the section or lot by the person who owns it, or is entitled to the possession of the whole. In other words, actual occupation of a part is deemed to be actual occupation of the whole. In Little v. Megquier, 2 Maine, 176, cited with approval in Harris v. Mudie (1882), 7 0. A. R. at p. 429, the Court remarks: " The deed may not convey the legal estate. Still the possession of a part of the land described in it . . . may be considered as a possession of the whole, and as a disseisin of the true owner, and equivalent to an actual and exclusive possession of the whole tract, unless controlled by other possession." In Robertson v. Daley udgment avie, C.J. MARTIN'S MINING CASE [VOL. 1897. (1885), 11 Ont. 352, P., the owner of certain land, in 1811, sold it J^L' to D., who went into possession and occupied until 1827 or 1828, when :l Court, he was turned out by the sheriff under legal proceedings taken by Dufait, who was put in possession and so remained until 1854, when he conveyed to 0., through whom the plaintiff claimed. D.'s actual possession had been only of about ten acres. Held, that D.'s possession was of the whole land, and that he could not be treated as a squatter, so as to enable him to acquire a title to the ten acres actually occupied. In Hereron v. Christian (1895), 4 B. C. 246, I upheld the same principle. It follows, therefore, that the plaintiffs on and after the construction of their railway and station, lawfully occupied block, 12 for other than mining purposes, and, such being the case, a mineral claim could be acquired thereon only under sec. 10 of the Act, which provides that whilst the miner may enter upon ^all lands the right whereon to so enter, prospect and mine, shall have been reserved to the Crown and its licensees, (and such right is reserved in respect of the Nelson & Fort Sheppard grant by sec. 8 of 55 Vict., ch. 38), yet in making entry upon lands already lawfully occupied for other than mining purposes, the free miner, previous to entry, shall give adequate security to ldgment the satisfaction of the Gold Commissioner for loss or damage, and below, after entry shall make compensation to the owner or occupant. Com- tT B' ' ' pliance with these-conditions is, I think, imperative upon the miner seeking to locate a mineral claim upon land occupied for other than mining purposes, as I have held block 12 to have been; and that failure to observe them vitiates the location. By sec. 34 of the Act the interest of a free miner in his claim is to be deemed a chattel interest, equivalent to a lease for a year, and so on, " subject to the performance and observance of all the terms and conditions of this Act." In Maxwell on Statutes, 3rd ed., p. 521, the distinction is drawn, as demonstrated by numerous authorities, between cases where the prescriptions of an Act affect the performance of a duty and where they relate to a privilege or power: " Where powers or rights are granted with a direction that certain regulations or formalities shall be complied with, it seems neither unjust nor inconvenient to exact a rigorous observance of them as essential to the acquisition of the right or authority conferred." I think there can be no question that the rights and privileges conferred upon free miners in this Province come under this head, and that, as remarked in Maxwell, at page 521, " the regulations, forms and conditions prescribed"—for the acquisition of the miner's rights and privileges— " are imperative in the sense that the non-observance of any of them is fatal." See also Corporation of Parkdale v. West (1887), 12 App. Cas. 613. In Belk v. Meagher (1881), 104 TL S. 284, Chief Justice. Waite remarks: " The right of location upon the mineral lands of the I.] NELSON & FORT SHEPPARD RY. OO. United States is a privilege granted by Congress, but it can only be 1897. exercised within the limits prescribed by the grant." Upon the ay 3" ground, therefore, of failure to observe the conditions of sec. 10, I FuLL Court. am of the opinion that the defendants' title fails. I am also of opinion that the plaintiffs' title must prevail, upon the further ground that no vein or lode of mineral had been discovered, and that no mineral in place had been discovered, to justify the location. The Act defines the word " mine " to mean any land in which any vein or lode or rock in place shall be mined for gold or other mineral, precious or base, except coal, and "mineral" to mean all valuable deposits of gold, silver, &c. " Rock in place " is defined to be all rock in place bearing valuable deposits of gold, cinnabar, lead, copper, iron, or other minerals usually mined, except coal. In other words, " rock in place " is practically sjmonymous with a " vein " or " lode," and, as stated by- the witness Kelly, means, I think, a substance confined between some definite walls or boundaries. Where, then, you have this . substance so located, and bearing valuable deposits of gold or mineral, you have " rock in place," or a " vein " or " lode " within the meaning of the Act. It does not, I think, mean mere mineralized rock wherever you may find it, as suggested by some of the witnesses. Mr. Cronan, for instance, says: " I call it mineral in place if it is in rock. If I , , were to find it in earth or soil where apparently it had been moved, it below, would not be ' mineral in place.'" He seems to think that wherever Davie> c-j- you find mineral in the country rock you have " rock in place." I do not think he is right. Taking the statutory definition of a " mine," " mineral," " rock in place,'' reading them together they are, I think, intended to refer to a vein or lode (found in rock) carrying valuable deposits-of mineral. The object of this Act was, I think, to give the miner the right to acquire a vein or lode so found, and sufficient adjoining land to work it. If he has discovered no such vein or lode he acquires no right to anything. All the sections of the Act must be read in the light of the interpretation clauses, and, so read, seem to point to the right to locate a vein and use the land for the purpose of mining it, and for no other purpose. Read particularly sees. 10,14, 20, and especially sec. 26, " No free miner shall be entitled to hold, &c, more than one mineral claim on the same vein or lode except by purchase," but may hold by location upon any separate vein or lode. Sec. 30, " Should any free miner locate, &c, more than one mineral claim on the same vein or lode, all such locations excepting the location and record of his first claim on such vein or lode shall be void." Then sec. 36 provides that before he can obtain a Crown grant the miner has to shew that he has found a vein or lode within the limits of his claim, all implying the same thing, viz.: that to have a location there must be a vein or lode—or rock in place—and under the Act of 1895, the spirit of the law, conspicuous throughout all the legislation, is further 68 MARTIN'S MINING CASES. [vol. 1897. demonstrated by requiring that before the miner can locate at all he May3- must file a declaration shewing his discovery of a vein or lode. In i-oxr, Court, other words, he can have nothing under the Act except a vein or lode and the prescribed area of land to work it. The meaning of our Act in this respect seems much the same as the law of the United States. Sec. 2,320 of the Revised Statutes of the United States enacts: " Mining claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, &c, may be located," and the definition there of a vein or. lode as interpreted by the Courts is the same as I have expressed it here. In Eureka Mining Co. v. Richmond (1877), 9 Mor. M. R, page 578, argued in r.h.3 Supreme Court of the United States, Mr. Justice Field, after elaborate argument, and with the advantage of the best of expert and scientific skill, defines the distinguishing characteristics of a vein or lode, as the location of a vein between well defined boundaries, containing a combination of mineral matter which has been thrown up or generally precipitated in solution against the walls of the cavity by the action of water circulating in the original fissure of the earth's surface. In Wheeler v. Smith (1893), 32 Pac. Rep. 785, it is laid down: " The mineral land laws of the United States were enacted for the Judgment purposes of securing to the miners upon the public lands the title to below. mineral discovered by them, and a sufficient quantity of the land in ' which mineral is discovered as will enable them to prosecute the work of development and production successfully. Mines, as known to those laws, embrace nothing but deposits of valuable mineral ores, and. do not include mere masses of non-mineralized rock whether rock in place or scattered about through the soil." See also Consolidated Gold Mining Co. v. Champion (1894), 63 Fed. Rep. 540; Harrington v. Chambers (1882), 1 Pac. Rep. at p. 375; Erhardt v. Boaro (1884), 113 U. S. 527. In Davis v. Weibbold (1891), 139 U. S. 507, it was held that the exemptions of mineral lands from pre-emption and settlement and for public purposes do not exclude all lands in which mineral may be found, but only those where the mineral is in sufficient quantity to add' to their richness and to justify expenditure for its extraction, and known to be so at the date of the grant; and Field, J., remarks : " There are vast tracts of country in the mining states which contain precious metals in small quantities, but not to a sufficient extent to justify the expense of their exploitation. It is not to such - lands that the term ' mineral,' &c, is applicable," citing Alford v. Bar- num (1873), 45 Cal. 482; Merrill v. Dixon, 15 Nev. 401; Cow ell v. Lammers, 10 Saw. 246, 257; U. S. v- Reed, 12 Saw. 99, 104, and many other cases, shewing that the expression f mineral lands' means only lands which are valuable for mineral purposes, that is, which will pay to work, and not lands in which you may find ' a trace' of mineral (as described by some of the witnesses in this case), and some- go NELSON & FORT SHEPPARD RY. CO. v. JERRY i times more, but which do not demonstrate themselves to be worth working." As remarked in Alford v. Barnum (1873), 10 Mor. M. C. at p. 423: " The mere fact that portions of the land contained particles F< of gold or veins of gold-bearing quartz rock would not necessarily impress it with the character of mineral bearing land, &c. It must at least be shewn that the land contains metals in quantities sufficient to render it available and valuable for mining purposes." The authorities above quoted, and many others which could be cited to similar purport, seem precisely to fit the evidence in this case, of which there is but little conflict. Mr. Kelly, one of the plaintiffs' witnesses, tells us that the mineral veins in the vicinity of the Paris Belle appear to be divided into a belt; a belt of barren rock, and another belt of veins that these veins follow a general trend in one direction. For instance, the most valuable mines so far discovered and worked, the War Eagle, Josie, Le Roi and Centre Star, appear to have a general direction to a certain point indicated by the Nickel Plate, where they stop, and to the south of which you find no minera 1 vein until you get across the country and start on the rise on the other side of the stream,(when you again find what appears to be another belt of veins running in the same direction, and having all the characteristics of the belt and veins traced on the other'side. Between those two belts we have a large section of diorite or country rock, ' which is similar in character to the material which forms the walls D of the veins where discovered. The country rock carries a certain amount of iron, but not in quantities which would make it valuable for mining purposes, but the particles of iron do not of themselves indicate the proximity of a vein. Speaking of the Paris Belle, with which he is quite familiar, Mr. Kelly says that the rock in that shaft is the same ordinary diorite or country rock, which composes this intermediate belt; that in the little seams or counterchecks in the rock, white iron is to be found, and sometimes there may be gold in some of them, but not as indicating a vein, but merely the ordinary mineralization which covers the entire country. To the same effect is the evidence of Mr. Funiell. Mr. Noel originally located the property on the theory that wherever you found a contact between two classes of rock you would find a vein, but finding no vein in this case he abandoned the claim as valueless. The defendants' witness, Mr. Cronan, admits that there is no wall, he says that the rock-bearing mineral of the Paris Belle is country rock, but he says also that diorite, or country rock, is the mineralized rock of the Paris Belle. He says he found mineral in place on the Paris Belle; but when asked what is " mineral in place " he defines it merely as "mineral in rock" as distinguished from "mineral in clay" or any other formation. What he means, then, when he tells us that he found " rock in place " in the Paris Belle May 3. 170 MARTIN'S MINING CASES, is merely this, that he found rock with mineral or a trace of mineral May3. in it, which nobody doubts that he did, or that, in f act, anyone could Full Court • find the same thing to a greater or less extent in But that is very far from saying that he found the country rock, 'rock in place" according to its accurate definition, which means a vein, something between walls. Mr. Cronan further tells us that he took samp es of this " rock in place " as he calls it—" mineralized rock " as it i it most was—and found it to contain all the way " from a trace up o $2.00 a ton in value." No one doubts this; the same might be si id of any of the country rock in the vicinity, and in some cases it v Tould not be sur- prising to find it going as high as $9-50, as anothei of the witnesses said, or as high as $12.00, which was Mr. Burke s assay. But to discover such mineralized rock is very far from sap ng that you have found a lode or vein; something upon which you c ould with advan- tage spend money in development. Mr. Burke is asked, in reference to the Paris Belle, "Is there a vein on it?—mineral in place?" To which he a nswers " I think so;" and there his examination-in-chief leaves him. But upon cross- examination he says he found neither foot wall n ir hanging wall; Judgment he found what he calls a vein, sunk evidently betwe en two walls, but Davib, C J could not find either of the walls, because the ve n is larger than he thinks a vein between walls could be found, he s ays: " That I am not prepared to say; that is drawing a conclusion th it might be borne out in work and might not;" and he says that he has no means of saying whether the so-called " vein " is valuable oi not, not having examined it. Mr. Thompson says this is a prosp ect, not a mine, and that there are about two thousand prospects lc cated in the dis- trict. He does not undertake to say there is a v ein, and can sav nothing about the appearance of the surface when the location was made; and Mr. Hansy's evidence throws no further light on the case, so far as indicating the discovery of a vein. Upon this evidence I can come to but the one conclusion, that there was no discovery of anything beyond the country and mineralized, although that doubtless here and there is—with, a trace, to $9.00 or so in various places. All that the defendants have shewn me to have been discovered on the Paris Belle is a similar I formation to that described and condemned in the following extract from Morrison's Mining Rights, p. 106: "Where the opinions say that it may be rich or poor, they refer to the well known fact that true veins for long distances are often quite barren. But it does not follow that every seam of rock which will assay is necessarily any vein at all; for there do exist seams which carry'a little mineral and yet are not veins within the geological or legal definition. The mis.*! I.] NELSON & FORT SHEPPARD RY. ..JERRY : mechanica tated or er tard veins 1 cracks in the rock; a ind all the the lode or jmblance t vein. Th< of title against neigh | are generally lacki: bouring lc ng in wal normal ur coloured n dformity of the true rally indistinguishable vein, and ore, just similar to what is of value, only as it is uj eralization in such cases, in some of them at least, is caused by infiltration of ore from a true vein, or deposit along some plane of cleavage, or along the plane between two formations, or through mere i ir mineral is only precipi- deposit above. Such bas- o true veins to be used as )cations on the legitimate Is, continuity, and in the yet may have slips which ills, and have some dis- , just enough to be dangerously t is unlike such things." But, it has been urged, it is not competent for the plaintiffs in these proceedings to assail the validity of the Paris Belle location as a mineral claim because the defendants have secured a certificate of improvements, which of itself affords conclusive proof (1892, ch. 32, sec. 13; 1894, ch. 32, sec. 5)—of the location of a lode or yein, and in all other respects concludes the title; such certificate, it is argued, was obtained after due advertisement, and the plaintiffs might have filed an adverse claim against the grant of such certificate if they had desired to contest the defendants' right to receive it; but, not having done so, the matter is now res judicata, under 1892, ch. 32, sec. 14, which enacts that no adverse claim shall be filed after a ] period (which has now expired) and "in default of such filing, no objection to the issue of a certificate of improvements shall be permitted to be heard in any Court, nor shall the validity of such certificate when issued be impeached on any ground except that of fraud.'' This reasoning would be venr powerful if the plaintiffs were laying claim to the minerals (if any) to be found in the Paris Belle location, but this they are not doing, and cannot do under their subsidy Act. Their ownership of the surface is expressly subject to the right of the free miner to acquire claims in accordance with the provisions of the law. The Mineral Act prescribes a procedure to be followed as between rival claimants to mineral ground and the minerals therein, and I take it that as between such parties the procedure adopted by the Act must 'be rigidly followed, and, in a proper case, is exclusive. But this is not a case of that kind. This is a claim to eject the defendants from the surface, which prima facie under the Crown grant belongs to the plaintiffs, and certainly does so unless the defendants can bring themselves within the exception as the owners of a mineral claim held as such prior to the 23rd March, 1893. This, of course, means lawfully held anterior to that date, and then held, not abandoned. There is nothing in the Mineral Act which I can discern dealing with anything else than mineral claims and mineral or mining rights arising under the statutes relating to mining. But MARTIN'S MINING CASES. [vol. here the plaintiffs make no claim to the mineral, as mineral; they are not, so far as appears, free miners themselves; they assert no rights • on which a free miner could base a contention. We must look to the scope of the Act and not include within its purview cases which manifestly were not intended to be included by the Legislature. In Railton v. Wood (1890), 15 App. Cas. 366, Lord Field quotes the language of Lord Selbourne in Hill v. East, &c, Dock Co. (1882), 22 Ch. D. 23 : " On principle it is certainly desirable in construing a statute, if it be possible, to avoid extending it to collateral effects and consequences beyond the scope of the general object and policy of the statute itself, and injurious to third parties with whose interests the statute need not, and does not profess to, directly deal." The very shmmary and unusual provisions of parts of the Mineral Act demonstrate the necessity of confining its operations within its scope. The owner of land knows that his title-to the surface, at least, cannot be interfered with except by some person giving him clear and distinct notice of his adverse title. If he be trespassed upon, he has the period prescribed by the Statute of Limitations applicable to the case to bring his action of trespass. He owns the lands as his own to him and his heirs forever. With the holder of a mineral or mining claim the case is widely different. He holds the land for a special purpose only—that of exercising the statutable privilege of extracting ■ the precious metal. There is nothing, then, unreasonable in the lawv which confers the privilege, also exacting vigilance as one oi the conditions upon which that privilege shall be enjoyed. Hence it imposes the obligation of watching for notices (not to be served personally or in the usual course, but by publication in the Gazette, and by posting upon the ground), under which attacks may.at any time be made by unheard of parties, and then within thirty days after such notices imposes the further obligation of filing what are termed adverse claims and the bringing of legal proceedings. As before remarked, these conditions and obligations may be reasonable enough when imposed upon the free miner who holds nothing but a privilege upon the minerals conferred by the Act; but to impose them upon a man who already holds prima facie title to the surface of the property, not for mining, but it may be, as in this case it is, for altogether differ- ■ ent purposes, appears to me contrary to reason and justice, and not to be implied in the absence of clear and unequivocal statutory declaration. To carry such a contention to its full extent, the owner of an orchard or of ornamental timber lands might be deprived of his property simply because he had failed to watch the Gazette for notices of mining claims, of which he had never so much as thought. We have to avoid placing a construction upon a statute which is. repugnant to reason and ordinary justice, and as remarked by Lord Coleridge in Regina v. Clarence (1888), 22 Q. B. D. 65: "In the construction I.] NELSON & FORT SHEPPARD RY. CO. v. JERRY : of a statute, if the apparent logical construction of its language leads to results which it is impossible to believe that those who framed or those who passed the statute contemplated, and from which one's I judgment recoils, there is in my opinion good reason for believing that the construction which leads to such results cannot be the true construction of the statute." See also Reg. v. The Bishop of London (1889), 23 Q. B. D. 429. Mr. Taylor has referred me to the ease of Dahl v. Raunheim (1889), 132 U. S. 260, where it was held that when a person applies for a placer patent in the manner prescribed by law, and all the proceedings are had which are required by the statutes of the United States, and no adverse claims are filed or set up, and it appears that the ground has been surveyed and returned by the Surveyor-General to the local land office as mineral land, the question; whether it is placer ground is conclusively established and is not open to litigation by private parties seeking to avoid the proceedings. But there is nothing in that decision in conflict with the reasons which guide me in this. There the defendant laid claim to three acres of a placer location of forty acres made by the plaintiff, the claim to the three acres being founded on the contention that the three acres contained a lode or vein which the defendant claimed as a mineral location. The dispute there was as between miners to the precious metals sought to be extracted from the property. As I have pointed out, the Act was intended to be conclusive of adverse rights of that character, but this is not a case .of that kind. To sum up, therefore, I am of opinion: 1. That the land in dispute was not, prior to 23rd March, 1893, held as a mineral claim. 2. That at the time of the location of the Paris Belle, on 3rd January, 1895, the land was occupied by the plaintiffs for other than mining purposes, and that therefore the entry and location of the Paris Belle was, for want of compliance with the conditions as to security pointed out by sec. 10 of the Act, illegal and void. 3. That the location was also void, on the ground that " rock in place " had not been discovered. 4. That the failure of the plaintiffs to file an adverse claim does not debar them from impeaching the validity of the defendants' title. I therefore declare that the location and record of the Paris Belle mineral claim by the defendant Jerry was illegal and void, and that neither the defendants nor any of them are entitled to the rights and privileges of lawful holders of a mineral claim upon sec. 35, township 9, " A.'' Kootenay District, and that subject to the lawful acquisition in future of claims under sec. 8 of 55 Vict. ch. 38, the plaintiffs are, as against the defendants, entitled to the exclusive use and j 174 MARTIN'S MINING CASES. [vol. 1W. of the before-mentioned and described hereditaments. The plaintiffs May 3. w^ kave judgment for possession of the said Paris Belle location. Full Court as the plaintiffs are not shewn to have sustained any, there will be no inquiry as to damages. The plaintiffs will recover their costs of suit, to be taxed in the usual way. Judgment accordingly. Appeal. From this judgment the defendants appealed to the Full Court, and the appeal was argued before McCeeight, Walkem, Drake and McCollJJ., on the 5th, 6th, 7th, 8th, 9th, 10th and 11th March, 1897. Argument. w. J. Taylor and Robert Cassidy for the appeal: At and prior to the date of the selection by the railway company/bf the lands in question, namely, the 23rd of March, 1893, the Zenith was an existing mineral claim, and by sec. 5 of "the Subsidy Act (a), 1892, ch. 38, carved out of the block selected. (See Demers v. The Queen (1894), 22 S. C. R. 482). This construction was adopted by the Crown and accepted by the plaintiffs, as appears by the form of their Crown Grant, which is set up by them in the statement of claim, and which conveyed the block to them "excepting thereout all lands held a:- mineral claims prior to 23rd March, 1893." It is not open to the plaintiffs to maintain the contrary. The conduct of the locators of the Zenith in ceasing work upon the claim and leaving the district before the end of the year following the date of location did not operate as an abandonment of the claim from that date. By sees. 24 and 34 of the Act of 1891, the right of the recorded locators in the claim was an estate equivalent to a lease for a year, and so from year to year, with a provision by sec. 24 supra, that " during each year or succeeding year such free miner shall do, or cause to be done, work," &c. It is plain that, even between the miner and the Crown, the miner had up to the end of the year within which to satisfy the provision, and that his presence on the claim was unnecessary; and that even if he at any time expressed an intention of doing no further work, he would have a locus poenitentiae till the end of the year. The doctrine of abandonment by leaving the claim, &c, apart from express enactment, is applicable only to cases in which mineral claims are per- ■ mitted by the State to be taken and held by possession. Here there is an express statutory holding title. By sec. 27 of the Act of 1891 the miner is given the option of abandoning his claim by notice to the Recorder. If there was an abandonment of the claim, it would enure Note (a).—| 5. The company shall only be entitled to unoccupied Crown land, and to make up for any area within any of the blocks of land to be selected by the company which shall before the selection by the company have been alienated by the Crown, or held by pre-emption or lease, or as mineral claims, the company shall be entitled to select similar areas of Crown land in West Kootenay District, to be taken up in blocks of not less than one mile square." 1 p > IELSO] rhe om xiti BTS™™ C. P. R. (1886), 12 0. A. R. 1897. rights : from tl Li?™ :ory pre-reqnisites m. The Legislate to his obtaining the mining re did not intend to bring into the Cr own o: f lands as lands, and mi jh!sa%ahning mSmaTrighS matter c Dunmey •ntirely for 'er (1884), y v. Whitne the Crown: Kansas Pacific Railway Company v. 113 U. S. 641-2; Hastings and Dakota Railway y (1889), 132 U. S. 357; Sioux City & Iowa Falls Town Lt Sup] the vahc do so by msing that lity either c adverse ch I Company v. Griffey (1891), 143 U. S. 32. the plaintiffs had a right to intervene and contest if the Zenith or Paris Belle claims, they could only lim, as provided by the Mineral Act; Mont Blanc Mining Mining they are defenda] s (1879), ] concluded its by the e: r. Debour (1882), 15 Mor. M. C. 286; Shafer v. L Mor. M. C. 147; Hamilton v. Southern Nevada (1887), 15 Mor. M. C. 314 at pp. 318, 319, and by the certificate of improvements obtained by the ffeet of sec. 14, ch. 32, 1892, on all grounds, except , which is not alleged. In any ease, the provision in sec. 10 of the Act as to the giving of the security by the locator for damage caused by the entry, is in its nature a directory provision for the benefit of the occupant or owner of the land, attached to the right qf the mineral claimant as a burden or obligation, and ought not to be construed as a pre-requisite or as a condition precedent to the validity of the location itself, particularly as it is provided in the section that the locators after such entry shall make full compensation to the " owner for such loss or damage caused by such entry," &c. We suggest also that there was no owner or occupant of the land at the time of the location of the Paris Belle in the sense required by the Act, the Crown grant to plaintiffs not being made till 8th March, 1895, and taking effect from its date: Winona v. Barney (1885), 113, U. S. 618. The finding of a mineral-bearing vein or lode between defined walls is not an essential to the validity of a mineral claim. The definition of "rock in place" in the Act (1894, ch. 35, sec. 2), is comprehensive, embracing all classes of rock in which are any of the minerals specified in the Act. The definition should be construed according to the ordinary and general meaning of the language, and not restricted by any technical or scientific meaning which the words may bear: Gesner v. Gas Company (1853), 2 Nova Scotia, 72; McShane v. Kenkle (1896), 44 Pac. Rep. 979; Iron Silver Mining Company v.. Cheesman, et al. (1885), 116 U. S. 529; Iron Silver Company v. Mike & Starr Company (1891), 143 U. S. 404. MARTIN'S MINING CASES. [vol. L. P. Duff, contra: The discovery of a "vein" or "lode" is necessary to a valid location. " Rock in place " is not to be substi- r- tuted for " vein " or " lode." The whole tenor of the Mineral Acts shews this: See the Mineral Act, 1891. Sec. 26. " ISTo free miner shall be entitled to hold more than one mineral claim on the same "vein" or lode." Sec. 30. More than one location on the same " vein " or " lode " shall be void. Sec. 31. The holder of a mineral claim shall have the exclusive right to all " veins " or " lodes," and see the recurrence of this expression in sees. 31, 32 and 33. Section 36 enacts that when a holder of a mineral claim shall have " found a ' vein' or ' lode' within the limits of such claim," he shall be entitled to receive from the Gold Commissioner a certificate of improvements; and see the Placer Mining Act, 1891, sec. 37: " The holder of a placer claim shall have no right to any ■, vein' or ' lode' as defined by the ' Mineral Act, 1891,' &c."- By sec. 10 of the Mineral Act Amendment Act, 1892, sec. 26,supra was amended, " a free miner shall be entitled to locate and record on separate ' veins or lodes,' &c." By the Mineral Act; 1893, sec. 3: " (15) A mineral claim shall be marked by two legal posts, placed as near as possible on the line of the ' ledge' or ' vein,' &c." See also the forms in Appendices " G" and "H " to Mineral Act, 1891, affidavit of surveyor: " (7) A ' vein' or I lode' has been proved to my satisfaction to exist on the claim." Applicant's affidavit: " (3) A 'vein' or 'lode' has been found." And see the expression " vein " or " lode " as used in sec. 4 (15) of the Act of 1894, and sec. 5 of 1895. The term "vein" or " lode " in these sections cannot include " rock in place." For the definition of the term " lode," see Field, J., in Eureka Mining Company v. Richmond Mining Company (1877), 9 Mor. M. C, at page 586: " We are of opinion that the term used in the Acts of Congress is applicable to any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighbouring rock.'' For the United States Statute, see Morrison's Mining Rights, pp. 385-6, sec. 2320; " Mining claims upon ' veins' or ' lodes' of quartz or other 'rock in place,' bearing gold, silver, cinnabar, &c., may be located, &c." There were,, upon the evidence, no valuable deposits of mineral found to bring it within the term " rock in place" under the Acts ' and Interpretation Clauses. See the Mineral Act, 1891, sec. 2: "'Rock in place' shall mean all rock in place bearing valuable deposits of mineral within the meaning of this Act," and see Mineral Act, 1893, sec. 3,- (c) p. 129: " Ko mineral claim shall be recorded without, &c, an affidavit, &c, that mineral has been found in place." As to mineral in place, and what are valuable deposits, see Wheeler v. Smith (1893), 32 Pac. Rep. 784; C. W. Mining Company v. Champion Mining Company (1894), 63 Fed. Rep. 540; Defferback v. Hawke (1885), 115 U. S. 404; Davis v. Weibbold (1890), 139 U. S. FORT SHEPPARD RY. OO. v. JERRY ; 518, ; Ire i.pariy (1891), 143 U. S. 423; Burke v. Rep. 49. As to defining words, see Re, Ad. and El. 491; Reg. v. Pears (1880), Local Board (1883), 8 App. Cas. 798; y 7. Mike & Starr Com- .,« Donald (1890), 33 Pac. Ul Justices, &c. (1838), 7 W . B. D. 389; Robinson v. McCri swell on Statutes, 1896, ed. 425, 453. As to giving the bond imder sec. 10 of the Act of 1891: .The miner has no right of entry independent of the Act, and he must . comply with all conditions precedent, of which the giving of a bond is one, " the lands being already occupied (by the railway company) for other than mining purposes." Section 4 of the Act of 1894 must be read as subject to sec. 10 of 1891. Entry by the free miner amounts to expropriation, and the Legislature intended security before entry and compensation afterwards. The interest " equivalent to a lease for a year " given to a free miner in his mineral claim by sec. .34 of the Act of 1894, is by that section " subject to the performance and observance of all the terms and conditions of the Act,'' of which the giving of security is one. The provision is imperative: Corporation of Parkdale v. West (1887), 12 A. C. 613. As to abandonment \ See Hardrader v. Carroll (1896), 76 Fed. Rep. 474; Derry v. Ross (1881), 1 Mor. M. C. 6; Davis v. Butler (1856), Ibid. 7. It is a question of intention: Belk v. Meagher (1881), 104 U. S. 284, and the locator of the Zenith evinced such an intention. The certificate of improvements granted can have no effect on the railway company; it was only intended to operate against adverse claimants to the minerals and not against the owner of the land who makes no claim to the mineral. Section 14 of the Act of 1892, as to the operation of the certificate, plainly applies only to contentions between two parties who claim the minerals, and the railway company has in this Court an undoubted right now to question its validity. Taking the record and location together, you have an invalid record on the face of it, and it was not intended to except bad locations and invalid records, from the railway company's grant. As to the surface rights under Mineral Crown Grant, see Mineral Acts, 1884, sees. 77 and 82; 1891, sees. 31 and 43; 1892, sec. 2; 1893, sec. 23; 1894, sec. 3; 1895, sees. 3 and 6; 1896, sec. 45. W. J. Taylor, in reply. Cur. adv. vult. May 3rd, 1897. McCeeight, J.:—It will be convenient to deal with the questions Judgment, relating to that portion of the Zenith claim which is common to part of the Paris Belle location as different considerations apply to it from those connected with the remainder of the Paris Belle location. The Zenith was recorded on 17th June, 1892, and thus in ordinary course MARTIN'S MINING CASES. [VOL. ..__ a good claim until June, 1893, under sec. 24 of the Mineral Act, May3' 1891, and under sec. 34 of the same Act was to " be deemed to' be a Full Court, chattel interest equivalent to a lease for one year and thence," &c. MoCbbight.j. The learned Chief Justice in his judgment considers that the claim was abandoned in 1892, but sec. 27 prescribes the proper method of abandonment by giving notice in writing of such intention to abandon to the Mining Recorder, and the adoption of this course seems to be necessary, having regard to the chattel interest equivalent to a lease for a year vested in the mineT, any other attempted abandon-" ment might raise the difficulties as to surrender by operation of law, which have caused the courts a great deal of trouble and are discussed in the notes to The Duchess of Kingston's case (1776), 2 Smith's ' Ldg. Cas. 10th ed., pp. 813-826. It.was not and coiuld not be contended that there was anything in the present case to warrant the application of the doctrine of surrender by operation of law to the Zenith claim or any part of it; even supposing there was, the plaintiff railway company were not concerned with it as I shall shew presently. I cannot therefore agree that the Zenith claim was abandoned or not held as a mineral claim prior to the 23rd of March, 1893. On the contrary I think it was a good claim until June, 1893. The parties could have done the required work on the claim at any time before the 17th of June, 1893. If this is so the Zenith falls within the exception contained in the schedule to the Crown grant to the railroad company dated 8th March, 1895, and which excepts certain lands, and also " all other lands which prior to the 23rd day of March, 1893, were alienated by the Crown, or held by pre-emption, uncompleted sale, or lease, or as mineral claims.' The learned Chief Justice in dealing with this exception assumes in his judgment that it is restricted to claims lawfully held anterior to that date, but the word " lawfully " is not to .be found in the schedule, and in my opinion it cannot be read as if that word was inserted, and I think the American cases point this out distinctly, and correctly, if I may say so. In Newhall v. Sangler (1875), 92 U S. 761, it was held that lands within the boundaries of an alleged ■Mexican or Spanish grant which was sub judice at the time the sec- | retary of the Interior ordered a withdrawal of the lands along the route of the road, were not embraced by the grant to the company. In the judgment at page 765 it is said "the excepting words in the 6th section, &c, &c, clearly denote that lands such tas these at the time of their withdrawal were not considered by Congress as in a condition to be acquired by individuals or granted to corporations. This section expressly excludes from pre-emption and sale all lands claimed under any foreign grant or title. It is said that this means 'lawfully' claimed; but there is no authority to import a word into a statute in order to change its meaning. Congress did not pre-judge (1884), 113 U. S.p. 629,.unde c the Acts grantin g lands to aid in the construction of a line of railwa y from the Mississ ippi River to the Pacific Ocean, the claim of a horn estead of pre-emp tion entry, made at any time before the filing of th at map in the G. L. Office, had attached, within the meaning of th ose statutes, and no land to which such right had attached came within the grant. The subsequent failure of the person making such claim to comply with the Acts of Congress concerning residence, &c, or his actual abandonment of the claim, does not grant. The claim having attached at the time of filing the definite terms excluded, and the railway company had no interest reversion- has ever been made to include lands reserved to the United States,' .which reservations afterwards ceased to exist, within the grant, though this road," &c. "Nor is it understood that, in any case where lands had been otherwise disposed of, their reversion to the Government brought them within the grant. Why should a different construction apply to lands to which a homestead or pre-emption right had attached? Did Congress intend to say that the right of the Company also attaches, and whichever proved to be the better right should obtain the land," &c, &c. " The pre-emptor had similar duties to perform in regard to cultivation, residence, &c." Then follows language which seems to me to be very applicable to the present case: "It is not conceivable that Congress intended to place these parties as contestants for the land, with the right in each to require proof from the other of complete performance of its obligations. Least of all is it to be supposed that it was intended to raise up in antagonism to all the actual settlers on the soil, whom it had invited to its occupation, ith id to their obligati onsTT 3 Government as to the performance all this applies to the present case, si stituting "n ineral cla im he lders " for " settlers." I observe in schedule to t he Crown gran t to the railway company, the claims Roi, Josie, C entre Sta r, Ida ho, War Eagle and Virginia are also eluded in the exception , and for the reasons stated in the above ju ment I do not believe there could possibly be any right on the part of the railway company to question their titles, and it seems plain that all claims held before the 23rd March, 1893, would in no case revert to the railway compan}', but if at all, only to the Crown in right of the Province. In short the exceptions in the schedule as regards the railway companv are absolute: Newhall v. Sanger (1875), 92 U. P. 180 761, to '■ The MAR e d iciflc R.ai way Comp in the any v. .1 [VOL. foregoing J. (1884), tion rig If th of the I As i< 113 U. S. p. 02 the property of t he Paris Belle ch this, Mr! Willi', v'. Dem D. be le Cro or the ted appe ants. A 1), 22 S. lr to be th nd the roi ubject for C. P., a nccllcd, was t Crown the land ! and not ic Zenith in right of what; the ChiejE- covered in order to justify the location of the Paris Belle in December, 189-1. \\ li.i Ikm- a '-vrin" pr " lo.lt>" mill be discovered in in this Act, ' rock in place' shall be deemed to be included." Warn minerals, e.g., iodine)' referred to "in the interpretation clause to tl \ made *hat Lord Cairns once called in Hill v. Crook (1878ft, 4S W I M IEPPARD RY. CO Ch- 716, a dictionary to shew its meaning of words used in connec- ^on with the important subject of location and record, and of such amendments those in the Amendment Acts of 1893 and 1894 seem J to give great assistance. In those Acts, at pages 128 and 155 respec- a tively, we find the words " (15) A mineral claim shall be marked by two legal posts placed as near as possible on the line of the ledge or vein, &c, &e., &c.'' The words " ledge " or " vein " in the disjunctive in both Acts, shew that the Legislature did not consider " vein " to be necessary though it might be sufficient for location, and was careful to say so. Again on the same pages respectively, we find the following : " The locator shall also place a legal post at the point where he .has discovered ' rock in place,' on which shall be written I Discovery Post.' " This, taken in connection with the diagrams or " examples of various modes of laying out claims," shews that the dis- cpvery of " rock in place " is sufficient. Such " rock in place," according to the Interpretation Clause, bearing " valuable deposits of mineral within the meaning of this Act" (of 1894). See Imperial Dictionary and Century Dictionary as to " rock " and " place." The word I valuable,'' I believe, means little more than " capable of being valued," at least in its primary signification, and certainly is not the same as " costly." However, fortunately, the Acts of 1893 and 1894 have not left this point in doubt, for at pages 129 and 156 respectively (sec. c), we find the following provision": " No mineral claim shall be recorded without the application being accompanied by an affidavit or solemn declaration made b}' the applicant, or some person on his behalf cognizant of the facts, that mineral has been found in place on the claim proposed to be recorded." The applicant then, in order to have his claim recorded, need not swear as to the value of the minerals found in place, but merely that he has found it. The language of the Mineral Acts seems to be plain as to what is necessary to a good location and record, and as to the meaning of " rock in place," but notwithstanding, at the trial, witnesses (miners) were called by the plaintiffs, unchallenged, as I gather, by the defendants, (who in truth seem to have adopted a similar course), for the purpose of shewing that " rock in place'' according to the understanding I presume among miners, means a " vein," something between two walls. And this, notwithstanding that the Act of 1894 says it shall mean all rock in place bearing valuable deposits of mineral within the meaning of this Act, of course, as previously defined in the Interpretation Clause. It was admitted that the rock in the Paris Belle location contained some iron, and mineral in place was found on the surrounding surface, but there was no true fissure or vein, or at least none was found. The learned Chief Justice, as the result of hearing the witnesses and argument on the cases in the Courts of the United States of 182 MARTIN'S MINING CASES. " [vol. 1897. America, to which I shall refer presently, came to the conclusion May3' that "rock in place", is practically synonymous with "vein" or Pull Court. " lode," and means " a substance defined between some definite walls' MoCkkight, J. or boundaries." " Where then you have this substance so located," he says, " and bearing valuable deposits of gold or mineral, you have rock' in place, or a vein or lode within the meaning of the Act." But his • attention could not have been called to the fact that the true question Is, what do the mining Acts require, according to their legal construction, for a good location, and that they are perfectly silent as to a ' substance defined between some definite walls or boundaries. Again, that according to those Acts, " rock in place " is by no means synonymous with " vein" or " lode" that, whilst by the Interpretation Clause, both in the Acts of 1891 and 1894, "vein" or "lode" shall be deemed to include " rock in place," the converse by no means holds good, and that " veins," " lodes," 6r " rock in place ''are spoken of in the disjunctive in the forms of Crown grants in the Acts of 1891 and 1894, and, passim, that in the application for record an affidavit that " mineral has been found in place," is sufficient by the Acts of 1893 and 1894. Xo doubt for the purpose of obtaining a certificate of improvements it seems necessary for the applicant to swear that he has found a "vein" or "lode," but then "vein" or lode "'includes% rock in place." See Mineral Acts, 1891 and 1894, and see Form " H-^'i of Act of 1893, ch. 29. In short, as I read the Acts, it is not intended to subject the miner to the necessity of finding a " substance between defined walls'' before location and record, bearing in mind that often a large expenditure is necessary in order to find walls, and the vein between the walls, and often without success even as to the walls. The first case referred to in the Courts of the United States of America was Eureka Mining Company v. Richmond Company (1877), at p. 585 of 9 Mor. M. C, as to the definition of " lode," which I may' observe is not defined in our Act except as including " rock in place." It is said by the Court: " The miners, to use the language of an emin-. ent writer, made the definition first. As used by miners before being defined by any authority, the term ' lode simply meant that formation by which the miner could be led or guided. It is an alteration of the verb 'lead,' and whatever the miner could follow expecting to ' find ore was his ' lode.' Some formation within which he could find ore, and out of which he could not expect to find ore, was his ' lode.' " The term lode star, guiding star or north star, he adds, is of the same- origin, &c, &e. The Court goes on to say at page 586: It.is difficult to give any definition of the term (lode), as understood and used in •the Acts of Congress, which will not be subject to criticism/';#j| Then the Court proceeds to say: " We are of opinion, therefore, thac the term (lode), as used in the Acts of Congress, is applicable to any zone or belt of mineralized rock lying within boundaries clearly! I.] ON & FORT SB > RY. OC JERRY : separating it from the neighbouring rock." The question then in that 1897." case was the meaning, of the term " lode " in certain Acts of Congress, May3' passed in 1866 and 1872, and considering also that that expression FollCoow "lode" does not appear in any of the sections of our Acts dealingmoCrmoht, with the location or record, which are confined to the use of the wordSl- " ledge * or " vein," " rock in place," and " mineral in place," I confess I fail to see that the definition is useful to us, or its applicability to the mining laws of this Province; least of all that it should be in-J voked so as to displace what appears to me to be the plain meaning of our laws on the subject of location and record. The next case referred to was Wheeler v. Smith (1893), 32 Pac. Rep. 784, &c. The marginal note is " that land containing a deposit of limestone entirely devoid of ore, cannot be located as a mining claim, &c, &c, since the mineral land laws of the United States were enacted for the purpose of securing to the miners, &c, the title to minerals," &c. But it is not even suggested here that the Paris Belle is entirely devoid of ore, but only that a vein, something between the walls, was not found. The nature of the adjacent country should also be regarded. A miner might expect to find ore readily in the neighbourhood of Rossland and other places in Kootenay, when he could not reasonably look for it at, say,, the delta of. a river. The next case referred to was Consolidated W. G. Mining Company v. Champion Mining Company (1894), 63 Fed. Beports, at p. 540. The marginal note is: " To constitute a vein it is not necessary that there be a clean fissure filled with mineral, as it may exist when filled in places with other matter, but the fissure must have form and.be well defined, with hanging and foot walls." I have only to make a similar observation to what I made on the Eureka Mining Company v. Richmond (1877), 9 Mor. M. C. as to the word " lode." " Vein " does not appear in our sections dealing with location and record, except at page 155 of the Acts of 1894, where it is referred to in the alternative along with "ledge," and therefore in no way essential to location or record. McShane v. Kenkte (1896), 44 Pac. Rep. 979-982 was referred to as illustrating the meaning of sec. 2320 of Revised Statutes of United States, and I do not think it assists in interpreting the B. C. Acts. As far as it does so it is in favour of the locators. Defferback v. Hawke (1885), 115 U. S. 392, was also referred to. The Court in giving judgment in that case say at page 400, that the principal question presented by the pleadings for their consideration is whether " upon the public domain title to min- ■ eral land can be acquired under the laws of Congress relating to town I sites." The passage to which we were referred at page 404 of the report, no doubt does relate to "valuable mineral deposits," but I find no definition of what are " valuable deposits of mineral" so as to assist in explaining in our Act of 1894 what is " rock in place/' MARTIN'S MINING CASES. [vol. We were also referred to Davis' Administrator v. Weibbold (1890), 139 U. S. at pp. 518-519, and to page 521, where reference is made RT- to the judgment in the United States v. Reed, 12 Sawyer 99, 104, rjj. and quoting part of it as follows: " Judge Deady, &c, &c, said: The nature and extent of the deposit of precious metals which will make a tract of land ' mineral' or constitute a ' mine' thereon within the meaning of the Statute, has not been judicially determined'. . Attention is called to the question in McLaughlin v. United States (1882), 107 U. S. 526, but no opinion is expressed. The Land Department appears to have adopted a rule that if the land is worth more for agriculture than mining it is not mineral land, although it may contain some measure of gold or silver, &c, &c. In my judgment this is the only practicable rule of decision that can be applied to the subject." It is not shewn in this case that the adjacent lands and the Paris Belle location are of value for agriculture rather than mineral lands. Indeed I do not know that the decision assists us, for the case made by the plaintiffs is that there was no vein between defined walls, and it is not denied that mineral was found in the Paris Belle. The present question is whether the defendants found " rock in place " within the meaning of the B. C. Mineral Acts, 1891, and Amending Acts. The Iron Silver Company v. Mike & Starr Company (1891)"; 143 U. S., at pp. 423-424, was also referred to, and the passage: " As stated above there can be no location of a lode or vein until the discovery of precious metals in it has been had," &c. The remainder of the passage seems to refer to " known " veins or lodes, and the inapplicability of the case, owing to the very different laws of the United States of America, is obvious on perusal even of the marginal notes; I have already shewn that by our laws the miner in order to locate should find "rock in place" not a "vein" or "lode'' necessarily. Burke v. McDonald (1890), 33 Pac. Eep. pp. 49-50, was referred to by counsel. The marginal note is: " Though to constitute a ' vein' it is not required that well defined walls be developed or paying ore- found within them; there must be rock, clay or earth so coloured or decomposed by the mineral element as to mark and distinguish it from the enclosing country." This case by no means assists the contention of the plaintiffs. The question is simply as to the meaning of our ■mining laws, and foreign* statutes and decisions on them can hardly give us much assistance, for there appears to me to be another ground upon which the rights of the locators of the Paris Belle cannot now be questioned on the suggestion of bad location and record. They obtained a certificate of improvements on the 8th of November, 1895. The plaintiff Company issued their writ previously on the 2nd of July, of the same year, and although by the Mineral Act of 1891, see. 37, a *C£. pp. 190, 236, 278, 282, 307. I.] .NELSON & FORT SHEPPARD RY. CO. certificate of improvements was not to be granted when the title was in litigation, that section was repealed by the Mineral Act Amendment Act, 1892 (ch. 32), see. 14, which further provided that the validity Si of such certificate when issued should not be impeached on any ground McC except that of fraud. It was contended for the railway company that this provision could not have been intended to apply except as between persons interested in claims, and that here the railway company were not even laying claim to the minerals, but it seems to me that the railway company and the defendants having been in litigation in this action from the 2nd of July, 1895, with reference to this very claim, (located, it should be remembered, in December, 1894), the plaintiffs were bound to notice and oppose if they thought it of importance, any step taken by the defendant Company for the purpose of obtaining a certificate under the Acts, and are not entitled to ignore it now, when they might at any time after the issue of the writ have applied for an injunction to prevent the defendants from obtaining such certificate, in which case the matter might have been at once decided and great expense avoided. Considering that the plaintiffs and defendants were at arms' length, at all events from the 2nd of July, 1895, the date of the issue of the writ, they, the plaintiffs, must have noticed the advertisements of the defendants for " at. least sixty days " prior to the application for the certificate. See Mineral Act, 1891, sec. 36 (e). Indeed I observe that though the defendants by their rejoinder allege that they have such certificate, the plaintiffs even now by their pleadings, make no application to set aside such certificate, or raise objections to its validity. The defendants in their rejoinder alleging that they have a certificate of improvements to the Paris Belle mineral claim, the plaintiffs might have surrejoined and under Order XXV., raised by their pleadings (stating the facts which they considered necessary) the point of law as to the validity of the certificate under the circumstances. This has not been done, and the certificate is not challenged in the pleadings. I am disposed to think that this operates as an estoppel upon the plaintiffs so that the certificates cannot now be challenged, upon principles laid down in Staffordshire Banking Company v. Emmott (1867), L. R. 2 Ex. at pp. 220-221, and in Rossi v. Bayley (1868), L. B. 3 Q. B. 628, approving of the judgment of Baron Channell in the former case. I also refer to the judgment of Lord Bramwell in the same ease of Staffordshire Banking Company v. Emmott, at p. 217, where he seems to apply the doctrine of estoppel on account of expense incurred by one of the litigant parties. At least $500 worth of work must have been done by the defendants with a view to getting their certificate of improvements, probably with full knowledge on the part of the plaintiffs who now seek to ignore May 3. Eull Court VfcCalBieHT, ch. 38, se Nothi ig in this Act and nterfere with free n 1 acquiring claims MARTIN'S MINING OASES. [von. also bear in mind the words in the Subsidy Act of 1892, int to be made thereunder, shall be con- entering upon and searching for precious ecordance with the mining laws of this Province." Also the words in the Crown- grant of March the 8th, 1895, to the railway company: "Provided also that it shall at all times be lawful for Us, &c, &c, or for any person or persons acting under our authority, &c, to enter into and upon any part, of the said lands, and to raise and to get thereout any minerals, precious or base, other than coal, which may be thereupon or thereunder situate, • and to use and enjoy any and every part of the same land, and of the easements and privileges thereto belonging, for the' purposes of such raising and getting and every other purpose connected therewith, paying in respect of such raising and getting and use, reasonable compensation." We must also bear in mind sec. 3 of the Mineral Act Amendment Act, 1894, and sec. 44 (page 152), relating to " Crown grants of mineral -claims located on lawfully occupied lands." This seems to presuppose the validity and conclusiveness of the certificate of improvements without which the Crown grant could not be obtained, and the former should be promptly and before issue challenged, if at all. Both the-railway company and the licensees of the Crown have- rights under the Act and Crown grant. The free miner can enter, locate, record, and in due course obtain a certificate of improvements, &c, and the railway company must have a right to see these privileges are not abused by the miner to their detriment. And I take it both are bound in that behalf by the mining laws of the Province. -I may observe that the Mineral Act of 1896 (see sec. 167) does not affect litigation pending at the time of the passage of that Act. Therefore I cannot say that the certificate of improvements is now void as against the plaintiffs. I think the lis- pendens in this case has practically no operation so as to affect the defendants. Jerry conveyed the five-eighths to Glass in April, 1895, and so before the issue' of the writ. The effect of a lis pendens is discussed in the notes to Le Neve v. Le Neve (1747), 2 W. & T. Ldg. Cas. '6th ed., pp. 75-76, and it only affects conveyances made after its registration on the issue of the writ, and in the way mentioned in the notes to Le Neve v. Le Neve. The only remaining question to be disposed of seems to be under see. 10 of tlie Mineral Act, 1891', or rather the proviso therein mentioned, which reads as follows': I.] - NELSON & FORT 5 HEPP ARI ) RY. C JO v. JERRY et 187 owne r of such lands for any oss or lama ges whk h may be caused by ison of ; such compensatio the May havn g JU risdiction n mining disput s, w ith or w out a j It is admitted that in this case, and I understand that such is the "- general if not universal practice, no security was given to the GoldMc°RB Commissioner for any loss or damage which might be caused by the entry of the defendants; but it is contended that the giving of such adequate security is a.condition precedent to the validity of any location or record made under see. 10 of the Act of 1891, so' much so that in default the location and record become actually void, just as if never made. I do not think this contention is satisfactory. The Gold Commissioner, on application by the intending locator, would have to estimate the damage to be caused " by such entry," and he could not well estimate that the mere entry would occasion more than nominal. damages. The compensation to be made after such entry for any loss or damages " which may be caused by reason of such entry," is an entirely separate matter, and for the purpose of the present question is . not to be considered. That the omission to give security to the Gold Commissioner in a nominal or at least a small amount, should have a fatal effect on the title to the claim, no matter how valuable, seems to me a startling doctrine, and opposed to many provisions and to the policy of the Mining Acts. It will be observed that location and record are not more burdensome to the miner than the interests of the mining community and security of titles require, but the giving of the suggested security to the Gold Commissioner, who might be at a distance and might wish to make inquiries, would cause serious difficulty, and delay the location and record, and often cause the loss of the claim. Moreover, if this is the meaning of sec. 10, it seems to be a snare to the miner, for the remainder of the Acts point to location and record as sufficient, and are silent as to the suggested security. But a still more serious objection appears when we consider the; important subject of the transfer of claims. The Mineral Act, 1891, sub-sees. 50, 51 and 52, and sub-sees. 9 and 17 of Mineral Act Amendment Act, 1892, shew the anxiety of the Legislature to have such transfers made safe to a purchaser who purchases by the record.* If the record discloses a good title, an honest purchaser can buy with safetj', but according to the argument the security to be given to the Gold Commissioner under sec. 10 of the.Act of 1891, as to which the party searching the record will have no notice, (there being no record of it) is a serious source of hidden danger, and is contrary to the policyf which has long characterized legislation, both as to real estate throughout the Province and claims in the mineral districts. The danger, which would ensue from the construction contended for is greater than tchfleld v. Harbottle, post, p. 39C. 333, 336, 414, 440. MARTIN'S MINING CASES- [V0L- any affecting the transfer of property, even in countries where they have no land registry laws. There a purchaser by calling for the deeds ' shewing a claim of title, and ascertaining that possession has been held under such deeds, is generally safe, but here we have a danger which cannot be guarded against. Moreover, in the Crown grant to the railway company, the proviso which I have already quoted as to paying reasonable compensation, and the silence as to any security to* the satisfaction of the Gold Commissioner, shews that neither the Crown nor the railway company contemplated that such security should be given. I cannot therefore agree with the judgment of the learned Chief Justice, for I think the Zenith plaim was a good location- prior to the 23rd of March, 1893. And that as to the location on thei 24th December, 1894, and record of January, 1895, of the Paris Belle, it was not void as against the plaintiffs for a supposed want of compliance with sec. 10 of the Act of 1891. This is as regards the remainder of the claim, with which alone the plaintiffs are concerned. I cannot agree that the location was void on the alleged ground that " rock in place'' had not been discovered. I think the plaintiffs are now de- x barred from impeaching the validity of the certificate of improvements obtained by the defendants. I agree with the declaration that the location and record of the Paris Belle mineral claim by the defendant Jerry, was illegal and void. But I think the plaintiffs, having regard to paragraph 23 of the Statement of Claim, admitted by the defendants, are entitled to an injunction to restrain the defendants from claiming a right to sell, &c, the surface, &c, and to deal with the same as if owners in fee, &c. Appellants partly succeed and partly fail, and their conduct in setting up a wrongful claim, &c., disentitles'" them to costs. The defendants appeal against the whole decree of the Chief Justice, including the injunction which the plaintiffs were- obliged to apply for, and which properly limited to intended sales, &c.,. of land should be continued. We all agree that an inquiry should b*e made as to what compensation the plaintiffs are entitled to receive in respect of their surface rights. Walkem, J., concurred. Drake, J.:—This appeal is against a judgment of the Chief Justice, declaring that the plaintiffs, the railway company, as against the defendants, are entitled to the exclusive use and possession of the lands in the pleadings mentioned, and further declaring that the location and record of the Paris Belle Company was illegal and void, and granting an injunction. The plaintiffs, a railway company, obtained from the Provincial Legislature a land subsidy for the construction of a railway, and this subsidy is contained in an Act, Stat. B. C. 1892, ch. 38. Sec. 5 compensates the Company for any lands which were m SHEPPARD RY. CO. taken up either under the land or mineral, laws of the Province, in 18!)7 the blocks which were to belong to the railway. The Crown expressly May'3. reserved to free miners the right of searching for and acquiring claims fl-llCoui on any part of these lands in accordance with the mining laws of the —- Province. Subsequently the Crown, by deed, granted to the railway KAKE' company on the 8th day of March, 1895, certain .of the subsidy lands- in which the defendants claim the Paris Belle was located. That grant excepted all lands held by pre-emption, incomplete sale or lease or as mineral claims, prior to the 23rd of March, 1893, and contains this provision:— " That it shall be II the said lands and raise use and enjoy any part for that purpose, payir able compensation." for any person acting under our authority to enter get thereout any minerals (other than coal) and to tie said land and of the easements thereto belonging, respect of such raising and getting and use, reason- On the 15th of June, 1892, the Zenith claim was located by Noel, ' and a certain amount of exploration^ work was done, to the value of $50.00. The locator stated in evidence that he would not do any further work as his partner did not do his share. Under see. 24 a locator has twelve months after record to do his work to the value of $100.00 on the claim, for which he can obtain a certificate from the Mining Recorder, and he may abandon his claim at any time upon giving notice in writing to the Recorder under sec. 27. No notice was given and as far as the Crown is concerned the Zenith claim was on 23rd March, 1893, a recorded claim and is covered by the exception in. the grant, and did not pass to the plaintiffs, and after the expiration of twelve months from the date of record this land was open to location under sec. 10 of the Mineral Act, 1891. The case of Reg. v. Demers (18'94), 22 S. C. R. 482, is cited as an authority. I think the land- covered, by the Zenith claim is entirely within that authority and never passed to the plaintiffs. The plaintiffs are not prejudiced as they may be entitled to call upon the Provincial Government to make up to them out of other lands so much land as was held by others on the 23rd day of March, 1893, under the exception in the grant. The plaintiffs, however, say that the location of the Zenith claim was improperly done because an extra stake with a notice on it was left on the ground. The plaintiffs' grant excepts recorded claims, and this being a recorded claim of the 23rd of March, 1893,1 fail to see what right the Company have now to question the location on which the record is based. The Crown could do so and so could any free miner during the twelve months the record lasted. Of this Zenith claim, a portion is alleged to be covered by the Paris Belle location as appears by the maps filed as exhibits. On the 24th of December, 1894, the Paris Belle was located; on the 3rd of January, 1895, recorded. This the defendant's •claim they have a right to do, both under the Plaintiffs' Act, ch. 38 of hich conta ns the provisions before 94, under which the defendants fines a mil le as meaning any land n place sh ill'be mined for gold or except coa , anH minerals include nd also of other substances which nium, pho sphorus, iodine, sodium, MARTIN'S MI] 1892, sec. 8, and under the grant w mentioned. The Mineral Act, 18 •■ located and recorded this claim, de in which any vein or lode or rock i other minerals, precious or base, ( ' valuable deposits of various ores, a are not found in ores, such as aluminhur. and also mineral pigments which can be extracted from various earths. Bock in place is defined as rock in place bearing valuable deposits of mineral within the meaning of the Act. Vein or lode includes rock in place. The Act is silent as to the discovery of minerals which are found in earths alone, or how it is to be posted as there can be no rock in place bearing deposits of this class of minerals. The meaning of rock in place appears to be all rock which has not been broken or moved from the main body. How valuable its deposits or minerals may be, may not be discovered until expensive work has been done. A vein or lode is not under this Act necessary to be discovered to enable a miner to locate ground if there are mineral deposits of sufficient value to induce the miner to expend capital and labour in their development. A great deal of evidence at the trial was directed to the question whether or not there was any valuable deposit of mineral discovered, and the evidence was confined to ores. A man need not specify what mineral he is searching for, and the question whether he has found valuable deposits of ore does not arise, but in the present ' case there are some deposits of ore which may be indications of larger deposits. I see nothing in the Act to prevent any one taking up ground for the purpose of working any of the class of minerals mentioned in the Act, provided he discovers sufficient minerals to justify the expenditure of time and labour on them. The American* authorities cited are decisions on Acts very much more restricted than our Mineral Act, and will hardly assist the determination of questions arising here. A miner cannot take up a claim on occupied ground without paying compensation, and that is considered by the statute a sufficient protection. If it is not the Legislature can amend the Act. The plaintiffs contend that the Paris Belle Company were bound to tender security ■ to the Gold Commissioner before they made entry on the plaintiffs' lands, and not having done so their location and record are valueless. thepu I.] NELSON & FORT SHEPPARD RY. CO. v. JERRY et al. , the locator could not mine and prospect for minerals without giving . security, and the first part of sec. 10 gives sanction to this view, for it authorizes a free miner to enter, locate, prospect and mine, four Fv different and distinct operations; entry .for the purpose of viewing, n locate for the purpose of staking and recording; prospecting implies examination by pick and shovel, and mining, digging and destroying the surface. As the minerals are not the property of the land owner, it would be only right that the surface should not be destroyed except on security being given, and this construction will also protect the miner who may have a valuable surface discovery.from the liability of losing his find, as he can record and protect his rights before he further proceeds to give security or pay compensation. His right is to deal with the Crown minerals. This is independent of his right to deal with the surface owner. If the condition of giving security is to be treated as a condition precedent to recording, non-compliance with which renders the record void, the result will be that a record for which a certificate of improvements has been issued is no evidence of title. Sec. 14 of the Mineral Act Amendment Act, 1892, after providing for filing adverse claims, says: " Nor shall the validity of such certificate of improvements when issued be impeached on any ground except that of fraud." This portion of the section is general and applies to all cases. To treat it as only applicable to contests between claimants to mines, would be to render a certificate of improvements- useless. The certificate of improvements in this case was granted 8th November, 1895, and recorded 18th November. The plaintiffs commenced their action before the certificate of improvements was issued. They could have obtained an injunction after having got their grant, but they stood by from December 24th, 1894, until this action was commenced in October, 1895, and allowed the defendants to do work which is estimated at $500.00. But the grant under which the plaintiffs hold has waived the necessity of giving security before entry, and' only requires compensation. In my opinion, as I have already stated, the plaintiffs have no claim to the lands covered by the record of the Zenith. Allthat they are entitled to claim is compensation for surface rights over such portion of the Paris Belle as lies outside the Zenith claim which may be necessary for the due and proper working of the claim. The question of what constitutes a vein or lode was very fully argued, but it really has but little to do with the case. Mr. McConnell, the Dominion geologist, points out in his report, page 25, dealing with the Rossland District, that the ores of the massive eruptive rocks consist principally of sulphides of various metals. Of these pyrrhotite is the most abundant. It constitutes the common Rossland ore. It is found as a rule in the massive condition, ranging in texture from a fine to a medium grain, but it is also disseminated through the country rock, and at page 27 he continues: " The blunt irregular outlines of 1 itended t country held in solution, while the fist opinion of the characteristics the argument addressed to us the Paris Belle claim was eog< deposit at all) of little effect, ; Mineral Act itself, that it was to all minerals whatever discovered under The order that we think should have be as regards the Zenith claim the defendan land covered by that claim as waste lands of the Cr they can be ascertained from the record, and as to thi the claim, the plaintiffs are entitled to compensation for surface damages (if any) to be ascertained in the mode pointed out bv the Mineral Act. The appeal should be allowed, with costs. Is entitled to by the is that ion of McColl. J.:—I hav Mr. Justice McCreight posed bv him. I do noi 1 the advar i whom I . on of pro- :than . by the defendants at the 1 . (1) of sec. 14, ch. 32, 51 claim shall be filed by the Mil It is admitte d that the defendant camp any obtained such a certi- ties? For tl o impeach it. What then le plaintiffs it was strenuc between the d as regards hich for conv at the "Mineral Act, 18 nienece I shall refer to as the Acts') on™ ending Acfi| contemplate lm; that it cc make the tith Acts passed s uld never have been the ii to land depend upon com olely for the purpose of pr pliance with t oviding for tl to a mineral e Legislature he provisions e acquisition : FOWE SHEBRAKD M mineral claims, and that it is impossible to conceive that the Legislature meant to place upon a land owner the intolerable burthen of bemstant watchfulness lest he be deprived of some portion of his prop- s erty, It was also urged that the adverse proceedings provided for I by the Acts are inapplicable to a land owner, and that therefore his rights cannot be dependent upon his taking such proceedings; nor can a certificate of improvements be binding upon him. I agree that the proceedings referred to are required only of a claimant to a mineral claim claiming adversely, but I do not accede to the proposition that therefore, notwithstanding the issue of the certificate of improvements, the question between the parties is to be determined as if no such e.§8tifiqate had been granted. There can be no pretense that the position of the plaintiff company is, in the circumstances of this ease, better than that of a grantee of lands from the Crown, whose grant in the ordinary form excepts the precious metals. A sufficient reason why the adverse proceedings required by the Acts do not apply to such a grantee is, that he does not need their protection against persons claiming to be entitled to enter and remain upon his land without having complied with such of their requirements as concern himself. They are trespassers, and can be dealt with as such. It is necessary to bear in mind that the rights conferred by the Acts as regards lands lawfully occupied for other than mining purposes, are not in the first instance dependent even upon thejeaist- eagg of mineral upon the land. I do not think it would be useful, even were it possible, to lay down any general rules by which to determine what defaults will leave such persons in the position of trespassers. i The rights of the parties in each instance must naturally depend largely upon the precise circumstances in which they may be 'found | when a dispute arises. It seems to me difficult to allow to the grantee a status to question [ the title of any claimant to a mineral claim, who in good faith may [ be claiming under his record, but it is sufficient for the purpose of j this appeal to say that, whatever may be the position of the grantee at j any time antecedent to the issue of the certificate, I do not doubt that | he will never find it possible to successfully attack the title to a mineral claim in respect to which a certificate has been granted, -unless j he is able to prove such facts as would amount to fraud. If the I grantee may bring an action attacking the title to a mineral claim, not- | withstanding the existence of a certificate of improvements, without impeaching its validity, when does the title to the claim become un- ! impeachable by him ? And if he, in his quality of land owner, is to I have the right to bring such an action at such a time, what is there to | prevent him, if successful, taking advantage of such right for the pur- ! pose of himself acquiring the claim ? Such a grantee is not concerned MARTIN'S MINING CASES. [VOL. with the right of property in the precious metals which may be found upon his land. He can acquire them only in the way open to all persons equally under the Acts. His title to his land does not depend upon the Acts, nor can he be deprived of his title to it or any part of it by any proceedings under them. His liability is to have his land entered upon and occupied for mining purposes, and the rights given him are that he is carefully guarded in respect of such liability by the exemption and security against loss provided for. I am of opinion that the policy and provisions of the Acts are alike opposed to the construction contended for on behalf of the plaintiff company; that the certificate of improvements is in effect conclusive, • as well against the plaintiff company as against any adverse claimants (if such there were) to the. Paris Belle mineral claim; and that the present rights of the plaintiff company are those, and only those conferred by the Acts. The plaintiff company is entitled to security, and to an injunction in the meantime. The appeal should be allowed; neither party should have the costs of the appeal. Appeal allowed. s of ' plac. neral Act Amendment Act 1897, assented to May 8th* 1897, three days after this case was decided. As to pleading, see Hogg v. Farrell, ante, p. 79. As a certificate of improvements and attack upon, see In re American Boy; post, p. 304; Hand v. Warren, post, p. 376; Nelson & Fort Sheppard Ry. Co. v. Dunlop, post, p. 414; Attorney-General v. Dunlop, post, p. 408; Manley v_ Collom, post, p. 487; Cleary v. Boscoxcitz, post, p. 506; Fry v. Botsford, postr As to abandonmen 3 thereto. o defects in lo Villiar. -, cGc. , p. 1;« I.]' STUSSI v. BROWN. 195 Stussi v. Brown. ^1897. (5 B. C. 38.0.) PUIL COUBT. i Mineral Claim—Statute of Frauds—Interest in Land-r-Partnership—Record- Notice—Pleading—Admission—Mineral Act,- 1891. The defences of the Statute of Frauds and sec. 51 of the Mineral Act, 1891, i must be pleaded. j Semble, The bar provided by sec. 51 that "no transfer of any mineral claim, &c, shall be enforceable unless the same shall be in writing, &c, is confined to a plaintiff seeking to enforce the transfer, and inapplicable to a defendant. ' Judgment of Dkake, J., varied. Per Drake, J.—The interest of a free miner in his claim is an interest in land within the Statute of Frauds. Though documents duly recorded are notice to subsequent purchasers the mere fact of a notice of claim being filed with the Recorder is not notice. Actiost for specific performance of an agreement by the defendant Statement. to convey to the plaintiff a half interest in a mineral claim. The facts are set out in the judgment of Dbake, J., at the trial. Charles Wilson, Q.C, and J. II. Senkler, for the plaintiff. Argument. E. P. Davis, Q.C, for the defendant. Cur. adv. vidt. December 19th, 1896. Dkake, J.:—The facts of this case are compliqated, and it appears Judgment that in July, 1894, the plaintiff and the defendant, Joseph Brown, below, entered into a partnership, which in the statement of claim was stated to be for the purpose of acquiring, holding, developing and disposing of mineral claims in Trail Creek Mining Division. The plaintiff advanced Brown $40.00 and some provisions in consequence of Brow~i informing him that he knew of some claims not taken up, and he would locate the claims in their joint interest. Accordingly Brown located and staked out two claims, the Sunday Sun, and Pittsburg, and recorded them on the 13th and 16th of August, 1894, in the plaintiff's name, the plaintiff finding the fees therefor. As to these claims there is no dispute except as to a counter claim for damages put in .by Brown, on which no evidence was offered. On the 13th of August, 1894, the St. Louis was recorded by the defendant Brown in his own name, the plaintiff, as before, paying MARTIN'S MINING CASES. The plaintiff c laims an und ivid 3d half intere st in the cl aim. The discoverer of this lenced here. He dsta nry AUes els ims that h d was on t e was the ig ground- when Brown arriv licence had been is ed, but Alle 3 he had not rece whether h ived any re ply to his application for th 3 granting o a icence, agree d that BroT rn should. stake the claim in lis own nam 3 anc give him a c leed of the undivided half. As a matter of fact a lice IUKM vas in exister ce at the 31 te of this Brown, in his ileading, ach fti^ n of AUes, and there is further corroboration in the evidence of Sidney Norman, who gives the result of a conversation between himself and Brown, confirming the statement of Alles. Brown sold to O'Connell an undivided half of the St. Louis claim for $1,200.00 and gave him an option on the other undivided half, which never was exercised. This sale and transfer is not questioned. On the 5th of October, 1895, a bill of sale of one-quarter of the claim was made by Brown to McLeod. On Mr. McLeod taking his claim to- be recorded, he then for the first time discovered that J. A. Stussi, - the plaintiff,.claimed an undivided half interest in the claim. On the 23rd of October, 1895, the plaintiff commenced an action in the County Court of Kootenay to have it declared that Brown and Mc-; Leod were trustees for him of an undivided one-half interest in the St. Louis mineral claim. On this action coming on for trial, the Judge ordered that the defendant. Mr. Alles, who had also commenced an I action against Brown for an undivided one-half interest in the same- claim, should be added as a defendant to the plaintiff's action, and |H own action struck out, which was accordingly done. Before judgment was given by the County Court Judge in the I action of Stussi v. Brown, et al, namely on 7th March, 1896, an order was made by Mr. Justice Walkem, prohibiting all further proceedings', in the action. On the 22-nd May, 1896, the County Court Judge of Kootenay; delivered a judgment in the action of Alles v. Brown, in favour of the, plaintiff. This was the action which had been struck out of the docket. How a judgment could have been given in an action that was non-existent at the time, and which had never been tried, was explain-' ed by the learned Judge by stating that when the counsel came before' him he had not got his notice or the docket, and he had forgotten the action of Alles was struck out, and that he had been added as a IB fendant in the action of Stussi v. Brown, which had been prohibited. I I therefore hold that this judgment, which is relied on by all) the defendants, is void, as it was given without jurisdiction and without trial. Aftei fenced, tin- wri namely, of pi m the ohil 12t itio E March, tained, tin 1S96. Nc duced si records, under U at anj (in Mi grant h ning Ac ad been iss alleged c property, t of a not but ! red in les of he the all lain Act doci ibe does n k, notice ng filed Dnnected w with the Be binding on a pui chaser foi a •aluable considerati notice. Mr. McLeod, in his evidence, c in the claim of Stussi before he ot and there was no evidence to the sider that this notice of claim can one-fourth interest, if his right interest. Xow, with regard to AUes' clai m without actual lotice at all •om Brown, dght to a I alleged i he 3 he ad 5 . Brc elai ftd < titled to one-half therein. By sec. 34 the interest of a free miner in a mineral claim shall be deemed a chattel interest, equivalent to. a lease for one year. It is, therefore, an interest in land. Any agreement, therefore, relating to a sale or transfer of such an interest must.be in writing. No sucli document is produced, but the defendant, Brown, in his pleadings, admits an agreement that Alles was to have ah undivided one-half interest in this claim. Such an agreement is good between the parties to it, and Alles might enforce it as against Brown on this admission. By not having any document in writing to which effect can be given, he cannot give any title to the defendants who purchased from him. Sec. 51 of the Mineral Act enacts that no transfer of any mineral claim or of any interest therein shall be enforceable unless the \ same shall be in writing, signed by the transferer and recorded by the j Mining. Becorder. Neither can he claim a superior right to the plain- i tiff, as he was not to be a partner of Brown's, but was to have a conveyance of an undivided half, and he is entitled to damages against : Brown for breaking that agreement. Now regarding Stussi's position: It is established by Forster'y. i Hale (1798), 3 Ves. 696, and Dale v. Hamilton (1846), 5 Hare, 369, that an agreement by parol for a partnership in land is good, but it does not follow that a dissolution of such partnership should not be in writing under the Statute, Gray v. Smith (1889), 43 Ch. D. 212. I Admitting there was a partnership between Brown and' Stussi in this claim, that partnership was limited to the interest that Brown had, which was one undivided half. The plaintiff can only be entitled to ; a decree that Brown is a trustee as to the quarter which is all that MARTIN'S MINING CASES [v. 35, group 1, tnership, as - iold, develop partnership 5 remains in Brown of the St. Louis mineral claii West Kootenay, because, under the terms of rt. alleged by Stussi, each partner had power to ae T>j. and dispose of mineral claims, and the effect of would be to enable either partner to dispose of claims, and they would have to account for the proceeds as part of the partnership assets. - The order will be that the plaintiff is entitled to an account from Brown of the proceeds of the sale of such portion of the St. Louis claim Brown has sold and converted into money and a judgment for one-half of such proceeds when ascertained. Further, that the plaintiff is entitled to a declaration that the remaining quarter in the firstf claim is partnership property, and I order the same to be sold for the benefit of the said partnership. The plaintiff is entitled to the costs of action as against Brown. The action to be dismissed as against P. M. McLeod with costs and as against the other defendants without costs. Judgment accordingly. Prom this judgment both jparties appealed, and the appeal waJl§; heard before McCrekuit, Walkem and McColl, JJ., on the 3rd of March, 1897. it- Charles Wilson, Q.C,. for the plaintiff. E. P. Davis, Q.C, for the defendant. Cur. adv. ruU. May 6th, 1897. The judgment of the Court was delivered by McCreight, J. 1—The partnership in July, 1894, between the plaintiff and Brown was for the purpose of acquiring, holding, developing and disposing of claims; the plaintiff supplying the provisions, &c;, to the defendant Brown to prospect for and locate such claims. It is not necessary to decide that the St. Louis claim fell within the purview of this agreement. Alles in his evidence says he had prospected for and discovered the St. Louis claim and had been working on it for a time before he took Brown " up there." AUes' licence, it seems, had run out, and the new one, though then on the way, had not then actually reached him, and he was afraid some one would jump the claim. He told Brown of his position and by arrangement staked the claim in his, Brown's name, the two agreeing that they should hold it in equal shares, Brown to have the claim recorded and pay for the recording of it. The claim was duly located and recorded in Brown's name and they did some work on it. Without expressing a decided opinion as to whether, as between the plaintiff and Brown, it musfebe I.] STUSSI v. BROWN. considered that Brown's half was to be shared with the plaintiff in the 1397. partnership, it seems manifest that Alles was entitled as to his one- Mayjj. half, to be placed in as good a position as if no such agreement existed, full Coui He says he knew nothing of it, and his evidence seems to be reUable mcCreigh- ■as well as fully corroborated, and to have satisfied the learned trial Judge. In June, 1895, Brown conveyed to W. L. O'Connell a half interest in the St. Louis for the expressed consideration of $1,200.00, and it was duly recorded. It seems to be important to ascertain whether the conveyance of this one-half share in any way affected the rights of Alles to his own half, and I think it can be shewn that it did not. I think Brown might, not illegally, or at. all events with an apparent right, bona fide entertained, deal not only with the interest owned by himself, but also with that owned, if any, by the plaintiff, his partner; whilst to sell Alles' one-half would be a manifest breach of trust, and, perhaps, punishable under the Code. Mr. Davis, I think, fairly contended that the statement of claim puts forward a case of a partnership for the purpose of acquiring, &c, and disposing of claims and suggests that Stussi and Brown had each authority to bind the other in the sale of partnership claims. No doubt, it is on the theory of partnership that Stussi brings his action. The evidence from their course of deahng is not conclusive. In the month of June, 1895, Brown sells one-half of the St. Louis to O'Connell, the claim being recorded in Brown's name, and he sells the whole of the Pittsburg to D. Stussi, the brother of the plaintiff, and gets the conveyance executed by the plaintiff, I gather, because the claim was recorded in his name. * But it is important to observe that the jury in Stussi v. Brown, and others, in November, 1895, find that Alles had one-half interest in the St. Louis; of this Judge Spinks is satisfied, and StUssi, though of this Judge Spinks is doubtful, one-quarter of the St. Louis, i.e., by the verdict in Stussi v. Brown, Alles, and others, in November, 1895, which, of course, is material as regards Alles, as shewing that Brown could not have rightfully conveyed to O'Connell, AUes' one-half share, or at all events had not done so in the opinion of the jury, and that AUes' half share was still vested in him. The value of this verdict does not seem to be affected by the prohibition, which only prevented judgment from being entered on the verdict, and the verdict should be conclusive as between Stussi and Alles in any action subsequent thereto; see Outram v. Morewood (1803), 3 East 346, and 2 Smith's L. C. notes to Duchess of Kingston case. Whilst Judge Spinks does, not remember what interest the jury in Stussi v. Brown, Alles, et al, found that Stussi had, it is obvious they could not find Stussi had any after finding AUes had a half, as by the conveyance of June, 1895, Brown had already conveyed one-half to O'Connell, which was duly recorded two or three days afterwards. And the trial Judge finds that this sale and transfer is not questioned. So far it seems (I shall deal with the position of McLi and Alles the oth In re Hallett's Estate (1879), 13 Ch.' D. 696, it was held l»v the Court of Appeal, Thesiger, L.J., dissentiriitc. that if a person who holds money as a trustee or in a fiduciary character pays it to his account at his bankers and mixes it up with his own money, and afterwards draws out sums by cheques in the ordinary manner, the rule in Clayton's Case (1816), 1 Mer. 572, attributing the first drawings out to the first payments in, does not apply; and that the drawer must be taken to have drawn out his own money in preference to the trust money. The late Master of the Bolls says in his judgment at page 727: " Nothing can be better settled, &c.,'than this, that where a man does an act which may be rightfully performed, he cannot say that that act was intentionally and in fact done wrongly. A man who has a right of entry cannot say he committed a trespass in entering. The man who sells the goods of another as agent for the owner cannot prevent the owner adopting the sale and deny that he acted as agent for the owners, &c. Again, Bagallay, L.J., at page 743, says: I entertain a very decided opinion that in cases like Pennell v. Deffell (1853), 4 D. M. & G. 372, or in cases such as that which is the subject of the present appeal, full effect should be given to the principle of attributing the honest intention whenever the circumstances of the case admit of such a presumption." It seems to me that Stussi can have no right to the St. Louis or any interest in it, except it may be to the account against Brown for the sale of the half-share to O'Connell and half of the proceeds of such sale, the other half being vested in Alles. Stussi should have seen this when the jury in Stussi v. Brown found that Alles still owned a half interest in the St. Louis. Stussi must have known at all events, from the record of June, 1895, of the conveyance to O'Connell. But the learned trial Judge seems to have held that the alleged rights of Alles were displaced by sees. 34 and 51 of the Mineral Act, 1891, the former section enacting that the interest of a free miner in his claim should be deemed to be a chattel interest equivalent to a lease for a year;.I &c, &c, and the latter enacting that " no transfer of any mineral claim, or of any interest therein, shall be enforceable unless the same shall be. in writing, signed by the transferor, or his agent authorized in writing," &c., &c. If these sections had.been relied on by the plaintiff in his reply, a serious question might have arisen, but Order XIX., Bule 15, says $hat the defendant or plaintiff (as the case may be) must raise by his pleading aU matters which shew the action or counter claim not to be maintainable, &c, &c, " and all such grounds of defence or reply, as the case may be, as if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the I.J STUSSI v. BROWN. < preceding pleadings, as for instance, fraud, Statute of Limitations, isiJ7. release, payment, performance, facts shewing illegality, either by M*y6- Statute or common law or Statute of Frauds." It seems plain from Full Oou this rule that the Mining Act of 1891 or the sees. 34 and 51, should Mc0~H have been referred to in the plaintiff's reply. Further, I do not wish to be understood as holding that, even if the Mining Act had been replied, the defendant Alles could not have insisted that there was no question in this case as to whether his claim was " enforceable " or not, for he was merely a defendant, compare the 4th sec. of the Statute of Frauds, and Lavery v. Turley (1860), 30 L. J. Ex., pp. 49 and 50, nor as to the effect of the absence in the Act of 1891 of any section corresponding to the 7th or 8th section of the Statute of Frauds. It seems to me therefore that there is nothing to prevent Alles insisting on his rights to the one-half of the St. Louis as against Stussi. The circumstances that McLeod in October, 1895, purchased one- quarter interest from Brown, the recorded owner, without notice of any right on the part of others is a matter with which Stussi is not concerned. The whole interest being in Alles and O'Connell Stussi has no ground of complaint, but as the purchase by McLeod from Brown has been discussed I may say that I do not see that McLeod's right can be displaced on the grounds suggested by reference to Hope v. Caldwell (1871), 21 TJ. C 0. P. 241; Robertson v. Caldwell (1871), 31 TJ. C Q. B. 402, and Locking v. Halsted (1888), 16 Ont. 32, He is not seeking to enforce anything as was attempted in those cases for he is simply a defendant as weU as Pierce, Norman and McArthur, who Mr. Wilson says each got a one-eighth from Alles, McLeod being content with the remaining one-eighth, instead of one-quarter, it seems, as there can only be four one-eighths in AUes' one-half. All this it seems to me is totally immaterial and I give no decided opinion about it. The action is brought by Stussi, against Brown, McLeod, AUes, Pierce, Norman and McArthur. As regards Alles and those claiming under him, viz.: Pierce, Norman and McArthur, Stussi, must fail; also as against McLeod whether as holding one-quarter through Brown, regardless pro tanto of the rights of Alles or by arrangement one-eighth from AUes, along with the three-eighths said to be vested in Pierce, Norman and McArthur. There is no question in this suit as between Brown and McLeod, or as between Alles and McLeod, Pierce, Norman and McArthur. The only question is: Has I Stussi any rights ? For these reasons I cannot disagree with so much of the decree of j the learned trial Judge as operates between Stussi and Brown in ; reference to the St. Louis claim, nor with that portion of the decree ! which directs that as to the defendant McLeod, the action be dismissed with costs to be paid by the plaintiff to the said defendant McLeod. But as to so much of the decree as declares that the defendants, Alles, MARTIN'S MINING CASES. I think the i without preji McArthur have no interest in the St. Louis claim, mid be reversed and it should be declared.that, the rights of said Pierce, Norman and McArthur, also subject to the rights of McLeod) to one-half iterest in the said claim and that the action be dismissed as against ,m and Pierce, Norman and McArthur with their costs to be paid by ie plaintiff Stussi. It is, of course, proper that an account should be ken as between the plaintiff and Brown but not an enquiry as to the terest other than that assigned to McLeod outstanding in the defend- lts or any of them. I think Stussi has no interest in the St. Louis. hat the counterclaim of Brown against Stussi ith costs and that Stussi should have the costs as against Brown. Appeal allowed in part. 'II, ante, p. 79. ds, see Wells v. Petty, ante, [v FRANOOEUR 1 May 18. Bolb, Co.C Action by plaintiffs as locators and recorders of the 0. K. mineral St! claim for an order that the record by the defendant of the Little Duke mineral claim subsequently located by him and covering the same ground as the 0. K., should be declared null and void and cancelled; for an injunction and damages. At the trial, it appeared that the plaintiffs had marked on their initial post the approximate1 compass bearing of the No. 2 post as north-east and south-west instead of northwest and south-east. The facts more fully appear from the judgment. ■ D. G. Macdonell, for the plaintiffs. E. A. Jenns and H. F. Clinton, for th. defendant. May 18th, 1897. Bole, Co.J.:—The plaintiffs claim to be owners of a mineral claim, known as 0. K., situate on Pitt Lake, and allege that it was located on the 27th December, 1896; that on the 7th January, 1897, ■they applied to record the claim, and filed the necessary declarations, and did all things necessary to entitle them to record it; that on the 26th January they received the record of said claim, duly issued; that subsequent to the 26th January, 1897, the defendants trespassed on the said claim and threatened to continue said trespass; that on the : 8th- February the defendants recorded the claim known as the Little Duke, which claim is wholly located on the claim of the plaintiffs ■already mentioned, which record is a cloud on the title, and they ask: (1) That the record of the mineral claim issued by the Mining Be- corder to the defendant in this action should be declared null and void, and.removed as a cloud on the plaintiffs' title; (2) For a declaration that the plaintiffs are entitled to the said mineral claim by virtue of the record issued to then the 7th January, 1897. passing on the said claii l, and That that t 1 (3) he sa Dam id r fc rdsh ould date from not fulfilled the conditio! appea ,c.l6o f the Mi ier alAc t, 1896, because ground as a mineral clai 1,500 feet in length by 1 mto be kno We vidtl hav i; tl e t e ( his d ). K. lirect ay located this mineral claim, ion of the loca- tion line is north-east an right, and 750 feet to the tion of the line is north- the same effect. lsout left o west a f this 1 irhVci f- w A this ftdpa claim lie to the 3 the true diree- It is true that sec. 16 (sub- sec.; d) proA ides tl atth Now it appears to me that such culated to mislead other persons < vicinity; but it does not become neces point alone, as I find that the onlv < which I can look at, namely, that .< made too late, and subsequent to the appears to have been made in time.. " In case of any dispute as to the loc the claim shall be recognized according to to any question as to the validity of the re free miner having complied with all the ter The official 0. K. record was conf limited by the. statute. With respec e applicants on the 7 icord was most decidedly calling to locate claims in the y to decide the case upon this ial record of the 0. K. claim , 18! ttle Di jnt nothing ) his dut to do his duty, the law has providec the premises has, to my mind, nothi now before me. Besides all this, 1 Donald shews that at the time of Clinton, who, I gather, is interested the defendant might be in a positic their location was a good one, declar mitted he was in Clinton's employ ( considered himself justified in taking A u uch location, subject ubject further to the lot , I ler le within the time arred between the conceive I have at m any way failed .tor, his action .in ice of the plaintiff ,M.eA ion isl he hav orl daj on was. working .fcfc that it is probable e the plaintiffs, if lim. Plaintiff ad- and Monday, but lis own account on the intervening Sundaj this is a Court of equit to me that the plaintiffs fai •art fre As I i srstand 1 as the Paris Belle ca importance of priorit this case. It appears to made in time, and the r the Nelson & Fort i C 401, ante, p. 161, ard Railway ;onlv la it appears to lay considerable 'stress upon the f record, where there is a valid location, as in i me the record of the defendant having been rd of the plaintiffs being made outside the prescribed time limit, I must give effect to the protection which the Act intended to extend to free miners. The Becorder's office is the natural and proper place to make enquiries, and to adopt any other rule would be to lead to endless confusion and difficulty. Holding this view, and being of opinion that the plaintiffs have failed to shew that they are entitled to the relief claimed, I must give judgment for the defendant, with costs. Action dismissed. As to misleading, \ MARTIN'S MININ Gkay et al. v. McCallum et Section 120 of the Mineral Act does not preclude a mining partnership from contracting liabilities otherwise than upon the order of a duly appointed foreman- If items of expenditure are passed at meetings of the partnership, it is estopped from disputing them on taking accounts. Decision of Dkake, J., affirmed. Appeal from a judgment of'Drake, J., upon the hearing for further consideration and motion by' Johnson, a defendant by counterclaim, for directions and to vary the Begistrar's certificate granted in favour of McCallum, the plaintiff by counter-claim. The action was originally commenced by John Gray, James Gray and Samuel Gray against McCallum to have certain assignments from them to him of certain shares in a mining partnership known as the " Ophir Bed Bock Flume Company," and certain goods at the company's mine owned by James Gray, appearing on their face to be absolute, declared to be mortgages. McCallum counterclaimed against the Grays that the assignments were absolute, against the company for moneys paid fori' stores, &c, on account of and for the benefit of the mine, and against?' the Grays and E. M. Johnson, who had been secretary of and was a\ shareholder in the partnership, for damages for conspiracy. On the 17th of April, 1889, McCallum became the owner of a majority o|; shares in the partnership, and on the same day appointed James Gray superintendent and director of works, to serve and work for the partnership for the season of 1889, and Gray was notified by Mr. Johnson as secretary of the company. Some of the payments for stores, &c|* were passed and accepted at a meeting of the partnership, and assessments levied therefor. At the trial of the action on the 18th of December, 1891, the issue as to the assignments was found in favour of McCallum, and that as to conspiracy in favour of the Grays and E. M. Johnson, and by the order made at the trial it was ordered that an account should be taken between McCallum and the Ophir Bed Bock Flume Company, of the advances and payments made by McCallum. on behalf of the company for working the mine (without disturbing any settled accounts) and that McCallum have judgment against the company for the amount found to be due, less any amount that might be due from him as a member of the company. Further consideration and costs were reserved. On the 26th of July, 1893, Drake, J., on motion' I.] GRAY et al. v. McCALLUM et al. to him, declared that the stores were purchased for the partnership, and directed the Begistrar in taking the accounts to allow the pay- J ments accordingly, and the order was confirmed on appeal by the irs Divisional Court on the 27th of January, 1894, and by the FuU Court on the 10th of May, 1895. The grounds of these appeals were, inter alia, that McCallum was not authorized to purchase the stores and that he was not foreman of the company nor the agent thereof, duly authorized in writing. The accounts were taken before the Begistrar, and on the 24th of July, 1895, he found that there was due to Mc- CaUum the sum of $6,350.66. The partnership was not represented on the taking of accounts, but E. M. Johnson as a shareholder of the partnership attended and opposed the allowance of the accounts. A summons was taken out by Johnson to vary the Begistrar's certificate by disaUowing the amount certified to be due to McCallum, and that such consequential directions might be given and corrections and alterations made in the certificate as might be necessary, and this summons was adjourned to come on at the same time as the hearing for further consideration. Both parties set the action down for hearing on further consideration, and it came on, together with the summons to vary the Begistrar's certificate, before Drake, J., on the 15th and 16th of November, 1895. L. P. Duff, for A. E. McCallum, plaintiff by counter-claim. Al A P. Luxton, for E. M. Johnson, one of the-defendants by counterclaim, submitted that all items allowed by the Begistrar's certificate should be disallowed on the ground that MeCaUum was not the foreman or agent of the company duly authorized in writing, referring to sees. 114 and 126 of the Mineral Act, C. S. B. C 1888, ch. 82, and in any event as not being properly vouched, no receipts being produced other than cheques endorsed by the payees thereof. L.P. Duff, contra: Whether or not McCallum was as a matter of fact the foreman properly authorized, the company has approved the accounts and is estopped. It is clear, however, from the whole proceedings, that McCallum was to all intents and purposes holding the controlUng interest in the mine. As between Johnson and Mr. McCallum, Johnson is estopped by his actions and representations from disputing the allowance to McCallum, Cur. adv. vult ■ j February 12th, 1896. Drake, J. (after stating the facts) :—As to the objection that cheques, endorsed by the payees and supported by the oath of the drawer as to payment are not sufficient vouchers of payment, I overrule MARTIN'S MINING CASES. [vol. it at once. The Begistrar considered the evidence in support of the payments and was satisfied, and I shall not interfere with his findings i- on this account. (The learned Judge after discussing the evidence, proceeded) : The Mineral Act, C. S. B. C 1888, ch. 82, sec. Ill, says a majority of the co-partners may decide the manner of working the claim, and may choose a foreman or local manager, and a majority, by sec. 115, is to be ascertained by the number of full interests voted upon and not by the number of partners. The effect of these two sections is to give a control to any single person who holds a majority of full interests. This majority was held by McCallum, and he exercised this control . when he appointed Gray as superintendent', confirmed bjr the secretary of the company, but Mr. Luxton contends that unless there is a foreman eo nomine appointed no liability can attach to the other members of the company under sec. 126. " I do not think there is any substantial ground for this contention. For the liabilities incurred in the year 1889, the company are liable under Gray's appointment and also by acceptance of the accounts. The other indebtedness was incurred by Mr. McCallum, acting as secretary and controlling owner, and sec. 126 has reference to liabilities contracted by some person who had no authority to act for the company. It does not preclude the company from contracting liabilities as a company. If, for instance, the compan3r required a pump, and gave an order for one through its secretary, they cannot repudiate liability because the order was not given by the foreman. The object of the Act is to enable a person at the mine to engage labour and purchase supplies, and to protect persons with whom such contracts are made, and also to protect the company against unauthorized persons pledging their credit. If the contention of Mr. Luxton could be sustained in the broad way he stated it, no company could carry on business, as no liability could be incurred or payments made except by the foreman, which I am clear is not the intention or the object of the clauses referred to. I, therefore, find that there is due from the company to McCallum, $6,469.89. I further find that McCallum is entitled, as against Johnson, to his costs subsequent to the decree, to be taxed, except the costs of preparing and filing the account and affidavit in support, which are to be paid by the company, and to judgment against the company for $6,469.89, with interest at six per cent, on the sum of $5,322.52 from 23rd July, 1890, and interest on $1,147.37, the remainder of the sum, from December, 1891. I fix these dates in order to avoid further reference, which would involve a heavy expense, judging from past proceedings. Order accordingly. I. J GRAY et al. v. MgOALLUM-Six j From this judgment the defendant John Court, and the appeal was argued before Mi McColl, JJ., on the 11th of May, 1897. A. P. Luxton, for the L. P. Duff, contra. tppeal. appealed t i the full keai and Ci . adv. vult. June 12th, 1897. The judgment of the Court was delivered by McCreight, J. (after stating the facts) :—It is unfortunate that '<■ the note of what took place in the Divisional Court on the 27th of January, 1894, was not found until the conclusion of the argument in the Full Court. The fact that the order of Mr. Justice Drake was affirmed by the Divisional Court appears in the appeal book, but it does not appear that it was affirmed by four Judges, and the question was argued before us as if the interlocutory order was not binding on the full Court. My note as to the decision of the Court is: " Mr. Luxton argued, as I understood him, that the majority could not bind the minority at a meeting of the shareholders as regards these stores valued at $2,500.00, although such majority twice ratified the transaction, once at a meeting held on the 21st June, 1890, and again on the 23rd July, 1890, where the item of $2,500.00 was included in an account which amounted to $6,180.87, and which was ratified by directing an assessment for payment for the same. It may be proper to add that the distinct power of the majority to bind the minority, given by the Mineral Act of 1884, sec. 114, p. 695 of C. S. B. C. 1888, is emphasized by sec. 115, which says that: ' The result of the votes given shall be determined by the number of the full interests voted upon and not by the number of co-partners voting a* such meeting,' &e. Mr.. McCallum at this time held at least sixteen of the thirty interests in, the partnership, and so had a controlling interest. But I think Mr. Luxton cannot fairly be considered as arguing against what seems to me to be the very plain language and meaning of sec. 114, as well as of partnership law, but only to have meant that the purchase of this supply of stores for the partnership was illegal, and so much so that it could not be ratified as if foreign to the objects of the partnership; but it was admitted that the stores were all mining stores, and nothing else." It may be that if McCallum had started a line of stage coaches, or done some other imprudent act of that nature, Johnson would have been justified in urging the rights of the dissenting minority, and vigorously contesting the acts of McCallum. Even that would involve questions rather of joint stock company than of partnership law, and section 114 contemplates a partnership rather than a joint stock company, framed, as I will suppose, under the Joint Stock Companies' Act of 1862. See Ashbury Railway Company v. Riche (1875), L. E, 7 H. L. 653, where it was held that the objects of the company, as stated in the memorandum of association, must not be departed from. • MARTIN'S MINING CASES. [vol. I think for every reason we are bound by what the Divisional Court ~% has done, and that the decision of Drake, J., as to the item of $2,500.00 >uet. must be affirmed. However, another point was argued and much 'HTj 3 insisted upon, namely: that under sec. 126 of the same Act, McCallum was debarred from enforcing this claim. That section reads as follows: (Quoting). There seem to be many answers to this contention. In his evidence McCallum says: " I consider that on the 17th day of April, 1889,1 was the foreman of the Ophir Gold Mining Company, Limited, by the surrender of James Gray's f oremanship, by the acquiescence of the shareholders, and by the secretary of the company informing me that I represented the company, and could levy assessments for aU necessary expenditures. Also, that James Gray having surrendered his foremanship ... I remember Mr. Johnson saying to me (you are now the company, you have nothing to do but run the mine, and to levy your assessments on us for the necesssary expenditures, just as the Grays did before.'" And as to this statement it was said during the argument that there was no cross-examination on it. But there seems to be a direct answer on a broader ground, and it may be well to mention it. In section 126 and the other sections of Part VII., the term " company " is used indiscriminately with that of " partnership," or as having the same meaning.. The only exception is section 130, which refers to duly incorporated companies. The Ophir Company is only registered under section 121. Now, only a stranger could bring an action against a partnership, that is, claim " indebtedness" against it, and that before the Judicature Act only in a Court of law. A partner as McCallum was, could, on a dissolution after the debts of the concern were paid, obtain an account and reimbursement for his advances, and contribution and repayment to the extent that his advances had exceeded those of the other partners, but it is evident that in doing so he would avail himself of section 114, or rather the general law of partnership, and certainly not invoke section 126, which was inserted, as the learned trial Judge says, to protect the company against unauthorized persons pledging their credit. It had nothing to do with the internal management. It is, indeed, a startling contention that a member of a mining partnership, holding as in this case a controlling interest in the mine- cannot make advances prudently, even with the full consent of the majority, unless the foreman or agent duly authorized in writing, first sanctions the proceeding, and that without such antecedent sanction no ratification can be of any use; a doctrine which is regardless of the maxim omnis ratihabitio retro-trahitur et mandato priori oequi- paratur. We were not told what was to be done where there was no foreman or agent duly authorized in writing. In truth McCallum was really foreman, for Gray was to serve him in such capacity as Mc-; Callum "should by himself or his agents direct." Further I may 1.3 . McCALLUM I 211 add that there seems to be a clear case of estoppel as against E. M. 1397. Johnson, the only person really contesting the case, for the Ophir Jime 12- Bed Bock Flume Company did not attend or oppose the accounts. Full Coukt. The next point argued by Mr. Luxton was as to the sum of $1,- MoCkkight, J 188.00, "James Gray's wages, due by company for 1889." This charge of McCallum was ratified by the company in recognizing the account amounting to $6,180 87. McCallum's account of this is plain. \ He says the sum of $1,188.00 was not actually paid, but that sum re- , presents the amount of James Gray's wages for the year 1889, which j were hypothecated to him,McCallum, by Gray, under indenture of 17th April, 1889. This instrument might have been more simpiy drawn as an assignment of Gray's future wages to McCallum in trust really for his benefit. See Brice v. Bannister (1878), 3 Q. B. D. 569; Buck v. Robson, Ibid, at p. 691. The important thing is that it, or the issue of which it consists, was ratified by the company after audit. Indeed, it was stated during argument that the amount was not objected to, but that a separate action should have been brought for it instead of including it in the accounts, but the answer to that is that if the action could have been maintained for it, that j shews it was correctly included in the account, there being no doubt, as to its relevancy. The next point is as to interest, as found by the learned trial j Judge, and I think McCallum is entitled to such interest, subject as to the sum of $* 13.00, balance of the sum of $ 1,1 S8.00. after deducting $375.00 as previously mentioned, and which I shall deal with presently.. j Now, in Lindley on Partnership, p. 391, 6th ed., it is said that: "Sub- Iject to any agreement between the partners interest is payable on j money paid or advanced by one partner for partnership purposes be- jyond the amount of capital which he has agreed to subscribe," and the author refers to what is said by Knight-Bruce, and Turner, L.JJ., in Ex parte Chippendale (1854), 4 DeG. M. & G. 36, which binds us as the Judicial Committee points out in Trimble v. Hill (1879), 5 !App. Cas. 345. No doubt the author refers to Stevens v. Cook (1859), 5 Jur. N. S.T415, as an authority to the contrary, but perusal of that |case, with all respect, seems to shew the party claiming interest was pound by his contract of partnership to make the advances, and so was not entitled to charge interest as if he had made advances independently of any antecedent contract. Here McCallum paid money prom time to time for the benefit of the partnership, beyond the amount of capital which he had agreed to subscribe, or rather he agreed simply to buy shares, pay for them and no more, as I understand the case. If I am mistaken on this point the matter had better be spoken to on settling the minutes, as I think will have to be done >n dealing with the subject of interest on the sum of $813.00, which, together with the sum of $375.00, makes up the before mentioned sum MARTIN'S MINING CASES. [vol. Tu8e7i2 of'$1.188.00. I confess I do not see how McCallum can charge interest ' ■ on this sum of$813.00 in tie character of advances made by him to the Full Court, company, within the rule laid down by Lindley. No doubt the whole MoCrbight, J $1,188.00 was his by assignment from James Gray, and as such recognized by the company, but I do not see that he advanced more of this for or to the company than the sum of $375.00 which he paid by different sums to James Gray. The whole sum of $1,188.00, the wages of James Gray for the year 1889, was. assigned to McCallum " to be devoted as far as can be to defraying any assessment calls and expense of the said Arthur E. McCallum in respect of any interest he may now or hereafter hold in the said company during the season of 1889." I should gather from this provision, coupled with what McCallum says, that he did not advance to the company or on their behalf (for of course it is unimportant what he advanced on his own individual account), more than the sum of $375.00 out of this $1,188.00, and if so he should not charge interest on the balance of $813.00 as advanced to or for the company. This question may be spoken to on settling With respect to the costs as awarded by the learned trial Judge by the decree of the 12th February, 1896,1 think he is right in directing that E. M. Johnson should pay the costs of McCallum, subsequent to the decree of 18th December, 1891, except the costs of preparing and filing the accounts of McCallum. The learned Judge says that the Ophir Bed Bock Flume Company did not attend or oppose the accounts, and Mr. E. M. Johnson, a shareholder in the said mine, did, and he, Mr. Johnson, moved that the Begistrar's certificate as to the accounts referred to him by the Court be disallowed. He seems to have been the cause of all the costs subsequent to the decree of December, 1891, and as Sir George Jessel has said that one principle upon which costs are given is that he who causes expense should pay it, I do not see that the learned Judge could make a more correct order as to costs than what he has done. Tt is much to be regretted that this litigation has been protracted for many years, as there was no point of difficulty to warrant the repeated appeals, and after having spent much time on the case, I cannot say I have observed any difficult point of law in it. The costs of the appeal must, of course, follow the event. Appeal dismissed. LL MINES 00. . Hall Mines Co 3E action brought under the Mineral Act of 1891, "Acts. The action was commenced in the County Co uary, 1896, and was afterwards transferred to the Sn&rj lintiff, Mary Jane Aldous, was the owner of the mine n, located in August, 1894, and the afiidavit leading to im was made by her husband, George Aldous. The 1896, and after hearing the evidence it was ordered to stand over tor -argument, which subsequently took place on 27th February, 1897. After plaintiff's ease was closed, and during the argument on defendant's motion for non-suit, Mr. Wilson asked leave to call a witness to <rir6#e" blazing," but to this Mr. Davis objected, on the ground that ■it would be opening the door to perjury. His Lordship sustained the objection. Wilson, Q.C, for plaintiff. Davis, Q.C, and Bowes, for defendant. Cur. adv. rult. April 2nd, 1897. Walkem, J.:—This ease is one of an " adverse claim " brought Judgmer under the laws relating to minerals (other than coal) which were in w^kem, force prior to 1896. The mineral ground in. dispute may be shortly described as an " overlap " In the locations of each of the parties. . MARTIN'S MINING CAS: The defendant's c ings, after the filing • County Court, they w< diction" within the n tiff's proceed- | •ought in the| npetent juris- - al Act, 1888. ith of d plie *he i Mil al Act ch. the bias seems to be unanswerable. Section 3 is as follows: (quotes section). The foundation, or root, of title to a mineral claim depends, save in the case of a Crown grant, upon a proper location being made, that is to say, a location made in accordance with the rules prescribed in the Mineral Acts by the Legislature. The plaintiff's alleged location was made in 1894, and is, consequently, subject to the provisions of the Act of 1893, which I have quoted above. No evidence was given on her behalf that she had complied with, the above requirements (as to marking location line.) The plaintiff's counsel, virtually, asks me to expunge this provision from the Act on the ground that the words, (i When the claim has been located " must imply that a location sufficient to satisfy the r has 1 lpo i made ed with, the requirements of section 3 have dis ith rflu oft Legi it will be observed, refers the word " located " w< of the "location line" to that line as being the " location line," and mid seem to have been used as a consequence having been decided upon. One can, in an ordinarjr sense, decide upon, or speak of a location, but to acquire possession of it is quite a different thing. The importance attached by the Legislature to the intermediate staking, or in the alternative, blazing of the location line, so as to confer the possessory right I allude to, is obvious from the fact that^ the words " so that such line can be distinctly seen " are twice repeated' in the regulation we are considering, and in my opinion, that regulation cannot be dispensed with. The result is that the plaintiff's or claimant's case must be dis-' missed with costs. From this judgment the plaintiff appealed oi the grounds amongst thers, that \ he Judge erred in refusing to r< ceive eviden re of the dazing of the line, and that blazing of the Une 3 1 and 2 s not impera rive nor a condition precedent, an 1 forms-no p irt of the ocatiOn and location complete without it. The ippe C. J., McCreight and McCd Wilson, Q.C, for appellant. Davis, Q.C, for respondent. tth May, 1897, before Davl McC purpose < mam li attentk of the E 2nd ed. Pi " his rigl is still the poini performs udgment of the Court was delivered by eight, J.:—This was an action of trespass brought for the if enforcing an adverse claim under the Mineral Act of 1891, ed by chapter 32 of the Act of 1892, sec. 14, sub-sec. 2 and it Acts. The learned trial Judge held as the plaintiff had i that she had complied with the requirements of section 3 .ineral Act of 1893, ch. 29, in the matter of defining her i by posts or the blazing of trees, she could not recover. His does not seem to have been drawn to Order XIX., Bule 14 preme' Court Bules, of which it is said in Odgers on Pleading, at p. 64: "Although it is not any longer necessary for a to plead the due performance of all conditions precedent to of action, yet the burden of proving the due performance u him, if the defendant specially plead no performance." lie statement of defence there is no plea referring to the de- the main line by posts or the blazing of trees, for paragraph says that no adverse claim as required by the Mineral Act, , has been filed herein, and Odgers further remarks, referring XIX., Bule 14, at p. 64, that the party who desires to contest rmance or occurrence of any condition precedent must raise specifically in his pleading, and neither party need allege the ace of any condition precedent. Our attention was called i Ordc Hall Mi ade bj lenced XIX., Bule 14, and I don't understand 3 Company, now to rely on that point, the ratio decidendi of the learned trial E the Mines Company. He, Mr. Davis, ull Court to the points which he raised tement of defence, namely, that there y plaintiff through want of an affidavit, y the plaintiff, Mary Jane Aldous—and her husband was useless; and that the within the required time, or any became necessary, as the case was re- lrt, which he contended had no jurisdic- The first point as to the absence of an ag the claim, that is, Mary Jane Aldous, s to section 14 of the Mineral Act, 1891, MArTtTlN'8 MINING [VOL. impe jctly 1892, to be formidable, but I think Mr. Davfe :didj| rend to section 10 of the Mineral Act of 1891, Amend-! I 3, which amends the section of the Act of 1892, and in the proviso to the section: " Provided, however, se claim has in the opinion of the presiding Judge ade, notwithstanding that the same may have beenf i, the same shall nevertheless have legal recognition» and effect shall be Now surely the misi thereto, according i t having the affidavii the reof.'; iade by the husband instead of by the wife, appears to fall within the purview of this proviso, and the attention of the learned Judge should have been called to the question of whether the adverse claim had been bona fide made or not. I think there should be a new trial on this ground. The policy of the Legislature, judging fr6m section 16 (d) of the Act of 1896, and see the Act of 1897, seems to continue unchanged in this respect. I had rather give no opinion on the point as to whether the County Court had jurisdiction, but I may call attention to the circumstances that Mr. Davis' objection that an action of trespass can't be brought, unless the plaintiff gets a Crown grant, seems to. be met by section 34 of the Mineral Act, 1891, which says that the interest in a mineral claim shall be deemed to be a chattel interest, and that sec. 149, sub-sees. 4 and 5 of the same Act must be read with the sub-sec. 34 as well as with sec. 14 of the Act, 1892, sub-sec. 2. As to when trespass can be maintained (and sec. 149, sub-sec. 4, seems to contemplate that it can be brought in the County Court), see Cole on Ejectment, and when preferable to ejectment, see pages 73, 74 of the same book. I may add that sec. 14, sub-sec. 2, of the Act of 1892, contemplates proceedings, &c, to determine the question of the right of possession and the prosecution of the same, &c, to final judgment. And that after judgment the person, &c, entitled to the possession of the claim, may file a certified copy of the same, &c. And after the . filing of the judgment, and upon compliance with, &c, such person shall be entitled to the issue of a certificate of improvements in respect of the claim or the portion thereof which he or they shaU atiaK-I from the decision of the Court to rightly possess. McGinnis v. Jwm I (1884), 15 Morr. 329, for the reasons apparent in the judgment at the end of pages 339 and 340, is not applicable to a case under our laws. The United States legislation is different from ours. POT^J wish to be understood as expressing an opinion in favour of Mr, refc son's contention that the adverse claim may be enforced by an actum of trespass independently of sec. 14 of the Act of 1892 (although it seems it may be enforced by that action under that section), for it may be urged that the Legislature could not have intended that the limits of time mentioned in that section should coexist with those fixed by the Statute of Limitations, or the rules of proceaS^Rj f ' -L] ALDOUS v. HALL MI ss. lnde „ESUO. 217 Si "e thcSS 1 1 E n of the p For the a ublication inSTne1 c filed d pre- F Myl3. ceding sectio ioncd, that is, in sec. Act of 189 1, or a M Ulkrh J period of six ty day s, , Again, t he Statute of 1891, sec. 34, gi i- tin' miner a righ t or ii tercst in hi 3 claim w iich he ha unmon law, and as a reme< ly for breac l of that right in a case like t le pre- sent of an ad verse c lain) given iy sub-sec d 48 of th e same Act, coupled with see. 149, su b-sccs 4 a nd 5 of tl e same A t, and sec. 14 of the Ad < f1892.to b e road in 37 of the Act of 1891, it shou scribed by tl e Act n0fi8nieap roccdure 1 y way of i ^ulso'rr1 ee the language of Mr. J istice WiUes in The 1 Volverhamp ton N. W. Co. v. HawTcesford Lc^of , 28 L. J., ( 1 P. at p. tSEm There biiity not exi 'he third cl re the sta particular0 for enforcin c. &c, and as with respect to that class it has been always mid, t tresp -Mi pt the f orr of the n medy by an advers it that > claim ibed by sec. 14 of the Act of 1892. I have made ?&§&.Tcmarks as they refer to points alluded to in the argument, and ■j^ent of the learned trial Judge cannot stand, and that there must he may be advised, tfosts of the first trial to abide the result of the and the Judicial Committee in Trimble v. Hill (1879), 5 App. Cas'. ?342,'say we should follow the law as laid down by them, and see Annual Practice of 1896, p. 1050, and Goddard v. Jeffreys (1882), 46 L. T. N. S. at p. 905. New trial ordered. MmPursuant to the order of the FuU Court the case came down for .trial at Nelson, on 26th October, 1897, before Walkem, J., who dismissed the action in the foUowing judgment: Walkem, J.:—The plaintiff in this adverse claim is a married woman living, as I gather from the evidence, out of the jurisdiction, and in that sense, apart from her husband, who took out a mining .license for her, and has kept it renewed ever since. Under the mineral laws of those years he located the mineral claim in dispute in her 18 nam e, and, a 3 he st MA ates RTIN'S I as her dINING OASES. ±b such he ha s also bro ught JulyL ■ this adverse claim on m affida di of ve rification ma de by hin self. Full Coi HT. Thi 5 affidavit is obj ecte d to on t he grour d that, accor ling to se r. 14 Walkem 7t of*? Act le Miner al Act ild I amende made bj 1 by sec. 10 Df the Mi mral of the so-ealled reasonable par I cannot accede to the proposit sectic of - rrson or pe would seem to have beer . Statutes of the United Sti to be filed shall be on the 'ollows: " Whe he ited States Court^i m an agent's oath 3 Act, which it did XLV.. Bule 1) pr aff davit of the " p tly been held by Wh langu clei The plaintiff's claim to a strip of groun plan produced at the trial, was abandoned , the affidavit of Mrs. Aldous, is wanting. The dis Action dismissed, with c Teoup v. Kilbouen: (5 B. C. 547.) Motion to set aside ceedings thereunder, an appear from the judgn 4. E. McPMllips, £ Gordon Hunter, con, i the action and all proclaim. The facts fully August 19th, 1897. Drake, J.:—The plaintiffs on 20th March, 1896, commenced an action against the defendant, being in the nature of an adverse under the Mineral Act. The adverse claims were filed at New Denver, West Xootenay, on 25th February, 1896, and affect the Ajax and Treasure Vault claims. The writ in the action has never been served, "and by Bule 31 is no longer in force, and there is no action pending in the €ourt. The dcfuAmt. on the 10th of August, moved to set aside the writ and proceedings, and applied to vacate the adverse claims. Proceedings which are non-existent cannot be set aside, and vacated. The Mineral Act Amendment Act, 1892, sec. 14, enacts that a failure to commence or prosecute proceedings by the adverse claimant, shall be deemed to be a waiver of his adverse claim. It is clear that the adverse claimant has waived, by non-service of process, all rights given him by the Mineral Act to stay proceedings of the mine owners in applying for a Crown grant, but the Act does not point out how such waiver can be taken advantage of in case the Becorder does not cancel the claim. In this case there has been no application to him. I do not see how I can make an order in this motion which is entitled in an action practically defunct. The Court can only deal with proceedings entitled in an action which is pending. If there is no action pending, but the assistance of the Court is required, it has to be applied for in some other way. It is to be noted that the notice of adverse was not filed in a pending action, but as a proceeding taken prior to an action, differing in this respect from a lis pendens, which can only be filed after action is brought (a). The motion must be refused, but, under the circumstances, without costs. Motio i issed. Note.—But see et, 189G, sec. 87 a As to lapse of i MARTIN'S MINING CASES. The defendant was convicted before t Held, That a contravention of the ame ment of Chinamen was not made a penalty is imposed and that the pen? reasonable construction which the w. The Interpretation Act, sec. 8, sub-sec vention of any Act which is not mad* misdemeanour and punishable accorc Application by Francis Dean 1 Colliery Company, for a writ of certio conviction had before two Justices of sec. 4 of the Coal Mines Begulation A Coal Mines Begulation Amendment A $100.00 iti respect of the offence charg tion were that the employment of Chii by the Act, and also that the prohibit in coal mines as provided was unconsf Provincial Legislature as being an in quash his ployment of the applica- ade ar offence from working s of the nd their rights l Robert Cassidy, for Gordon Hunter, cont lisPr Cur. adv. vyM A.—" No boy under the age of tw shall be employed in or allowed t ne to which this Act applies below Drake, J.:—A rule was obtained in two cases which are exactly ] similar, except that the Chinamen employed are different. The grounds of the rule are that the convicting Justices had no jurisdiction; that the Coal Mines Begulation Amendment Act, 1890, was ultra vires of the Provincial Legislature; that the employment of Chinamen in coal mines underground is not made an offence by the said Act as amended, no penalty being provided. The rules in both these cases must be made absolute and the convictions quashed, and all moneys paid bv the defendant in respect thereof must be returned. The employment of Chinamen underground is forbidden by the Amending Act, 1890, but any such employment is not made an of- . fence under the Act, for which any penalty is imposed. Section 12 of the Coal Mines Begulation Act, C S. B. C. 1888, states in detail the several breaches of the preceding sections which shall be considered as offences against the Act; the employment of Chinamen underground is not one of such breaches which is to be treated as an offence against the Act—sections 13, 15, 18, 19, 54, 57, 71, 79, and some others. AU deal with particular cases, which are to be treated as offences against the Act. The Legislature has been very careful in the enumeration of these various breaches for which penalties under section 95 can be recovered. A penal Act should not be extended beyond the reasonable construction which the words used will bear. The statute has prohibited the employment of Chinamen underground, one effect of which would be that in ease of breach of contract damages could not be recovered. The Court is asked to read into the Act a penalty which does not exist. The Interpretation Act, C S. B. C. ch. 1, sec. 8, sub-sec. 21, was cited as supplying the want. That section says: " Any wilful contravention of an Act which is not made an offence of some kind, shall be a misdemeanour and punishable accordingly." Independent of the question whether the Provincial Legislature can, in view of the British North America Act, pass a penal law of this character, the' language used clearly cannot be invoked to supply the want of jurisdiction in the Justices. It has the contrary effect, and conclusively proves that the conviction in question was beyond the jurisdiction of the Justices. This being so there is no need to discuss the question of ultra vires of the Provincial Legislature in passing the amendment to the Coal Mines Begulation Act. If it was necessary I am bound by the opinion of the Full Court, which has the effect of a judgment, although only given at the request of the MARTIN'S MINING CASES. . [vol. , Lieutenant-Governor-in-Council. It is not usual to give costs in questions where on certiorari the conviction is quashed, so there will r- be no costs. Conviction quashed. From this judgment the Crown appealed to the Full • Court, and I the appeal was argued before Davie, C.J., Walkem and Irving, JJ., on January 28th, 1898. Gordon Hunter, for the appeal. Robert Cassidy, contra. Per Curiam:—We think the judgment of the learned Judge appealed from is correct, and we think the appeal should be dismissed, but that costs should not be ordered against the Crown. Appeal dismissed without costs. Act, 1890, ante, p. 116; NAIMO RY. CO. v. NEW VANCOUVER COAL CO. Esquimalt & Nanaimo By. Co. v. New Vancouver Co (6 B. C. 194.) Practice—Coal Mines—Inspection of—When Ordered—Order, Fc Rule 417. Where defendants admit working within the area of certain coal fields clai by the plaintiffs, the plaintiffs are entitled before pleading to have inspec by their own agents. Form of order considered. Appeal to the FuU Court by the defendants from an order of | Walkem, J., allowing the plaintiffs to inspect before the delivery of pleadings all the workings of the defendants under the sea in Nanaimo Harbour. The plaintiffs' claim was for trespass and taking their coal from under the sea opposite their lands at Newcastle Town- site, Nanaimo District, and for inspection of the defendants' workings under the sea opposite said lands, through the pits and works of the defendants in their colliery at Nanaimo, in order to ascertain how far the defendants have worked into the plaintiffs' coal, and the quantity of coal got by them. Plaintiffs moved for an order for inspection of the defendants* workings in order to ascertain how far they had worKed into the I plaintiffs' coal and the quantity of coal got out by them. The motion was argued before Walkem, J., on 2nd February, 1898. Pooley, Q.C, and Bodwell, for the motion. Helmcken, Q.C, and Hunter, contra. Cur. adv. vult. February 3rd, 1898. Walkem, J.:—The plaintiff company claims to be the owner iunder Dominion and local legislation known as the "Settlement Acts," and under a Crown patent issued conformably to these Acts, I of all the coal beneath Nanaimo Harbour. There is no dispute between the plaintiff company and the defendant company as to the place under the harbour from which the latter company is i pairing out coal, but the plaintiffs ask for an order for inspection, hav- png commenced legal process against the defendant company for the purpose of asserting its title to the coal lands in question. I think. MARTIN'S MINUS [vol.. in view of the case of Bennitt v. Whitehouse (1859), 29 L. J., Ch. 326, ' the plaintiff company is entitled to the order asked for. The mere - • admission of the defendant company that the work is now going on, ; is not, in my opinion, sufficient reason for refusing the order, because J the plaintiff company is entitled to know the extent of the work which | has been done, and the. manner in which it is- -being done, for coal companies may have, economically speaking, different views with J regard to the method of working their mines. The order can do the defendant company no harm beyond what can be compensated for by the plaintiffs' counsel undertaking to pay any damages that may be-| suffered by reason of the order being made. The order might follow the terms of the order in the case cited, but the number of surveyors and other persons to make the inspection ought to be limited, and this can be done on settling the minutes of the order. Mr. Pooley has^ asked for the privilege of using eight (8) persons for making the inspection. There ought to be also a provision, either as a term of the order or an undertaking of counsel, that none of the information acquired by the inspection will be used except for the purposes of this action. Of course the plaintiff company must, pay their own inspect tion expenses and the expenses of any men from the defendant company's works who are either made use of in course of the inspection or thrown out of work while the inspection is being made. The minutes of the order made were as follows: " And the plaintiffs by their counsel undertaking to abide by any order thisj Court may make as to damages in case this Court should hereafter be of the opinion that the defendants have sustained any by reason of this order or any: ' thing done thereunder by the plaintiffs which the plaintiffs ought to pay, and ' counsel aforesaid, further undertaking that any information obtain! used b f this a also to make such me dicate the locality of rence to the surface of the f of the purposes aforesaid From this ore the grounds that admitted mining appealed to the Full ecessary, the defendam area claimed by the ] £] ESQ RX. CO. v. NEW VANCOUVER COAL CO. that the plaintiffs were not entii ;the situs of the defendants' wor! if the plaintiffs failed in the acti the defendants by reason of the defendants which the plaintiffs the order appealed from. An appUcation was made to .Which was refused, and as no re£ take place before the time named Bitting of the FuU Court was ma The i and Dra] Helm neal ^ llR irgued 7th Februar ta, J J. led at this stage to know more than rings within the said area; and that m irremediable injury would be done i information as to the business of the vould be able to obtain by reason of stay proceedings pending an appeal, ular sittings of the Full Court would for inspection, an order for a special le on application to the Chief Justice. 1898, before Davie, C.J., J.C., and Hunter, for the appellants: The cases where inspection has been allowed are all cases in which the locus in quo of the working was in dispute, but not cases in which the title was in dispute as here. The plaintiffs should first establish their title, and then they may be entitled to inspect the amount of coal got out; otnerwise if they fad the parties will, have been put to useless expense, and gross injustice may be done the defendants by allowing the plaintiffs to inspect their property. An order for inspection at this stage is not necessary, as the defendants admit working at the point indicated on the plan, but deny title of plaintiffs to property. Assuming, however, that the Court considers it necessary for the purposes of justice that it should have this information at this stage, it ought to procure it through the medium of an indifferent responsible person who should give an undertaking not to reveal any information to any person without the authority of the Court. He referred to Batley v. Kynock (1874), 19 Eq. 90; Bennitt v. Whitehouse (1859), 29 L. J., Ch. 326; Ennor v. Barwell (1860), 1 DeG. F. & J. 529. Pooley, Q.C, and Duff, for the respondents: There is absolutely do Umit to the power of the Court under Bule 514, and by Bule 517 an order for inspection may be made at any time after issue of writ: Smith v. Peters (1875), 20 Eq. 511. The plaintiffs'want to ascertain the quantity of coal extracted, and if inspection is not allowed at once the sea may break in, and thus ! all means of ascertaining how much coal has been taken out would I be gone: Lewis v. Marsh (1849), 8 Hare 97; East India Co. v. Kynaston (1821), 3 Bligh 0. S. 153; Earl of Lonsdale v. Curwen ! (1799), 3 Bligh 0. S. 168; The Attorney-General v. Chambers (1849), | 12 Beav. 159. Where the boundary is in dispute inspection is ordered as a matter ■ of course: Cooper v. Ince Hall Company, W. N. (1876) 24. MARTIN'S MINING CASES. [v< 1898. It is not necessary to shew a-ynma facie case of title, but only that I February 7. ev^enee necessary to prove the plaintiffs' case at the trial may be lost J Poll Court, xrniess inspection is ordered: Velati v. n-"'"— /'-i«wi ac > C. P. 415. i (1877), 46 L. J., Judgment. per Curiam :—The Court is unanimously of the opinion that the plaintiffs are entitled to have inspection made of the defendants' workings, but the terms on which the inspection will be made will be varied so that the defendants' interests will be better safeguarded. The parties wUl have one week to arrive at terms on which the inspection should be made, and if they cannot then agree the Court will settle it. We are inclined to adopt the argument and cases cited by Mr. Hunter, shewing that inspection is only granted when necessary to forward the plaintiffs' case, but from the special circumstances of this case we think this inspection is warranted, for without any fault on either side the evidence may be entirely lost and destroyed, suc}i as by the accidental flooding of the mine, unless the inspection is made at once. Every precaution must be taken so that no injury will result to the defendants. If the Protection Island shaft is open, the inspection should be made from that way. Order ed. The minutes of the order as finally follows: " And the plaintiffs, by their counsel afore information obtained by them through or b; inspection, shall not be used or disclosed by this action only. Ordered, That the said order are entitled to have inspection made of that nnder the sea, in the harbour of the City of Indicated by the dotted lines in the blue prin of this Court and marked Exhibit " C " to the the 2nd of February, 1898, and duly filed; an said mine measured and dialled, and to have a ings of the said portion of the said mine, and removed from the disputed area. " That the persons to make said inspection, shall be the foil settled by the Court, were as ;aid, fur Vici ; F. C. i handed in to the Court; M CREELMAX v. CLARKE et al. The plaintiff by his agent having, in going over the ground in April, 1896, discovered that there were two locations of the claim, he accordingly made enquiries at Midway and found that there no abandonment had been recorded. He, therefore, determined to take up the ground, and in pursuance of that determination the day after Eobert Clarke's record ran out, viz.: 21st August, 1896, took up the ground as the Little Pittsburg, and recorded his location on the 3rd September, 1896. He caused his assessment work to be done and recorded the same on the 19th June, 1897. The plaintiff on the 21st October, 1896, commenced this action. His contention is that as the defendant, Eobert, did not record his abandonment, the ground was not open on the 20th December, 1895, and that Ellen's location was, therefore, invalid, and that as he located the ground as soon as it ceased to be " live, ground" lie .alone is entitled to it. From this it will be seen that the case turns on the validity of Ellen's location. The plaintiff relies on a passage in the judgment of McCreight, J., in Nelson & Fort Sheppard Railway v. Jerry (1897), 5 B. C at p. 421, ante, p. 161,." sec. 27 prescribes the proper method of abandonment by giving notice in writing of such intention to abandon to the Mining Beeorder." I would draw attention to the fact that in that decision the learned Judge inferentially points out that the doctrine of surrender by operation of law may, in certain cases, be applicable to mineral claims— and I am not at all sure that the defendant Ellen's claim could not be supported under that doctrine—the doctrine in question is defined in Phene v. Poppewell (1862), 12 C B. N. S. 334. But be that as it may, I propose to deal with this case upon the grounds relied upon in argument. In Pellejit v. Almoure (February, 1897, not reported*), Drake, J., decided that the plaintiffs in that action were not entitled to the Anaconda mining claim as the faces of their stakes were on two sides five inches and on the other two sides three inches. And although alterations have since been made in the Mineral Acts, the rule remains the same, the posts to be legal posts must be of the size prescribed by the statute. I find that the first and second stakes erected in August, 1895, were insufficient, and the first location was therefore bad. Now, in a proper case, that is to say, an action in which a claim was being jumped, on account of the stakes being too small I could (if satisfied that there had been a bona fide attempt on his part to comply with the law), relieve the defendant under the amendment made in 1896, reported s . 134. The MARTIN'S MINING CASES. [vol. iow sub-sec. (d) of sec. 16 of the Eev. Stat. ch. 135. But this is not n action of that sort at all, and further, that the defendant does' not to be relieved. ntiff, to upset Ellen Clarke's locations, relies on two sec- . tions of the Mineral Act, viz.: sees. 10 and 27 of 1891. I have already pointed out that Eobert Clarke's location was in- - valid, and it seems to me to be plain that sec. 27.can only apply where a man has a vaUd claim, or perhaps where he has an insufficiently staked claim, and has obtained a certificate of work. I think it would have been wiser for him to have abandoned his claim in the manner pointed out by statute, but his failure to do that is not to prejudice the r'ghts of Ellen Clarke. It seems perfectly clear that Robert Clarke having notified her that he did not occupy the land, she was entitled to go. upon the ground and locate the claim covered or intended to be covered by his stakes. In any action for the possessionI of the claim as against her, in those circumstances, he could not succeed. In order that I may not be misunderstood, I add that under other circumstances he could hold his property by showing that he bona fidet attempted to comply with the law, &c. Before the abandonment clause (originaUy Mineral Act in 1891) was passed, it was quite i to abandon his claim. In each case it was a question of intention to be inferred from the facts of the particular case of Monson v. Boehm (1884), 26 Ch. D. 405. It was inserted so as to enable a free miner, to throw up his claim and take another on the same vein or lode: without such a clause he was liable to find in an action brought against him that he might be charged with having two locations on the same vein or lode, and he might have some difficulty in satisfying the Court, what his intention was. The section was originaUy intended to f aclli- tate a free miner in his prospecting, i.e. to get rid of something he did not want and obtain something he did want. The recording of, the intention to abandon was for his benefit, but in this case the plaintiff seeks to employ the section in a different way. He says that unless^: there is a formal abandonment in writing the land remains locked up, and he cites the passage from Nelson v. Jerry in support of that contention; cf. Readhead v. Midland Ry. Co. (1867), L. E. 2 Q. B. 419. The passage cited, if taken alone and without reference to the particular facts of that case, I admit, gives colour to the plaintiff argument, but neither the sections relating to abandonment nor the passage in the judgment referred, lay down that where there has been, an invalid location there must be a recorded abandonment in writing If a miner has unfortunately staked his claim with insufficient stakes he would, if he desired to hold it, be acting wisely if he recorded the introduced ir iossible for a i the I.] OREELMAN v. CLARKE et al. abandonment in writing and obtained permission to re-locate, but I think he might also rely on the amendment (d) of sec. 16 of the present Act, or upon the healing provisions of sec. 28 of the same Act. With reference to the passage cited, I would point out that there that Full Court held that the Zenith claim was a valid location, and further, that Drake. J., at page 437, speaks of the claim as being a subsisting claim " so far as the Crown was concerned." This case is a very peculiar one; we find that certain sections introduced into the Mineral Act for the protection of mining men honestly carrying on their work have been misunderstood, these sections were intended to be shields to protect the locator in holding his property— they are in this case made weapons of attack. It is true that the sections of the Act relating to the location of claims must be construed etrictly, and on the other hand full effect to the remedial clauses should be given, but it was never intended that the insertion of the remedial clauses was to impose additional restrictions on the prospector. The judgment will be that the plaintiff's action be dismissed with costs to both defendants, and on the counterclaim judgment will be entered for the defendant Ellen Clarke, with costs, declaring that she is entitled to possession and injunction restraining the plaintiff from interfering with her mining claim. There was no occasion for tlie defendant Eobert Clarke counterclaiming, and so far as he is concerned the counterclaim will be dismissed with costs. m, ante, p. 71; Pellent 9; and sees. 32 and 108 s to abandonment genen Judgment accordingly. >andonment: see Granger v. Fother- mte, p. 134; Dunlop v. Haney, post, al.Act, R. S. B. C. cap. 135. > Mauley v. Collom, post, p. 487, list MARTIN'S, MINING CASES. Dunlop v. Haney. Practice—Parties—Adverse Action—Joinder of Defendants—Ejectment—Claimants to same Mining Ground. All claimants under the Mineral Act to any part of the ground covered by the mineral claim of a plaintiff may be made defendants to an action by him to enforce his adverse claim against any one of such claimants. ■ Decision of Walkem, J., affirmed in part. Appeal from an order of Walkem, J. The application was by the defendant Haney for an order striking out his name as defendant as being improperly joined, or in the alternative that the plaintiff elect which defendant he would proceed against and that the action be dismissed as against the others. The action was by Alexander Dunlop, as administrator of Thomas D. 'Dunlop, deceased. The statement of claim alleged that Thomas D. Dunlop located the Pack Train mineral claim, situated in Trail Creek Camp, in August, 1890, and died on the 17th December, 1890; that to the time of his death he had represented the claim according to law, and that the defendant Fitzstubbs, as Gold Commissioner, took possession of the claim as administrator, and thereby dispensed with the performance of work thereon ; that letters of administration were granted to the plaintiff on the 2nd July, 1895, and that since that date he had duly represented and performed the required assessment work on the claim; that the defendants Haney, Clark and Spellman, or their predecessors in title, at different times subsequent to August, 1890, each acting independently of the other, staked out claims known as the Legal Tender, Olivett, Copper Chief, and Legal Tender Fraction, all of which claims were alleged to cover the same ground as the Pack Train. The defendant Clark had applied for a certificate of improvements, but none of the other defendants had so applied. The plaintiff claimed to adverse Clark's claim, a declaration of title as against all the defendants, an injunction, and delivery up and cancellation of the records of the claims of the defendants Haney and -Spellman. Barnard, for the application: The.plaintiff cannot join all these defendants in one action, as his cause of action against each one is different. They are not joint tort-feasors, for the acts of trespass are all separate and were at different times. Gower v. Couldridge (1898) 14 T. L. E. 165; Smurthwaite v. Hannay (1894), A. C 494, anf'• Sadler v. G. W. Ry. Co. (1896), A. C 450. Lawson, for the defendant Clark. White (Eberts & Taylor), for the plaintiff, contra. February 28th, 1898. Walkem, J.:—This summons is to strike out Mr. Haney's name, ] on the ground that he is improperly joined as a defendant. The statement of claim alleges that the plaintiff located the Pack Train mineral claim, situate in Trail Creek Camp, in August, 1890, and that he died on 17th December, 1890, and that the defendants Haney, Clark, and Spellman, or their predecessors in title, at different times subsequent to August, 1890, severally located the same ground claims as the Legal Tender, Olivett, Copper Chief, and Legal Tender Fraction. The defendant Clark has applied for a certificate of improvements, but none of the other defendants have done so. The plaintiff's action is in the nature of an adverse claim against Clark, and he asks for a declaration of title as against him and the other defendants, also an injunction, and the delivery up and cancellation of the records of the Legal Tender, Olivett, Copper Chief, and Legal Tender Fraction. It was contended by the applicant (Haney) that the cause of action alleged against the defendants were separate and independent tortious acts, and that the case came within the decisions in Sadler v. Great Western Ry. Co. (1896), A. C 450, and Smurthwaite v. Han- nay (1894), A. C 494. I first decided that Haney's name should be retained as being one of more incumbrancers on the land in controversy; and I made an order to that effect, which is about to be appealed from. Since the making of the order I' have had occasion to consider a similar point in an adverse claim brought by Clark, the principal defendant herein against Haney and the present plaintiff, Dunlop; and I held in the final judgment in that action that the applicant for a Crown grant under the old law is the only person who could properly be made a defendant in an adverse claim, as such a claim could only arise in consequence of the Crown grant having been applied for. The same ride, in my opinion, applies under the recent Mineral Acts, where a certificate of improvements is applied for, for adverse proceedings are made applicable to such a case. The cause of action in this case is the application by Clark, to which Haney is no pariy, for such a certificate. Haney's name should, therefore, contrary to the view I first took of this matter, be struck out. Adverse claims should, as a Tule, be brought for the possession of the mineral ground in controversy, that is to say, by way of ejectment: Becker v. Pugh (1887), 13 Pac. Bep. 906. Application dismissed. MARTIN'S MINING < ■ From this judgment the defendant Hai was argued before Drake, McColl, an May, 1898. A. E. McPhillips, for the appeal. W. J. Taylor, contra. Ma )th, 18: Drake,, J.:—The plaintiff issued his writ on the 19th June, 1897, and his statement of claim on the 24th June. After setting out his own title to the Pack Train mineral claim, he alleges that the three above-named defendants staked and recorded three other claims over the Pack Train ground. Their rdcords and staking were independent of each other, and no joint claim by the defendants is alleged. The statement of claim nowhere alleges that Haney now asserts any claim'- to the land occupied by the plaintiff. No defence has been put in by any of the defendants. On 15th February, 1898. a summons was taken out bv Haney, asking that he be struck out of the action as being improperly joined. The pie* right of lisputed t nd 1 ght of a clai ad j that under the Mineral Act,'. adversing was limited to one to obtain a certificate of imp commenced until the advertisemen pubUshed. On a careful considera the Act I do not think that there is any bar to a party bringing an. action with reference to a claim at any time prior to the appUcation for a certificate of improvements. If he does not do so within sixty,- days after publication in the Gazette, his claim is barred for ever. The right of action exists independent of sec. 37; if we were to hold . otherwise, a claimant might be unable to have a settlement of his rights until someone applied for a certificate of improvements. Prior to the Judicature Act ejectment could only be brought by a plaintiff with a legal title. Now. the plaintiff is entitled to the same reUef on an equitable title that the Court of Chancery would formerly have given. See General Finance, &c, Co. v. Liberator Building Society (1878), 10 Ch. D. at p. 24, but the distinction between equitable and legal titles, is not abolished (Clements v. Matthews (1883). 11 Q. B. D. at p. 814). I remark on this because I think the action for possession of land is not identical with the old writ of ejectment, and under the Mineral Act the perso damages for advi clai defendants furthe . i statement of of action by se question then •defendant reUe A. C 450. separate torts, his separate act: ^case is c land which a -belonging to Clark (1742) rule as follows you must hi make the d ■Small v. At) del )ilit all. prope pa The The Fm dif Atk. : "If any particular j Parties. This parties who cla that Haney asse a party. I think as b •appeal, with 1: the case of Sadler v. G. W. R. Co. (1896), McCoi was an action at law for damages for ach defendant was called upon to answer for spect of separate causes of action. The present class. It is to establish the' plaintiff's right to • of defendants claim in whole, or in part, as Are they properly made parties ? In Poore v. at p. 515, Lord Hardwicke states the general you draw the jurisdiction out of a Court of law rties before the Court who will be necessary to mi complete, and to quiet .the question." In 32), You. at p. 458, Lord Lyndhurst states the The object of the suit is the criterion whether s, or is not to be made a party. See Calvert on the rule, the plaintiff is right m joining all y right in the land; but as he has not shewn claims any right in the land, he is not properly both parties are wrong there should be no costs of this berty to the plaintiff to amend his claim forthwith. MoColl, J.:—The question discussed upon the appeal—though perhaps not clearly raised by the statement of claim—is whether an adverse claimant, who brings an action, as required by sec. 37 of the Mineral Act, may properly join as a defendant a third person claiming to be entitled to the claim, or some portion of it, under a separate location, the action being merely for a declaration of the plaintiff's right to the claim. It was objected for the appellant that the rights of such a defendant and a third party are so entirely separate that the joinder would be improper, and the cases of Smurthwaite v. Hannay, and Sadler v. <?. IF. Ry. Co., were relied upon. It is necessary to examine the Act for the purpose of ascertaining the exact situation created by it. Where such an action is brought, sec. 37 gives to a successful plaintiff the right to a certificate of improvements in accordance with the judgment. The certificate is made unimpeachable except for fraud, and entitles the holder to a Crown grant. The only condition attached to the successful plaintiff's right to the certificate is compliance with the requirements of sec. 36 as to survey of the claim, &c. The question to be determined is, how is the third party claimant to assert his right against the plaintiff? MARGIN'S MINING CASES. fendai Wha tiff reqr inst the ablish his may obtain it. Must he then limit his first action as suggested, and, if successful in it, contest the claim of every claimant separately ? If so, it is equally necessary for every one of the adverse claimants, how- nerpus, to contest the right of each of the others by a separate action. This, in many cases, would result in intolerable circuity of action, indeed, sometimes in an almost endless chain of litigation, for which the modern practice of the Court affords no parallel, and which | is as much- at variance with the express provisions, as with the manifest intention* of the Act to affdrd to the lawful holder of a minerafr| claim speedy means of obtaining a certificate of improvements and the Crown grant. The action is not on contract or for tort, but to establish the right to property, and inasmuch as the Act gives to the successful party the right to a Crown grant, whether he is otherwises entitled to it or not, why should he not be required on the one hand,-' and entitled upon the other, to have the question of title determinedly once for all? The reason for the decisions mentioned does not exist ' in such a case, and their authority, therefore, cannot apply. In actions respecting property the Court always permits all parties" I interested in the object of the litigation to be made parties, or to be represented, as, for instance, in actions to establish wills, or by way of interpleader. But apart from this, I own that I am not pressed' with the objection. Unless prevented by force of the statute, the duty of the Court is to det ermine t he rights o the parties under an, Act in a reasonable way, a ftd to ad apt and ap] nly the rules of Court; accordingly. These rules s hould, i vield to the Act, ancl not be allowed to control it With reference to the America n authoriti s referred to by Mr.' Justice Walkem, I think, v rith gre it deference that the radical dif- ference between the two ^ rstems o f procedure renders them unsafe^ Irving, J., concurred with Drake, J. Appeal dismissed without costs. OUTER COAL CO. Esquimalt & Nanaimo Bailway Co. v. New Vancouver Coal Company. ■aph of the plan under which the claim is advanced. Summons to strike out the following tiffs' statement of claim as embarrassing: " 3. The plaintiffs are the owners and occupiers of certain lands known as Newcastle Townsite, and of the foreshore rights in respect thereof situate on Vancouver Island and are the owners of the coal under the foreshore and sea opposite the said lands, and of the exclusive right of mining and keeping for its own use all coal and minerals under the said foreshore and sea opposite the said lands." There were no other allegations in'the claim to shew how the plaintiffs claimed title. Hunter, for the defendants: Particulars of the plaintiffs' title had been asked for and refused. We are entitled to full particulars of the title under which the plaintiffs claim. Phillips v. Phillips (1878), 4 Q, B. D. 127. Bodwell, contra: Where the whole interest is in the parties they need not shew from whom they derived title, but if it is a lesser estate such as a lease or an estate in tail it may be necessary to shew from whom the estate is derived. See Odgers on Pleading, 3rd ed., p. 108, and Bullen & Leake's Precedents, 4th ed., p. 538. Phillips v. PUllips is distinguishable, as there the plaintiff shewed different lines of descent and then claimed generally that he was entitled to the land. Hunter, in reply. • Walkem, J.:—If it were not for Phillips v. Phillips I would coin- , cide with Mr. Bodwell'sview, as the allegation follows the form gitfen in Bullen & Leake; but I am bound by the judgment in Phillips v: Phillips and must order that the plaintiffs amend' by giving particulars within five weeks. I think it is a proper case for making fie; costs costs in the cause. Order rdingly. MARTIN'S MINI] The i t of a parol agreement respecting it cannot be enforced. An agent who, pursuant to a parol agreement, locates in hi eral claim for his principal, will, if he repudiate the t trustee for such principal. Where both parties have recorded certificates of work, the mined according to prior location and record. Action for a declaration that defendant was a [ tiff of a one-half interest in the Great Eastern a: mineral claims. The trial took place at Nelson, before Drake, i 1898. The facts appear in the judgment. Galliher, for plaintiff. Hamilton, for defendant. r plain- Bennie i June,. Drake, J.:—The plaintiff and defendant are miners. The plaintiff alleges an agreement under which the parties were to locate certain claims, known to the plaintiff, in their joint names as owners. The agreement is denied by the defendant, but the evidence of independent witnesses satisfies me that such a parol agreement did exist/- and matters went so far that the defendant undertook to execute a>" transfer of one-half of each of the two mineral claims which had been staked out by them in company, to the plaintiff, but subsequently-^ refused. The claims staked are situated on Wild Horse Creek, near Ymir. . The plaintiff's story is, that as he coir necessary to get some one to go with ] by law on the posts, and he was willi claims to the person who accompaniei go with him, and they staked the G It is not shewn that these two claims tiff, they are alleged to be new discov notices on the posts in his : the notices required- over one-half of the^ got the defendant to • 1 and Little Bennie. known to the plains- defendant placed the Eastern, that his name was used for and on bel As regards the discovery and staking of the Benni tradictory evidence; what, however, is clear, is that tl to the Great of the plaintiff. Bj FERO v. HALL. recorded this claim hi" his own name and has done assessment work on it. The defendant relies on the Statute of Frauds and sees. 50 and 28 of the Mineral Act. The interest of a miner in his claim is, by sec. 34, declared to be a chattel interest, equivalent to a lease for a year; in other words, it is a chattel real and is an interest in land; by sec. 28, which is a section very difficult of application, the record of the last certificate of work shall clear up all irregularities prior thereto, and it shall be assumed the title to such claim is perfect up to the date of such certificate, except for fraud. As in almost every case of disputed claims, both parties do the necessary assessment work and obtain a certificate of work, the Court has to fall back upon prior location and record; there may be no fraud in either contestant, yet both claims cannot stand; if both are assumed to be perfect, how are the rights to be ascertained? These are difficulties which render the application bf this section of disputed claims uncertain, and, in the present case, while it is admitted that both parties have done assessment worlr on both claims, nt cannot be held that the certificate of work is conclusive. By sec. 50, no transfer of any interest in a mineral claim shall be enforceable unless the same shall be in writing, signed by the transferror and recorded. This section combined with the Statute of Frauds, sec. 4, precludes the enforcement of any agreements such as alleged here, and, therefore, as far as regards the Bennie claim, the plaintiff cannot enforce his alleged agreement. But as respects the Great Eastern, the case is different—the defendant acted as agent only for the plaintiff, and he cannot take advantage of his own wrong; he admits that he placed the notice on the posts in his own name for the plaintiff, as the plaintiff had not the number of his free miner's licence with him. The subsequent record by the defendant of this claim in his own name was a fraud on the plaintiff, and the order will be that the defendant do transfer to the plaintiff the 'Great Eastern claim free from encumbrances; the plaintiff will have to- repay the defendant the fees which were paid to the recorder in respect thereof, and the defendant must pay the costs of the action. Judgment accordingly. Note.—See Wells v. Petty, ante, p. 147; Pope v. Cole, post, p. 257; and Sunshine, Limited v. Cunningham, post, p. 286. As to conflicting certificates of work: see Cleary v. Boscowitz, post, p. 506. sec. 16, sub-sec. (d), of the Mineral Act can only be invoked in support of such senior location by some one claiming to be entitled: thereto, and not by a party to such adverse action who has no interest therein. Adverse action tried at Nelson on June 29th, 1898, by McColl, J. The facts appear in the judgment. Grimmett, for the plaintiffs. Christie, for the defendants. August 20th, 1898. McColl, J.:—The plaintiffs are owners of the mineral claim Standard No. 5 which was located on 22nd May, and recorded on 5th June, 1896. The defendants are owners of the Mineral claim Erin, which wa§|| located on the 12th and recorded on the 16th June, 1896, and have applied for a certificate of improvements. Both claims are substantiaUy upon the same ground. By admissions made at the trial the dispute was confined to two'' questions:—(1) was the ground located as the Standard then occu^' pied by the Shamrock, a claim alleged by the defendants to have heeTffl^" located by one Sutherland though never recorded, the time for recording it having, as they contend, expired after the location of the. Standard and before the location of the Erin, and (a) was the Standard located without discovery of mineral in place? As to the first question, I believe the evidence given by Sutherland,. the locator of the Shamrock, that he did not write the date of location upon the posts as required by the Act, but by mistake wrote a.' wrong date. The result is that the location of the Shamrock was- invalid. Counsel for the defendants relied upon sub-sec. (d) of sec. 16, hp| without expressing any opinion as to what might have been the effe<|| of the mistake made if the question whether the Shamrock was validly BOI located were raised by some i rock, I think that the equitj by such a claimant. ■ The second question I mu In case the parties should Court of Appeal, and do not cussed before me, I find, les regards the Standard to the 1 ne claiming to be entitled to the Shi of the sub-section can be invoked c t themselves to the questions dis- iew of the trial Judge should be lion the plaintiffs are entitled as f the sub-section referred to. Judgment for plaintiffs with costs. MARTIN'S MINING CASES. . George* et al. —Misleadin The erection of rock monuments instead of legal posts as required by the Mineral Act invalidates a location, and such an omission cannot be cured by sec. 16, sub-sec. (d). The provisions of that section are conjunctive. Any other mode of making a location than that specified by the Act is calculated to mislead other locators. Decision of McColl, J., affirmed. ;- Adverse action tried at Vancouver, by McColl, J., on 18th, 19th. and 20th April, 1898. - Wilson, Q.C, and L. G. McPhillips, for plaintiffs. Duff, for defendants Willey and Sherbart. Elliott, for defendant Bay. At the trial it appeared that in locating the NashvUle mineral claim the plaintiff Callanan had put up rock monuments instead of legal posts, owing, as he said, to the fact that | there was a scarcity of timber there, and I did not know that the posts were necessary." He further stated that the timber was about a half to three-quarters of a mile away from the claim. At the conclusion of the plaintiffs' case Davis, Q.C, moved for a non-suit on the grounds (1) that a stone monument is not a legal post, and, according to the statute, can only be regarded as a substitution therefor " where there is neither timber nor underbrush." The fact that there was a scarcity of timber, and that it would have to be brought some little distance, is only evidence of inconvenience, and inconvenience is no answer to the requirements of the Act. (2) In order to avail himself of the curative provisions of sub-sec. (d), the locator must shew two things: (1) a bona fide attempt to comply with the provisions of the Act; and (2) that the non-observance of the formalities is not of a character calculated to mislead other persons desiring to locate claims in the vicinity: these two things are conjunctive, not disjunctive. The wording of the Act is such that there must be upon the facts proof of a bona fide attempt to comply with the provisions. All that is shewn here is that it was more convenient to- put up rock monuments than the customary statutory posts. (3) The excuse that the locator did not know that the posts were necessarv puts him out of Court, because there can have been no attempt to do things which he did not know were necessary; an attempt necessarily involves an intention; it cannot be inferred from the fact that timber was not nearby that therefore the attempt was made. McPhillips:—No doubt if my learned friend is to pick out of that section the words to which he has referred, and alone referred, they a 8 B. C. 146. CALLANAN I . GEORGE I wiUb ear and onl upon the m. But fram id f or t hep are n ot s app jsed myle arn edf rienc anyw iere d, b msic lttl what pre vion sly and only bear perhaps the construction which he has placed :onsidering an Act such as this, which has been 0c se of protecting the rights of prospectors, who Fui now nor to define the words in the same way as Ud define them, it is necessary in the first place, ot only the words which my learned friend has lole section in its entirety, and to take that with happened and the previous decisions upon this rfiat is meant or what was meant by the Legisla- lose facts. Now, it is not of course permissible istrue the language differently from what the lary sense means, unless there is something in in of the Legislature was. by the last words of that Act, and to construe whs ture in the light of thos for the Court to consti language in its ordinar the Act itself to indicate what the ir That intention, I submit, is clearly i in so far a what thei section, "is not of a character calculated to mislead other persons desiring to locate claims in the vicinity." Now it cannot be said that the plaintiffs in this case have deviated from the Act that lave done would mislead anybody. They have put up the posts, they have marked the line; they have not put up wooden post.-;, but that is all that can be said. Now, was it the intention of the Legislature in providing that section for the protection of the prospector to merely provide as my learned friend says they have provided ? I think,, my lord, upon the face of the Act itself, when read altogether, it means this—that if the prospector finds mineral in' place, and then has done what the Legislature has provided, marked— not necessarily with wooden posts, but marked in some conspicuous way the points which the Act provides—then if the mark is not of such a nature as to mislead, the Act is complied with. There is no doubt this marking would mislead no one, because there has been shewn a bona fide intention to mark. No one has said and no one could say that anyone was misled. That is the intention, and that is the way in which the section should be construed. I do not say that the argument of my learned friend is not a strong one—it is a difficult one to me—but I do say-he has refined the section, and in one sense strue it more in the this: There is an express neither timber nor under- rarcity, but where there is an monuments may be used for a he is straini ng it. because one cannot help ture meant, and, therefore, if it is possibl line of wha the legislature intended, thei Your Lords hip has referred me to the se are allowed on the location line. That in this Act. McColl J.:—What I am suggesting provision he re for the ease in which there MARTIN'S MINING CASES. [v< particular purpose, but the very next sub-section goes on to sayj " the locator shall also place a legal post at the point where he has discovered rock in place." The difficulty you have to grapple with, besides, is a very formidable one, as you admit yourself, pointed out by Mr. Davis—that there is an express provision for the case of its being utterly impossible to get in the locality of the claim any timber, and there is, to my mind, the clearest expression of intention that notwithstanding any such inability you must bring to the spot certain posts for the purpose of marking the particular locality. You are asking me to repeal the statute. McPhillips:—Of course, your Lordship may put it in that way, but I hardly think my idea of the statute and the way" I wish to Impress it upon you will go so far as that. tir attention to what I am sure you the strong opinion I have formed, not think even a knowledge of the view Uips, will shake. These words are con- ; be an omission of something the result of which is likely to mislead, but there must be, if there is any such result, evidence of such acts on his part as to amount to a bona fide attempt to comply with the provisions of the Act. It does not say a bona fide attempt to get a claim, but a. bona fide attempt to comply -with the provisions of the Act. Here, the plea of ignorance of the iw, I take it, with all respect to you, to be utterly untenable/because, suppose the plaintiffs never knew there was any Act at all, still tbere is no excuse—they have documents from certain officials indicating certain requisites. It does not follow that a man must know that certain requisites are required by Act of Parliament, but if he chooses to erase the word " post" in certain instances and insert the words ■" rock monument" with the explanation that they were so put on account of the scarcity of timber, I am sure you will not misunderstand me when I say that I am not going to listen to any such argument founded upon ignorance of the law, and under these circumstances I decline to do so. McPhillips:—Then your Lordship, holding such a strong vi^ffl: upon that point, I refer your Lordship only to sec. 28. McColl, J.:—Well, that has been decided^—it is not an irregularity. There is the decision binding upon me. Without wishing to interrupt you much, because I listen to you always with a great deal of pleasure, but I know you did not embark upon this case with the intention of taking the decision of the trial Judge, and the case i is so perfectly hopeless from my point of view, and in view of the ) opinion I put forward, and wishing to put no obstruction in the way m CALLANAN l . GEORGE i of your taking it to the Court of Appeal, I may say that I must nonsuit you, is a foregone conclusion. You are asking me, from my 0c point of view, to repeal an Act of Parliament. I must say I never 3VH had in my life so plain a case. I wanted to hear Mr. Davis, but d really 1 should not have called upon him. The best thing I can do in the interests of your client is to facilitate your progress to a speedy conclusion as soon as possible, and to do that I grant a non-suit with costs. Judgment accordingly. The plaintiffs appealed, and i ly 12th, 1898, before Walkem, v7as argued at Victoria id Irving, JJ. Wilson, Q.C, and A. E. McPhillips, for the appellants. Davis, Q.C, and Bodwell, for the respondents. October 20th, 1898. Drake, J.:—The short point raised in this appeal.and the only one argued was whether the plaintiffs in locating certain mineral claims, described as the Nashville, Charleston, and Westminster, in the West Kootenay District, and marking out the same, were justified in using mounds of stone in lieu of the legal posts required by section 16 of the Mineral Act, E, S. B. C 1897, ch. 135, and further that the learned trial Judge should, under sub-section (d) of the same section, have treated this as a bona fide attempt to comply with the provisions of the Act and that the non-observance of the mode of marking out the claims, required by the Act, was of such a character as not to mislead other persons desiring to locate claims in the vicinity. The Act which we have to consider is the result of over thirty years' experience. The first Act was No. 90, 1867, Bevised Statutes of 1871, where all claims were to be marked by four pegs, four inches square and not less than four feet above the ground; from that time downward claims have always had to be marked out by pegs or stakes of the dimensions mentioned, but the position required for the stakes or pegs has varied. Section 2 enacts that legal posts shaU mean a stake standing not less than four feet above the ground, and squared or faced on four sides at least one foot from the top, and each side so squared or faced shall measure at least four inches on its face so far as squared or faced, and any stump or tree cut off and squared or faced to the above height or size; provided when survey is made the centre of the tree or stump where it enters the ground, shall be taken as the point to or from which measurement shall be made. Section 16 savs a mineral claim shall be marked by two legal posts numbered 1 and 2 and the line between these posts shall be known as MARTIN'S MINING CASES. [vol. 189B. the location line. . This line shall be marked by the locator, in a e ojsr _ . timbered locality, by blazing trees and cutting underbrush, and• in a Full Court, locality where there is neither timber nor underbrush he shall set Walkem, j. legal posts or erect monuments of earth or rock not less than two feet I vtng" I high and two feet in diameter at thcbase. It is well known that many mineral claims are located where there is no timber or underbrush; some above the timber Une as on the mountains. The Legislature requires that in all cases there must be stakes for the No. 1 and 2 posts. If a stone post was to be sufficient the term " legal post" would not have been defined as a stake, and the ordinary meaning must be given to the words used by the Legislature, unless the context shews that some other meaning was intended. We have no doubt, on the construction of these sections, that a wooden post or stake is intended, and that a pile of stones or any other mark is not a compliance with the Act. We are also of opinion that any other mode of marking out a claim, than that defined by sec. 16, is calculated to mislead. The system of wooden posts has been universal in the Province for thirty years, and prospectors naturally look out for posts. Stone mounds, in a mountainous country abounding with rocks, would not attract any attention, and would be calculated to mislead. It is not necessary to lay down any rule of construction as to sub-sec. (d) of sec. 16, each case must depend on its own merits; but it is not intended that the requirements of the statute are to be ignored. Those requirements may be imperfectly carried out, but to hold that the Court can permit the formalities and restrictions, imposed by the statute, to be abolished and others substituted, would place the Judge in the position of the Legislature. Such a construction is unreasonable, and was never contemplated. The appeal must be dismissed with costs. Walkem and Irving, JJ., agreed. • Appeal dismissed with costs. Note.—In the case of Partridge v. Hamilton, tried before Martin, J., at Atlin. on the 3rd, 4th, and 5th of September,. 1900, and argued at Victoria oh the 9th and 10th of January, 1901, the same question arose, and the following extract from the judgment delivered on the last mentioned date shews the view taken:—" I am of the opinion that there was a bona fide attempt to comply with the provisions of the Act as to location. But Callanan v. George deciae^E that not only must there be such an attempt, but that it also must not be of a character calculated to mislead, i.e.. the requirements are conjunctive. I have come to the conclusion from a consideration of all the surrounding circumstances in a broad and comprehensive manner (which I agree with Mr. Cassidy is what the statute contemplates), that the non-observance of formalities here in regard to the manner of staking and marking the location line was a character to mislead other persons desiring to locate claims in the vicinity." See further as.to defects in location, and misleading: Manley v. Collom,- post, p. .487, and list of cases in note thereto. J PETERS v. SAMPSON. Peters v. Sampson. (6 B. c. 405). Assessment Work—Power of Lieutenant-Governor in Council to Extend Tir, for—Abandonment and'Forfeiture—Certificate of Work—Irregularity—I lay in Recording—Mineral Act, 1896, sees. 24,-28, 53 and 161. November 30. JFullCoukt. A. certificate of work recorded pursuant to permission granted by a Gold Commissioner acting under such an Order-in-Council, is a good certificate within sec. 28 of the said Act. The word " irregularity " in sec. 2S extends to the certificate of work itself. Delay in recording such a certificate of work is an irregularity which is cured by said sec. 28. j Meaning of " irregularity " considered. | Decision of McCoix, J., reversed. Appeal from judgment of McColl, J., delivered 6th August, i 1898. The action, which was one of adverse claim, was tried at Nel- I son on 16th June, 1898. The facts fully appear in the judgment. Macdonald, Q.C, and Johnson Peters, Q.C, for defendants. for plaintiffs. August 6th, 1898. McColl, J.:—The mineral claim, Gold Cure, owned by the plain- I tiffs, was located on 12th, and recorded on 23rd August. 1895. The ] I assessment work for the first year was done within the time, but was j not recorded until the 26th day of the month. The mineral claim Bismarck, owned by the defendants, was located I on 7th October, 1896, admittedly in the belief that the plaintiffs had I abandoned their claim and in ignorance of any proceeding taken by [them under the Order-in-Council presently referred to. The Bis- I marck, which was conceded to be a valid claim, subject only to any I prior claim of the plaintiffs in respect of the Gold Cure, overlaps it, I and the ground common to both claims is the subject of this action. By an Order-in-Council dated 2nd July, 1896, after reciting I that owing to the lateness of the season the depth of snow in the [mountains prohibited many holders of claims from performing the MARTIN'S MINING CASES. [von. assessment work required by the Mineral Act during each year, it was, professedly in pursuance of section 161 of the Act of 1896, provided that "It shall be lawful for the Gold Commissioners throughout the Province to extend the time for a period of sixty days, to date from the 17th day of July, 1896, for the completion of the assessment work on such mineral claims as the Gold Commissioners have good cause to believe are at this time inaccessible, in consequence of the depth of the snow which covers the said'' claims." On 6th August, 1896, the Gold Commissioner of the District,' acting under the Order-in-Council, on the plaintiffs' appUcation, ex- . tended the time for doing the assessment work which had not then been completed, to 17th September, 1896. The work was actually finished in time to have been recorded within the year, and the only reason given for the delay was that the plaintiffs relied upon the extension. By an agreement between the parties at the trial the only questions for determination are: (1) Was the Order-in-Council ultra vires? (2) Whether the plaintiffs can avail themselves of it? (3) And are the plaintiffs, if necessary, entitled to the benefit of sec. 53, which provides that no free miner shall suffer from the act of any Government official ? As to the second question, there being no evidence either way, I must assume that the Gold Commissioner had good cause for granting the extension. This being so, I know of no principles upon which the extension, if valid when granted, would become void merely because of the unexpected disappearance of the snow in time to permit of the work being done within the year. With reference to the third question, it seems to me clear that if the Order-in-Council was ultra vires, the section invoked by the plaintiffs cannot apply. It only remains to consider whether the Order-in-Council was uWta vires. Section 24 enacts that "If such work shall not be done, or if such certificate shall not be so obtained and recorded in each and every year, the claim shall be deemed vacant and abandoned, any rule of law or equity to the contrary notwithstanding." This provision is neither ambiguous nor doubtful. To give effect to the Order-in- Council would be not to carry out the provision, but to excuse noncompliance with it. And I do not think that the circumstances dealt with in the Order-in-CouncU are such as were contemplated by lh( words "to meet cases which may arise and for which no provision is made." Seasons were not less likely to be late after than before the j passing of the Act, and if the Legislature hal intended to create an j exception in such event from sec. 24, they would have done so. not even as if compliance with the Act had been impossible. T I. J . SAMPSON. work might have been done before the commencement of the winter season. To delay it was to incur a known risk of increased difficulty, * with, of course, additional expense. And this case itself shews that ] the event sought to be provided for by the Order-in-Council is too uncertain to be ascertained beforehand. It is important to bear m mind the limited power expressly conferred by sec. 161 to relieve against certain forfeitures—those arising under sec. 9. And the privileges given of paying $100 instead of doing the year's assessment (sec. 25) and of relocating a claim with the permission of the Commissioner (sec. 32) are, I think, against the construction for which the plaintiffs contend. To speak of the intention of the Legislature is, as has been said by an eminent authority, to use a " slippery expression," and the rule that a mining claim can only be held (before grant) by the doing annually of the work required by the Act, or what it allows to be an equivalent, is so essentially a part of our mining laws that if I were in doubt, I think I ought not to hold that the language of sec. 161 gives the power assumed, but I am of opinion that to do so would be to disregard the enactments to which I have referred. The judgment will be for the defendants with costs. From this judgment the plaintiffs appealed and the appeal was argued 29th and 30th November, 1898, before the Full Court, consisting of Walkem, Irving and Martin, JJ. Bodwell (Duff with him), for appellants: The points on which we rely are: (1) That the Order-in-Council is intra vires and in accordance with the Act; (2) that we are protected under sec. 53 of the Act, and (3) under sec. 28 our title to the Gold Cure claim was ratified on 26th August, 1896, when the certificate of work was recorded. The Judge in the Court below relied on sec. 24, but that section contemplates only an abandonment and not a forfeiture. As to the difference between abandonment and forfeiture; the Act distinguishes between them: see sec. 32, "abandoned or forfeited." Abandonment is a presumption of fact and presupposes an intention to abandon, and, on the other hand, a man losing his claim by forfeiture loses it against his wiU. The Legislature never intended that a claim should be lost by abandonment unless there was some evidence of intention to abandon: see sec. 30. Compare sec. 9, I shall absolutely forfeit, &c.": see Hill v. East and West India Dock Co. (1884), 9 App. Cas. at 454-5; The Queen v. London County Council (1893), 2 Q. B. at 491; and Salmon v. Duncombe (1886), 11 App. Cas. 627. As to the rights of a holder of a mineral claim, he cited Nelson & Fort Sheppard Ry. Co. v. Jerry et al. (1897), 5 B. C 396, ante, p. 161. MARTIN'S -MINING CASES. [v« He cited also, Davenport v. The Queen (1877), 3 App. Cas. at 129; ' Att.-Gen. of Victoria v. Ettershank (1875), L. E. 6 P. C at 369; Osborne v. Morgan (1888), 13 App. Cas. at 234; and Peterson v. The Queen (1889), 2 Ex. C E. 74. The proper construction of see. 24 is that the lease obtained under' sec. 34 is avoided by the non-performance of work unless waived by the Crown. nough to cover the Order-in-Council and the- hat the conditions of sec. 34 may be waived. ie Legislature has been to relieve the miner li would amount to a hardship. Lay-overs ler the Placer Mining Act, and they were Section 161 is wide e intent of the section is t The general poUcy of tl from consequences whic are still permissible urn under the Mineral Act until 1894, and since then they have been regulated by Orders-in-Council; see B. C. Gazettes, 1897, p. 2397; 1898, pp. 596 and 699. As to long use and public policy, see Maxwell, 3rd ed. 425. AU orders made under the section must be laid before the Legislative Assembly, which has approved the order in question, and the Court is now ousted of its jurisdiction: Institute of Patent Agents- v. Lockwood (1894). A. C at 3.59; Hardcastle at pp. 300-2 ; De Beau- voir v. Welch (1827), 7 B. & C 266; Casgrain v. Atlantic & N. W. Ry. Co. (1895), A. C at 300; Foskett v Kaufman (1885), 16 Q. B. D. at 286; Jay v. Johnstone (1893), 1 Q. B. 25; Danford v. McAnulty (1883), 8 App. Cas. at i60;Ex parte Wier (1871), 6 Chy. App. at 879; Ex parte Campbell (1870), 5 Chy. App. at 706; Greaves v. Tofield (1880), 14 Ch. D. at 571; Clark v Wallond (1883), 52 L. J., Q. B. at 323; The Queen v. Burah (1878), 3 App. Cas. at 906. Independently of all other grounds we are entitled, if we were wrong, to relief under sec. 53, because we were led into being late by the act of the Gold Commissioner who purported to be acting under the Order-in-Council. Section 28 perfects our title to Gold Cure claim as no one can question it except the Attorney-General. Cassidy (Davey with him), for respondents: The interest of a free miner in his claim is only a licence for a year. We located on "vacant" ground. The Crown has simply an administrative interest in the lands, and since the passage of the Act has no control over the minerals or mineral claims. As to Osboi-ne v. Morgan, supra, there was apparently no statutory system as here. Section 34 says that the chattel interest is equivalent to a lease for a year—it does not say nor mean that the relation between landlord and tenant exists—nor that the Crown alone can exert defeasance. Bv virtue of the Mineral Acts the Crown has denuded itself of its character as landlord. The Lieutenant-Governor in Council cannot put such construction on provisions of the Act as seen fit, and this Order-in-Council is contrary to the tenor of the Act. Provision was se such as this—they could have relocated nission of the Gold Commissioner. ^ appeUants would not have suffered—they ; they were not entitled, as they ■ PE made in the Act for a ca under sec. 32 with the per. As to sec. 53. The were seeking an advantag had let the time expire. The section applies to some physical act such .as if in the absence of the official from his office the miner could not file a certificate of work. It is admitted the work was all done within the year but they did not record it until too late—it was their own neglect, and the representations of the Gold Commissioner are irrelevant. As to sec. 28. The failure to record certificate of work in time is not an irregularity—it is an essential requirement. The certificate of work required to confirm a title must be a good certificate, not a bad one,.such as there is here. The record is bad on its face: See Atkins v. Coy (1896), 5 B. C. (i. mile: p. 88; Ex parte Coates, In re Skelton (1877), 5 Ch. D. 979, and Sweet's Dictionary, 449. The mining system is a registration system: Park-dale v. West (1887), 12 App. Cas. 602; Hudson's Bay Co. v. Kearns and Rowling (1'896), 4 B. C 536. The words "issued with n the statutory year- ' must be understood and read into the section after the word "worl " in Une three. He cited also McGarrah'an v. The New Idria Mining ( o. (1874), 11 Morr. 641. As to usage, it shoul d be long and notor ous. See Maxwell,, 3rd ed., 425, and Magistrate s of Dunbar v. Duche ss of Rox- iurghe (1835), 3 CI. & F. 354. Bodwell was not heard in reply. Per Curiam :—The appeal is allowed with costs. Subsequently the following opinions were handed do-\ Walkem, J :—T lis i 3 an ap peal frc m the interpretation given by the learned C hief lusti ce to sec . 143 of the Mineral Act (E. S. ch. 135), when con sidere din connect on with so much of the latter part of sec. 24 as rel ates t o th i doing and rec >rding of annual work on a mineral claim. Section 24 pr >vides that a minei , who h is duly located and recorded a mineral claim, is entitled to hold it for a year from the date of .its record, and thereafter yearly without the necessity of re-recording, provided, amongst other things, that he does work in each year on the claim to the value of one hundred dollars, and obtains a certificate to that effect from the Gold Commissioner, or from the Mining Eecorder. The section then concludes as follows: "If such work shall not be done, .or if such certificate shall not be sq MARTIN'S MINI! than the literal one put upon it by the learned Chief Justice, exfetlpM -■ we find that it has been modified by, ot under the authority of, other - . provisions of the Act. As pointed out by Lord Herschell. in Col- quhoun v. Brooks (1889), 14 App. Cas. p. 506, "We are bound whe* construing the terms of any provision found in a statute to consider any other parts of the Act which may throw light upon the intentidfr" of the Legislature, and which may serve to shew that the particular, provision, as, for instance, the one we are now considering, oUgM not to be construed as it would be if considered alone and apart frcftr the rest of the Act." Again, the "literal construction of any enactj. ment has, in general, but a prima facie preference. To arrive at its real meaning it is always necessary to get an exact conception of the1- aim, scope and object of the whole Act." (Max. Stats., 3rd ed. 2$); The object of the Mineral Act is, beyond question, to encourage the development of the mineral resources of the Province. In comparing the Act with prior legislation on the same subject, it will be seen that it contains many changes in favour of the miner. For instance, sec. 16 re-enacts the old rules for taking up a location, but relaxes their stringency by providing that a locator is not to lose hia ground owing to non-compliance with them, if it should appear that he has found " rock in place," and has made a fair effort to comply with them. This change, important in itself, as it relates to boundary lines, is also important as it clearly indicates that the Legislature intended that a miner should not, when taking up a location, be deprived of the fruits of his discovery by reason of inadvertent mistakes,, or a misconception of the rules. 'By sec. 17, a location is not to be deemed invalid owing to its having been made on a Sunday, or public- holiday. By sec. 18, the general rule which requires boundary posts to be placed at the ends of a location line is modified to meet the case of inaccessible ground, so as to permit of their being placed at a distance from the line, with notices on them indicating its positioM Such stakes, I might observe, are known, under the American sysptp- as " Witness Stakes." In further sections of the Act, the same 1M|. intention is apparent. AU these changes are, obviously, of a reme«' character, and were made in recent years to meet known difficu^® or defects; and with a view, as it appears to me, of meeting unknown ones, or such as could not have been anticipated, or might have escaped attentio n; the leg deemed necessary may ar se, and fc this au hority, th was pap sed : rep: rthe j Li nant- Lpo :e such orders as ate •o meet cases which n this Act." lUiSf which is as foUo^, " JAMES BAKER," In the put upon i especially •iew of the date of the order, mean that snow id-summer, and to such a depth as to render sment work on local mineral claims, within e. 24, impossible. This has not been denied; ts to extend that time, it has been held to be ized by sec. 143; hence this appeal. ; has already been pointed out, and it is clear at the Legislature considered that the best ras to protect the miner in the possession of ', he is not to lose it through unintentional sec. 16); or for having located it on a Sun- jd it in a wrong district (sec. 22) ; or for de- rt of Government officers (sec. 53). Every recorded, or registered, is to have the effect were, all irregularities existing in his title registration (sec. 28); and a certificate of te as a release from further assessment work, :d except for fraud (sec. 37.) protective measures, the construction to be be that which will best harmonize with them, as applied to the case set forth in the Order, ne " for which," in the words of in this Act." It is, therefore, An opposite view wouM- mean MARTIN'S MINING CASES. [vol. that the Act is remarkably inconsistent, as it affords the miner protection against loss from inadvertent mistakes made in matters within r- his control, and yet' denies him that protection in such a case as the -. present one, which is beyond his control and in which he is blameless. Effect must be given to the section; and I can conceive of no case to which its provisions could be more beneficially, as well as legitimately, applied, than to the case in point. Furthermore, if they cannot be applied to such a case, they cannot be applied to cases, which, physically speaking, are of the same class—such as freshets, land-shdes and snow-slides. Hnder all the circumstances I consider that the Order-in-Council is valid. It is next contended on behalf of the appellants that even if the. Order-in-Council is ultra vires, they are protected by sec. 28, as they obtained and recorded a certificate of work on the 26th August. That section is as follows: " Upon any dispute as to title to any mineral claim, no irregularity hapJ pening previous to the date of the record of the last certificate of work, shatt|; affect the title thereto, and it shall be assumed that up to that date the title to such claim was perfect, except upon suit by the Attorney-General based upon The section is not as clear as it might be, but the meaning of it, as expressed in the last two lines, is that when a certificate of work . is recorded the title shall be deemed to be perfect up to the date of record and not open to question except for fraud. On behalf of the respondents, it is, however, said that as the certificate held by the appellants was issued two days after the time prescribed by sec. 24, it was in that respect seriously defective, and that the above section (28)- referred only to certificates that were not defective. The section does not say so; and. in my opinion, it was intended that the word "irregularities" should apply to certificates irregularly issued as fully as it does, in practice, to locations or records irregularly made. It would be mischievous were it otherwise, for a certificate, when endorsed by the Eecord.er as having been recorded, is, in practice, accepted by a purchaser of a mineral claim as official evidence of a good title up to the date of the record. Now this attack upon the certificate is, in effect, an attack upon the title, for the title depends upon the certificate, and an attack upon the title, except for fraud, is absolutely prohibited by the section. The appellants completed their work within the year which && pired on the 23rd of August; but relying on the extension of time until the middle of September which was given to them, under the terms of the Order-in-Council, by the Gold Commissioner, they did not apply for their certificate of work until the 2.6th, on which day of the Act; but the provision that the recorded is a minor matter which only document; hence the delay in recording most seventy-two hours, may be regarde that is within the' scope of sec. 28. Tl Irving, J.:—Mr. Cassidy's contention is that see. 28 should be read as if the words " issued within the year " were inserted immediately after the words " certificate of work " in the third Une. If we so read it the section would not cover the irregularity of failing to record the certificate of work one hour after the expiration of the last day. That seems to me to put too narrow a construction on the section. Section 28 declares that no "irregularity happening previous to the date of the record of the last certificate shall effect the title to the mineral claim." Mr. Cassidy's contention, if it prevailed, would translate that expression, "No irregularity, other than the failure or omission to record within the year the certificate shall, &c." That seems to me to be quite different from the wide language used. "Nothing, without any exception, so long as it is only an irregularity shall, Sec.,'' seems the fair way of amplifying the expression " no irregularity." When Parliament has adopted so wide an expression as rtno irregularity," it would be wrong for the Court to pare it down to "no irregularity other than the failure to record the certificate of work within the year." A wide expression was used, and used without any limitation. Why should we curtail the language used by the Legislature? Plain, every-day words were used to signify a plain intention to meet and stop an every-day evil. Men were honestly doing work on" a ckim under the impression that they were advancing to a definite goal, viz.: the obtaining of a Crown grant to their claim; when of a . sudden they found that although they had obtained one, two, or possibly more certificates of work, they were undone by reason of their failure to do something in the manner prescribed. By sub-sec. (d) the Legislature provided against irregularities in staking, and stopped jumping before certificate of work had been obtained. sec. 28 of 1896, the same body endeavoured to prevent a man* losing- his claim afterwards. The irregularities must be irregularities relating to title. Let us see what the requirements of title are: (1) a free miner's licence;. (2) a proper location; (3) doing of work—the failure to do this could not be called an irregularity, although (4) the failure to do it all MARTIN'S MINING CASES. [v< within the year might be so considered; the (5) recording of the work, and (6) that within the year. Under-sec. 143 provision was made in case of a forfeiture arising from the omission to secure a free miner's license (1) ; sub-sec. (d) of sec. 16 cured defects in location (2); the failure to do the work (3), in my opinion, is not an irregularity. All, then, that remains is (5) the recording of the work, and (6) within the year. As all the other irregularities of title have been specifically provided for, 1 see no reason why the section should have been passed, unless it was to include the case of non-recording. The proviso at the end of the section, " except upon suit by the I Atiorney-General based upon fraud," strengthens me in the opinion I have formed. Lord Watson in West Derby Union v. Metropolitan Assurance Co. (1897), A. C 653, says that there may be many cases in which the terms of an intelligible proviso may throw considerable light upon the ambiguous import of statutory words. Appeal allowed. irk, post, p. 428; and Manley v f time for recording certificate and Lawr v. Parker, post, p. Api sion of the Suprei t of McColl, J., EBr: sh Columbia of the jelieving entirely reversing the judgment of McColl, J., at the trial in $ defendant. In June, 1896, the defendant and others had located a mineral claim in the neighbourhood of Eossland, B.C., of which he claimed and represented himself to be the owner of one-half. This claim was called the Eldorado. The plaintiff, through his agent, Oscar G. Lathe representations of the defendant to be true, and on such representations, became the purchaser of the if the claim for the sum of $5,250, which Laberee paid t in cash, who, therefore, executed an assignment of alf to the plaintiff. Soon afterwards it turned out 1 part of the Eldorado plot was included within the irior claim called Mascot, and that a strip which ning an area of some ten or fifteen acres was included The plaintiff, therefore, got nothing for the money efendant made the sale in perfect "good faith, and his he defenda undivided representa md the tr mistaken tion which beUef that turned out to be as free from fraud the Eldorado was Jaim, whc reas in tru th, owing to other priority h neluded i ving been n pre-existi rTkhns"made' * Bof i dealt ■ ipon the McColl, J.:—This action is brought to recover $5,250, being the ., J. price paid by the plaintiff to the defendant for an undivided one-half interest in the Eldorado mineral claim, bought by the plaintiff rom the defendant, and assigned by the latter to the former by .two several deeds, dated the 4th June, 1896, of one-eighth and three-eighths interests 'respectively. It appears that a portion—more than two-thirds of the ground comprised within the limits of this claim—was, at the time of its location, occupied by the Mascot and Beba mineral claims under prior ? locations, and that in consequence thereof the plaintiff took no steps to perfect the title to the Eldorado claim, and gave notice to the defendant that he would not do so, but that the defendant must protect the title. It is not alleged that the defendant knew of either of the prior locations till after the completion of the sale, and the reason to doubt his denial of such knowledge. Neither of the deeds j contains any covenant for title. Mr. Hamilton, for the plaintiff, expressly disclaimed an tation against the defendant of fraud or wilful misrepresc He contended, however, that a mineral claim is, under the Mining I Acts, a chattel, and that the plaintiff is entitled to recover because | of the general rule in the ease of a sale of a chattel giving to ■ chaser the right to recover back the price for want of title in the vendor. He also urged that there was not really any such mineral j claim as the Eldorado in existence, because of the validity of the title of the holders of the Mascot and Beba mineral claims. But this j reasoning seems to me to be fallacious. The locator of the Eldorado j had located upon the ground and obtained a record for that clainjfe I the title of the holders of the other claims had been invalid for want ] of compliance with the provisions of the Mining Acts, the title to the Eldorado would have been good. It does not appear how the Eldorado j came to be located and recorded in view of the prior locations and records referred to, but it appears that it was in fact located upon j the ground and a record obtained in the usual way, whether ii ance of such' prior locations, or under the supposition that they were I POPE v. OOLE. 259 invalid, can only be a matter of conjecture, and, as I think, of no im- 1898. portance in the present case. The question, as I understand it, reallv Decen^ir 14- is as to the title of the defendant to the Eldorado, and his liability Surann to the plaintiff for want of title. " dP Canada. Probably in agreeing to sell goods, a seller under the existing authorities does impliedly warrant that he has the right to do so in the absence of circumstances negativing such warranty, although I am not aware that the case of Morley v. Attenborough (1849), 3 Ex. 500, has been expressly overruled. But the present case is one of a sale of a chattel real. If regard could be had to the probable intention of the parties, it, or at least the intention of the vendor, was not, I think, likely to have been that any such warranty should be understood, in view of is.commonly bought and sold. 'But the sale has been completed anil I do not see anything in the circumstances of this case to take it out of the ordinary rule that a purchaser has no rights against the vendor, except such as"are given to him by the deed which he has accepted. It is not as if the defendant had taken the plaintiff, though innocently, to a place outside the limits of the claim. If he had done so, the'law as laid down by the House of Lords in Bloomenthall v. Judgment Ford (1897), A. ('. 15<i, would perhaps enable the plaintiff to re- mcColZ'j. cover, though in that case the mis-statement of fact appeared on the face of the certificate there in question. But there is no suggestion defendant on the occasion of the visit to the place he intended, or was understood bv the plaintiff to refer to any question of title; and there cannot. 1 think, be any pretence that the question of the defendant's right to sell the particular property looked at was ever in the mind of either of the parties at the time. Judgment for defendant. ment the plaintiff appealed to the Full Court, and led before Davie, C.J., Walkem and Drake, JJ., Ilr bert Rob rtson, for tl e appellant. Du ff, for re>- pone en . Cur. ad February Sth, . Villi. 1898. \X\ LKEM, J. The plaint n appeal from a j udgment giver by Mr 250-pa'ic Ju Justice McColl. Wa MARTIN'S MINING CASES. by him to the defendant for an undivided half interest in a mi; ■ claim called the Eldorado, on the grounds of misrepresentation iB want of consideration, as the Eldorado had no existence excej pA name. The evidence is to that effect, for the ground located ai Eldorado had, except as to ten or fifteen acres, been previously loi as the Mascot. The Mascot was a valid location, for, as the evic" shews, its owners obtained a Crown grant for it after pubUcatic the usual statutory advertisements as to adverse claimants. I n I words, the locators of the Eldorado either did not oppose the apt i for 1 Th within the boundaries fifteen acres, it is asse: trial, that they had b< that, in the language i for the Eldorado," he lIoc I be the Eldorado was Iocs of the Eldorado havin Aei | beenj made on land already taken up, the title to which was unquestioned; was not, in a legal sense, a mining location. The owners of the so- called Eldorado had, therefore, nothing to sell. The evidence of the defendant tends, in my opinion, to confirm this, for his answers to.., questions referring to his titles are very evasive, and, in substance,- I are to the effect, " I sold what I bought." More than this, he was clearly guilty of misrepresentation, for he took Laberee, the plaintiff^ agent, who negotiated the purchase on the plaintiff's behalf, to what turned out to be the Mascot tunnel and deposit of ore, and told himv that both tunnel and ore belonged to the Eldorado. He also took Laberee in a north-westerly direction from the tunnel and shewed . him, as he stated, the western boundary of the Eldorado. He denies ,, this, but without having had the advantage of the learned trial Judge of hearing and seeing the witness, I am compelled to say, in view of the defendant's evidence as a whole, that Laberee's evidence"' is much more to be relied upon than his. Mining claims, as a matter^ of common knowledge, are not like farms or city property, bought' and sold by the inch, foot or acre. Their value is gauged by the mineral found in " place," at what is called the " discovery post," S the more or less development of that discovery by open cuts, shafts-; or tunnels, as the case may be. Acreage is not very important, save where it happens to include the trend of a ledge; hence the tunnel' and ore which the defendai the Eldorado, were really tunnel and ore belonged, ii sold what did not 1 shewed the plaintiff as being part of lat was bought and sold; and as this ntestably, to the Mascot, the defendant m. I have had the advantage of read, ing my brother Drake's judgment. He finds, as I do, that "the property sold was different in substance from what it was represented J eently made, wiU be avoided. The decision of the trial Judge lion, be set aside the plaintiff for the costs of this A Drake, tried the ac The facts £ fchased oft Eldorado. < al : i jury, and gave a judgment for the defendant, he learned Judge shew that the plaintiff pur- sen located and recorded on the ground that lawfnUy Occupied for defendant to the plaii an is brought to recovi itle. ck the and. the learned trial Judge held that there were no circum which took the case out of the ordinary rule that a purchaser 3 vendor except such as are given to him by t ed. ; I think that the evidence discloses circumstances which amount to misrepresentation; the defendant took the agent of the purchaser on to the ground, pointed out to him the tunnel and a quantity of ore on the dump, and stated that was the property he owned. This was a misrepresentation of an existing fact, possibly innocently made, but as stated in Derry v. Peek (1889), 14 App. Cas. 359: " If there is mis- the person may be who made it, the contract cannot stand;" and in Reilgmrr v. Hurd (1881), 20 Ch. D. 1. it was held that although the defendant made a cursory and incomplete inquiry into the facts, if ade edi refer to take awa. ndedi ad knowledge of facts which shewed it to be untrue, or that he did not fl&y on the representation. I think the evidence here clearly shews that the plaintiff relied on the representation of the defendant. The defendant urged that the principles which governed contracts or agreements relative to patents or patent rights, should be applied. MART [v. was laid down perhaps too broadly in.Rawlins v. Wickham (1858), 3 DeG. & J., at p. 317. Turner, L.J., says, f if one of the parties to a contract makes a representation materially affecting the subject matter, he cannot be allowed to retain any benefit which he has de- the representation may have been made; a contrary doctrine would strike at the root of fair dealing." And Story lays down the doctrine thus: " Nothing is clearer in equity than the doctrine that a bargain founded upon false representation made by the seller, although made if by innocent mistake, wiU be avoided." In my opinion the property sold was so different in substance from what it was represented to be> that it amounts to a failure of consideration. The representation here made amounts to this, that the property sold was a half interest in a mining claim which had had a sufficient amount of development work done upon it as to prove its value as a mine. There are numerr it has been held that they amount to failure°of consideration. See Robinson v. Musgrove (1838), 2 M. & Rob., at p. 94, where Tindal/ C J., says: " If any substantial part of the property purporting to- be sold turns out to have no existence or cannot anywhere be found, that circumstance, in my opinion, entitled the plaintiff to rescind the contract in U>U>. even if the defendant was not guilty of fraudulent I think the appeal should be allowed with costs here and in the Court below, and judgment entered for the plaintiff for $5,250, with jpe bS?wDt Davie, C J.:—I think the appeal should be allowed. Appeal allowed. , Appeal to S-.C. m> defendant appeaieoi ana the case was argued on 7th November, 1898. Argument. pLrj q c- for the appellant To obtain rescission of ail executed contract fraud must be proved: Bell v. Mnd-lin (1887). 15 Can.'SW ing relief has suffered injury: Allen v. Richardson (1879). 13 Ch>l|| 524; Clare v. Lamb (1875)'. L. E. 10 C P. 331 ; Diirondu v. Dv!m (1883), 9 App. Cas. 150; (1886). 6 Can. S. C B. 425. Trovers, Lewis and Hamilton, for the respondent, referred to Granger v. Fotheringham (1894), 8 B. C 590, ante, p. 71; Hudderf- field Banking Co. v. Henry Lister & Son (1895), 2 Ch. 273; Cooler I.] POPE v. OOLE. 263 v. PhMs (1867), L. E. 2 H. L. 149; Hart v. Swaine (1877), 7 Ch. D. 42. 1898. December 14th, 1898. Supreme Codbt op Canada. The judgment of the Court was deUvered by Strong, C.J. The Chief Justice :—The facts of this case are few and simple." In June, 1896, the appellant and others had taken up a gold mining i .claim in the neighbourhood of Rossland, British Columbia, of which claim the appellant claimed and represented himself to be the owner of one-half: This claim was designated as the Eldorado. The re spondent through his agent, Oscar G. Laberee, believing the repre- | sentations of the appellant to be true, and relying entirely on such ! representations, became the purchaser of the appellant's undivided ; half of the claim for the sum of $5,250, which Laberee paid to the ! appellant in cash, who thereupon executed an assignment of his un divided half to the respondent. Soon afterwards it turned out that i the greater part of the Eldorado plot was included within the limit? of a prior claim called the Mascot, and that a strip which remained, ■containing an area of some ten or fifteen acres', was included in other claims. The respondent, therefore, got nothing for the money he paid. There can be no doubt on the evidence that the appellant re presented himself to be the owner and made the sale in perfect good faith; that his representation, which turned out to be untrue, was innocently made, and that the transaction was free from fraud. In short, both parties dealt upon the mistaken belief that the Eldorado was an actually existing mining right, whereas in truth, owing to ether claims which were entitled to priority, having been previously made, the whole of the Eldorado was included in pre-existing claims. The respondent brought this action to have the contract rescinded and to obtain repayment of the money which he had paid for a con sideration which had entirely failed. The action was tried before -,*%§ the Chief Justice of British Columbia (then Mr. Justice McColl), and that learned Judge, acting upon what he considered to be the law applicable to the case, dismissed the action. On appeal to the Full Court (Walkem and Drake, JJ.), this judgment was reversed and a judgment entered for the respondent. The learned trial Judge •considered the respondent's right to rescission dependent entirely on the misrepresentation, and held that in the present state of the law an executed contract—and especiaUy an executed contract for the sale of an interest in land—will not be rescinded for mere innocent misrepresentation. That this was a correct view of the law as ad ministered by Courts of Equity up to the date of the amalgamation ffl jurisdictions effected by the'Judicature Acts, and as it has existed MARTIN'S MINII [v. Court Strong, C.J down to the present time, I am not upon the authorities able positively to controvert. Strange as it may seem that there should be dearth of authority upon such a point, I find that with the exceptionI of one case, that of Legge v. Croker (1811), 1 Ball. & B. 506, there ii no direct authority upon the point. That case of Legge v. Cmker supports the judgment of the Chief Justice, as Lord Manners there held that to entitle a party to have rescission of an executed contract for the sale of land upon the ground of misrepresentation there must be fraud. There is, no doubt, dicta the other way emanating from Judges, some of great authority, for we find Sir Edward Sugden, Lord Justice Turner, and Sir George Jessel, all stating the law to be that such a contract would be rescinded for innocent misrepresentation, provided, of course, that it formed the basis of the contract. It would not, however, be safe to act on these dicta. Mr. Dart -in the 6th edition of his work on Vendors and Purchasers, p. 900, has this passage, which I think a fair statement of the law. The learned writer says: A Court of Equity would not only refuse its discretionary remedy of specific performance, but would go further and restrain a vendor from asserting his legal right to claim damages in a court of law, on the ground that it was unconscientious in him to do so. But the principle would not be extended to the taking away after completion the price of the property, which at law had become absolutely the vendor's, without advancing the interference of the Court of Equity further than has yet been authorized by judicial decision. In other words it seems that misrepresentation is no ground for setting aside ati is deceitful in contemplat: of the jurisdiction of Coi principle, the present stal >n of a court of law. Whether ■ts of Equity is satisfactory, e: ■ of the authorities justifies its lis treatii Edward i on Specific Performance (2nd ed.)> v. M'Leay (1815), G. Cooper, 308, Sir Edward Fry ir p. 295, commenting c says: But it must hot thence be inferred that every representation that i the vendor has a good title will enable a purchaser to set aside an executed contract, or successfully resist specific performance. I conclude, therefore, in favour of the proposition that mere m\ nocent misrepresentation will not warrant the rescission of an executed contract for the sale of an interest in land. There is, however, another principle which I think may be invoked in the respondent's favour, and which is quite open to him oh the pleadings and evidence before us. It has been determined by several authorities and is well established law, that where, by the mutual mistake of the parties to a contract of sale, the subject of the sale turns out to be non-existent, or is already the property of the purchaser, both parties have fallen into error merely, and there being no fraud or deceit in the case, the | purchasi the idedby i failur of < rtofEq In ld 1 ed. rpa unconscientious tha a supposed considei the present case, it vendor should retain which has utterly fa In Bingham v. Bingham (1748), 1 Ves. Sr. 126, Fortescue, M. holding that where it appeared that the estate for which the purch money had been paid already before the sale belonged to the p chaser, decreed rescission and said that "though no fraud appea: and the defendant apprehended he had a right, yet there was a pi mistake such as the Court was warranted to relieve against, and : to suffer the defendant to run away with the money in considerat of the sale of an estate to which he had no right." Sir Edward Fry,- in the work ahead? (2nd ed.), says: Further, where both parties to a contract are at the time of the respect of which they are cont: mi at page 337 Dart 6th ed., p. 907) has this passage: ppear that the estate belonged to the purchaser, he can in e My at law, recover his purchase money, although he might his right from the abstract of title; nor is it clear that the ab a the vendor will bar the relief. And it has been held that a ser wh ), although without any fault on the part of the vendor, buj h in fact has no existence (e.g., a remainder expentant on an has been barred),-can obtain relief in equity; but it is of c f the purchaser buys an estate the existence of which he kno loubtfu . The principle has been doubted by Lord St. Leonards, but i In Cooper v. Phibbs (1867), L. E. 2 H. L. 149, Lord Cranworth and Lord Westbury both recognized the authority of Bingham v. Bingham (1748), 1 Ves. Sr. 126, and acted on it in decreeing rescission in a case in which the facts were essentially the same. The observations of Lord Cranworth leave no doubt as to the principle that where there is by reason of a mistake of this kind an entire failure of consideration, the completion of the contract by conveyance and payment of the purchase money will constitute no bar to relief by a Court of equity. In Cochrane v. Willis (1865), 34 Beav. 359, 1 Ch. App. 58, Lord Rommilly, M.B., in the Court below and Lord Justice Turner in the Court of Appeal, acted upon the authority of Bingham v. Bingham. Further, in Jones v. Clifford (1876), 3 Ch. D. 779, 792, Vice-Chan- cellor Hall, a very high authc Cooper v. Phibbs: Lord Westbury, in Cooper v. Phibbs, say See, also, Webster on Conditions of Sale, 2nd ed., p. 64, and Gierke1 & Humphreys on Sales, p. 527. The result is that the evidence in this record being clear that the consideration for the money paid by the respondent to' the appeUani utterly faded, as indeed appears from the admission of the appellant himself, the'respondent upon the authorities referred to was entitled to the relief the Court below has given him, and the appeal must be* dismissed with costs.. Appeal dismiss! iritli costs. ■te, p. 1; and cf. i Walkem, m rchibald, post, p. 320. : Mining Co. v. Ci MINING CO. -Right to Follow Vein—Practice Appeals argued together from orders continuing injunctions until statemen trial, and from orders refusing inspection of property in dispute. „ The Centre Star Mining and Smelting Company (Foreign) issued I writ in October. 1897. claiming an injunction against the Iron Mask Gold Mining Company (Foreign), on the ground that it was taking ore- out of the Centre Star vein where it had run into the Iron Mask id, and an ex.parte order was obtained restraining the Iron Mask ng the on motion to dissolve in luing the injunction until :aled ; was not gone into on this Prior to December, 1897, the Centre Star Company had begun the sinking of an inclined shaft on its own ground, on what it claimed was the apex ,of its vein, and on continuing the inclined shaft down the dip of the vein it passed under the side line of the Centre Star claim and into tlie Iron Mask ground. After sinking about 320 feet an obstruction' was encountered—this obstruction was styled in the affidavits by the various names of " watercourse." " fiat fault." and "mud seam." In December, 1897, the Iron Mask Company issued a writ against the Centre Star^ Company and obtained an ex parte MARTIN'S'MINING CASES. Lvol. with the inclined shaft. On a motion to continue, judgment was I given by Walkem, J., in October, 1898, continuing the injunction | • until the trial. This judgment was appealed from. (See infra). Subsequently the Centre Star Company came back to a point I about twenty-five feet from the bottom of the inclined shaft and ran I a drift eastward for ninety-five feet (as claimed) on the dip of the vein continuously in ore. Then from the end of that drift a winze I was sunk twenty-five feet in the same direction as the incUned shaft, following (as claimed) on the dip of the vein. There was again struck in the bottom of that winze what is variously termed a "watercourse," "fiat fault," and "mud seam." The Iron Mask Company then obtained an ex parte order in June, 1898, restraining the Centre Star Company from going on working at that point, and on a motion to continue judgment was given by Walkem, J., in October, 1898, continuing the injunction until the trial. Both of the above motions were heard by Walkem, J., who gave judgment as follows: October 4th, 1898. Walkem, J.:—I had intended preparing a written judgment in this matter, but owing to press of work I have been hitherto unable to do so. As all the counsel engaged in the case are now present, I may as well state my views with regard to the motion before mi That motion is one on behalf of the Iron Mask Company to continue an order granted by Chief Justice McColl restraining the Centre Star Company from further working in a certain shaft which is acknowledged to be within the surface boundaries of the Iron Mask , Company's ground. like the present one, are that the Centre Star Company is prima facie a trespasser, as it is working within the surface boundaries of its neighbour's ground. '' **";'* Twenty affidavits have been produced on behalf of the Iron Masir Company. A critical examination of them would be of no service to either of the parties. It is incumbent on the Centre Star Company to convince the Court by overwhelming evidence that it is a suffer^ duced; hence I hs ' less, further and i be forthcoming. ;ghts i the of iring, when, donfifr? on both sides wilt I.] CENTRE STAR Mil This judgment is inte me; that is to say, the m< the injunction granted aj Mask Company for a ec Chief Justice McColl. The It was claimed by the Iron Mask Company that the obstruction Jther hand, it was claimed by the Centre Star Company that'the ob- mtii he judg: trial, the Centre Star Company in both suits made applications under Eule 514 for leave to inspect the mining workings and premises in. question, and to experimentally continue the present prohibited workings in the shaft and winze in said vein, through and across a certain dike and alleged flat fault, toward and into the ore bodies in dispute, and to take samples in order to discover and ascertain the true facts in regard to the identity and continuity of the said vein and the rights mation and evidence requisite for the trial. Both applications were refused by Walkem, J., and the Centre The appeals from the orders continuing the injunction orders until the trial, and the appeals from the refusal of the Centre Star Company's applications for inspection, were all argued together on 19th and 20th December, 1898, before McColl, C.J., Drake and Maetin, JJ. Davis, Q.C'., for appellant: In appealing from the orders continuing the injunctions, we are not asking for a general dissolution of the injunctions, but for such a modification of them as will enable us to do, pending the trial, whatever work is necessary at the various points to determine the identity and continuity of the vein in dispute -to do sufficient work to put the Court at the trial of the action in possession of sufficient evidence of facts, so that it may decide properly. In the applications under Bule 514 for inspection, we werf asking for the same thing. Extralateral rights are not in derogation of the common law. See Lindley on Mines. 678. The uncontradicted affidavit of the manager of the Centre Star Company shews that it is impossible for this case to be properly tried unless this work is allowed to be done, that being the only way in which the true facts can be properlv shewn. MARTIN'S MI i Provincial Mil fore they ca: tinuity of tl Th nflic fida^ the different meanings attached to the word " vein." Originally " vein.* was understood in the sense of a true fissure vein—it was a geological definition—a cleft in the rock fiUed with mineral. This definition was first enlarged in Eureka Consolidated Mining Co. v. Richmond Mining Co. (1877), 9 Morr. 578, where it was held that any mineM alized zone with well defined boundaries could be considered a vein. In Hyma-n v. Wheeler (1886), 29 Fed. Bep. 347 : Chci^uuni v. Shreeve (1889), 40 Fed. Bep. 787, and cases there collected, it was held that although it was necessary to a vein that it should have waUs or houn- daries, it was not necessary that the walls or boundaries should be such as could be seen. . As a preliminary to the point which your Lordships wish argu5|| is the question whether or not, as a matter of law, any fracture in a vein destroys its continuity. 11' it did we would be out of Couri. The other side claims that the continuity of our vein is destroyed at the bottom of the inclined shaft and at "the bottom of the winze' and the question therefore arises, what is sufficient fault to destro continuity? The authorities are clear that all faults or fractures g not destroy continuity. A fault is a fracture, plus displacement: See Barringer & Adams lix.. lx. Whether or not a fault destroys the continuity of the vein 1 I question of mixed fact and law depending on the extent- of the di * placement: See Barringer & Adams, chi . Lindlev IIS. and Slrveis v. Williams (1879), 1 Morr. at pp. 564-5. As to the question of jurisdiction in the Court to make the order for inspection: My learned friend in the case below reUed on Ennor v. Banvell (1860), 1 DeG. F. & J. 529, but that case was decided before there was anv such rule as 514. That the Court has jurisdiction now is settled l>y Lumb v. Beaumont (1S84), 27 Ch. D. 356, Order 514 is directed expressly towards preparing evidence for the trial, and in that differs from section 58 of the Common Law Procedure Act, 1858, in which the Court had power to grant inspection. The reason is that the trial Judge should be in possession^ the true facts of the case; and if the Court can be satisfied that any particular procedure will bring this about, then the Court should allow such procedure to be carried out so long as it does not unduly harass-the other side. this ki: spe nspe 1022, a mining case in which the plaintiff company was mining upon fult7 lands owned by defendants and pending litigation the company obtained an injunction enjoining the defendants from interfering with f del development work in order to obtain a knowledge of the character and identity of the veins for use at the trial. See, also, Thomburgh v. Savage Mining Co. (1867), 7 Morr. at p. 680. Both the English and American cases shew that the Court will give everything necessary for inspection, even to utilizing the machinery of the adverse party. See Bennett v. Griffith* (1861), 30 L. J., Q. B. 98;Bennitt v. Whitehouse, (1860), 29 L. J., Chy. 326. In all the later American cases such orders as we are asking for .are made as a matter of course. See Cheesman v. Shreeve (1889), 40 Fed. Eep. 787, and Last Chance Mining Co. v. Tyler Mining Co. (1895), 157 TJ. S. 683. Gait, on the sat ward, a party is ] In following a vein from the apex down- espasser when he gets into an adjoining vas the first location upon Bed Mountain, and it was taken under the law. which gave the locator the right to follow the leads into adjoining territory—the Government then had a complete ownership of Bed Mountain, and the Iron Mask was not in existence. It is well known and it appears in the evidence, that these fractures are very common in the Bossland camp. None single round of shots in the face of the tunnel will go through one of these dikes, fissures, or faults and expose the ore intact on the other side. How unjust it would be to allow an adjoining owner to stop the working and take the mine if it happened that just enough rock was blown out to expose one of these small dikes. But this is exactly what we contend has taken place here. Bodwell (A. H. MacNeill with him), for respondent: On 19th AprU, 1898, an order was made restraining the Centre Star Company from drifting from the east end of the incUned shaft, and that order- was afterwards continued by consent until the trial. Then again on 31st May, 1898, another injunction order was made, and that was by consent continued to the trial, so that if liberty is given the Centre Star Company to do work at the bottom of the winze and on the ore in the inclined shaft, it would be practically getting over the consent that these matters should all stand until the hearing of the action. MARTIN'S MINING CASES. [vol. The first question to be tried is: Is there an apex of a vein on the Centre Star ground? The second is: Is there any vein in the • inclined shaft ? The third is: Supposing there is a vein of some sort, has the Centre Star followed that vein? Or has it stepped across from one small ore body to another, and thus made an apparent continuity of ore without any real continuity of the vein? Now if all these things are decided in favour of the Centre Star, there is another issue raised by the pleadings, which as a question of law, if our contention is correct, will settle the whole ease, and that is: Where are the vertical lines to be drawn across the apex which will define the lateral rights? Then assuming everything else in favour of the Centre Star, its vein is cut off long before it reaches" any of the points in question. We are ready to go to trial, and the real contest in the actions is i the its justr ran, upoi which Utigation can be ended, as we have upon these other in allowing this work to be uestion ■ it was Inspection should not be granted unless the injunction orders were not properly granted, and if they were properly granted we should be protected until the trial. The burden of proof of a vein and continuity of ore is upon the person asserting the extralateral rights; and if there is conflicting testimony on that point before the trial, tie Courts can grant an injunction, not to prevent a party mining on the vein, but to prevent his doing anything whatever "until he proves he has a right to be there. As to the authorities cited, the powe tionary. In Lumb v. Beaumont (1884), 27 Ch. of principle is discussed or expressed in the judgr a question whether the defendant had joined on i new drain. The defendant had made the connc about it, and the plaintiff did not; and a was to allow the plaintiff to see what work the defendant had done. For instance, suppose a man had an important document in a case known to be evidence for the plaintiff, there is not much question that the Court would order him to open his safe and allow it to be looked at. The reason Mr. Carlyle and others say that more work ought to be done on the winze, is that they have not been shewn the work in the Iron Mask winze, or on the drift, or at the bottom-of the inclined shaft. The American cases cited cannot be taken as safe guides because we do not know the circumstances under which orders for inspection were made in them, the practice under which it was done, or whether. rBule MASK MIND two' actions—the the disposal of < action, while it i • actic iBly v. Iron Mask action can b nd the settlement of the demonstrate our right com eerned, will not if decidec it at all. plete I aga ed after ly in so inst the s to the injunctions whicl al, they refer to doing wort i by : in £ consent i certain far as these workings defendant company, co Davis, Q.C, in f£ have been continued to direction which was considered not to be of any importance in providing evidence for the trial, and we cannot be estopped through them from asking leave to do work in other places. The contradictions in the evidence of the experts arise from facts which will disappear if further work is done. As to the argument that we have no machinery for carrying out such an order, all that is required is for the Court to appoint some one to determine what work shall be done. He referred to Last Chance Mining Co. v. Tyler Mining Co. (1895), 157 TJ. S. 683. Cur. adv. vult. December 24th, 1898. Drake, J.:—The Centre Star claim that they have on their land the apex of a vein which dips toward and under the land of the Iron Mask, and therefore they are entitled to follow this vein down to its termination. The Iron Mask deny the existence of a vein, ana say if there was one it has been cut off by a flat fault, and terminated. The Centre Star say that if you allow us to explore beneath and through this fault, it will be demonstrated that the vein we have followed, as we claim, exists on the other side of the fault. The Centre Star have been enjoined until the hearing from continuing the work. They now seek for an order to give them leave to explore in the land of the Iron Mask, so as to ascertain whether or not there is any ore below the fault, for they say, " if there is, then we are entitled to continue working it as part of the vein we have followed." The first thing to be decided in the action of Iron Mask v. Centre Star, is whether the Iron Mask can shew that the Centre Star has no apex and no vein. If they succeed in doing this, then the Centre Star has no use for the order asked for. If they fail, then the question has to be decided whether this fault is a solution of continuity of the vein. This is a question of law and 274 MARTIN'S MINING CASES. [v. 1898. facts; if it is decided against the Centre Star, then again there is>< ecem^er . ,necesg^y for £he order. Full Cqubt. j^ y. ^g <jeci<je(j jn their favour, then again there is no necessity for I Martin, J. I the order, for they have established their right to continue the work. I am not prepared to deny the Court has power to grant the oirpr | asked for, but there is no case that goes to such an extent based upon Eule 514. Lumb v. Beaumont (1884), 27 Ch. D. 356, is an authority that where a certain fact is known, such as an existing drain, the Court authorized the plaintiff to ascertain one other fact, viz.: whether this j drain was a drain made by the defendants to connect his house with ] the existing drain which was already known. The present circumstances are very different. The defendaSsH seek to establish a theory that the alleged vein exists below the fault, I not to prove any connection between two existing facts. If they had actual evidence of a vein both above and below a certain spot, and j sought to explore the intermediate ground, they would have a stronger 3 case. The Iron Mask has rights as well as the Centre Star. There j is no doubt that the Court has always exercised the powers of grant- j ing inspection of mines and their workings, but it has not gone to the j extent of allowing independent work. If the Centre Star can shew a clear title down to the fault, and j satisfy the Court that the fault is not such an interruption of the vein 1 matter as to constitute a termination of the vein, then they would he j entitled without an order to proceed. In the meantime every step is disputed, and every statement denied. I therefore do not consider that the Centre Star are entitled j to the order asked for. In equity the rule is that when in conscience the .defendant has; a right equal to that claimed by the plaintiff, the Court will not grant j discovery. Mitford PI. 199. The parties here have equal rights depending however on different 1 titles. The Centre Star has a right to follow a vein into the adjoining claim. The Iron Mask, until that vein is proved, has a right to a 1 ore within vertical lines of their claim. I think it should be left to the Judge at the trial to say whether j or not actual work should be done for the purpose of elucidating an' particular point with regard to the issues raised. The Chief Justice authorizes me to state that in his opinion the Centre Star appeal ought to be dismissed. The appeal will therefore be dismissed with costs. Martin, J.:—In this matter I regret I am unable to come to the same conclusion as my learned brothers. \TTBE STAR M«] IRON MA The Centre Star and the Iron Mask are adjoining m but the Centre Star Mining and Smelting Company, the first mentioned claim, by virtue of the Mineral Act, C. S sec. 77, is entitled to extralateral rights, the secti that: In the course of sinking an inclined shaft upon the dip of a vein, the apex of which the Centre Star Company alleges Ues within its surface lines, the said shaft entered within the lines, and underneath the surface of the Iron Mask claim, and there encountered an obstruction which the Iron Mask Company alleges is a flat fault destroying the continuity of the vein, but which the Centre Star Company contends is only a fracture, not fatal to continuity. The Iron Mask Company also denies the existence of any such vein as the Centre Star Company relies on as a justification of its workings, and further denies, if there be such a vein, that it is continuous or identical. The Court is informed by counsel for both parties that the questions involved come before us for the first time, and as they are as important as they are novel, careful consideration is required to arrive at a proper conclusion. The Centre Star Company has been enjoined, by two orders of this Court, until the trial, from further sinking the said inclined shaft, or sinking or carrying on any other mining process at the bottom of the winze which has been sunk from the uppermost drift, run in an easterly direction from the said shaft. the Centre Star v. Iron Mask, by way of summons for leave to inspect the mining workings and premises in question, and to experimentally said vein, through and across a certain dike and alleged flat fault, toward and into the ore bodies in dispute, and to take samples in order to discover and ascertain the true facts in regard to the identity and continuity of the said vein, and the rights of the respective parties, ining full information and evidence re- the trial. These applications were refused, and the Centre Star Company now appeals from the refusal, and further asks, not for a dissolution of the injunction, but for a modification of it only to such an extent In opposition to the application it is contended by counsel on behalf of the Iron Mask Company that at the trial it will have to shew that there is no apex and no vein in the Centre Star ground, and if either of these points can be proved, then the appellant fail, and have no need of the inspection it applies for. But surely the answer to that is that even if there are three or more main points' - in this case, the solicitors for each party are bound to be armed at all points to meet any and all issues raised on the pleadings; if theyC: did not take every reasonable precaution in this respect, they woulflT fail in their duty to their clients. Counsel for the respondent further urged that there was a prac- • tical danger to his client, because if the inspection and work be permitted, and, as a result, connection is shewn to exist, between the1 Centre Star alleged vein and the disputed ore bodies, the difficulties of the respondent would be vastly increased, because after such connection was made any mining man looking up the Centre Star shaft- would say (so cleverly has the work in the shaft been done, jumping' from one small fissure or vein to another) that it was all part of the same vein. But surely this is, when considered, really an argument? man" would take and the Centre Star istence of the apex, in the pleadings, yet! the respondent chiefl; fiedthat so far as is appellant has made ) m&y be the result of the Court should be ] ing the truth as to w fault or a fracture; placement to an "u STAR MINING ppellant's IRON MASK MININ the Id 1 do Th «h ty and identity of the vein argument before us it was plain t in is the alleged flat fault. I : l for the purpose of this applic i for ispe ; pur] let with i ust be a ( r & Adai In lilar i pursued by Courts t other feand inspection pending 1of .course frequently, resorted to. Minerals of Scotland, at p. 255, mi . motion was granted to give the pi on forty-eight hours' notice, acces litigation seems to be, though not In Stewart's Mines, Quarries and sntion is made of a case where " a irsuer and two mining engineers, is to the defender's workers and mineral stores, and to mineral properties and workings for the purpose of enabling him to give evidence at the trial.'' That is exactly the object for which inspection is sought here. In England, according to McSwinney on Mines, 610, the rule is the same. After mentioning that the order for inspection may be obtained, he proceeds, " And as auxiliary thereto, he ma}7, in proper cases, obtain leave to measure and dial; to make sections, plans machinery, to remove obstructions to the inspection; and, for the latter purpose, to break up the neighbour's soil. And the neighbour will be ordered to give all reasonable facilities in the way of ventilation and otherwise for effectuating those objects;" and he adds, " the right in question not depending on the balance of testimony, but on the . circumstance that by its exercise the fact of the encroachment will be best ascertained." In Australia (Victoria) as appears by Armstrong's Law of Gold Mining in Victoria, at pp. 101-3, it appears that "apart from the power inherent in the Supreme Court," the Warden of the Goldfields has power to authorize an entry on a claim in case of encroachment, and liberty to inspect a mine to ascertain the true limits of a claim, seems to be an every-day proceeding. The only restrictions upon this appUcant seem to be that (1) the application must be bona fide, and not sought for an indirect object; (2) no other means are open of obtaining the required information, and (3) no definite injury will result from the inspection. ■ ■ MARTIN'S MINING: CAUSES.; [vol. 9- Owing to the similarity of the law in this case to that of the - ' United States* as already noticed, it is to the Courts of that country odet. -j-j^ we mViSfc necessarily turn for the greatest assistance. In this [n, .1. respect I follow the course pursued in The Queen v. Bradlaugh (1877), 2 Q. B. D., by Cockburn, C.J, where he said (p. S.ffl : of them iu the solu- " Ought a. Cc ■of the impo n and su rtanc tb applian fa •our the affirm a Court of Oha These expressions could not possibly have a fitter application than the present. I refer at once to what would appear to be the leading case on the subject, Thornburgh v. The Savage Mining Co. (1867), 7 Morr. 667, decided by Baldwin and Wilcox, JJ., of the United States Circuit Court of the District of Nevada. The circumstances in that case are very similar to these. An injunction had been granted, and an application was made for an order of survey and inspection of the premises in dispute, and of such mining works adjacent as might serve to enlighten, the issue of fact in the action. Objection was taken to the jurisdiction, and to the exercising of it. In delivering judgment Mr. Justice Baldwin said (p. 680) : t of Equity, in a mining case, when it has been convinced :hereof, for the purposes of the trial, to compel an inspec- y of the works of the parties, and admittance thereto by means of at the mine? All the analogies of equity jurisprudence ; of this proposition. The very great powers with which i is clothed, were given it to enable it to carry out the administration of nicer and more perfect justice than is obtainable in a Court of Law. That a Court of Equity, having jurisdiction of the subject matter of the action, has the power to enforce an order of this kind, will not be denied; and the propriety of exercising that power would seem to be clear indeed, in a case where, without it, the trial would be a silly farce. Take, as an illustration, the case at bar. It is notorious that the facts by which this controversy must be determined, cannot be discovered except by an inspection of works in the possession of the defendant, accessible only by means of a deep shaft and machinery operated by it. It would be a denial of justice, and utterly subversive of the objects for which Courts were created, for them to refuse to exert their power for the elucidation of the very truth—the issue between the parties. Can a Court justly decide a case without knowing the facts; and can it refuse to learn the facts?" This judgment was approved and followed in St. Louis Mining & •Milling Co. v. Montana Co., Limited (1890), 23 Pac. Eep. 510, which case was in turn followed by The Blue Bird Mining Co., Limited, v. Murray et al, at p. 1022 of the same volume. This last case I draw attention to as being particularly like the present, the main portion of the application being for liberty to prosecute development work by extending a drift in order to determine the continuity and identity *Cf. 184, 190, 236, 282, 307. ^CENTRE STA IRON MASK MINING CO. of a vein. In the Blue Bird case it was held that the Court had in- isgs. herent equitable jurisdiction to make the order asked for irrespective December 24 of the Montana code. In both these cases, which (as also does the Full Coubi Thomburgh case) review the earUer EngUsh authorities, the point is Mar^ j. made clear that inspection is granted " as the best means of discovering the truth," and the same object is to be attained at all times, "regardless of the commencement of the suit, and that is the best evidence for the trial." (pp. 515, 1024.) It is further stated (514) that "There.is not an assertion or suggestion by any jurist that rights of property are impaired or transgressed" by the making of such orders. The law, then, being to my mind settled, in what does the application of the appellant fall short of the requirements above set out for the proper exercise of our judicial discretion ? I am unable to discover any reason why they should be deprived of the benefit of a pro- | ceeding which I regard as one of the most valuable aids a Court can ; have for the satisfactory disposal of the very difficult questions which : arise in these mining cases. As the Master of the EoUs pointed out j in BennM-v: Whitehouse (1860), 28 Beav. 122, it is not "a question I depending only on the balance of testimony. . . . The Court requires the best evidence of the fact, and the best evidence here is by | an examination of the workings in the defendants' mine." The best i evidence here is also the same. In my opinion the appellant has made out a strong case for the exercise of our discretion, our sound judicial discretion grounded on precedent, in its favour. The application is bona fide, there is no other way of obtaining the required information, and no definite ■injiny is shewn as likely to result. In addition to the foregoing we have the following circumstances set out in the affidavit of John B. Hastings, mining engineer, the manager of the Centre Star Company, filed in support of the application, paragraphs 2, 4, 6 and 7 of which are as follows: 2. " ; That before the plaintiffs can safely proceed to the trial of this action, and in order to determine the ownership of the disputed ore bodies, it will be necessa ry that the plaintiffs be permitted to sink through the water course or alleged flat fault, and do certain work and excavations for the purpose of ing and tracing the plaintiffs' vein through and beyond such water towards and into the disputed ore bodies, and also to tunnel, sink or irough the vertical dike lying immediately to the west of the plaintiffs' 1 shaft, and referred to in the affidavits, in order to locate the plain- Jin on the westerly side of said dike, and trace such vein into the dis- pnted c >re bodies situate on the west side of said dike. 4. " That unless such additional work be done it will be impossible to as- the true facts in regard to the identity and continuity of the said vein, and pla ice the Court in a position to deal with the said action upon its merits at the trial thereof. G. " That I verily believe that if the plaintiffs are permitted to do a reason- able an wunt of work for the purpose of obtaining the true facts in regard to That the expense of preparing for the trial of this action will be very nd unless the defendants are permitted to do the necessary work in and sufficient evidence in regard to the continuity of the rights of the parties to the ore bodies in dispute cannot, as I ly believe, be determined at the said trial." 5 These allegations remain uncontradicted, and even were they not largely supported in several particulars by expert evidence of the highest authority, e.g., Mr. W. A. Carlyle, late Provincial MineTfl^k gist, would of themselves fuUy support the application. It may be said that if the required inspection be permitted it may be fruitless, for another obstruction may be met with in the eourst; of a few feet, and another application would be made, and so on ad infinitum. I have considered this objection with some care, and <jjj$j, answer to it is that the Court should not be deterred from makigg an order which at the present time must be deemed to be reasonable, and in the best interests of justice, simply because there is a chance . that in the working out of that order something not now shewn, and which cannot be shewn to exist, may interfere to render.the present expected good consequences of the order of no avail. \ In the memorandum of judgment of the learned Judge appealed from, it would not appear that all the features of this case above mentioned, particularly the application for inspection, were considered by him, and I understand that he deemed himself bound by the case of Ennor v. Barwell (1860), 1 DeG. P. & J. 531, which.$a& I quoted by the respondents, and that Lumb v. Beaumont (1884XjiPB Ch. D. 356, and other eases cited to us were not before him, otherwise. | think I am justified in believing that he would have allowed the inspection on the principles above established. I would allow the appeal with costs. Appeal dis' Note.—On 9th January, 1899, leave •efused. See as to costs: same case, post, p. 31 order and enforce White Co., post, pp. 468, 513. As to noninterference with Judge's discretion in grantini and generally on that question, see Gray v. Hardmun (1896, i m at Nelson on 27th July, 1897. The facts appear in the judgnn Davis, Q.C, Bodwell and Bowes Wilson, Q.C, and John Elliot, adv. vult. April 10th, 1898. Walkem, J.:—The plaintiff has brought these adverse proceed- Judgment ings to establish his right to the possession of certain mineral land walkem J which is included in his location named the Olivette and for which as the Legal Tender, the defendant Haney is applying for a Crown grant under the mineral laws in force prior to 1891, the Legal Tender having been located under' the Act of 1888. Prior to the location and record of the Legal Tender the same ground had been located and recorded, viz., in August, 1890, by one Thomas Dunlop, who died four months afterwards. His brother became administrator to . his estate, and has been made improperly so, as I think, a defendant herein, for he has not applied for a Crown grant. However, he has put in no defence or disclaimer. The present proceedings are in the form of trespass, instead of ejectment, e.g., " the defendants have broken into and are trespassing upon the said Violet (amended to Olivette) mineral claim ground and have committed waste therein." Trespass is not the proper action for testing a question of title. Mere possession is sufficient to support trespass. A tenant, for instance, although he is not at liberty to dispute his landlord's title, may maintain trespass against him. " Trespass lies to injury either to real or personal property or to the person accompanied with immediate violence, but where the plaintiff seeks to recover land itself, he must do so by ejectment." Smith's Action at Law, 45 and 414, and see Stephen on Pleading, 7th ed. MARTIN'S MINING CASES. [vol. Since the Judicature Acts, ejectment has been abolished and an action for the possession of land substituted for it, but the change ' is merely one of nomenclature. In the United States " the distinct names of various actions have been abolished, but not the distinctions between them; the term ' ejectment' .has its specific application as formerly," and, " it is the proper to bring and the one, in fact, gener- • ally brought in support of an adverse claim." Morrisson's Mining Eights, 250; and Becker v. Pugh (1887), 13 Pac. 906. The exception is where the plaintiff is in possession, which is not this case, when his proceedings must be for equitable reUef: Book et al. v. Justice Min. Co. (1893), 58 Ped. Eep. 827. I mention these American authorities because our system of adverse proceedings is borrowed to a certain extent from the United States.* The alleged trespass has not been proved; nor has it been shewn that the location of the Olivette is a valid one. The plaintiff bought' the Olivette from one Enslow who located it on the 26th and recorded it on the 27th of February, 1895. The location was, therefore, made under section 4 of the Mineral Act Amendment Act of 1894. (Quotes !•) I post" as mentioned in the above section, is defined by- Act of 1891 to be itanding not less than four feet above the ground, and squared or sides for at least one foot from the top, and each side so squared measure at least four inches on its face so far as squared or I stump or tree cut off and squared or faced to the above height This definition of a legal post has been repeated in the successive Mineral Acts of 1893, 1894 and 1896. It was first adopted as to the height of post and its dimensions at the top as far back as 1867. or over thirty years ago. (See Bevised Laws No. 90, sec. 56.) All this tends to shew that the Legislature meant that it should be strictly complied, with. The expressions "not less than" and -"at least" must therefore be given their ordinary meaning. No evidence was given on behalf of the plaintiff that he had any boundary posts or discovery post or a defined location line, although the validity of his location in all these respects is specifically denied in the defendants' pleadings. Except a plaintiff's case is admitted, he must prove it or fail. It is no answer in a question of title, to say, as has been said here, that the defendant's pleadings shew that he, too, has a defective title. Assuming in favour of the plaintiff • that this action is in the nature of ejectment he could only succeed by the strength of his own title. * Cf. pp. 184, 190, 230, 277, 307. i.I CLARK v. BLANET, et al. What Uttle evidence there is as to the location has been produced 1 by the defendants' counsel. It goes to shew that post No. 2 is on the Jaa' Le Eoi Company's ground; and that instead of its top being at least Full four inches square for a foot downwards it is only three and a half j inches on three sides and th and; in each case, for only four inches dow: been given as to the height of this or of No. post. It has, therefore, not been shewn tl legal post. Moreover, the notice on post N the terms of the statu the right and to the lei "Initial Post." It is, consequently, impossible for the Court to grant that.part of the plaintiff's prayer for relief which asks, " that it may be declared that the Olivette mineral claim is the only valid and existing location on the ground. For these, and the reasons already given, the action must be dismissed with costs. r inches on the fourth, ards. No evidence has post or of the discovery ; any one of them is a 1 does not comply with t omits to state the number of feet to of the location line and also omits the words Thei iff appealed to the Full Court and the appeal was argued on 7th November, 1898, before McColl, C.J., Ikvtng and Mart •IN, J J. Davis, Q.C. (Duff w ith him ), for appellant. Wilson 1 Q.C, for re ispondent. Cur. adv. vult. January 9th, 1899. Per C uriam :—The appeal must be dismissed with costs Appeal dismissed with costs. ichomberg The plaintiff's location v. Holden, post, p. 290. tie - character and nature was junior to th of adverse action at of the j defend Lookout lining Co., ante, p. 126; Dunlop v. Haney, ante, p. 232. As to defects in location: see cases cited in Manley v. Collom, post, p. 487. As to the result of a mere affinnapce of a decision, see authorities cited, <ost, p. 499. 10®kmi MARTIN'S MINI ESQUIMA I & X- LNAIM0 EX. CO. \ (6 B. C. 306; 9 oal Mine—2 itle—La "hes—Practice—Plea Decision of 1m rder of Iff Plaintiffs obtained a summons to strike out as embarrass paragraphs 6 and 7, of the statement of defence, as follows:— 6. The defendants further say that the plaintiffs neither own, nor are entitled to mine for, any coal under the sea, either opposite the lands kt as Newcastle Townsite as alleged or elsewhere at or near the city of Nanj and the defendants further say that all coals heretofore mined by them or being mined by them were and are the property of the defendants and notihel property of the plaintiffs. . The Bodwell, (Luxton. with him), for plaintiffs, cited Phillips Phillips (1878), 4 Q. B. D. 127, and argued that particulars of the] plea of laches should be given. Hunter, (Helmcken, Q.C, with him), for defendants: (Merj XXL, Bule 21, renders P/h7/i> v. Phillips inapplicable. Asto the! laches, particulars ought to be asked in the usual way at ajpr| stage. November 23rd, 1898. iragraph is well pleaded^ : with the rubs. As to the stated as shewn in Bullen &\ Irving, J.:—I think the sixth meets the issues raised in accordai seventh, I think particulars should Leake, 992, Four days in which to Judgment AccordinW. L Plaintiffs appealed, and the appeal was argued on 11th January] 1899, before McColl, C.J., and Walkem and Drake, JJ. Bodwell and Luxton, for appellants. Helmcken, Q.C, and Ilunli-r, for respondents. Cur. adv. vult. 2C0umt of CLL Cc es caused McColl, And the defendants further - them, or now being mined : the defendants, and not the by them, ! property lave this part of the defence i struck out . by Jessel, JO r-po n Gledhill v. action for the recov- n, which these plain- ad wh uld claiming title in the same W according to the case of Palm, That a defendant will in ticulars in similar circumstai v. Fitzpatrick (1888), 38 CI L. J, in that case, " The old i to conceal as much as possih trial,'but under the present leing in general terms I am unable to s, having chosen to claim property in , would-be ordered to give as of course j y. Palmer (1892), 1 Q. B. 319. i proper case be required to give paries is shewn by the case of Spedding D. 410. As remarked by Cotton, fstem of pleading at common law was ! what was going to be proved at the j to see that a party so states his case that his opponent will not be taken by surprise." If the defendants are not content with traversing, but think it material to plead title in themselves, it is surely necessary that the plaintiffs should be informed in what way (without the defendants' evidence being disclosed) the claim is made. I think that the defendants should give reasonable particulars, or in default, that the allegation in question ought to be struck out. Walkem and Di Note.—See ante. ftcurred in allowing the appeal. Appeal allowed with costs. Liberty to defendants to amend. 1 MARTIN'S MINING CASES. Sunshine, Limited, v. Cl M, ET AL. and Agent- An agent who locates in h if he repudiate the trusl of Frauds, be declared i If a locator include i ord of such location will be rectified s 3 own name a mineral claim for his principal cai in the absence of any writing to satisfy the Sta trustee for such principal. ground then occupied by buildings, s alleged mineral . the Silver Cup. Action for trespass on the plaintiff compan; 'claim, the Gold Bug, adjoining its admitted clai Tried at Victoria, on July 18, 1898, by Drake, £ The plaintiff's buildings were in great part on the Gold Bug, and that claim was partly used as a waste dump from the working^ of the Silver Cup claim. • For the purpose of the matters of law here reported, it is sufficient to state that the learned Judge found on the disputed facts that the defendant Cunningham, then the foreman of the plaintiff company, had staked the Gold Bug in his own name, but really as agent for his employer; this agency was not evidenced by any writing, nor was there any subsequent acknowledgment of the trust. The defences set up were the Statute of Frauds, and sec. 50 of the Mineral Act. A. E. McPhillips, for plaintiff: The Statute of Frauds has no application here because we do not seek to enforce a transfer, but a trust, which may be established by parol evidence—Rochefoucauld. v. Boustead (1897), 1 Ch. 196; Lees v. Nuttall (1834), 31 Eev. B. 99; Heard v. Pilley (1869), L. E. 4 Ch. 552; equity will reUerfp"'- case of fraud—Haigh v. Kaye (1872), L. E. 7 Ch. 474; Booth v. Turle (1873), L. E. 16 Eq. 182; Taylor v. Salmon (1838), 4 M. & C. 134; the 50th section of the Mineral Act does not apply becauselfl do not set up a transfer but a trust. Whyte, Q.C, for defendants: There must be a writing the trust; the employee was not in a fiduciary capacity. Sei mick v. Grogan (1869), L. E. 4 H. L. 88. provm McCo y lM, I January 23rd, 1899. Drake, J.:—(After stating the facts) . . a trust may be created without writing, but it must be manifested by some writing I that there was such a trust. Forster v. Hale (1798), 3 Ves. 696 . . J Then if no trust can be proved to comply with the statute, the company contend that the defendant, Cunningham, is not entitled to set up the Statute of Frauds as a shield to protect himself from the effects of his own fraudulent act. The authorities in support of such a proposition are numerous, and are collected in re Duke of Marlborough (1894), 2 Ch. 133. In Rochefoucauld v. Boustead (1897), 1 Ch. at p. 206, Lindley, L. J., summarizes the law in this way: " It is established by a series of cases that the Statute of Frauds does not prevent the proof of a fraud. It is a fraud on the part of a person to whom land is conveyed as a trustee, and who knows it was so conveyed, to deny the trust and claim the land himself. Consequently, notwithstanding the statute, it is competent for a person claiming land conveyed to another, to prove by parol that it was so conveyed upon trust for that claimant, and that the grantee, knowing the facts, is denying the trust and relying upon the form of conveyance and the statute in order to keep the land himself." Applying this exposition of the principles of equity to the existing- circumstances it is necessary for the plaintiffs to shew that Cunningham located the claim for the company, and at their request. The- evidence on this point is as follows:—(Here the learned Judge reviews the evidence and finds that Cunningham did so locate.) None of the cases cited is exactly like the present. The majority of them are cases where land has been conveyed for a particular object, not expressed in the conveyance, and where the plaintiff had a primary interest in the land which the defendant, by setting up the statute, sought to avoid. Here the plaintiffs had no such primary interest. The land was not theirs, and they could not obtain an-interest under the Mineral Act, and there was no necessity for the- claim to be taken up in any other name than that of the company. But, in my opinion, the principle on which these cases have been decided is equaUy appUcable in the present one. The statute declares there must be some writing signed by the party who declared the - trust and the Court will take hold of acknowledgments by recitals in deeds, affidavits and letters, in order to establish the trust; and I can find no case where the trust and the manifestation of it, both being by parol, were held valid. Cunningham knew when he made the affidavit in order to obtain the record, that the buildings of the Sunshine Company were on- the land, yet swore that there were no buildings on the ground, and' j was content, as he says, with a verbal explanation from the Eecorder,. ryan v. Mcquillan. Eyan v. McQuillaj (6B. C. 431). Where both parties in adverse proceedings fail to establish title to the property in dispute the Judge will so find, and direct judgment to be entered accordingly, without costs to either party. Adverse action tried at Nelson, before Martin, J., on 8th Feb- Statei ruary, 1899. The facts sufficiently appear in the judgment. Christie, for plaintiff. Argm Abbott, for defendant. Martin, J.:—In this matter I cannot come to the conclusion that Jud£i either of the parties has given satisfactory "affirmative evidence of title to the ground in controversy," as required by sec. 11 of the Mineral Act Amendment Act, 1898. The question very largely depends on the location of a former claim, the Grizzly, and though the Court would expect to receive definite evidence on such an important point, yet, owing to the neglect of the plaintiff to have his ground even measured, not to say surveyed, and the defendant's being unable to procure the attendance of a certain witness, the Court is left to speculate, practically, on what should be clearly proved. This is a very undesirable situation, but fortunately the section above quoted now enables me to adopt a course which in every way meets such a state of affairs, and I con- j sequently find that title has not been established by either party. ; and judgment will be entered accordingly, without costs, as provided I by the statute. Judgment accordingly. Note.—See the next case. Same course , post, p. 401. This section considered in Dunlop v. Ha ark, post, p. 428; Cook v. Denholm, post, adopted i MARTIN'S MINING CASES. SCHOMBERG V. HOLDEN ET AL. (6B. C. 419). Section 11 of the Mineral Act Amendment Act, 1898, applies to all adverse proceedings, including those commenced before the Act. By proving (1) his free miner's certificate; (2) prior location and due record; and (3) the overlapping of the claims in dispute, a senior locator who is plaintiff in adverse proceedings makes out a prima facie case. Adverse action under the Mineral Act and Amendment Acts x to establish plaintiff's title to the Black Prince mineral claim, the defendants having restaked the claim under the name of the Catardin and appUed for a certificate of improvements. The action was tried at Nelson before Martin, J., on February 11th, 1899. It was admitted that the plaintiff "was a free miner, and that the Catardin claim which the plaintiff was attacking by these adverse proceedings occupied practically the same ground as the plaintiff's claim, the Black Prince. Bowes and Lennie, for plaintiff. TF. A. Macdonald, Q.C, and Grimmett, for defendants. Counsel for the plaintiff put in a certified copy of the record shewing priority of location and due record of the plaintiff's claim, and stated that, it being admitted by the defendants that the defendants' claim occupied the same ground as the plaintiff's, and that the plaintiff was a free miner, this would be the case. Macdonald moved to dismiss the plaintiff's action on the ground that affirmative evidence of his title had not been established as required by sec. 11 of the Mineral Act Amendment Act, 1898. Bowes, in reply: The section relied on does not apply in this case because the action was commenced prior to the passing of the statute. The plaintiff has made out such a ease that if no evidence is offered on the part of the defendants the plaintiff would be entitled to judgment. A combined reading of the judgments in Water- house v. Liftchild* decided by McColl, J., on April. 1st, 1897, (The, : Grand Prize Case), and Fero v. Hall* decided by Drake, J., on j July 6th, 1898, (both unreported) support this view. reported i I.] SCHOMBERG v. HOLDEN et al. Martin, J.:—As to the first point I am of opinion that the section in question applies to all cases which come before the Court for : trial. As to the second point I think the plaintiff has made out such a ease that he would be entitled to judgment if no further evidence were forthcoming. In Waterhouse v. Liftchild, the present learned Chief Justice laid it down that " ordinarily occupation may be found to consist of a valid location, and record under the Act." In Fero v. Hall, Mr. Justice Drake decided that where in cases of disputed claims both parties do the necessary assessment work and obtain a certificate of work "the Court has to fall back upon prior location and record;" and sec. 27 of the Mineral Act provides that "in'case of any dispute as to the location of a mineral claim the title to the claim shah be recognized according to the priority of such location, subject to any question as to the validity of the record itself, and subject, further, to the free miner having complied with all the terms and conditions of the Act." Applying the foregoing to the present case, it would seem that .where the attacking party is the prior locator, what he would have to prove in an adverse action is: (1) His free miner's certificate. (2) Prior location and due record. (3) The overlapping of the claims in dispute, wholly or partially. Here the first and third of these requirements are admitted, and the prior location and due- record are proved in the usual way, and a prima facie case is thus- established; therefore, it is for the defendants to displace the plaintiff from this position. Of course where the plaintiff is a subsequent (junior) locator, the position is reversed, and he must be prepared to establish his case in detail. Motion overruled. Note.—See the preceding case and note thereto; Dunlop v. Haney, post, p. 369; Cleary v. Boscowixz, post, p. 506, and Gelinas v. Clark, post, p. 428. For actions by junior locators and proof required: see Bleekir v. Chisholm, ante, p. 112; Clark v. Haney, ante, p. 281; Pavier v. Snow, post, p. 384; Cald* wing th b three thiDgs above mentioned s itis ties the on posed upon bin . 131 o : the Minera Act. It n ay be larked th< t thf t section s ume th or adv ed would be tl e holder of d;" but of c ourse the re rerse m igh ; be, and very often has b e. No e also the v ide languag a used ng 1 nes of the uit or matte advers ght of ar y kind." This >uld be and (parti :ularly at the end of ) with ec. 11 of ISO 8. in regard to which ee the precedin g case. MARTIN'S MINING CASES. the judgment of Forin, Co.J., for the County of ling certain mechanics' liens filed by the plaintiff it the Northern Light mineral claim, owned by the ly. Separate actions were brought by five different rce their respective liens, and they were all consoli- ogetber as one action, parts of the affidavit of lien of the plaintiff Holden ; Northern Light n E October, 1898, the 31st day of affidavits of the other plaintiffs were similar to that of Hol- n, except that they contained the words as a miner instead of as reman. The affidavits were sworn before F. S. Andrews, a com- issioner for taking affidavits within British Columbia. I The trial took place at Nelson, on 22nd and 23rd December, 1898j '. Forin, Co.J. • Macdonald, Q.C, and P. E. Wilson, for plaintiffs. S. S. Taylor, Q.C, for defendant. December 23rd, 1898. Forin, Co.J.:—In my opinion the only point referred to in the argument of the defendant's counsel which requires attention is that the Mechanics' Lien Act does not apply to work done in a mine. I think that the Act does apply, and refer to sec. 4. ch. 132. I see bv the Centurv Dictionary that an artisan is also defined as a mechanic, and a miner is surely included under sub-sec. 5, sec. 2. The defendant appealed to the full Court on the grounds, amongst others, that the affidavits of lien were defective, and that the Mechanics' Lien Act does not give a lien to a miner for work done on a mineral claim. nder the head of >f sec. 2, " or the person doing or it would include chimney ers never intended. The " per- zjusdem generis with I.] HOLDEN v. BRIGHT PROSPECTS GOLD MINING, &c, CO. : The appeal was argued at Victoria, on 8th March, 1899, before Walkem, Drake, Irving and Martin, JJ. S. S. Taylor, Q.C, for the appeal: The right to a lien is by vir- ] tue of the statute and in derogation of the common law, and hence the provisions of the Act wUl be construed strurtly against the plaintiffs. See Archibald v. Hubley (1890), 18 S. C E. 116; Morse v. Phinney (1893), 22 S. C E. 563; Haggerty v. Grant (1892), 2 B. C. at p. 176; Smith v. Mcintosh (1893), 3 B. C at p. 28; Harding a-. Knowlson (1859), 17 U. C Q. B. 564; Barron, 2nd ed., 506. Section 4 of ch. 132, E. S. B. C 1897, gives the class entitled, to a lien and the things on which a lien may attach. If a miner is entitled to a lien he "labourer;" the words in sub-sec. 5 o: labour for wages," must be limited, sweeps, farm labourers, and nianv otbe son doing labour for wages " must ue ejusacm generis wim mecnani and artisans, and pick and shovel men would not be included. See The Queen v. Edmundson (1859), 28 L. J.. M. C. 213: (treat West- em Railway Company v. Swindon and Cheltenham Bhilway Com- & C. at pp. 99 and 100; Hardcastle, 98 and 201. If the Legislature had intended to give a miner a lien, it would have mentioned him specificaUy in sec. 4. Compare the Act of 1879 in which "miner" was included, and the Act of 1888 in which he was left out. As to the affidavit: A Commissioner is not a person authorized to take oaths, and therefore the affidavit is defective. There is a dis- : tinction between oath and affidavit. See sec. 8 and B. S. B. C. 1897, ch. 3, sees. 2 and 11. When the work was finished or discontinued should have been stated definitely—on or about is not sufficient. Duff, for the respondents, who was heard only on the question of the sufficiency of the affidavit: Finished or discontinue/I on or about are the exact words used in Schedule A. of the Act. (nder sec. 3 these forms are supplied to every Government agent. He cited Truax v. Dixon (1889), 17 Ont. 366, and Brown v. Jowett,, (1895), 4 B. C. at p. 53. Per Curiam:—The Act applies to the case of a free miner, and j,Kig it has been sufficiently complied with. The appeal is dismissed with | costs. Appeal dismissed. MARTIN'S MINING CASES. Spencer v. Harris.* Lands—Squatter—Title. A Crown grant of a mineral claim vests such a title, at least, in the grantee that a squatter upon such lands must show a better title or move off. Where such a squatter takes a lease from the Crown grantee, he cannot maintain an action to set aside the lease if the lessor has observed its covenants. ^ Per Irving, J.:—Sec. 16 of the Mineral Act Amendment Act, 1897, is declara- . Appeal from the judgment of Irving, J. Action to set aside a lease made between the parties of a certain lot on Beco Street in Sandon, B. C, and for the return of all moneys paid under the lease and for an injunction to restrain the defendant from taking proceedings by distress thereunder. The trial took place at Nelson, The facts roth. ppe McCann, Q.C, for plaintiff. The Attorney-General (Joseph Martin, Q.C,) for defendant. Cur. adv. vult. January 18th, 1899. Irving, J.:—The plaintiff's case was that the lease had been entered into by mistake, that he was under the belief that the defendant had a Crown grant of the surface, whereas in fact the defendant only" enjoyed such rights as were conferred on holders of Crown grant's issued under the Mineral Act of 1895, that the plaintiff, believing that his own possessory title could not stand against the defendant's Crown grant, accepted on the 1st January, 1896, a lease from the defendant for a term of three years at a rental increasing year by year, that during 1898, he attorned and ps ber, 1898, having becom title, he issued his writ so paid. The defendant counterclaims for arrears of rent, and claims that he is owner in fee. irs 1896 and 1897, and one month in to the defendant, and on 5th Novem- of the character of the defendant's side the lease and recover the money * Partly reported in 6 .B. C. 466. 1 SPENCER v. HARRIS. The lot in question forms part of the parcel of land contained in the description in the Crown grant to the defendants' mine, the Lowden mineral claim, and as the townsite of Sandon is situate with- I in the metes and bounds of the Lowden mineral claim the action is of some public importance. As the plaintiff obtained possession of the lot from one McKelvey, in June, 1895, the rule as to a tenant not being permitted to deny his landlord's title does not apply—Rogers v. Pitcher (1815), 6 Taunt, 202, 26 E. E. 202, was cited on this point, and several other cases can be found in the judgment of Mr. Justice Taylor in Dauphin- ais v. Clark (1885), 3 Man. at 227. The foundation of the plaintiff's case is that the defendant under Crown grant; it is a grant in fee simple of the land in question, and described in his Crown grant; if the plaintiff fails to estabUsh this, then his case goes by the board and the defendant is entitled to judgment on his counterclaim. At the trial the plaintiff put in a certified copy of the defendant's Crown grant, it is a grant in fee simple of the land in question, and contains a proviso that the Crown may resume any portion (not exceeding ll-20th) of the said lands, for purposes, but the plaintiff argued it only passed the minerals, not the surface rights. The defendant claimed the benefit of sec. 16 of 1897 (passed 8th May, 1897), which is as foUows: (quotes section). This section was evidently suggested by the decision of Reynolds v. Attorney-General of Nova Scotia (1896), A. C 240, decided in February, 1896, but the report of which would not be received here until after the Legislature had adjourned in 1896. For the plaintiff it was argued that sec. 16 of 1897 was not declaratory, but prospective. A consideration of the various Acts relating to the acquisition of mineral claims, and to the obtaining of Crown grants thereof will, I think, show how it was that the Legislature came to pass a declaratory Act in the terms of a section now under consideration. In 1884 (sec. 64; sec. 77 of the Consolidated Act, 1888), the holder of a mineral claim had the exclusive .right and possession of aU the surface within the lines of his location, and if he proceeded so as to be entitled to a Crown grant (the usual method being to expend $100 in five years), he obtained (sec. 69 of the original Act, sec. 82 of the Consolidated Acts, 1888), in addition to the minerals, precious and base, all rights set forth in sec. 64. This gives him the ; surface, the procedure prescribed requiring him to file his application j in the district land office, and move the Government Agent to pub- t lish his notice. MARTIN'S MINING CASES. [v< Judgment Irving, J. The form of the Crown grant agrees word for word with the defendant's Crown grant. In 1891 when the Mineral Acts were revised by a commission, the; holder of a mineral claim was entitled to the surface (sec. 31), so also (sec. 43), was the person obtaining a Crown grant under that' Act; the procedure required the applicant to obtain a certificate of improvement from the Gold Commissioner; the same form of Crown. grant was again used. In 1892 by the repeal of sec. 31 of 1891 the holder of a mineral claim was deprived of the surface rights, and the person obtainingI a Crown grant, I am inclined to think (but it is not necessary to decide that) was in no better position, but, and this raises a doubt as to what the real intention of the Legislature was, there still remained) on the statute defining the rights under a Grown grant a reference to the repealed sec. 31 of 1891, and the form of the 'Crown grant; conveying surface and minerals remained untouched. See Clarke.: v. Bradlaugh (1881), 8 Q. B. D. 69, and The Queen v. Smith (1873),, L. B. 8 Q. B. 146, as to the construction of a section incorporating by- reference a repealed statute. In 1893 by sec. 23 the holder of a mineral claim and the Crown grantee was, by all Crown grants thereafter issued, given only the right to the use and possession of the surface for the purpose of winning and getting from and out of the claim the minerals, the procedure for obtaining Crown grants was again amended. In 1894 (sec. 3) the Crown grantee was given the "right to all minerals including the rights set forth in sec. 31 of 1891," which section had been repealed in 1892; and again an amendment was made as to the procedure to obtain a Crown grant; here again there is the same reference to the repealed section, and again the old form of Crown grant of surface and minerals is used, causing uncertepi||- as to the true meaning of the Legislature. In 1895, sec. 23 of 1893, was repealed, and the owner of a mineral claim was declared " entitled to all surface rights, including use of timber for mining and building purposes, so long as he held the claim for the purpose of developing the minerals contained therein, but no longer," and, in correcting the oversight in the amendment of 1894, the Crown grantee was deprived of the surface, but the old form of Crown grant conveying surface rights was not repealed. In 1896 (sec. 44), the statute declared the law as it was stated in 1895, and omitted the form of Crown grant. From these contradictory enactments, a vast amount of confusion has arisen; every holder of a mineral claim would expect on completing the necessary amount of work to receive a Crown grant in the terms of the Act under which he originally recorded his claim, M SPENCER v. HARRIS. but no provision was made in the repealing statute for the case of an application for a Crown grant under the repealed statute; or, indeed, for continuing the claim itself. Compare Abbott v. Minister l of Lands (1895), A. C 425. Now then, .having called attention to the alterations in the statutes prior to earlier Acts froi up their claims In 1892 dow: Cjrown grant would give hi would not receive the surfai tain their Crown grant in the matters to be dealt witl a Crown grant had been va from the continued use of L897, we come to the Act of that * 1888 to 1891, the holders of mir ith a prospect of obtaining a gran to 1896 there was some uncertaint Id give him, but it mav be stated l i and the same y nother was that t then, Under the claims took lie surface, to what his illy that he ;ate and ob- was one of re to obtain thircl. arose it, a grant, rady said, conveying on its face the fee simple in the as I have a minerals an The Legislature then passed sees. 16, 17 and 18 of 1897; sees. 132, 133, 134, of ch. 135 of the Eevised Statutes. To anyone, anxious to arrive at the meaning of see. 16, I would suggest that he do this: Write the section out as it would appear in the repealing statute in which it is deemed to have been contained: It would read this "Notwithstanding the repeal of the said Act (say of 1891), it is hereby declared that holders of records of mineral claims are entitled to apply for Crown grants thereof under the provisions of the law in force at the time they make such application (that part contains the claim) " the procedure upon such application shall be " the new procedure (I paraphrase that part of the section, as it is unimportant—and then) "The Crown grant thereafter shall vest in the holder such rights as were declared "—" in force at the date of the record of such mineral claim." Now the" Act of 1895, must be deemed to have contained such provisions—and if the Act of 1895 contained such a section why should not the defendant's Crown grant be interpreted by it ? Lhder that section, the defendant would, if he located under an Act giving tp the Crown grantee the surface rights, be entitled to the surface. But it is said by the plaintiff, that may apply to Crown grants issued since the passage of the Act of 1897, but it cannot affect Crown grants issued prior to that. I think it does. In my opinion, the history of the previous legislation and the language used, permit of no other construction being put upon sec. 16. It is a declaratory section, and as a declaratory Act is, in its principles, retrospective, it ought not to be construed as prospective, only, unless we can see that it is intended to be prospective—see Mountcashel v. Graver MARTIN'S MINING CASES. Lvol. (1847), 4 U. C E. 25 and Attorney-General v. Theobald (1890), L. E. 24 Q. B. D. 557, where, in discussing an Act passed in 1889, • declaratory of the construction to be placed on Act passed in 1881, Mr. Justice Hawkins pointed out that the construction declared by it would apply to settlement made prior to 1881, because the section did not provide that its operation was to be limited to settlements executed after the passing of the Act. See as to a declaratory statute and its construction, Rex v. Dursley (1832), 3 B. & Ad. 465; Attorney-General v. Pougett (1816), 2 Price 381. I am of opinion that sec. 16 of 1897 is a declaratory section, and that the defendant is entitled to the benefit of it. Section 18 supports this view. The inference to be drawn therefrom is that Legislature in providing that the Act of 1897 should not affect any pending legislation, they intended that the Act should be declaratory as to the rights of the parties under previous enactments: Bell v. Bilton (1828), 4 Bing. 615 and £18. The plaintiff has not given any evidence as to when the Lowden claim was recorded, and to determine what rights thereby passed to the defendant, it is necessary that I should be informed of that date so as to be able to determine what statutes govern its construction; the plaintiff not having done this, and the Crown grant being susceptible of more than one construction, that is to one construction favourable to the plaintiff's contention, and to another construction which would defeat his claim, I think I ought to hold that he has not made out his case. On the face of it the defendant's Crown grant carries the surface, and the onus is on the plaintiff to shew that it is not to be read according to its ordinary meaning. There wiU be judgment for the defendant on original action, also on the counterclaim with costs. The plaintiff appealed, and the appeal was argued at Vancouver, on the 20th March, 1899, before the Chief Justice, and Drake, and Martin, JJ. Cassidy, for appellants: We did not go into possession under the landlord's title, but he, having obtained a Crown grant, took possession, and under pressure of his claim we became his tenant; this is not an ordinary Crown grant in fee simple, but one under sec. 43 of the Mineral Act of 1891, and such a grant is not one in perpetuity, but terminable upon the claim ceasing to be a mineral claim; the language must be construed with reference to the statute which authorized the grant; such a grant cannot give a mineral claim holder the power to cut the land up into lots and sell it. The Attorney-General, for respondents: The plaintiff had no rights at all originally, being simply a squatter on Crown lands; he •Judge below, but the judgment, tho •ed his quiet enjoyment and 1899 ill he asked for; under such March 20. !rown grant is immaterial to Yvll Couut. relied on before the learned i in our favour, proceeds on Per Curiam :—From the appellant's c 3 knowingly took the lease fror rant in question; he admits he has not I r suffered any injury; ha has consequently got sspo idence it appears that ait under the Crown isturbed in possession all he expected to get. He originaUy came in, not under anyone, but as a squatter,, and was Uable to be ordered off. The defendant, the Crown grantee, has a right, whatever it is; a right to ask the plaintiff to move off the premises. It is not the case of one squatter versus another—Harper v. ■Charlesworth (1825), 4 B. & C 574, is practically that—but the case of a superior right to any claim of the plaintiff, who is a trespasser. The title of the Crown grantee requires the plaintiff to set up some title in answer to it, or move off. If you like to call it status it may be ■so termed. This is a somewhat bold attempt on the part of a squatter to acquire a title. Taking this view it is unnecessary to express anyr ■opinion as to the interpretation placed upon the Crown grant by the learned trial Judge. The appeal must be dismissed with costs. Appeal dismissed with costs. .—As to rectification of Cro > passing of precious metals, MARTIN'S MINING CASES. Ihox Mask Mil -Jury — Mode subject to Rule 332, a rights) because it req conveniently be made y jury under Rule 331; r plaintiff company for a ju$y. The lateral rights. The plaintiff compa aining the defendant company fron shaft in plaintiff's claim, and for dar f pleaded that having the exclusive The de face within the lines of its location and of all veins" ughout their entire depth, it commenced an incline shaft at a t within the lines of its said location upon a vein, the top or : of which lies inside of such surface lines extended downward caily, and in continuing the work upon such incline shaft and in .wing the said vein upon its dip it had entered underneath the ace of the plaintiff's claim, which it said it had a right to do; the defendant counterclaimed for damages and for an injunc- restraining the plaintiff company from interfering with the said For fu vide ad the 'fore the Full Court. MacNeill, Q.C, for Davis, Q.C, contra. March 28th, 1899. Martin, J.:—The appUcation by the plaintiff for a jurv is •esisted on two grounds, (1) that this case is within Bule 331 as >eing one "which previously to the passing of the Judicature Act rould, without any consent of parties, have been tried without a iury;" and (2) that, in any event, it should be tried without a jury p II tON MASK MIXING i MININ 3 CO. 301 I as being [ of docun a case within Bulc 332 requiring " pr c or local investigat olonged axamination Ma fe, Adop ting the constructic n applied to this g roup of rales by the Ma RTIN, J. 1 case of 1 taring Brothers & Co. v. North Weste ■n of Ur uguay Rail- \ way Con practice pany (1893), 2 Q. as to trial by jury B. 406, it is neeessar in this Province b efore the rtiat was the Judicature . Act, as mentioned in Bule 3S "Judicature Act" here (which is referred to in the principal Act"), but ch. 12 title of which is the " Judica to frequently in the Supremi idic 17 of 1876 itled ' neans, not the English Judicature Act rorresponding English Bule 428 as." the of the B. C Statutes of 1879, the short ;ure Act, 1879," and which is so referred Court Bules of 1880. us to what the practice as to trial by are Act; it was regulated by Statute No". ; for giving to the parties to civil causes ption of having such causes tried by a : to be read as part of the Act; Fielding )), 1 Ch. 1. Sec. 1 of this Act is as o days after, or i trial, or either i e opposite party i a of n I have Justice G: 3 here), been referred t ny civil action brought in the Supreme Court, and •y of damages in every such action shall, in the :tbout the intervention of a jury. Provided, that if shall give notice to the opposite party, by serving 1 the defendant by delivering to the plaintiff within me before, the receipt by the defendant of the notice any other time, by leave of the Judge, delivering to in writing to the effect following, that is to say—" ) the note of a judgment of the late Mr. Supreme Court Becord No. 4, p. 157, June 3, McKenzie v. The Corporation of the City of te, but in my opinion little, if any, assistance r; first, because it deals with the rights of par- las not been given; and second, because there was no argument, properly so called. The effect of this section and title, though peculiarly expressed, is, to my mind, plainly to give to any litigant in any civil action the right to a jury if he so desire. It is true that in order to preserve the right a formal notice had to be given, but this " option," as the title expresses it, could be exercised as an absolute right, and was not dependent upon anything other than the will of the party who wished to exercise it. It is urged that this statute only gave a conditional right, and that if a party failed to give notice " the cause could, without the consent of parties, have been tried without a jury," therefore there should be no jury here. 302 MARTIN'S MINING CASES. isfl9- If no construction had been placed upon the meaning of this sec- a!!A" tion I might have given effect to this argument, but it has already Martin, J. received judicial interpretation. In the case of The Temple Bar- (1885), 11 P. D. 6, it was laid down by Lord Justice Lindley (p. 9), that " where before the Act of 1875 parties had a right to a jury, they have it now." This rule was adopted by Mr. Justice Chitty in Coote v. Ingram, 1887), 35 Ch. D. at p. 119, where he says: " The general effect of the above-mentioned rules . . . is, as I understand the judgments of the Court of Appeal, and particularly that of Lord Justice Lindley, to preserve to the suitor the right to. a jury in those cases where the right existed previously to the passing of the principa^|< Act, viz., " The Supreme Court of Judicature Act, 1873." In Tim- son v. Wilson (1888), 38 Ch. D. 72, the Temple Bar Case was followed. Lord Justice Lindley in giving judgment, at page 76, expresses himself as follows: " Every party who before November, 1883, was entitled to trial by jury, is so entitled still . . ." In Jenkins v. Bushby (1891), 1 Ch. at p. 489, the same learned Judge expresses himself in similar language: " Wherever there was, before the Judicature Acts, a right to a trial by jury, such right still exists . . ;"" and in the same case Lord Justice Lopes at page 492 says, speaking: on the same rules: " They do not take away the right of trial by a jury where it existed before, or give it where it did not previously, exist. That appears to me beyond all question to be the general effect of those rules." This last case is again foUowed in Baring Brothers & Co. v. North Western of Uruguay Railway Company (1893), 2 Q. B. 406, wherein Lord Justice Lindley at page 410 specially " refers back to the exposition of them given in a case about which we took considerable trouble, Jenkins v. Bushby." As I read the above cases the effect of them is that the plaintiff had the right to have this case tried by a jury before the Judicature Act, and it has it now under section 331. This brings us to the second point, which is that even if the plaintiff were otherwise entitled to a jury, the cause should be tried without a jury under Eule 332 above quoted. In regard to this rule, I do not think that there will be here any such " prolonged examination of documents " as contemplated by the rule, and the defendant must rely on the case being one requiring " scientific or local investigation, which cannot in (my) opinion conveniently be made with a jury."' The plaintiff relies mainly on the case of Hamilton v. The Merchants* Marine Insurance Company (1889), 58 L. J., Q. B. 544. Were I without other assistance than this case I should not make the order I am about to make, for it is an authority in favour of the plaintiff', even though it was an application to direct the trial before a special referee; but I feel I should be governed by the later case of Swyny v. North Eastern Railway Company (1896), 74 L. T. 88, in which I-] IRON MASK MINING CO. v. CENTRE STAR MINING CO. Hamilton v. The Merchants' Marine Insurance Company was considered, and the appUcation of the rule extended. That case laid it down plainly that where there was one "scientific -issue" out of several other issues, that brought the action within the rule. The test appUed by Lord Esher was; " Now is there, in the case before us, a matter or issue requiring scientific investigation, that is to say, scientific knowledge ?" - And Lord Justice Eigby says: " I do not feel justified in saying that there must be some very special sort of case for scientific investigation, because in that part of the rule, at any rate, there Is nothing more than the plain word \ scientific' I have no difficulty, therefore, in arriving at the conclusion that in the present action there is an issue requiring a scientific investigation within the meaning of the rule." Applying this language to the present case I, in turn, have no- difficulty in coming to the conclusion that a scientific knowledge of a high order, and the application of that knowledge to a scientific investigation, wiU be required to satisfactorily determine the main question raised in a suit of this originality and importance. I must not for a moment be understood to mean that as a rule mining litigation in this country partakes of this description, for I think it does not; but this case is of an exceptional character, and from the nature of the evidence which it now appears will be adduced at the trial, it is not one which could conveniently be tried by a jury. If the day of the trial were not so near at hand, I should have liked time to have more fully discussed the question as to what evidence of the- mining engineers and experts would in a case of this description (the ascertainment of extralateral rights) be deemed to be scientific, but as a speedy judgment is required, I must content myself with the above general expressions. Application refused. Costs hi the Note.—See Cm . 126. •. Lookout Mining Co., ante, I By the Act to Amend the Mineral Act, 1902, ch. had in adverse actions under sec. 37 of the Mineral | Prom the fact that in this amendment of 1902 ni Judge to dispense with a jury in cases requiring scientific investigi be inferred that the decision herein was not brought to the atl Legislature when the bill was passed, otherwise, doubtless, that power conferred in general by Rule 332, and 1 been preserved. The recent amendment calls for further legislative considerati. For an important trial by jury in a county court, mining jurisdiction, Atkins v. Coy, ante p. 88. ' :t and amendments, power is reserved to the tiaation, it would ention of the l effect t MARTIN'S MIXIKG CASES Under sec. 8 > of the Land Act a defecti ve Crown grant may be cancelled and ued at any time irrespectiv of existing certificates of improvemen for minera claims contained in the a ea of the grant. Where a cla m owner has received a ce rtificate of improvements for his clai his positio q is assured, and he is nc t called upon to adverse a subsequet application of another for a certifica te of improvements for a claim whi'c would incl Section 37 o: ny claimant of an adverse nature to tl ground api lied for to substantiate his claim within the prescribed time or t Appeal by William Braden from a decision of the Honourable C. A. Semlin, Chief Commissioner of Lands and Works, dated 24th December, 1898, disallowing the adverse claim of the said Braden opposing the rectification of the Crown grant of the American Boy leral Claim. The facts fully appear in the following decision of Chief Commissioner:— December 24th, 1898. Ihiep Commissioner :—Eva Boss, J. W. Troup and Thomas i are the owners of a mineral claim called the Amen hall afterwards refer to these owners under the name Prank H. Kilbourne and William Braden are the owners of two mineral claims called the Ajax and Treasure Vault. I shall afterwards refer to these owners under the name of Kilbourne. The Treasure Vault claim was located on the 8th of October, 1891, and recorded on the 15th of October, 1891. The Ajax was located on the 10th of October, 1891, and recorded on the 15th of October, 1891. The American Boy mineral claim was located on the 20th of June, 1892, and recorded on the 22nd of June, 1892, and the field notes of the survey were received at the Department of L and Works on the 24th of January, 1896. On the 27th of November, 1 I.] In be THE AMERJQAN BOY MINERAL CLAIM. 30ij 1895, Troup gave notice in the British Columbia Gazette of his in- 1899. tention to apply for a certificate of improvements with respect to the March ^ American Boy. Martin, J. Kilbourne took proceedings to contest the claim of the American Boy to the land set out in the field notes filed on the application for a certificate of improvements. On behalf of the Ajax and Treasure Vault, he filed in the office of the Gold Commissioner at Nelson, previous to the 27th of February, 1896, an adverse claim, and he instructed Mr. J. B. McArthur to take the necessary proceedings to enforce the adverse. The matter came before the Court in a suit styled Kilbourne v. McGuigan, which is reported in (1897), 5 B. C. 233, ante, p. 142. That was a motion on behalf of Kilbourne to extend the time for commencing his action. It had become necessary for him to take such proceedings as Mr. McArthur had failed to prosecute the adverse claim within the time specified by the Act. Mr. Justice Drake, before whom the application was made, dismissed the motion on two grounds, the first being that proceedings had not been commenced within the time prescribed by the Act; the second that Kilbourne had never properly filed the adverse claim. The adverse had been filed in the office of the Gold Commissioner, but not in that of the Mining Eecorder, and Mr. Justice Drake held that, by virtue of sees. 21 and 126, the adverse should have been filed in the office of pDpoilio]? ™ the Mining Eecorder. From this decision an appeal was taken to the Full Court; that appeal was dismissed; an application for leave to appeal to the Privy Council was also dismissed. On the 6th of May, 1897, a certificate of improvements was granted to Troup in respect of the American Boy, and on the 13th of July, 1897, a Crown grant was issued to him, but for a portion only of the land set out in the field notes filed upon his application for a certificate of improvements. And under sec. 86 of the Land Act, Troup now applies for a cancellation of the said Crown grant and for the issue to him of a corrected Crown grant. Section 86, in part, reads as follows : " Wherever a Crown grant contains any wrong description of the land thereby intended to be granted, the Lieutenant-Governor in Council may direct the defective Crown grant to be cancelled, and a corrected one to- be issued in its stead, which corrected Crown grant shall relate back to the date of the one so cancelled, and have the same effect as if issued at the date of such cancelled KUbourne also applied for certificate of improvements in respect of the Ajax and Treasure Vault claims, and on the 25th of February, 1896, Troup filed adverse claims to Kilbourne's application. Troup issued a writ to enforce his adverse against the Treasure Vault and Ajax, but the writ was never served, and on the 19th of August, 1897, 306 MARTIN'S MINING CASES. [vol. 1899- • a motion was made to set aside the writ of summons and all proceed- a!— ' ings thereunder, and to vacate the adverse claim filed by Troup. The Martin, J. matter came before Drake, J., and is reported in Troup v. Kilbourne (1897), 5 B. C 547, ante, p. 219. Mr. Justice Drake refused the motion on the ground that as the writ in the action had never been served, by virtue of Bule 31 it was at that time no longer in force, ,and there was therefore no action pending in Court. He also intimated that in his opinion Troup had waived his adverse claim against the Treasure Vault and Ajax by failing to duly prosecute his action. On the 13th of October, 1897, certificates of improvements were granted,to Kilbourne in respect of the Ajax and the Treasure Vault. It seems to me that the controversy in this case is absolutely con- .cluded by the provisions of sec. 37 of the Mineral Act, as enacted by sec. 14 of ch. 32 of the Statutes of 1892, and by sec. 46 of the Mineral Act. Section 37 provides that no adverse claim shall be filed by the Mining Eecorder after the expiration of the period of publication in the next preceding section mentioned, and that in default of such filing, no objection to the issue of a certificate of improvements shall be permitted to be heard in any Court, nor shall the issue of any Decision of such certificate, when issued, be impeached upon any ground except C. c. L. & W. of fraud. The latter part of. the said section provides the procedure for contesting the validity of an adverse claim by a judgment of a icompetent Court, and then proceeds: After the filing of such judgment with the Mining Eecorder, and upon compliance with all the requirements of the next preceding section, such person or persons— that is the applicant for certificate of improvements—shall be entitled to the issue to him or to them of a certificate of improvements in respect of the claim, or the portion thereof which he or they shall appear from the decision of the Court to rightfully possess. And the last clause of section 46 provides that after the granting of such certificate of improvements no action shall be brought with respect to the title of such claim except on the ground of fraud. In this case, Kilbourne failed to comply with the requirements of the Act as to taking legal proceedings and as to duly filing his adverse claim. He is, therefore, now in the same position as if he had never filed an adverse claim, and the applicant for a certificate of improvements has a legal right to such certificate and to the following Crown grant. It seems to me clear that there must be some time at which all disputes as to boundaries to claims must be determined, and that the statute appears to provide that time very clearly. After Troup obtained his certificate of improvements, in my opinion, he was entitled to have issued to him a Crown grant for all the land embraced I.] In be THE AMERICAN BOY MINERAL CLAIM. in the survey and field notes which he had filed with his application 1899.' for certificate of improvements. March 29. It is true that afterwards certificates of improvements were issued Martin, J. to Kilbourne in respect of certain of the land embraced in the certificate of improvements before issued to Troup, and Troup failed to prosecute his adverse against the issue of such certificates. Mr. McPhillips contends that as Troup failed to prosecute his adverse claims against the Ajax and Treasure Vault, Kilbourne is in as good a position with regard to these two claims as Troup is in regard to the American Boy. In my opinion, however, it was not necessary for Troup to take any proceedings whatever to contest the granting of a certificate of improvements to the Ajax and Treasure Vault claims. His position was already assured, and there would be no end of controversies if a man were compelled to adverse the claims of all persons who might ask for certificates of improvements that would embrace some of his property. On the argument of the appUeation, Mr. Davis cited several American* authorities, which seem to me conclusively to establish the correctness of the above conclusion. I find that the mining laws with regard to filing and failing-to file adverse claims in this Province are in substance very similar to those of the United States, and the American authorities appear to me to be quite in point. pDooir10* w The following are some of the authorities which I would cite: > file pplication for patent, :o such junior locator, an adverse being a " p. 113.) it another to locate upon the same ground and ind file no adverse or protest, and the patent be his title will hold, the failure of the first locator aiver of his priority." (Kopp's Land Owner, Sections 2,325 and 2,326 of the Eevised Statutes of the United States are very similar in their provisions to our law with regard to [filing adverse claims, and in the following case, decided under those sections, Judge Sawyer expressed himself as follows: " Under an application for a patent for mining ground, under sees. 2,325 and 2,326 Revised Statutes, unless adverse claims are filed with the Registrar land Receiver of the proper land office within sixty days after the first publication of the notice, such adverse claims are waived, and the applicant is entitled to a patent upon payment to the proper officer of the statutory fees and costs, and it shall thereafter be assumed that no adverse claim exists; and thereafter Ino objection from third parties to the issue of the patent shall be heard except [that it is shewn that the applicant has failed to comply with the terms of the statute. The statute makes such a proceeding, regularly prosecuted, when the period of notice is completed without the presentation of an adverse claim, absolutely conclusive against adverse claims." Hamilton v. Southern Nevada Gold and Silvt (1887), 15 Morr. 315. Mining Company *Cf. pp. 184, 190, 236, 277, 282. The original mining laws of Brit system; see Preface and Statutes. i Columbia are based.c 'MARTIN'S Mil And in Lee et al. v. Stahl (1889), 16 Morr. 152, at p. 155. the language is as follows: The following opinion has been deUvered by Mr. Justice Field, of the Supreme Court of the United Sates, sitting as a circuit Judge, 'Consolidated Mining Co. v. Richmond Mining Co. of Ne- The last mentioned decision has been affirmed by the decision of the Supreme Court of the United States in Richmond Mining Co. v. Eureka Mining Co. (1880), 103 U. S. 839. The following authority, it seems to me, disposes of Mr. He- Phillips' contention, that it was incumbent upon Troup to adverse the claims of the Ajax and Treasure Vault for certificates of improvements : Wi protest aga a^rL had waived its v the Gold Lead The Jacob Little subsequent appli- Id and Silver Mvi ling Coi npany (1883), re, on w hich the n ght of 1 "'roup to obtain Steel et al. v. Gold, L 15 Morr. 292 at p. 2<. The only ground, a Crown grant of all s that of fraud. Befor fraud because he had located land which previously had been located by the Ajax and Treasure Vault. Mr. Matthews was examined as a witness on behalf of Kilbourne, and it was clear to me f rom his evidence his survey can be attacked, is led that Troup was guilty of that at the present time it is very doubtful where the original bound- J aries of the Treasure Vault and Ajax were located. Mr. Matthews' Mar evidence also disclosed that for a long time before Troup's applica- Ma" tion for a certificate of improvements there had been a dispute between the owners of the American Boy property on the one hand and boundaries of their respective claims. -The American Boy people contended that their claim in no way conflicted with the original that their contention is no no evidence before me, an applied for a certificate o their property, does not, The owners of the Treasui they knew about the appl and they took no proceedi through their failure to pr ceed with the same, they that t point, there is absolutely the American Boy owners for what they claim to be in itself constitute fraud, x knew about the dispute; atificate of improvements, le claim. It may be that dverse claim and duly pro- d of land that they were n»/My conclusion, therefore, on the whole case, is that the Crown mint issued to Troup was issued in error; that it should be now ranceUed and a new one issued to him for aU the land set out in the inrvey and field notes of. the American Boy claim filed by him on lis application for a certificate of improvements. Braden appc lineal was argu Bodwell, Q.C Etled pursuant t ;d before Marti Davis, Q.C, for the respondents, the ow Bov claim. f the Land Act, and the 7th March, 1899. E. McPhillips, for the petitioner Braden. the American the lich II , Ladd (1868), 7 WaU. 1891), 139 U. S. 642, at 3ipl. that wl n certain cases a Crown grant may be subject to a i do guide as to what course should be pursued whei | tory provision of the nature of sec. 37 of the M \ Amendment Act, 1892, relied on by the responden ' weU's suggestion that, because the petitioner's a< ind ending with Sanford v. Sanford , I have come to the conclusion that I lown in those authorities to sustain the contention that is a statu- 4.ct (1891) Mr. Bod- proceedings MARTIN'S MINING CASES. [v< (Kilbourne v. McGuigan (1897), 5 B. C 233, ante, p. 142), have been terminated by a regrettable error which prevented the merits being gone into, they should not now be regarded as a final termination of the matters in controversy between the parties, or between the respondent and the Crown, cannot, in my opinion, be given effect to in view of the said section. It may possibly be that in this case there has been a hardship, but I take the view that speedy finality of litigation and quieting of titles with all due celerity are the dominant policy of the Mineral Acts. Taken as a whole, see. 37 may be regarded as a provision of the same nature as the Statute of Limitation, providing that in case anyone has a claim to the ground applied for he must substantiate such claim within a prescribed time, or be forever barred, except in case of fraud on the part of the adverse applicant. In my opinion the fact that the respondent also commenced adverse proceedings, but abandoned them, does not, under the circumstances of this case, in any way lessen its rights under the said section. It seems unnecessary to supplement the reasons given by the Honourable the Chief Commissioner of Lands and Works, which are set out at length in the appeal book, though the case of The St. Louis Mining and Milling Company v. Montana Mining Company (1898), 171 U. S. 651, might be added to the list of authorities. The appeal will be dismissed with costs. Appeal dismissed with c N'ote.—As to passing of preciou: ene Mining Co., post, p. 406. 4.s to certificate of improvements and atta< I Sheppard Ry. Co. v. Jerry, ante, p. 161. is to the policy of Mineral Acts, cf. pp. 336, 414, 446. under Crown grant, cf. In .re, 81. ; upon, see notes to Nelson and 1, 88, 139, 146, 187, 194, 236, Section 37 of the 1 adverse action oth Decision of Walke A Appeal from an order of Walkem, J., setting aside an order to renew a writ in an adverse action. The plaintiff's claim was on behalf of the Legal Tender mineral claim to adverse the defendant's application for a certificate of improvements for the Pack Train mineral claim. The renewed writ was not served until 19th January, 1899, and at that time the defendant had made application for his certificate of improvements and Crown grant to the Pack Train •al c-Lii ad hii Ther appi edc under consideration . 29th March, 1899. . E. McPhillips, Cur. adv. ult. April 5th, 1899. Walkem, J.:—This is an adverse action under the Mineral Act. Jud The plaintiff took out his writ on the 5th of August, 1897. On the Wa^ 2nd of August, 1898, he applied successfully to have it renewed, and the renewal was issued as of that date. The application for renewal was, as usual, made ex parte upon affidavit. The defendant now moves on notice that the order for renewal, and aU subsequent proceedings taken by the plaintiff be set aside on the f oUowing, among other grounds, namely: That no bona fide effort was made on behalf of the plaintiff to serve the original, writ, and that he was, therefore, not entitled to have the writ renewed; and that he was guilty of laches in not serving it, and in not taking steps to prosecute the action as f the Mineral Act. iwal, as a renewal is seldom refused—any oppo- latter for consideration by the defendant when There is no evidence which satisfactorily ex- e of the original writ. The only explanation ippears in the affidavit of the plaintiff's solicitor, explanation is that he thought that as Dunlop j required by sec. 37 o I allowed the renc- } sition to it being a n I served with the writ. plains the non-servic i offered is that which i Mr. Elliott, and that MARTIN'S MINI1*« C£SES. [vou had not compUed with the terms of a certain order made in June,;| ' 1896, in an action in which he, Dunlop, was plaintiff, and Haney and • Enslow were defendants, the question in the present action was di3 ■ posed of by that order, as the order dealt with the same mineralj| ground. Nevertheless, he came, so he says, to the conclusion in July, 1898—that is to say, nearly a year after he had taken out his 'WTifr^H that it would be better to serve it. He does not clearly shew why he came to that conclusion, nor can I see why he arrived at it. The action he refers to and the present action are not between the same parties, inasmuch as^ Enslow is no party to this* action. Moreover, it is well known that under the system of adverse proceedings a plaintiff who may succeed in preventing the issue of a Crown grant to his opponent, may, in turn, be unsuccessful in a contest with claimants for the same ground, owing to their title being superior to his. Again, an unsuccessful defendant may subsequently be a successful plaintiff against the same adversary. I need not instance cases. Mr. Elliott's explanation fails to account for the delay that occurred. If this SictidiJ'hatd been an ordinary one, the plaintiff's right to a renewal could not have been questioned; but by sec. 37, above referred to, actions, like the present one, must be commenced within a certain time, and prosecuted " with reasonable diligence to final judgment." This would appear to be imperative, for the Legislature immediately afterwards says that " failure to so commence or so prosecute shall be deemed to be a waiver of the plaintiff's claim." Some affidavits have been filed explaining the delay which occurred in the service of the renewal writ; but they have, obviously, nothing! to do with the question before me. It appears to me that I have no alternative but to allow the defendant's motion. Were 1 to do otherwise, I should be overriding the above provision of the Legislature^ which is evidently one of public policy, as its1 aim* is to secure, as far as possible, a speedy adjustment of mining disputes, and thus promote the development of the mineral interests of the country. It assuredly would be a most mischievous thing to hold that a plairittB might, in the face of this provision, take out a writ, put it in his pocket, keep it there for nearly twelve months, and then, as in this case, make a sort of spasmodic effort to serve it at the last moment. It is also to be observed that the Legislature, when passing sec. 37, must be taken to have known the existing Bules of Court, as they are statutory rules, with respect to the commencement and prosecution of ordinary actions, and that the effect of that section would, in actions like the present one, be to abridge the time given by the rxtfes for the service of writs in ordinary actions. The motion musf be allowed with costs. Motion allowed with costs. plaintiff appealed, and the appeal was ar: ire McColl, C.J., Drake, Irving and Ma ed on 1st Main, JJ. A. E. McPhillips; for appellant, cited Howland v. Dominion Bank ^ (1892), 15 P. E. 56, at pp. 59, 61 and 62, and 22 S. C. E. 130; St. Louis v. O'Callaghan et al. (1889), 13 P. B. 322, at p. 326. It might be urged that the plaintiff should have obtained an order for substituted service, but the answer to that was, that it is a difficult thing to establish the right to substituted service. Where a solicitor " makes a mistake the Court should relieve unless it is shewn that other equities intervene and here the solicitor thought his client's rights would be preserved as the same ground was in dispute in another Duff, and 100; oat, cited Hewett v. Barr (1891). 1 Q. B. pp. 98 v. Day (1890), 43 Ch. D. 449; Re Gedye (1852), Cur. adv. vult. May 2nd, 1899. The judgment of the Court was dehvered by McColl, C.J.;—The writ of summons was issued on the 5th ol August, 1897, and admittedly no attempt was made to serve it until the 26th of July, 1898. The only reasonable explanation (if any) of the delay is contained in the affidavit of Mr. Elliott, the plaintiff's solicitor, sworn on the 1st of March, 1899. In view of the dates of the various proceedings to which he refers, I am unable to say that a " good reason" has been given within the meaning of the rule, and a defendant has the same right to move against an order of this kind as against any other order affecting him. I agree that the enactment mentioned in the reasons for the judgment appealed from, ought to be disregarded whenever effect can be given to it, but I cannot accede to the proposition that it enables a defendant to get rid of an action by applying in a summary way, when not authorized by the ordinary practice of the Court. Appeal dismissed. MARTIN'S MINING CA line—Way—T R. 8. B. 0. —Employers Stamer v. Hall Mines Co. (6 B. C. 579). Inspection of Metallifer 'inze—Level — Defect '.897, ch. 184, sec. 25, Liability Act, 1891/, Rule 18, of sec. 25, ch. 134, R. S. B. C. 1897, does not require that a winzer extending through several levels of a metalliferous mine shall be protected aSf each level; the rule is sufficiently complied with if the winze is protected - at the top level only. Held, on the facts, that negligence had not been shewn. Action under the Employers' Liability Act for damages for injuries sustained by the plaintiff in falling down a winze in defendant's mine, in which he was engaged as a miner. The trial took place at Nelson, before Irving,'J., and a special jury, who returned the following verdict: (a) Was the personal injury to plaintiff caused by reason of any defect- in the condition or arrangement of one of the ways? The jury are unanimous* in the opinion that the injury to the plaintiff was caused by reason of the lack of proper guard rails round the east side of the. shaft or winze. (B) Did the defect referred to in your answer to (o) arise from, or had it not been discovered or remedied owing to the negligence (that is, absence of care under the circumstances) on the part of the defendants or of some person in their service, entrusted by them with the duty of seeing that the con' dition or arrangement of the ways were proper? Yes. (o) If the injury was caused by any defect (as referred to in answer to (a)—or negligence (as referred to in (&)—did the plaintiff know of such defect or negligence) and did he fail without reasonable excuse to give or cause to be given within a reasonable time, information of such defect or negligence to the defendants or to some person superior to himself (the plaintiff) in the service of the defendants? First part, yes; second part, no. (d) Did the defendants or some person in their service superior to the plaintiff, know of the defect or negligence prior to the accident, and was the plaintiff aware that they had this knowledge? Yes. (e) Did the plaintiff do anything which a person of ordinary care and skill would not have done under the circumstances, or omit to do anything which a person of ordinary care and skill under the circumstances would have done, and thereby contribute to the accident? No. (f) If the cause of the accident was the absence of a guard rail, did the plaintiff know of its absence, and run the risk of attempting to pass, knowing and appreciating the danger of so attempting? Yes. He was passing in the ordinary course of his duty. {g) If the plaintiff is entitled to damages, what sum do you fix? $700. (h) What sum is equivalent to the estimated earning during the three years preceding the 22nd of January, 1898, by a person employed in the same ? $2,700. tiff dm mployi s Pro The following are extracts from the Judge's c " The parties have agreed that I should say that 1 the hanging (wall) side was the only passage way 1.] • MINES 00. And further: " The plaintiff himself cannot teU you if he went on the foot wall side or not. He says that if he went on the foot wall .side he went on a place where he had no business to go." On the verdict judgment was given for the plaintiff. The defendant appealed to the Pull Court and the appeal came on. ior argument at Victoria, on 3rd May, 1899, before McColl, C.J., Drake and Martin, JJ. McPhillips, Q.C, for appellant: Assuming that the winze should have been guarded, it has not been shewn that the accident arose from an oniission in that respect. The cause of the accident is not proved—it is only conjectured. Upon the plaintiff's own case there should be a non-suit, because the plaintiff was bound to prove the -cause of accident and he has not done so. See Wakelin v. London and South Western Railway Company (1886), 12 A. C. 41 at p. 44; Badgerow v. Grand Trunk Railway Company (1890), 19 Ont. 191; Montreal Rolling Mills Company v. Corcoran (1896), 26 S. C. E. 595; Farmer v. Grand Trunk Railway Company (1891), 21 Ont. 299. There should be a non-suit, because on the plaintiff's own evidence he shewed that he should have been particularly careful and he admitted that he was not particularly careful. Pollock on Torts, 5th cd., at p. 429. On the findings and admissions there should be a judgment for the defendant,'because the jury found that the plaintiff appreciated the risk knowing of defendant's negUgence—that he admitted that he should not be on the foot wall side—that the jury found that he feU in from the foot wall side and that therefore the negligence of tbe defendant as found by the jury was not the approximate cause of the accident because the plaintiff was bound to avoid the danger, and he could have done so had he been reasonably careful, while he admits that he was not careful. See Headford v. The McClary Manufacturing Company (1893), 23 Ont. 335; (1894), 21 A. E. 164; and (1895), 24 S. C E. 291; Smith v. Baker & Sons (1891), A. C 325. Duff (W. A. Macdonald, Q.C, with him), for respondent: The defendant company was guilty of a breach of statutory duty in not having the top of the winze protected by a cover or a guard rail as required by E, S. B. C 1897 eh. 134, sec. 25 (18), (Inspection of Metalliferous Mines Act). It is plain that if there had been a guard rail the accident could not have happened. See Radley v. London and North Western Railway Company (1876), 1 App. Cas. 754. There is no suggestion that plaintiff was rushing along carelessly or net looking where he was going. The plaintiff was going the only way he could to approach the place where his business was. It is for the defence to prove contributory negligence, and as the jury did not so find, the Court cannot say now that there was contributory MARTIN'S. MINI* 1 CASUS. lv negligence. See DkMify VfaeBbw, and Wexford Railway Company v.■ Slattery (1878), 3 App. Cas. 1155 at p. 1201. As the defendant • company was guilty of a breach of a statutory duty the doctrine of volenti non fit injuria has no appUcation. Baddeley v. Earl Granville (1887), 19 Q. B. D. 423. [Martin, J., referred to McCloherty v. Gale Manufacturing Com- I pany (1892), 19 A. E. 117, and Groves v. Lord Wimbome (1898), 2 . Q. B. D. 402.] See also B. S. B. C 1897 ch. 69, sec. 6; Yarmouth v. France I (1887), 19 Q. B. D. 647; Greenhalgh v. Cwmaman Coal Company I (1891), 8 T. L. B. 31; Smith v. Baker & Sons (1891), A. C 325; Sanders v. Barker (1890), 6 T. L. B. 324; Osborne v. London and North Western Railway Company (1888), 21 Q. B. D. 220. He distinguished Headford v. McClary Manufacturing Company, supra, as there the plaintiff had he been looking could easily have seen the hole into which he fell. McPhillips, Q.C, in reply: The statute does not say that the winze must be covered on each level, but only at the top, therefore there is no breach of a statutory duty and the doctrine of volenti non fit injuria does apply. Cur. adv. vult. May 22nd, 1899. Drake, J.:—This action was brought under the Employers' Liability Act for recovery of damages arising from an accident to the plaintiff who fell down a winze and injured himself. The case was' tried by a jury, and before the case went to the jury, counsel agreed that the learned Judge who tried the case should state that the passage way on the hanging wall side was the only passage way intendejp^ f'or use. The mine is worked on a level, the width of which extends from the hanging wall to the foot wall, about eighteen or twenty feet, wide. This level is divided lengthways by pUlars six feet apart and about four feet from the foot wall. The mine where the accident happened is worked in three stories^ the ore from the upper stories is shot down to the ground or sill floor in what is described as winzes, being open holes leading down to a chute from which the ore is loaded into cars. These winzes are all made along the foot wall, and they are three in number on the second floor where the accident happened. The distance from the foot wall to the pillars is about four feet, and it is in this space of four feefetbj* the winzes are constructed, thus dividing the slope and leaving the space between these piUars and the hanging wall for a passage way intended for use of the miners as agreed'to .by the counsel and referred Hi ; to some st of the id the eded 1 agreed to was the only passage way intended for use, or whether he went along the foot wall to the north of the posts is not clear. He does not know himself. He says in going west he stepped into the winze, and attributed his accident to the want of a guard rail. He had the usual light, a candle, which all miners carry. There, was evidence of a brace across the whole slope about four feet high, consisting of a stout piece of timber, This was stated by the plaintiffis witnesses to be on the west side of the winze, and by the defendant's on the east side. Whichever side it was no one could pass it without stooping. The jury did not find directly whether the accident happened on the east side of the winze, or whether on the south side, but they say that the plaintiff's r'%ijury was caused by a lack of guard rails on the east side of the winze. The defendants were not negligent in not protecting the east side of the winze as the plaintiff had no business to approach the winze on that side. The only" passage way was agreed to be on the south side of the winze, and no negUgence is found in not putting a guard rail on that side, the deduction being that it was sufficiently protected. If the meaning of this finding is that the accident happened from the plaintiff falling in on the east side then he was where he had no business to be. It is shewn that the plaintiff was no stranger to the mine, but passed by this place daily during the previous month. It is admitted that this part of the mine is dangerous and requires care on the part of the miners, and the plaintiff, as well as all others, knew of the necessity of using care. The jury also find that the plaintiff knew of the defect of no guard rail on the east and so did the defendant. They also find that the plaintiff did not contribute to the accident by want of ordinary care, and that he knew of the absence of the rail, but was passing in his ordinary duty. There is no objection taken to the learned Judge's charge to the jury, and the question we have to decide is whether under these findings the plaintiff is entitled to recover. The jury have not found haw the accident occurred, and it is a mere conjecture that they meant to find that the plaintiff fell from the east side of the winze. See Farmer v. Grand Trunk Railway Company (1891), 21 Ont. 299. In this .case owing to the death of the injured party it was a mere conjecture how the accident arose. The same state of circumstances does not exist here, but the plaintiff can give no direct evidence how the accident happened and there is no other testimony whi<ch can assist MARTIN'S MINING 3ASES. [VI him. To send the case back for a new trial will not enable this point to be cleared up. See also Badgerow v. Grand Trunk Railway Com- ■ pany (1890), 19 Ont. 191. If the accident occurred owing to the plaintiff being where he had no right to be and where his duty did not call him, the neglect of the defendant will not excuse him, and in this view see the case of Headford v. McClary Manufacturing Company (1893), 23 Ont. 355;. (1895), 24 S. C. E. 291, when the plaintiff, familiar with the ordinary passage, instead of following it walked into a hoist hole and was injured, the hole being ten or twelve feet away from the passage way, it was held that he could not recover as the accident was wholly caused by the unfortunate man himself. The plaintiff contends that rule 18 of sec. 25 of ch. 134, E. S> B. C 1897, shews that the defendant neglected a statutory duty. That each winze extending from one level to another should be protected by a cover or guard rail, and owing to such neglect, even if the plaintiff was guilty of negligence he is entitled to recover. The breach of a statutory duty does not give a right of action for damages to the person injured, even if he'had no civil remedy the duty is enforced by the imposition of a penalty and is in the nature of police regulations/see Wilson v. Merry (1868), L. E. 1 (H. L.'Sc.) 341. Here the plaintiff's right of action, if he has one, is independent of the MetaUif erous Mines Act and is not governed by that Act. One other contention which was pressed upon us was that the way was encumbered with lagging, but the evidence is insufficient for us to arrive at the conclusion that the plaintiff was of necessity compelled to pass along the foot wall in order to avoid the obstacles m the ordinary passage way, and there is no finding of the jury with reference to this condition of the passage way. Martin, J.:—It is contended on the part of the plaintiff that it was the duty of the defendant to protect the winze or ore chute underrate 18 of sec. 25 of the Inspection of Metalliferous Mines Act, B. S. B. C 1897 ch'. 131, which provides: "Each winze or mill-hole extending from one level or drift to another level or drift shall be protected at the top by a cover or guard rail." . The defendant takes the point that all the Act requires is that the winze should be covered " at the top " and that there is nothing ■ compelling it to "cover" an opening on an intermediate level, such as the one in question here. In my opinion this is the correct reading of the rule, which in order to embrace the present ease should read "protected at the top and any other opening," or words to a like effect. Consequently the plaintiff cannot rely on the rule laid down in Baddeley v.. Earl Granville (1887), 19 Q. B. D. 423, that a breach of -a statutory duty gives a cause of action to anyone injured by reason thereof; I find, I might say, that that case was followed in On- I.] STAMER v. HALL MINES 00. tario in McCloherty v. The Gale Manufacturing Company (1892), 19 A. E. 117; see also Groves v. Lord Wimborne (1898), 2 Q. B. 402; Mayne on Damages, 5th ed., 73, note (r). Fui In the opening sentence of his charge to the jury (p. 165) theMcC learned trial Judge stated: ". The parties have agreed that I should say that the passage way on the hanging (wall) side was the only passage way intended for use." And' further at page 170: " The plaintiff himself cannot tell you if he went on the foot wall side or not. He says that if he went on the foot wall side he went on a place where' he had no business to go." The jury in answer to question i (a) found, in effect, that the plaintiff did go on the foot wall side, because they found that " the injury to the plaintiff was caused by j reason of the lack of proper guard rails round the east side of the shaft or winze." He must have been on the foot wall side in order to have fallen in on the east side of the opening; at least that is the only inference I can draw in the absence of a direct finding on the point. Question (f) and the reply are as follows: "If the cause of the accident was the absence of a guard rail did plaintiff know of its absence, and run the risk of attempting to pass knowing and appreciat- : ing the danger of so attempting ? A.—Yes. He was passing on the ordinary course of his duty." This finding coupled with the agreement extracted from the j charge above quoted render it impossible, in the view I take of it, for the plaintiff to successfully maintain his action. On the argument a contest between counsel arose as to the r ing of the extracts above given from the charge, divergent views being taken. If there were any objections to the important'statement of ; the learned trial Judge they should have been taken at the time, and ; an opportunity given to him to correct it, if it were incorrect. It is I regrettable that such a question should have arisen, but in my opin- | ion, the only safe plan for this Court to adopt is to give the words their plain meaning. We cannot go behind them. The appeal should be allowed with costs. McColl, C.J., concurred in aUowii rthe ippea: Appeal allowed. Note.—For other cases under this act: see McDonald v. Can. Pac. Exploration Co., post, p. 379; McKelvey v. Le Roi Mining Co., post, p. 477. And cf. Grant r. Acadia Coal Co. (1902), 32 S. C. 427. Negligence cases not based upon statutes relating to mines do i i within the scope of this volume, but'reference may be had to the following c arising out of accidents in mines: Davies v. Le Roi Mining de., Co. (1899), 7 B. C. 6; Pender v. War Eagle (1899), 7 B. C. 162; Warmington v. Palmer 1(1902), 32 S. C. 126; 8 B. C. 344; Anderson v. Mikado Mining Co. (1902), ^3 0. L. R. 581; Asbestos and Asbestie Co. v. Durand (1900), 30 S. C. 285. ■ MARTIN'S MINING CASES. V. ARCHIBALD. Mineral Claim—Sale—Proceeds of—Free . ner's Right in such Case—Trust—Stat Mineral Act, 1896, sees. 9, 34, 50, 80-92. (29 S. C. 564; 6 B. C. 260). 'of Fra Where partners in a mineral claim enter into an agreement for the sale thereof, a partner whose free miner's certificate has lapsed thereafter doeS not thereby forfeit his share in the proceeds of the sale. The Statute of Frauds does not exclude parol evidence of a partnership for dealing in land. Decision of Full Court affirmed (Gwtnne and Sedgwick, J J., dissenting). Appeal by defendant from a decision of the Pull Court of British Columbia reversing the judgment of Irving, J., at the trial. The action was for a declaration of partnership in a mineral claim, and for an order that plaintiff was entitled to share in the proceeds of the sale thereof by his partner. The defendant denied any partnership agreement, and set up a« a defence that the plaintiff had permitted his free miner's certificate to expire, and under the Mineral Act, 1896 (the benefit of which the defendant claimed), the plaintiff had lost his right, if any, in the claim. At the trial leave was given defendant to plead the Statute of Frauds, and sees. 50 and 51 of the Mineral Act, 1896. The action was tried at Vancouver, before Irving, J., and a common jury, on 11th, 12th, 15th and 16th February, 1898. The jury found there was a partnership. The facts are fully stated in the judgment of Irving, J., on the questions of law. Macdonell and E. J. Deacon, for plaintiff. Davis, Q.C, and Harris, for defendant. Cur. adv. vuli. April 26th, 1898. Irving, J.:—In the summer of 1895, the defendant struck up an acquaintanceship which resulted in the plaintiff inviting the defend- J ant and one Murehie to go up to Phillips Arm, where they li$8d j together for some months, and there they prospected for some mineral claims. After the plaintiff had shewn the defendant some ledges, it was for ther ested ii Murchii themsel tho addit me ml clai uld be inter- r-fendant, and ms, some f 0-t d no dispute clai —outsiders— they located a number of claims for other per particular the defendant Archibald (June 21st, 18.96) staked a clairo known as the Dorothy Morton; he says it was staked on the understanding that he was to have a one-half non-assessable interest for staking it, and that the other half was to belong to Chick and Moody, by whom the fees were to be paid. On the other hand, the plaintiff, MeNerhanie, claims that he, under the original agreement, was entitled to a one-third in the half coming to Archibald, and it was in consequence of this dispute that this action was commenced on October 8th, 1897. It was tried before me at Vancouver, before a common jury, who found that the conversation relied upon by McftTer- hanie as establishing a partnership, actually took place, and that the partnership agreement then arrived at applied to the Dorothy Morton. On April 10th, 1897, Chick, in whose name the Dorothy Morton was recorded, conveyed to Archibald a one-half interest in the claim, and by a document, dated July 19th, 1897, Chick, Moody and Archibald entered into an agreement with Messrs. Byan & Lang for the sale to them of the Dorothy Morton, for the sum of $20,000, payable as follows: $1,000 on the deposit in escrow of the Crown grant, and a conveyance of the mineral claim; this was paid on January 7th, 1898; $8,000 on January 19th, 1898; $8,000 on April 19th, and the balance on June 19th, 1898. This agreement was recorded on July 25th, 1897. McNerhanie, who was a free miner at the time the original agreement was formed, and at the time the Dorothy Morton was staked, permitted his certificate to expire in July, 1897, and did not take out a free miner's licence until August 7th, 1898. In this action the plaintiff seeks to have it declared (1) that he is a partner with the defendant in the location of the Dorothy Morton; (2) that he is entitled to one-third of the undivided half of the Dorothy Morton, standing in Archibald's name; (3) that he is entitled to a one-sixteenth part or share of the unpaid moneys in the hands of Messrs. Eyan & Lang. The defendant in his defence, after denying that there was any partnership agreement, and further, that if there was, the Dorothy Morton was not staked under it, set up as a defence that the plaintiff had, on July 25th, 1897, permitted his certificate to expire, and that under the Mineral Act, 1896 (the benefit of which the defendant claimed), the plaintiff had lost his right, if any, in the Dorothy Morton. After the jury had retired I gave the defendant leave to amend by pleading the Statute of Frauds, and the Mineral MARTIN'S MINING CASES. [VOL. Act (Williams v. Leonard (1898), 16 P. E. 544 and (1896), 17 P. E. 73,) on the terms that the defendant should indemnify the plaintiff against any additional costs, which he had rendered necessary in con- S sequence of his not having put forward his defence at the proper time (Cargill v. Bower (1876), 4 Ch. D. 81). The plaintiff, on July 26th, 1897, had permitted his free miner's certificate to expire, and the defendant, on motion for judgment, pursuant to leave reserved, asked for a non-suit, on the ground that sees. 9 and 84 of the Mineral Act prevent the plaintiff from maintaining this action. Mr. Mac- donell contended that these sections relate merely to revenue, and are not intended to cover a case of this kind—that is, where the plaintiff claims a share in the proceeds, and not an interest .in the mine, citing Stuart v. Mott (1894), 23 S. C E. 384, to point out his distinction. He bases his claim on the proceeds on the fact that the defendant was a trustee for plaintiff at the time of the making of the agreement for sale. Section 9 declares that, subject to the proviso thereinafter contained (there are some three or four), no person shaU be recognized; that means, I presume, recognized by everybody, including the Court, as • having any right or interest in, or to, any mineral claims, unless ne shall have a free miner's certificate unexpired. That part of the section may be said to be merely for revenue purposes,'but I do not think so. In my opinion, the existence of an unexpired free miner's certificate is a limitation, or rather, a conditional Umitation (see In re Machu (1882), 21 Ch. D. 838), providing for the termination of the miner's estate, or for its abridgment by operation of law. But the Act does not stop there. It goes on to declare that the defaulting person's rights and interests in or to any mineral claim shall be absolutely forfeited, that is, to the Crown; provided, however, in the case of co-partnership (sec. 9), or, in the case of partnership (sec. 84), the failure shall not cause a forfeiture or act as an abandonment of the claim, but the interest of the co-owner, or the partner making default, shall, ipso facto, be and become vested in the continuing co- owner or partner. This seems to me to amount to an absolute statutory declaration that, on July 26th, 1897, the plaintiff forfeited to the Crown his right to the claim, and that thereupon the claim became vested in the defendant, or, perhaps, in the purchaser Chick and the defendant. That part of the question is, however, immaterial. The foundation of the plaintiff's claim in this action is that some property, or interest in property, to which he was entitled, had been taken away or withheld from him. The jury have found in his favour that a partnership agreement with reference to this claim was made in July, 1895; but the failure of the plaintiff to renew his licence in July, 1897, took away from him his interest in the claim, and unless he had an interest in the claim, I do not see how he can demand the -proceeds which represent that interest. If at the very p last hour of the day had executed a convi terest in the mine, it to a portion of the p plaintiff, by letting McNBRHANIB v. ARCHIBALD. sUc tich the certificate expired the plaintiff favour of the defendant of all his in- t be suggested that he would be entitled rising from the sale of the claim. The , 3 expire, put see. 9 into operation, and that section conveyed to the defendant all the plai In James v. The Queen (1877), 5 Ch. D. 153, it is pointed out that considerations of hardship, or supposed hardship, cannot enable the Court to enlarge an Act of ParUament, or enable the Court to give in favour of a person who has nothing but a mere statutory right an equitable right where the Act has merely given a legal right. The Mineral Act must be taken as it stands, in favour of each partner or co-partner, who continues to be a free miner. There must be judgment of non-suit. Action dismissed with coses. From this judgment the plaintiff appealed to the Full Court, the appeal was argued 8th November, 1898, before McColl, CJ., Walkem and Martin, J J. Martin, A.-G., for the appellant: The plaintiff's mining licence expired on the 27th July, 1897, but the agreement for sale was made on the 19th July, 1897, and on that day plaintiff became entitled to a share in the proceeds of the sale. The Mineral Act applies only to persons whose names appear in the mining records and not to trusts; it applies to mineral claims or interests therein, and does not extend to the proceeds of the sale of a claim. Even if the statute went so far as to say that trustees would have a miner's licence, here this would be of no avail because the property passed on 19th July, the date of the agreement for sale. See Benjamin, 4th ed., 273, 278; Perry on Trusts, 4th ed., 231; Lewin on Trusts, Blaekstone ed., 237; Shaw v. Foster (1872), L. E. 5 H. L. 337. As to the distinction between a claim or land and the proceeds, see Stuart v. Mott (1894), 23 S. C. B. 153. Davis, Q.C. for respondent: The interest of a vendor in land which he has agreed to sell is an equitable interest: Lysaght v. Edwards (1876), 2 Ch. D. 506-7. In Stuart v. Mott the agreement was as to proceeds, but here the agreement was for the sale of the mineral claim. The licence is virtually a tax and the penalty for the non-payment thereof is a forfeiture of aU interest, whether legal or equitable. The proviso as to shareholders not being required to take out a miner's licence shews that the Legislature'intended that everything else should be comprised in it. MARTINfS, MININ [v As to the Statute of Frauds, the prospecting agreement entered into between the parties, contains none of the elements of a partnership agreement—at most it is only an agreement to be co-owners in . real estate, and such an agreement is within the Statute of Frauds. For authority that a mineral claim is real estate see Stussi v. Brown (1897), 5 B. C 380, ante p. 195; Wells v. Petty (1897), ibid. 353, ante p. 147; Pope v. Cole (1898), 6 B. C 205, ante p. 257. It can only be a mining partnership under sees. 80-92 of the Aciji and unless there are other and written articles these sections apply. H See on the question of parol evidence: Forster v. Hale (1800); 5 Ves. 309. 311; Dale v. Hamilton (1846), 5 Hare 381, 384; Caddick v. Sl'idmore (1857), 2 DeG- & J. 52. As to what a partnership in lands means, see Kay v. Johnston (1856), 21 Beav. at p. 537. The Court must give effect to sees. 34 and 50 of the Act. Martin, A.-G., in reply: The plaintiff does not now claim an interest in a mineral claim, but he does claim a right to the proceeds. The miner's licence tax is not for purposes of revenue—it is a franchise. Cur. adv. vult. No iber 10th, 1898. The judgment of the. Court was delivered by McColl, C.J.:—In July, 1895, the plaintiff, the defendant and' one Murchie agreed together to^prospect, locate and deal with mine^l' claims for their joint profit. On 25th June, 1896, a mineral claim was, in pursuance of the said agreement, located by the plaintiff by the name of the Blanch I.amont, but subsequently the parties decided to allow the location to apse, that it might be re-located by the name of the Dorothy Morton. This was afterwards done, accordingly, in the name of one Chick, who assigned one undivided half-interest in the claim to the defendant, to be held by him under the agreement. On 19th July, 1897, the defendant and the other owners of the claim entered into an agreement to sell it for the sum of $20,000 and the sale having been completed, the plaintiff now seeks to recover his share of the purchase money in i espect of his one-sixth interest in the claim. The defendant resists payment on the ground that the plaintiff having, after the agreement for sale, allowed his free miner's certificate to expire on 26th July, 1897, the effect of sec. 9 of the Mineral Act was to then vest in him the interest of the plaintiff in the mineral claim, and with it his share | of the purchase money. i.] MdNfia&BtAi&tE v. ARCHIBALD. ggg At the trial the defendant was allowed to amend so as to raise the 1899. farther defences Of !-the':Stattite»ofrEBauds and sees. 50 and 51 of the Jufte Mineral Act. Hmm»* For the plaintiff it was contended that sec. 9 only applies to a ov .cSSb*. legal estate held by a free miner in a claim, or share of a claim, and reliance was placed on the definition given to a " full interest" in the Mineral Act. For the defendant it was urged that the section applies to all rights and interests, legal or equitable, of any kind. In my opinion the section m question has no application to the present case. The exact point to be determined is whether the enactment in question is so worded as to deprive the plaintiff of his share of the purchase money paid under the agreement of sale, made before the expiration of the plaintiff's free miner's certificate, the money having been paid subsequently. If the defendant had executed an assignment to the purchaser at the* time the agreement was made, and had taken from him his promise to pay the purchase money, the defendant would not, I think, seriously contend that the plaintiff must forfeit his share of the purchase money because he allowed his free miner's certificate to expire before the money was paid. Then if not, for what reason would tne plaintiff lose his right to enforce payment personally against the pur- ju<jgment of chaser in case of his failure to pay the purchase money ? Or why Full Court. must the plaintiff now forfeit his share of the purchase money, it having been paid according to the'terms of the agreement of sale, merely because of his failure to renew his certificate? I think that there is a plain distinction between the purchase money and the claim itself. No doubt the claim not having been assigned to the purchaser until after the payment of the purchase money, was a security for its payment, and assuming, for I desire to be understood as expressing no opinion upon this point, that the plaintiff would by force of the statute lose the benefit of his interest in^e security, it does not, I think, follow that his share of the purchase money is to be treated as also forfeited. The money itself and the security for its payment are two separate things. All that the enactment professes to do is to vest the inteiiest in the mineral claim in the co-owners. 'What the plaintiff is seeking in the present action is merely the payment of his share of the purchase money received by the defendant, in respect of the interest held by him in trust for the plaintiff, and {&*!% the defendant for the plaintiff, while his free miner's cer- tffickte'was «'force, and to this claim sec. 9, giving the words their I oK^ha-ry 'meaning, affords, I think, no 'defence. This view seems to me to be strengthened by considering what thel,*esult would have been if the entire claim had been vested in the MINING OASES. ■ [von. ise have been contended that the effect laim to the Crown r Would not the it under his purchase if himself the • te ? Then could it be well contended paid, would have become forfeited to The enactment ought, I think, to receive the same construction; in either case. With reference to the defences of the Statute of Frauds and sees. 50 and 51 of the Mineral Act, I think it is only necessary to repeat that no interest in the mineral claim is now in question. See SUiari. v. Mott (1894), 23 S. C E. 384. I think that the appeal should be allowed with costs. Appeal allowed with costs. ;. The defendant appealed to the Supreme Court of Canada and the appeal was argued on March 14th, 1899. • The questions of law argued were: (1) Does the Mineral Act of 1896 prevent the plaintiff from recovering because he did not hold a free miner's certificate when he brought his action ? (2) Does the Statute of Frauds apply to the case of a partner? ship formed by parol agreement for dealing in lands? Christopher Robinson, Q.C, foT the appellant. As to the want of a certificate under the Mineral Act being a bar to this action, see McCormick v. Grogan (1869), L. E. 4 H. L. 82; McPherson & Clarke on Mines, pp. 695, et seq. The Statute of Frauds applies to the case of a partnership In lands: Stuart v. Mott (1894), 23 ST. S. Bep. 524; 14 Can. S. C E. 734; Dale v. Hamilton (1846), 5 Hare 369; Maddison v. Alderson (1883), 8 App. Cas. 467. As to the objection that the statute cannot be relied on to support ,a fraud, see Rochefoucauld v. Boustead (1897), 1 Ch. 196. Moreover this was not a partnership: Kay v. Johnston (1856), 21 Beav. 536; Lmdley on Partnership, (6th ed.) p. 52. S. H. Blake, Q.C, and Latchford, for the respondent referred on the question of the Mineral Act to Bainbridge on Mines, 4th ed., pp. 541 and 545, where co-ownership and partnership are dealt ■withafe; As to the Statute of Frauds, see Browne on Statute of Frauds, 6th ed., p. 261; Am. & Eng. Ency. of Law, vol. 17, p. 99 ;I» refflf of Marlborough; Davis v. Whitehead (1894), 2 Ch. 133; Heard v. j Pilley, (1869); 4 Ch. App. 548; Haigh v. Kaye (1872), 7 Ch. App. 469; Chester v. Dickerson (1873), 54 N. Y. 1. Cur. adv. vult. x.] McNERHANII ARCHIBALD. 1 June 5th, 1899. Strong, C.J.:—In July, 1895, the appeUant, the respondent and one Murchie, formed a partnership to deal in mining claims. That this partnership; existed was found by the jury, and it is recognized < as having been so found by the learned Judge Mr. Justice Irving, g before whom the action was tried, as appears from his judgment pronounced on entering the verdict. After having acquired and sold several claims, in June, 1896, the partnership acquired a claim which was known as the Blanch Lamont. This claim they allowed to lapse, but afterwards acquired an interest in it again under the denomination of the Dorothy Morton. This claim was taken out in the name of one Chick, who in consideration of doing the necessary work and recording the claim was to have half of it. Chick thereupon assigned an undivided one-half interest to the appellant for the behoof of the partnership, retaining the other half for himself. On 19th July, 1897, Chick and the partnership sold the whole claim for $20,000, and the purchasers at once took possession. There do not appear to be any outstanding debts or claims due by or made against the partnership, and the $10,000 was, therefore, on its being paid to the appellant, a net sum in his hands to be divided amongst the three partners, each being prima facie entitled to one- third of the amount. The respondent had a free miner's certificate from the date of the formation of the partnership up to the time of the sale of the claim and afterwards until the 26th of July, but he aUowed this certificate to lapse on the 26th of July, 1897, not renewing it tiU the 8th August, 1897. The purchase money was not paid to the appeUant until after the 26th of July, but soon after that date it was paid, one-half to Chick and the other moiety, amounting to $10,000, to the appellant for the behoof of the partnership. The respondent brought this action for the recovery of $3,325, his share of the purchase money remaining in the appellant's hands. At the trial before Mr. Justice Irving, and a jury, it appeared on i the pleadings as they originally stood after the jury had found the facts that there was no real defence to the action, but the learned ! Judge permitted the appellant to amend his statement of defence by I setting up the Statute of Frauds, and the fact of the lapse of the i respondent's free miner's certificate at the date mentioned, and the ! Mineral Act of British Columbia. And upon this latter ground the learned Judge nonsuited the respondent, who appealed to the Supreme Court in banc, where the first judgment was reversed and a judgment ordered to be entered for the respondent for the amount sued for. Xo question of fact is in dispute; the jury found there was a part- I nership agreement, and the appellant in his factum concedes this and IftAtttirN'S MINlKltS CJSSES. [von*l admits that the only questions are the two questions of law as to w&etirer the respoadeaifc'dfc *o t)e:1deteaj«ed frotea recovering his share I of thte money 'by reason of the statutory defences set up by the amendment. The passage in the factum (referred to is the (following: atr page 15 the ^appellant Bays: jes all "qufestkins of $ B ®f rlaw. As regards the Mineral Act it ceased to have any appUcation when the claim had been sold and nothing remained but the money arising1, from the sale made whilst the respondent had his certificate; from: that time he had no interest in the claim which had been alienated and converted into a mere money demand by the sale, and the moftOTK when it came into the hands of the appellant was therefore impressed? With a trust for the respondent to the amount of one-third. To say that the respondent has forfeited his right to this money representing a mining claim in which he had ceased to have any interest, and not £V&b: YarMng directly out of the sale, but being money had and received to the use of the respondent by the appellant, would be not only enlarging the words of .the statute, but would be placing upon it an arbitrary sand unreasonable construction, not warranted eithe!j| by its language or by a consideration of the object which it had in view. Even if the action had been one to recover the price from the purchasers the Act could not have applied, much less can it apply. between the present parties where -no 'mining right is in question. If the >¥es'pondent had diefd after "Hate sale and before the payment of the ifiMffigy'^ St-'todght ij<Bst as welLbe said that his executors could not have recovered heeaiffise they had not raining -certificates. Could it be «i thrifc "Where a partnership of this kind had been dissolved for yei aMdthe parties ?isad abandoned the pursuit of mining altogether and had left Hshe gaining country, that one of the partners on discovering j that the other partner owed him money opon tAie Soo*«ng«f the part- j neMiip accounts, -could be precluded from Teoovetring ffchat -money be- j ettfttse ihe had not kept up his free miner's licence ? Such an application of the fftatflfte would be absnrd, hut yet it would follow that the j iMtifietfte w«8 in Such a case necessary to entitle the party to ue, if we should give effect to the objection ia «tdtxe -present case. As to the Statute of Frauds, that can have no appUca tion. It never applies to exclude parol evidence of a partnefshi pford eaUngin j land. This was determined as far back as 1 he ease of Torsiei v. Hale, (1800), 5 Ves. 308, for we find Lord L< ughboTOuj 'h in t nat case, saying: That was not the question; it was whether there was a partner ship. Thel there was 1 ''tFheTfn; uesti n of] 1 partnership i If by facts ni partners in t which a part that partners McNERHA HE: AROHTBALD. b be tried as a fact, and as if there was an issue upon it. i established as a fact that these persons were in which land was-necessary to carry on the trade, the t. The partotirship being established by evidence upon y be found, the premises necessary for the purposes of r operation of the law, held for the purposes of that ( Sthokg, C. J_ In Dale v. Hamilton (1846), 5 Hare 369; in app. 2 Ph. 266, $ase-Chaneellor Wigram expressly decided that a partnership formed for the sole purpose of deaUng in land Uke that in question here might be proved by parol, and although Lord Cottenham on appeal decided on another ground, holding that there was written evidence,'he expressed no disapproval of this doctrine applied by the Vice-Chan- ceUor. In Caddiok v. Scidmore (1857), .2 DeG. & J. 52, cited for the appellant, no partnership was proved. In Gray v. Smith (1889), 43 Ch. D. 208, Mr. Justice Kekewich recognizes the authorities before quoted to have estabUshed the law, for he says: The first point raised upon that was whether it was necessary for such a contract that there should he an acknowledgment in writing signed by the party to be charged Within the meaning of the Statute of Frauds? The authorities, when looked into, seem to establish that you may have an agreement of partnership by parol notwithstanding that- the partnership is to deal with land. This was established by the case of Forster v. Hale (1800), 5 Ves. 308, and in Dale v. Hamilton (1846) 5 Hare 369, Wigram, V.C., went a step further, and said that the same rule would hold good where the partnership was to deal exclusively with land, and he proceeded to apply it to such -a case. I take it to be established now that a partnership may always be proved by parol, and if it turns out that the assets consist of lands, or interests in land bought for the purpose of being sold again, such lands will be treated as any other property not coming within the statute. The principle is this; all assets of a partnership are considered as personalty, and that upon an application of the doctrine of equitable conversion, for ultimately in order to a winding up of the partnership everything must be sold and converted into money. This is applied to other questions besides that of the applicability of the Statute of Frauds, for. instance, in a partnership for dealing in land the lands acquired are not considered as realty going to the heir of one of the partners, but as belonging to the personal representative for whom a court of equity treats the heirs as a trustee. Darby v. Darby (1856), 3 Drew 495; Wylie v. Wylie (1853), 4 Gr. 278. I find it laid down in a text book published during the present year (Thompson on Equity, p. 603), that this is now the accepted doctrine in England. It is there said: A pa: rship n 1899. I agree entirely in the judgment of the learned Chief Justice of —1' British Columbia, and. for the reasons before stated I am of opinion Supreme that the appeal should be dismissed with costs. of Canada. VsoheeeauJ Taschereal, J., concurred. wynnb, . . Gwynne, J.:—The only claim rehed upon by the plaintiff in this Sedgkwiok, J. action is an agreement in the 5th paragraph of the statement of claim Jieouard, J. alleged to have been entered into between the plaintiff, the defendant, one Murchie and one P. J. Chick. There is no evidence in the case before us of any such agreement having been entered into. There is, in fact, no evidence produced in the appeal case, and, in the absence of evidence of the agreement relied upon by the plaintiff, it appears to me to be impossible to render justice in the premises. The appeal,- I think, should be allowed, and the case remitted to a new trial. Sedgewick, J.:—I am of opinion that thii allowed, and the original judgment restored. ppeal should be Girouard, J.:—I concur in the judgment of the Chief Justice: Appeal dismissed with costs. • McNaugM v. Va Note.—S( loted. Cunninghan . St. Key-erne Mixing Co., Li.mii Action tried by way of special case before Drake, J., at Nelson, Statem on'7th June, 1S99. Wilson; Q.C, for plaintiff. John Elliot, for defendant. Drake, J.:—This action is brought by way of special case to decide whether or not a miner can locate a claim on each side of a prior location under one record, in other words, whether two strips of land unconnected with each other but within the statutory Umit of 1,500 feet can be covered by one location and record. The 0. B. H. claim was recorded on 16th August, 1894, and the only unoccupied land was a strip lying north-east of the Exeter claim I and a strip lying, south-west of the Exeter claim but divided further j on the east by the Slocan Boy. Thus the two pieces of land which the defendants claim, are divided the one from the other by lawfully occupied and recorded mining claims. The defendants contend that they are entitled to both these strips under their record. The object of the Mineral Act is to enable miners to enter on lands of the CrOwn and record a plot of ground which under sec. 14 of the j Act of 1891, as amended by ch. 29 of 1893, is where possible not to j exceed. 1,500 feet by 1,500 feet and of a rectangular form. The term " plot of ground " does not mean a variety of plots. A mining claim may be restricted in area by other existing claims but it must be of rectangular form except when a boundary line of a previously surveyed claim is adopted as common to both claims. The whole scope of the Act indicates that a mining claim means but one • piece of ground. MARTIN'S MINING CASE S. [ vol. The legal posts which were required by the Act are two in num.- her and the notice upon the initial post is to contain the number of I feet lying to the right and left of the line. The location notice, Form A, in schedule to Act of 1893, ch. 20, I sec. 14, defines the claim as so many feet in length by so many feet-j in breadth and is to shew how many feet lie to the right and left of |f location line. This location notice shews that the party claiming un- J der it claims a clear tract of land on each side of the location lineM If any land on either side of the location line and within the area indicated by the location notice is lawfully occupied mining ground thev| locator has no right to enter on it and therefore no right to extend"? his line across such ground. The locator of the 0. B. H. claimejB 1,500 feet to the left of the line but there was only a few feet of land to the left because the Exeter intervened, therefore he could only take up to that line and any further unoccupied land forming portion of ;| the same plot without any intervening bar of a recorded claim. I am of opinion that the defendant company are not entitled to any I portion of the land separated and cut off from this portion of land on which they had placed their stakes. No question is before me for decision as to whether the records of either parties are valid or the reverse. As the parties have agreed there shall be no costs, the plaintiff will have judgment without costs. Judgment for plaintiff. Note.—See, for defects in location, list of cases in note to Manley v. Col- lim and locates another claim on e miner, such a proceeding is con- the Mineral Act and Amendments, i the second location. Action tried at Nelson, before Drake, J., on June 9th, 1899. The facts appear fully in the judgment. McAnn, Q.C, and R. M. Macdonald, for plaintiff. Bodwell, Q.C, for defendants Heath and Heap. W. A. Macdonald, Q.C, and Johnson, for the defendant company. Our. adv. vult. June 10th, 1899. Drake, J.:—The plaintiff's case is that on the 5th day of June, #7, he located and recorded the Tecumsie claim on Woodbury Creek, re up the adjoining claim, and requested the defendant is name to be used as the two claims were on the same p agreed to, and at the same time furnished the plain- mpplies and agreed to pay the record fees; and the that a quarter of this claim should belong to Heap for ime and for the other considerations. This claim was iac. Heap requested the other defendant, Heath, to ine the claim. This he did, and in consequence of his npleted the record. The plaintiff offered his interest ms for sale at $150 cash. This Heap refused, but said he would take an option on the claims for twelve months and do the necessary representation work, but would pay no cash. The negotiations as to the price for the option dragged on for severaldays.tbe plaintiff wanting a larger sum than Heap was inclined to promise. At last Heap suggested that the plaintiff should go up and see the claims and make up his mind definitely as to the value. The plaintiff accordingly went up and examined the property, but alleges that the defendant did not inform him that there was another lead discovered on the Pontiac by Heath. This discovery of ore was in fact Hewi shed tc Heap lode. This 1 tiff w ith sor plaintiff agr the us eof hi namec thel go up andej report Heap in th i two MARTIN'S MINING CASES. [VOL. only 300 feet away from the place where the mineral was found by the a plaintiff which induced him to stake the claim. The plaintiff appar- I ently contented himself with going to the discovery he had himself^ made and on to the Tecumsie claim as well, but did not go farther orA the Pontiac and his reason was the country was rough and covered I with fallen logs. The result, however, of this visit was that terms were arrived at, and on the 30th of July, 1897, an option was given by which the plaintiff agreed to convey to Heath and Heap his interest in the said two claims; Heath to pay $1,250 for purchase price within a year in case he made up his mind to buy after the examination of the ground. The plaintiff alleges that before he gave this option he asked Heap if any other discoveries had been made on the claims, and that Heap informed him that there had been none. This allegation is distinctly denied by the defendants, and the plaintiff seeks to support it by the evidence of Daniel McGraw, who states that about the 20th of July, Heap told him he had something of the best in the country but not to tell plaintiff. And next we have Hughes, who says he was told by Heap that the plaintiff did not know of the new lead before he bought the plaintiff out. With reference to the first of the witnesses, if any such statement as he speaks of was made, it only goes to this that the discovery made by Heath was not disclosed to the plaintiff. It is improbable that if Heap had desired to keep this find a secret he would have disclosed it to a stranger and requested him not to tell the plaintiff. But he was not asked to keep it a secret generally. Ainsworth is a small place and it must have come to the plaintiff's ears. The evidence of Hughes does not assist the plaintiff. The matter is thus left a question of veracity between the plaintiff and Heap. The defendant Heath, after obtaining the option, did two months' work on the claims with another person and spent a considerable suni of money, and on the 14th of October, 1897, these claims were" bonded to Leo Alexander Scowden for $40,000, payable as to $1,000 before 25th October, and $3,000 on or before the 14th of November..; The sum of $4,000 was paid, and out of this the plaintiff was paid $1,000 which he agreed to receive in satisfaction of the $1,250 which would not be due before July, 1898. He, at the time he received this money, knew of the agreement with Scowden, and in fact he knew the day it was executed and the amount of the option, but he neither took any steps nor made any suggestion of misrepresentation to either of the defendants, and never has until this action was brought. Scowden spent some $10,000 on the property and then threw it up. The bill of sale from the plaintiff to Heath was dated the 13th of October, 1897, the day the claims were bonded to Scowden whereby the plaintiff sold i and by another terest in the P The defenc 5 whi i he clair ed to bi lad thr quarte daUhisin- the a ndon to the se sha )ove option, the 29th of defendants, n considera- res are only did the necessary assessment November, 1898, Heath transferred the said clai The Nelson-Slocan Prospecting and Mining C< tion of paid up shares, but no cash passed, and j of a nominal value to-day. The plaintiff claims in his action that the bill of sale to Heath be caneeUed; that the bill of sale to the company be cancelled, and in the alternative $40,000 damages and an attaching order on their j stock in the defendant company, and an injunction against the com- j pany to restrain the disposal by them of the said mineral claims and an account of all ore sold. The defendants deny any misrepresentation and deny that they even told the plaintiff that any such discovery was made. The fact that the plaintiff was requested to go, and did go, up to the claims before he finally agreed to giving the defendant an option is certainly | not evidence of concealment or intention to deceive, but the reverse. [The contention that Heap as a quarter owner of the Pontiac had a I duty cast upon him to disclose any information that might affect the [value of the claims is not borne out by the facts. An interest in a [claim is not equivalent to a partnership. The owner is rather in the [position of a co-owner, because the owners of shares in a mine can sell [or mortgage their interest without reference to the other owners and their shares are liable to their separate debts. A miner has to represent his share in the work and that is all the duty the statute imposes upon him, and -it is a further subject of remark that for two years the [plaintiff never verbally 6r in writing gave to the defendants any in- pimation that he considered he had been deceived, but left the country [and traveUed about on the strength of the money he had received and when he returned stiU kept silent. He kept the purchase money knowing as much of the facts then as he does now. If he wished to disaffirm the transaction he must proceed within a reasonable time and phile the parties remain in or can be restored to their original position: Olough v. The London and North-Western Railway Company (1871), L. E. 7 Ex. 26. The defendants further rely on sees. 24 and p0 of the Mineral Act, and sec. 14 of the Mineral Act Amendment Vet. By sec. 34 of the Mineral Act the interest of a miner in his claim s equivalent to a lease for a year, and thus is an interest in land, an'd py sec. 50 no transfer of any mineral claim or of any interest therein [haU be enforceable unless in writing signed by the transferrer, and py sec. 14 of ch. 28, 1897, "'no free miner shall be entitled to any nterest in any mineral claim which has been located and recorded by . MARTIN* S rMINES [v> any other free miner unless such interest is specified and set forth ha some writing signed by the party so locating such claim." By sec. 29 1 of ch. 34, 1896, " no free miner shall be entitled to hold in his own. name, or in the name of any other person, more than one mineral claim on the same vein or lode except by purchase." The object of the Mineral Act is that all dealings with claims should be in writing and recorded, and that no one should in any way lock up a large tract of , land by locating in his own name, or in the names of others, mora than one claim on each vein or lode discovered. In this case it is in evidence that the plaintiff requested the loan of • defendant Heap's name in direct violation of this Act. The effect of this transaction in iny opinion, is that the plaintiff never had any interest in the Pontiao claim. The whole transaction was an evasion of the Act and contra^ to public poUcy, and therefore the plaintiff has no right of action in regard to the Pontiac claim. See Pearce v. Brooks (1866), L. B. 1 Ex. 213; and Scott v. Brown Doering, McNab & Co. (1892), 2 Q. B. 724, at p. 728, where Lindley, J., says: " No Court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to rise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the Court, and if the person invoking the aid of the Court is himself irar plicated in the illegality." In addition to this obstacle the plaintiff is met by the other section to which I have referred. In the first place there is no writing from Heap to Alexander signed by Heap the registered owner. The learned counsel for the plaintiff suggested that the various bills of sale and transfers put in were sufficient to indicate that the defendant Heap was only holding the claim for the plaintiff. I fail to see that any such deduction can be drawn from the evidence, and I do not feel inclined to fritter away the restraints imposed by the statute by refined distinctions. If the Act is clear the natural construction must be given to it. The plaintiff conveys the Tecumsie and his interest in the Pontiac to Heap, but Heap is the recorded owner of the Pontiac and nowhere conveys any interest to the plaintiff. In this view of the law the question of misrepresentation, if any existed, and which the documentary evidence, in my opinion, does not substantiate, cannot even if it was proved, override the Mineral Act and under that Act the plaintiff has no right of action in respect to j the Pontiac. Judgment for the defendant with costs. Note.—As to recording transfers and policy of Act: see Atkins v. Coy, ■ante, p. 88, and notes thereto; and also sec. 130 of the Mineral Act. As to relocation in name of another free miner: see Manley v. Collom, post, p. 487. As to co-partners and co-owners: see McNerhanie v. Archibald, ante, p, 320; j Bentley v. Botsford, post, n. 454; Marino v. Sproat, post, p. 481; McNaugM j v. VanNorman, post, p. 516; Fry v. Botsford, post, p. 520. . Union Colliery Co. of B. C et al. ENERAL EOR BRITISH COLUMBIA, INTERVENANT. that 1 Legis iture Regarded merely as a coal working regulation, it would come within sec. 92, .-sub-sec. 10, or sec. 92, sub-sea 13, of the British North America Act. But its , exclusive application to Chinamen who are aliens or naturalized subjects establishes a statutory prohibition which is within the exclusive authority of the Dominion Parliament conferred by sec. 91, sub-sec. 25, in regard to " natural- l of the Full Court of British Colur ersed. Appeal by the defendants from a decree' of the Full Court of ' British Columbia (July 13,1898), dismissing an appeal from a decree of Drake, J. (May 14, 1898). The question decided in this appeal was whether or not sec. 4 (set out in their Lordships' judgment) of the Coal Mines Begulation Act, 1890, now sec. 4 of the Eevised Statutes No. 138 of 1897, was intra vires of the Provincial Legislature. The Courts below upheld its validity, and granted the injunction prayed for against the appeUants. The appeal was argued on the 7th and 11th of July, 1899. Blake, Q.C, and Cassidy, for the appellants, contended that the enactment in question was not within the competence of the Provincial Legislature. It dealt with the subject of " aliens " within the meaning of British North America Act, 1867, gee. 91, sub-sec. 25. It disabled Chinamen for the exercise of the ordinary right, preserved to all others, to earn their bread by their labour for no other reason than that of their origin. By sec. 91, sub-sec. 25, the Dominion Parliament has exclusive legislative authority over aUens; and by sea 132 it has all powers necessary for performing the treaty obligations of Canada to Lord Macnaghten, Sir MINING CASES. [VOL. foreign countries. By Art. 1 of the treaty between Her Majesty and the Emperor of China, dated August 29,1842, confirmed by the treaty of 1858, and Art. 5 of the convention betweenlthe same Powers made on October 24, 1860, Chinamen have the right to take .service in the Colonies, and regulations were to be made for their protection when emigrating. The British Columbia Legislature has been endeavouring for years to prevent and restrict the settlement of Chinese aliens in the Province -in order to prevent competition with the whites. Several of such attempts have proved abortive, some because the Acts when passed were declared ultra vires, others because they were disallowed by the Canadian executive. Beference was made to the Chinese- Tax Act, 1878, ch. 35, which was held to be ultra vires; Acts of 1884, chs. 2, 3, 4; Acts of 1885, ch. 13; of 1886, chs. 25, 26, 27, 29, 30, 31, 33, 35; Acts of 1890, ch. 50; of 1891, chs. 48 and 69;. of 1895, chs. 5, 59; Acts of 1896, chs. 38, 51, 56; of 1897, chs. 1 and 2; of 1898, chs. 4, 28, 46. The Dominion Parliament dealt with the subject of Chinese immigration by 48 & 49 Vict, ch. 67, B. S. C 1886, whereby it regulated the immigration of Chinese into Canada, imposed a tax or duty on every Chinese immigrant, and prohibited the organization of private tribunals by the Chinese. It was contended that the enactment in question violated the spirit of the treaties referred to, was opposed to the comity of nations, and was calculated to create complications between the British and Chinese Governments, and conflicted "with the exclusive authority of the Dominion Parliament. Even if there be some aspect of the question of aliens in which aliens may be touched incidentally by the Province, this is not such a case. The Dominion Parliament had dealt with the subject as completely as it saw fit, and it was not competent for the Provincial Legislature to impose further special restrictions and disabilities upon the Chinese alien immigrants into British Columbia. Beference was made to Musgrove Y.Chun Teeong Toy (1891), A. C 272. Haldane,.Q,.C, and C. Russell, Q.C, for the intervenant, contended that the enactment in question was intra vires of the provinc al legislative authority. The ease had two aspects: one as relating to aliens, and the other as to restricting the employment generally in mines below ground of particular kinds of labour. As regards he- former, that would be within the exclusive competence of Dominion legislation. But Chinamen are not necessarily aliens. The tein Chinese or Chinamen is one which is perfectly well understood in Canadian legislation, and means persons of Chinese habits and origin. It may include alfens within its meaning; but most of the Chinese who- are affected by this legislation have been naturalized.. Of the statutes cited on the other side as being in pari materia, three contain definitions of Chinese: (1) the x\ct of 1898, ch. 28, sec. 4. (Sir E.fry. The Gmeral f Ontario v. Tayloi Blake, rjthe - the Dot respondei AMorney-Gmemlfoi ;96), A. C 348. Our. adv. vult. July 28th, 1899. r Lordships was delivered by :—The appeUant company carries on the business ' means of underground' mines in lands belonging situated near to the town of Union in British mipany have hitherto employed, and still continue en in the working of these underground mines, r " Coal Mines Begulation Act, 1890, it is expressly r the age of twelve years, and no woman or The judgment of thi Lord Watson of mining coal, b to the company, Columbia. The c to employ, Chinan By sec. 4 of th | enacted that, no 1 I girl of any age, and no Chinamen, shall be employed in or allowed to be for the purpose of employment in any mine to which the Act | applies, below ground.'' By the Act of 1890, the words " and no Chinamen " were added to the 4th section of the then existing Coal Mines Begulation Act, which" was ch. 84 of the ConsoUdated Statutes of 1888, and now, as amended, is ch. 138 of the Bevised Statutes of British Columbia, 1897. It is sufficiently plain, and it is not matter of dispute, that the provisions of I che Act of 1890 were-made to apply, and, so far as competently enacted, do apply to the underground workings carried on by the appellant [ company. The present action was instituted, in the Supreme Court of British | Columbia, by the respondent, John Bryden, against the appellant company, of which he is a ■shareholder. It concludes (1) for a. declaration I that the company had and has no right to employ .Chinamen infoertahi I below. ground, iand that such (emsployment was and ;is <ipte#|L i^iw MARTIN'S MINING CASES. [VOL. Council LordWati (2) for an injunction restraining the company from employing Chinamen in any such position of trust and responsibility, or as labourers, below ground, and from using the funds of the company fh paying the. wages of the said Chinamen. The respondent averred in his state- lN ment of claim that the employment of Chinamen in positions of trust and responsibility, and as labourers underground, was a source of danger and injury to other persons working in the mines, which involved the liability of the company for damages, and was also injurious and destructive to the mines. He also pleaded that the employment of Chinamen, in these capacities, was contrary to the statute law of the Province, : The appellant company, by their statement of defence, denied that there was any risk of injury arising either to other workmen in their mines, or to the mines, from the employment of Chinamen as underground miners. They pleaded that, in so far as they related to adult -Chinamen, the enactments of sec. 4 of the Coal Mines Begulation Act were void, as being ultra vires of the Legislature of the Province of British Columbia. Thd case was tried in the Superior Court before Mr. Justice Drake, without a jury. In the course of the trial, the respondent, the Attorney-General for the Province of British Columbia, who appears to have suspected that this suit was collusive, appeared by counsel, and lie has since, in the character of intervenant, been a party to the litigation. It appeared from the evidence that the appeUant company, in working some of their underground seams of coal, employed no workmen except Chinamen who were of full age, and that, in those parts of their workings where miners other than Chinamen were employed, no Chinaman occupied a position of trust or responsibility, such as were alleged in the statement of claim. The consequence was, that in the subsequent conduct of the litigation, the Courts below, and their Lordships in this appeal, have only been invited to consider the conclusions of the action, in so far as these bear upon the legality of employing Ohinese labour, in violation of the express enactments of sec. 4 of the Bevised Statute No. 138 of 1897. In other words, the controversy has J been limited to the single question, whether the enactments of sec. 4, in regard to "which the appellant company has stated the plea of ultra vires, were within the competency of the British Columbian Legislature. In considering the issue to which the case^has thus been narrowed, the evidence led by the parties appears to their Lordships to be of no I relevancy. .It is chiefly directed to the character, whether reasonable, I or unreasonable, of the legislation which has been impugned by the j appellant company. But the question raised directly concerns the j legislative authority of the Legislature of British Columbia, which de- j pends upon the construction of sees. 91 and 92 of the British North j BRYE i )[ ,| .11-; |; Y America Act, 1867. These clauses distribute all subjects of legislate between the ParUament of the Dominion and the several Legislatu of the Provinces. In assigning legislative power to the one or other of these Parliaments, it is not made a statutory condition, t the exercise of such power shall be, in the opinion of a Court of li discreet. In so far as they possess legislative jurisdiction, the discre^ tion committed to the Parliaments, whether of the Dominion or of law to determine, what are the limits of the jurisdiction committed to them; but, when that point has been settled, Courts of law have no right whatever to enquire, whether their jurisdiction has been exercised wisely or not. There are various considerations discussed in the judgments of the Courts below, which, in the opinion of their Lordships, have as little relevancy to the question which they had to decide, as the evidence upon which these considerations are founded. There can be no doubt that, if sec. 92 of the Act of 1867 had stood i alone, and had not been qualified by the provisions of the clause which precedes it, the Provincial Legislature of British Columbia would have had ample jurisdiction to enact sec. 4 of the Coal Mines Eegulation I Act. The subject-matter of that enactment would clearly have been included in sec. 92 (10) which extends to provincial undertakings such ! as the coal mines of the appeUant company. It would also have been I included in sec. 92 (13), which embraces " Property and Civil Eights in the Province." But sec. 91 (25) extends the exclusive legislative authority of the Parliament of Canada to " naturaUzation and aUens." Sec. 91 concludes with a proviso to the effect that" any matter coming within any j of the classes of subjects enumerated in this section shall not be deemed to come within the class of matters of a local or private nature comprised in the enumeration of the classes of subjects by this Act assigned exclusively to the Legislatures of the Provinces." Sec. 4 of the Provincial Act prohibits Chinamen who are of full age from employment in underground coal-workings. Every aUen, when naturalized in- Canada becomes, ipso facto, a Canadian subject of the Queen; and his children are not aUens, requiring to be naturalized, but are natural-born Canadians. It can hardly have been intended to give the Dominion ParUament the exclusive right to legislate for the latter class of persons resident in Canada; but sec. 91 (25) might possibly be construed.as conferring that power in the ease of naturalized aliens after naturaUzation. The subject of " naturalization" seems prima facie to include the power of enacting what shall be the consequences of naturalization, or, in other words, what shall they have been naturaUzed. It does not appear to their Lordships to I M&R*ffinsT'S.:]fl!INEN AtSES [v the term " naturalization " was? intended to bear, as it occurs in sec 91 (25). But it seems clear, that the expression " aliens," occurring in that clause, refers to, and at least includes, all aliens who ha^ not yet been naturalized; and the words, " no Chinaman," as they &■& I K used in sec, 4 of the Provincial Act, were probably meant to denote, and they certainly include every adult Chinato&n' who has not been naturalized. M v. .) ustice Drake, before whom the case was tried, and, on appeal^ the learned Judges of the Full Court, were of opinion that the enactments of sec. 4 of the Mines Begulation Act, so far as challenged, were within the legislative jurisdiction of the Parliament of the Pro^oM They accordingly gave the plaintiff a declaration to the effect that the appellant company has no power to employ Chinamen, or to aUow Chinamen to be, for the purpose of employment, in any mine of the company'in British Columbia below ground, and that the employment by the company of Chinamen, in their coal mines below ground at Union; was unlawf ill, as being contrary to sec. 4 of the Coal Mines Begulation Act. They also, in terms of that declaration, granted an workmen, and agents, from employing Chinamen, or allowing Chinamen to be for the purpose of employment, in the cOal mines of 5jfis I company at Union, contrary to the provisions of sec. 4. The provisions of which the validity has been thus affirmed by the Courts below, are capable of being viewed in two different aspects, according: to one of which they appear to fall within the subjects assigned to the Provincial Parliament by sec. 92 of the British North America Act, 1867, whilst, according tothe other, theycclearly belong to the class of subjects exclusively assigned to the Legislature of the Dominion by sec. 91(25). They may be regarded' as merely establish* ing.a regulation applicable to the working- of under'^round > coal mines-; and, if that were an exhaustive description of the substance of-Hie i enact&nents, it would he difficult to dispute«:thah they were withintfche . competency of the Provincial Legislature;.by virtue either- of sec. 9$ (10): or see. 92 (13). But the l^drmgvfesclmiteiof-tiieiealiotMientsicOH'' siste in this: that they have, and can have, no appUcation, except to Chinamen, who are 'aliens.or'naturalizedf.subjBislJsj.and that they establish no rule or regulation, except- that -these aliens or naturaliaed'subjects shall not work, or be aUowed to work, in underground coal mines within the Province of British Columbia. Their Lordships see no reason to doubt that, by virtue of sec. 91 (Ufa the Legislature of the Dominion is invested with1 exclusive an- 1 thority in aU matters which directly concern1 the rights, privileges and' j disabilities of the class of' Cfimafflen'-*^ £flre' resident' & tfte pTOVhlc& I of @taada< They are' also of" opinibn, that* lMe*'Mole pith and' ffab- stattee of the enaetinenfe;of sec. 4 of the CbttPMhes- Begtihttiotf M, ■ OGJLLIEfRY CO. OF B. Full Cot a " Nat 1886," aUens. able to elusion The abs full Urn Provinc- ■ as objected to by the appeUant company, consists in estab- statutory prohibition which affects aliens or naturalized sub- 1 therefore trench upon the exclusive authority of the Parlia- Canada. The learned Judges who delivered opinions in the rt noticed the fact, that the Dominion Legislature had p iralization Act. \'o. 113 of the Bevised Statutes of Canada, ty-which a partial control was exercised over the rights of Mr. Justice Walkem appears to regard that fact as favour- he right of the Provincial ParUament to legislate for the ex- nf aUens, being Chinamen, from underground coal mines, rinenee of the Dominion Parliament from legislating, to the t< of its powers, could not have the effect of transferring to any al Legislature, the legislative power which had been assigned to the Dominion by sec. 91 of the Act of 1867. Their Lordships will therefore humbly advise Her Majesty to reverse the judgment appealed from; to find and declare that the provisions of sec. 4 of the British Columbia Coal Mines Begulation Act, 1890, which are now embodied in ch. 138, of the Bevised Statutes of British Columbia, 1897, were, in so far as they relate to Chinamen, ultra vires of the Provincial Legislature, and therefore iUegal; and to order that the plaintiffs do pay to the defendant company the costs incurred by them in both Courts below, as the same shall be taxed. The respondents, other than the intervenant, must pay to the appeUant ■i|eompan'y their costs of this appeal. Appeal allowed with costs. Note.—See In re Coal Mines Regulation Amendment Act, 1890, ante, p. 116. As to enforcing penalty: see Regina v. Little, ante, p. 220. MARTIN'S MINING . CASES. Dunlop v. Haney. (7 B. c. 300). -.erlapping—Adverse Action—Injunction Pending Appeal—Preservation of Property in Dispute—Practice—Trial—Undertaking not to Proceed further until Trial—Proceeding before formal Order drawn up, but after Judgment Delivered. Locations which do not overlap do not conflict, at least in so far as boundaries In a case of very special and exceptional circumstances, and to preserve the property in dispute, a party in an adverse action, who has obtained judgment at the trial, may, after appeal has been brought, be enjoined from persisting in his application for, or from obtaining a certificate of improvements pending such appeal. An undertaking not to proceed further until the trial of the action is observed - although proceedings are taken before the formal order or decree is drawn up, but after judgment delivered. Mo-sion to dissolve an injunction argued before Martin, J. Bodwell, Q.C, for plaintiff. Wilson, Q.C, and A. E. McPhillips, for defendant. September 15th, 1899. " Martin, J.:—The plaintiff moves to dissolve an injunction (interim order) granted by me herein on the 29th of August, on the application of the defendant Haney, " restraining the plaintiff from applying for or obtaining a certificate of improvements or Crown grant of the Pack Train mineral claim in the pleadings mentioned." This interim order was obtained by the defendant Haney on two grounds, which may be stated briefly as follows: (1) An aUeged agreement arrived at immediately after the trial of the action before me, the ; terms of which are set out in the fifth paragraph of John ElUofs I affidavit as follows: " At the conclusion of the argument, which lasted some hours, the Attorney- General announced as a result that no steps should be taken or allowed by the Government Officers permitting a certificate of improvements or Crown grant to-^< issue to either party pending the result of the litigation, in which all counsel engaged concurred, and then not without notice to the other party." It is further alleged in the seventh paragraph of the said affidavit that the plaintiff, and those interested with him, have since the " understanding before the Attorney-General above referred to, prepared affidavits and in violation of the conclusion arrived at before the Attorney- General, applied for and obtained a certificate of improvements for the Pack Train mineral claim, and they' are now endeavouring to procure the issuance of a Crown grant for the said mineral claim . . ." 1-1 DUNLOP . (2) The preservation of the property in dispute pending an appeal by defendant from my judgment, which appeal, if is deponed, will be Sf brought on as early as possible, and notice whereof has'been given. As to the first of these grounds it is objected by the plaintiff that it is based upon a matter which has arisen subsequent to judgment, and that what I am asked to do is practically to declare a new right founded on the defendant's breach of faith; and the case of Davis v. Riley (18d8), 1 Q. B. 3, is relied on in support of this contention. It does, I think, fully support it, and the view that I have no such power. Bnt irrespective of this objection I would point out, though it does not j become essential in view of my subsequent remarks, that a close examination of said paragraph five shews the result of the agreement therein was that " the Attorney-General announced as a result no steps ! should be taken or allowed by the government officers, &c. . . . in which aU counsel engaged concurred . . ." All this amounts to | is, in strictness, that all counsel adopted the view taken by the Attorney-General as to the course that should be pursued by the government officers, and there is no allegation that either party agreed to refrain from active steps on his own account. But it is further urged that the plaintiff's counsel has not observed j the undertaking embodied in the order of June 13th, 1899, as follows: " And the plaintiff by his counsel undertaking not to proceed further, | until the trial of this action, with his application for a certificate of improvements or Crown grant in respect of the said Pack Train mineral claim . . ." It is not alleged that any such steps were taken on the plaintiff's I behalf till after the trial before me at Vancouver, and my judgment : thereon subsequently delivered, but the contention is that the | trial" ! i6 not at an end till the formal order or decree is drawn up, and that i the undertaking binds until that is done. In my opinion, the undertaking was substantially observed by taking no steps till after such trial and subsequent judgment. Whatever. technical meaning the ; word " trial" may have I do not regard it here as being wider than [the ordinary definition in Wharton as "the examination of a.cause, i civil or criminal, before a Judge who has jurisdiction over it, accord- j ing to the laws of the land."—1 Inst. 124. Also, the word is defined |in Gath v. Howarth (1884), W. N. 99, by Justice Field as follows: |" A trial is where the Judge (with the assistance of a jury) has to i decide which of two parties is entitled to succeed." I might add that : the defendant's solicitor in the third paragraph of his affidavit himself speaks of "the trial of this action " as being over; his words are: !" Immediately after the trial of this action . . ." Then as to the second ground. From a perusal of the cases cited ;it would appear that until 1879 it wasdoubtful whether an injunction !would be continued after the plaintiff's bill had been dismissed so as 1 MARTIN'S' 'MINING CASES. ' fv^H to preserve property pending appeal. But before that, in 1865, in the case of Galloway y. The Mayor, &c, of London (1865), 12 L. T. I S. 623, it was stated by Lord Justice Turner that " the plaintiff if he had anticipated appealing to the House of Lords, ought at the hearing. of the cause to have asked that the decree should be so framed- as to keep alive the jurisdiction pending the appeal. That unfortunately not having been done, I cannot but think that, according to the case of Oddie v. Woodford (1821), 3 Myl. and Cr. 625, the power of the Court over it is gone." Lord Justice Knight Bruce took a similar viewy but pointed out that, in the case then before them, " after all it was' only a question of money." Subsequently in Polini v. Gray (18^9$|t| 12 Ch. D. 438, it was laid down by Jessel, M.B., and Lords Justice^ I James, Brett, and Cotton (p. 443), that the Court had jurisdiction to preserve a fund " because the principle which underlies all orders for the preservation of property pending litigation is this, that the successful party in the litigation, that is, the ultimately successful party, is to reap the fruits of that litigation, and not obtain merely a barren success;" and again at p. 445: "The Court having arrived asb the conclusion that the appeal is bona fide, that she (the plaintiff) iiw tends to prosecute it with a view to determine her rights and to get a final decision on those rights; and the Court . . . being satisfied that there would be danger, if it were not to interfere for the inte^^ j protection of the fund, of its not being forthcoming if she succeeded in the House of Lords, the question is, is it not the duty of this Court to say that the fund ought to be preserved for the successful party?" And it is pointed out on the preceding page that in another case -^e|l | a claim to a fund failed twice the Lord Chancellor ordered the fund to be retained. The same principle is really recognized in the case of Wilson v. Church (1879), at p. 454 of the same volume, wherein Lord Justice Cotton, at p. 458, states: "Acting on the same principle I am of opinion, that we ought to take care that if the House of Lords should reverse our decision (and we must recognize that it may be reversed) the appeal ought not to be rendered nugatory. I am of opinion that we ought not to allow this fund to be parted with by the trustees, for this reason': it is to be distributed among a great number of persons,' and it is obvious that there would be a very great difficulty in getting back the money parted with if the House of Lords should be of opinion that it ought not to be divided amongst the bond-holders." It is likewise obvious that under the mining laws of this Province it would be quite as difficult to " get back " a mineral claim, the title to which had been acquired by the wrong party. It is laid down in Polini v. Gray, supra, at p. 446, that I this jurisdiction ought, no doubt, to be very carefully exercised, and so as not to encourage any one to present an appeal for j the mere purposes of delay," and also that "it is a thing to done only undei ndei odu by Am idedt (post, p. 370), the circumstances of special and exceptional," as well as diff never could have occurred before that A not see that the case of Carter v. Fey (1 The result is that I should be dispos till after the appeal, with leave to apply prosecution, were it not for a point wh of the section above referred to and wh: It will be remembered that the plai Train claim, and the defendant Hane In my judgment I gave effect to the obji •counsel that the plaintiff had not prov lapped the Legle Tender, and therefore to succeed, because it foUows that if tl everlap, the rights of their respective.* i.e., to put it plainly and briefly, the < :nt herein ' tli 3 deal with, in'fact they 1 in view of them I can- 2 Ch. 541, is applicable, continue this injunction ■miss in case of delay in ses out of the operation v confronts me. 5 the owner of the Pack Legle (sir) Tender, aken by the defendant's this Pack Train over- aintiff was not entitled ims were not sheAvn to were not antagonistic; Pack Train was not concerned in. nor entitled to object to, any lawful acts of the -owners of the Legle Tender regarding that claim. It was on this ground that I dismissed the plaintiff's action, and at the hearing of this appUcation it was not alleged that either party was appealing against my judgment in this respect; the defendant manifestly could not. Now Haney, the owner of the Legle Tender, wishes to prevent the owner of the Pack Train from dealing with that claim. On what ground ? Haney took, and successfully maintained, the position at the trial that the Pack Train and Legle Tender did not occupy the same =space wholly or partially, and therefore the rights of the owners on the question of title could not conflict. That was his position then; |ithat must be his position now; he cannot recede from it; nor does he •even now allege in the material before me that the Pack Train encroaches upon the Legle Tender. It follows that he cannot be con- -cerned in any lawful steps the owner of the Pack Train may take to perfect his title by Crown grant or otherwise. How can I grant an injunction in the defendant's favour in regard to a claim which he -has strenuously and successfuUy contended does not encroach upon his own. I find myself quite unable to do so, and no other course is ■open to me than to dissolve the injunction with costs. Injunction dissolved. Note.—As to delivery of judgment: see Attorney-General v. Dunlop, post. m^^0/1^^0^- **7- Failure to give the " approximate compass bearing validate a location. Such defect, if of a character calculated to mislea 16 (g), nor by a certificate of work under sec. 21 Decision of the Full Court affirmed. Per the Full Court: Section 28 only cures little i and record, which do not go to the root of title. If a claim is not properly taken up and recorded i Appeal by defendant from a decision of the Full Court of British Columbia, reversing the judgment of Martin, J., in an adverse action tried by him at Eossland on 14th, 17th, 18th and 20th February, 1899. The defendant, in May, 1892, located the Cube Lode mineral claim, but in so doing gave, on No. 1 post, the approximate bearing of No. 2 post, as south-easterly instead of east by north, as the fact was. Certificates of work were regularly recorded on the claim since location. In 1896 the plaintiff located and recorded the Cody Fraction and the Joker Fraction on substantially the same ground, and Ukewise regularly recorded certificates of work to date. The defend- . ant applied for a certificate of improvements to the Cube Lode, where- I upon the plaintiff brought an adverse action. Sir C. H. Tupper, Q.C, for plaintiff. Hamilton, for defendant. Martin, J.:—On th and subsequently recorde between Cody and Sane *•] CALLAHAN v. COPLEN. Over four years afterwards the plaintiff located, on 3rd August, 1896, the Cody Praction mineral claim, and on the 27th of September, 1896", the Joker Fraction mineral claim, and duly recorded them. The Cube Lode claim as now surveyed, would occupy most of the ground claimed 0 as that of the Cody and Joker Fractions. It is contended on behalf of the plaintiff, first, that the present situation of the Cube Lode is not according to its original location, or, in other words, that the defendant has' fraudulently " swung" the posts of the Cube Lode, so as to place it, practically, on the wrong (eastern) side of the divide. This, of course, is an allegation of a very serious character, and to substantiate it I-must be satisfied beyond doubt that the defendant has deUberately committed what is tantamount to a criminal offence. In view of the positive assertion of the defendant that the location line at the top of the divide, which the plaintiff took to be that of the Cube Lode, was really that of the Summit claim, also located by the defendant on the same day as the Cube Lode,/and that someone has changed the name of the claim and the name of the locator, and the corroborative testimony as to the original location of the Cube Lode, I feel I would not be justified in giving preponderating weight to the evidence offered on behalf of the plaintiff on this point, though without explanation it was a strong case of circumstantial evidence. I might say here that it was a pleasant feature of this case that I had no reason to believe from anything in the demeanour of the principal parties concerned that there was any intention to deceive the Court, or that anything other than a straight story was being told; there is practically no direct conflict of evidence. Second, the defendant contends that in any event the present location of the Cube Lode is invalid, because upon No.' 1 post, the initial post, the " approximate compass bearing " of No. 2 post is not given as required by the Act. On his cross-examination the defendant admitted that the compass bearing " south-easterly," which is written on No. 1 post, does not give the true direction, and said that instead of being southeasterly the bearing should be a " little north of east." While admitting that the compass bearing is misleading, he states that it would be very easy to find the location line because of the reference in the record to the adjoining Freddy Lee claim. He explains his mistake by saying that he had no compass at the time; the answer to that is that he should have had one. The plaintiff contends that the proper bearing is "north-easterly," and, according to the evidence of Mr. Hey land, P.L.S., who made the survey for the defendant, the compass bearing, that is magnetic (under which he states surveys according to the Mineral Act are always made), would have been N. 74 degrees, 9 min. east. I have come to the conclusion that "southeasterly '' is not the " approximate compass bearing " within the contemplation of the Act, and it is quite clear that the plaintiff in this MARTIN'S MISJESft <3A£ that description. Furthe ! do Z_r ' where an approximate compass bearing is not given this p Sdbrbmb ment of the Act can be cured by a reference in the recoi u» Canada, claim. But the defendant claims the benefit of sub-sec. (g) amended by the Mineral Act Amendment Act, 1898. A the moment that the defendant is otherwise entitled to t this section, so as to cure his " non-observance of the fo quired," I am of opinion that in this particular oase he d> within the scope of the section, because I find the non-obi " of a character calculated to mislead other persons desir |j§i|fc2[r ^ ^he vicinity," and did in fact mislead them. But he also claims the benefit of sec. 28 as curing the This section is as follows: feajopening previous to the date of the record of the last certil shall affect the title thereto, and it shall be assumed that up to title to such claim was perfect, except upon suit by the Attorney- upou fraud." Judgment at trial. I sec. 1& asBT| sunning for ] j benefit kN utilities re- s not come rvance was ig to locate It is shewn on the part of the defendant that for several years before the plaintiff located his claim he, the defendant, had recorded ■ certificates of work, and has continued to do so up. to the present time. The plaintiff has also duly recorded his certificates of work, and he likewise claims that this section places him in as good a position as the defendant. As pointed out by Mr. Justice Drake in Fero v.- Hall (1898), 6 B. C. 421, ante, p. 238, the position is one of difficulty, and I reserved judgment largely on this have, with some diffidence, come to th entitled to the benefit of the section, all, the irregularity complained of w; certificate of work, for I am directed : " assume that up to that date the t nothing could be stronger. The sam ground. On mature refh s conclusion that the defer ii danti case, fend* four record," and I in accord with; which seems pa Action dismissed with costs. I.] CALLAHAN v. COPLEN. The plaintiff appealed, and the appeal was argued at Van couver, on 20th, 21st and 22nd September, 1899, before Walked Brake and Irving, J J. Sir C. H. Tupper, Q.C, and Peters, Q.C, for appellant. Hamilton, for respondent. November 30th, 1899. Brake, J;:—The defendant located the Cube Lode on 24th May, Juds™, 1892, in the name of W. G. Coplen. He put in post No. 1, and he wrote on it " Initial Post" and the approximate compass bearing to No. 2 post, and a statement that he claimed 1,500 x 1,500 to the right of the line thus defined. There was a post put up in the direction indicated by the compass j bearing some 1,200 feet distant. On that post, according to the evidence, was written " No. 2 post Cube mineral claim located 24th May, : 1892," and signed W. G-. Coplen. The defendant says that this was a ; post put up by him for the Summit claim, and that the word Summit j had been erased and Cube instituted. The Act, sec. 16, says all the particulars required to be put on No. I 1 and 2 posts shall be furnished to the Mining Eecorder in writing, and form part of the record of such claim. The Act further says, that No. 1 and 2 posts shall govern the direction of one side of the claim. The defendant recorded the claim as follows:—" Situate on top of divide between Sandon Creek and Cody Creek, thence along a blazed line in a south-easterly direction to stake No. 2 adjoining the Bridgett and Freddy Lee claims; the direction of side line is south-easterly;. | the claim is 1,500 feet square. Lies on right of side line." One of the difficulties that has arisen in this case is inserting the j words " adjoining the Bridgett and Freddy Lee claims." In the first j place there is no record of a Bridgett claim, but 'there is one of a | Budgett claim. Secondly, does the record mean that post No. 2 is I adjoining these claims, or that the side line adjoins these claims ? • The I statute requires the approximate compass bearing of the side line and I does not require the locator to add the names of other claims. The- [ approximate compass bearing is the governing indication. If this is I omitted, and the names of other claims in the neighbourhood inserted, [ the location would not comply with the Act. If the compass direction I appears, but in addition other claims are mentioned as indicating the j line which do not agree with the compass bearing, the latter governs- I That is the case here. The compass bearing is given as south-easterly I and there is a post there, but the defendant says that this is the Sum- I mit post which has been tampered with and the name of the claim altered. The evidence on this head is incomplete and unsatisfactory.. MARTIN'S MINING CASES. [vol. The defendant alleges his post is in an entirely different direction, . north of east, a difference of over eighty degrees, and on that post which was planted some 1,200 feet or more on ground belonging to the Chicago claims the following writing appears: " Original No. 2 Cube Lode, A. D. Coplen. No. 1 post stands i north-westerly. Claim lies to left of line from No. 2 to No. 1; May 24, 1892;" The defendant urges that there must be some occult reason for . this pecuUar wording. The Act only requires No. 2 post to contain the name of the mineral claim, name of locator, and date of location. It does not require the compass direction which is to appear on the No. 1 post, and it does not require " Original." The plaintiff suggest? that it arose from the fact that the defendant had discovered that if the line ran as recorded from No. 1 to 2 south-east, it would not touch the ground the defendant has been working on, and that it is evidence of a change of posts, or of a new post being inserted. The Act does' not require a compass bearing on No. 2, as the claim is to be surveyed from No. 1 and in accordance with the compass directions written thereon. No. 2 post can be moved by the surveyor along, the indicated line if it is more than 1,500 feet away, but it cannot be extended. The f measurement, therefore, is taken from No. 1 to No. 2 and not vice , versa, and a compass bearing on No. 2 post cannot alter the direction indicated on No. 1 post. The learned trial Judge did not find that the defendant had fraud? ulently set up a second No. 2 post, but considered it was strong circumstantial evidence in support of the plaintiff's view. While on this head it may not be improper to remark that the defendant preferred to rely on his suggestion that the Np. 2 post in the top of the divide had been tampered with, rather than bring the post itself into Court for a critical examination; neither did he 'bring the man who had been doing the assessment work for some years, and who might be presumed to have some knowledge of it. In fact witness W. A. Bauer at p. 20 gives the writing on this post as follows: " Stake No. 2 of the Cube Lode; this claim runs north to Stakfe 1 . . . is 1,500 ft. . . . 1,500 ft. Cube Lode located . . May 24. W. G. Coplen, May 24." This is as far as the witness could decipher it, and the post is south 23.40 east, nearly S. S. E., and both posts 1 and 2 are on the top of the divide which is from 150 to 250 feet wide, and there is a fairly blazed line between posts 1 and 2, and this tallies with the record which describes the claim as situate on the top of the divide between Sandon and Cody Creeks. If the claim ran down the hiU as claimed it would not be described as on top of the divide. The defendant was a prospector of some years standing, and one who had taken Up numerous claims in the neighbourhood, and he was i .CALLAHAN t 353 quite conversant with the statutory requirements. On.this branch of 1899. the case I have come to the conclusion that the No. 2 post on the top 0ot^r 8- of the divide in a south-easterly direction from No. 1 is the correct Su?9BP post of the Cube Lode mineral claim; and the claim itself lies to the 0P cij&DA. right of that line. On the other ..branch of the subject it appears that 1 the defendant has obtained a certificate of work through the labour of : one Fry, to whom W. E. Coplen sold part of the claim. The plaintiff has also obtained his certificate of work on the same [ ground as that on which the defendant has worked. Sec. 28 says that the title to the claim in dispute shall be assumed to be perfect in respect of any irregularity happening prior to the record of the last certificate of work. There is no suggested irregularity in the plaintiff's title to the l Cody and Joker fractions, therefore his title should be assumed to be I perfect, and the defendant relies on the same language to make his | claim good. This assumption of good title applies with equal force I to both (parties, therefore it is clear that the intention of the section cannot be that the record of work shall be conclusive evidence of perfect title. In my opinion it only purports to cure little irregularities which may arise in various ways after location and record, and which do not go to the root of title. The section may be a valuable protec- judgment of tion against a claimant who has not obtained any certificate of w°£&v ^^3w^T' It is contended, and the argument goes to this extent, that if any one | obtains a certificate of work he can thereby establish a bad title against I aU the world, and any neglect of statutory duties relating to the staking and recording the claim can be cured. For instance, if a claim has been located and recorded in accordance with the location posts t and compass bearings, and the locator does work on land not touched I by his record he can get a title, but to what ground ? Can it be to I ground never taken up ? Can it be to a portion of the public lands of the Crown? If so, what are the boundaries? Who can define or direct them ? This shews the fallacy of this argument. The statute I intends that a claim which has been properly taken up and properly recorded shall be assumed to be perfect, except for fraud. If a claim is not properly taken up and recorded it never becomes a mineral claim. There is no title that can be rendered perfect by a certificate of work. On the other hand if a mineral claim has been properly and legally located and recorded, and subsequently some neglect has occurred or slip happened which does not affect the original title, then the fact that a certificate of work has been given will validate j such neglect or slip. Here the defendant has established his No. 1 post and has defined I the direction of his No. 2 post in a south-easterly direction. This is in accordance with sees. 14 and 15 of the Act, 1892, and those sections MARTIN'S MINING CASES. [vol. are compulsory in defining the mode of staking a claim, and any error as alleged here in the compass bearing is undoubtedly calculated to mislead other prospectors. The defendant has to all intents a good claim to the land he has located as far as it was open to location. If the locator is wrong as to the compass bearing he cannot rely in case of dispute on the description of other claims as overruUng the compass bearing. - The compass bearing must be approximate. It is not necessary to decide what deviation would be considered approximate, but a difference from south-easterly to north-easterly is such a wide deviation that - it cannot be called approximate; it amounts to over eighty degrees. . It is of essential importance that the few directions simple and" clear which the law requires should be compUed with, otherwise confusion of the worst character must arise. No one but the defendant is responsible for the error, if error it be, into which he has fallen; and for these reasons I am of opinion that the appeal should be allowed, and judgment entered for the plaintiff with costs here and below. ludgmentof Walkem, J.!—I concur. 'Full Court, Walkem, J, Irving, J.:—This is an adverse action brought by the plaintiff, who claims that the land in dispute is included within the boundaries of the Cody and Joker mineral claims, located in 1896, to prevent defendant from obtaining a Crown grant of the land claimed by him as being within the boundaries of the Cube Lode mineral claim, located in May, 1892. The first point to ascertain is what land did the defendant take up? I think the evidence supports the conclusion arrived at by the learned Judge who saw the witnesses that the defendant staked, ana afterwards did his assessment work on, the ground now claimed by him. In 1892, there was then in existence—staked but not surveyed—on the east slope of the range separating Cody and Sandon Creeks, a claim known as the Freddy Lee mineral claim. The defendant and others on the 24th of May of that year passed along by the side of this claim to a spot about 500 feet higher up the mountain near the summit, and planted the initial posts of two mineral claims, the Amega and the Cube Lode, and then, after staking a third claim, proceeded to lay out these two claims, one on each side of the Freddy Lee, the object being to enclose the Freddy Lee, of which the defendant was the owner, within the angle formed by these two claims. Across the apex of this " A " shaped figure they had placed the third claim, to which I have.already referred, calling it the Summit claim. In describing the location line, i. e., line of direction between posts Nos. 1 and 2 of the Amega, they made a mistake, namely, they I.] CALLAHAN v. COPLEN. described in their location notice of the Amega the line of direction as being easterly, whereas it ought to have been north-easterly. In describing in their location notice of the Cube Lode, they fell into the same error as to the compass bearings, and called the location c line south-easterly, when in fact, it was east by north. A similar error was committed in the case of the Summit claim. This error of fifty- five degrees is the cause of the present litigation. Having indicated the relative positions of the directing side lines of these three claims, I wish to point out that the Summit claim is a claim of 1,500 x 1,500 ft. lying to the right of its line between 1 and 2, the Cube Lode is of the same dimensions lying to the right of . the line between its Nos. 1 and 2 posts; and the Amega is a claim of similar dimensions on the other side of the Freddy Lee. The plaintiff aUeges fraud. His evidence falls far short of proving it. Suspicion is not sufficient, there must be clear proof of fraud. The contention of the plaintiff is based on this, that a certain post, which I shall call the " A " post—to call it No. 2 post of the Cube Lode or No. 2 of the Summit claim is only adding to the confusion—■ situate approximately in direction south-easterly from the admitted No. 1 post of the Cube Lode is the true No. 2 of the Cube Lode. The defendant says that this "A" post is not connected with the Cube < Lode, but is in fact the true and original post of the Summit claim, and that he is not responsible for the writing which now appears on this IA " post. If the contention of the plaintiff is right the defendant and his friends would have located the Cube Lode over the Summit claim—a very unlikely thing for them to have done having regard to their original intentions, the care exhibited by them in marking the posts and blazing the location lines, as well as the character of the ground and their previous knowledge of it, for the defendant was at that time the owner of the Freddy Lee, and had been concerned with the staking of the Budgett. That question having been decided in favour of the defendant, the case then resolves itself into this: Does sec. 28 apply so as to cure the faUure of the defendant to correctly state in his location notice the approximate compass bearing of his No. 2 post? There cannot, I think, be any doubt that if the error is trifling this question must be answered in the affirmative, and then comes the next question, and herein lies the whole point of the case; does sec. 28 apply where the correct compass bearing is approximately east, or, to be exact, east by north, and the person seeking relief has called it south- In my opinion both questions should be answered in the affirmative. Irregularity is a very general word. It means, in an act of this character, "not according to the regulations." Its nearest equivalent MARTIN'S MINING CASES. is the word " informality," " not according to form," in which connection I would call attention to the language in sub-sec. 1 of sec. 16. I So wide is sec. 28 that the Legislature thought proper to limit the • application of its healing clauses by adding that fraud, in a suit instituted by the Crown, would be an exception. Dealing with this particular informaUty in locating a claim, the Mining Act does not require the exact compass bearing to be stated, the approximate bearing will be sufficient. For practical purposes in laying out a claim I should think that a compass would be divided into eight points, i. e., the four cardinal points, and N. W., N. E., S. E. and S. W. In sec. 381 of Lindley on Mines the following passage occurs: " The pioneer prospector is neither a lawyer nor a surveyor. Neither. mathematical precision as to measurement, nor technical accuracy of expression is either contemplated or required." I think that is a very reasonable way of stating it, and as the description in this case was aided by a reference to the Freddy Lee and Budgett claims, in addition to the arrow mark cut on No. 1 pointing to the true No. 2 of the Cube Lode, that this case is covered by the decision of Book et al. y. Justice Min. Co. (1893), 58 Fed. Bep. 106-115, where "northerly" instead of " north-easterly " was used and the mistake was held of no moment. Then it is argued that if a man makes a mistake in his compass bearings he is to have no relief because the Legislature has already treated him in this respect liberally. It strikes me just the other way. The Legislature gave him considerable latitude in the first place because it was a matter in which no great accuracy could be reasonably expected. Then they added, if he does his assessment work, that j will cure all irregularities. The scheme of the Act is plain. It aims at increasing the security j of a man's title to his claim. In the initial stage the stakes hold the ground. After discovery of mineral, &c, non-compliance with formali- j ties, unless calculated to mislead, shall not violate his title. After recording of his assessment work, all irregularities of title are cured, j In the case of Cullacott et al. v. Cash Gold and Silver Mining Com- i pony (1884), 15 Morr. 392, Beck, C.J., of Colorado, speaks of an error in compass course as " an irregularity of minor importance." In this case we have the two cardinal facts, the defendant actua^ I staked the ground he now claims, and he has performed in respect of it his assessment work for six years. The plaintiff's contention is that the defendant is now to lose this property and the benefit of all work done upon it because he had a wrong idea as to the points of the compass. I cannot agree to that. Had he described the No. 2 post as lying J easterly he would, I venture to think, have been within the sweep of j m O-ALLAHAN v: COPJLEN. tl*: words "apfroximate compass bearing." He instead said southeasterly, and this'one mistake it is urged is fatal after six years' occupation. To learn the true meanMLg^df sec. 24 it must be contrasted with ■ sGc. 16, sub-sec. (g.)—sec. 24 goes a long way iuarther than the sub- , section. If it does not receive that construction, it is useless; there was no object gained by the enacting it. Beading it then as being wider than sub-section (g) it would cover the case of non-compliance i^ft'formaUties of a character calculated to mislead. The difficulty in deciding the question as to who shall have the j benefit of the section, where both parties have obtained certificates has often arisen. The only workable rule is to hold that the dispute as to title arises and the benefit of the section attaches just as soon as the subsequent locator puts his stakes into the ground in respect of which I the prior locator has recorded his work. If at that time, or, possibly, I if at any time before the subsequent locator does his assessment work, ! the prior locator has done his work and recorded it, he is entitled to I invoke the aid of the section. His title is then perfected; there can- i not be two perfect titles to one and the same piece of ground. In my opinion the appeal should be dismissed. Appeal allowed, Irving, J., disse?iting. \ The defendant appealed to the -Supreme Court of Canada and & ithe appeal was argued on May 21st and 22nd, 1899. Aylesworth, Q.C, for the appeUant. Sir Charles Hibbert Tupper, Q.C, for the respondent. Cur. adv. vult. October 8th, 1899. The judgment of the Court was delivered by Gwtnne, J.:—That the description of the Cube Lode claim as recorded by the appellant does not precisely conform to the provisions jof the statute of British Columbia in force in that behalf is not dis- jputed. The evidence indeed leaves no doubt in the matter, and it is in fact admitted. The only question, therefore, which, as it appears to toe, is at all necessary to be decided in the present appeal is whether the deviation from the prescribed description was calculated to mislead, and did in fact mislead, William Callahan, now deceased, of whose estate the respondent is administrator, when subsequently recording the Cody and Joker fractions claims located by him on behalf of persons whose title was duly transferred to him in his lifetime. The 1 g58 MARTIN'S MINING CASES. [vol. 1899. Cody and Joker fractions claims as recorded cover portions of the October 8. Cube Lode claim ag claimed now ^ tlie appellant, but do not toue|B Supreme the Cube Lode claim according to the description as recorded. The op Canada, whole contention of the appellant is that all objection to the defect in — - j his recorded description of the Cube Lode claim .is removed by his *E' ' certificates of work done by force of sec. 28 of ch. 135, Bevised Statutes; of British Columbia; but whatever effect that contention mightbe entitled to in an action between the appeUant and the ProvincHM Government, it has no application here, where the contest is solely between the appeUant and the respondent, in which the sole questiofil™ whether the owner of the Cody and Joker fractions claims as recorded have not by reason of the error in the Cube Lode claim as recorded, acquired superior right to the claim of the appellant to so much of the land covered by the records of the Cody and Joker claims as the appellant asserts claim to as part of the Cube Lode claim as now claimed by him, although such land is not within the description of the Cube Lode claim as recorded. That the error in the description of the Cube Lode claim as recorded was calculated to mislead and that in point of fact, the Cody and Joker fractions claims were located and recorded as they were by reason of such misleading error, have been found as facts by the learned Judge who tried the case, and such his finding is well supported by the evidence, apart altogether from any question of fraud in any person whomsoever. The appeal, therefore, must be dismissed with costs. Appeal dismissed with costs. [The Chief Justice was prevented by illness from taking part in the judgment.] Note.—An application to the Privy Council for leave to appeal from this decision was made and refused on December 18th, 1901. This important case is considered in: Gelinas v. Clark, post, p. 428, and explained in Manley v. Collom, post, p. 487; see also Lawr v. Parker, post, p. 456; and Cleary v. Boscowitz, post, p. 506. Poi list of cases on defects in location: see note to Manley v. Collom, supra. OONNELL v. MADDEN. Connell v. Madden. (30 S. C. 109; 6 B. C. 76, 531 —Invalid Location — Foreign Territo Appeal by defendant from a decision of the Full Court of British Statement. Columbia affirming the judgment of Walkem, J. The action, adverse, was tried at Nelson on 5th June, 1897. P. McL. Forin, for plaintiff. Argument. s>4'ffl- J. Taylor, for defendant. Cur. adv. vult. January 27th, 1898. Walkem, J.:—The plaintiff located and recorded a mineral claim Judgment in the Kootenay District as Boundary No. 2, in June, 1895. Prior Walkbm.V. to this, namely, in August, 1894, a considerable portion of- the same ground had been recorded by the defendant as being part of the Sheep Creek Star mineral claim. The defendant having given notice of his intention to apply for a certificate of improvements, the plaintiff has | brought these adverse proceedings in order to oppose its issue, and also I to test his right to the ground in dispute. The evidence at the trial shewed that the defendant had planted his No. 1, or initial post, 287 feet south of the international boundary line, and run his centre line northward. As a matter of common sense, a post thus planted in ! a foreign country could not be a boundary post within the meaning of any of the Mineral Acts, and, in my opinion, it would for that reason be a nuUity. Moreover, the requirements of sec. 4 of the Mineral Amendment Act, 1894, to the effect that the " Provincial Government surveyor shall," when surveying a mineral claim, preparatory to the issue of the Crown grant, " be guided entirely by posts No. 1 and 2, land the notice on No. 1, the initial post, and the records of the claim,'' *:—Sir Henry Strong, C. J., and Taschek .tr.-Gwv: ,() MAICTIN'^MlNltfG CASES. [vol. 1899. could not, with respect to the initial post in question, be carried out.-; >ctober2-i. without that 0fficer committing a palpable and most improper,act of Supreme trespass on foreign soil. Such a survey could not be, sanctioned by ? Canada, the Provincial Government. The whole location of the Sheep;Creek, Star is, under the Mineral Acts up to, and inclusive of the Act of 1894, invaUd for want of an initial post. It was argued that the plaintiff's title was defective, owing to one of his posts being on the Good Enough location; but that location was not shewn to be a valid one. The plaintiff is entitled as between him and the defendant to possession of the ground in dispute and to a' declaration to that effect, and also to the effect that the location and record of the Sheep Creek Star, made in August, 1894, by the defendant, is invalid. The plaintiff is entitled to the costs of these proceedings. Judgment for the plaintiff. Appeal to The defendant appealed to the Full Court, and the appeal was argued at Victoria on 1st and 2nd December, 1898, before McColl, C.J., Irving and Maetin, JJ. 'oeiow!Xt W- J- Taylor, for appellant: The holder of a mineral claim is a leaseholder, and his claim can only be attacked by the Crown. The difference between the Mining Acts of the United States, AustraUa and British Columbia is, that in the United States and AustraUan Statutes there is not only a clause declaring -a claim vacant, but a re-entry clause also. Our Act does not say who shall have the right to bring.an adverse action. He cited Anthony v. Jillson (1890), 16 Morr. 26; Delmonte v. Last Chance (1898), 18 U.S. Sup. Ot. Bep. 895; Armstrong's Gold Mining, 62, 65; Bulmer v. The Queen (1893), 23 S.. C. B. 488; White v. Neaylon (1886), 11 App. Cas. 171; Myers v. Spooner (1880), 9 Morr. 520; Meydenbauer v. Stevens et al. (1897), 78 Fed. Bep. 787, at p. 792; Brainerd v. Arnold et al. (1858), 8 Morr. 478; The Golden Terra Mining Co. v. Mahler (1879), 4 Morr. 390; Erhardt v. Bgaro (1885), 15 Morr. 473. v Bodwell, for respondent. January 9th, 1899. The judgment of the Court was delivered by Judgment of Maetin, J.:—I agree with the learned trial Judge that the 'MMSff- Court. ^q^ Q^ ^e Sheep Creek Star claim having been planted' Mlfee TUlai^S States of America, instead of within the boundaries of this Province, the whole location is invalid. The Mineral Act of British Columbia does not contemplate the existence of a claim which takes its root, I.] 361 i.e., has its initial post, in a foreign soil, and, as I regard it, the whole 1S99. location is void ab initio, or, to put it in another way, there never was 0ctober 24- in law such a claim as the Sheep Creek Star. Supreme The appeal must be dismissed with costs. 0P Canada. Appeal dismissed with costs. The defendant appealed to the Supreme Court of Canada, and the appeal was argued on October 24th, 1899. Per Curiam :—We are all of opinion that it is impossible to get over the fact that the initial post on appellant's claim was south of the boundary. Two courts in British Columbia have so decided, which alone would be sufficient, but beyond that the fact is not only clear on the evidence, but it is conceded by the appellant. The necessary consequence is that his claim is utterly void. As Mr. Justice- Martin says, in giving judgment for the Supreme Court of British Columbia, the position is the same as if there had never been such a claim. The appeal must be dismissed with costs. Appeal dismissed with costs. MARTIN'S MINING CASES Iron Mask Mb Defendants got an orde at the trial for the inspection of a vein in tiffs- claim, which th ey alleged was a continuation of a vein, tt which was within the limits of their own claim; whereupon plain ing that such order i lecessitated inspection by them of other sim on their property, wit i a view to furnish evidence to rebut that w be adduced, by reason of the plaintiffs' inspection, and an adjour that purpose, obtainec the adjournment, but on the terms that all sioned thereby should Held, on appeal that su ch costs should abide the result of the issue the inspection relatec Order of Waxkem, J.; varied. Appeal bv plaintiff from an order of Walkem, J., pronounced at Eossland on 28th April, 1899, whereby the defendant company was allowed to continue the sinking of its winze within the boundaries of the mineral claim of the plaintiff company, and from a further order of Walkem, J., pronounced 29th April, 1899, ordering the plaintiff to pay the costs of the adjournment of the trial and in addition thereto all outlay and expenditure of the defendant company connected therewith, the words of the order being: " And it is further ordered that all disbursements, expenses and outlay of every kind (including costs) occasioned to the defendants by the said -a* journment be costs to the defendants in any event of the cause; the intention being that the plaintiffs shall reimburse the defendants for and indenmifyJ^Mt against any and all loss that they may suffer by reason of the said atl.imirn- The defendant appUed for leave to inspect the mining workings and premises in question and to do certain experimental work for the purpose of obtaining fuU information and evidence requMte^K the trial, but the appUcation was refused. The defendant appealed to the Pull Court, and the appeal was dismissed. For a f uU statement of the facts see Centre Star v. Iron Mask: Iron Mask v. Centre St& (1898), 6 B. C. 355, ante, p. 267. The trial having afterwards been begun before Walkem, J., at Eossland, and it appearing to the learned Judge's satisfaction after some evidence had been taken, that the inspection previously asked for was then proper, he made an order , accordingly upon the defendant's appUcation. The plaintiff then asked for an adjournment of the trial on the ground that it would m IRON MASK MINING CO. v. CENTRE STAR MINING CO. be'necessary for the plaintiff to do certain work in order to preclude the evidence which the defendant expected to derive from the inspec- ov tion, from being evidence, or at all events being conclusive evidence of Fu' the continuity of the vein. The application for the adjournment was resisted by coimsel for the defendant on the grounds, first, of the great expense, stated to be over $40,000.00, that it would occasion, and second, on the ground of the danger that the adjournment would prevent the defendant having the benefit of the attendance of certain witnesses, eminent mining engineers, whose presence it was unlikely could be procurecl at an adjourned trial. The learned trial Judge granted the adjournment, but ordered that the costs occasioned by it should be costs to the defendant in any event. The plaintiff appealed from both orders on the grounds (as to the order allowing the work to be done) : (1) That it was a variation of the order of the Full Court made herein on the 24th day of December, 1898, whereby the appUcation of the defendant for the detention, preservation and inspection of the vein claimed by the defendant, was dismissed; (2) That the learned Judge had not nor had the Supreme Court of British Columbia jurisdiction to pronounce the said order and that the adjournment of said trial having been necessitated by the order aUowing .work on the ground of surprise to the plaintiff, the plaintiff ought not to haw been compelled to pay the costs of said adjournment ; and in any event, the plaintiff ought not to have been ordered to pay more than taxable costs; (3) That the said order of adjournment in so far as it directs the payment by the plaintiff of the disbursements, expenses and outlays of the defendant beyond the amount ef taxable costs, ought to be reversed; and that the learned Judge had not nor had the Supreme Court of British Columbia jurisdiction to pronounce the said order; and further (as to the order granting the adjournment) that the adjournment of the said trial having been necessitated by the order aUowing work on the ground of surprise to the plaintiff, the plaintiff ought not to have been compelled to pay the costs of the said adjournment; and in any event, the plaintiff ought not to have been ordered to pay more than taxable costs. At the time the order was made counsel for the respondent consented to a stipulation being entered on the record that he would take no objection, and that no counsel appearing for the Centre Star Company would take any objection to the Iron Mask Company having an appeal upon any order which might then be made as to costs. The appeal came on for argument on 18th and 19th September, J 1899, at Vancouver, before the Full Court, consisting of McColl, C.J., Drake and Martin, JJ. Bodwell, Q.C, (MacNeill, Q.C, with him), for appellant. The Ar order allowing the work to be done is a variation of the Full Court MARTIN'S MINING CASES. i&fi: judgment, the effect of which was that no such order should be made ovem er . . ^^.^ ^^ Court had decided that it was impossible to conclude the FullCourt. action on other issues. [The Chief Justice: The Full Court left it McColl, C.J. to the trial Judge to direct inspection if he thought fit, so does it not come down to the question of whether or not the trial Judge exercised the discretion soundly? What remains for us to consider is the question if there were such special circumstances as would justify the direction that the costs should be borne by the plaintiffs. Is it not the point that the adjournment was made wholly consequent upon the order for inspection and therefore you should not have to bear the costs ?] That is the point, and until the Court ordered the work to be done it was not necessary or proper for us to do the work which will now have to be done—it only became necessary on the Court exercising its discretion to make the order. Davis, Q.C. (Gait, with him), for respondent: The consent which was given that there should be an appeal does not go to the length of saying that the Appeal Court should substitute its discretion for that of the trial Judge—only that there might be an appeal where otherwise there would not be. See In re Gilbert (1885), 28 Ch. D. 550; Young v. Thomas .(1892), 2 Ch. 137. As to the question of jurisdiction the Full Court would not have left such a matter to the trial Judge unless it was satisfied that the Court had jurisdiction to make an order allowing experimental work to be done. [The Chief Justice intimated that it was not necessary to pursue that point further. Drake, J.:—In giving the judgment in the Full Court the view in my mind was that it was better to leave it to the trial Judge as the one best fitted to decide when (if at all) the order should be made. The Chief Justice :—That was my view also.] The other side had no right to assume that under the Full Court judgment there was no Ukelihood of the trial Judge making the order, and that there was no necessity for it to prepare for it. Bodwell, Q.C, in reply: We did not get the adjournment as an indulgence, but as a matter of strict right, and it would have been a denial of justice to force us on. Cur. adv. vuMnvm November 22nd, 1898. The judgment of the Court was delivered by McColl, C.J.:—Before trial application was made by the defendants to Mr. Justice Walkem for inspection of the place .where a flat fault is alleged by the plaintiffs to exist. The learned,Judge was of the opinion that he ought to make the order if he had power to do so, but refused on the ground of want of jurisdiction to make such an order in any ciroUimstances. -J I.] IRON MASK MSBJI-NG CO. v. CENTRE STAR MINING On appeal the Full Court decided in favour of the now respondents upon the question of jurisdiction, but held that they had not shewn good and sufficient reason for the inspection, and left them to 1 apply for it at the trial if, and whenever, they should appear entitled McColl to it. The trial having afterwards been begun before the same learned Judge, and it appearing to his satisfaction, after some evidence had been taken, that the inspection previously asked for was proper, he made an order accordingly upon the. defendants' application. The plaintiffs upon this application claimed that, although the inspection might disclose physical indications apparently supporting the defendants' contention that the vein continued through the place sought to be inspected, yet, that precisely similar indications would appear upon the property in other places apart from any vein, thus precluding the evidence which the defendants expected to derive from the inspection, being evidence, or, at all events, being conclusive evidence of the continuity of the vein; and the plaintiffs, in these circumstances, urged that inasmuch as time was necessary to demonsrate this they ought to be allowed a postponement of the trial for the purpose of doing the necessary work. The learned trial Judge granted the adjournment, but ordered, ! however, that the costs occasioned by it should be costs to the defendants in any event. It is from this portion of the order that the I present appeal has been brought. Notwithstanding that counsel for the respondents had undertaken j upon the application for the order that in the event of an appeal I from it no objection would be taken that the order is not appealable, [ it was objected for them that no appeal from an order for costs lies : even by leave, except for some mistake of law or misapprehend' ! fact. In the view I have taken, the appellants are not estopped by I this ordinary rule, even if applicable. But it seems to me impossible, after what occurred when the order was made to hold that this Court is fettered in any way. I think that the appellants are entitled to . ask this Court to consider whether the learned Judge had good and sufficient reason for imposing upon them the burden now complained j of, or whether he rightly exercised the discretion upon which the ' respondents rely. The Judge's leave alone would have been sufficient for an appeal : in the usual way—Supreme Court Act, sec. 78. The respondents' undertaking therefore necessarily implies some- ; thing more. And it cannot, I think, be doubted that the learned Judge intended, and the appellants understood and were warranted in MARTIN'S MINING CASES. understanding that there should be a special appeal by consent, such '" as happened in the case of Burgess v. Morton (1896), A. C. 136. See the remarks of the Lord Chancellor, page 138: " It has been ..j. held in this House that where with the acquiescence of both parties a Judge departs from the ordinary course of procedure ... it is incompetent for the parties afterwards to . . . treat the matter as if it had been heard in due course." To use the language of Lord Watson, page 142, the respondents have " unreservedly submitted the determination of the (question) upon its merits, to (our) jurisdiction." The next question which arises is upon what ground did the learned Judge proceed in disposing of the costs of the adjournment ? And, from a careful consideration of all that took place, I can come to no other conclusion that that he did not fully appreciate the circumstance that the Full Court had decided that no sufficient case had been made by the respondents, up to the time of trial, for the inspection, but that the learned Judge having been disposed to make the order upon the first application, and the full Court having decided that he had jurisdiction to make it and having left the matter to be dealt with by him as trial Judge, he was led into treating the subject as if the appenants had been in the wrong in resisting the first application and so ought to pay the costs of the postponement. In other words, the learned Judge dealt with the matter as if the Full Court had simply established the jurisdiction and had referred the application back, to him to make such order as he would have made if he had not questioned his jurisdiction. A party may by applying for inspection before trial succeed in escaping terms which may be imposed upon him if the application be delayed until the trial. But a party ought not to be put in a worse position as regards the costs occasioned by an inspection being ordered at the trial solely because he has successfully resisted a previous application, than if he had been unsuccessful. As this is the first time an inspection order of the kind has been made by the Court, I think that an examination into the nature of the order and the grounds upon which it rests may not be out of place. Where the object is to ascertain if something artificial exists, as for instance a water pipe, the result will necessarily be to end the dispute upon the point. But in such a case as the present the result may i be very different. If evidence has already been given, the inspection j may throw no additional light whatever upon the dispute; or while the inspection may seem to settle the dispute in favour of one of the parties, the other side may be able to shew by the inspection of other places that what appears conclusive is not so. If there is no substantial difference between the parties as to what j an inspection will be likely to disclose, there can, of course. 1.1 IRON MASE MINING CO.' V. VENTRE STAR MININ ordinarily be no good reason why inspection should be had. There ought to be at least a probability that the inspection will establish x 01 the position of one of the parties regarding a material disputed fact. Eu If this does appear, to refuse the inspection would be to decline to mcCo: permit the procuring of evidence not otherwise obtainable which might be decisive of the controversy. But if a reasonable case having " made for an inspection, the fact appears at the same time that the result of other inspections may not improbably be to negative inferences which otherwise might be drawn from the physical conditions shewn by the inspection ordered, surely the very reason for requiring the one requires also that opportunity be given for the others, otherwise the Court would be refusing to be informed as to facts which might prevent the Court being misled in a way which the action of the Court in ordering an inspection alone made possible. The real difficulty, if any, in circumstances such as those now under discussion is, of course, to decide whether sufficient is shewn to entitle the side asking the adjournment to the desired opportunity to make additional inspections; and the question may be, apparently, made more difficult by the circumstance that the adjournment will, or may be, beneficial to the party in other ways. The question remains whether, because of the order for inspection made on the defendants' appUcation the plaintiffs were reasonably entitled to test the result of that inspection by other inspections? The consideration of this question would require the discussion of matters not in appeal and of the evidence given, unnecessary comment, upon which ought to be avoided at this stage of the action, and I do. not think it would be useful to attempt to determine the question now. The adjournment is being acted upon by both parties and its effect,, apart from the costs occasioned by it, cannot be got rid of. With the materials at present available it is impossible to decide ; with any confidence that the result of the trial may not shew that the- | decision will work inequitably, while the disposition of the costs may, | and probably wiU after the inspections have been made and all the evidence has been given, present no difficulty. The decision upon any application must necessarily depend upon ■ the particular circumstances of the case. I cannot agree with the | course taken by the learned Judge when he was able to see that an adjournment was proper. There was no question as to the solvency ! of the plaintiffs. The costs awarded were left to be paid at the end ! of the litigation. It is not as if payment at the time had been thought I proper. If the costs had been made dependent upon the result of the- ; issue upon which the inspection was ordered, the case of Forster v.. I Farguhar (1893), 1 Q. B. 564, shews that they could have been dis- ; posed of by the judgment distributively so as to do entire justice between the parties. The result of the disposition complained of is- MARTIN'S Dpellants she MJN$*,G CASES. doubt costs -1 ichl appeUar ippUcati of the : ad, if n he issua and succeed djournment was un- tably lose their own d to be thrown away, That such a resuIT accessary, it cannot, pose of affording the inspection asked by rty would or might mot, it seems to me, urnment was merely all, and in such case, natter of course, and n before the learned ay of the embarrass- ;he inspection order ye to meet, but only ve gone to trial pre- lt may be remarked and must also pay was necessary cai I think, be right. If the adjournment was reasonable for the test which the plaintiffs desired to make of the insp the defendants, the circumstance that either pi benefit by the adjournment for other reasons, ea affect the right of either party. For the respondents it was urged that the adji an indulgence. But it was not asked for as sue see no reason why it should have been allowed at if granted, the terms imposed would have been a : could neither have afforded room for the discussi Judge or this Court, nor have possibly created a ment felt by him. It was also contended that did not change the case which the appellants ha affected their evidence, and that they ought to hi pared with any evidence necessary to their case, that if such a rule is to be applied, it is equally applicable to both sides and would have disentitled the respondents to an inspection QjjIK at the stage when it was made. But why should the appellants have foreseen what the FuU Qopfc did not—that the respondents would make out at the trial a case for an inspection ? Or, why should the appellants have anticipated being denied an opportunity to test the result of the inspection, if ordew^, except upon the footing that this was not their right but a privilege to be paid for ? How could the appeUants have profitably made ,the inspections desired by them without first knowing the precise conditions which the inspection ordered would disclose? Or whyshffl I they have incurred the risk of the expense of spection ? I am of opinion that the order should be costs to be dealt with by the trial Judge upon t in Forster v. Farquhar, and that the coats pi eosts in the cause. I obtain the in- 1 by leaving the nciples discussed ppeal should| p Order-, led, costs i cause. DUNLOP v. HANEY. Dunlop v. Haney. , of Proof—Conflic title. t do s t the t in question, the ;c. 11 of the Mineral A( apping r Amend- Where boundaries of conflicting claims a be proved by measurements taken on tl The expression " adverse proceedings," in ment Act, 1898, is used in a broad sense. Observations upon the scope and object of sec. 11. A statement by a re-locator in his affidavit of re-location that the ground so re-located is " unoccupied by any person as a mineral claim," is a notice of abandonment in writing, under sec. 30 of the Mineral Act, of the deponent's former rights in the original location, and if the original location were' valid, it could not lawfully be re-located without the written permission of the Gold Commissioner. ' -Schomberg v. Holden, ante, p. 290, approved. Appeal from decision of Martin, J., before whom this adverse i action was tried at Vancouver on 28th and 29th of July, 1899. It was | alleged that the Legal Tender mineral claim was overlapped by the j Pack Train and Legle (sic.) Tender, or its re-location the Legal ! Tender fraction. Davis, Q.C, for plaintiff. Wilson, Q.C, and John Elliott, for defendant. Cur. adv. vult. August 11th, 1899. Martin, J.:—In the presentation of his case the plaintiff's sel has followed the course laid down in Schomberg v. Holden (1899), 6 B. C. 419, ante, p. 290. The defendant's counsel contends that the result of that decision is that a plaintiff in an adverse action has an undue opportunity of answering and meeting an attack which on the pleadings might be made by a defendant upon his (the plaintiff's) title. But I cannot see that there is any injustice in such a course. The plaintiff is only called upon to make out a prima facie case, and if the defendant attacks that case surely it is not unreasonable that the plaintiff should be allowed to meet that attack and re-establish his title. I do not mean that the plaintiff may go further and attack the ■defendant's title in such reply; the plaintiff must, if he attacks the 370 MARTIN'S; MINING CASES. [VOL. 1899. defendant's title on his pleadings, make such attack at the uame time November 24 fchat ^ makes out his own prima facie title. Further, quite irrespec- Eun Court, tive of pleadings, the defendant is now required by sec. 11 of the Mineral Act Amendment Act, 1898, to give "affirmative evidence of title," and I have already held in Schomberg v. Holden, that the said section "applies to all cases which come before the Court for trial." It is strongly urged by defendant's counsel that the plaintiff has not proved, as he must prove, that the claims (the Pack Train and the Legle [sic] Tender, or its re-location the Legal Tender fraction) in dispute overlap either wholly or partiaUy. The only evidence is that of the Mining Eecorder, Kirkup. He stated that they covered practicaUy the same ground, but on cross-examination admitted that he had never seen the stakes of these conflicting claims; and in further explanation stated: " I mean to say it is supposed to be the same ground, that is all." On re-examination he said: " Though I have not seen the stakes of the two claims, I have seen the records of the Pack Train and the Legle Tender, and from them I am satisfied they would be more or less overlapping." It is objected that such statements without exact knowledge are. quite insufficient, and that there Judgment should be positive evidence that the claims are co-incident or overlap below, t0 some extent, otherwise the plaintiff cannot obtain the relief prayed, which is so prayed on the assumption that his claim is encroached upon by the defendant's claim. There is no evidence of any measurements being taken. I agree with defendant's counsel that this is a matter of importance, and I feel bound by the remarks I made in the somewhat similar case of Ryan v. McQuillan (1899), 6 B. C. 431 at 432, ante, p. 289, in regard to the necessity of measurements being taken. The learned Chief Justice had earUer expressed his opinion to the same effect in another mining case, Waterhouse v. Liftchild j (1897), 6 B. C. 424 at 425, ante, p. 153, where he rejected the evidence of a witness as to distances because " it did not appear that he j measured them." " It is," says Boscoe, N. P. Evidence, page 1, " a general rule that the best evidence, or rather the highest kind of evi- ; dence, must be given of which the nature of the case admits; and evidence of a nature which supposes better proof to be withheld, is only secondary evidence." How can I with safety depart from such a rule, which in this case, could so easily have been observed by taking a few simple measurements on the ground? With due respect for the wide experience of the Mining Eecorder the most that I can derive from his evidence is a feeling that probably his view as to the claims overlapping would turn out to be correct. But when an aUegation is specifically made and as specificaUy denied in pleadings it is probability but proof that a Judge must require. The objection must be sustained, and it foUows that the relief sought cannot be granted I.] DUNLOP v. HANEY. and the plaintiff's action must be dismissed, for, so far as the evidence goes, the owner of the other claim is not shewn to have encroached upon his ground or otherwise interfered with his rights. But further evL] than this I do not go, and I am not to be understood as declaring that the plaintiff has no title to the Pack Train mineral claim; under the turn the case has taken it is neither necessary nor desirable that I should express any opinion on that matter. Now as to the defendant Haney. I am of the opinion that he comes within the • provisions of sec. 11 above mentioned and that in the 6road sense of the term, these are adverse proceedings " as contemplated by the Mineral Act. I also think that the plaintiff's rights herein are preserved by the joint order of the 24th of June, 1898. The said sec. 11, introduces, it may be remarked, a new feature into mining litigation, for it is passed, apparently, for the purpose of protecting the rights of the Crown. It certainly is not aimed, primarily at least, to protect or assist the adverse Utigant. The result is that an additional duty is cast upon the Court, and m reality, in the great majority of instances, two cases have to be tried. That the section wUl have a very beneficial effect in putting an end to fictitious titles and preventing mineral claims from being practically appro- ju priafced without colour of right, is evident from the briefest consider- ' ation. of it. Take the present case of the defendant Haney as an example. What title has he " established " to the ground he claims ? As I understand his counsel, it is practically admitted that the original Legle [sic.'] Tender was staked twenty-four hours too soon, even if . Dunlop, the deceased locator of the claim, had not died; and further, no assessment work has been done on it since February 25th, 1896. But supposing it was not staked too soon. On 22nd June, 1896, Haney re-located the claim as the Legal Tender Fraction, filing an affidavit containing these words: " That to the best of my knowledge and belief the ground comprised within the boundaries of the said fractional claim is unoccupied by any other person as a mineral claim." Despite the argument of his counsel, I can only regard such a statement as evidence of his intention to abandon his old claim, the Legle [sic] Tender. It evidences to my mind a fixed intention of such abandonment, and being in writing conforms to the requirements of what is now sec. 30 of the Mineral Act, which section (then 27) was considered by Mr. Justice McCreight in Nelson and Fort Sheppard Railway Company v. Jerry (1897), 5 B. C. 421, ante, p. 161. This re-location is admitted by the defendant Haney in his statement of defence, but it is shewn by the Mining Eecorder that a written permission to relocate was not given by the Gold Commissioner, and without that permission the statute declares no interest can be held in any portion of such claim. The result is that I find that Haney has not 1 : Frac- MARTINVg! MINIS4G 'IQASES. 1899. established his title to the Legle [sic] Tender or Legal Ten November 24. ,. . , . & L J + & — tion mmeral claims. The action will be dismissed without costs to either part Action dis The defendant appealed, and the appeal was argued at Vancouver, on 24th November, 1899, before Walkem, Drake and Irving, JJ. Wilson, Q.C. (Lennie, with him), for appellant. W. J. Taylor, Q.C, for respondent. Some arrangement having been come to between the parties, the Court made the following Order:— Upon motion made unto this Court House, Vancouver, on the 23rd day of November, 1899, and this day by counsel on behalf of the defendant Edmond Haney, by way of appeal from the judgment of the Honourable Mr. Justice Martin, pronounced herein on the 11th day of August, 1899, and upon hearing counsel for the above named plaintiff, and by consent of respondent (plaintiff), and it appearing that formal judgment hath not been entered but parties to proceed with appeal notwithstanding, this Court doth order and adjudge that the plaintiff's said action be as against the defendant Edmond Haney dismissed out of this Court, without costs to either party, and without any declaration affecting the title of either party to their respective mineral claims in the pleadings in this action mentioned, namely, the plaintiff to the Pack Train mineral claim and the defendant to the Legle Tender or Legal Tender Fraction mineral claim; and this Court doth further order that the plaintiff do pay to the defendant Edmond Haney, his costs of this appeal to be taxed. Let the cross-appeal be dismissed with costs. Note.—In view of the arrangement come to between the parties, the reasons for judgment of Martin, J., remain undisturbed. See remarks on this judgment in Dunlop v. Haney, post, p. 390, and GeUv^ v. Clark, post, p. 428 at 432. As to defects in location: see list of cases in note to Manley v. Collom, post, - As to measurements: see Bleekir v. Chisholm, < As to abandonment: see Williams Creek, &c, Ct As to sec. 11 of 1898; see, also, notes to Ryan v As to re-location without permission: see sees. and Granger v. Fotheringham, ante, p. 71; Creelmar Pellent v. " ■■> p. 112. NOBLE v. BLANCHARD. Noble v. Blanchard. (7 B. C. 62). The time for filing affidavit and plan, in an adveri Act and Amendments, may be further extended o the lapse of the time fixed by a previous order. Decision of McColl, C.J., affirmed. Appeal by defendants to the Full Court from an order of McColl, C.J., pronounced 31st August, 1899, ordering that the time within which the plaintiff might file their affidavits setting forth the nature, boundaries and extent of the adverse claim (the subject matter of the suit) together with a map or plan made in pursuance of sec. 9 of the Mineral Act Amendment Act, 1898, be as against the defendants, further extended to the 1st of September. The writ was'issued on 14th December, 1898, but the plaintiffs, owing to the snow on the claim were unable to obtain a plan and on the 10th of March, the Chief Justice extended the time to the 1st of August. On 1st August, the affidavit and plans were not filed, and on the 18th of August the plaintiffs took out a summons to extend the time, and on the return the order appealed against was made. The affidavit of Adolphus Williams, one of the plaintiffs, shewed that in the month of June, 1899, he engaged one William A. Bauer, to make the required survey, and on the 16th of July, the said Bauer left Vancouver for the Kootenay country for the purpose of making such survey, but that for some ; reason unknown to him (Williams), the survey was not commenced : until the 5th of August, and that he (Williams) intended that the i said survey and plan should have been made by the said Bauer in time to enable him to comply with the terms of the order. The grounds of the appeal were that there was no jurisdiction to extend the time and that the evidence shewed no reasonable ground for the extension. The appeal was argued at Vancouver, before Walkem, Drake and : Irving, JJ., on 29th September, 1899. Wilson, Q.C, and J. H. Senkler, for appellants: Chapter 33, sec. ! 9 of the Mineral Act of 1898, does not provide for an extension of ; time within which to file plans, and although ch. 45, sec. 13 of the Amendment of 1899, gives the Court jurisdiction to extend the time, ; still sec. 20 of the same Act excepts any rights acquired under previous I Acts. The order of the 10th of March is a nulUty as there i MARTIN'S MINING CASES. [v 1899. jurisdiction to extend the time; see Attorney-General v. Lord Hotham tber 3a (1823), 24 E. B. 21 at p. 29. After the time had elapsed there was Full Court. no jurisdiction to extend it, see Doyle v. Kaufman (1877), 3 Q. B. D. Dram, j. f- The case of Banner v. Johnston (1871),-5 E. & I. Appeals 157, is distinguishable as there the Court had, under its special rules, the right to extend the time after the time had elapsed. The section reads "the Court" and a Judge in Chambers has no jurisdiction, Baker v, Oakes (1877), 2 Q. B. D. 171, and the Annual Practice, 1899, Vol. 2 at p. 323. The evidence was not sufficient: See Kinney v. Harris (1897), 5 B. C. 229 at p. 232, ante, p. 137, and Kilbourne v. McGuigan (1897), 5 B. C. 233 at p. 240, ante, p. 142. Williams, for respondents: The extension of time is a matter of procedure and there is no vested right in procedure. There was power to further extend the time although the time limited by a former order had expired. He cited Banner v. Johnston (1871), 5 E. & I. Appeals 157; In re Good Friday, &c, Mineral Claims (1896), 4 B. 0. 496, ante, p. 84; In re Golden Butterfly Fraction and Countess Mineral: Claims (1896), 5 B. C. 445, ante p. 125; and Cusack v. London and North-Western Railway Company (1891), 1 Q. B. 347. Cur. adv. vult. November 30th, 1899. The judgment of the Court was delivered by Drake, J.:—The plaintiffs issued a writ adversing the claim on 14th December, 1898. By sec. 9 of ch. 33, 1898, the adverser has within sixty days after publication in the Gazette of the notice referred to in sec. 36 to commence an action in the Supreme Court unless such time shall be extended by special order of the Court; and he has further to file an affidavit together with a plan setting forth the extent and boundaries of such adverse claim within twenty days from the commencement of the action. The plaintiffs owing to the condition of the snow on the claim were unable to obtain a plan; and on the 10th of March, the Chief Justice, on application of the plaintiffs, extended the time to the 1st of August. This order was not appealed against and therefore is a valid order. The Mineral Act was amended by ch. 45, 1899, by authorizing the Court to extend the time for filing this affidavit and plan, but that Act did not come into force until the 1st of May, 1899. It is not necessary under these circumstances to discuss the effect of the section postponing the operation of the Act until the 1st of May, whether it is to be treated retrospectively or not, because there was an order of Court in existence which extended the time to the 1st of August. It i attended tii r to furt ded; and the time.N(" i day the ^ bis latter D run out 1 it after used i ihadf . Johnston ader the Com- y order of the that no appeal shall be heard i weeks after the order com- hich notices of appeal are NOBLE v. BLANOHARD. On the 1st of August the affidavit and plans y on the 18th of August a summons was taken out This was not heard until the 31st day of August, time was further extended to the 1st of September order which is appealed against. The defendants contend that the on the 1st of August, there was not po1 the time then given had expired. A point of a similar charactf (1871), 5 E. & I. Appeals at p. panies Act, 1862, sec. 124, appeal Court, subject however, to the res unless notice shaU be given with plained of has been made in the n ordinarily given, according to the practice of the Court, unless the time is extended by the Court of Appeal. The Lord Chancellor considered that it would be too narrow a construction of the Act to hold that the word " extend " must be taken to mean that the application must be made before the original time had elapsed because the time having elapsed, there was nothing to extend; and he held that the Court had power to extend the time although the time had elapsed. The manner of extending the time is a question of discretion in the Court, and although the time had elapsed before the order was made, I think the order is vaUd, as the statute of 1899 was in force when the order of the 31st of August was made; and if there is nothing in the language used which could be held as limiting the discretion to a single period, then if sufficient cause I is shewn for a further extension, it should be granted. j The case of the Good Friday, &c, Mineral Claims (1896), 4 B. C. 196, ante, p. 84, was cited as a direct authority in support of the plaintiffs' contention, and it is an authority for the order of the 10 bh of March. In re Golden Butterfly Fraction and Countess Mineral I Claims (1896), 5 B. C. 445, ante, p. 125, was decided on another (ground, the point raised here was not in question. | I think there was jurisdiction to make the order appealed from, and the appeal will be dismissed with costs to the plaintiffs in the Appeal dismissed with costs. h MAsRTIN'S MINING CASES. 1899. Jecember 16. Hand v. Warren. IRVW8, J. (7 B. C. 42). Action to se aside Certificate of Improvements—Crown—Fraud—Advers 'on—A Bar—Waiver—Mineral Act and Amendments. An adverse of the Mir claimant who neglects to bring an adverse action under s eral Act, cannot sue to set aside a certificate of improvemei the ground of fraud. Semble, that under such circumstances the Crown alone is entitled to sue. Action by the recorded owner of two mineral claims to set aside the certificate of improvements issued to the defendants in respect of the same claims previously recorded by them under different names. On behalf of the plaintiff it was alleged that the certificate of improvements was obtained by fraud. The evidence shewed that the defendants had employed a man to do assessment work, who fraudulently represented to the Mining Eecorder that the necessary work had been done, and in this way obtained a certificate of work. The action was tried on 6th December, 1899, at Eossland, before Irving, J. Martin, Q.C, and W. S. Deacon, for plaintiff. J. A. Macdonald, for defendants. December 16th, 1899. Irving, J.:—The plaintiff is the recorded owner of the Tin Dipper \ and Dominion mineral claims, located on the 9th and 26th of August, j 1897, respectively. The defendants are the recorded owners of the Vanderbilt and Hand Fraction mineral claims, located on the 5th and 23ird of August, 1896, respectively. The plaintiff's claims are re-locations of the defendants' claims. The re-locations were made by the plaintiff and one Green (who afterwards assigned the Tin Dipper to the plaintiff) in consequence of the failure of the defend- j ants to do the assessment work on their claims. The evidence at the trial shewed that the defendants had employed I a man to do this work, but instead of doing it he merely cleared out I some old workings on an abandoned shaft, and then represented to f the Mining Eecorder that the necessary work had been done, and i this way obtained a certificate of work, which was issued to the de- | fendants on the 28th of June, 1897. The defendants themselves I ■ triie ignorant of this' fraudulent representation, and remained so until after they had obtained a certificate of improvements by the D payment of $1,000 in cash on the 10th of February, 1898. The plaintiff faUed to bring his adverse action in time, but on the 5th of March, 1898, brought this action to set aside the certificate of improvements issued on the 10th of February, 1898, on the^gjound that the same was obtained by fraud. By see. 37 it is provided (1) that a certificate of improvements when issued shall not be impeached in any Court on any ground except that of fraud; (2) in case any person shall claim an adverse right of any kind ... he shall within sixty days . . . commence an action in the Supreme Court to . . . enforce his claim . . . A failure to so commence shall be deemed a waiver of the plaintiff's claim. This action is an ingenious contrivance to get round the second sub-section. The plaintiff attacks the certificate of improvements, whereas the fraud complained of was committed in respect of the dBtaining the certificate of work. I do not think that the statute can be got round in this way. It may be put in more ways than one. It may be put on this ground, that the plaintiff has waived his claim, or that the statute, having prescribed a particular form of action for persons claiming an adverse right of any kind that form of action (.with its time limitations) must be foUowed, and no other; or it may be put on the two grounds combined. Mr. Martin's contention was that any free miner could bring an action under the first sub-sec. of sec. 37. At the trial I thought not, and I am still of the same opinion. Osborne v. Morgan (1888), 13 App. Cas. 227, seems to me to support the view I took. I think that the proper method of attack by any one interested is by adverse action, and as. the plaintiff by his waiver under sub-sec. 2 has lost the peculiar interest which would entitle him to bring an action, the only way in which the defendants' certificate of improvements can now be assailed is by scire facias, or some other simUar action instituted by the Crown or its officers. To shew that the plaintiff has a status—or rather to shew that the Attorney-General is not the only person who can bring an action under the circumstances existing in this case, Mr. Martin, for plaintiff, draws attention to the difference between the language used in sec. 28 and that in sec. 37, sub-sec. 1. It is possible to explain this. Section 28 is only applicable to cases in which there are two or more claimants of the same property. Under section 37 the question does not of necessity arise in every case between two claimants. Sub-section 1 does not say by whom the H MARTIN'S MINING CASES. [vol. action must be brought, possibly contemplating cases in which the Crown alone is interested. Sub-section 2 says that where there is someone whose rights are' being interfered with that person can bring an action in the form prescribed under sub-sec. 1, a proceeding like scire facias, or an action for penalties should be taken. In this class of cases the Attorney- General is the proper person to sue. Cf. Bradlaugh v. Clarke (1881), 7 Q. B. D. 38, and (1883), 8 App. Cas. 354; In re Weir (1898), 31 N. Sc. Eep. 97; Boggs v. The .Merced Mining Co. (1859), 10 Morr. 334. Perhaps the nearest kind of action to our adverse action to be found in English law is that given by the Imperial Statute 46 & 47 Vict. ch. 57, sec. 26. The action must be dismissed with costs. At the trial it was proved that the plaintiff's certificate of work was improperly obtained. I am able to decide the case without regard to that point, and, therefore, in considering the question of costs, I do so without reference to the amendment I allowed at the close of the case. I mention this in order that the plaintiff may have the benefit of it in the event of the Full Court considering it necessary for me to invoke the aid of that fact in determining this case. Actio'ii dismissed. Note.—See notes to ~Nelson and Port 161, and particularly Attorney-General v. cowitz, post, p. 506. McDonald v. The Canadian Pac M$nw--Inspeetion of, Metalliferous ,Min "Mine Owner—Negligence. Act ed s J., without a jury. The facts suffic j : Macdonald, Q.C, and Johnson, for plaintiff. MacNeill, Q.C, for defendant. her, 1899, before Martin, ppear in the judgment. December 19th, 1899. . "^Martin, J.:—In this case the plaintiff sues the defendant company, his former employer, for damages for injuries received in its mine, on the ground that the air course in which he was set to work I was not securely timbered, in consequence of which alleged negligence a mass of rock fell, from the hanging wall, upon his left foot and severely crushed it, causing injuries which resulted in the ampu- ! tation of the greater part of the wounded member. ; No one was present at the time of the accident except the plaintiff, [and his account of it is not so precise as one would desire, though perhaps as fuU as can be expected from one who does not seem to have a good memory, e.g., his inability at first to give, at the opening of is examination in chief, even a reasonably accurate date of his leaving [ the hospital. I find that the plaintiff, who on the day of the trial attained the age of eighteen years, and fully looks his age, was engaged on January 28th, 1899, by the defendant's superintendent, McMuUen, as one who had worked three years in a mine, and that after working two days he was set to work to clear out the air course in question. I satisfied the superintendent did not know, and had no reason to | suspect, that the place was dangerous, or in any way insecurely MARTIN'S MINING CASES. [vol. timbered, and I do not credit the evidence of the witness, MarquijM to the contrary—he impressed me very unfavourably. The evidence* • shews that the system of timbering in the mine is a good one, and that plenty of men and materials were available for the purpose; the mine: itself is, as a whole, a well timbered mine, above the average, and the walls are of solid rock as a general rule. The work the plaintiff was engaged at was of a simple kind, and not of a nature from which any accident could have been anticipated. All the evidence goes to shew that whether the plaintiff is to be regarded as a "mucker" or a " miner " in the proper sense of the latter word, his primary duty to himself was to sound the ground by tapping or otherwise, as he went along. This he did not do, and that he knew he should have done so is shewn by the fact that he stated to three different witnesses that- the accident was his own fault. The plaintiff denies this statement, but in the face of the evidence of three credible witnesses I can only take this as another instance of his unreliable memory. Of course it is a painful thing to see a youth crippled for life, but I am unable after mature reflection to say that the defendant company has been negligent in any particular. I think, on the contrary, that more than ordinary precaution has been taken in the Porto Eico mine to protect the workmen, and that the superintendent has conscientiously done his duty to the employees in this regard. I cannot help thinking that the accident was directly caused by the plaintiff's careless and- unauthorized use of the hammer, though all the tools he needed to carry out his orders were the pick and shovel. But however that may be, and if the fall of rock were not so caused, then it must be regarded, in my opinion, as one of those accidents which happen desgij& all reasonable care and foresight. The plaintiff's counsel further relies on the statutory duty to securely timber imposed upon the defendant by the Inspection of Metalliferous Mines Act, E, S. B. C. 1897, eh. 134, sec. 25, rule (20): "Each shaft, incline, stope, tunnel, level or drift, and any working place in the mine to which this Act applies, shall be, when necessary, kept securely timbered or protected to prevent injury to any person from falling material." It is argued that the effect of this rule is that unless it is reasonably impossible to timber. a mine, and a rock drops from any cause, and injury results, the mine owner is Uable. The operative words of sec. 25 are as follows: "The foUowing general rules shall, so far as may be reasonably practicable, be observed in every mine to which this Act applies." For the defence it is urged that the words " so far as may be reasonably practicable" restrict the operation of the rules, and that'4» extend rule (20) to cover such a case as the present' would be, hi x.j Mcdonald v. the c p. exploration co., ltd. effect, to make the defendant an insurer against accidents, a result is not contemplated by the Act. If the rule stood alone, without the Deoe° said words, it is plain that a stricter UabiUty would be imposed upon Mar the defendant; the exact value of the particular expressions is not easy to determine. It seems to me that they do not require the rule to be construed in a manner which would in practice place an unreasonable burden upon the mine owner, and that is the test I shall apply to this case; I do not feel justified in going further, in view of the element of uncertainty so introduced. Applying this test then, I am of the opinion that it would be unreasonable in practice for me to require of the defendant company that the mine should have been better timbered than it was. This is equivalent to saying that the mine was " securely timbered" within the true intent of said rule and section read together. If a stricter construction be desired I shall look for plainer language in the statute. In view of the above conclusion it is not necessary for me to consider what the consequences of a breach of a statutory duty would be in view of the penalties prescribed by sees. 27-37, or otherwise, or to express an opinion on the objections taken to the notice. The action should be dismissed with costs. Action dismissed with costs. MARTIN'S MINING CASES. [vol. Gibson v. McArthur et al. (7 B. C. 59). Mineral Claim—Adverse Action—Estoppel—Bill of Sale—Fraud. W. sold certain mineral claims called the Big Four group to A., who sold in turn to the defendants, after which \V., as agent for the plaintiff, located a fraction between two of the claims in the plaintiff's name. Held, that defendants had no right to the fraction in the absence of proof of fraud by W., and that the plaintiff was a party thereto; and held also, that the defendants could not invoke against the plaintiff a statement in a bill of sale from H. to W., that the end of the two claims between which the ' fraction in question was located adjoined each other. Adverse action tried at Eossland, before Irving, J., on the 6th day of December, 1899. The facts sufficiently appear in the judgment. J. A. Macdonald, for plaintiff. Hamilton, for defendants. Irving, J.:—This is an action brought by the Maggie Fraction mineral claim (located 2nd November, 1897, recorded 13th November, 1897), to adverse the defendants' application for a certificate of improvements in respect of the Big Four mineral claim, located 22nd April, 1895, recorded 29th April, 1895, and the St. Luke Fractional mineral claim, located 12th November, 1897, recorded 13th November, 1897. The defendants' theory was that the No. 1 posts of the Big Four and Queen Lil mineral claims respectively were planted side by side, and that the end lines of the two claims marched together for their greater part. Where they separated they left a triangular space which the defendants took up as the St. Luke Fractional mineral claim. The plaintiff established by the evidence of Wells that the No. 1 of the Big Four was 270 yards from the No. 1 of the Queen Lil, and in this space he staked the Maggie Fraction. Wells' evidence is- the only evidence on this point, and as it is uncontradicted it must be accepted. As the Maggie location does not conflict with the triangle taken up as St. Luke, the plaintiff during the course of the trial gave up that part of the contest. The case then resolved itself into the question whether the plaintiff was entitled to the Maggie or whether it was the property of tnl- defendants. The Big Four had been located for Hoover by Wells, the witness whose name has already been mentioned, at the same time that he (Wells) located the Queen Lil. Wells also became by purchase the owner of two other mines. The four claims known as the Big Four group, he put into Acorn's hands for sale on commission. Acorn was unable to effect a sale, and then Wells gave Acorn an option on the group. The option was given in this way: Wells placed bills of m GIBSON v. MCARTHUR, : sale with the name of the purchaser in blank in the bank, to be de- Uvered out on payment of the purchase price. The defendants Dece" bought, paid the money, and the bills of sale with their names inserted as purchasers were delivered to them. Wells swears positively that Acorn was not his agent, and that the sale by means of the deposit of the bills of sale was a sale by him to Acorn, and that he was not concerned in the sale by Acorn to the defendants. Evidence of intermediate sales, by verbal agreements, was allowed in Brown v. Harrower (1886), 3 Man. 441, in order to shew that the grantee whose name appeared in the deed was not the original purchaser from the grantor. After the purchase had been completed the defendants sent out a surveyor to have their claims surveyed. On the surveyor's arrival there, he found that Wells had that very day as agent for the plaintiff located the Maggie Fraction in the interval between the Queen Lil and Big Four. This the defendants claim was the consummation of Wells' fraudulent scheme, and they claim that this piece of ground is theirs, either as part of the original Big Four mineral claim, or that the plaintiff is estopped from claiming it on the principle of equity enunciated in Hobbs v. Norton (1682), 1 Vern. 135, and Savage v. Foster (1723), 9 Mod. 35. That I am in a state of doubt about the bona fides of the plaintiff in the matter is not sufficient. The defendants' ease is that there was fraud. I am not able to say that the plaintiff either by himself or through Wells assisted in or connived at the fraud which led up ! to the condition of affairs which brought about these proceedings. The mere silence of Wells cannot work an estoppel against the i plaintiff unless it is part of a line of conduct equivalent to an express ' statement by the plaintiff of a fact. The defendants, I think, were : remiss in not examining the ground before they purchased. " Had they done so the chances are that on seeing that the No. 1 post (or supposed No. 1 post) of the Big Four had been badly charred they would have required some evidence from Wells of its location. As to the representation contained in Hoover's bill of sale to Wells of the Big Four, that the Big Four claim adjoined the south end | lines of the Queen Lil and Sailor Boy, I do not see how it is binding ' on Gibson. There will be judgment for the plaintiff as to the Maggie, and | for the defendants as to the St. Luke, and that portion of the Big Four not covered by the Maggie. Each party to pay their own costs. Judgment accordingly. Note.—This case is included in t Brit. Col. reports, as above noted; allegation of fraud. MARTIN'S MINING CASES. Pavier v. Snow. Mineral Claim—Locations, Senior and Junior,—Location, Invalidity of—OMitr* .lapping—Certificate of Work—Irregularity—Freest Miner's Certificate—Admissibility of Certified Documents—Mineral Act, sec. 28. Where a location is alleged to be invalid on the ground that it was made upon an existing valid location, that fact must be established, particularly where the location attacked was otherwise valid, and certificates of work recorded thereon. 3ven if the senior location were valid at the time of the location by the junior locator, if the senior subsequently lapsed the junior location would become entitled to the overlapped area, as against a third location, if the junior location had recorded a certificate of work before the making of the third t location in the life of the senior was " a mere irregu- ired 1 . 28. Under sec. 119 of the Mineral Act a certificate of a mining recorder may, under certain conditions, be admitted in evidence without notice as proof of the issuance of a free miner's certificate. A similar certificate of the recording of a certificate of work may be similarly admitted. Copies of instruments recorded under sec. 115 may be likewise admitted without proof of loss of original, and without notice. Adverse action under the Mineral Acts tried at Eossland, before Irving, J., on 5th December, 1899. The plaintiff on 11th May, 1899, located and recorded the Eva Fraction mineral claim covering (so the plaintiff alleged) the same ground as the Tulair mineral claim, located on 25th April, 1895, but which subsequently lapsed. On 13th May, 1895, the Little Bess mineral claim was located on the same ground..and the defendant now claimed to be its owner, the plaintiff contending that at the date of the location of the Little Bess, the Tulair was in existence and covering the same ground. The remaining facts sufficiently appear in the judgment. Nelson, for plaintiff. W. S. Deacon, for defendant. Cur. adv. vult December 22nd, 1899. Irving, J.:—The plaintiff's case admittedly depends on his establishing that there was in existence, on or before the 13th of May, 1895 (the date of the locatioi called the Tulair. A The evidence adduced on tb who in 1899, when he was se found a post which and on which was legible the follow He then proceeded northerly, and fo letter; but as the question was a leading one I disallowed it. He found another post at or about the place where one | naturally expect the No. 2 post of the Tulair. but on the assumption that the first mentioned post belonged to that claim he made no note of what was on it. I arrive at the conclusion that he was not able to identify it from any of the other posts he found at that place. Mr. Burnett thought at i was the No. 1; but later, m Tulair, which shewed that tl location line, he called the fir j establish, and the inscriptions thereon, as he posts of the other claims placed on the of the Tulair location. ; at is that he is unable to-day to put his md say " This I know is the No. 1 post of ground Thee , Mr. Bi ; I do not f there was a Thorn as Clark ir Koote nay in 1895, holding a Ucence, a free miner's, date d 13th Ap rU, 189 5, and num- mineral claim called ed that a Thomas Tulair, situate in Clark, No or about t 57,14 ae plac ', recorded a 1 in question. But it was not e stabUshed with res sonable ce rtainty that (1) the ground was proper y staked; (2) tl lat assumi rig the ground had | been properly stake 1 it was identical round mentioned in the record. i "1 MARTIN'S MINING CASES. [vol. 1899. The defendant, on the other hand, produces certified copies of December 22. rec()rded Mllg of gale dewing the title to the Little Bess from 1895 Irving, J. to this date; certificates of work issued to him or his predecessors in 1896, 1897, 1898, and the last on 20th April, 1899. This last certificate in itself is sufficient answer to the plaintiff, who staked the Eva on the 11th of May, 1899. In my opinion the location of the ' Little Bess by the defendants during the life of the Tulair is, so far as the plaintiff is concerned, a mere irregularity. Judgment for the defendant with costs. At the trial I gave the following rulings as to evidence: I refused to receive in evidence, without proof of loss of the original certificate, a "substitute certificate," issued in the name of Thomas Clark, obtained by the plaintiff. That under sec. 119, the Mining Eecorder can certify the fact that a free miner's licence was issued to a particular man on a particular day, and that said licence bore a certain number, and that if such certificate is from entries in one of the books named in the Mineral Act, such certificate can be received without ten days' notice under the Evidence Act. That under sec. 119, the Mining Eecorder can certify the fact required by see. 21 that a certificate of work' in respect of a certain claim was recorded on a certain day, and such certificate can be admitted without ten days' notice under the Evidence Act. That under sec. 119, copies of instruments recorded under see. 115 are admissible in evidence without proof of loss of original, and' without ten days' notice under Evidence Act. Judgment for defendant with costs. Note.—It will be observed that the defendant was the senior locator: see Schomberg v. Holden, ante, p. 290. As to a re-location on an existing valid location being " a mere irregularity'' this case has been overruled, with Gelinas v. Clark, post, p. 428, by ManlQffi'i Collom, post, p. 487. The other rulings as to evidence have been followed at nisi prius. \ -Duty of Counsel to Full Court. if he is the junior locator irk of the trial Judge, did Appeal from judgment of the Chief Justice in an adverse action Stat tried at Nelson on 28th June, 1898. Cur. adv. vult. June 28th, 1898. McColl, C.J.:—At the trial, which was held at Nelson on the 28th of June last, I came to the conclusion that I must find for the m<jC° defendant on the ground that he was in actual occupation of and working the Eed Star claim at the time of the alleged location of the Fair Play, following a former decision of mine (Waterhouse v. Lift- child (1897), 6 B. C. 424, ante, p. 153), that in such circumstances the ground was not open to location. I gave the plaintiffs an opportunity, however, of having a survey made to settle a dispute upon which the question of actual occupation depended. A survey was accordingly made but not completed until March, when a plan was sent to me from which I understood the result to be in the plaintiffs' favour, and instructed the Begistrar at Nelson to enter judgment for them. But before it was entered counsel for the defendant claimed that the survey really was upon the evidence in his favour, and I was desired to reconsider the evidence. My note book having been lost at the time of the destruction by fire of the Court House at New Westminster, I am unfortunately without my memorandum of the arguments, and after perusing the evidence I am not quite clear as to the effect of it taken with the plan upon the point mentioned. I would, therefore, require a jre-argument upon this question, if necessary. But since the trial the Full Court have decided in the case of Peters v. Sampson (1898), 6 B. C. 405. ante, p. 247, in favour of the vaUdity of a certificate of work though issued after the expiration of the statutory period, and the defendant's * Partly reported in 7 B. C. 156. MARTIN'S MINING CAS1 [VI neglect to obtain a certificate of work in respect of the Bed Star;, was the main ground relied upon by the plaintiffs. 1 think, therefore, that for the reason that I am bound by that; authority, I must give judgment for the defendant. In the circumstances there will be no costs. It is proper to expedite an appeal if desired, and an order ought' to be made, if wished, for hearing at a special sitting of the FuU Court, which has been arranged to be held at Vancouver about the From this judgment the plaintiff CaldweU appealed to the FuU Court and the appeal came on for argument at Vancouver on 24th January, 1900, before Drake, Irving and Martin, J J. MacNeill, Q.C, for appellant (also counsel in trial below). At and to do that produced the record. I then proposed to prove locatipM affidavit, when the Chief Justice remarked that I had proved sufficient examination, and that'if anything turned upon the matter I could return to it afterwards; on that I dropped that, branch. I would not say that Bowes, who was counsel for the defendant, actually expressed his consent, but he acquiesced in that course of procedure. Davis, Q.C, for respondent: Ours is the senior location, so appeUant must prove all tilings required by the Act to establish W& junior location: Schomberg v. Holden (1899), 6 B. C 419, ante. 1 290; Mineral Acts, sees. 27 and 131, and sec. 11 of the Act of 189$; we raised all the objections to location on the pleadings; there was here no bona fide attempt to comply with the Act. February 22nd, 1900. Drake, J.:—This is an adverse action. The defendant Dasp! was the original locator of the Bed Star mineral claim, and a considerable sum of money had been expended in working the same for lime used in the HaU smelter. Davys recorded the claim on the 27th of January, 1897, but failed j to obtain a'certificate of improvements until the 5th of February, j 1898. In the meantime, one M. M. Grothe recorded the same ground j on the 28th of January, 1897,-imdeT the name of the Fair Play. The j plaintiffs are now the assignees of Grothe. The defendant by his defence alleged that this location of the 1 Fair Play was invalid; first, that it was not located on unoccupied I ground; second, that no legal stakes were posted thereon; third, the post by the ith the Act of 1898, the adverser had further to gi ye affirmative evidence of his own title. The plaintiffs allege that they were prepared to do this, but did not do so owing to a remark of the leg irned Chief Justice who pre- sided at the trial, to leave further proof to cross-examination. It was the duty of the plaintiff in view of the before mentioned sec. 11 of 1898 to insist on giving this proof, am 1 on his failure to do so the trial Judge had to declare that he had not proved his claim. On reference to the learned Chief Jus rtiee, it appears that neither he nor the stenographer had any note with i reference to the plaintiff's alle was made which might have affected tl le evidence adduced. Under these circumstances we think there shoul d be a new trial, but in doing so we must not be taken as laying dov rat a rule that where counsel neglect to enforce their rights by press ing on the trial Judge their objection to any ruling of his so that t he objection is clearly raised, he can obtain a new trial. It is laid c lown in numerous cases that a new trial wiU not be granted for an objection to the direction of the Judge at the trial, or to admission and rejection of evidence, if such objection was not distinctly raised at the trial. It was the duty of counsel here to point out to the Judge the section before referred to. TJnder the circumstances, we think there should be a new trial, the costs of the first trial to abide the result of the second trial, and the costs of this appeal to be costs in the cause. IRVT] J.:—I concur. I J.:—I agree that then i new trial. New trial ordered. ie in mind that the defendant *ht be deemed to be in confl tes thereto. Cf. Clark v. Hai MARTIN'S MINING CASES. Dunlop v. Haney. (7 B. C. 307). e Evidence of Title—Estc i. 11. Mineral Act, Held, that the order of the Full Court reported ante, at p. 369, operated to prevent the plea of res judicata being set up by the defendant in this action. Observations upon sec. 11 of the Mineral Act Amendment Act, 1898. Action for declaration of title tried before Drake, J., at Victoria, on 10th April, 1900. W. J. Taylor, Q.C, for plaintiff. Hunter, for defendant. April 28th, 1900. Drake.. J.:—The legal point raised by the defendant that this action cannot now be heard because the subject matter is res judicata involves the necessity of tracing the litigation' which has taken place with reference to the Pack Train mineral claim, and the Legle Tender and Legal Tender Fraction (all of which claims practically cover more or less the same ground) down to the present time. Without discussing the merits of the different claimants to these claims, I shall only deal with the legal aspect resulting from the various judgments which have been rendered, and shortly refer to the alleged facts. The Pack Train was recorded on the 25th day of August, 1890, in the name of Thomas Dunlop, a free miner. He died on the 17th day of December, 1890, and on the 31st day of March, 1891, his estate, texcept this claim, was taken possession of by Mr. Fulton as Official Administrator. The claim itself was taken charge of by the Gold Commissioner. By sec. 131, Consolidated Statutes, ch. 82, such claim was not open to occupation during the claim owner's last illness, or after his decease, and the Gold Commissioner might cause the property to be duly represented, or dispense therewith at his option until letters of administration issued. The present plaintiff was appointed administrator on the 2nd day of July, 1895. What took place with reference to occupation I.] DUNLOP- HANEY. and assessment work from 21st March, 1891, down to 2nd July, 1895, I need not now stop to discuss. The plaintiff from that time was paid $100 a year in lieu of doing assessment work down to 1899. The defendant on the 25th day of February, 1891, registered the Legle Tender claim over the same ground as the Pack Train with a trifling exception. The present plaintiff gave the usual notice of an intention to apply for a certificate of improvements, whereupon the defendant, on the 5th of August, 1897, commenced an adverse action as claimant, to the Legle Tender, but the writ was not served until the 19th of January, 1899, and the Court set aside the service of'the writ and all proceedings thereunder, and the appeal against this order was dismissed on the 2nd of May, 1899, ante, p. 311. This left the-plaintiff at liberty to go on with his application for a certificate of improvements, as by sec. 37 of the Mineral Act any failure to commence and prosecute an adverse action shall be deemed to be a waiver of the plaintiff's claim, and in fact precludes him from liti- I gating it. On the 6th of August, 1895, the defendant advertised his inten- j tion of applying for a Crown grant to the Legle Tender—this was the day after he had issued his writ—adversing the plaintiff's right to the Pack Train, whereupon an action was brought by the present plaintiff against the present defendant and one Enslow, who had located the Olivett claim over part of the same ground as the Pack Train. This action was commenced on the 22nd of October, 1895, asking for the possession of the Pack Train, and a direction that the I defendant was not entitled to the Legle Tender claim. In this action an order was made on the 24th of June, 1898, discontinuing the same without prejudice to the plaintiff's claim in the action. This order, [ the defendant now contends, acted as a waiver of the plaintiff's claim j under sec. 37 of the Bevised Statutes, because it was an adverse action ! by Dunlop against Haney. It has to be borne in mind that Haney jwas at this time adversing the Pack Train, and his action was pending, yet he apparently was not satisfied with this, but made an appUcation on behalf of the Legle Tender so as to compel the present plaintiff to commence an adverse action. This procedure I do not. think was contemplated by the framers of the Act. The order made .discontinuing that action before referred to preserved the plaintiff's jrights. Then the defendant Haney, feeUng doubtful about the Legle Tender claim, staked, in 1897, the Legal Tender Fraction on the jsanie ground as the Legle Tender. On the 19th of June, 1897, an action numbered D. No. 7, was pmmenced* by the plaintiff against the defendant Haney, W. Y. (Clark, Jerry Spelman, and Napoleon Fitzstubbs, as Gold Commissioner. This action was to adverse the claim of W. Y. Clark, who 392 MARTIN'S MINING CASES. [vol. 1900. was the assignee.of Enslow, with reference to the Olivett mineral Apr£28. c}aimj g0 far as ^ encroached on the Pack Train, and for a declaration Drake, J. 0f title as against all the defendants to the ground covered by the Pack Train, and for an injunction. No order was drawn up in this case, but the learned Judge who tried the case dismissed the action on the ground that the evidence of overlapping of the Pack Train with the Legle Tender or Legal Tender Fraction was not sufficiently proven. At the same time he found that the defendant Haney had not established his claim to the Legle Tender or Legal Tender Fraction ; but no reference appears to have been made to the Olivett claim, which was the main ground of action, and no reference was made to the Copper Chief which had been recorded by the defendant Spel- man, also on the same ground. I think if the order had been drawn up instead of rushing to an appeal against the Judge's reasons these other alleged claims would not have been forgotten. From this judgment, ante, p. 369, Haney appealed, and it was ordered that Dunlop's action be dismissed* without costs, and without any direction affecting either party to the respective claims, Pack Train and Legal Tender, or Legal Tender Fraction. (See ante, p. 372.) The effect of this order is that the question of ownership is at large both as regards the plaintiff and the defendant Haney, and also possibly as regards the Olivett and Copper Chief. Before this last mentioned action was brought to trial the defendant Haney, on the 23rd of June, 1896, registered the Legal Tender Fraction, and obtained certificates of work in May, 1897, and June, 1898. and 1899. This fraction is on the same ground as the Pack Train and Legle Tender, and as this claim was also in dispute in the action before Mr. Justice Martin it would be left in the same position as the other claims. To establish res judicata there must be a decision on the subject matter of th» litigation and between the same parties. In Phillips v. Ward (1863), 2 H. & C. 717, the defendants pleaded that they had been jointly liable with B., and that in a former action judgment had • been given in favour of B. Held, bad plea, because it was not shewn that the former action had been resisted on some ground common to all the joint debtors. The subject matter of the litigation is the ownership of the claims Pack Train, Legle Tender, Legal Tender Fraction, Olivett and Copper Chief. On this point there had been no j adjudication. If there had been it would be a case of transit in rem j judicatam, and as such would act as an estoppel against all parties, and prevent them impugning the accuracy of the decision in any subse- j quent proceedings. It is true the question of title was before Mr. j Justice Martin, and he decided that the plaintiff had not* shewn his j boundaries, and that the defendant had not shewn any title. This ] portion of the judgment was varied by the Full Court as above. P ' DUNLOP v. HANEY. Mr. Hunter relies on In re May (1885), 28 Ch. D. 516. That case decided this, that when a petition had been heard and decided on ap^u - its merits a fresh petition could not be presented for the same object Drae without leave of the Court. The distinction is obvious. Here there has been no decision on the merits. If Mr. Justice Martin's judgment stood without the variation made by the Full Court the argument would be effective, but that decision has eliminated the question of ownership, and the decision is equivalent to the leave referred to in the May case. But in addition to this I have to consider the effect of sec. 11 of ch. 33, 1898. That section deals with adverse proceedings, and says that each party to such proceedings shall give affirmative evidence of title to the ground in controversy, and if such title shall not be established by either party the Judge shall so find, and judgment shall be entered without costs. If the effect of this clause is to debar the parties who have litigated the question of ownership of conflicting claims from ever litigating the same again it would be an estoppel against both, and also against their privies, and it would in effect cancel both claims. I, however, decline to express an opinion as to the results which would happen when a judgment has been rendered in accordance with this section, as I think the point i issue can be dealt with on its legal effect. I consider that when the FuU Court expressly excepted from Mr. Justice Martin's judgment any declaration of title as to the ownership of the claims in question they, by impUcation, left the parties in the same position as they stood before the action was brought. The result may be unfortunate in view of increasing the litigation which this claim has already given rise to. I, therefore, overrule Mr. Hunter's plea of res judicata. Note.—See Pellent v. Almour As to sec. 11, 1898, see notes . 134; Fry v. Botsford, post, p. 520. 7. McQuillan, ante, p. 289. MARTIN'S MINING CASES. Cranston et al. v. The English Canadian Co. (7 B. c. 266). Mineral Claim—Locations, Senior and Junior—Invalidity—Re-location—Overlapping—Abandonment—Crown—Reversion. Where a location is' purported to be made on ground already covered by a, valid and existing location, the junior location is invalid to at least the extent of the ground already covered by the senior location. On the lapse of the senior location its ground reverted to the Crown. Failure to record a certificate of work is presumptive evidence of abandonment. The recording of a certificate of work is an answer to the objection that mineral in place was not discovered. Adverse claim tried before Drake, J., at Eossland on 23rd May,- 1900. The facts fully appear in the judgment. W. J. Whiteside, for plaintiffs. J. A. Macdonald, for defendants. May 23rd, 1900. Drake, J.:—This is an adverse action. The plaintiffs claim to be entitled to the Hnion Maid, a claim in Trail Creek Mining Division; which was a re-location of the Chelsea claim. The parties a'dmit the' free miners' certificates of all the persons interested. They also admit the record of the Chelsea claim on 19th March, 1896, and a certificate of work issued 13th March, 1897. The Hnion Maid was recorded 23rd March, 1899, and the lines of this claim coincide with the abandoned Chelsea claim. A claim is held to be abandoned if a certificate of work shall not be obtained witbr in the year. The Chelsea claim having recorded a certificate on the 13th of March, 1897, was a good claim until 13th March, 1898, at which date it was an abandoned claim. The Sea Gull claim was recorded 4th June, 1896, this record was made during the period that the Chelsea was a vaUd claim, the effect of which would be that so much of the Sea Gull claim as overlaps the Chelsea—about 3.87 acres—would be invalid. The defendants contend that the plaintiff has not- shewn that the Chelsea was not a valid claim when he located the Sea Gull, and that he has not shewn discovery of mineral in place either as regards the Chelsea or Union Maid. There is no direct evidence going to the fact that the Chelsea had been abandoned beyond the presumptive I.] RANSTON et J . THE ENGLISH CANADIAN CO. videnct irk was produced subsequent to jient. On the other hand I do not .ants as the time they located and a was a vaUd claim. The certifi- Act of 1896, assumes the title up to 3 defendants' rights to the no certificate of 13th March, 1897, but that is s see how this fact helps the del recorded the Sea Gull, the Ch cate of work under sec. 28 of tl that date to be perfect and therefore the ground in question never matured. Then, with regard to the other objection that the plaintiff has not shewn that mineral in place was discovered by the locators of the' Chelsea, this is also evidenced by the certificate of work; it lay upon the defendants to shew that there was no mineral discovered in place after the production of the certificate of work. In these cases the onus of proof is constantly shifting, the plaintiffs are' entitled to rely on the certificate of work until it is shewn that some statutory essential has been neglected. It appears to me what the defendants rely on is that having located part of their claim on the Chelsea ground, when that claim was abandoned the piece of ground in dispute became their property without any re-location. This, I think, is a fallacy; the right of recording mineral ground is restricted to the waste lands of the Crown at the time the record is marie and a record void i be made valid at a subsequent period by i Crown. The land in question is therefore claim, but was unoccupied land at tl located. The defendants not having any rights to this piece of ground,. I do not see by what right they can contest the Hnion Maid claim— whether that claim is valid or invalid is of no interest to them as they are not legally recorded owners of any portion of this claim. There will be judgment for the plaintiffs with costs. Judgment for plaintiffs with costs. lpa time th e cannot r-verting to the i Sea Gull Hnion Maid was ,'ote.—As to re-location of existing location: in note to which will be found a list of ca .s to abandonment and reversion to Crown: s Creek, &c, Co. MARTIN'S MINING CASES. Grutchfield v. Harbor (7 B. C. 186, 344). in the claim becoming waste lands of the There is an apparent conflict between sees. 4 Appeal by defendant from judgment of Martin, J., in an advc action tried at Nelson on 16th February, 1900. Galliher and P. E. Wilson, for plaintiff. S. S. Taylor, Q.C, for defendant. Cur. adv. vult. March 31st, 1900. »*■ Martin, J.:—In May, 1897, one Beadles ■\ j. ed the May Day mineral claim, and six days sale conveyed a half-interest therein to the def was not recorded till the 29th day of April, time two things had happened, (1) Beadles: had lapsed (on July 23rd, 1897), and (2) th had on the 30th of October, 1897, relocated Equalizer claim. The bill of sale Section 9 of the Mineral 1 free miner's certificate the owi and interests in or to any m: should any co-owner fail to i shall not cause a forfeiture o interest of the co'-owner who. shall, ipso facto, be and becon their former interests " Applying this proviso to this c Beadles' certificate his half-interei , Provided, neverthel miner's certificate, such fail; ndonment of the claim, but he result is t the May Da W GRUTCHFIELD v. HARBOTTLE. his former co-owner, the defendant. If the defendant had then recorded his bill of sale his position would have been unassailable, but he did not do so till some considerable time after the plaintiff had Euli located the Equalizer on the May Day ground. Section 49 of the Mineral Act provides: "Every conveyance, bill of sale, mortgage, or other document of title relating to any mineral claim, not held as real estate, or mining interest, shall be recorded within the time prescribed for recording mineral claims: Provided, always, that the failure to so record any such document shall not invalidate the same as between the parties thereto, but such documents as to third parties shall take effect from the date of I record, and not from the date'of such document." Under this section as between the parties to the instrument there I is no penalty, but as regards others, i.e., "third parties," the penalty | is that the document in question " shall take effect from the date of record, and not from the date of such document." The argument of the defendant's counsel that sec. 49 must be read with sec. 50 is answered by the judgment of Mr. Justice McCreight in Atkins v. Coy (1896), 5 B. C, at pp. 14 to 16, ante, p. 88, ! wherein the effect of the corresponding sections, 50 and 51, of the Mineral Act of 1891, was considered. That judgment shews, it seems, to me, that the defendant having failed to record his conveyance before Jndgment the plaintiff located the claim must suffer the penalty prescribed by Map [ the statute, which is that he can only ask this Court to give effect to such convej^ance from the date of its record, and since, owing to the | plaintiff having intervened and acquired rights as a locator under the Mineral Act, there is nothing that the conveyance can operate on (at I least so long as the plaintiff or his successors remain the owners of the claim), no effect can be at present given to the conveyance. I might add that I am entirely in accord with the remarks of Mr. I Justice McCreight in Atkins v. Coy, supra, regarding the value of ; sees. 50 and 51, now 49 and 50, for the purpose of preventing frauds. j It may be that the section has operated hardly on the defendant in this i case, but it is necessary for the protection of the public that it should j be maintained in its entirety. Taking the above view the question as to whether the plaintiff had I notice of the defendant's interest before he located the Equalizer be- ! comes unimportant, though possibly in view of what occurred at the : trial it is proper for me to state that the evidence was not strong | enough to satisfy me that he had such notice. Section 28 was cited by the defendant's counsel in support of his ': case, but I cannot see that it applies to the circumstances to be dealt i with here. Judgment for plaintiff. MARTIN'S MINING CASES. 1900. May 31. Full Cour Appeal. Argument The defendant appealed and the appeal was argued at Ya on 30th May, 1900, before McColl, C.J., Walkem and Irvi , JJ. S. S. Taylor, Q.C, for the appellant, stated in opening, that his appeal was based on two grounds, (1) that the third parties mentioned in sec. 49 of the Act, referred to parties claiming title to the same mineral claim under a conveyance and (2) in any event, the lands were not waste lands of the Crown because they were in occupation by Harbottle. The Court did not require argument on these points and called on Duff, for respondent: Sec. 49 provides that documents shall take effect as against third parties from date of recording. " Parties" here clearly means " persons." There is no principle of construction upon which any limitation can be imposed by which any class of persons claiming title to the mineral claims can be deprived of the benefit of this section. On the other hand, whether you look at the section itself or at the Act as a whole, the rules of construction require that their full natural meaning should be given to the words employed. Looking at the Act as a whole, it is clear that it is intended that the Eecorder's office shall contain a real and complete record of all acts affecting the title to a mineral claim. The intention is that any person desiring to obtain a title to lands to be used for mineral purposes, shall be able to ascertain by an examination of the ground and inspection of the proper records whether any, and if so, what interests in those lands are held by persons other than the Crown. The rule is the same in the case of persons acquiring title by location and persons acquiring title by conveyance. In the first ease the location must be recorded within the time specified by the Act. In the second ease the conveyance must be recorded within the time specified by sec. 49. Similar provisions exist in the case of certificates of work, and certificates of improvements; and in the case of the abandonment of claims, it is necessary that the document expressing the intention of the miner shall be filed with the Eecorder. The unsoundness of the appeUant's contention appears if one applies it to the case of a mineral claim which has been abandoned. Suppose in the present case that Beadles after having executed the conveyance, had filed an abandonment of the claim and the plaintiff relying upon the abandonment had located the ground, could it be suggested that the plaintiff would not in such a case have been entitled to rely on the record; and suppose that having located the ground he j had conveyed to a purchaser who also relies upon the records, could it j be suggested that the Act intended that the purchaser should not be entitled in such a case to go on the information disclosed by the j I.J GRUTCHFIELD v. HARBOTTLE records ? But clearly the result of the appellant's contention would be that the record would not avail him. If the contention be sound | then in either case the plaintiff, or in the second case, the purchaser Fui would be subject to the same attack which is made here. The general moColl^ result would be that the record instead of being a real record is simply a sham and a trap for those who rely upon it. Again, the Act should not be construed (because it should not be assumed that the Legislature intended that it should operate) in such a way as to lend itself to fraudulent devices to the prejudice of honest locators and purchasers. The construction brought forward by the appellant would subject (in cases such as above mentioned) a purchaser after the lapse of months to an attack under a bill of sale fraudulently executed and'ante-dated for the purpose of making a fictitious title. The contention of the appeUant that the land in question was not waste land of the Crown at the time of the plaintiff's location must stand or fall with his argument on the construction of sec. 49. If the plaintiff is entitled to invoke the protection of sec. 49 then it follows that the defendant had not after the lapse of Beadle's certificate any interest in the May Day claim. The defendant having no interest in the claim and therefore none in the ground, it must be clear that the I absolute allodial title of the Crown to the land in question was neither subject to nor burdened by any other title, interest or servitude of any kind whatever. The lands were, therefore, waste lands of the Crown. The occupation of the defendant amounted to nothing. The rule of law is clear that, the Crown being universal occupant of Crown lands, the mere physical possession of such lands without licence or title does not attract to itself any such legal status as would arise if the lands were those of a subject. It is almost needless to point out that the suggested view involves the proposition that Crown lands in the possession of any person working them for minerals (notwithstanding non-compUance with the provisions of the Mineral Act and absence of title either under the Mineral Act or from any other source) are by reason of such physical occupation not open to location by free miners under the Mineral Act. It seems superfluous to argue that such a proposition is the very negation of the underlying object of our Mineral Act, viz., to secure the benefits of the mineral lands to persons holding and developing such lands in accordance with the provisions I of the Act. He referred to Belk v. Meagher (1881), 104 H. S. 279 at v. 284. Cur. adv. vult. Mai 31st, 1900. The judgment of the Court was delivered by MoColl, C. J.:—The facts are fully stated in the judgment of I Mr. Justice Martin. MARTIN'S MINING CASES. [VOL. There is apparently a conflict between sees. 49 and 50 of the Act. The former provides that an assignment though not recorded within • the time limited shall be vaUd as between the parties, and the latter 3. J- that it shall be " enforceable'' between them only after having been recorded. In my opinion the failure to record did not result in the claim becoming waste lands of the Crown open to location. An assignment is ordinarily enforceable against an unwilling party only by some legal process, and I think that sec. 50 can and ought to be construed as meaning merely that a Court should not afford relief before record of the assignment, thus giving effect to both sections. Appeal allowed. Note.—Cf. the decision of the Full Court in Atkins v. Coy, ante, p. 88; Nelson and Fort Sheppard Ry. Co. v. Jerry, ante, pp. 161, 187; and Stussi v. Brown, ante, p. 195; Alexander y. Heath, ante, p. 333. And see also sec. 130 of the Mineral Act, as to the necessity of the interest of a free miner being " specified and set forth in some writing." It is desirable, in view of expressions in the cases above cited, that the important point involved in this case should be brought before the court of last resort. BJ RAMMELMEYER Eammelmey Pow ineml Claim Uc-location— ■£%»£». *Work—Irreg ilariiy—Affirm Adverse actions tried May, 1900. In the first i 1900, and in the second a< by their statement of clai and Latest Out claims m jgether at Eossland, before Drake, J., in ion the writ was issued on 23rd February, m on 27th February, 1900. The plaintiffs asked for a declaration that the Townsite e vaUd and subsisting locations and that | the Defiance No. 1 Fraction claim was an invalid and illegal location so far as it embraced or included any part of the Townsite and Latest Out claims. The defendants in their statement of defence 12th April, 1900, attacked the location of the Townsite and Latest Out claims, and pleaded that they were not located upon unoccupied or waste lands of the Crown, but upon a valid and subsisting location known as the Parrot claim, and that so far as they overlapped the Parrot claim they were null and void; and by counterclaim they claimed a declaration that the Defiance No. 1 Fraction was a valid claim and that the Townsite so far as it overlapped their claim was an invahd and Ulegal location. In their reply the plaintiffs aUeged amongst other things that the Parrot and Defiance No. 1 Fraction were not properly staked, and that no mineral in place was .found on either of them. The remaining facts appear in the judgment. MacNeill, Q Abbott, for defendant 1 W. S. Dec n, for plaintiffs. Cur. adv. vult. MARTIN'S MINING CASES. [vol. June 1st, 1900. I Drake, J.:—These are adverse actions in consequence of the defendants having given notice of application for certificate of improvements for the Defiance No. 1 Fraction, and were tried together. I will deal with the Bammelmeyer case first. The Parrot mineral claim was located on the 9th day of February, 1895, and recorded on the 16th of the same month. The Townsite was located on the 9th of March, 1895, and recorded on the 18th of March of the same year. The Parrot was prima facie a properly recorded claim, and the chain of title was in aU respects complete down to the 16th of February, 1899, when the record ran out, and certificates of work were issued, for 1896, 1897 and 1898. The Townsite was prima facie a properly recorded claim, and the title was proved in the plaintiff, and certificates of work from 1896, ■ down to July, 1900. The free miner's certificate in respect of the various holders of both these claims was duly proved by the Mining Eecorder. Hnder the circumstances the Townsite claim is a valid claim with the exception of the piece of land which overlapped the Parrot. The Parrot claim was disputed on the ground that it was not properly located, and that no mineral was found in place. Stuzzi, a witness caUed by the defendant, saw the posts of the Parrot in 1895, and passed the No. 1 post daily for some months in doing assessment work on the Fool Hen. A fire ran through this ground in 1896, and destroyed all the posts, but in my opinion the evidence offered is sufficient under sec. 147 to indicate that prior to the fire the claim was properly located, and the place where the No. 1 and No. 2 posts had been was pointed out to Mr. Young by Stuzzi, a Provincial land surveyor, who made the plan. I therefore find as a fact that the Parrot was a lawful claim at the time the Townsite was located and recorded. The Parrot claim having expired, the ground was open for relocation, and K. L. Burnett on the 20th of April, 1890, located the ground as Parrot No. 2, and abandoned the same on the 2nd of December, 1899, and obtained permission to re-locate the Parrot on the 2nd of December, 1899, under the name of Defiance Fractional claim. This claim was located the 3rd of December, and abandoned on the 6th of December, and re-located as Defiance No. 1 Fraction by leave of the' Gold Commissioner. This location of Parrot No. 2 has led to some difficulty with regard to the posts, as there is no clear evidence as to the exact position of the posts of Parrot No. 2, and although Parrot No. 2 is not in existence as a claim yet it is probable that the posts or some of them remain, and they have been the cause of some confusion. J I.] LMEYER AND POWERS The Defiance No. 1 Fraction was recorded on the 19th of December, 1899, and the contention is that it was unoccupied ground, having been part of the abandoned Parrot claim. On the other hand the owners of Townsite claim consider that they are entitled to the of land in dispute, because it wa and the fact that the Pa l the same position as this proposition. The 1 | the Parrot land at the d Parrot must be treated as Parrot claim lapsed the j Townsite. The plaintiff the Defiance No. 1 Fracti j the statutory preUminarii a certificate of work iss obvious that they sought any irregularities in the: the circumstances, and t ed 1 set up this certificate as s proceedings. I refused to defendants must therefor . 1 Fi I location and record. According to the record this claim j Burnett, on the 17th of December, 189£ " Bounded on the south by the Fool He: the east by the Golden Horn, Spitzee Fr. miner. The evidence as regards the post who states that he laid out Defiance 1 placed the posts or notices; he says the posts v visible. He further says he made the survey oi finished it on the 4th of December. -This survc before the claim was located, and it was on thi | tificate of work which was sought to be put u fail to see how this evidence assists the. defend of the Defiance No. 1 Fraction posts. They 3 17th of December, if at all. The defendants' eetly challenged to the posting of this claim and the notices required to be placed thereon by the plaintiffs' reply and.defence to the counter- } claim. No evidence was produced as to the posting of the Defia No. 1 Fraction, and under see. 11 of ch. 33, 1898, as each party has to give affirmative evidence of title to the ground in dispute, and as I find that the Townsite has no claim to that portion of the ground which overlapped the Parrot, and as I find that the evidence adduced in proof of the proper staking of the Defiance Fraction No. 1 is insufficient, there will be judgment accordingly, without costs. and refore was made rey that the cer- applied for. I is to correctness not put up till attention was dir- MARTIN'S MINING CASES. Po Cr. In this case the plaintiff is owner through a chain of title of theM Latest Out mineral claim, which was located on the 7th of March, 1895, and recorded on the 19th of March, in the same month subsequent to that of the Parrot claim. This claim was located two days prior to the Townsite mmeraflE claim, and certificates of work from 30th July, 1895, to the 19th of March, 1900, were produced. Free miners' certificates of all the parties concerned were provedi, A portion of the ground overlapped the Fool Hen, but this is not in question, as the Fool Hen is a Crown granted claim. A further portion of the ground overlapped the Parrot which waa recorded on the 16th of February, 1895. Therefore as regards the Parrot, the Latest Out was a subsequent location, and as I have found that the Parrot was a properly recorded claim the Latest Out can make no claim to the ground covered by the Parrot. When that claim lapsed the land became unoccupied Crown land. Such being the case this piece of land was taken up by the Defiance No. 1 Fraction. The evidence as to this fraction adduced in the prior action of Rammel- meyer v. Curtis was admitted in this action, it also faUs on the same ground. I therefore find that the plaintiff has no claim to the ground formerly covered by the Parrot, and the defendant Curtis has failed to substantiate the title to the Defiance No. 1 Fraction. In this case also judgment will be that neither party has established his claim to the ground in question, and there will' be no costs of either action in accordance with the statute. Judgment accordingly. Note.—As to defectiv Manley v. Collom, post, I As to sec. 11 of 1898: s to Rpan v. Mc< unount in the County Court. iff was a miner in the employ i the County Court (mining ■ personal injuries. Defend- lds that the amount sued for y Court, and that no jurisdic- rion by reason of sub-sec. 2 of is beyond the jurisdiction of the Co m is given the County Court in the I 117, ch. 135, E. S. B. C 1897. Bodwell Q.C, for the motion. Cassidy, contra. Drake, J.:—The action is properly brought in the County Court udder sec. 117 of the Mineral Act and I dismiss the motion with costs, ut on defendants' appUcation I make an order transferring the action o the Supreme Court, costs of such transfer to be costs in the cause. i Burk i > the: MARTIN'S MINING CASES. Be St. Eugene Mining Co. and the Land Begistry Act. (7 B. C. 288). Precious Metals—Grant—Conveyance—Sale of Land. ere the Crown has granted the precious metals in a parcel of land, a ( eyance'of such parcel of land by the grantee of the Crown to a third pei 1 the ordinary form, will pass the precious metals although not specii Beference to a Judge in Chambers under see. 826 of the Land Begistry Act, by S. T. Wootton, Eegistrar-General, as to the effect of certain conveyances. The facts sufficiently appear in the judgment. Barnard, for the company, cited Townley v. Gibson (1788), 2. Term. Bep. 701; Moore v. Shaw (1861), 79 Am. Dec. 123; and The Attorney-General of British Columbia v. The Attorney-General of Canada (1889), 14 A. C 295 at p. 302, ante, p. 52. The Registrar-General in person. June 26th, 1900. Drake, J.:—This is a question submitted to the Court under sec. 82Z> of the Land Begistry Act as to the effect of certain deeds of conveyance. There are no persons interested in the lands in question except the above named company. The company are owners in fee of the Lake Shore mineral claim by a chain of title commencing with a grant from the Crown of the minerals, precious and base, except coal, dated 2nd March, 1898, subject to the exceptions in the said grant mentioned. This grant was of the minerals underlying the whole Lake Shore mineral cla| I including the minerals under Lake Moyie. On the 7th of November, 1898, a further grant was made of the said claim, limited to the land not underlying Lake Moyie, and was a conveyance of the surface rights. This grant was also subject to certain exceptions in the said grant contained. The effect of these two grants is that the minerals, precious and base, except coal, passed to the grantees together with the surf ce rights, subject, however, as aforesaid. In the. subsequent deeds of conveyance from the grantees to he I present applicants the land was conveyed without any general words, | 1 I ■«"° GENE MININf ines and minerals, precious or base, and are pa thisp and mine rt of the the land rals pass with Royal prerogat to the subjec will also conve ut in the Crown. Here the Crown has the grantee. The question now comes ot expressly mentioning the precious as mines and minerals. In my opinion the term " land." The precious metals ive, and the Crown having parted with , the ordinary deed of fee simple con- } aU that the grantor then had vested in -NOT torney-Qeneral 9f British Columbia-v.. Attorney-General of MARTIN'S MINING CASES. Attorney-General v. Dunlop. (7 B. C. 312). Certificate of Improvements—Crown Suit to Set Aside—Fraud—Application for Certificate—Judgment—Delivery and Pronouncement of—Mineral Aefy, sees. 37 and 28; Amendment of 1899, sec. 10. A statement in an affidavit (as to the question of undisputed possession), untrue at the time of taking the oath, but true at the time when the affidavit reached the Gold Commissioner for action thereon, was not a misleading of that: official, the affidavit having been made at his suggestion as a formal compliance with the Act, and he having full knowledge of the circumstances, and so not a fraud within the meaning of said sections. Parties strenuously yet bona fide pursuing what they deem, however erroneously, to be their rights do not come within the meaning of the word Cr.rud in said The application to the Minister of Mines under sec. 10 of the Mineral Act Amendment Act, 1899, need not be in writing. Semble, when fraud is shewn under sec. 37 the curative properties of sec. 28 vanish as against the Crown. A judgment signed by the Judge and inclosed in a letter directed to the proper district registrar, and left in the law Courts in the customary place for deposit in the mail, is pronounced on that day, though it did not reach the registrar in due course of the mail. Action by the Attorney-General to have a certificate of imprq«i ments set aside on the ground that it was obtained by fraud. The facts appear fully in the judgment. The action was tried at Victoria before Martin, J., on 29th and 30th June,' 1900. Cassidy, for plaintiff. Duff, for defendant. Cur. adv. vult. August 15th, 1900. Martin, J.:—To clear the ground for subsequent observations, I shall first deal with two points raised. As to the undertaking that was given in the case of Dunlop v. j Haney, embodied in the order of June 13th, 1899, I have nothing to add to the remarks made on that point in my judgment of September j 15th, 1899 (ante, at p. 344), on the motion to dissolve theinjuncticBi, except that the language Natural Gas and Fuel ( now cited to me, differs- 3ase of Carroll et al. v. Provi of Ontario (1894), 16 P. E. )m that used in the undertakii Then as to the question as to wben my judgment (on the raised at the trial in Dunlop v. Haney, ante, at p. 369), wa nounced or deUvered. After the case was heard at Vancouver, I reserved judgment, and after further consideration arrived at my decision, which was finally reduced to writing, dated, and signed on the afternoon of August 11th, 1899 (Friday). That same evening I en- ewsed the said judgment in an envelope with a covering letter directed to the District Begistrar at Vancouver, and placed the said envelope on a table in my room at the Law Courts, Victoria, whence my letters are in due course taken to the post every evening. The letter should have reached the District Begistrar early the next morning, according to the proper course of the then mails, but strange to say the office receipt stamp of the Vancouver Begistiy, stamped on the judgment, bears date August 15th (Tuesday), and no .trace of the accompanying letter can be found. Under such circumstances it is impossible to say where the delay arose, but I am inclined to beheve, from the absence of the letter, that it occurred in the Vancouver Begistry. On the one hand it is contended that judgment was not . prononnced or delivered till the 15th, and on the other it is urged that the 11th is the date. There is no rule of Court denning what constitutes pronouncing or delivering a judgment which is reserved after trial. In the case of a judgment of the full Court the matter is regulated by statute—sec. 92 of the Supreme Court Act. The writ in Dunlop v. Haney issued out of the Victoria Eegistry, but the case was tried at Vancouver. Our present system of registries is pecuUar and awkward. At one time there was a principal registry at Victoria with various sub-registries—now there are several independent registries in charge of independent " District Eegistrars." The office of '■■■ Begistrar," under that specific term, exists now only in relation to the Full Court—Supreme Court Act Amendment Act, 1899, see. 14. If a case be tried by a Judge on circuit in, say, Kamloops, and judgment is reserved, it would be practicaUy impossible, and also absurd, | to require counsel to come down to, say, Victoria, to hear judgment delivered in open Court, and it would be equally impossible (in view of the proper carrying out of the judicial system) and absurd for a Judge to make a long and expensive journey to Kamloops for the sole purpose of deUvering judgment in like manner. In such cases my | practice has been, after completing my judgment, to send it to the District Begistrar at the place of trial, with a direction that it shall ; be communicated to the parties. That, in my opinion, according to | the exigencies of practice in this Province constitutes a pronouncement 410 MARTIN'S Mil Id' A iust 15 of tlae judgment just as much as the reading of the judg u— ' Court, and it has for many years been so considered. Martin, J. that it may not also be pronounced in other ways, not nee consider. ■ In the present case when I finaUy settled, s and posted (or its equivalent) my judgment on the lit I had finally determined the matter so far as I was c other words I had pronounced judgment on that day, ai the action should not be prejudiced by any delay in the post-office or otherwise. Supposing that after putting i the mailing place in my room I had suddenly dropped it be said that I had not delivered judgment, and that it could not! be acted upon ? There can only be one answer to such a question— the judgment had already taken effect. As was said in Holtby v. Hodgson (1889), 24 Q. B. D. at 107: "Pronouncing judgment is not entering judgment; something has to be done which will be a record, and so the judgment that the Judge has pronounced is the judgment which is to be entered. No subsequent ceremony, no sign-, ing of judgment, is now necessary." In the Encyclopaedia of the Laws of England, Vol. VII., p. 114, article, Judgment, it is said: " The term is in strictness applicable to the formal adjudication of a Court as entered and recorded in writing. It is also frequently applied to the oral or written opinions of the Judges pronounced when directing judgment to be entered in a pas! ticular way." See, also, in Ontario, Kelly v. Wade et al. (1890), 14 P. E. 66;' and Davidson v. Taylor, lb. 78. But there is an additional circum-| stance in this case which supports the above contention. In the said case of Dunlop v. Haney an affidavit was made on the 16th day of September, A.D. 1899, by Mr. Senkler, a member of the firm of Wilson & Senkler, the agents for the defendant's solicitor, Mr. John Elliot, in that action, and that affidavit contains the following paragraph : "(3) That judgment was pronounced herein on the 11th day>$§ August, 1899." In this present action it is sought to impeach a certific provements, and it is founded upon sees. 37 (as amended) the Mineral Act. That portion of sec. 37 which is prims 38 of •elied It is cont and the ques that may be proved. It yet bona fid< of the Gold Co as to the second ground. reached the Gold Commisj s it true at the time it was mmunicated to the official Farwell made, that affidavit at hi with the Act: I am quite una! The legal dispute so far as the 1 what the Gold Commissioner alor when the proceedings were on fib upon, for the time at least, and . his certificate, and it was issuec" Mines under the circumstances unable to find that there has beei either the Gold Commissioner or of the state or result of the Utig ell - I in mind how very complicated that litigati ar I have not alluded to the letter and telegr ;s, dated the 11th and 14th of August, re f that in view of the statement of the Gold i later: t ras it true when But it is quite ot misled in the hat he acted on i case, and that ratal compliance i any deception. , hich is ce of, and then only ad been adjudicated , position to demand . to the Minister of said official. I am i, and assuming that his view surprising when it m has become, am of the Minister rpectively. I need Commissioner that MINING CASES. [vol. he had before got written instructions from the then Attorney-General not to issue the certificate, but that after getting the said later communications he did so, I am of the opinion, that with the knowg ledge the Crown had of the circumstances, this action cannot be mainjf tained. I have not overlooked the objection that the requirements of soK 10 of the Mineral Act Amendment Act, 1899, in regard to the appUcation to the Minister of Mines, have not been complied with. It is; only necessary to say that there is nothing that requires such app3#, cation to be in writing, and I find that Verbal appUcation was re- - peatedly made, and that otherwise the objection is nob supported by evidence. The action should be dismissed with costs. Action dismissed with costs. WISE v. CHRISTOPHER tion of a claim has been fraudulently changed fro void, sec. 28 of the Mineral Act has no applic: " support of a so-called location which never exis 3 at Atlin before Martin, Adverse action tried at the i on 6th September, 1900. For the purposes of this report it is sufficient to state that the plaintiff sought to establish his title to the Yellow Jacket mineral claim, and that the main defence was that that claim, as now staked and located, according to the survey before the Court, did not cover' the ground as originally located: in other words, that the locator or some one acting for him had fraudulently changed the original location, or, as it was expressed in mining parlance, had " swung " the claim. Jenns and Grant, for plaintiff. Cassidy and Mason, for defendant Christopher. D. G. Macdonell, for defendant Clay. At the conclusion of the evidence the question of fact was determined in favour of the defendants, whereupon the plaintiff sought to rely upon the plea that all defects in title were cured by sec. 28, he having recorded certificates of work; which point wa?s reserved for further argument which took place at Victoria on 7th February, 1901. Jenns and Grant, for plaintiff. We rely on sec. 28 as .curing all irregularities; though sec. 16 says'it is unlawful to'move No. 1 post, that does not operate as a forfeiture of the claim; Callahan v. Coplen (1900), 30 S.'C 555, is distinguishable. Mason and D. G. Macdonell, for defendants. Martin, J. •—The plaintiff having " swung " his claim by altering the position of his initial post—a grossly fraudulent act—has a title (?) which is radically defective; and the claim he has surveyed and' now seeks to estabUsh not being that which he located he cannot successfully invoke sec. 28. I declare that his location so far as it conflicts with the defendants' claim, is an invalid location. I find that the defendants have established their titles. The action is dismissed with costs. Note.—As to effect of sec. 28, see Manley v. Collom, post. As to defects in location, see list of cases in note to Manley v See also Cleary v. Boscowitz, post, p. 506. MARTIN'S MINING CASES. Nelson and Fo ) By. Co. v. Dunlop. id, qua Ian d, cann ot obta m an injuncti aim who h ned ac rant there under, even tl ough the ob Motion for injunction argued before Ii )00. The facts appear in the judgment. Martin, Q.C, for the motion. Bodwell, Q.C, contra. , J., on 30th October,. Cur. adv. vult. October J.:—The defendant is the holder of a cert respect of a 3 Irvin provements dated 14th August, 1899. located the 21st of August, 1890, recorded the 2 The plaintiffs, who hold a Crown grant dated 8th issued under the provisions of the Nelson and Fort Shep Subsidy Act, 1892, of certain lands in Kootenay des schedule to the said grant, but from which said grant the "lands held prior to the 23rd of March, 1893, as miner obtained ex parte from the learned Chief Justice an i straining the defendant Dunlop from applying for a Cr the Pack Train mineral claim and from receiving the I i the epted grant to ntil the 23rd of October, and until the no the injunction shall have been he The plaintiff now by consent i the hearing. At the argument it v entitled to a Crown grant of £ tion then to be made to continue ■ rd and determined, oves to continue the injunction to is conceded that the defendant was i sort or other. It was as to the form of the Crown grant that the plaintiffs were apprehensive. The defendant says that he is not aware of the extent of surface right, if any, attachable to the mineral claim, but that he expects to receive1 i FT. SHEPPARD RX. been pr claimin Court I roperly attachable or i mistances of this case. mident to a Crow plaintiffs have not Iin : to compel persons '•rant, to come into rained, which certi- 11 in the opinion of ficate is to shew on its face what the applicant the Court be entitled to possess. By statute originally sec. 37, of ch. 34 of 1896, the plaintiffs were required to commence their action within sixty days to determine the right of possession, or otherwise enforce their said'claim. They should have taken advantage of this procedure or in the case of an action already pending by injunction (see Stannard v. Vestry of Saint Giles, Camberwell (1882), 20 Ch. D. 190) as suggested in Nelson v. Jerry, 5 B. C 396, ante, p. 161, in June, 1897, when Dunlop advertised in respect of the Pack Train, or at any rate before the certificate of I Mr. Martin contends that they could not oppose the issuing of that certificate and therefore this section does not apply—but observe the words of the Act—they are not confined to the opposing of certificates, but deal with an adverse right of any kind, either to the possession of the mineral claim or the minerals therein, and it is obvious from the [ subsequent wording of the section that the judgment or decree is to be modified so as to shew what the applicant is entitled to. The appUcation is refused with costs. Application refused with costs. 1 MARTIN'S MINING CASES. Anderson et al. v. Godsal. (7B. C. 404). Mechanics' Lien— Miners employed by a bond-holder who has a working bond on a mine by which if the mine were worked a certain number of men were to be employed by the bond-holder and the proceeds applied on the purchase, have in the absence of an express request by the owner, no lien on the mine if the bond-holder does not exercise his option of purchase. The words " at the instance " in sec. 7 bear a different construction from thds^ " at the request" of the owner in sec. 4. A cook cannot have a lien. Observations upon improper affidavits. Decision of Forin, Co.J., reversed, Ibving, J., dissenting. Appeal by defendant from the following judgment of Forin, Co.J., in an action (tried 8th January, 1900) to enforce mechanieff* ; liens. Febru 2nd, 1900. This is an action brought to enforce mechanics' liens for work j done on the Little Phil mineral claim. One Thomas A. Coleman, took what is called a working bond on the property, that is, he obtained from the owner, the defendant God- sal, the privilege of working the mine, and from the proceeds he was to pay the expenses and Godsal was to be paid $25,000.00 from tirar&t proceeds as the purchase price of the-mine. Coleman was to mad to Godsal on the 10th day of each month full and detailed statements of the work.* It appears from the evidence that Coleman hired men to work at the mine, that it was generally known .that Coleman had no money of his own to pay the men, and the impression was that he was manager for the owners. On the other hand, Coleman says he hired the men to work for himself in pursuance with the agree- ment. The wages of the men being due and unpaid they filed liens under j the Mechanics' Lien Act, B. S. B. C. 1897, ch. 132. There is no dispute as to the amount of wages due to the men. and the only objection to the form of the liens filed was that the j residence of the claimant and owner was not sufficiently stated. The j claimants are working men, who after leaving the mine, came to Nel- j son and through their solicitors filed the liens. I am of opinion that I *It was also provided by the agreement that Coleman might include as part j of the expenses of working the claim, §100.00 a month for his services as super- I intendent, and either party was at liberty at any time to employ a mining I engineer to report and advise regarding the working of the claim, the expenses I thereof to be reckoned as part of the expenses of the mine. 11 ANDERSON I in a small town like Nelson that the residence is sufficiently stated 1900. as residing in Nelson. These men had no place of residence in the J3ecember a town, living at hotels and restaurants from day to day. The owner Fuel Cora is stated as of Pincher Creek, N.W.T. It is, I am sure, a much McCoTZT c smaller place than Nelson, a small village, I understand, so the rule which might apply to a large city as to giving the street and number of the residence would not apply to small towns and villages. The main argument advanced by the defence was that the bond was really a lease and that only the lessee's interest was liable for unpaid wages. He cited some cases from Barringer and Adams' Law of Mines. I do not consider the bond in question partakes of the nature of a lease. In the interpretation clause sub-sec. 3, the word owner is defined. In Holden v. Bright Prospects Gold Mining and Development Co. (1899), 6 B. C 439, ante, p. 292, the Full Court has decided that a j lien for mining work done can be claimed. Section 4 provides for work in a mine and sec. 7 enacts that the I owner of lands having knowledge is deemed to have authorized the j improvement (as to meaning of improvement see sub-sec. 4, sec. 3). Coleman says in his evidence that he advised the owner every month how work was progressing, thus bringing the owner within sec. 7, as to knowledge. Further, no notice was posted on the land that the owner would not be responsible. I am of opinion that the liens should be enforced against the min- eraJNrlaim. I accordingly gave judgment for the plaintiffs with costs. The appeal came on and was partly argued at Vancouver before McColl, C.J., Walkem, Irving and Martin, JJ., on 28th and 29th May, 1900. The Court requiring further argument on some points, the appeal was re-argued at Vancouver, on 23rd November, 1900, before McColl, C.J., Drake, Irving and Martin, JJ. Davis, Q.C,,and Whealler, for appellant. Duff, for respondents. App Cur. adv. vult. December 19th, 1900. McColl, CJ.:—The defendant, a mine owner, gave to one Coleman an option to buy it for $25,000. He was to be at liberty to work ! it; and, if he did so, the net proceeds were to be applied in or towards payment of the price. He agreed, if he worked it, to keep at least ten men constantly employed. No other provision was made for the working of the mine. 418 , MARTIN'S MINING CASES. [Vi McColl, C.J. 1900. The plaintiffs are labourers, and claim Uens for work done in the December 19. ja^ while employed by Coleman in working it under the agreement. Full Court. He did not exercise his option. It is not clear upon the notes of the evidence whether the work was stuping or was development work; but assuming that it was of such a kind as to have been within the Act, yet, in my judgment, none of the claimants is entitled to the lien claimed. It is admitted that nia§e of them worked at the express request of the owner, and that no request by him can be implied in the circumstances. Section 4 the% fore does not apply. But it is contended that the claimants are within sec. 7. To entitle them to succeed under this section it is necessary to construe the words " at the instance " to mean " at the request" and to apply them to the persons doing the work instead of to the work itself. And even > this is insufficient without extending the words of the section to the j case of work actually done at the instance of the owner and so wiphig out the provision in sec. 4. But this would be to make the benefit j of the Act wholly illusory, for the owner in order to escape altog ther j from it would only have had to give the notice provided for. Section 7 does not in terms apply to, nor, in my opinion was it j intended to include, work done at the instance of the owner al eady j provided for by sec. 4. I know of no principle upon which an enact- j . ment that a certain thing is to be held or deemed to be the Act of a person ought to be construed to apply to the person whose act it in fact is; nor is it easy to understand why a lien claimant, not h ving J worked at the request of a supposed owner, should be in a better position than if the work had been done at the instance of the owner him- j It seems to me plain that sec. 7 only appUes where the own r has | not authorized the construction of the building or other improv and was intended to provide for the case of work done under an ment with a supposed owner, and to place persons engaged in such I work in the Uke position as regards a lien as if the supposed wner I was the actual owner whenever the latter, knowing *that an improve-1 ment was being made upon his land, not under any agreemen with I himself but at the instance of some person assuming to act as wner,| stands by saying nothing. I have not thought it necessary to discuss the case of the coo , who admittedly, cannot recover. I must remark upon the circumstance that a form of affidav com-j mon to all the cases in appeal was apparently adopted for the purpose! of bringing the claimants within the Act without regard to th facts.l It seems to me that the trial Judge in such a case might p operlyl require some explanation at the trial, and, failing a satisfact ry ex-I planation, deal further with the matter. M ANDERSON et al. v. GODSAL. Drake, J.:—The defendant.is the owner of a mining claim known r as the Little PhU mineral claim. On the 1st of June, 1899, he entered Deoe into an agreement with Thomas W. Coleman to seU the claim on cer- Fdli tain conditions. Coleman had leave to enter and extract ore, and keep at least ten men constantly employed, and the net value of the ore was to be paid into the defendant's account to go against the purchase money; but it was optional with Coleman whether he would complete the purchase or not. Coleman worked the mine for some time, and then threw it up, leaving several workmen unpaid, who thereupon filed hens against the mine. The question is whether under the construction of the Mechanics' Lien Act Godsal's property is liable for the hens. First I wiU consider who is entitled to a lien. Every contractor, sub-contractor or labourer, doing work inter alia in connection with excavating, filling or grading any land in respect inter alia of a i at the request of the owner of such land shall have a lien for the price of such work upon the buildings, and the land and premises occupied thereby, subject to the proviso that such lien shall affect only such interest in the said land as was vested in the owner at the time the contract was made, or any greater interest which the owner might acquire during the progress of the works. The governing sentence here is the request of the owner. Work done without such request does not give a lien. We then turn to the description of owner. In its primary meaning, it means the person in whom the property on which the work was done is vested, but the Act extends the meaning so as to include a person having any estate or interest, legal or equitable, in the lands upon which the work has been ; done, or on whose behalf, or with whose privity or consent, or for whose direct benefit any such work is done. Apply this definition to the facts here. Coleman had an equitable estate in this land at the time the work was done. It was for his benefit and at his 1 the work was done. The request of Coleman to the workmen was not the request of Godsal, and the Court has to be satisfied that Godsal either directly or indirectly contracted with the lien holders. The Act is one which must be construed according to the language used, and not extended to cases which are not within the scope of that language. The Act specially provides for works done on mortgaged premises, and gives a formula for ascertaining to what appreciated value the liens are to attach. But even here the assent of the mortgagee in writing must be given. Then we come to section 7. That section makes the owner, or his agent, or the person having any right in the land, Uable for Uens unless he gives notice of non-responsibility. To construe this section as meaning that any owner could avoid the Act altogether by giving notice, would render the Act void. To construe it so that MARTIN'S MINING CASES. [v. under any circumstances the work will be held to be done at the I instance of the owner, whether he requested it or not, conflicts withal c- sec. 4. I think the meaning of the section is limited to those eases where when improvements are done upon land by mistake the owner stands by in order to take advantage of the work done. In such cases the work shall be held to be constructed at the instance of the owner. The Legislature draws a distinction between the owner and his authorized agent and the person having, or claiming, any interest m the land. Coleman falls into the latter class. He had an interest in this land at the time the work was done. The description of the owner and the person claiming any interest in the land is in the disjunctive, thus making a distinction between the two classes. This section read with the proviso in sec. 4 renders it reasonably clear that the interest of Coleman which he had during the time the work was going on was liable to the lien, and not the interest of the owner who was bound to convey to Coleman on certain conditions being fulfilled. I notice in all the affidavits that the lien holders do not hesitate to say that they were employed by McLaren as foreman for the defendant. This is contrary to the fact, as the time checks shew. Such mis-statements in affidavits filed for the purposes these were, deserve the severest reprobation. In my opinion the appeal should be allowed with costs. Irving, J.:—I have arrived at the conclusion that by sec. 7 of the Act the defendant Godsal must be taken to be the person " at whose instance " the work in respect of which the lien is claimed, was done. In construing that section we must, in my opinion, extend the words " other improvements mentioned in the fourth section " by referring to that section and seeing there what the " other improvements " are. In terms, we find " excavating land in respect of a mine," and those words seem to me to be applicable to the present case. With regard to Godsal's liability—the agreement between him and Coleman provided for Coleman doing the work continuously with a stated number of men—in a miner-like manner—subject to the inspection of Godsal's engineer, with power to Godsal to take possession if he was dissatisfied with the work. How can it be said that tjps work was not done for Godsal's direct benefit? Martin, J., concurred with the Chief Justice. . Appeal allowed with costs. i performed Note.—As to when ■obtaining of a condition precedent, see Leroy j In Davis v. The Crown Point ivisional Court came to the same d S B. j L. R. J OUTHERN RY. < In re Water Cl Star Mining Co. e Motion for directions as to hearing of petition, under sec. 36 the Water Clauses Consolidation Act, to set aside a water record nted by the Gold Commissioner at Nelson to the B. C Southern ilway Company. The record was subject to the rights of the city Rossland, the holder of a prior record. Gait, for the Centre Star and War Eagle Mining Companies, for Daly, Q.C, for the Le Roi, a mining company, not served with the petition, but affected by the decision appealed from, asked for leave to appear and be heard on the appeal under sub-sec. (/) of sec. 36, when MacNeill, Q.C, for the B. C Southern, objected that the application was premature and if made at all should be made on the hearing of the appeal. The objection was overruled. Daly then read material shewing Le Boi Company was affected. MacNeill: The month allowed for appeal has expired and anyone not having given a notice of appeal within the month should not now be let in. As no excuse is given for not having appealed, the Court should follow the practice in adding parties under Order XVI., r. 11. If-the causes of action are distinct, or if inconvenience or difficulty I v8% result, or if a plaintiff is barred by a statute, parties wiU not be joined. See Annual Practice 143, and The Germanic (1896), P. 84. Barnard, for the city of Eossland. -Le ppeal heard c to it heard at Eossland on 18th oi Company is entitled to be f one month does not extend Order accordingly. MARTIN'S MINING CASES. re Water Clauses Consolidation Act, 1897. 3le Consul. Mining and Dev. Co., Ltd. et al. v, Brit. Col. Southern Et. Co. et al. (SB. C. 374). cord—Application for (a) by Mining Company to Gold Commis- 6) by Industrial Company to Land Commissioner—Pending Appliea- risdiction — Notice of later Application to prior Applicant — Water Posting " in office "—Evidence and Procedure on Water Applicaiimt- Clauses Consolidation Act, 1897. application for a record of water for mining purposes is pending Gold Commissioner, an application for a record of the same water ;stic, mechanical and industrial purposes should not be adjudicated an Assistant Commissioner of Lands and Works without express the applicants before the Gold Commissioner, itice posted on a board usually used for such notices, in a hall lending Doms occupied by the Commissioner and his staff, is posted " in the the Commissioner within the meaning of sec. 9 of the Water ClauSl Petition by way of appeal from a decision of John A. Turner, Assistant Commissioner of Lands and Works at Nelson, whereby he granted on 12th November, 1900, to the railway company 400 miner's inches of water out of Murphy Creek. On 6th August, 1900, the War Eagle and Centre Star Companies obtained from the Gold Commissioner at Eossland written permission to apply for record of water from Murphy Creek and Eock Creek, and they thereupon made application for the same by posting the requisite notices of their application returnable before the said GjiP Commissioner, on 10th September, 1900. Before the return of the application the petitioners learned that the Corporation of the city of Rossland (holders of a prior record) and the British America Corporation were interested therein, and at their request the applications were adjourned until 13th September, when a further adjournment took place until 10th October. On 26th September, the solicitors j for the railway company, the city of Eossland, the War Eagle and I.] WAR I GLE MINI! J CO., LTD. v. B. C. SOUTHERN R. W. 00. teld i nference, when the sub-' r records was discussed, and i I Februs Centre Star Companies and jject of pending appUcations parties expressed the view that some equitable arrangement should MoColl, be come to whereby each party interested could secure its reasonable •equirements. For statement of proceedings at this meeting see post, p. 424. All parties met again on 10th October, before the Gold Commissioner, when the petitioners' applications were adjourned until the 16th of November. On 8th October, the railway company ob- ' ined from the Assistant Commissioner of Lands and Works at Nelson, leave to apply for a record of 400 inches of water out of Murphy Creek, and thereupon posted the usual notices. No notice was served on or given to the War Eagle or Centre Star Companies, and the poTOfelposted -" in the office " of the Assistant Commissioner at Nelson was posted on a notice board in the haU leading to the room or rooms pecupied by himself and his staff. On 12th November, pursuant to the notices, the railway company applied to the Assistant Commis- eioner, and the grant appealed against was made. The record stated phat the water was to be used for domestic, mechanical and industrial purposes, in connection with the smelter and other plant and ap- pUances belonging to the company at the town of Trail, and for purposes incidental thereto. At the same time the railway company ap- pUed for and obtained records of 400 inches of water out of Stoney Creek and Trail Creek. I Paragraphs 16 and 17 of the appellants' petition were as follows: j | (16) Your petitioners allege, and the fact is, that on the hearing pf the said appUcation at Nelson no evidence was furnished by or pn behalf of the respondent railway company; (1) As to the volume pf unrecorded water in said Murphy Creek avaUable for diversion; (2) As to the amount of water reasonably required by the respondent company for the purposes of their applications: (3) Or that your petitioners, who were to the knowledge of the respondent company md corporation parties interested in the said appUcation, had notice pf the terms of such application or of the date thereof, or of the time pn which it was made. I I (17) The points of law relied upon by the appellants were as pUows: (1) The furnishing of evidence upon each of the matters mentioned in paragraph No. 16 hereof was required by the Water plauses ConsoUdation Act, 1897, sees. 13, 14 and 18, and was as Regards each matter a condition precedent to be observed by the respondents before the said record could lawfully be granted; (2) that py reason of the absence of such evidence the respondent Commis- ioner had no jurisdiction to grant the record; (3) that it was the luty of the respondent company to adduce such evidence, ■ 4g^ MARTIN'S MINING CASES. [vol. 1901. failed to do so, the record ought to be cancelled; (4) that the pro- e ruarjy • cge^gg before the respondent Commissioner failed to shew the MoColl, C.J. amount of water required by the respondent company, and yet they . have obtained grants of an enormous amount of water comprising^ all, and more than all, the available water in or near Eossland, and the said record should be, for this reason also, cancelled; (5) the conduct of the respondent railway company and the respondent corporation in applying for and consenting to the said record without notice to your petitioners was, under the circumstances, a gross breach of faith, and for this reason also, the record, upon equitable grounds, should be canceUed." The appeal was argued at Eossland, on 22nd February, 1901,. before McColl, C.J. Gait, for the War Eagle and Centre Star Companies (appellants). Davis, E.C., and MacNeill, K.C., for the Bailway Company (respondents). Abbott, for the city of Eossland (respondents). Daly, K.C., for the Le Eoi Company.* At the conclusion of the argument His Lordship delivered judgment orally as follows: Judgment McColl, C.J.:—As I have no doubt what I ought to do in the matter of this appeal, and as it is- of the utmost importance as I understand it, to the parties, that a final determination of their rights should be had, as soon as possible, I shaU give my judgment now. On the hearing of this appeal, it was formally admitted that the appellants have the necessary status to bring the appeal, and that their application for a grant or record, was pending at Eossland from the 6th day of August last until the granting of the record complained of and now appealed against. And further, that Mr. Gait's Note.—The statement made by Mr. Gait was as follows:: " In reference to paragraph No. 9 of the petition, I may mention that the conference took place in accordance with the terms of a letter received by me from Mr. J. L. G. Abbott and dated the 24th day of September, 1901. TMe letter was written on behalf of the City of Rossland. [Mr. Gait here read the letter referred to.] Now, what took place at that meeting, was this, my learned friend Mr. Abbott will correct me if I make any misstatement in reference to it. I myself had been out with the party who posted the notices for the War Eagle and Centre Star Companies, and assisted in posting two of- the notices fifteen miles from here. I was satisfied from looking over the streams themselves that there was ample water for everyone. I made that statement to the gentlemen present at that meeting, and thought that if we could only arrive *Let in as subsequent applicants by order of Maetin, J.—see ante, p. 421- | J statement as to the facts t ence to this matter, is cor: Fo the i Lup i the ?PeUan , Mr. Gi It forcibly haU lead ing to the room, or one of the rooms, occupied by the Assistant Commissioner and his staff, was not posted in accordance with the requirement of the Act, not having been posted up in the room or one of the rooms. The word f office " as used in the Act in its ordinary .-eiise. simply means a place where the public business devolving upon the Assistant Commissioner, is transacted. It cannot, therefore, be confined to any one particular room or rooms in which the Assistant Commissioner himself or his staff may be found during the office hours of the day. Assuming that he himself had been a'ccustonied to. use a portion of the hall for the reception of the public at stated times for the transaction of some kind of business, there can be no doubt that such use would make that portion of the hallway, a pari of his "office" within the meaning of the Act. It appears to me perfectly clear that aU portions of the building publicly and definitely set apart and used by the public for the transaction of business would necessarily form part of the " office " within the meaning of the Act. Now, what has happened here? The board in question has always been publicly recognized and used for the purpose of posting up the notices in question and is the only place, and the Assistant Commis- | siener himself would necessarily use such portion of the building, and urn this board for the purpose of perusing these notices when it would be.necessary to do so, and this being the case, it seems to me perfectly j clear that I cannot give effect to this objection. at son le equitable arrang ment i nstead of figh better and for the < nothin g for us to have a that statement ca fight o\ i be ve er if we could rifled. It wa who \ vere there then at eeting, and t adopt some line of action ich we could : the water was tha t Mr. L aly, who repn unable to be present and therefo re it was sug over the water, it would be of Rossland, that there was t an understanding. Of the opin 1 of e "Mr. Mr. ; Who repi It: Mr. J. that we did not equitably arrange for a distribu- esented the Le Roi Company, was gested that the meeting should be ily was able to come, and this was agreed to. sented the British Columbia Southern Railway Com- . Macdonald. ate that he made such an agreement as that? Mr. ;here was any absolute agreement, it seemed to be "Mr. Davis: Do you si Calt: I do not state that satisfactory to everybody. " Mr. Davis: Did Mr. Macdonald do anything binding the British Colu Southern Company? Mr. Gait: Only to appear in the same- friendly att that all parties assumed on that occasion. Then in two or three weeks si undertook to go over to Nelson and make an application there, without notifying any of us. We did not take any further steps because we had the prior application and we thought the matter would stand simply as it was. : Did the British Columbia Southern apply for any adjournment? \(M: Not t I am e of." MARTIN'S MINING CASES. [vol. Mr. Gait further urges that he should have been specifically notified of the time and place when the proceedings before the Commis- r at Nelson were to be carried on. This is a question of some difficulty, but in my opinion, the Act does make this necessary. Section 13 of the Act applies to every application which is to be made either to the Assistant Commissioner of Lands and Works, or to the Gold Commissioner, and it says that upon the application for the record, the Commissioner or other person, must regard existing rights and records of land and mine owners and also as to " pending applications." Nowy Mr. Dayis very forcibly contended that sec. 18, sub- see. 2, which does in terms, provide for notice to parties in interest, cannot possibly have reference to the record in question, the proceedings to obtain which were taken under sees. 13 and 44 of the Act. I do not at present think that this is a proper construction of the Act, but at all events it seems to me that if the Commissioner is to have regard to the persons mentioned specifically in sec. 13, this means that they are to be entitled to appear before him on the application, and that they are singled out from the general public in regard to whom the posting up of the notice is sufficient, and that they must in some way be afforded the opportunity of urging any rights they have or may think they have, before the Commissioner, without which it is unintelligible to me, how he could possibly give proper regard to them. This being so, if Mr. Davis' contention is not correct, and I cannot say that I have a settled opinion either way, but without i consideration, I think that this affords no reason for the Commissioner deciding the matter behind their backs. The difficulty has j arisen, of course, from the circumstance that these two Commissioners j have conflicting power, and that there is no provision made in the I Act for them to keep each other informed as to applications pending before them. There is no doubt in this case that the applicants knew j of the pending application of the appellants when they continued ] the proceedings for their record, and I think it is a fair inference j from the evidence that the Commissioner at Nelson was ignorant of I such application, but whether so or not it does not materially affect j the matter as I view it. I think I ought to refer the matter of the records back again to I the Commissioner at Nelson for the purpose of enabling him to con- I sider the alleged rights and interests of aU other persons, parties I v before the Court on the present appeal, upon due notice to them j of the time and place, when and where the proceedings will be carried ] on, with power to him to alter or vary the orders or records he has I made in any way necessary to meet the equities as they may appear I upon a fresh consideration of the case, as justice may require it. With reference to the point urged by Mr. Gait that the Commis-1 sioner should have taken evidence, I do not think that this is neces- Lj^WAR EAGLE MINING CO., LTD. v. B. C. SOUTHERN R. W. CO. sary where the appUcation is not contested, as for all that appears the Commissioner, by personal examination of the place or other * means, may have satisfied himself "as to the propriety of granting the IV record appUed for. I may add that I think in a contested matter the Commissioner ought to have the evidence ever before him, taken in sherthand, and that any person interested is entitled to have a copy of the evidence furnished to him upon payment of the reasonable charges therefor, and also to have a written statement of the reasons, if any, for the decision of the Gold Commissioner, or Commissioner, for otherwise it is entirely impracticable when the matter comes before the Court of Appeal, to deal intelligently with it. The further hearing of any matter arising out of or being incidental to this application, including costs of all parties who are or might be in the same position, possibly contingently depending upon the result of a fresh consideration of this matter by the Gold Commissioner, or Commissioner, will stand over to be brought before any Judge who is competent to deal with it, as soon as possible. Judgment accordingly. MARTIN'S MINING CASES. March 5. JFull Court. (8 B. C. 42.) ions, Junior and Senior—Re-Location—Invalidity^-rOmfc eversion—Lease from Crown—Interest of Free MinefM ;—Irregularity—Mineral Act, Sees. 24, 28, 8j and 37; sec. 11 — County Court Jurisdiction — Objection not eal—Waiver—Mineral Act, sec. 117—County Courts Ad, I County Court. corded for the inty Court at the trial, it e no pleadings, yet special A location made upoi lapse of the senior junior location. Unless objection is taken to the jurisdiction of a Coi will not be considered in appeal. In mining cases in the County Court, though there ar defences must be raised by notice before trial. Per Mabtin, J. (dissenting). If a location is made over an existing valid location, and such valid location subsequently lapses, the junior location having been utterly void ab initio, to the extent at least of the overlapping, acquires no title to any part of the senior location. The most that sec. 28 can do is to cure defects, it cannot create a mineral claim either wholly or in part. The words " adverse proceedings " in sec. 11 of the Mineral Act, 1898, apply to all mining cases wherein there are mineral claims in conflict under the Mineral Acts. By the combined effect of sec. 117 of the Mineral Act and sec. 25 of the County Court Act, said sec. 11 has the same effect in the County Court as in the . Hoi . 290, and Dunlop v. Hanei ante, p. 213, considered. .. 369, followed, Action in the County Court of Yale (mining jurisdiction) for recovery of possession of the ground in dispute, a declaration that the Old Jim mineral claim in so far as it encroached upon ground common to the Trilby and Herald Fraction claims was an invalid location, a declaration that the Old Jim was an illegal location and that the Herald Fraction was valid, and for $50 expended in support of the action. On July 1st, 1895, one Stephens located a mineral claim and duly recorded it on 10th July, under the name Trilby. The claim lapsed on July 10th, 1896, for want of a certificate of work. Meanwhile, on April 1st, 1896, one Eobert Clark, the husband of the ; defendant, located upon the lands covered by the Trilby, a mineral claim and recorded it under the name Old Jim. On 13th April, 1897, Clark recorded a certificate of work in respect of the Old Jim claim and other certificates of work were re- J corded in respect of it on April 12th, 1898, and April 15th, 1899. J March, Clark. transferred 1 t Clark by Old Jim ch I of sale recorded 24th to the defendant Ella Thi the loc uary, 1899, the plaintiffs located the Herald Fraction aost of the jground originally covered by the Trilby. l her dispute note set up that the Old Jim was located and vacant waste lands of the Crown, that at the ition of the Herald Fraction the ground covered open to location, and that certificates of work had duly recorded in respect of the Old Jim, and she (fit of sec. 28 of the Mineral Act. vas tried before Spinks, Co.J., who held that the ad jurisdiction and that sec. 28 cured all defects in title. At the trial Eobert Clark was a witness for the defendant and testified that one Lancaster (alleged by defendant to have located the Trilby) told him before the Trilby lapsed that he (Lancaster) did not want the claim and that he (Clark) might have it. This evidence was ruled out. The plaintiffs appealed to the Full Court and the appeal was argued at Vancouver before McColl, C.J., Walkem, Irving and Martin, JJ., on 4th June, 1900. Defendant had given notice that the objections would be taken on the appeal that the Court below had no jurisdiction and that Clark's evidence as to what Lancaster told him County Con the defendai Idl ed. Davis, Q.C, for appellants: The denial in paragraph 1 of the dispute note is not sufficient—it must be specific. Abandonment must be pleaded. He cited Aldous v. Hall Mines (1897), 6 B. C. 394, ante, p. 213; and The Nelson & Fort Sheppard Railway Company v. Jerry et al. (1897), 5 B. C. 396, ante, p. 161. This is not an adverse proceeding—it is an action of ejectment or trespass. He referred to sec. 117 of the Mineral Act; Connell v. Madden (1899), 6 B. C. 531; 30 S. C. E. 109, ante, p. 359; Belk v. Meagher (1881), 104 TJ. S. | Del Monte Mining and Milling Company v. Last Chance Mining and Milling Company (1898), 171 TJ. S. 55. L. G. McPhillips, Q.C, for respondent: The plaintiffs have not proved a case of ejectment as on their own evidence they are in possession, and if there has been a trespass there is nothing to connect the respondent with it. Unless the plaintiffs take the position that this is an adverse action they are out of Court on the evidence. If it is an adverse action there is no jurisdiction. He cited sees. 37 and 117 of the Mineral Act; Eobertson's Local and County Courts Acts, 31; Aldous v. Hall Mines (1897), 6 B. C. 394, ante, p. 213; Rogers MARTIN'S MINING CASES. Ivol, v. Reed (1900), 7 B. C. 142; Hand v. Warren (1899), 7 B. C. 44, ante, p. 376. The only remedy the plaintiffs have is by an action in ,R*- the Supreme Court as provided for by sec. 37. The plaintiffs must C..T. wait tiU defendant applies for a certificate, of improvements—unless the defendant herself appUes. As to sec. 28, see Peters v. Sampson (1898), 6 B. C. 405 at pp. 415 and 417, ante, p. 247. As to rules of construction, see Newton v. Cowie (1827), 4 Bing. 234; Beat's Cardinal Bules, " Frecedent," article on in the Encyclopaedia of the Laws of England; Taylor v. Corporation of Oldham (1876), 4 Ch. D. 395; Nuth v. Tamplin (1881), 8 Q. B. D. 247, at p. 253; Callahan v. Coplen (since reported 7 B. C. 422), ante, p. 348, simply wipes out the section and leaves nothing for it to operate on—it is inconsistent with Peters v. Sampson and the Court may disregard it. As to ruling out evidence of Clark as to abandonment of the Trilby. If A. locate a claim and tell B. he has abandoned it, there is no reason why B. should not locate on the faith of what A. said: see Granger v. Fotheringham (1894), 3 B. C. 595, ante, p. 71, and Black v. Elkhorn Mining Company (1896), 163 TJ. S. 450. Davis, in reply: The answer to abandonment is that it is a material fact and was not pleaded. McPhillips:—There are no pleadings in the County Court and it need not be raised. [McColl, C.J.:—This is in the nature of a special defence and should be pleaded under the County Courts Act. See also the Eules promulgated by the County Court Judges dated 6th August, 1892.] Lancaster was not the locator—according to paragraph one (admitted in dispute note) Stephens was the locator. As to trial by consent in writing see Moore v. Gamgee (1890), 25 Q. B. D. 244, and In re Jones v. James (1850), 19 L. J., Q. B. 257. Here by coming in, pleading and going to trial, defendant has waived the right to object—if the objection to jurisdiction is not taken in the dispute note it is waived. I agree that this is not an adverse action under sec. 37, but nevertheless we can get relief by a declaration, i As to ejectment while in possession, see Eoscoe's Nisi, Prius Evidence, 991-2; Williams and Yates on Ejectment, 128-9. if we are not entitled to a declaration of title, we are entitled to an order that defend- j ant be put off and for nominal damages. Cur. adv. vuM. March 5th, 1901. nt McColl, C.J.:—On July 1st, 1895, one Stephens located a mineral j claim and duly recorded it under the name Trilby. The claim lapsed on July 10th, 1896, for want of a certificate of work. Meanwhile, J . B GELINAS bt AL. v. CLARK. on AprU 1st, 1896, one Clark assumed to locate upon the lands covered by the Trilby a mineral claim and to record it under the name of Old Jim. After the lands in question had. become waste lands of I the Crown, Clark, on AprU 13th, 1897, recorded a certificate of work in respect of the Old Jim claim and other certificates of work were recorded in respect of it on April 12th, 1898, and April 15th, 1899, -JS&pectively. On February 2nd, 1899, the plaintiffs assumed to locate the Herald Fraction claim upon the lands covered by the Old Jim claim, relying upon the circumstance that it was located before the lapse of the Trilby claim. By sec. 34 of the Mineral Act the interest of a claimant in his claim is declared to be a chattel interest equivalent to a lease for one year and thence from year to year; and by sec. 24 the claimant is entitled upon recording a certificate of work yearly to hold his claim without re-recording it. It was not contended that the location or record of the Old Jim claim was defective; but merely, that as the lands covered by it were not, by reason of the existence of the Trilby plaim, open to location till after the Old Jim was in fact staked upon the ground, the lands remained open to location by the plaintiffs on February 2nd, 1899, notwithstanding the recording of the certificates of work in the two preceding years. I cannot accede to this. It was open to Clark after the lapse of the TrUby claim to adopt the staking of the Old Jim previously made by him, and to change the dates upon the posts and record the claim, and the certificates of work having been recorded after the lapse of the Trilby claim the effect of sec. 28 is, I think, to prevent the Crown disputing the validity of the yearly leases in effect granted of the Old Jim claim; there being no uncertainty in the location or record. If that be so, it follows that the lands being so held as against the Crown were not during the existence of any such yearly lease waste lands of the Crown, and, therefore, could not have been open to location by the plaintiffs. There is no suggestion that the plaintiffs were misled, as in the case of Callahan v. Coplen (1899), 7 B. C. 422; (1900), 30 S. C. B. 555, ante, p. 348. As the question of the jurisdiction of the County Court was not raised in the Court below until after all the evidence had been put i in, I do not think the appellants can ask us to consider it now. The I appeal should be dismissed with costs. Irving, J".:—I concur. Martin, J.:—Assuming that the respondent is now entitled for the first time, to raise the question of jurisdiction, the contention is that this is merely an action of trespass or ejectment under the mining jurisdiction of the County Court, and so the plaintiff can get no> MARTIN'S MINING CASES. tvi id ju made a certain order 1 claration as to establisl no report of the case, b stand, at the requesi relief because the evidence shews that he is in possession hUnse^; and that, if there has been a trespass there is no evidence to connect • the defendant with it. So far as trespass is concerned, the first answer to this contention is that it is, in effect, admitted on the plead*, ings, and therefore the plaintiff could not have been expected to give any evidence on that point. But the case on the pleadings is more than bare trespass, and a declaration of title is also asked for, probably in view of the operation of sec. 11 of the Mineral Act Amendment Act, 1898, the effect of which section was considered by me in Schomberg v. Holden et al. (1899). 6 B. C. 419, ante, p. 290; and id 4, ante, p. 369.* I may here remark t was varied by the Full Court, ante, p. ved at on the ease as .then presented to he action of the said Court, as it simply ent of the parties and omitted the de- f title required by said sec. 11; there is dy a note of an order made, as I under- irties to meet a certain state of affabs looked when the matter was before me. ling jurisdiction of the County Court is contained in sec. Mineral Act, and in connection therewith sec. 25 of the Courts Act must be considered. It is as follows: ■ ry County Court shall, as regards all causes of action within its jfals- >r the time being, have power to grant and shall grant in any proceed- re such Court such relief, redress, or remedy, or combination of either absolute or conditional, and shall to every such proceeding THye the like effect to every ground of defence or counterclaim, equitsflfle (subject to the provision next hereinafter contained), in as full and mple a manner as might and ought to be done in the like case by the Supreme irt of British Columbia." It has already been twice decided, in Schomberg v. Holden and ; Dunlop v. Haney, that the words " adverse proceedings" in sec. 11 (first enacted in 1898), apply not merely to actions which were and j are, in default of a better term, loosely styled "adverse actions" under the old sec. 37, and amendments, but also " to all cases whioh j ■come before the Court for trial," i.e., mining cases wherein there arc i mineral claims in conflict (under the Mineral Acts). Aud I am further of opinion that the combined operation of said sees. 25, 117 and 11 is to give the same effect to sec. 11 in the County Court as in the Supreme Court. To hold otherwise would largely defeat the objects of the section, which were considered in Dunlop v. j Haney, at p. 369. I see nothing in the judgment of Mr. Justice McCreight in Aldous v. Hall Mines (1897), ante pp. 213, 217, which con- .fllcts with the above view, because the learned Judge expressly says that he had not "any intention of giving a decided opinion upon" McQuillan, ante, p. 289. J the .present poin mind that his ii and it should further be bon nounced before sec. 11 was enacted, taken that the trial Judge in either Th n-ely ring that the Court shall make a to which see Odgers on Fleading, my opinion the Court below had declaration as to title (in 4th ed., 24, 204-5, 263), jurisdiction. Then as to the rejection by the learned trial Judge of the evidence | relating to the alleged abandonment of the Trilby claim in favour j of the defendant. The objection is taken that this material question of abandonment is not raised on the pleadings. Though it is true that under sec. 29 of the County Courts Act causes are in general to be disposed of without formal pleadings, yet this is subject to the course of procedure provided by Bule of Court (sec. 205), and, apart from the requirements of sec. 91, the County Court Bule of August I 6th, 1892, requires the defendant to give notice in writiag "stating shortly and distinctly the grounds of defence on which he intends to rely." Effect to this useful rule was recently given by this Court in the case of Anderson v. Godsal (1900), 7 B. C. 404; ante, p. 416, and it carries out the spirit of the decisions in Aldous v. Hall Mines supra; Schomberg v. Holden, supra, and Dunlop v. Haney, supra, that litigants in mining cases particularly should know beforehand exactly j what case they have to meet, and that anything in the nature of a i surprise should be discountenanced.* No application for leave to I raise such a ground of defence was made at the trial. I am, therefore, of the opinion that the point was not open to the defendant, and the evidence was properly excluded. Coming then to the chief point of the ease, it appears that during i the time the Trilby mineral claim was an admittedly good location the defendant located the Old Jim claim covering a large part of the | Trilby ground. After the Trilby location lapsed, the plaintiff located i the Herald Fraction claim, which also covers most of the old Trilby i ground. It has been held repeatedly in this Court that if a claim is located ! over an existing valid location, and such valid location subsequently lapses, the junior location acquires no title to any part of the senior I loeation.f The learned County Court Judge held that though the : *See Hogg v. Farrell, ante, p. 79, and note thereto. ^Woodbury v. Hudnut, ante, p. 31; Granger v. Fotheringham Atkins y. Coy, ante, p. 88; Bleekir v. Chisholm, ante, p. 11 I Almoure, ante, p. 134; Aldous v. Hall Mines Co.. ante, p. 213; »nte. p. 257: Cranston v. English Canadian Co.'y, ante, p. 394; v. 'Cwrtig, ante, p. 401. MARTIN'S MINING CASES. [VOL. plaintiff had estabUshed a prima facie case to the Herald Fraction, yet all defects in the defendant's title were cured under sec. 28 by • her having recorded certificates of work for the Old Jim claim. The . plaintiff has not recorded any such certificate. In support of his contention that the Old Jim was an utterly- void location the appellants' counsel relies on the well-known case of Belk v. Meagher (1881), 104 H. S. 279, where the subject is considered by the Chief Justice of the United States under mining laws very similar in this respect to our own. At p. 284 it is stated: " A location can only be made where the law allows it to be done. Any attempt to go beyond this will be of no avail. Hence, a re-location on lands actually covered at the time by another valid and subsisting location is void; and this not only against the prior locator, but all the world, because the law . allows no such thing to be done." And as the learned Chief Justice points out (p. 285) there is a further ground of public policy in support of this view: - " To holfl that, before the former location has expired, an entry may be made and the several acts done necessary to perfect a re-location will be to encourage unseemly contests about the possession of the public mineral-bearing lands which would almost necessarily be followed by breaches of the peace." In 1884 Belk v. Meagher was approved by Gwillim v. Donnelkn, i 115 Tl. S. 45, 49, and again in 1898 by Del Monte Mining and MiU- j ing Company v. Last Chance Mining and Milling Company, 171 XJ. S. 55, Mr. Justice Brewer stating, " Of the correctness of these decisions there can be no doubt." In my opinion the spirit of these 'decisions is applicable to the present case, and it has to a certain ; extent, at least, been recognized in Connell v. Madden, supra, affirmed j on appeal (1899), 30 S. C. B. 109. What, then, is the effect of sec. 28 ? This question has been dis- j cussed in Peters v. Sampson, supra; and in Callahan v. Coplen, supra, \ reversed by the Full Court, November 30th, 1899 (ante, p. 348), and the reversal affirmed, though on somewhat different grounds, by the Supreme Court of Canada, (1900), 30 S. C. E. 555; ante, p. 348. It was argued at the bar that Callahan v. Coplen is inconsistent I with Peters v. Sampson, and consequently not a binding decision on us, it being pointed out that in Peters v. Sampson the Court (com- j 1 of Walkem, Irving and Martin, JJ.), was unanimous, while in Callahan v. Coplen, the Court (Walkem, Brake and Irving, J J.), was divided, Mr. Justice Irving dissenting. And a peculiar circum- j stance in that case should be noted, which is that the judgment of the FuU Court (delivered by Mr. Justice Drake) contains no reference whatever to Peters v. Sampson, though my brother Walkem wrote a i judgment in that case with which I concurred, wherein the effect of sec. 28 was considered at length. I agree with counsel that Callahan j v. Coplen and Peters v. Sampson are inconsistent and conflicting, and, in view of what I have pointed out, were it not for the judgment of u™ the Supreme Court of Canada above mentioned, I am of the opinion Eull that the latter is the-decision which should be followed, as I en- MAf deavoured to follow it when giving the original judgment in Callahan v. Coplen; but in view of the said judgment of the Supreme Court effect must now be given to the judgment of this Court in Callahan v. Coplen, so far as may be done without going beyond what flows from the judgment of the Supreme Court. In strictness, perhaps, the judgment of the Court does not go further than to decide that where a location as originally made is calculated to mislead, its owners cannot invoke sec. 28 to establish their title to part of another opposing location which is not embraced within any part of their location as described in the record thereof, and that in such case the section could only be invoked in an action wherein the Crown was a party. But the broad result of the judgment undoubtedly is that sec. 28 must not be given that very wide operation which, from a first consideration thereof, one would gather that the Legislature intended to give it, and the words " it shaU be assumed that up to that | date the title to such claim was perfect" must be largely restricted I in their operation. ' : Assuming for the moment that the defendant herein is entitled I to invoke sec. 28 despite the fact that the Crown is not a party to the action, I shall consider what is the effect of the judgments in Oallahan v. Coplen on the .question now before us. Mr. Justice j Drake in that case states, "In my opinion it (sec. 28) only purports '■ to cure little irregularities which may arise in various ways after location and record, and which do not go to the root of title;" and again: "The statute intends that a claim which has been properly I taken up and properly recorded shall be assumed to be perfect except for fraud. If a claim is not properly taken up and recorded it never : becomes a mineral claim." It is true that the learned Judge further states, " The section may be a valuable protection against a claimant I who has not obtained any certificate of work," but it is not pointed ; out how far this protection extends, and it must, even then, be subject : to the language already quoted, and his further statement, "There is no title that can be rendered perfect by a certificate of work. On i the other hand, if a mineral claim has been properly and legally ! located and recorded, and subsequently some neglect has occurred or slip happened which does not affect the original title, then the fact that a certificate of work has been given will validate such neglect or sUp." In the absence of any consideration by Mr. Justice Gwynne, who wrote the judgment of the Supreme Court in Callahan v. Coplen, of MARTIN'S MINING CASES. tvoru the general effect of sec. 28 (and I may be permitted to say that such consideration by so learned a Judge would have been of great assist- Fcll Court. ance ^0 this Court in determining the difficult question arising from Martin, J. it) it is impossible for us to say how far the Supreme Court gave effect to the expressions of this Court above quoted, but from the fact that the judgment is affirmed they must be considered as being more or less ratified, even though, in the beginning of his judgment Mr. Justice G-wynne stated that the only question to be decided was as to whether the location did mislead other locators; but nevertheless in the latter part of his judgment he did consider briefly the application and effect of that section. The authorities being in such an unsettled state it is difficul&4p|. apply them satisfactorUy to the present case. But it seems to me that if due effect is to be given to Callahan v. Coplen the narrow result must inevitably be, to cite the judgment of the Court, that unless a claim " is properly taken up and recorded it never becomes a mineral claim." The result is, perhaps, somewhat startling to one who is familiar with the course of mining litigation in this Brovince, but I cannot see how it is to be avoided if precedents are to be followed. Applying then that conclusion and also the decisions of the Supreme Court of the United States and this Court already noticed to the present case it must be held that the Old Jim claim was not " properly taken up and recorded " in so far as it overlaps the Trilby ground. In my opinion that part of the location must be deemed to be absolutely void, because to that extent the Old Jim claim simply never had any existence, and to that same extent there is nothing for sec. 28 to operate on. Whatever may be said of that section, I think ,it must be admitted that the most it can do is to cure defects in the title of a claim, it cannot create one either wholly or in part. I have had the benefit of perusing the judgment of the learned Chief Justice upon the combined operation of sees. 24 and 34 of the Mineral Act, and appreciating as I do very highly the value of my learned brother's opinion on this important point; his views hwe ived commensurate consideration. After some hesitation I have come to the conclusion that, viewed I in the light of the decisions above quoted, these two sections do not establish the defendant's claim, because in addition to the effect of what I have already stated, the opening words of see. 24 impose the j limitation that the claim must first have been " duly located and recorded," yet this is exactly what has not been done here, if *&e I cases cited are authoritative, as I think they are. Though I am unable, in trying to give a consistent and logical effect to Callahan, v. Coplen, to come to any other conclusion than this, at the same ltime j I think it mudhto be regretted that the exact interpretation of sec. 1.1 GEIilNAS E '. CI/ARK. 28 is in doubt, and the sooner that said section is either fully interpreted by the Supreme Court of. Canada, or explained by the Legislature, the better it wiU be for owners of mining property in this Province. It flows from the foregoing that the title to the Herald Fraction claim is, in my opinion, established, and since it embraces that part of the ground in controversy which was included in the original Trilby location, the Old Jim claim, in so far as it encroaches upon that ground, is declared to be an invalid location. The appeal should be allowed with costs. Appeal dismissed, Martin, J., dissenting. Note.—This important decision is the culmination of the expanding theory of the wide effect of sec. 26, and herein was expressed for the first time (se M' Pavier v. Snow, ante, p. 384), the opinion that a location could lawfully be made over an existing valid location, and that the junior location could derive any benefit from the unlawful proceedings that were the foundation of i alleged sion being adhered to by the Full uoun appeal was taken to the Supreme Couri that case and Gelinas v. Clark were ove Mabtin, J., in Gelinas v. Clark followe views are stated in the headnote hereto. far reaching in its result, and the deci- in Mdaley v. Collom. post, p. 487, an of Canada, with the result that both ruled, and the dissenting judgment of in that respect, for which reason his MARTIN'S MINING CASES. Yukon Placer Representation Grantees to s im — Location —Overlapping—Re-location—" Jumping " I ?ork—Conflicting Crown Grants—Rights of Different Crown ', Claim—Jus Tertii—Possession—Close Season—Gold Cornice of Office—Yukon Mining Regulations, 1897, 1898. Where there are two Crown grants to different parties for the same claim, or overlapping portions of two claims, the earlier must prevail. A close season may be fixed by the Gold Commissioner by verbal direction requiring three months' work on each claim, instead of by specifying a certain portion of the year as applicable to all claims. Per Martin, J.—Observations on what constitutes " possession " of a mineraj Decision of Dugas, J., affirmed. Appeal to the Full Court* of British Columbia from the judft ment of the Territorial Court of the Yukon Territory, per Dugas,'J. On 5th July, 1898, the plaintiff Victor located and staked the Gold Hill claim and on 23rd July, 1898, he obtained a Crown grant for placer mining. On 25th January, 1898, one Mensing located a claim, and recorded it on 26th January, 1898, and on the succeeding 27th of October, a few minutes after midnight of the 26th, the defendant for the reason that the claim had not been properly represented, re-located it as ground abandoned and open to occupation and entry. The two claims overlapped. On 10th November, 1898, the defendant obtained her Crown grant for placer mining, covering the ground in dispute and being her -re-location of Mensing's old claim. According to regulation 19, a claim shall be deemed to be abandoned and open to occupation and entry " when the same shall have remained unworked on working days by the grantee thereof or by some person on his behalf for the space of seventy-two hours, unless sickness or other reasonable cause be shewn," &c. The Gold Commissioner had made a rule (verbal) that if the- claim owner did three months' continuous work on the claim in a year that was sufficient, but no period of the year was specially set j apart for the performance of that work. The question at the trial was which of these two grants was en- j titled to priority, and the learned Judge delivered judgment on 25th j ♦This appellate jurisdiction conferred upon the Supreme Court of British I Columbia by 62-3 Vict. ch. 11, sec. 7 (1899) was abolished by 2 Ed. VIL ch. j 35, sec. 3 (1902). i.] VICTOR et al. v. BUTLER. June, 1900, dismissing the plaintiff's action and deciding in favour of the defendant's grant. The appeal was argued at Vancouver on 20th and 21st November, 1900, before McColl, C.J., Drake, Irving and Martin, JJ. Peters, Q.C, and A. G. Smith (of the Yukon bar), for the appeal. The defendants re-located on ground not open for location and before lit had become, vacant Dominion land. There was no time in which mining was generally suspended in that district, so the Gold Com- [missioner could not fix it, so the course he adopted was to make an in- Iformal verbal order or direction that a claim should have to be worked for a season of three months, and the balance of the year to remain a j close season, therefore Mensing had up to twelve o'clock on night of [27th October, and seventy-two hours after before his claim was open [to re-location. [ Supposing, there are two grants wrongly issued, ours is the earUer [and entitled to the preference. The defendant is a trespasser: see Sedgwick on Trial of Title to Land, 549-50; Asher v. Whitlock (1865), L. E. 1 Q. B. 1; Davison v. Gent (1857), 1 H. & K 744; Taylor v. \Parry (1840), 1 Man. & G. 604; English et al. v. Johnson et al (1860), 12 Morr. 202; Atwood et al. v. Fricott et al. (1860), 2 Morr. [305. No close season was fixed by the Gold Commissioner within the [meaning of the interpretation clause of the Yukon Blacer Mining [Regulations of 21st May, 1897: see Orders-in-Council of 21st May, 1897* (p. lxxii., of 60 Vict.), and 18th January, 1898f (p. xxxix., of 61 Vict). [Martin, J., referred to Woodbury v. Hudnut (1884), 1 B. C. pt. ii., 39, ante, p. 31.] I Davis, Q.C., for respondent: Under the regulations respecting [the close season there must be a great deal of elasticity allowed and [latitude given the Gold Commissioner, who is far removed from the [reach of the Government for a long period and there was a close season such as meets the spirit of the Act. What the Gold Commissioner did was to make a rule that if during the year a claim owner [worked three months, that was sufficient—the effect of the rule was [that in all he must shew three months' work—not continuous, but | *" Close season " shall . mean the period of the year during which placer Inining is generally suspended. The period to be fixed by the Gold Commissioner. I t"Close season" shall mean the period of the year during which placer, pining is generally suspended. The period to be fixed by the. Mining Recorder In whose district the claim is situated. 1 44d* MiiifflN'S MININGS GASES'. Ivol. isfe three months in all. The close season of nine months less the three _!_ ' days had gone by and the man could not by any*Jf0fe&1&litfyf have done EjSffl Court, the three months' work; the three days form part of the nine months McCoix, C.J. not of the thre"&months. Victor's grant of land already leased is not valid: see The Queen v. Demers (1893), 22 S. C. B. 482; Lindley on Mines, 363, and Belk v. Meagher (1881), 104 U. S. 279. Victor purported to loeate a new claiim, but defendant applied in a different way invokingi the process appUcable to forfeited ground. The Gold Commissioner must have cancelled Mensing's lease before he decided to give the new one to Mrs. Butler. He cited Cooper v. The Board of Works for the Wandsworth District (1863), 14 C. B. N. S. 180; Osborne v. Morgan (1888), 13 App. Cas. at 234-6; Smith v. The Queen (1878), 3 App. Cas. 614, and Davenport v. The Queen (1877), 3 App. Cas. 115. Peters, in reply: There is no evidence of cancellation. Cur. adv. voM" March- 9th, 1901. Judgment. McColl, C.J.:—I think the appeal should be dismissed. Drake, J.:—In this case one Mensing located the ground in question in 1898, and obtained the ordinary grant from the Gold Commissioner. Victor took up a claim on vacant land and included in it a portion of the ground held under Mensing's grant: this he did in August, 1898. If Mensing was lawfully entitled to the possession of his claim at the date of Victor's record, Victor's record is invalid as far as regards the portion that overlaps Mensing's. A person by clause 8* of the regulations of January, 1898, is entitled to take.up vacant lands for mining purposes, whether vested* in the Crown or otherwise. Under the regulations the Gold Commissioner is entitled to fix a close time with regard to claims. According to the evidence, instead of making a close time applicable to all claims, he allowed each claim holder to work for three months inH&e year following the record and the other nine months were treated as close time. Whether this was a good practice or not is not in question here; it was the practice of his office and all the miners acted on it, and when they came to renew their claims they had to prove three months' work which was treated as sufficient. Mensing, tfiteSf&refe',- I *8. Every free miner shall, during the continuance of his certificate, but not longer, have the right to enter, locate, prospect and mine for gold and other minerals upon any lands in the Yukon District, whether vested itt the CrbwB 6r I otherwise; "feept upon Government! r^SfiflvjWiinB^'flSS ififtfe M*6BSliEnd»"«ffilc1t i~ dfSSKlSti&i' by any B^iidffigl and any l'aiftfP ;JsHlffig ftftliin the curtilage of an dwelling house, and any land lawfully occit^i^'wr'iilgl^niiftinfe'^trtiloSW/ian also Indian reservations. I.J had i VICTOR i BUTLE unable lonths' radenee, t irk with! negleoting to perform' three r. Whether he had abandoned* hi* claim 11 the nine months after his record had Eui ssfheiobtained a cancellation before that lid Commissioner. Of this there is* no claim was not valid as far as regards the piece of land overlapping MensMg?s. It was contended that #fin3two gfants-of the same-land had been made that the latter grant.. should prevail hi1 do not accede to this view. The fact of a grant having been made to Mensing precluded the issue of another grant over the same land until the first grant was cancelled by the Gold Commissioner for some of the reasons which gave him jurisdiction to cancel, or had expired by effluxion of time. When Victor made his application, the plan he filed with the Gold Commissioner, which was made on July 22nd, 1898, as appears by the exhibit, does not ishew Mensing's claim at all, and does not agree with exhibit "E." The Gold Commissioner seeing a plan which made no mention of the Mensing claim, and was apparently unoccupied land, came to the conclusion that no primary rights of any one else were affected and made the.grant. There is no evidence that when Victor applied for a grant any irregularity was suggested as to Mensing's claim, or any cancellation made of his grant. In this view of Mensing's claim we have not to consider whether or not Mrs. Butler was right in taking Up the Mensing claim when she did, because the plaintiffs cannot succeed unless they shew that they have a right either independent of or against Mensing. If Mensing's claim had expired or been cancelled after Victor's grant, and no one had taken up the land, it is probable that owing to the fact of Victor's grant having the land described by metes and bounds he might succeed in holding the claim against the Crown on the ground that a grantor cannot derogate from his grant. But as, in my opinion, Mensing's claim was in existence When Victor's grant was made, it cannot be said that Victor had a reversionary interest in this land dependent on Mensing's claim expiring or being cancelled, for this is what the plaintiffs' contention amounts to. Such a title was never contemplated by the mining regulations. If Mensing had retained his claim, Victor could not eject him or bring an action of trespass. He did not retain his claim, and the land thereby became open to re-location, and Mrs. Butler is a re-locator unaffected by Victor's grant. It was contended that Mrs. Butler could not take up the claim until nine months plus seventy-two hours, and therefore her grant Was invalid as against the plaintiff Victor, but the plaintiffs cannot set up a jus tertii to bolster up their case. This objection is one Mensing or his assign might have set up, and without deciding the MARTIN'S MINING CASES. effect and bearing of rule 39*. In my opinion the appeal should be dismissed with costs. Irving, J.:—In my opinion both parties to this action jumped1 the claim before it was open for re-location, unless it can be established that the Gold Commissioner in pursuance of the powers conferred on him cancelled the Mensing location. I think in view of the fact that the Mensing location was made known to him at the time of Mrs. Butler's application we must presume that this was don&' At page 180 of the appeal book there are two plans, one is identified by the clerk of the Court—the other is unidentified. It is clear from Bolton's evidence that it was the unidentified plan that was filed at the time the Victor application was made. This, unidentified plan does not disclose the fact that Victor was taking up, or intended to take up, any portion of the Mensing claim. I agree with the judgment just read. Martin, J.:—It is argued that no close season was -.fixed by the Gold Commissioner within the meaning of the interpretation clause of the "Yukon Blacer Mining Begulations of May 21st, 1897. It appears from the evidence of the Mining Becordeir that what the Gold Commissioner did was to lay it down, verbally, that if the claim owner did three months' continuous work on the claim in a year that was sufficient; this was the rule of the office. No period of the year was specially set apart for the performance of that work; so for nine months in the year the owner need not work his claim. It is objected that by this mode of procedure there was "no period of the year during which placer mining (was) generally suspended" as contemplated by the Act. From one point of view, that is undoubtedly correct, but from another it may be looked at differently. The period of suspension was general in that it affected all alike, and though the G°ld Commissioner arrived at the result in a somewhat involved manner, I am unable to say, in view of the rather uncertain language of the statute, that he was wrong in principle; moreover, there is much to be said in favour of it as a practical application, of the clause to the conditions of the country. *39. A claim shall be deemed to entry by any person when the same days, excepting during the close seas son on his behalf for the space of i reasonable cause be shewn to the unless the grantee is absent on lea- Mining Recorder, upon obtaining be abandoned and open to occupatiotiJaSBl shall have remained unworked on working on, by the grantee thereof or by some per- ieventy-two hours, unless sickness or other satisfaction of the Mining Recorder, or re given by the Mining Recorder, and the idence satisfactory to himself, that this pro^ Not -72 hours r mplied with, may cancel the three consecutive days of 2 i for J m VIOTOR et al. v. BUTLER. ■ -Mensing recorded his claim on the.26th of January, 1898, and on the succeeding 27th of October, a few minutes after midnight of 26th, the defendant, for the admitted reason that the claim had not I been properly represented, re-located it as ground abandoned and open to occupation and entry. According to regulation 19* of May 21st, 1897, a claim shall be deemed to be abandoned and open to occupation and entry " when the same shall have remained unworked on working days by the grantee thereof or by some person on his behalf for the space of seventy-two hours, unless sickness or other reasonable cause be shewn," &c. Applying this rule laid down by the Gold Commissioner, the close season existed for nine months, after which it became necessary for the owner to perform his work. But, as I interpret regulation 19, his claim did not become abandoned unless after the close season was over he made seventy-two hours default in his work—in other words, he had the nine months plus three days. So far as the close season was concerned that was, to use the language of this Court in Woodbury v..Hudnut, supra, "as if it were expunged from the calendar," and the seventy-two hours began to run against the claim-owner from the expiration of that season, and not before. It may be said that the result of this is that the required three months' work could not be performed within the year, but that period of three months must be taken to be subject to the further deductions permitted by the regulations. | Up to the end of the nine months and seventy-two hours the claim was I secured to Mensing, and the alleged location, before that time, by | the defendant was, to further quote Woodbury y. Hudnut, supra, " a merely unauthorized trespass," and an unsuccessful attempt to " jump " the claim. Before Mensing's claim had run out, the plaintiff Victor, on the i 5th of July of the same year, likewise located a claim which also embraced that part of Mensing's old ground now in dispute (but of this Victor was then ignorant) and, subsequently, on the 23rd of i the same month, obtained from the Crown a grant thereof for the purposes of placer mining. On the 10th of November following, the defendant obtained a similar grant from the Crown, also covering j the ground in dispute, being her re-location of Mensing's old claim. The question is which of these two grants is entitled to priority ? A claim shall be deemed t y any person when the sam 7 the grantee thereof or by -two hours, unless sickness :tion of the Gold C and t . that ) be abandoned and open to occupation and e shall have remained unworked on working some person on his behalf for the space of or other reasonable cause be shewn to the ier, or unless the grantee is absent on leave Gold Commissioner upon obtaining evidence provision is not being complied with may MiARTIN'S MINING.GASES: [VI March 11. rtabte the It is not surprising that no authority upon the exact point; ha been cited, the circumstances being so unusual. In the re absence, in a case of this importance and difficulty, of an\ for judgment, we are deprived of the benefit of the view learned trial Judge, which would, doubtless, in view of his fami&iigj^f with the mining regulations, have been of assistance ifio, us in decidimfr the questions at issue. It is urged on behalf of the defendant that she is entitled to Mensing's claim on the ground that it was forfeited, and' that it mup be presumed in her favour that the Gold Commissioner had eanceUed the entry thereto " upon obtaining evidence satisfactory to himself " under regulation 19, and in pursuance of her application for a grant, dated October 27th, 1898, made while Mensing's claim was still in force. Assuming that we are justified in so presuming as regards the j defendant's grant, then the same presumption arises,, bui^with greater I force, in regard to the plaintiff's prior grant. There is no evidence i of any intention to cancel the entry of Victor's claim, and he was j working it at the time of the defendant's re-location. As I understand the contention of the plaintiffs counsel, it i^lft they, having obtained a grant from the Crown on the 23rd of July, which by metes and bounds conveys to them that part of Mensing^ claim now in dispute, are entitled to priority over the Crown's later ] grant to the defendant; and in support of this view it is pointed out | that the defendant in no way claims under Mensing's title, but on I tiie contrary relies on that title being destroyed. And it is further j contended that even if both grants were wrongly or inadverten*% | issued, the earlier should prevail. Under the existing circumstances, at least, it is difficult to see I upon what ground the defendant's later grant should prevail against j .the plaintiff's prior one. Assuredly she cannot invoke Mensing's [ title, for that title is, and was, as antagonistic to her title as to the j plaintiffs'. Then, as between the grants themselves, her counsel, on j the argument, took the stand that in the grant to the plaintiff Victor, j the disputed corner of Mensing's ground, as counsel expressed it, " slipped in unnoticed." Supposing it did, does that give the detfen- j dant, who did not obtain a similar grant for months afterwards, a j right to complain when she herself, strictly speaking, " jumped" j Mensing's claim, and " jumped" it too soon ? I confess I cannot [ see any reason, either at law or in equity, why the prior grant to the I plaintiff should be disregarded. If the defendant's contention is j that sbe is at liberty to stake first, and then apply for cancellation, j then that exactly fits Victor's case, except that Victor is in a better [ position than the defendant for three reasons: (1) he is the fpor I I.] . BUTLER. Eendant •lflcator; (2) he is the prior grantee, and his grant de by metes and bounds; (3) he was in possession when made her premature attempt to " jump." It is opportune, here, to make-some remarks on the possession of a mineral claimA Much attention has been given this subject by Courts in the United States under laws bearing a general simUarity to our own. It has been repeatedly laid down " Possession is presumptive evidence of title; but it must be actual. By actual possession is meant a subjection to the will and dominion of the claimant." Hess et al. v. Winder et al. (1866), 12 Morr. 217, at p. 223, approving Coryell et al v. Gain (1860), 16 Cal. 567, and English et al. v. Johnson et al. (1860), 17 Cal. 108. The Court went on to say that it "recognizes a difference between the acts'essential to indicate the possession and occupancy of agricultural land, and those necessary to shew occupancy and dominion of a mining claim . . . i We think when a claim is distinctly defined by physical marks, that possession taken for mining purposes embraces the whole claim thus characterized, though the actual occupancy be only on or of a part, and though the party does not enter in accordance with mining rules or under a paper title.'" The question of constructive possession of a mining claim under a deed is discussed at pp. 224-6 of the same case, and the i rule is laid down that " if a party relies on a constructive possession by deed, he must shew himself in the actual possession of a part of the land described in it, and the description must be definite and certain as to the boundaries of the land." The cases of Attwood et al. | v. Fricot et al. (1860), 2 Morr. 305; North Noonday Mining Co. v. Onerai Mining Co. (1880), 9 Morr. 531, and Harris et al v. Equator \ Mining & Smelting Co. (1881), 12 Morr. 175, 181, are to the same effect. See also Barringer & Adams on Mines, ch. 13, p. 317; Lindley on Mines, p. 649 et seq. Applying the principle of the above decisions io the present case, I am satisfied that the plaintiff Victor distinctly defined the boundaries of his claim, and also was in possession thereof at the time of the defendant's attempt to re-locate Mensing's ground and that he, in effect, continued to maintain that position up to the commencement of this action. This point was urged by appeUants' counsel as a strong element in their favour, and I am of opinion that it is so. j During the argument something was said about jus lertii, but I do not see how that doctrine 'applies to the case before us, seeing that both parties are, so far as regards Mensing, in exactly the same position, because they both staked a portion of his ground too soon, the plaintiff Victor inadvertently, and the defendant designedly; it must be common ground with each litigant that the other, as regards Mensing, was a trespasser, and it follows that neither can set up a [jus tertii against the other. MARTIN'S MINING CASES. [VOL. The position of the matter, then, is this. The plaintiff Victc-BS^M ceives a specific grant from the Crown of a certain mineral claim de- '. scribed by metes and bounds, and under and by virtue thereof occupfM| defines, and works his claim. Some months afterwards, the defendant obtains a similar grant to a portion of the land already inclu^K; | within the metes and bounds of the former grant, and asks, in effect, that the former grant be set aside so far as the conflicting portiosMB concerned. And this request is made despite the fact that the ap- j plicant is the junior locator and the junior grantee. Conceding that i both locators were, in strictness, at the outset, trespassers, how does that assist the defendant? In this country the spirit of the admin- | istration of the law relating to mining properties, is, as I understand it, quite apart from statutory provisions, to favour the title of the j senior locator and senior grantee. And surely, as a matter of common sense and natural justice, that is the only broad rule to follow, 1 unless it is proposed to foster litigation, and encourage " jumpei^' I If the defendant were relying on Mensing's grant, the result j would be very different, because the plaintiffs, as against Mensing, ] would be in the same position that the defendant herein is as against i them. But the foundation of the defendant's whole case is that ] Mensing's title had lapsed. In my opinion, the plaintiffs' prior grant which conferred upon j them for the term mentioned the exclusive right for mining purposes j to the land in dispute, before the defendant made her premature loca- 1 tion, should prevail against the defendant's later grant, so far as j the conflicting portion thereof is concerned. The appeal should be allowed with costs. . Appeal dismissed with costs. Note.—There was no difference, it will be noted, betwei Court on the point that the prior grant should prevail; determine on the facts Which was the prior grant. As to Yukon Mining Regulations in general, and the particular, and Crown grants, see Chapelle v. The King 32 S. C. R. 586. 187, 194, 236, 304" 333, 33G, 414. J . DENHOLM et i COOK ET AL. V. DENHOLM ET (8 B. C. 39.) If one of two joint transferees of an undivided interest in a mineral claim rejects the transfer, no title passes to the other. Section 11 of the Mineral Act of 1898, requiring both parties to give affirmative evidence of title does not apply to actions begun before that Act. Affirmative evidence of title may be given by means of the record of the claij and other documents. Adverse claim tried at Nelson on 28th October, 1897, befoi Walkem, J. Written arguments were put in in December, 1899. Daly, Q.C, for plaintiffs. Bodwell and Gait, for defendants. Cur. adv. vult. March 13th, 1901. Walkem, J.: — These are adverse proceedings brought for the purpose of preventing the defendants from getting a certificate of improvements preparatory to their application for a Crown grant. The facts connected with the case are as follows:—A miner.named Harrington located and recorded a mineral claim in Kootenay, in July, 1894, under the name of the Mariposa. When running his centre line he came upon another fresh line which, after a search, he found had one stake on it and was being run by a miner named Mahoney for location purposes. He, however, went on and completed his own location, first telling Mahoney that he would let him have a third interest in it. About the same time, he also promised, as he states in his evidence, to give a third interest to a friend named Stillman, as a " kind of donation." Now, there is no evidence whatever to support the statement in the plaintiffs' pleadings that the j location was made jointly by the three men in Harrington's name upon the understanding that he should hold it in trust for all three j in equal shares. The objection is taken in the statement of defence that this alleged understanding was not reduced to writing; but I doubt if I can give effect to it as the pleading omits to mention the j statute intended to be invoked. Brobably reference was intended to MARTINIS MINING CAS®S. [vol. he made to the 7th section of the Statute of Frauds, which is directigj| applicable. However, as I have said, there was no such understand^ ing on the part of any of the three men; and, judging from whs& subsequently took place, all that Harrington was expected to do was to fulfil his promise to the other two men by transferring a third .afr'. each in writing, as no transfer of a mineral claim, or of any interest in it, is valid except made in writing and signed by the transferrep (sec. 50, Act of 1896). As evidence of this expectation, Harrington handed the following bill of sale to Stillman: "Trail, B.C., Oct. 5, 1894. I " On the date above mentioned I the undersigned for and in consideration of the sum of five dollars, of which this shall be the receipt thereof, I hereby deed and quit claim unto William Stillman and James Mahoney an undivided two-thirds interest in and to the Mariposa mineral claim situate in Trail Cree,k Division of West Kootenay District, B. C. " Charles Harrington." E. S. Topping. " Recorded at Rossland, B.C., Oct. 15, 1897." This document speaks for itself, and as Mahoney refused to accept it, or have anything to do with it, it was not recorded at the time, as required by the Act, nor for three years afterwards—a circumstance that would make it inoperative as against the present defendants and their predecessors in title, even if it ever was valid as between the parties to it (Act of 1891, sec. 50). But it never was | a valid transfer; for Mahoney rejected it because, as he told both Stillman and Harrington, he wanted his third interest transfejgfld to himself alone by a separate bill of sale; and this latter, he.Sjiibj?- quently got from Harrington on his assuring him that the former, or, rejected, bill of sale, had been destroyed. The separate bill of sale is as follows: "For and in consideration of the sum of five dollars, of which this.^l be a receipt thereof, I hereby deed and quit claim unto James Mahoney an undivided one-third interest in and to the Mariposa mineral claim, situ^Pm 1V Trail Creek Division of West Kootenay. " Dated at Trail, February 14, 1895. "Witness, E. S. Topping. Charles Harrington." Furthermore, Harrington states that he never gave Stilhnaia ft separate bill of sale for any interest in the claim, and -as StUhnan does not appear >to have asked for one, Harrington no doubt thought that he did not want one, and consequently considered that he was at liberty to personally deal with the interest that he had promised j ■gtrUman, as the promise was a gratuitous one. Now, as StBlmaa j acquired no title from Harrington, or from any one else, his j sale of the 30th of October, 1895, purporting to transfer a interest in the claim to one Jerry amounts to nothing. Harri sold his remaining two-thirds interest in the claim as follows:—One third to G. Washolm on October 11th, 1894, and one-third to G. Jackson on May 3rd, 1896; and the defendant Denholm acquired the whole claim by bills of sale from these men and Mahoney of their respective thirds. Hawley bought an interest from Denholm, and has therefore been made a defendant. The plaintiffs claim title through Stillman, who, as I have shewn, had nothing to convey. This fact is apparent on the face of the Mining Recorder's books. All the transfers made by Harrington, except the rejected, or discarded one, as well as those made by the transferees Washolm, Mahoney and Jackson to Denholm, were recorded within the proper j time, and are otherwise in order. The action must be dismissed with costs. As it was commenced before sec. 11 of the Mineral Act of 1898 came into fprce, I am not called upon to report speciaUy on the defendants' title to the claim; but I have no hesitation in stating for the information of the I officer that it seems to me to be unimpeachable. I might also observe I that they may be said to have given "affirmative evidence" of their title because they put in the necessary records, and bills of sale, upon I which it depends. Action dismissed with costs. MINING CASES. Murphy v. Stab Explorin. Plan—Court—Judt An order to extend the 37 of the Mineral Ac a Judge in Chambers. Noble v. Blanchard (1899), ante, p. 373, not followed on this point. Decision of Deake, J., reversed, McColl, C.J., dissenting. Appeal from an order of Drake, J., made 14th November, 1900. This was an adverse action under the Mineral Act, the writ being issued on December 2nd, 1899, to which the defendants duly appeared. No affidavit or plan as required by sec. 37 of the Mineral Act as amended by sec. 9 of the Mineral Act Amendment Act, 1898, having been filed within the required time, the plaintiff, on appUcation to Irving, J., obtained on order, dated February 21st, 1900, extending the time until May 15th, 1900. This order not having been com- pHed with, nor any statement of claim having been delivered, the defendants took out a summons to dismiss for want of prosecution, which summons came on to be heard before Drake, J., in Chambers on November 14th, 1900. On the return of the summons, Drake, J., refused to dismiss the action and made an order further extending the time for fiUng the affidavit and plan until 14th May, 1901. The defendant company appealed to the FuU Court on the ground that the learned Judge had no jurisdiction to make the order. The appeal was argued at Victoria, on January 21st, 1901, before McCoa&, C.J., Walkem, Irving and Martin, JJ. Hunter, Q.C, for appeUant: Under the statute the time can only be extended by special order of the Court and so canno be extended by an order of a Judge in Chambers: see Bakei (1877), 2 Q. B. D. 171; assuming the time could be extended by a Judge in Chambers, the learned Judge here has no power to make such an order on our summons which asked that the action be dismissed; the Judge must be set in motion in the proper way. He j cited In re Cape Breton Company (1881), 19 Ch. D. 77; Salter v Salter (1896), F. 293, and the Yearly Practice (1901), 504. * Partly reported in 8 B. C. 421. MTJRPHT v. STAR MINING CO. The Court caUed on (Alexis Martin, for respondent: I rely on the decision of this Court in Noble v. Blanchard (1899), 7 B. C. 62, ante, p. 373. Cur. adv. vult. March 22nd, 1901. McColl, C.J. (dissenting) :—This appeal is from an order extend- ling the time for filing the plan under sec. 37 of the Mineral Act made Ion a summons to dismiss for want of prosecution. j The ground of appeal taken is that such an order could not pro- Iperly be made in Chambers. The affidavits used upon the application were directed solely to Ithe question whether the plaintiff had sufficient cause for further [extension of time and the arguments must have been addressed to [the same point, for it was the only one upon the application. I The learned Judge came to the conclusion that the time ought to be extended and made the order accordingly, no objection having [been taken that such an order ought to be made in Court. j In this Province a Judge sits at the same time and place in hearing applications in Chambers and in Court, and with great deference to my learned brothers, I cannot think it was necessary that he should pave gone through the form of adjourning the application before himself in Court before announcing his decision. j Walkem, J.:—This is an adverse action brought by the plaintiff [tinder the provisions of the Mineral Act, B. S. ch. 135 (1897), as iimended in 1898 and 1899. By sec. 37 of the Act the plaintiff in pch an action must file a personal affidavit of the particulars of his claim and a Provincial Surveyor's plan of the ground claimed, and Ii copy of the writ in the action, within 20 days after the commencement of the action, "unless such time shall be extended by a special [rrder of the Court upon cause being shewn." In tne present case ihe plaintiff being unable to comply with these requirements' within fO days obtained an Order-in-Chambers from Mr. Justice Irving in February, 1900, extending the time until the 15th May following. foth before and after that date the plaintiff endeavoured to get a jurveyor to visit the ground in question and make the requisite plan If it, but without success; whereupon the defendant company took ut a summons dated the 12th September, 1900, to have the action [ismissed for want of prosecution. This summons was heard in 'hambers on the 14th November foUowing by Mr. Justice Drake,- ['ho made an order further extending the plaintiff's time to the 14th MARTIN'S MINING GASES. [VOL. May, 1901. This order is now appealed from on the ground that there was no jurisdiction to make it in Chambers. Section 37, as ''• I construe it, would seem to leave no doubt as to the proper order toj . be made in such cases, for it says in so many words that it shall be " a special order of the Court," which, as it seems to me, means an.I order of the Judge in open Court, and not of a Judge in Chambers. This was seemingly the construction put upon the words by the late Chief Justice In re The Good Friday Mineral Claims (1896), 4 B. C. B. 496, ante, p. 84, and by Mr. Justice Drake in Kilbourne v. McGuigan (1897)', 5 B. C. B. 233, ante, p. 142, and by myself Re The Golden Butterfly Claim (1897), 5 B. C. B. 445, ante, p. 125; all of these cases having'been dealt with in Court. According to my notes the report of the last case is incorrectly headed " In Chambers." Moreover, the order which I made was, as I find from the records in the Begistry, an order under the seal of the Court. On the other hand, in the later ease of Noble v. Blanchard, supra, which is now relied upon by the respondent's counsel, the present learned Chief Justice made an order of the same sort in Chambers. This was appealed from on the alleged ground that the plaintiff's time for bringing his action and filing his plans had been illegally extended after it had expired. In the report of the argument for the appellant at p. 63, it is stated that the order was also objected to on the ground .of its having been made in Chambers, and, therefore, without jurisdiction, and that Baker v. Oakes (1877), 2 Q. B. D. 171, and Atty.-Gen. v. Lord Hotham (1823), 24 B. E. 21, 29, and soifte cases in the Annual Practice had been cited in support of that contention. The Full Court that heard the appeal consisted of my ] brothers Drake and Irving and myself, and we are all agreed that j this part of the report is incorrect, as no such objection was made or brought to our notice, and as none of the above cases was eited. I The judgment of the Court which was deUvered by Mr. Justice Drake J tends to confirm this, for it does not even refer to the point. Further- I more, the report shews that the counsel for the respondents never I referred to it. The case is, therefore, no authority on the point. A clear distinction has been recognized by the Court of Appeal -j in England between the words Court and Judge, which occur in the | phrase ff the Court or a Judge" that is used in the judicature rule, I for instance, it has been held in Baker v. Oakes and In re B , «■■ f lunatic (1892), 1 Ch. 463 (C. A.), that "Court" means a Court in I Banc, or a Judge in open Court, and Judge means a Judge sitting-ii I Chambers. This distinction is also referred to by Brett, M.E., in I Dallow v. Garrold (1884), 54 L. J. Q. B. 78, when construing tt» I phrase " Court or Judge " which oOC^tb in sec. 28 of 23 & 24 Vict. 1 ch. 127—a section that relates to solMtors' costs. . Such being the views of the Court of Appeal, we are bound, as 1901. natter of duty, to foUow them: Trimble v. Hill (1897), 5 A. C. at The appeal must, therefore, be allowed, but, in my opinion, with- t costs, as the respondents' counsel must have been misled by the ' Irving, J..-—1 concur with the conclusion reached by my brc . Martin, J.:—The learned Judge appealed from having, as a matter of fact, sat as a Judge in Chambers, and not in Court, there is no authority that I am aware of, except Noble v. Blanchard, supra, in support of the order appealed from. But I am informed by my learned brothers who sat in Noble v. Blanchard that that case is wrongly reported, and that the point raised herein was not then dis- | cussed. Such being the fact, it cannot be regarded as an authority, though the statement in the judgment of my brother Drake, on p. 65, that the order appealed from was made on a summons, would lead the reader to conclude that the order was made by a Judge in Chambers, I and not by the Court. ©n the point of law now before us I agree with the judgment of my brother Walkem. Appeal allowed without costs; order of Drake, J., set aside. MARTIN'S MINING CASES. Bentley et al. v. Botspord et al. (8 B. C. 128.) Mineral Claim, Interest in—Certificate of Improvements—Application for, by Co-owner—Mineral Act. rtificate of improvements This was an action purported to be brought as an adverse action under sec. 37 of the Mineral Act. For the purposes of this report all the facts necessary to be stated appear in the judgment. The trial took place at Vancouver before Martin, J., on 19th July, 1901. Martin, K.C., and E. J. Deacon, for plaintiffs. Sir C. H. Tupper, K.C., and Peters, K.C., for defendant Botsford. Duncan, for defendant MacquiUan. Cur. adv. vult. July 30th, 1901. Martin, J.:—The remaining point herein is, can a part owner of a mineral claim apply for a certificate of improvements under sec. 36 of the Mineral Act. That depends on the language of the statute, which provides: " Whenever the lawful holder of a mineral claim shall have complied with the following requirements, . ..he shall be entitled to receive from the Gold Commissioner a certificate of improvements in respect of such claim. . . ." • It is contended by the plaintiffs (the owners of three-eighths of the claim in question, the defendants being the owners of five-eighths ; thereof) that the general effect of sees. 36 and 37 is to shew that the statute contemplates all the interests being represented in the appUcation. The best way to arrive at what is contemplated by the statute j is to weigh the language of the section in question in the light of the interpretation placed upon it by the Act itself. For the purposes of this case the meaning of " lawful holder " has j been and may properly be taken to be equivalent to " owner," or j " owners,", the singular including the plural. Hi A mineral claim," it is declared by sec. 2, " shall mean the personal right of property or interest in any mine;" and "' mine * shall mean any land in which any vein or lode or rock in place shall be Mai mined for gold or other minerals, precious or base, except coal." Applying the above interpretations to the language in question it appears to me to be clear that the section must in its widest sense be (construed as reading " Whenever the lawful holder (or owner) of an interest in any mineral claim, &c, &c." Such a construction would include the defendants and since the right to apply is thus conferred in plain language it would require an equally plain declaration of in- | tention to take that right away. In coming to this conclusion I have not lost sight of the difficulties ich may arise as suggested by plaintiffs' counsel, but the apprehen- a. of difficulties does not justify my preventing the defendants from prting to the exercise of statutory rights. Holding this view it becomes unnecessary for me to consider the ection raised by defendants' counsel to this action not being main- lable as an adverse action under sec. 37. Judgment wiU be entered in favour of the defendants with costs. r Ibviko, J., in F Judgment for defendants. ante, p. 333. Botsford, post, p. 520. MARCHES"* MffNING CASES. November 7. Full Coukt. Lawr v Parker (7 B. C. 417 8 B. C 223). nent Work—t -Affidavit—No ecs. 24 28, 53; entifaate.; ice—Mist Mineral of WotH— Grown- ike of Official—Tin Act, 1898, sec. 5. -Adjoining e—Esoten^ stake performs his asses hat is an irregularity v »ment work outside /hich is cured by r the boun- If a free miner by m daries of his claim certificate of work. The Attorney-General is the only party who could attack such certificate. If a free miner is misled by the statement of the Gold Commissioner and consequently neglects to give the notice required by sec. 24, and makes an incorrect affidavit, he is protected by sec. 53. The effect of sec. 33 of the Mineral Act, 1898 is to provide for an extension of time within which the certificate can be obtained. Gelinas v. Clark, ante, p. 428, followed. Decision of Walkem, J., affirmed. Appeal by defendant from judgment of Walkem, J., in an action of ejectment tried at Nelson on 2nd November, 1900. S. S. Taylor, Q.C, for plaintiff. Galliher, for defendant. Cur. adv. vult. November 6th, 1900. Walkem, J.:—The plaintiff located and recorded a mineral claim, near Nelson, named the Bebecca, in 1898. The same ground, or nearly so, was subsequently located as the Blue Jay by a miner through whom the defendant claims title. The defendant's counsel called no • witnesses at the trial, on the ground that the defects in the plaintiff's i title were such as to call for a dismissal of the action. These defects, which are of an exceptional character, occurred j owing to mistakes made by the plaintiff with reference to the annual assessment work required to be 'done on a mineral claim to preserve it from being " deemed vacant and abandoned" under sec. 24 of the 1 Mineral Act. The ground in dispute is on the slope of Morning mountain which j overlooks the city of Nelson, and was located by the plaintiff on the ] 18th of August, 1898, as the Bebecca and as an extension of the Ida j in which he had an interest. The due location of the Bebecca is not I contested. Under the circumstances mentioned, the plaintiff, who is I .illiterate, asked the Gold Commissioner, Mr. Turner, if his assessment 1 work on the Ida would be regarded by him as assessment work hh- j I pliedly done on the Bebecca, and that officer, as he states, said it would: j see sec. 24 of the Act. This has not been denied, although Mr. Turner | I was, at the time of the trial, within call at the instance of the defen-1 dant if his counsel doubted the fact. I must, therefore, assume that it I 1 was true. But counsel, in substance, contends that whether it was | true or not, a consent on the part of the Gold Commissioner that the I I.) benefit oi Bebecca, wished tc of his im joining c had not 1 Idl ad ) the Ida should extend to, and protect the ig as it was the duty of the plaintiff if he efit, to file, as required by sec. 24, a notice - isessment work on one or other of his ad- no such notice had been filed, the Bebecca ny work alleged to have been done on the r, be deemed to have been abandoned: see syers to this contention. The first is that 10 doubt unintentionally by the Gold Corn- prejudiced by that circumstance, for sec. it was cure received f r which he d any Government official, if such can be proved;" n act of commission as it were, has been proved, is that-, as what was done was a mere " irregularity," certificate of work which the plaintiff subsequently Recorder for the Bebecca, viz., in August, 1899, and rded;forbysec. 28 « The next objection is that the affidavit made by the plaintiff for the purpose of obtaining the above mentioned certificate of work on the R&beeca, is untrue, inasmuch as it states that the work was done, contrary to the fact, on the Bebecca. This affidavit was made in the office oi the Eecorder at Nelson, and on his advice; for, before the plaintiff made it, he told the Eecorder that the work had not been done on the Rebecea but on the Ida, and that, by leave of the Gold Commissioner,, it was to be considered as assessment work on both claims. And he, thereupon, asked the Eecorder how he should fill up the blanks in the statutory form of affidavit handed to him by that officer, and was told that it would be sufficient if he simply stated that the work was done on the Bebecca, and that such a statement would be satisfactory; and the plaintiff accordingly made it, and received the certificate. A gentleman, named Inskip, happened to be present at the time, and he plaintiff's evidence in this respect. The plaintiff the Eecorder, and such being the case, sec. 53 which ed, protects him. Moreover, in view of the facts he incorrect filling up of the affidavit, as a mere t the plaintiff ought to have stated, and the Eecorder ormed him, was, in effect, that the work was done sment work for the Ida and Bebecca, by permission issioner. I would also observe that I wholly absolve fully confirm s th was thus misl pdb I have above stated, I reg ird irregularity, should have £ Wh< o in on the Ida as asse of the Gold C omn MARTIN'S MINING CASES. Ivon.' . the plaintiff from any intention to misstate the facts in his affidayjE^' for he gave his evidence upon this, and other matters, in a manner ?- that was perfectly frank. The third objection is that the work alleged to have been done on the Ida, which was the sinking of a shaft, ten feet deep in solid rock, was not done on that claim, but was done on a fraction alongside of it, which had been located by a surveyor. The shaft is about twenty feet north of the Ida's upper line and at a distance laterally, and to the left of the No. 1 post of the Ida of about three hundred feet. As the Act only requires the location line of a claim to be defined by stakes, . and, hence requires no' boundary posts to be placed at the ends of either the upper, lower, or side lines, the mistake made by the plaintiff is an excusable one. It only came to his knowledge recently through a survey being made by the surveyor referred to with a view^ of ascertaining the Ida's upper line, as it was the dividing line between that claim and his fractional claim. The plaintiff, of course, loses his shaft, and the surveyor gets the benefit of it; and I consider that it would be an extremely haTsh measure if I further punished him by depriving him of his claim, as I am virtually asked to do, in consequence of his inadvertent and costly mistake. The shaft was evidently sunk in good faith, with a view of fulfilling the provisions of the Act which requires annual assessment work of the value of at least $100 to be done on every location; and having regard to this fact, I consider that the plaintiff virtually complied with the spirit of the provision referred to, notwithstanding his mistake. As I have pointed out in Peters v. Sampson (1898), 6 B. C. 405, ante, p. 247, I one of the cardinal principles of the Mineral Act, as appears in many of its sections, is, that a miner is not to be deprived of his claim in consequence of inadvertent mistakes such, for instance, as those I have been considering. The defendant has not alleged that he has been misled by them; nor has he shewn any merits, for, as I have already ] stated, no evidence was put in on his behalf. Apart from all this, the attack made upon the plaintiff's title, is, I manifestly, in substance, a charge that he obtained his certificate of I work by fraud, or in other words, by. means of a false affidavit. Now, I even if this were true, the certificate could not, according to sec. 28, f be set aside, except fraud in obtaining it was proved in a suit brought I by the Attorney-General. But it is not true; for I have already shewn | that the plaintiff was wholly blameless for the mistake in his affidavit j and that the Mining Eecorder was responsible for it, and that this last I circumstance would, under the Act, of itself absolve the plaintiff from j blame. I have no hesitation in saying that perjury could not be I assigned as against the plaintiff on the affidavit mentioned, as there I was an absence of a mens rea on his part when making it; and perjury I would be the test of whether the affidavit was fraudulent or not. The plaintiff is, with costs. I The defendant appealed an oh 29th Junej 1901, before Mc Judgment for plaintiff with costs. the matter was ar-med at Vancouv Davis, K.C., for appellant: The question is, does sec. 28 cure the Argui defect of the work not being done;omthe claim at all? He referred to S. S. Taylor, B.C., for respondent. Cur. adv. vult. November 7th, 1901. with costs. e-foUowing judgr ?re handed down: Irving, J.:—I am of the opinion that it was not open to the plain- iff to challenge in this action the correctness of the method by which he defendant obtained bis certificate of work; I am inclined to think : hat error in this matter should be taken advantage of within a reason- He time by application to the Attorney-General. I Having disposed of the question of work being performed outside of he claim, the case comes to this: The plaintiff had a properly located laim, duly recorded and had obtained and recorded a certificate of rork, the defendant or his predecessor in title comes on the ground nd jumps it. The conclusion of the learned Judge appealed from was ight. The appeal should be dismissed with costs. •Martin, J.:—So far as the effect of sec. 28 is concerned this case cannot be distinguished in principle from Gelinas et al v. Clark 1901), 8 B. C. 42, ante, p. 428. Our attention was drawn to sec. 5, h. 33 of the Mineral Act Amendment Act, 1898, but I share the pinion expressed during the argument that its effect is merely to 'rovide for an extension of the time within which the certificate can be btained, and once it is obtained either within the original or the ex- ended period, sec. 28 operates as best it may on either of such periods. It being admitted that if the respondent succeeds on this point he an on the other under sec. 53 it remains only to dismiss the appeal Appeal dismissed. n MARTIN'S MINING CASES. In re Water Clauses Consolidation Act, 1897.. Centre Star Mining Co. et al. v. Brit. Col. Southern By. Co. ET AL. Water Record—Priority—Joint Application for Record—-Jurisdictibn-^^M Ownership—Co-owner—Purposes for which Water required, Mining, Domestic, Fire, &o.—Duty of Gold Commissioner—Notice, Validity of—SurpVM^M —Water Clauses, Consolidation Act. Water records under the Water Clauses Act may be held jointly. If an applicant asks for more in his notice than he is entitled to, that does not invalidate the notice; it is valid for that which he is entitled to and it is the duty of the Gold Commissioner to adjudicate upon and not reject the application. Semble,—A supply of water for fire purposes may be necessary as being directly connected with the working of a mine or incidental thereto. Decision of Martin, J., affirmed. Appeal by the British Columbia Southern By. Co. from a decision of Martin, J., reversing the decision of the Gold Commissioner refusing appellants' application for water records. The original appeal from the Gold Commissioner was argued at Eossland before Martin, J., on 28th May, 1901. For the purposes of this report the facts are sufficiently stated in the judgment. Gait, for the appeUants, the Centre Star Mining Co. Davis, K.C. (W. S. Deacon, with him), for respondents. Abbott, for the City of Eossland, the holder of a prior record. June 1st, 1901. Martin, J.:—It is objected, first, that under Part II. of the Water Clauses Consolidation Act an application cannot be made by two companies jointly. Section 8 provides that " every owner of land may secure the right to divert unrecorded water," and sec. 10 contains a corresponding provision in favour of " every owner of a mine." By see. 10, sub-sec. 13 of the Interpretation Act " words importing the singular number . . only shall include more persons ... of the same kind than one,'r and by sub-sec. 14 the word " person " includes any body corporate. J I.] CENTS ! STAR MINING . B. C. SOU1 IEI RY. CO. iat the statute does not prohibit the acquisition of such an •e is nothing at common law which is opposed to water ike any other form of property; the objec- It is admitted that in the case of two co-owners of one mine there K would be no objection to a joint water record, but it is contended that where two owners own two different mines it cannot be granted, ? and counsel gave several illustrations of difficulties which might arise in the practical working out of the Act in the latter case. While I fully appreciate the probability of difficulties being encountered, yet a remedy therefor will, I think, in most cases be found in sees. 18 (3), 20 and 28, and even if not the element of difficulty would not of itself justify the Gold Commissioner in refusing to entertain such an application. Seeing 1 interest the records being held jointl tion is therefore overruled. It is further objected that the notice given under said Part II., was invaUdated because it included among the " purposes " for which the water was required a purpose not authorized by sec. 10, i.e., " domestic and fire purposes." Applications by owners of land for water records for " agricultural, domestic, . . . mechanical or industrial purposes" must be made under sec. 8 to the Commissioner of Lands and Works or his assistant or representative in the district. Owners of mines may secure similar records under sec. 10 " for any mining purposes or other purposes incidental thereto, or for milling, concentrating or other purposes in connection with the working of (their) mines,'' and such application must be made to the Gold Commissioner. The statute certainly contemplates distinct applications to two distinct officials of limited jurisdiction. But does the fact that an appKeant, in applying to the proper official, includes in his application \ not only a request for water which that official may grant, but also a ; request which he may not grant, thereby invalidate the whole application and render it impossible for the official to deal with it at all? The contention to be effectual must go to this length that because an applicant asks for more than he is entitled to he is thereby debarred from obtaining that which he is entitled to. Por the applicant it is on the other hand contended that the unauthorized request should be treated as mere surplusage and that the Gold Commissioner should deal .with the matter so far as his authority permits him and grant a record for what water he may think the circumstances justify. At the hearing the applicants expressed their readiness to abandon their claim for " water for domestic and fire purposes " and requested the Gold Commissioner to deal with it as a claim for mining purposes only, but he refused that request and dismissed the appUcation. Of course neither under sec. 13 nor 18 can the Gold Commissioner do more than 462 MARTIN'S MINING CASES. W 1901. grant a record for that amount of. water which in his discretion shalli November 20. bg <, reasonabiY necessarY for the purposes specified in the application," Full Court, but what is complained of here is that the applicant was not permitted to shew what was reasonably necessary. In view of the fact that sec. 16 provides that a on any dispute arising prior to record priority of notice of application shall constitute priority of right," it is not in my opinion, contemplated that obstacles should be placed in the path of one who, conforming to essentials, is endeavouring, bona fide, to obtain the, in many instances, all important benefits of the Act. In the case of such an appUcant the spirit of the statute will be best preserved by placing upon it a liberal and reasonable construction, and I am unable to agree with the argument that pubUc or private interests are likely to suffer by allowing an applicant to abandon any part of the claim included in his notice. In the present case, apart from the admitted " mining purposes," it might on investigation appear that under the particular circun^fi stances a supply of water for fire purposes would be necessary as being directly connected " with the working of a mine" or " incidental thereto;" that would be a matter for the Gold Commissioner to determine on the facts of each case—it might be proper to grant it for such Judgment PurPoses to one applicant and not to another, below. My decision herein is not that it was necessary that there shouki "''' have been any amendment of the notice but that the Gold Commissioner was not justified in refusing to exercise the powers he had because the applicant asked him to exercise those he had not. When the applicant declared his readiness to abandon what the Gold Commissioner regarded as the unauthorized claims in his notice of application they should have been considered as mere surplusage and the hearing proceeded with on the remaining claim which the Gold Commissioner has jurisdiction over. It follows that the adjudication of the Gold Commissioner is reversed and the matter referred back to him for re-hearing and re- adjudication. ■ The appellants are entitled to the costs of this appeal to be paid by- the British Columbia Southern Bailway Company. Appeal allowed with costs. Appeal. From this,, judgment the railway company appealed to the Pull Court and the appeal was argued at Vancouver on 7th November, 1901, before McColl, C.J., Walkem, Drake and Irving. JJ. Argument. Davis, K.C., and MacNeill, K.C., for the appeal. Gait, contra. Cur. adv. vult. The judgment of the Court was deUvered by Drake, J.:—This cause depends entirely on the constr placed on the Water Clauses Consolidation Act, ch. 190, it. S. 13. C. 1897. The Centre Star Company and the War Eagle Company joined in an application for water to be taken from north, south, and middle I forks of Murphy Creek; the water was purposed to be used for I operating machinery for domestic and fire purposes, and for general I purposes of mining and milling ore, and generating power, and to be I nsed on or in the vicinity of the War Eagle and Centre Star mines I situate on Bed Mountain. The British Columbia Southern Bailway I Company made an application for water, subsequent in date to that of I the mining companies, and opposed their application on the grounds I that the Act did not contemplate a joint application by two independent companies having no connection one with the other, and not I even adjoining each other, and further that the application for water I for domestic purposes could not be made under the sections of the I Act relating to appUcations for water for mining purposes; they also I objected on the grounds that the locality where the water was to be I used was too indefinite and not in accordance with the Act. The learned Judge who heard the appeal from the refusal of Mr. iKirkup to grant the rights asked for, referred the matter back to Mr. IKirkup. I Sec. 11 of the Water Clauses Consolidation Act directs where the Inotices of intention to apply for a record shall be posted up, and what [the notice shall contain. I It is not disputed that the necessary notices were duly given, but it lis argued that the notice is void and the application also void because lof the objections already stated. [ The only absolute pre-requisite for the record of water is, that Inotice shaU be given as required by the statute containing the parti- Iculars mentioned. I An applicant may ask for more than the law will allow him, he Imay specify things in his notice which are not mentioned in the Act, Ihese things wiU not render his application void. • Sec. 13 shews that the Commissioner is acting as a judicial officer—in deaUng with water • bppUcations he has to consider the unrecorded water open for diversion—the amount available—pending applications, and generally all Ihe surrounding circumstances; he has to exercise his discretion on th these matters before he aUows the record. I If more persons join in an appUcation than the law contemplates, pr if some of the uses for which the water is to be put are not in his ppinion correct, he has power to make the record, omitting "those jinatters which are in his opinion incorrect, just as much as he has MARTIN'S MINING OASES. [VOL. power to limit the amount of water to be used, or define the particular I § place or the inining property on which it is to be used. In my opinion ■ in this case the petitioners ought to be called upon to elect for whom they will apply. The intention of the Act it appears, from a general views of its- provisions, is that any mine owner or number of mine owners interested in one claim may apply, or owners of a group of mines under control of one company or partnership, may join in an application, but not several owners of separate and distinct mines with no proprietary connections; if such a course was allowed, very great difficulty might arise. Without enumerating such difficulties, it is Sufficient to say that in my view such a proceeding was not in contemplation of the f ramers of the Act, which was to enable the waters of the Province to be separated for the use of all miners and not to he absorbed for scattered miners under one application. Therefore, the appeal should be dismissed, allowing the applicants to elect for which mine or group of mines under one management they desire the water, and the place where the water is to be used to be defined. The appeal will therefore be dismissed with costs. Appeal dismissed with costs. Ii WAR EAGLE CON. MIN. & DEY. CO. v. B. C. SOUTHERN RY. CO. In re Water Clauses Consolidation Act, 1897. War Eagle Consolidated Mining and Development Co. Ltd., et al. v. British Columbia Southern By. Co. et al. Record—Priority—Pendin tses Consolidation Act. Where two different officials are called upon to exercise their functions i regard to applications for water rights in respect of the same w official who is determining the later application should stay his hand x. the final result of the prior application before the other official is known. Decision of Martin, J., affirmed. Appeal from a decision of Martin, J., reversing a decision of the Staten Assistant Commissioner of Lands and Works at. Nelson, given on 27th March, 1901, granting to the railway company a record of 400 miner's inches of water out of Murphy Creek, and confirming the previous record made by him on 12th November, 1900. Por a full statement of the facts and proceedings: see ante, p. 422. The original appeal was argued before Martin, J., on 28th May, 1901, and on 1st June he delivered judgment as foUows: June 1st, 1901. Martin, J.:—In regard to the first objection, that the Assistant Commissioner had no jurisdiction to deal with the matter because the " volume of unrecorded water available for diversion " had not t proved, all I have to say is that in paragraph eleven of the petition it is stated in effect, that there was no unrecorded water available i at aU, so consequently the Assistant Commissioner proceeded under sec. 18, sub-sec. 3, and granted an interim record. Though it is true that the final paragraph of sec. 18, sub-sec. 1, provides that the procedure on an application for a grant of recorded water shall be the j same as that on an application for unrecorded water under sec. 13, yet I see nothing in the language of that sub-section which would | prevent the adoption of the course herein taken were it not otherwise " I objectionable. 466 MARTIN'S MINING CASES. [vol. 1901. But sec. 13 requires the adjudicating official under either section^ ovemer . ^ ^&Y& regar(j t0 « pending applications," and at the hearing before Full Court, the Assistant Commissioner now complained of the appeUants appeared and objected to his disposing of the appUcation of the respondent ^company until the application of the appeUants under sec. 11 then pending before another independent official, the Gold Commissioner,, had been finally disposed of on the appeal from his decision set down for hearing before this Court. As a reason for the postponement of' the matter pending said appeal it was proved that the prior application of the present appellants for 175 inches embraced nearly ah the water in Murphy Creek, the average flow being about 206 inches . during the dry season. I confess I do not understand why the Assistant Commissioner deemed it necessary to dispose of the matter without regard to the pending application of the appellants. There is, to my mind, nothing in the order or judgments of the learned Chief Justice which contemplates such a course, and it would appear to be most seemly where two- different officials are exercising their distinct functions in regard to water rights, that the official who is determining the junior appUcation should stay his hand till the final result of the senior application Judgment before another official in regard to the same water be known, except Martin'j. °^ course when it clearly appears that the volume of water is sufficient to satisfy aU applicants. It follows from the judgment I have just delivered in the case of the Centre Star Mining Co. v. B. C. Southern Railway Co.* to which I refer, that the rights of the appellants have been prejudicially affected by the adjudication or decision complained of, and that adjudication is consequently declared to have been prematurely and improvidently made and is hereby set aside and the record complained of cancelled. The matter is referred back to the Assistant Commissioner for re-hearing and re-adjudication. The respondent company will pay the costs of this appeal. ppea. rp^ raiXway company appealed to the Pull Court, and the app was argued at Vancouver, on 29th June, 1901, before McColl, C.J.. Walkem and Irving, JJ. r umen . Davis, K.C., for appellant. Gait, for respondent. MINING CASES. January 10 SlAK Mining and MILLING Co. LTD. LBY. V. Bl'RON N. WHITE Co. — ' (Foreign). Mineral Clai Rights —A Appeal. (9 B. C. 9.) ection and- Expt An order for inspection and surv thereof in an action concerning taking for damages, but not a i Form of order settled. Costs of an interlocutory appeal a lyable forthwith. ' Appeal by defendant company from an inspection order made by • McColl, C.J., in an action for damages for trespass. The plaintiffs were the owners of the Heber Fraction and Babbit Paw mineral claims in Group One, West Kootenay District, and the defendants were the owners of the adjoining mineral claims, the Slocan Star and the Silversmith, both of which were located and recorded in October, 1891. The defendants alleged that in carrying on mining operations upon their claims they discovered a vein which j had its apex on their claims and which in its course downwards de- >. parted from the perpendicular in such a way as to extend outside Me I vertical side lines of the surface locations of their claims and entered j into and under the ground comprised within the surface locations j of the Heber Fraction and Babbit Paw claims, and that in following I this vein upon its dip and pursuing lawful mining operations thereon j they had entered underneath the plaintiffs' claims which they said j they had a lawful right to do, and that was the alleged trespass com- j plained of. In paragraph 5 of the statement of claim it was aUeged j that defendants were aUowing some of their workings to cave in or filling them with waste material and were conceaUng different work- j ings to the damage of the plaintiffs. On plaintiffs' application, Mc- 1 Coll, C.J., on 11th December, 1901, made an inspection order wh'cl I was in part as follows: And the plai riffs order opinion that the defendants have sustained a: anything done thereunder by the plaintiff whi and the plaintiff, by counsel aforesaid further ation obtained by them in the course of the in shall be used by them for the purposes of thii otherwise disclosed by the plaintiffs. The American practice is that the parties making the inspe their own plans. For business reasons one company's business should not be disclosed to the other side—they may be rivals competing on the stock market. In E. & N. Railway Co. v. New Vancouver Coal Co. (1898), 6 B. C. 196, ante, p. 223, the order did not go nearly so far as this order. The clause allowing them to take samples should be limited to a reasonable amount, and they should not be allowed to make experiments at all—anything of that sort should be on special appUcation to the Court. Experiments might destroy property. The American practice is to make a plan and let the owners of the mine do the work. In case of extralateral rights we are making practice MARTIN and the Court is not bound analogous. Davis, K.C. (S. S. Taylor, K.C., with him), for respondents: There is an aUegation that defendants are filling up some workings so we must see the plans. It is not merely a question of where the ore is, but of where the apex is also. As to making experiments we don't want to work as in Centre Star v. Iron Mask (1898), 6 B. C. 355, ante, p. 267, we don't mean that, and are wiUing to let the order so read. The order follows the wording of Bule 514, and therefore there is no question as to the necessity of security—the form always is an undertaking. He referred to DanieU's Ch. Forms, 786; Pra& J| Pratt (1882), 47 L. T. N. S. 249; Beaven v. Webb (1901), 2 Ch. 74, and Bennett v. Griffiths (1861), 30 L. J., Q. B. 98. Bodwell, B.C., in reply. The judgment of the'Court j January 11th, 1902. i pronounced by Walkem, J., J follor Per Curiam :—The appeal by the defendant company is dismissed with costs; and the order appealed from is to stand, save that the phrase " try experiments " is to be struck out, as requested by counsel for the appellants, and assented to by the other side. As the presence of the phrase in the order was not one of the grounds of appeal, we consider that the above amendment should not affect the question of costs. Appeal dismissed with costs. Bodwell, K.C, asked that the costs of the appeal should not be payable until the final disposition of the action. The ruling on this point was reserved until the next day when the Court announced that they were all agreed that in interlocutory appeals the successful party when allowed costs should get them forthwith, and not have to wait until the end of the litigation. t of this order, post, PAULSON v. BEAMAN et , Paulson v. Beama April r, Precedent to FtJLL CoUR'1 precedent to right of t filed as required by Min lot only be made and si on which it is based mi ■se points, Hui rsed on —The p f the dverse action that an affidavit and :ral Act, sec. 37, and Amendments. jned by a provincial land surveyor, 3t be made by him. ter, C.J., dissenting. aths Act, sec. 16, apply to affidavits Appeal from a decision of Martin, J., given during the trial of Statement. bn adverse action at Nelson, on the 19th and 20th of February, 1902. ! McOann, K.C., and R. M. Macdonald, for defendants: We object iro the admissibility and vaUdity of the affidavit purported to be filed mder sec. 37 as amended by sec. 9 of the Mineral Act Amendment |iet, 1898, because there is no date at all given in the jurat; it is a ftuUity: In re Robertson (1869), 5 P. E. 132; Archibald v. Hubley [1890), 18 S. C. 116; Schultz v. Archibald (1892), 8 Man. 284; He Duke of Brunswick v. Harmer (1850), 19 L. J. Q. B. 456; In re Lloyd, lb., p. 457. S. S. Taylor, K.C. (O'Shea, with him), for plaintiff: The defect s cured by the Oaths Act, ch. 3, B. S. B. C. sec. 16, which Act first ■ppeared in this Province in 1892, ch. 1, sec. 15; see also Eddow'es . The Argentine Loan & Agency Co. (1890), 59 L. J. Ch. 392; the ■xhibit marked on the plan accompanjdng the affidavit shews that here is no doubt the affidavit was sworn in August, 1900, and the uourt may weU "think proper to receive it," under the discretion onferred by sec. 16. Per Curiam:—(After referring to the cases of Nesbit v. Cock 1879), 4 A. B. 200; Ford v. Kettle (1882), 9 Q. B. D. 139; Inman ■ Rae (1895), 10 Man. 411; Re Marquette Election (1896), 11 Man. 81.) Section 16 cures the defect as to admissibility, and under the rrciunstances the affidavit should not be rejected. It is in effect mdered in evidence as proof of compliance with the adverse sections, Inch is disputed: it is receivable in evidence for what it is worth. MARTIN'S MINING CASES. 1vol. Macdonald. Then we object to the plan produced by the plaintiff as not somplying with the same section of the Act. .The fact ■ that it is directed to be made and signed by a surveyor shews it must be accurate; we do not deny that it was made by the surveyor who signed it, but it should appear that he himself made the survey before doing so, otherwise it cannot be accurate; what is offered here is only a sketch plan, and is so styled on its face. Taylor, K.C. The Act does not call for such a plan, nor require that the surveyor should have himself surveyed the ground before having | made and signed " the plan as the statute directs; there is no " charm in the words " sketch plan." I tender this plan in evidence for what it is worth. Per Curiam:—The sole objection really is that the plan is not accurate because the surveyor did not himself make a personal survey before drawing the plan. How can it he said at this stage of the case whether it is accurate or not ? If I were to dismiss this action on the ground that this plan was not accurate, and it should turn out ; during the course of the trial to be so, what position would the Court j be placed in ? I cannot dispose of the action on this preliminary quee- I tion of fact. It may be that in a case where the map or plan filed was on the face of it so manifestly inaccurate that it could not reasonably j be called a map or plan, then the objection would prevail without I further proof. But as this plan appears before me, and looking at it | without any other evidence (which I must do for the purpose of this I present objection) it appears to " set forth the nature, boundaries I and extent" of the "such adverse claim," so that the defendant has full I notice of the plaintiff's1 claims, and if it does, then the statute is fori the present satisfied, and I would not be justified in dismissing the I action. I do not determine the question of sufficiency merely by the I title of the map. It was admitted that the plan was " made and I signed " by a provincial land surveyor, and the mere fact that it does 1 not appear on the face of the map that he surveyed the adverse claim I before he made the map or plan does not warrant me in rejecting it.J The adjudication of the plan as sufficient now does not say that it j may not yet be shewn that it is not a " map or plan'' within the mean-j ing of the Act. Objections ovem0. I The case was then proceeded with, but after some evidence va| taken the plaintiff applied for a postponement of the trial, to provJ his free miner's certificate, and also the survey, which postpoueroenl was granted, largely on the ground of some uncertainty having beeJ created by a certain consent order made on the 4th of Decembeil 1901, by which leave had been given to the plaintiff to apply at the trial to put in evidence of measurements. The defendants appealed and the appeal was argued at Vancouver, on 17th April, 1902, before Hunter, C.J., Walkem and Irving, JJ. Davis; K.C., for appeUants: The plan must be based on an actual survey made by a provincial land sur ; the affidav S. S. Taylor, K.C., for respondent: The plan and affidavit fulfil Argum th,e statutory requirements: the filing of them is not a condition precedent to a right of action; they do not go on the records of the Court, but are filed in the Mining Becorder's office, for the benefit of the pubhc, quite distinct from proceedings in Court. Per Curiam. (Hunter, C.J., dissenting) :—The plan must be J«dgm. made by a provincial land surveyor from the notes of a provincial land surveyor; the filing of such a plan is a condition precedent to a right of action. The appeal is allowed with costs, and the action dismissed with costs. Subsequently the following judgments were handed down: Hunter, C.J.:—In this case the trial was proceeding before Mr. Justice Martin, when difficulties arose over the question of the admissibility and validity of the affidavit and plan which the plaintiff had filed in purported compliance with the provisions of sec. 37 of the Mineral Act, which resulted in the learned Judge holding that the affidavit and plan were admissible and were prima facie in compliance with the Act, and the plaintiff was granted an adjournment for the purpose of having a survey made of his adverse claim, and it is this. adjudication and order that are complained of. Mr. Davis takes the ground that on it being made to appear that the plan was not based upon the survey made by the provincial land surveyor, but was made from notes supplied him by the plaintiff, the learned Judge should have thereupon dismissed the action, because, as he contends, the statute requires the plan to be based on a survey made by a provincial land surveyor, and makes the filing of such affidavit and- plan a sine qua non of the plaintiff's right to litigate his claim, and this is the view, as I understand it, that is accepted by the other members of the Court, with the result that the appeal is allowed and the action dismissed, the judgment of the Court to be the final judgment in the action. Assuming that we are entitled to consider these matters, coming up the way they do in this appeal, as to which I feel very much doubt, MARTIN'S MINING CASES. lv°i" but which I do not think it necessary to stop to discuss, I am of opinion that it is not correct to say either that the plan must be based ■ on a survey by a provincial land surveyor, or that the filing of the j. affidavit and plan is a sine qua non of the right to prosecute the action. " To deal with the last point first. The section as it stands on the statute book is sec. 37 of E. S. B. C. 1897, ch. 135, as amended h%r 1898, ch. 33, sec. 9, and 1899, ch. 45, sec. 13, the latter amendment^ being immaterial for the-present purposes. The revised statute required the plaintiff to commence his action within the sixty days, to file the copy of the writ with the Mining . Eecorder within twenty days after the issue thereof, and to prosecute the action with reasonable diligence, and failure to so commence or- prosecute, was to be deemed a waiver of his claim. It is manifest, I think, that the provision requiring the filing of a copy of the writ is not for any purpose connected with the litigation, but to inform the. Mining Eecorder and the public that the litigation is going on. So likewise at the termination of the litigation, the successful party may and generally does file with the Mining Eecorder a certified copy of the judgment. By the Amending Act of 1898, the information thus required to be given to the Mining Eecorder and the public is supplemented by requiring the plaintiff to also file an affidavit setting forth the nature, boundaries and. extent of his claim, together with a plan made and signed by a provincial land surveyor, and obviously this is an improvement on the former Act, as a sworn statement respecting the locus in quo, accompanied by a surveyor's plan capable of that ocular inspection which always aids much in such matters, is required to be filed for the use of the Mining Eecorder and the pubUc. A It is clear, I think, from the wording of the section, that the' filing of the copy of the writ and of the affidavit and plan all' stand on the same footing, and the juxtaposition of the requirements to my mind implies that they are all for the same purpose, and, as I have already said, it is plain that the fiUng of the copy of the writ cannot be required for the purposes of the Utigation. The statute, moreover, makes a failure to commence or prosecute the action in the required manner a waiver of the plaintiff's chum, that is, such failure automatically puts an end to the adverse claim in favour of the defendant, but not so in the case of a failure to file the copy of the writ or the affidavit and plan. Again, if the proceedings other than the filing of the copy of the writ are required for the purposes of the litigation,why is it that they are not required to be filed in Court or deUvered to the opposite party? It is, moreover, clear that the filing of these documents cannot be a m . BEAMAN'i | eondition precedent to the right to commence the litigation, as they j are to be filed after action brought, and it is, I think, doing violence to reason to hold that such filing is a condition precedent to the right J to continue the litigation, although I see no reason to doubt that the I defendant may invoke the general jurisdiction to stay proceedings in •the event of non-compliance. The truth of the matter is, that we find I an enactment relating to ancillary proceedings in the office of the I Mining Eecorder set in the middle of an enactment relating to 1 I proceedings like a boulder in a bed of conglomerate, which will not I surprise anyone who is aware that any member of the House may I initiate legislation of this sort without its having undergone any pre- [ vious supervision by some law officer of the Crown. But, if I am wrong in this view, I am of opinion that in any event | there is nothing in the Act that requires the plan to be based on an I actual survey. All that is required is that the plan should be, in the [ words of the section, " made and signed by a provincial land surveyor." j Now, it seems to me, that as Mr. Taylor pointed out, the word "'made " lis interpreted for us in sub-sec. (c) of the previous section, and it is [ evident that there it is not used in the sense contended for by Mr. I Davis, and it is a rule that a given word shall be assigned the s j meaning, as far as possible, throughout the statute as regards the same [subject matter: see Hard-castle, p. 186; Courtauld v. Legh (1869), L. B. 4 Ex. at p. 130; In re National Savings Bank Association (1866), 1 Chy. App. at pp. 549-550; Dover Gaslight Company v. Dover (1855), 1 Jur. N. S. at p. 813. If it had been the .-intention of the Legislature to require the survey then nothing would have been easier than to have said so, but it seems to me that this was advisedly not required, as the adverse claimant might thereby have been put to needless expense in the event of the other party quitting the contest. For these reasons, I think the appeal should be dismissed with costs. j Irving, J.:-—Within the last few years the Legislature has in- jsisted upon the person claiming an adverse right filing in the Ee- fcorder's office, an affidavit setting forth the nature, boundaries and ptent of his adverse claim; together with a map or plan thereof made land signed by a provincial, land surveyor. The affidavit and plan must be filed within twenty days after the psue of the writ. Whether the object of the Legislature in requiring phis to be filed was to pin the claimant down to a statement of his plaim at an early date, and so prevent fraud, or to enable the defendant to elect whether he would abandon the part claimed, or merely for frhe information of the department, or as a notice to the public, or pr accelerating the trial, it is unnecessary to discuss. mai:tix's mi.mm; casks. L pll within allowed by which has be urt. We have had extension of time, f ler cases the exten- | sion refused; and in aU cases where the time was not extended the action was supposed to be at an end. The usual ground put forward prevents the surveyor from making'his survey. A map, to be made by a provincial land surveyor, in my opinion, must be something more than a picture prepared by a provincial land 1 surveyor from, data suppUed to him by one of the parties to the action. The filing of such.document is not, in my opinion, within the spirit ] ox letter of the Act. . At the trial of the action, it was mad>to appear that the map filed had been drawn by a provincial land surveyor frqa measurements furnished him by the plaintiff. The statute ought, I think, to be construed as requiring the filing of the plan within twenty days as a condition precedent to carrying . on the prosecution of the action after that period. Had no plan at all been filed, the defendant would have been at liberty to apptyito dismiss the action, and the same application could have been made if it were known that the plan filed was a.mere dummy plan. When it was made apparent at the trial that the statute had not been complied with. 1 think the Judge should have dealt then and there, and dismissed the action. This course, however, was. not adopted; but, instead, the trial was adjourned in order that the pltSt- tiff might complete his evidence. TMb adjotamment wag quite unnecessary. It delayed ithe defendant in.getting his certificate. It prevented him from giving affirmative evidence of his title, if such evidence was necessary. I think we shonld now make the order that tihe learned Judge ought to have made, namely, dismiss the action on I the ground above stated. The appeal <wdU he allowed, and the action dismissed. Appeal allowed, Hunter, C.J., dissenting. Note.—As to < As to affidavit inte, p. 213. J McKELVEX v. LE R0I MINING CO., LTD. MoKelvey. v. Le Boi Mining Company, Limit] Mines (!/■ Cage—" to> Main of 181 mused by Falling i- Duty of Owner 25, rule 20, and A cage used for lowering and hoisting men is not " falling n the meaning of that term as used in rule 20 of sec. 25 of t Mines Inspection Act, and the amendment of 1899 (ch. 45- not impose any duty on the mine owner to provide protect ing cage. Decision of McColl, C.J., affirmed. Action for damages for personal injuries. -The plaintiff was a miner, and while at work at the bottom of a shaft in the Le Eoi Mine, he was injured by the cage or skip, used for lowering and hoisting men, falling on him. The place where he was working was a few feet below the 800 foot level, and the cage was operated by a machine erected at the 350 foot level. At the 800 foot level there was a bulkhead, or as some of the witnesses for the plaintiff called it, a cage platform. The cage fell, broke through the bulkhead and on to the plaintiff. The action- was tried before McColl, C.J., and a jury, who returned the following verdict: (1) What was the immediate cause of injury? The approximate cause of the injury was occasioned by the non-continuance of the guide rails, which, in the opinion of the jury, caused the safety clutches to fail in their action and, therefore, allowed the cage to fall. (2) If the plaintiff is entitled in law to succeed, what amount of damage do you find? Three thousand dollars. On the verdict His Lordship did not see fit to enter any judgment, hut left the parties to move the Full Court as they might be advised. The Full Court referred the case back, and on motion for judgment the Chief Justife; on 17th December, 1901, gave judgment dismissing the action with* costs, giving no written reasons, but stating that he had' expressed his views at the trial. MARTIN'S MINING CASES. I vol. The foUowing are extracts from his remarks, made during the course of the trial: T- "There is only one point in this ease; the result shews plainly that whatever bulkhead there was was not strong enough, otherwise the accident could not have occurred. " Now these words (referring to falling material) in their ordinary sense and meaning do not apply to or include the cage of the hoist. Then, coming to the amendment, it provides that no ' stope,' ' drift,' &c, as in the language of the Act, which I need not read. Now, having regard to the fact that these words are simply added to the original section of the Act, and having regard to the ordinary canons of constructionj I must hold that the Legislature was only denning the extent of the protection which the amended section had left undefined, that is, they gave the choice of two alternatives. Either [a) to leave fifteen feet of solid ground, in which case there could be no responsibility for an accident caused by falling material, or (b) the owner if he did not do this must absolutely insure against such an accident by the construction of bulkheads or otherwise. There is another reason for holding that the amendment could not possibly be held to apply to a cage such as this, as it is simply inconceivable that any Legislature would, in giving protection to the man below the cage, leave any person who might be in the cage itself unprotected. That being so, there is nothing for the jury on this branch of the case, and as to the question of the bulkhead, it is conceded that the bulkhead was insufficient as against the cage, and there is nothing, therefore, to go to the jury on that point. Now, coming to the negU- gence of the engineer, which was the primary cause of the accident, I do not understand that you contend that you have any claim for the negUgence of a f eUow-servant, such as this man was. " Now, if there is anything left in the case at all, it is this,id^R the absence of the guide rails for some distance below the sheave wheel was a defect in the ' ways, works or machinery,' in the language of the Act, but as a matter of law I must hold that as,it was not in use for any operation of the mine it was not a part of the 'ways, works or machinery,' within the statute." The plaintiff appealed, and the appeal came on for argument at Victoria, on 7th January, 1902, before Walkem, Irving and Martin, JJ. Hamilton, for respondent, t( order of McColl, C.J., referrii prelii ninary object ns for judg tiffs houldhavea] exp ured. TheiC J m McKELVEX v. LE ROI MINING CO., LTD. jurisdiction to alter a judgment which accurately expresses the opinion of the Court, and that judgment did. The- FuU Court has de- | clared it had no jurisdiction to hear the motion, and therefore it had Fu no jurisdiction to give the parties leave to move the Chief Justice for judgment: see Preston Banking Company v. William Allsup & Sons I (1895), 1 Ch. 141. Per Curiam:—We are bound by our prior order and the objee- J"<jgm< I tion must be overruled. Objection overruled. MacNeill, K.C., for appellant: We don't rely upon Employers' I Liability Act, but on defendant's statutory duty to maintain a bulk- I head sufficient to stop the falUng cage: see Inspection of Metalliferous [Mines Act, sec. 25, sub-sec. 20, and the amendment of 1899, sec. 12. I In the amendment the words " falling material" do not occur, so we I do not have to shew that a cage is falling material. But to shew they do include a cage, I refer to sub-sec. 17, and say they must include something more than the material of the mine. The Legislature must [have intended something more than natural strata, so " falling material " being wide enough to cover cage, why should it be held not to [include it? For similar rules he referred to MacSwinney on Mines, 675, r. 20; 719, r. 8; Coal Mines Begulation Act, r. 16 (p. 1509, B. S. IB. C.) Similar rules in England are given a wide interpretation: iScott v. Midland Railway Co. (1901), 1 Q. B. 317; Foster v. North ' Wendre Mining Co. (1891), 1 Q. B. 71; James v. Grand Trunk Railway Co. (1901), 1 0. L. B. 127; Wales v. Thomas (1885), 16 Q. B. D. [340, and Beal's Cardinal Bules of Legal Interpretation, 122-3. The Act provides, inspection, &c, as protection for the man in the cage. Hamilton, for respondent: Section 20 has no reference to cages pinch, are dealt with under separate heading, and headings must be referred to in determining the sense: see Hammersmith, &c, Railway Uo. v. Brand (1868), L. E. 4 H. L. 171; Lang v. Kerr, Anderson & yo. (1878), 3 App. Cas. 529. Timbering, when used in a mining ense, refers to the timbers used to keep the sides from coming in and tot to bulkheads, and it must be given its professional meaning. The pet is in derogation of private rights and should be construed strictly: Barringer and Adams, 784. The "pentice" is not known or used n. modern mining. Cur. adv. vult. April 22nd, 1902. Per Curiam :—The appeal is dismissed with costs. MARTIjSrS MINING' CASES 1902. Martin, J., at the time del APrilj22. lows? and subsequently Irving, ollCourt, ment:— ed a writte handed day Irving, J.:—I am unable to say that the decision arrived at i& wrong. The section is most unfortunately worded. I do not feel any1 great degree of confidence in the correctness of the constructiom^ placed upon it by the learned Chief Justice, but on the other hani I cannot say he is wrong. Martin, J.:—On the merits, as the result of the present argument, I see no reason to depart from the' views I have already expressed on the former application to this Court,* and am of the opinion that thfe appeal should be dismissed with costs. Appeal disi issed with i sis. * Judgment idelivered on November 21st, 1901, and reported in 8 B. C. 2681 The material part of it is as follows:— Martin, J.:—I agree with the opinion expressed by the learned trig! Judge that the cage of the hoist cannot be regarded as " falling material " within the sense of these words as used in sub-sec. (20) of sec. 25 of the InspectM*' »£.Metalliferous Mines Act. And so far as the amendment of 1899, sec.,15jf&j concerned, reading it in the light of and in relation to the matters dealt with by the various sub-sections under the headings " hoisting and landing men," "shafts" and "timbering" (which the opening words'iofI see. 25 instruct us are to be observed "so far as may be reasonably practical,") I am of the I opinion that it does not bear the construction sought to be placed upon it by the plaintiff's counsel. The language is unfortunately indefinite in neglecting j to state where the bulkhead is to be placed or the* fifteen feet of solid ground I retained, and I find myself unable to say that the precautions adopted by |he I defendant company, in the shape of lateral screens, are not a sufficient compliance with the Act. The fact that a leaving of a " pentice " of fifteiSkJar I of solid ground in the shaft appears from the evidence before us, to be some- j thing so very contrs i this Pro^ Tenders it improbable that leaving the pentice, the mine he became an insurer of th head. It also, as pointed o and leave unprotected those bility contended for the sta Por other cases under th and note; and McDonald v. e and 3 V^aJXul ; $£4- I Mineral ( Agreem t of Proceeds of Ore e of the r. :s in a mineral claim entered into an agreement by which and co-owners was to advance to his co-partners in cash I the amount of their respective shares of the expenses of certain development I work, and to be repaid the loan with interest out of the proceeds of ore [ shipped from the claim, the principal and interest not to stand as a charge [ against the interests of the partners in the claim. IffeJSi'that taken as a whole the agreement could not, in the absence of express I jsjapulation, be construed to exclude the lender from his ordinary right to I compel the borrowing partners to ultimately account to him for 1 I of their share of the expenses. Appeal by defendants Sproat and Mclnnis from a judgment of I Irving, J., in favour of the plaintiff in an action tried by him at I Nelson on 21st, 22nd, 23rd, 25th, 26th and 27th February, 1901. This report deals only with that branch of the case relating to [ mining and the rights of the parties under the following agreement I entered into between the plaintiff and each of the defendants Sproat I and Mclnnis: [ "Agreement made this 17th day of December, A.D. 1898, between O. J. j Marino, of New Denver, B.C. (hereinafter called the party of the first part), land Alexander Sproat, also of New Denver, B.C. (hereinafter called the party I of the second part). Whereas the party of the first part is desirous of develop- I ing in a miner-like way the Marion mineral claim, and whereas the party of the undivided ; quarter if land and hereafter referred esents witnesseth, the party of the second unt of $500, as his share of the expenses irt in such development, but, according to forth. The party of the first part agrees party of the second part, the sum of $500, I numbered 2,287, known as the Ma [ (o as such. Now therefore these p [part shall be responsible to an am [incurred by the party of the first i [ the terms and conditions herein set I to advance, and has advanced to th< [bearing interest at the rate of ten per cent, per annum until paid, tne saia [sum of money is to be placed to the credit of an account opened in the Bank | of Montreal at New Denver, by O. J. Marino, in the name of the Marion Mine [account. The party of the first part is to be repaid the principal and interest [by the party of the second part out of the proceeds accruing to the party of the [second part from ore shipped from the said mineral claim. The principal and [interest of this loan shall not stand as a charge against the interest of the [party of the second part. O. J. Mabino. Alex. Sproat. Angus McInhis. 1 MABTIN'S MINING CASES. [vol. A precisely similar agreement was entered into between the plain-~ tiff and the defendant Mclnnis. John Elliotj and Lennie, for plaintiff. S. S. Taylor, K.C., for defendant Sproat. McCann, K.C., and Christie, for defendant Mclnnis. W. A. Macdonald, K.C., and A. M. Johnson, for defendant Alexander. Cur. adv. vult. May 6th, 1901. Irving, J.:—The position of co-owners of a mine after the issue of a Crown grant is this: Any one of them, or all of them may work the mine; the only restriction upon him is that he must not appro- propriate to himself more than his share: Job v. Potton (1875), L. B. 20 Eq. 84. But they are not partners, nor is one of them the agent for the other, so as to bind their interest by his contracts, nor is their any fiduciary relationship between them: Kennedy v. Trafford (1897), A. C. 180. ... The conclusion I have come to is that there was established between these three co-owners a partnership to develop and work the mine, and that they were so working it in partnership with Marino-, as foreman, at $5.00 a day, and the relationship of the defendants to the plaintiff was as to the two sums of $500.00 advanced to them respectively, that of debtor and creditor. . . . . . . As to the meaning of this document—Blaintiff says it gave him a charge on the ore, and secured him interest at ten per cent., and that it was drawn up for his better protection; the defendants, on the other hand, contend that the document properly construed limits the plaintiff's right of recoupment to the ore, and the ore only. But if that is so, what was the consideration moving from defendants to plaintiff? There was a clear antecedent liability on the part of the defendants to repay this money to the plaintiff. Compare what is said in McManus v. Bark (1870"), L. B, 5 Ex. 65, where a subsequent agreement varying the mode of payment, was held to be of no- effect, as there was no consideration to support it. An agreement to limit a person's sources of indemnity should be very clear, indeed, and this is not clear. The stipulation at the end of the document that the loan should not stand as a charge against the defendants'" interest in the mine, indicates that there was to be no waiver of the personal responsibility of the defendants. With so ambiguous a document before them, I can quite understand that their minds were never agreed. . . . I.] MARINO v. SPROAT et i The defendants Sproat and Mclnnis appealed and the argument 1902. was heard at Vancouver on April 24th, 25th, 26th, 28th, 29th, 30th, UH_h by Hunter, C. J., Walkem and Martin, J J. Pcll Coort. On May 6th, 1902, judgment was delivered dismissing the ap- Martin, .L peal with costs, Walkem, J., dissenting. Appeal. Though arriving at the same result the judgments of Hunter, Judgment. C.J., and Martin, J., proceeded on different grounds, the latter aloi dealing with the question of the rights of the partners and co-owners under above recited agreement. Davis, K.C., and S. S. Taylor, K.C., for defendants, appellants. Duff, K.C., John Elliotj with him, for plaintiffs, respondents. May 1st, 1902. Martin, J.:—It was admitted by the appellants' counsel that on i the finding of fact by the learned trial Judge.this argument must ; proceed on the basis of a partnership. It was strongly urged upon us by said counsel that the intention ! of the parties must be gathered from the agreement solely, and we | are asked to disregard all the writings and conversations that preceded j the execution thereof. It was further submitted that if this course | is adopted there will be no escape from the conclusion that the plain- I tiff agreed to advance the money in question to his co-partners on the | express condition that for the repayment of his advances the proceeds of the ore alone were to be looked to. ^Assuming that this is the proper course to adopt, it seems to me . that such an agreement between partners by which one of them as- | sumes a heavy risk without corresponding advantage in case of success is one which, on the face of it, a partner would not be likely to enter into, and before deciding that such is the exclusive construction i to be placed upon the document, taken as a whole, we must be satisfied that none other is fairly open to us. It cannot, I think, be questioned jthat where there is room for two constructions, one-of which would tend to support a reasonable and probable business arrangement as I between the respective interests, and the other, if unexplained, an [unreasonable and improbable one, the former should prevail. As a reason for our adopting a construction favourable to the defendants Mr. Davis quoted extensively from the evidence to shew that the explanation for the plaintiff's apparently hazardous bargain was to be found in his then mental state of unbounded self-confidence and overweening, if laudable, ambition to become the manager of a mine. I am not prepared to say that the explanation so offered would not be a sufficient one were it open to the defendants' counsel to rely on it, 34 MARTIN'S MINING OASES. ^"^H 1902. but it cannot be that, when we are asked to close the door against the May L plaintiff in regard to the antecedent and concurrent circumstances 'ull Court, above aUuded to, we should open it for the defendants' explanation MartTn, J. oi the same document. The strict construction, if applied to one party, must be applied to all parties. Confining the attention strictly to the document the result would be, if the defendants' contention prevail, that in case it should turn out that there was not a sufficient amount of ore to repay the plaintiff, or if there were ore it was so low grade that it would cost more to mine than it was worth, then and in either of such cases the plaintiff would not merely lose his advances to the partners, but the expenses of mining as well. It is unfortunate that if it was the intention to drive such a hard bargain definite language, free from aU reasonable doubt, was not used, so that we could be satisfied that it was intended to bar the partner advancing the moneys from all personal recourse against his fellow-partners. If the contract has that effect, why was it necessary to guard against any charge on the interest of the borrowing partners ? If, as contended, the borrowers had been freed from all personal liability no possible danger could be apprehended of their interests in the mine being charged because a charge could not be anticipated without a liability. But, nevertheless, the last clause shews that in the minds of these parties there was a fear of a charge to be guarded against, and why ? The answer must be, because it was not j the intention of the parties to make the clause providing for a resort to the ore for payment exclude all other ordinary lawful means of I enforcing liability for payment of the loan. In my opinion the real meaning of that document is that ty& | plaintiff was to look primarUy to the ore for repayment and forego 1 any claim for security, and in the meantime should have no charge 1 upon the other interests in the mine, but in case of failure to realize j out of the ore his loan to his partners was to be repaid by them. Having arrived at this view it is unnecessary that I should consider the question of mistake or fraud in the making of the contract, even if the manner of conducting the defendants' case at the trial were sufficient to warrant our considering that point, which I am somewhat inclined to doubt. Note.—As to co-part Appeal dis ■ed with costs. e of mineral claim: see note to Webb v PAYNE CONSOL. MIXING CO. v. WILSON. Payne Consolidated Mining Co. Ltd. Lby. v. Wilson. icate of Work—Irregularity — Time — Extension—Holiday—Mineral Act Marti ate of work is r : irregular because Adverse action tri ind 13th Ma}-, 1902. ; Nelson, B.C., bv Martin, For the purposes of this report the question of law arose out of [ the plaintiff's certificate of work put in evidence in support of its mineral claim, the Beturn, as follows : MINERAL ACT. Form E. Certificate of Work. ■ " Return " Mineral Claim. This is to certify that an affidavit setting out a detailed statement of the work done on the above claim since the 28th day of June, A.D. 1893, made by j David Ferguson to cover the year ending 28th June, 1901, has this day been filed in my office, and in pursuance of the provisions of the Act in that behalf I I do now issue this certificate of- work in respect of the above claim to the- | recorded holders. Documents and money deposited in this office 27th clay of | July, 1901. ANGUS McINNES, Mining Recorder. | Dated this 29th day of July, 1901. The assessment work was done within the year terminating on the 28th of June, 1901, but the certificate was not recorded till 29th July, a day after the expiration of the additional thirty days allowed by the Mineral Act Amendment Act, 1898, sec. 5, the 28th of July being a Sunday. Christie, for the defendant. This certificate is not "regular in itself" within the meaning of Cleary v. Boscowitz (1902), 8 B. C. 227, post, p. 506, as laid down by Martin, J., because it is on the face of it dated one day beyond the extended time; even if the last day did fall on a Sunday, that should have been shewn in the certificate. Further, the certificate is also irregular in that it includes the whole work done on the claim since tbe 28th of June, 1893. 486 MARTIN'S MINING CASES. [vol. 1902. Thompson, for the plaintiffs. Since the extended time fell on M!L13' Sunday, the 28th, then, by operation of sub-sec. 20 of sec. 10 of the Martin, J. Interpretation Act the time was further extended to the next day, Sunday being a holiday. But the certificate shews that the documents and money were deposited in the office on the 27th, and if any mistake has been made by the official we are entitled to be relieved under sec. 53. As to the inclusion of the work from 1893, that is not objectionable, provided the whole period is covered, and here there is a special statement that the work has been done " to cover the year ending 28th June, 1901." Judgment. per Curiam :—It being admitted that the 28th of June was a Sun day, the time was extended by virtue of the Interpretation Act for yet another day, so in that respect the certificate was by the operation of that Act " regular on its face " just as much as it was by reason of the extension given by sec. 5 of 1898. The certificate states that i an affidavit setting out a detailed statement of work has been filed " to j cover the year ending 28th June, 1901," and though this wording is not precisely the same as that employed in the other certificates put in evidence, yet it fully covers the period since the last preceding j certificate was recorded, and, therefore, it is "regular in itself" i within the meaning of that expression, as employed by me in Cleary [ v. Boscowitz. The fact that it contains more than is necessary does 1 not make it any the less valid for what is necessary. The certificate, then, being held to be regular, judgment will, fol- I 'lowing Cleary v. Boscowitz and Lawr v. Parker (1901), 8 B. C. 223, I ante, p. 456, be entered in favour of the plaintiff upon his filing an 1 affidavit of the Mining Eecorder proving that the certificate was duly 2 recorded, unless that fact, about which there seems to be no doubt, I is admitted by the defendant. Judgment accordingly. I Mineral C —Com i . COLLOM. . Collom. j The provisions of tl to observe them i 16 (g), and 28. Section 28 does not the irregularities c between location Where a location is valid and existing extent of the grou I Performance of the any area not duly located; and ording of the last certificate of ered by the sen the equivalent money pay- a, and therefore in th which payment of ] ork (i.e., payment) i itself, in a s " ind already annual assessment work ( I ment), is the annual rental payable to the Ci of a valid location whenever a dispute arises in concerned the production of the certificate of w< elusive against all the world, except the Crown aside for fraud. . I Failure to give the " approximate compass bearing " of No. 2 pps I Such defect if of a character calculated to mislead cannot bi I 16 (g), nor by a certificate of work under sec. 28. I Accuracy is as essential in the case of fractional claims a I Failure to discover " mineral in place " invalidates a location, I covery must be established as a fact when the onus of pro' j the locator—belief is insufficient. Callahan v. Coplen, (ante, p. 348), explained and affirmed. GeMnas v. Clark, (ante, p. 428), overruled. Uqot) ^^ • Decision of the Full Court of British Columbia reversed. Appeal by the defendant from a judgment of the Full Court of Statement. British Columbia affirming* a judgment of Walkem, J., in favour of the plaintiff. J On 6th August, 1897, one Cooper located the Arlington Fraction for one Haller in HaUer's name, Cooper having already located another claim, the Arlington No. 2, on the same lode. The Arlington Fraction thus located was intended to cover the ground lying between the Arlington and the Burlington claims, but afterwards it was discovered that it did not, so Haller by arrangement with Cooper, filed an abandonment and on the same day, 29th November, 1897, Cooper uocated all the ground as the Native Silver Fraction in the name of [ck, Gib vies, and Mm MARTIN'S MINING CASES. [vol. one Halpin. Cooper recorded the claim the next day, and on 2ht■:' December, 1897, got a bill of sale from Halpin of one-half for MmjH| and the other one-half for Haller. No agreement was ever made between Cooper and Haller, but Cooper considered himself entitl nf to a half-interest in the Arlington Fraction, and after the^N^H e SUver Fraction was located he obtained from Halpin a bill of sale of one-half for Haller. In the recorded description of the Natl W- Silver Fraction's location line there was a deviation of eighty-fOi|r degrees from the true compass bearing. HaUer's mining licences dated 9th August, 1898, and 5th Augu I. j 1899, were issued and signed at Sandon by E. M. Sandilands, who, acting on instructions from the Government Agent at Nelson, e- ceived the blank forms from the Mining Eecorder at New Denver, and accounted to the Government for moneys received -for mining \ licences. On 25th April, 1900, the defendant located the same ground as I the Arlington Fraction No. .1, having previously tried to purchase j the interests of both Haller and Cooper, and knowing that they had j recorded certificates of work in respect of it, and subsequently he did j purchase Cooper's interest. The defendant was the managing director of the Arlington and ] Burlington mines, and the claim in dispute being the fraction be- J tween, he wanted it to work on in connection with the other two. He | knew where it was and was not misled by the errors in description. On 19th July, 1900, Haller sold his half-interest to the plaintiff, j who knew that defendant was applying for a certificate of improvements. Certificates of work in respect of the Native Silver Fraction cl im were recorded on 7th October, 1898, 15th November, 1899, and 31st | August, 1900. The defendant after purchasing began work at o and obtained five certificates of work in respect of the Arlington No. J 1 Fraction, the first being recorded 1st August, 1900, and the other 1 four 10th October, 1900, and applied for a Crown grant, whereupon j the plaintiff brought an action of adverse claim. v The trial took place at Nelson on 31st October, and 1st, 2nd, 6th 1 and 7th November, 1900, before Walkem, J. Galliher and P. E. Wilson, for plaintiff. W. A. Macdonald, Q.C, for defendant. On 22nd December, 1900, his Lordship gave judgment in favour of the plaintiff. The defendant appealed to the Full Court on the grounds amo ■ others (1) that in the recorded description of the Native Silver Frac-I tion's location li ne th 're was a the true compas s beai ing; (2) August, 1898, ar d5th August, of the Native Si ver 1 'raction d that the location of t he Nativ an abandoned cl aim t y the sai 32 of the Act. The appeal v, as ar gued at ^ June, 1901, befo ■el)R AKE, Irvi Davis, K.C. (W. i 1. Macdo aid, lant. l hi: the ppe a Fract ted. T subsec ;D% rention of sees. 29 and 32 of the Act I idered as locating either in his own name ace is personal to himself and is marked i is a statutory procedure of location by but here there was a location in the name and never expected to get an interest in xeady located the Arlington and Haller their rights on that particular vein or lode inal location being void cannot be made ansaction, see Alexander v. Heath et al. 333. See also Connell v. Madden (1899), . Haney et al (1899), 7 B. C. at p. 5, ante, p. 369; and Hooper v. Coombe (1888), 5 Man. 65. The statute says that mineral in place must be found, but here the evidence iathat float, which is not mineral m place, was found. As to compass bearing, there was an error of eighty-four and a half degrees, and it cannot be said that such an error is not calculated to mislead. The provisions of the Act are imperative, with three sections containing curative provisions—sees. 16, sub-sec. (g), 28 and 34. The effect of sec. 34 in Gelinas et al. v. Clark (1901), 8 B. C. 42, ante, p. 428, was decided without allowing me an opportunity to argue the point, and it is a decision (not of a majority of the Court) against the prior rulings of this Court, see Atkins v. Coy (1896), 5 B. C. 6, ante, p. 8S; Cranston et al v. The English Canadian Co. (1900), 7 B. C. 266, ante, p. 394; Dunlop v. Haney et al. (1899), 7 B, C. 1, ante, p. 369; Clark v. Haney (1899), 8 B. C. 130, ante, p. 281; and Pavier v. Snow (1899), 7 B. C. 80, ante, p. 384. Callahan v. Coplen (1899), 7 B. C. 422, ante, p. 348, is an authority that sec. 28 cures only minor irregularities, such as do not go to the root of title, and the decision on appeal (1899), 30 S. C. E. 555, shews that the Crown only can invoke that section. Gelinas v. Clark is inconsistent with Callahan v. Coplen, and should not be followed. [Duff, objected, that in Jordan v. McMillan (1901), 8 B. C 27, the Court had allowed a preliminary objection to an argument Th MARTIN'S MINfNG OASES. . ment of the Chief Justice in Jordan v. McMillan proceeded on the jority of the Judges, composing the Court. The provisions of the Act are imperative, see Peters v. Sampson' (1898), 6 B. C. 405, ante, p. 247, and Bleekir v. Chisholm (1896), 5 B. C. 148, ante, p. 112. There is no evidence here of any attempt to get a proper compass bearing or of any bona fide attempt whatever . —see Callanan et al v. George et al. (1898), 8 B. C. 146, ante, p. 242, HaUer's certificate issued by Sandilands was bad as there is no provision in the Act for such a procedure. Duff, B.C. (J. H. Lawson, Jr., with him), for respondent. The defendant was not misled by the error of Cooper, who had no fraudulent object, for when he located, aU he wanted was to cover the ground between the Arlington and the Burlington. In his judgment in the Supreme Court of Canada in Callahan v. Coplen, supra, Mr. Justi*. Gwynne is dealing with the question of title to a claim, but not as to the validity of the claim ab initio—it was a question of boundaries and estoppel, and what he said about sec. 28 was a reservation of the point and not a decision on it. The contention that the Supreme Court of Canada in Callahan v. Coplen, supra, must have affirmed the reasons of the Full Court is erroneous—the decision was affirmed on different grounds, thus shewing the Supreme Court did not agree with the reasons of the Full Court, see Hack v. London Provi3m Building Society (1883), 23 Ch. D. Ill, and Encyclopaedia of the Laws of England, vol. 10, p. 203. Gelinas v. Clark is a binding decision as to the meaning of Callahan v. Coplen, and that the latter decision is not applicable to the question in this case, and it and Peters v. Sampson, supra, shotdtElfc followed. See Osborne v. Morgan (1888), 13 App. Cas. 227; Lavy v. London County Council (1895), 2 Q. B. 577; The London StrtH Tramways Company, Limited v. The London County Council (18p8), A. C'380; Casson v. Churchley (1884), 53 L. J., Q. B. 336^]K Queen v. De Grey (1900), 1 Q. B. 524, and Pledge v. Carr (1895), 1 Ch. 52. As to the contention that Cooper did not discover rock in place, there is ample evidence that he did, and it does not follow that because he found float he did not find mineral. As to compass bearing; any defect was cured by sec. 16, sub-sec. (g), as there was a bona fide attempt to comply with the Act, and taking the record and affidavit together, no one could have been misled, and I Collom admits he was not misled. MANLEY v. COLLOM. The prohibition in sec. 29 is against the holding (not the locating) ■of more than one claim on the same vein by the same miner. To be a fraud on the statute there must be a contravention of the statute. See Barton v. Muir (1874), L. E. 6 P. C. 134; and Davis v. Stephenson (1899), 24 Q. B. D. 529. As to re-location vJ et al. (1894), 3 B. C. 5 was done here, and it h followed: see Casgrain (1895), A. C. 282; Pm 15 Ch. D. 334, and cas' B. C. 471; Foskett v. . Johnston (1895), 1 Q. Cas. 456; Ex parte Weir (1870), 5 Chy. App. 7C and Clark v. Wallond (1 The licences were i official and anv defects it permission, Granger v. Fotheringham ite, p. 71, is an authority, allowing what ceived legislative sanction and should be 'antic and North-West Railway Company Golden Valley Railway Company (1880), rre cited in Jardine v. Bullen (1898), 7 man (1885), 16 Q. B. D. 270; Jay v. i; Danford v. McAnulty (1883), 8 App. I'l), 6 Chy. App. 875; Ex parte Campbell reaves v. Tofield (1880), 14 Ch. D. 563, , 52 L. J., Q. B. 323. . under the direction of a Government mred by sec. 53. October 16th, 1901. 1Drake^ J.:—This is an appeal by the defendant against a judg- Jubde^n1 ment in the plaintiff's favour. The ground in dispute was ground Drake, j lying between the Arlington No. 2 and the Burlington No. 2. The ground was first taken up by a man named Cooper on August 6th, 1897, in the name of Haller, and under the name of Arlington Fraction mineral claim, and was abandoned by the locator on the 29th of November, 1897, and re-located by Cooper for one Halpin on the same day. Cooper was the locator of the Arlington No. 2 on the same lode. He, therefore, could not locate another claim on this lode under sec. 29 of the Mineral Act, ch. 135, of the Bevised Statutes, either in his own name or in the name of any other person. Haller having abandoned the claim to the Fraction could not re-locate the same without the written permission of the Gold Commissioner under sec. 32, neither could he hold an interest in any portion of such mineral claim by location without such permission. From the evidence of Cooper it is apparent that Haller's name was used to locate this ArUngton Fraction on the terms tbat he and Cooper were each to have a half-interest in the claim; but no written agreement was made. It was, therefore, an agreement that could not be enforced at law under sec. 50. Cooper and HaUer both being aware of these sections in the Mineral Act, in preference to applying ,92 MARTIN'S MINING CASES. I vol. to the Commissioner for leave to re-record, thought it more advisable May is. to abandon the claim and file the notice of abandonment; and the — evidence is sufficiently clear to shew that this was done at Cooper's ' Court suggestion. Cooper then obtained the miner's license of Halpin and 3F Canada, located the Fraction in his name as the Native Silver-Fraction. Haller expected to have one-half the claim thus located by Halpin, and this was in fact the way the scheme worked out. Cooper obtained from Halpin two conveyances, each of half of the claim, one in Haller's name and the other in Cooper's, and this course was adopted in order to evade the statute. The defendant on examining the ground found the plaintinji I stakes, and on comparing them with the record of the claim found that the compass bearings did not include the land between the Arlington and Burlington claims. The plan, Exhibit A3, shews the Burlington as lying almost due north of the Arlington No. 2. The plaintiff's description as sworn to by Cooper, his agent, gives the boundaries on the north by vacant, meaning vacant ground, on the south by vacant (ground), on the east by Burlington, on the west by Arlington; whereas the true description of the vacant ground between the Burlington and Arlington would be bounded on the north by the Burlington, on the south by the Arlington, on the east by Judgment Tacant ground, and on the west by vacant ground. The land, in face, I _below, described by the plaintiff in his record can not be made out on the j ''' ground from his description. The term " approximate compass bear- j ing " wiU not cover an error as great as this. The evidence of Her- I bert C. Twigg, a P.L.S., a witness called by the plaintiff, shews that j the record was in accordancewith the notice on the initial post, which I stated that No. 2 post was 700 feet in an easterly direction; and of J the ground claimed 750 feet lay to the right, and 750 to the left of the I location line. The initial post is on the north boundary of the Ar- I lington, and 560 feet from the north-east corner of the Arlington J No. 2; and the No. 2 post, if placed in accordance with the notice 1 on the initial post would be found very near the north-east corner of I Arlington No. 2; whereas, in fact, it is due north on the ground. In I other words, it is placed almost at a right angle to the place where I it ought to be if it followed the' written description. On examining the ground the defendant saw that no vacant J ground between the two claims had been properly staked. He, there- I fore, on the 25th of April, 1900, staked this ground as the Arlington Fraction No. 1, and obtained five certificates of work. The first wa£ dated 1st August, 1900; the second was dated 19th October, 1900. I to apply for the year ending 9th May, 1902; the third of same date I applied for the year ending 9th May, 1904; and the fourth for the I year ending 9th May, 1905. Under the Act, for every $100 of work I done on a mineral claim the party is entitled to a certificate for twelve I m MANLEY v. COLLOM. iree or four years' work at once, mber of years the work repre- months, and can do the equival and obtain the certificates for I sents. One Henry Brown, on the 7th of October, 1898, obtained a certificate for work on the Native Silver Fraction, but it is not expressed whether this was done by him as an agent or on his own account, which the Act requires. Eobert Cooper obtained a certificate of work on 15th November, j 1899, for work done on the same Fraction, but he does not say that he was acting as agent; and a further certificate on 31st August, 1900, on the plaintiff's affidavit. Halpin, as before mentioned, on 2nd December, 1897, assigned to Haller a half-interest in the Native SUver Fraction; and Haller on 19th July, 1900, purported to assign j to Manley the same half-interest for an alleged consideration of $5,000.00. The evidence discloses that only $2,000.00 was paid, and the other $3,000.00 was to be paid when the plaintiff sold the property ; and it was further clear that the plaintiff at the time he made j purchase knew that the defendants were working on the claim, and applying for a certificate of improvements. The plaintiff never examined the stakes of either the Arlington Fraction or Native Silver Fraction. It is contended that however incorrect the written description was, and however incorrect the posting on the claim was, yet the defendants would not be misled, as the sketch plan on the back of the record clearly indicated what the ground was, which was intended to be taken up by the Native Silver record. Therefore the compass bearings did not, in fact, mislead the defendants when the record was looked at; but the language used in the Act is "were they calculated to mislead," not whether "they did mislead." That they were calculated j to mislead can hardly be disputed. The language used in the proviso to this sec. 16 is very general, \ and is a protection to a bona fide locator, although he has failed to comply with some of the foregoing provisions of the statute, if he has | found mineral in place, and that the non-observance of the formalities required by the statute was not of a character calculated to mislead other persons desiring to locate in the vicinity. If mineral in place has been discovered, then the law will protect as far as it can a man acting bona fide. The discovery of mineral in place is the basis of the right of a miner to stake out Crown lands. If Halpin was a Una fide locator, and had discovered mineral in place, this proviso might be invoked to protect him; but the facts shew that he was a mere catspaw of Cooper, and that no mineral in place was discovered, and his name was used to enable Cooper to evade the stringent provisions of the Act. 91 MARTINIS.MINING CASES. l> 1902. Cooper says he discovered float, and that satisfied, him it wa&* Mav_is. minerai in piace- jjow by sec- 2 of the Mineral Act, B. S. B. C. 1897 Supebme ch. 135, rock in place is defined to mean and include mineral, not.. of Canada, necessarily in a vein or lode, but in the same place or position in which it was originally formed or deposited, as distinguished from loose,, fragmentary or broken rock or float which, by decomposition or erosion of the rocks, is found in wash, loose earth, gravel or sand.. This definition clearly excludes the discovery of float spoken of as- mineral in place. Float as it is technically caUed is very frequently discovered in the water courses and loose gravel of the mining districts. It is an indication of a deposit of mineral somewhere in the- neighbourhood; but it is in order to guard against the location of. Crown lands on insufficient data that the Legislature insists that, mineral must be actually discovered in situ before a free miner has a right of entry, and before he can obtain that which is equivalent to a lease for a year of Crown lands. The evidence shews that the defendants did considerable work in- washing off the surface from two to five feet in depth for some 300 > feet before the lode was discovered, and before they could locate and' record the claim; and there is no evidence that either Cooper or Hal- - Judgment P^n discovered anything but float. Therefore Halpin is not within below, the protection of the proviso above referred to. The locator of a mineral claim when applying for record under sec. 16, has to file an affidavit that legal notices have been put up and that mineral has been found in place on the claim proposed to be recorded ; and in fractional claims a sketch plan shall be drawn by the applicant on the back of the affidavit shewing as near as possible the position of the adjoining mineral claims, and the shape and size expressed in feet of the fraction to be recorded. Cooper made a declaration but omitted the description in feet, and drew a sketch plan with the cardinal points all wrong, as I have stated before. The fact is the Arlington No. 2 having discovered a good lode, the parties thought it probable that it would run through the vacant ground on the north and therefore Cooper staked the-. ground. The above are the facts which are in evidence. The learned trial Judge gave judgment for the plaintiff, thus establishing him in his claim, and on this appeal, notwithstanding the error in the compass bearing, and the non-discovery of mineral in place, the plaintiff contends that the fact of the record of work having been issued to the plaintiff is sufficient to cure aU defects up to the date of the issuing thereof. The difficulty of applying this section as covering not only irregularities in carrying out the provisions of the Act, but also direct breaches of its enactments as well as evasions of its stipulations, is great. I.] MANLEY v. OOLLOM. If two or more claimants to a mineral claim each work on the claim and obtain certificates of work, they would each' have a perfect | title if the construction contended for is correct. Sections 29, 30, and 32 all deal with the restrictions against a ( miner taking up more claims than one on the same lode, or aUowing j it to be done in the name of any other person. Can a certificate of I work done on a claim held in defiance of these stipulations make a | good title against a subsequent locator ? The use of the term " irregularities " in the section indicates the I class of matters intended to be cured by the certificate of work. It was not intended to make the title absolute against the world except at the suit of the Attorney-General for fraud. If the Legislature had so intended they could easily have effected their object. The case of Callahan v. Coplen, supra, has been greatly disc | and the facts in that case were not greatly dissimUar to the present sone. There the defendant had located and recorded a claim with | compass bearings nearly as incorrect as the present one, and the plain- itiff had also taken up a claim, and both parties had obtained certi- j cates of work. It was held that sec. 28 did not cure the defect. We inext have the case of Gelinas et al. v. Clark, supra, decided by the iFull Court on March 5th, 1901, wherein the Chief Justice decided that the fact of location and record of lands not at the time open to location, gave the person recording what was equivalent to a lease for a year, and therefore the plaintiffs could not record the same ground as against the defendants, who had obtained certificates of work. It is difficult to distinguish in what respect Gelinas v. Clark differs from Callahan v. Coplen. ■ Gelinas v. Clark is supported on the ground that a lease from the Crown not attacked by the Crown cannot be successfully impeached by anyone else. If such is the true Construction of the Act, no recorded claim if once a certificate of work is obtained can successfully be impeached however much the stipulations of the Mining Acts have been disregarded. The point is of vital importance to the mining industry; and although it is said that the effect of Gelinas v. Clark will stop claim jumping, it wUl also have the effect of enabling anyone to bolster up i mining claim by certificates of work, and thus induce others to invest their money in worthless chances. The stipulation which the Legislature thought necessary for the protection of the Crown rhe miner and the public will be rendered nugatory. In my opinion the appellant is entitled to succeed, and the ment entered for the respondent should be reversed, and jud mtered for the defendant with costs here and below. Irving, J.:—The frame work of this tth of November, 1897, the Native Sil claim was located by one c of one Halpin, who at once, 2nd 1 oiety to Cooper, and the other mo sty to ed HaUer' recorded half-interest, certificate of ates in respect of the the sale to the plain-. th of October, 1898, Cooper for and in - ber, 1897, conveyei one Haller. The plaintiff, 19th July, 1900, j and on the 31st August, 1900, obtained and re< work in respect of the said claim. Two certific said claim had been obtained by Haller prior to tiff. These certificates were recorded on the 1 and loth November, 1899. On the 25th of AprU, 1900, the defendant, knowing fuUy the . position of affairs, decided to and did jump the claim, re-locating^ as the Arlington No. 1 Fraction. The defendant began work at once, and obtained five certificates of work, the date of the earUest recorded being 10th August, 1900, and the other four were recorded in October, and applied for a Crown grant; whereupon the plaintiff, who obtained a third certificate, 8th August, 1900, brought the present adverse action. By sec. 28, E. S. B. C. 1897 ch. 135, it is provided as follows: " Upon any dispute as to the title to any mineral claim, no irregularity happening previous to the date ■of the record of the last certificate of work shall affect the title thereto, and it shall be assumed that up to that date the title to such claim was perfect, except upon suit by the Attorney-General based on fraud." Looking at the section, and the simple facts above set out, the first thing that strikes one is that both parties having obtained certificates of work are equally entitled to claim against the other$ffiel' e section. That of course makes the section nonsensical, j first question is to determine which of the two is the per- j rtificate is to prevail. r-r that one must look at the facts a ite arise? There can only be one a s brought into existence, by the del ; land occupied by the plaintiff. 1 is whose title is to be deemed perfect if sec. 2 larities which the defendant alleges made the Na claim. The irregularities complained of are: (1) That the plaintiff ii locating and recording the Native Silver described his location line j between No. 1 and No. 2 as running in an easterly direction, whereas J in truth and in fact it was very nearly due north. I do not think it I can be denied that this is a very serious omission to comply with the I statute, which requires the locator to state the approximate compass | bearing. benefit of th Then the To answ did the disp arose, or wa stakes in th ad ask oneself, how lswer. The dispute , mdant planting his | he plaintiff then it ■ 5 covers the iregu- ive Silver an illegal I (2) The second point is that one or more of the free licences under which the plaintiff derived his title was issued by person wil (3) That t mineral in plai (4) That tl doned claim, bj Another gi appeal, but as the notice of aj. (1894), 6 E. 6' I 236, and 238. Weundi acquiesced i roper authority, locator of the and Native Silver location was a location over an aban- he same people, and was iUegal under sec. 32. nd was taken and discussed at the hearing of the was not raised on the pleadings at the trial, or in al, I think we cannot deal with it. Browne v. Dunn The Tasmania (1890), 15 App. Cas. 223 at pp. 230, ratood at the 1 i the justice oi this ground. i CaOaha loplen had ] of Canadi I venture to submit that the decisior Canada has been misread in that case. I Cube Lode) went to that Court relying < Gwynne points out that there was only ind that question earing of the appeal the learned counsel Mr. Duff's objection to our dealing with whether I am correct or not on that point, course I propose to take, viz., to ignore vis that the decision of the FuU Court in ctically wiped out sec. 28, or if not that ke in the decision of the Supreme Court >f the Supreme Court of s true the appellants (the on sec. 28; but Mr. Justice one question to deal with— raised by the appeUant on sec. 28, but on the facts found by the learned trial Judge, that the Cube Lode was staked in such a way as to mislead the Cody and Joker people, and that in consequence of their being so misled they did locate the Cody and Joker Fractions. In short he proceeded on the ground that the Cube Lode locators, the appeUants, were estopped by their own negUgence or fault from taking advantage of sec. 28— r Mr. J Walkem in the argument That I think is the i. If not, how can he one point? aid down that sec. 28 reen two rival claimants; that if it dispute between the Crown and a said, a view of the case suggested t of Callahan v. Coplen before plain reading of Mr. Justice say, as he does undoubtedly ; Mr. Justice Gwynne, it i does not apply in a contest has any appUcation it is in subject I think that cannot be his view, as the section contains a proviso by which there is reserved to the Attorney-General a right to contest the effect of the certificate in a suit for fraud. And the section would 1 MARTIN'S MINING CASES. have this extraordinary result, that whereas against the Crown, the allodial owner, the locator's title would be perfect, yet as against a Ucensee of the Crown, one who has done nothing except place his stakes in the ground already occupied by another man, the prior locator would not be able to avaU himself of the curative powersn&f sec. 28. What Mr. Justice Gwynne said about sec. 28 was, with reference to the circumstances of the particular case, the sole question in which was who had the superior right to a piece of land, the plaintiff, who had so misdescribed it in his record as to mislead, and whose recosd - did not include it, or the defendants, who, being thus misled had located and correctly recorded the claim. Bead in this way Mr. Justice Gwynne's judgment is not a decision on the conflicting construction put by the members of this Court As to the points raised: (1) As to the approximate compass bearing, the trial Judge, as he gave judgment for the plaintiff, must have been satisfied that it did not in fact mislead. This point can not be in doubt, as it was only at the trial that the defendant raised the question. Having regard to the plan annexed to the locafSbn affidavit, and the description of the ground as a "re-location of Arlington Fractional claim lying between the Arlington and Burlington," from which, and not from the posts—the defendant got his information, I think it was not calculated to mislead; at any Tate j sec. 28 would cure that irregularity. (2) The contention as to the free miners' certificate being irregu- j larly issued is set at rest by sec. 53. (3) The positive evidence of the finding mineral in place is suffi- j cient. (See Cooper's affidavit and his statement that he was satisfied | that it was mineral in place, and Haller's evidence.) There was no j cross-examination of Cooper or Haller as to these. And the fourth would be answered by sec. 28, which would excuse | the failure to comply with the requirements of sec. 32. I think the appeal should be dismissed. Martin, J.:—It is necessary to decide first the qi or not we are bound by the decision of this Full Cc v. Clark (1901), 8 B. C. 42, ante p. 428. After a consideration of cases, inter alia, of Hack v. London Provident Building * ffaeiet'J (1883), 23 Ch. D. 103, at pp. 111-12; Casson v. Churchley (1884). 53 L. J. Q. B. 335-6; Pledge v. Carr (1895), 1 Ch. 51 Davy v.: London County Council (1895), 2 Q. B. 577 at p. 581; The %ondo« rhether ] QeWnasl ion of J MARTIN'S MINING CASES. [vol. Fractional was located, and later recorded, and on August 1st of that year its owners recorded a certificate of work. The action was begun on the 8th of August following. Now, aS I understand it, the broad re- Is suit of Gelinas v. Cork is that when there is a claim definitely located and recorded, and a certificate of work duly recorded, then by virtue of the joint operation of sees. 28, 34, and 24, the holder of the claim has got what is equivalent to a lease from the Crown and the lands so leased are not open to location by other free miners because they have been segregated from the waste lands of the Crown. But, it will be said, the junior locator has, by operation of the same sections, also got what is equivalent to a lease from the Crown: Now, Victor v. Butler, (1900), 8 B. C. 100, ante, p. 438, decides that in such eases the prior lease of the senior locator shall prevail. It is possible, doubtless, to fritter away the decision in Gelinas v. Clark by subtle distinctions and refinements, but, speaking as a member of the Court which heard the case, the foregoing is my understanding of the substance and effect of the judgment. So much confusion has resulted from the decisions of- this Court and the Supreme Court on sec. 28 that it is desirable we should, if possible, come to a decision which shall be certain and definite. In view of the foregoing opinion that in principle this case is not distinguishable from Gelinas v. Cork, the other points raised are consequently not open to argument. The appeal should be dismissed with costs. Appeal dismissed with costs. Drake, J., dissenting. 3 The defendant appealed to the Supreme Court of Canada and the appeal was argued on 5th, 6th and 7th of March, 1902. Davis, K.C., and W. A. Macdonald, K.C., for the appellant, cited j Coplen v. Callahan, supra; Callanan v. George, supra;. Atkins v. Coy, j supra; Cranston v. The English Canadian Co., supra; Dunlop v. I Haney, supra; Clark v. Haney, supra; Pavier v. Snow, supra; j Richards v. Price (1897), 5 B. C. 362, ante, p. 156; Harmer. v. West- macott (1833), 6 Sim. 284; DeGroot v^ Van Duser (1838), 20 Wend. 390; Langton v. Hughes (1813), 1 M. & S. 593; Madden v. Cornell, supra; Peters v. Sampson, supra; Lawr v. Parker (1901), 8 B. C. 42, j ante, p. 456. Galliher, for the respondent, cited Gelinas v. Clark, supra; Water- I house v. Liftchild (1897), 6 B. C. 424, ante, p. 153; Caldwell v. Davys (1900), 7 B. C. 156, ante, p. 387; Peters v. Sampson, supra; j Cranston v. English Canadian Co., supra; Granger v. Fotheringham, I supra. MANLEY v. COLLOM. The judgment of the Court was delivered by 11 Sedgewick, J.:—In the case of Coplen v. Callahan, suim sidering the effect that should be given to the foUowing se the British Columbia Mineral Act, viz., sees. 16 (g), 27, an held that every direction of sec. 16 was imperative, that ar tiens from or irregularity in respect to such directions were the location unless they came within the curative provision sec, (g); that these were the only statutory provisions that not include within its purview any area that had not been duly- located, but only those that had, and in consequence had become "mineral claims;" that the "irregularities" referred to must be such as occurred in the interval between the final location and regis- tration of the mineral claim and the date of the record of the last produced in that case, an inquiry might be Bad as to whether the provisions of sec. 16 had been so disregarded by the locator as to make his location invaUd. been contended that sec. 28 in effect had repealed sec. 27. A prior duly located clami could not be displaced during the first year of its existence, by a subsequent location over the same ground and the production of an alleged certificate of work, even although the original locator and owner had no certificate at all. Nothing so monstrous as that could have been dreamed of, and we thought that sec. 28, notwithstanding these Umitations upon its alleged universality and to the efficiency of its certificate as well, did fulfil a useful purpose, and particularly in the foUowing way. issues is a tenant of the Crown. He must pay rent to the Crown. the Crown of the tenant's an the Crown.' And so it was, I appoir of the Whether the work was business of no one except the jpa be conclusive against the world (the Crown included) unless the Crown, upon suit by the- Attorney-General upon ground of fraud, had taken proceedings and succeeded in setting it aside. In that case we, in effect, adopted the reasoning of Mr. Justice Drake in his judgment in the Court below, an opinion that was followed by Mr. Justice Martin in his dissenting judgment in Gelinas v. MARTIN'S Mil [v Clark, supra, and again by Mr. Justice Drake,in his dissenting opin- j ion in the Court below in this case. It may be that our late lamented brother Gwynne did not, as fuUy as he might, elaborate the propositions I have herein set out, but they r are the conclusions to which we all eventuaUy came when our judgment/ ' was pronounced. This being the case, I do not consider it proper to discuss further as to \vhctlur\ve were right or wrong in Coplen v. Calla- han, supid. We have so decided and that is an end of it. The question remaining to be determined is as to whether the defendant made and recorded a valid location of his alleged1 rdiate» claim, a question to be considered altogether independently of sec. 28;- - The grounds upon which it was contended that the location in- dispute was illegal are stated by Mr. Justice Irving in giving «e judgment of the Court below, as follows: For the purposes of this appeal No I try to consider the supra. In that case the requii not complied with inasmuch as the appi were not correctly marked upon the initia ure from the true bearing was so great tl We therefore held the location void. The violation of the statt^Q requirements is greater in the present case. Even the learned Judge j So that we must hold the location invalid unless there is a dif fercnce in fact between this case and CopUn v. Callahan, sup a. M A M .!•: V v. QC >LLOM. 50a-, The only difference contended for is that, this being a fractional 1903. mineral claim, inaccuracies in the ms trkings and setting up of the y ; initial post are not so necessary as in ordinary cases. I am unable Supbmm. to see the difference. The particular rule as to the staking of the 0T c°™TDA, approximate bearings was intended foi • the benefit not of the locator — who had already staked his claim, but 1 of the prospector searching for BD0EWI0K' precious metals in the wild lands of tl le Crown. He finds a post, it appears to be a post connected .with a i fractional claim. He knows nothing of the boundaries of the regul ar claims in the vicinity. He has found mineral in place and he wan ts to place his stakes in a place where haply he may find vacant Ian d. True, lie may search the mountains for the stakes of the unbro ken claims. He must beware of staking there. He then returns to the first found post. He will regulate his staking by the bearings stated there. That and that only is the best evidence upon which he can relv. He acts accord- ingly—plants his stakes, locates his cla im in what he thinks is vacant land, and in the end finds thai he ha is been the victim of his pre- ceding prospector. The rules as to staking apply as well to fractional as to other ■claims; unless these arc observed strdi rtly. in the case of fractional claims, the confusion is stih worse co: hfounded and the persons for whom the rules were made lose the be nefit of them and that benefit accrues to those who violate them. I am therefore of opinion that, Then as to the third ground:—The ! Mineral Act requires that no one can locate a claim unless he has i ictttallf discovered mineral in place on the claim; sees. 16 (c) and 1( ) (g). The curative provision expressly excludes from its operation a locator who has not made that discovery. The evidence satisfies i me that he did not. It is true in his appUcation to the mining officer he swore he did, but subsequently upon examination the que Did you discover mineral in place? he refused to answer it categorically. The answer was, I found mineral in places, I found float, lot s of float in place, and eventually the furthest he would g< .ces, I saw float and that satis^. lied me it was mineral in place." Th e statute requires much more than the belief—the "satisfaction" of the locator; it requires a dis- c-overy in fact. The evidence fails to estabUsh that. On this point as well as on the other I adopt the disse nting judgment of Mr. Justice Brake in the Court below. MARTIN'S < MINING CASES. [vol. I am of opinion that the appeal should be allowed with costs and that judgment should be entered in the Supreme Court as prayed for in the defendant's statement of defence, with all costs in the Court below. Appeal allowed with costs. Notes.—The effect of this, the most important decision for many years, is referred to in the note to Oelinas v. Clark, ante, p. 437. As to conclusiveness of certificate of improvements regarding performance of assessment work: see Lawr v. Parker, post, p. 456, and Cleary v. Boscowitz, ' post, p. 506. As to future determination of title -where each party has recorded a certificate of work: see sees. 2 and 3 of the Mineral Act Amendment Act, 1902, (assented to June 21st). As to imperative provisions regarding location, the following, e.g., errors or omissions have been held fatal, unless cured by remedial sections:— Defective post—Granger v. Fotheringham (1894) ; ante, p. 71; PelledSk, Almoure (1897), ante, p. 134; Waterhouse v. LiftehUd (1897), onto,1 p.'IB! Richards v. Price (1897), ante. p. 156; CreeVman v. Clarke (1898)', ante,? ji 228; Callanan v. George (1898) ; ante, p. 242; Clark v. Haney (1899), ante p. 281. Defective location line—Bleekir v. Chisholm (1896), ante, p. 112; Aldbh* I Hall Mines Co. (1897), ante, p. 213; Callanan v. George (1898), ante, p i 242; Clark v. Haney (1899), ante, p. 281. Incorrect date—Bote v. Sautter (1899), ante, p. 240. Intervening location—Dart v. St. Keverne Mining Co. (1899), ante, p. ; Initial post in foreign territory—-Connell v. Madden (1899)., ante, p. Non-performance of assessment work—Peters v. Sampson (18981, anU 247; Lawr v. Parker (1901), ante, p. 456; Cleary v. Boscoioitz (1902), o p. 506. On same vein without permission—Alexander v. Heath (1899), ante, p. I Dunlop v. Haney (1899), ante, p. 369; Manley v. Collom, supra. Changing or "Swinging" location—Wise v. Christopher (1900), anU 413. Non-record—Franeoeur v. English (1897), ante, p. 203. Misleading compass bearing—Franeoeur v. English (18971. ante, p. ! Callahan v. Coplen (1899), ante, p. 348; Manley v. Collom (1901), anU 487. No "mineral in place"—Cranston v. English Can. Co. (19001, ante, p. i Manley v. Collom (1902), ante, p. 487. iWBtf^i t On "occupied ground"—Waterhouse v. LiftehUd (1897), ante, p. '. Sunshine, Ltd. v. Cunningham (1899), ante, p. 286. Re-location on valid location—Woodbury v. Hudnut, ante, p. 31; Granger v. Fotheringham, ante, p. 71; Atkins v. Coy, ante, p. 88; Bleekir v. f'hishoh . I ante. p. 112; Pellent v. Almoure, ante, p. 134; Aldous v. Hall Mines Go^Jm , I p. 213; Pope v. Cole (1898), ante, p. 257; Cranston v. English Canddmn,"' ante, p. 394; Rammelmeyer v. Curtis, ante, p. 401; Manley v. Collom, supr . As to misleading location and curative sections: see Waterhouse v. 1 child, supra; Richards v. Price, supra; Creelman v. Clarke, supra; Boi Saulter, supra; Callanan v. George, supra; CaUdhan v. Copies supra; A ney-General v. Dunlop, ante, p. 408; and Manley v. Collom. supra. UPREME URT ANADi It seems proper to insert here for the purposes of refer decided by this Court, more or less relating to mining:— Stuart v. Mott (1886), 14 S. C. 734 (Note). 0n partnership and interest in a mine. Lynch v. Seymour (1887), 15 S. C. 341. On licence to work and lien on a mine. Palmer v. Wallbridge (1888), 15 S. C. 560. On lease of mine, and rent, and quantity of ore ni Tupper v. Annand (1888), 16 S. C. 718 (Note). McArthur v. Brown (1888), 17 S. C. 61. On boundaries, and estoppel,-and survey. Baker v. McLelland (1895), 24 S. C. 416. On sale of rights to mine one mineral (phospha purchase right to mine others. Queen v. Canadian Agricultural Coal, &c. (1895), 24 S. C. 713 (Not On Crown grant and right of grantee to coal and other base n unless reserved. Warner v. lion (1896), 26 S. C. 389. On fixtures in a mine; horizontal engine, j Temple v. Attorney-General of Nova Scotia (1897), 27 S. C. 355. On Crown lease of mining areas and forfeiture for non-payment of rent. ■ Hobbs v. Esquimalt and Nanaimo Ry. Co. (1898), 29 S. C. 451; (1898)'6 B. C. 228. On contract for sale of land without reserving minerals, and mistake, and agency. MARffilNfSiMINING CASES. Cleary ex ai (32 S. C. 41'. v. Boscowri; 8 B. C. 225.) —Re-location—Certificate of Work^M»itence*-E*mfM lent Work—Pleading—Title—Affirmative Evidence of Act of 1898, sec. 11. the senior locator an ac ie defendant has duly rec ■idence of the defendant's 1898. Manley v. Collom (ante p. 487), followed. Decision of the Full Court of British Columbia Where the defendant junior locator, that tself affirmative med. Appeal by plaintiff from a judgment of the Full Court of British Columbia affirming a judgment of McColl, C.J., delivered 21st June, 1901, dismissing the plaintiffs' action for a declaration of right to' the Eoyal, Eoyal Extension and Kegina mineral claims and that the Empress, Victoria and Queen mineral claims held by the defendant" in respect of the same ground were invalid locations and the defendant should be restrained from obtaining a certificate of improveirieW therefor. The defendant relied on the fact that he held certificates of work in respect of the Empress, Victoria and Queen mineral claims. The plaintiffs were not permitted to impeach such certificates of work by shewing that the full or any amount of work required by the statute as a pre-requisite to such certificates of work being issued, had not been performed, or on any other ground, his Lordship holds® that evidence impeaching a certificate of work could not be received in any proceedings to which the Attorney-General was not a party. The plaintiffs appealed and the appeal was argued at Vancouver 13th November, 1901, before Irving, Drake, Walkem anc Ma , JJ. S. S. Taylor, K.C., for appellants: "We attad certificates of work. This case differs from Lawr 8 B. C. 223, ante, p. 456, because there there was t the-work, but by mistake it was done outside of t * Present— Sir Henry Strong, C.J., and Sedgewick, C the defendant's , Parker (1901), J work was don of afrauduler Davis, lv.( Per Curia ideiii, was not called on. i:—The intention makes .no difference. If a certififcate o&wqrk is to be set-aside the Attorney-General must be a party, and Jn^^nt until set aside aU things are presumed in favour of its holder. This case-is governed by Gelinas v. Clark (1901), 8 B. C. 42, ante, p. 428; Manley v. Collom (1901), 8 B. C. 153, ante, p. 487; and Lawr v. Parker, supra. nllo Appeal dismissed with costs. r, judgments were handed down by. J.: md the leld th round th ion was dismissed, with costs at the hearing, id on was that the learned Chief Justice had vere not allowed to attack the defendant's the certificate of work obtained by the de- ssued by the mining recorder, and that the ly and fraudulently obtained. Section 28 Mining Act lays that it shall be assumed that up to the date last certificate of work the title to the claim was perfect except suit by the Attorney-General based upon fraud. One of the of this section is to prevent claimants from questioning the less or validity of the certificates of work issued by the proper If, as alleged here, the defendant was guilty of fraud in og this certificate, the Attorney-General is to bring the suit, s no regulation in the Act how the party claiming that a fraud ai committed can put the Attorney-General in motion— r as a relator, or by information, or merely as a crown officer l satisfied that a fraud has been committed. If the Attorney- l declines to move there is no power in the Act to compel him. ftk the Chief Justice was correct in the view he took of this tij£&5. i affirmative evidence nd the rev, further contended that the Chief Justice- issing the action without requiring the defendant title. of title to the ground in controversy, s shewn that the action is wrongly conceived, ■tificates of work by the defendant have been e has not arrived to call upon the defendants tie.' The plaintiffs have to shew a prima fat' the defendant is then called upon to shew ■ his __ laintiff not having done this, his action has failed at an »p, and I think was rightly dismissed. ■ tig».-d0X ,08 MARTIN'S MINING CASES. I vol. Ma°^l5 Ibving, J.:—This case is provided for by section 28. By that ^— * section the certificate of work establishes the title of the holder S8onRTB thereof, except in the case of fraud. An action to set aside the cer- of Canada, tificate should be brought by the Attorney-General. Judgment A-s to the other objection that the learned Chief Justice neglected below, to examine the defendant's title, I fail to see how that objection can be substantiated, as the plaintiff in making his case, admitted that the defendant held certificates of work; that in itself is affirmative evidence of the defendant's title and no further examination was necessary. '''' Martin, J.:—This case cannot be distinguished from Lawr y. Parker in which the Court delivered judgment on the seventh instant. There, no work at all was done on the claims, by mistake, as alleged. Here also no work was done, by deliberate intention, as alleged. But the result is the same because the question of fraud cannot be raised unless the Attorney-General is a party to the suit. In view of the recent decision of this Court in Gelinas et al. v. Clark, supra, Manley v. Collom, supra, and Lawr v. Parker, supra, the learned trial Judge was right in holding that the certificates of work, if regular in themselves, were conclusive evidence that the work had been done. At the same time I think it in the interest of the mining public that the question of the proper construction of sec. 28 should be submitted to a higher Court. So far as regards section 11, my views thereon have already been expressed in Schomberg v. Holden (1899), 6 B. C. 419, ante, p. 290; Dunlop v. Haney et al. (1899), 7 B. C. 2 and 4, ante, p. 369; Gelinas v. Clark, supra. But in any event ample affirmative evidence of the defendant's title has been given because the plaintiffs in their reply admit that the defendant, who is the senior locator, has obtained and recorded certificates of work. In view of the decision of this Court above cited, what better affirmative evidence of title can there be? Even if it were necessary (and having regard to the certificate of work, I doubt it) for the defendant to formally prove that he was a free miner, that objection is not. open because, as the plaintiffs' counsel stated at the trial " the only question I raise is as to the sufficiency of the work on which the certificates were obtained." The appeal should be dismissed with costs. Appeal dismissed. .ppeaitoS.c. The plaintifl appealed to the Supreme Court of Canada and the argument was heard on March 11th, 1902. m . BOSCOWITZ. J. A. Russell, for the appellants. The appeUants adopted the proceedings provided by sec. 37 of the Mineral Act for asserting their adverse right and contend that sec. 28 does not override sees. 36 and 37. Section 37 provides the only remedy open to an adverse claim- , ! ant: Hand v. Warren, 7 B. C. Bep. 42, ante, p. 376; Gelinas v. Clark, 8 B. C. Bep. 42, ante, p. 428. Section 28 has no bearing on " adverse proceedings " taken under sees. 36 and 37. It has to do only with disputes between the party obtaining a certificate of work and the government in matters of irregularities affected by fraud, to protect the free miner against his own admissions or irregularities in the same way that sec. 53 of the Act protects him from the omissions or irregularities of the government or its officials. This view of sec. 28 is confirmed in Coplen v. Callahan, 30 Can. S. C. B. 555, per Gwynne, J., at page 557, ante, p. 348. The appellants also contend that work, as well as the certificate j of work is necessary 'in order to keep alive the title to any mineral | claim. Here the irregularity happened at the dates of the certi- I fieates of work, not previously thereto. This section is imperative I that work on the claim itself shall be done. It is not sufficient that I the Mining Eecorder shall be made to believe by a false or insufficient I affidavit that work has been done where, as a matter of fact, no work I has been done. The certificate of work granted and recorded under I such circumstances is merely evidence that the affidavit mentioned in I this section has been produced to the Mining Eecorder. He is not I given any option to accept or to reject the affidavit. The section I requires that the free-miner shall satisfy the Mining Eecorder that [such work has been done by an affidavit of himself or his agent. I The Mining Eecorder cannot require corroborative evidence or other- [wise question the affidavit produced. He must accept it, true or I false. It is not intended that the mere paper certificate shall take j the place of actual work on the claim itself, work done and certificate j recorded are essential to a proper compliance with sec. 24. Failure I to do the work on the claim itself goes to the root of the free miner's [title. Section 28 deals only with irregularities and does not preclude [the appellants from chaUenging a vital essential of respondent's [title or anything which makes his title void; not merely voidable. [If respondent's title is a nullity because he did. not do the work [required to make his title, then sec. 28 does not deal with or affect his position: Coplen v. Callahan, 30 Can. S. C. E, 555, ante, p. 348. See also Manley v. Collom, 8 B. C. Eep. 153, per Drake, J., at page 162, \ante, p. 487. I Further, inasmuch as the respondent failed to give affirmative [•evidence of his title to the ground in question, judgment should not MARTDFS MINING OASES. [vol. have been given in his favour. See section 11 of the Mineral Amend- ■ ment Act, 1898; also Schomberg v. Holden, 6 B. C. Eep. 419, ante, p. 290, and Dunlop v. Haney, 7 B. C. Eep. 2, ante, p. 369. The plaintiffs proved at the trial that they had complied witfiJfflP r the requirements of title, viz.: (1) free-miner's licences; (2) a proper location; (3) recording claims; (4) doing and recording necessary work within the year. Partlo v. Todd (1888), 17 Can. S. C. E. 196, and Johnson v. Kirk (1900), 30 Can. S. C. E. 344, are analogous cases. Davis, K.C., for the respondent. It is not contended that sec. 28 ■will validate or give life to a mineral claim which, by reason of its location or otherwise, was illegal and void ab initio, but that, given a good and valid mineral claim originally, the title to such mineral claim is conclusively assumed to be perfectup to and including the ;date of the record of the last certificate of work preceding the time when the dispute in question arose, which, in this case, would be the date of the location of the subsequent mineral claims, that is, the Eegina, Eoyal, and Eoyal Extension. The section certainly cures everything in the shape of an irregularity, and the bona-fide- omission to do a full hundred dollars worth of work, through mistake or otherwise, would be nothing more than an irregularity. On the other hand, if no. work was done or an insufficient amount, deliberately and mala fide, that would amount to fraud and, under the section, it would certainly be necessary for the Attorney-General to be made a party to the suit: The British Columbia authorities on the j subject are mentioned in the judgment of Mr. Justice Martin. The same question to a certain extent, arose, but was not settled, in the 1 case of Coplen Y.Callahan, 30 Can. S. C. E., p. 555, ante, p. 348. Cur. adv. <it» May 15th, 19021 The judgment of the Court was delivered by Sedgewiok, J.—The mineral claims Empress, Victoria, and Queen were located and recorded by the defendant, in September, 18! The plaintiffs, in the year 1900, located and recorded, over the same j ground, the alleged mineral claims Eoyal, Eoyal Extension, and Eegina. At the time this action was brought, all the claims had obtained certificates of work, but the certificates in respect to the ■latter three were later in point of date than the others. On the 2nd of August, 1900, the defendant applied for a certificate of imp <ments in respect of the three claims he owned, under sec. 36 o the I ^Mineral Act as amended by chapter 33 of the Acts of 1'898; sees: 7 and 8. ■ CLEARY et al. v. BOSCOWITZ. The (plaintiffs) appellants, claiming an adverse right and to be ■in possession of the ground or claims referred to in this appUcation, commenced this action in the Supreme Court of British Columbia, •under the provisions of said sec. 37, as amended by sec. 9 of the Minerals Acts Amendment Act, 1898, to determine the question of the right of possession to said claims, and otherwise enforce their S •adverse right. The (plaintiffs) appellants, pleaded in their statement of claim ttat the locations made by them were on vacant and unoccupied land of the Crown. The (defendant) respondent, in his statement of defence denied this fact and set up that he had obtained and recorded two certifi- uSates of work, each, on the Empress, Victoria, and Queen mineral claims, dated respectively, the 26th of September, 1899, and the 24th of July, 1900. In reply, the appeUants pleaded that these certificates of work were wrongfully and fraudulently obtained, for the reason that the work required by sec. 24 of said Mineral Act, as a condition precedent to such certificates of work being obtained, had not been done j on the claims. At the trial of the action, the learned Chief Justice refused to hear any evidence impeaching the defendant's certificates of work or . shewing that they had been issued without the full or any amount of work being done. It was stated by plaintiffs' counsel at the trial that the only question raised was as to the sufficiency of the work on which the certificates were obtained, it being impliedly admitted I that, at the time of the location by the defendant, the Empress, I Victoria, and Queen were valid existing mineral claims. The Attorney-General was not a party to the action, and the Chief Justice j dismissed it with costs. On appeal to the Supreme Court of British Columbia, the judg- ' ment of the learned Chief Justice was affirmed and the plaintiffs' appeal dismissed with costs. The appeal to this Court is from that l this appeal depends upon the construction to be 8 of the Mineral Act, which is as follows: . 348, we dealt 2 Can. S. C. E. lis Court, we The decisio placed upon se Upor any di affect tl e° title tl claim wa In Coplen v.Callaha; MARTIN'S MINING CASES. endeavoured to place a more definite construction upon it. If we are right, then this appeal must fail, the late learned Chief Justice being s right in refusing to receive evidence tending to shew that the cer- ,A. tificates of work held by the defendant did not truly represent the facts, but were fraudulently procured and void. ' ' This case, it seems to me, affords an interesting illustration of what the legislature was aiming at when they passed it. In the present case, on the day when the plaintiffs made their attempt to "jump" (the word used in the Courts below), the claims, the defendant was their duly located and recorded owner, holding the same, as the tenant of the Crown. By the statute, the rental payable by him to the Crown was the annual payment of $100.00 for five years, or the annual doing of work on the ground for five years. Upon the fuh payment of $500.00 or the doing of $500.00 worth of work, he becomes entitled to a certificate of improvements, which, in its turn, entitled him to a patent converting his estate for years into an estate in fee simple, as absolute a title as the law could give him. During this period the plaintiffs, having no interest in the property, imagined that the tenant Boscowitz had not paid his rent to his landlord, and, coming to the conclusion that the claims had thereby become vacant, located and recorded them under new names as their own. One of the objects (I can imagine many others), which the legislature here had in view, was to prevent any legal effect being given to a transaction of that character. A certificate of work once given by the Crown's officer was made conclusive evidence to the world that the tenant had paid his rent; it was made irrefutable and indisputable except upon attack by the Crown itself. So that, as it was admitted in the present case that, at the time mentioned, the respondent had a valid title and had not abandoned it, the paper title held by the appellants and all locations and payments and work made or done by them were absolute nullities forming no basis for the adverse claim set up. The appeal should be dismissed with costs. Appeal dismissed with costs. Note.—As to sec. 11, 1898. see also Ryan v. McQuillan, ante. p. 289. See Payne Consolidated Mining Co. v. Wilson, ante, p. 485, for a decision j hitherto unreported on sec. 28; and as to invocation of by stranger, J3oie v. Saulter, ante, p. 240. Up to the end of the period covered by this volume (Sept. 30, 1902), this j Is tie latest decision on sec. 28. For the future, where both parties have obtained certificates of work for the " whole or portion of the same claim " (whatever that expression may be held to mean), their rights will be governed by sees. 2 and 3 of the Mineral Act Amendment Act, 1902, assented to June 21, 1902. Cf. Fero v. Hall, ante, p. 238. For Orders-in-Council of 1900 and 1902 respecting the interpretation to be placed upon sec. 5, para. 2, of the Mineral Act Amendment Act, 1898, regarding the recording of excess of annual assessment work, see post, Appendix of Statutes. . BXRON N. WHITE CO. Byron 1ST. White Co. mder Rule 514 are im of privilege set up i iction is not conclusive, to apply to the Court to Motion to compel the defendant company to produce for inspection certain working plans and drawings which the plaintiff company claimed to be entitled to make copies of under an order of Court of 11th of December, 1901, by which, inter alia, leave was given to the plaintiffs to " inspect and make copies of the working or mining plans, drawings, charts, or surveys of the defendants at any time made or used, and in any manner connected with any and all of their said workings and mining operations in or upon certain specified mineral claims owned and worked by the defendants so far as may be necessary to ascertain whether the defendants have worked or are working into and under the surface of the (plaintiffs' claim), and the nature and extent thereof and the quantity of mineral or ore (if any) removed therefrom, and also so far as may be necessary to ascertain the apex and location or position thereof as to the lodes or veins or ore deposits which may have been or are being operated or mined by the defendants under the surface of the (plaintiffs' claim)." This order, was affirmed, save in one particular not at present material, by the Full Court on January 10th (1902), 9 B. C. 9, ante, p. 468. Davis, K.C. (S. S. Taylo r, K.C., with him), in i support of the Argument. motion. Bodwell, K.C., conh -a. The motion was hei irdby Martin | J., at Vancoi iver on 1st May, 1902, and in addition to the matter of law raised a ,nd ! stated in the judgment, material wa: s filed by both parties on the que stion of fact as to the expediency of granting the application. Cur . adv. vult. 33 514 MARTIN'S MINING CASES. [vol. 1902. May 31st, 1902. 1 May 31. J ' | Martin, J. Martin, J.:—In support of the appUcation are filed affidavits oj .two surveyors and of the manager of the plaintiffs' mines. The re- u gment. gu^. ^ my consideration of the facts set out in these affidavits, and of the accompanying plans and of the affidavit of Oscar V. White filed in reply, is that for the purposes of effectuating the true intent of the said order the plaintiff is entitled to the production and inspection asked for unless the defendant's contention in regard to the construction to be placed on Eule 514,* by virtue of which the order was made, is correct. The contention is founded on the affidavit of the said White, the defendant's mine superintendent, which sets up a claim of privUej&H and objects to the production of any plan other than one tracing, which is of practically no assistance, because as White deposes, the defendants " Have been advised by the solicitor and I verily believe that the said maij™|| or plans are not documents material to this action, that they do not contain any information which the plaintiffs are entitled to obtain for the purpose of their suit, and do not disclose any fact or circumstance which is detrimental to the defendant's case or which would in any-manner support the plaintiff's claim in this action." -, It is argued that a claim of privilege can be so set up under Eule 514 in the same manner as in proceedings for discovery, and that the ■ affidavit is conclusive unless it comes within one of the excepted cases which are conveniently set out in the Yearly Practice, 1902, pp. 319- 20. I find myself unable to take this view of Bule 514, and have come to the conclusion that said Eule authorizes a procedure distinci from discovery in the general acceptance of that term. If this be not so, then the defendant would have been unable to prevent the surveyors from making surveys and plans of the mine, as authorized by said order, and would have justified its action by simply filing an affidavit in terms almost precisely similar to that here reUed upon. But it must, I think, be apparent that such an affidavit would, under such circumstances, be no answer to an application to compel the defendant to allow the surveyors to enter its mine for said purpose; hence it foUows that Eule 514 does differ from the rules relating to discovery *Rule 514. It shall be lawful for the Court or a Judge, oi of any party to a cause or matter, and upon such terms as may any order for the detention, preservation or inspection of any j being the subject of such cause or matter, or as to which ai arise therein, and for all or any of the purposes aforesaid t persons to enter upon or into any land or building in the possess to such cause or matter, anc| for all or any of the purposes afore any samples to be taken, or any observation to be made or t tried, which may seem necessary or expedient for the purpose information or evidence. IT STAR MIN MIIiLING CO. v. BYRON N. WHITE C ar, and if the principle relied on d ut if the contention of the defendants' s to be defeated by the simple statement materiality of documents. I am of the practice, and that the application should ch facts as wiU enable the Court to de ity this essential parti [apply to a survey it < same rule. The case Mjfoouver Coal Co. (1 ItimMask (1898), 6 1 Star (1899), 7B. C. C Eule 514 provides ticularly in mining ci counsel is correct, it ii of the mere belief of )pinion that such is nj je resisted by submitt ride the question as one of fact in each particular case. Though I have dealt with the matter as one of substance as regards all the plans, yet I point out that technicaUy the plaintiff would n one respect be entitled to succeed in any event, because the original if one admittedly relevant plan has, by an oversight, as explained, lot been produced, but merely a copy. dopted of moving in the present way seems a proper and convenient nanner of enforcing the order, there bemg no question of contumaci- i resistance on the part of the defendant company. The application is granted; costs to the plaintiff in any event. Motion allowed. MARTIN'S MINING CASES. MoNaught v. Van Norman et Appeal from judgment of Irving, J., on an interpleader issue. Writs of fieri facias against the goods of one J. A. McKinnon were issued at the suit of the defendants and placed in the Sheriff's hands. On the 29th of March, 1901, the Sheriff seized, under such writs, the one-quarter interest in the mineral claims Hampton, Camp Fire, Ethel K. and Plunger, of which McKinnon was the recorded owner, the plaintiff McNaught being the recorded owner of a three-quarters' interest in the claims. On 31st May, 1901, before sale by the Sheriff of the interest seized, McKinnon allowed his free miner's certificate to expire, without renewing it. With the purpose of reviving the interest oi McKinnon under seizure, the Sheriff on behalf of the creditors applied for, and obtained the issuance in McKinnon's name, but without his authority, of a special free miner's certificate, under the authority of sec. 4 of the Mineral Act Amendment Act, 1899. This special fieate was issued on the 5th of June, 1901. Prior to the exprry^qf McKinnon's free miner's certificate, the plaintiff was a co-owner iffih McKinnon in the mineral claims in question and claimed the interest seized, under sec. 9 of the Mineral Act, and an interpleader issue was tried at Kelson, on 18th October, 1901, before Irving, J. S. S. Taylor, K.C., for plaintiff: The special free miner's e^Mr cate obtained by the execution creditors was issued without authority, i and is of no effect. Sec. 4 of the Act of 1899, gives no privilegejs^pr rights to any one, other than the person whose certificate has elapsed, j Even if the special certificate was properly issued, it has no effect in j reviving the lapsed interest, as a third party, viz., the plaint ff has, by virtue of sec. 9 of the Mineral Act, acquired an intervening tii John Elliot (Lennie and Wragge, with him), for defendants: The special certificate was issued by the authority of the Sheriff, who | must be regarded as the agent of the execution debtor, for the purpose of obtaining this special certificate, besides McNaught admits practically that he is holding McKinnon's interest for him The | Sheriff's duty is to protect the interests of the execution creditors, , and he is therefore justified in issuing the certificate for the purpose | of protecting the property under seizure. , MARTIN'S, MINING CASES. [v sec. 4 of the Mineral Act, 1899. This latter section provides, in.effect, . that if any person allows his certificate to expire, he may obtain a • special certificate which shall revive his title to aU claims owned by him, either wholly or in part, at the time of the lapse, except such as had previously passed to some one else. There appears to be no real difficulty in reconcUihg the sections, as the words " or in part" may be satisfied by supposing that the Legislature had in view the possible case of two or more co-owners allowing their certificates to lapse simultaneously, which could eas% enough occur by reason of the change in the law made by the previous section making all certificates expire on every 31st day of May. It is worthy of notice that the words "either wholly or in part" haafe been dropped out of the re-enactment of 1901, which does not, however, affect this' case, but the circumstance is perhaps an additional reason for thinking that the Legislature did not intend to interfere with sec. 9. In the next place, the Act of 1899, in terms confers the right to take out the special certificate on the person whose certificate has lapsed, and not on him and his assigns by operation of law or otherwise, and by sec. 3 of the principal Act the certificate is not transferable. Moreover, the Sheriff acquires no title to the interest of the execution debtor: he is in possession, actual or constructive, as the Wk may be, and is merely the instrument of the law by which the tHIe is transferred to the purchaser, as is plain from the fact that in the event of his being paid out by the debtor before sale no re-assignment to him from the Sheriff is necessary: Giles v. Grover (1832), 1 CI. & F., per Patterson, J., at pp. 76-7; per Taunton, J., at p. 114; per i Vaughan, B., at p. 143; per Tindall, C.J., at pp. 204-5; per Lord Tenterden at p. 218; Playfair v. Musgrove (1845), 15 L. J., Ex. I think the judgment should be affirmed with costs. Walkem, J.:—I agree with the learned Chief Justice that the j appeal should be dismissed with costs. No person, except he is specially authorized to do so, has the right j to take out a free miner's licence in any other person's name. The j same rule applies to the special licence taken out by the exe ution rreditor in McKinnon's name, gave him authority to use Under the Mineral Act, the execution creditor bj endeavoured to defeat this licence for his own purpose, McKinnon did not take out it seems to me, nugatory. A is no evidence that McK mipn j er's licence is not transferable, yet j unauthorized act, has, in effect, f rion'of the statute by securing the j i McKinnon's name. The fa t that j leeial licence makes that licence, as j lg to a well-known principle of law, j J t] * NORMAN. advantage from the Ucei he Mineral Act of ] any part of or in- Mai the creditor mentioned can ob his act, in obtaining it, was iUe The phrase "whoUy or in 1899, means, as I read the co terest in, a mineral claim whic McNaught's title to the ground in dispute has been conferred upon him by sec. 9 of the Mineral Act, and, obviously, cannot be defeated by the illegal act which I have mentioned. The appeal must be dismissed with costs. Martin, J.:—It is first contended fo effect of the proper construction of sec. 4 c ment Act, .1899, is to confirm in him the inter© the mineral claims set out in the interpleader anon's certificate expired, he, by virtue of sec. 9 absolutely forfeited all his interest in said claims o facto, became vested in his co-owner, the resp from the moment of expiration of the said certific and absolute owner of the claims, unlei Mineral Act Amend- est of McKinnon in r issue. When Mc- d of the Mineral Act, is, and that interest, at and he sole possible to revive i st him the interest of his former co-owner, McKinnon. According to said sec. 4, a special certificate may be obtained under certain conditions, and " it shall have the effect of reviving the title of the person to whom it is issued to all mineral claims which such person owned, either wholly or in part, at the time of the lapse of his former certificate, except such as under the provisions of the Mineral Act had become the property of some other person at the time of the issue of such special certificate. . . ." Now, xas has been noticed, the fact is that under the provisions of said Mineral Act the three claims in question had become the sole property of the respondent before the special certificate reUed upon was obtained, so I see no escape from the conclusion that the exception in section 4 is, on the facts of this a bar to the revival of McKinnon's interest in the claims in question. It may possibly be, as suggested, that it was not the intention of the Legislature to go to that length, but the language being clear and unambiguous I am unable to take any other view of the matter. It is consequently unnecessary to discuss the other points which were argued except to say that after a perusal of the evidence I cannot see anything that would point to the conclusion that McNaught should in any way be regarded as trustee for McKinnon. The appeal should be dismissed with costs. Appeal dismissed with costs. ers' interest in proceeds of sale of claim, McNerhani MINING CASES. Fry et al. v. Botseord et (Two actions.) on a point c t that Judge A judgment in an adverse action under sec judgment in rem. One co-owner of a mineral claim is not est( instituted by an adverse claimant against for a certificate of improvements. Per Martin, J:—Sec. 37 does not apply to to owners of conflicting claims. Decision of Irving, J., affirmed. Bentley v. Botsford, ante, p. 454, followed. Appeal from a judgment of Irving Jo be heard and disposed of by an ordi dated March 28th, 1901. Later, the sole question agreed to (as recited in order of Court of March 7th, 1902) was—" decision of the adverse action of Callahan v. Coplen (ante, prevent this action being maintained?" The argument was heard on the 2nd day of August, 1901. of February, 1902. The facts appear from the judgment. Joseph Martin, K.C. (E. J. Deacon, with him), for plaim and F. L. Fry. Sir Charles H. Tupper, K.C, and Peters, K.C Botsford. . Duncan, for defendant MacQj Cha for Does the p. 343), and 21st tiffs A C. defendant lillan. . adv. vuit. March 7th, 1902 Irving, J.:—These three actions are connected with the cl ims i which formed the subject-matter of the adverse action of Callahan . v. Coplen. In that action Callahan as owner of the Cody and Joker j fractional mineral claims, hereinafter called the fractions, successfully I opposed an application by Coplen for a certificate of improvemen s in j respect of the Cube Lode mineral claim. The trial of the case, Callahan v. Coplen, ante, p. 348, took lace before Mr. Justice Martin, who dismissed the adverse action (1 99) 6 B. C. 523. His judgment was reversed by the Full Court (1899) 7 B. C. 422, and the judgment of the Full Court was afterwards affirmed by the Supreme Court'of Canada (1900) 30 S. C. E. 555. ' The formal judgment of the Full Court orders and declares " That the survey of the Cube Lode mineral claim referred to in the pleadings is invalid and illegal in so far as the same embraces or includes the Joker In the first of these three actions (MacQuillan v. Fry) MacQuillan as one of the owners of the fractions sues for damages for trespass which he alleges the Frys have committed. The Frys, in addition to denying the trespass, allege in their statement of defence, paragraph 8, that the ground upon which the plaintiffs say they are trespassing is really a portion pf the Cube Lode mineral claim. The plaintiff in his reply says that the defendant ought not to be aUowed to claim the ground in dispute as being a portion of the Cube Lode mineral claim, because, on the 14th day of October, 1897, Coplen advertised his intention to apply for a certificate of improvements in respect of the Cube Lode mineral claim, and at the time of the appUcation the defendants, the Frys, were also interested in the said alleged mineral claim, and were part owners and were witnesses on behalf of the defendant in the adverse action which Callahan c menced. The reply then sets out the steps taken and the judgment obtained in the adverse action, as I have already mentioned, and the plaintiff, MacQuillan, submits that the said judgment binds the Frys and that they are estopped from alleging that the Cube Lode is a subsisting mineral claim. I stop the recital of facts for a moment to say that I do not think the judgment does declare that the Cube Lode is not a good mineral claim—the decree is silent on that point. In the other two cases, the Frys as owners of the Cube Lode, are adversing two applications of different date by Botsford and Mac- QuiUan as owners of the fractions for certificates of improvements in respect Of the two said fractions. By paragraph 6 of the statement of claim, the Frys allege that the I ground in respect of which Botsford and MacQuiUan are seeking to obtain a certificate of improvements is not the ground originally located or recorded by them. By paragraphs 40 and 41, the defendants, Botsford and Mac- i Quillan set out the application of Coplen for a certificate and the | proceedings in the adverse action, and they say that the judgment in Callahan v. Coplen was a judgment in rem and was binding on the I plaintiffs in these actions by estoppel. By paragraph 41 they say that as a matter of law this i action of the Frys is practically an action between the sai ; for the same cause and cannot be now maintained. 1 . MARTIN'S MIN On the 28th of March, an of law so raised by the reply 41 of the second and third sion of the adverse being maintained ? the soUcitors, by which led was—Does the deci- either because the Callahan v. Coplen judgment when read with sec. ■ was a judgment in rem, or because it was a judgment inter partes, anl In sec. 36 of the Mineral Act are laid down the steps to be taken by " the lawful holder " of a mineral claim to obtain a certificate oi improvements. By sec. 37 it is provided that a certificate of improvfg:; ments, when issued, shall not be impeached, except for fraud. By sub-sec. 2 of sec. 37 a code of procedure for adversing applications j| laid down. It provides (a) that any person claiming adversely to the appUcant shall bring his action within 60 days; (b) that failure to commence or lU 1 E the piainti n; (c) that (1) after filing the final judgment and (%) g with the requirements of sec. 36, the person or any one of the persons entitled (according to the judgment) to the possession of the claims shaU be entitled to a certificate of improvements in respect of the claim which he or they shall appear from the decision of the Court. Now, if the defendant, that is the applicant, succeeds he takes out a judgment which in terms entitled him to a certificate. This Mp ment in favour of the appUcant might be said to be one affecting the status of the property and bind all the world, as by sees. 36 and 37 ail persons were required to come in and contest his claim, and it might be said to be a-judgment in rem. But is the result the same if he Mm The adversing plaintiff in the adverse action does not necessarily sfe- ceed if the applicant fails—this judgment would not affect the status Again, if we take the case where both parties faU, the judgment under sec. 11 of ch. 33 of 1898 would not be a judgment affecting the status of the property. Those are three judgments which might be given action in one of which there would be a judgment whicl one of the parties was not entitled to the possession of s of ground, or to a certificate of improvements in respect Jverse ithat piece That m FRY et AL. v. BOTSFORD et au seems to me to establish that judgments under, sec. 37 are not in the nature of judgments in rem. In many cases (of which the adverse action of Callahan v. Coplen '■ is an instance) the adversing plaintiff is not at the time of bringing his •adverse action, entitled to a certificate, although he, the plaintiff, may tive evidence of his own title up to a certain point, i.e.Ao the tria in such iidgr ouldr npr judgment in rem—as it would affect the status of the property. At the utmost he would not be entitled to a certificate of improvements until he had complied with the provisions of sec. 36. The language of sec. 37 does not put a successful plaintiff in the secure position that a defendant is in if he succeeds, for it seems to me that there is a marked difference between the judgment infavour of the applicant's right to a certificate 'of improvements after advertisement duly made, and a judgment in favour of the plaintiff declaring that the defendant's claim is not good —the former may be a judgment in rem, or of that character, but the latter certainly is not. Again, the action instituted by an adversing'plaintiff lacks one of the peculiar features of an action in rem—there has been no preliminary notice to the world—it was contended that the filing of a writ {as required by sec. 37), was a notice of this character, I always thought it was more in the nature of a certificate of lis pendens, part pf the system of the registration of the mineral claims. If one compares the notice required by sec. 36, which notice Par- 'liament has said will operate as to bar everybody unless action is commenced with the so-called notice required by sec. 37, it will at once be apparent that it is straining the words of the statute to call the filing of a lis pendens a notice of the character required on the institution of an action in rem. An action in rem has been defined as proceeding to determine the status or condition of the thing itself, and a judgment is a decision as to the disposition of the thing. Neither the order of the Full Court alone, nor that order when \ read in conjunction with sec. 37 of the Mineral Act, deals with the j status of the Cody and Joker fractions, nor does either of them make a ! disposition of the Cube Lode or the fractions. This determination of the right of possession is an interlocutory determination, the final disposition of the thing is ultimately worked out by the department; it seems to me that a judgment in rem must be in its nature final, it must determine the status of the thing. Under the Mineral Act that determination is arrived at in the Depart- ment after the judgment has been given, and is not a judicial proceeding. MARTIN'S MINING CASES. [vol. Then it is said that if the decision in CaUahan v. Coplen was not| a judgment in rem then it was a ease inter partes, and that the same '- parties are now again seeking to Utigate the matter. In the first place, I would point out that nowhere in the Act~i|l it said that all co-owners must join in the appUcation for a certificate!, of improvements. My brother, Martin, has decided (Bentley v. Botsford, (1901), 8 B. C. 1281, ante, p. 454), that it is not necessary that all co-owners should join in the application. Having regard to the pecxdiar nature of the relationship erristiaSj between co-owners, I think he is right. I do not see how one co-owner" can prevent another co-owner from proceeding with an appUcatiofiF for a certificate. That being so, I do not see how the decision in an adverse action against one co-owner can affect the other. One of several co-owners of a patent may sue for an infringement of his right, Sheehan v. Great Eastern Railway Co. (1880), 16 Ch. D. 59, and so may one of several, co-owners of a trade mark, Dent v. Turpin (1861), 30 L. J., Ch. 495, but apart from that, judgments in personam bind parties and privies only, and co-owners are not pritfj|3KJ nor are they parties. Sir Charles Tuppei- relies on Young v. Halloway (1895), p. 87, and" In re Lart: Wilkinson v. Blades (1896), 2 Ch. 788, the former case is a decision peculiar to the practice of the Court of Probate, and the latter rests on the doctrine of acquiescence (see p. 796) and estoppel, by conduct. I do not see how I can deal with that class of estoppel on an application of this sort, as the facts are in dispute. The question submitted must be answered in favour of the Frys. The costs of this- application will be their costs in any event. The defendants Botsford and MacQuillan appealed, and the app# was argued at Victoria on 13th June, 1902, before Hunter, C.I., Martin and Drake, JJ. Peters, K.C., and Duncan, for the appellants. The judgment was one in rem, but I mainly rely on this being a case of the Frys standing by and being wiUing to take the benefit of a successful" issue of step taken by co-owners; no dissent or disclaimer here; operates^as estoppel—Wilkinson v. Blades, suvm: the plaintiffs had construe^ notice of adverse proceedings, and not having come in are bound; under the section it is not merely notice to those Avho have an adverse interest, but notice to all the world, to anyone who has any inters^; according to Bentley v. Botsford, supra, it is an adverse suit if the man on Judgments (4th ed.), 105, and Chand on Bes Judicata, 195; as to judgments in rem see Houston,, v. Marquis of Sligo (1885), 29 C. D. 448, 454; Castrique v. Imrie (1870), L. B. 4 H. L. 427-9; J I.] . BOTSFORD 1 Duchess of Kingston's Case (1776), 2 Sm. L. C. 734, 753; Wicherley v. Andrews (18 ), 2 P. & M. 337; Birch v. Birch (1902), P. D. 72; Bonnemoit v. Gill (1897), 45 Nor. East. Bep. 768. i Joseph Martin, K.C, for the respondents: The case set up is hckh really not that of a judgment in rem, but a statutory estoppel; the section gives- an adverse claimant the right to come in and attack an opposing claimant, but if an opposing claimant does not come in there is still no judgment in rem, or otherwise against him, but a statutory estoppel; but we were not in the position of an adverse claimant or an opposing interest, quite the reverse; in any event plaintiffs cannot rely on our title if defective, because by sec. 11 both parties are on the same footing and must prove their title. Per Curiam :—The Court is of the opinion that there is nothing here of the nature of a judgment in rem. I proceed, then, to the remaining point, an estoppel in pais, as to which see Odgers on Pleading (3rd ed.) 206; BuUen & Leakes' Precedents (5th ed.) 694. Here there is no estoppel, because the plaintiffs were not in a position to be estopped; the question of notice to them of the adverse proceedings is immaterial, because such proceedings have by a proper construction of sees. 36 and 37 no application to the ease of co-owners of the same claim, if necessary Bentley v. Botsford should be, it is submitted, overruled, but it is not necessary to go into that question if see. 37bears the construction contended for; the whole procedure of the sections is directed towards procuring a certificate ! defendants were in no sense adverse claimants, recorded owners are. | already fully protected by said sections, and if they were not called ; upon to join in the adverse proceedings the question of notice to them, i and consequently of estoppel, wholly disappears; for the purposes of the. argument of the point of law the facts are all admitted as they appear in the record, so we ask for judgment on the sole question of law before the Court. Peters, K.C, in reply. Cur. adv. vult. Hunt: m C.J. :- I before -In July 29th, 1902. ninion, this case comes in too unsatisfac- the Court to enable us to deal with it properly. :ide several important questions as to the construc- I tion of an Act which is more frequently before the Court than any I other, and which affects a large section of the community, in almost I complete ignorance of the facts. An order was made under Bule 318, on the application of Bots- [ ford and MacQuillan, on the 28th day of March, 1901, directing that 526 MARTIN'S MINING CASES. [VOL. 1002. certain points of law set up by them in their pleadings should be Julys), disposed of before trial. The matter came up for argument on May Full Court. 2nd, 1901, and was re-argued, it being agreed that the question for Huntbr" c j. decision should be, " Does the decision of the adverse action of Callahan v. Coplen prevent this action being maintained ? " Now, it is- obvious that although the title of the Cody and Joker Fractions was established as against the Cube Lode in that suit, it may very easily be that the title has since lapsed by reason of the neglect to observe some provision of the Mineral Act, so that in this view the answer would have to be in favour of the Frys. On the other hand, it may . be that no such neglect has occurred, and that the Frys, even if not bound by the result of Callahan v. Coplen, although not parties to the record, may be concluded by estoppel in pais, as to which, of course, all the facts would have to be found before this question could be determined. Although the question is raised by Judge's order under Bule 318, the position is the same as if it had been raised by special case, and a special case is useless which does not supply the Court with all the necessary facts, either found or admitted, or, at any rate, such facts from which the Court may draw all the necessary inferences of fact. Difficult questions were raised during the discussion, such, for instance, as the nature of the judgment in the adverse action, the question whether or not the proceedings under sec. 36 are notice to a co-owner, whether or not one co-owner may apply for a certificate of improvements, &c. I do not, however, feel called upon at present to say anything about any of these matters, as I think the Court should decline to enter into the interpretation of this Act any further than is necessary to decide the matter in hand, and always with reference to the particular facts, as otherwise we may very easily be led into giving expression to broad views, which, after further sifting, we should find to be untenable, and few things can be more mischievous than to have misleading, or ill-considered decisions upon an Act of this importance. I, therefore, think that although we cannot say that the judgment is wrong, owing to the way in which the matter came up for the learned Judge's decision, yet it ought not to stand in the way of the appellant's raising such questions by way of estoppel or res judicata, as they may be advised, and that, accordingly, the best way to deal with the matter is to dismiss the appeal, and set aside the order of 28th of March, 1901, and the judgment of the 7th of March, 1902, and to allow the actions to go to trial in the regular way. As the appellants fail in their appeal, I think they ought to pay the costs of the appeal, but as all parties agreed to the form of the question tq_ be argued, the costs of the other proceedings should be costs in the cause. m FRY et al. v. BOTSFORD ] • Beferenee to Yale Hotel Co. v. 7. V. & E. Ry. Go. (1902), 9 B. C. 66, will shew that the Court very recently felt similar difficulty in the way of determining important questions of law which Fui were raised before trial. Drake, J.:—This is an action by the plaintiffs as co-owners < | co-partners with one A. D. Coplen in a claim called the Cube Lc In 1897, William. CaUahan brought an action against Coplen with reference to the same ground, in which action the then plaintiff recovered judgment, and that judgment was that the Cube Lode mineral I claim was an invaUd claim in so far as it embraces or includes any I part of the Cody and Joker Fractions. It appears the Frys were j part owners of the Cube Lode mineral claim with Coplen, and were j witnesses on behalf of Coplen in the action above referred to. The j question we have to determine is whether they are bound by the judg- I ment above mentioned, as being res judicata. Parties or privies are [ bound by a judgment of a Court of competent jurisdiction, and privies include trustees and cestui qui trusts, husband and wife, co-partners,. I heirs and assigns. The Frys as co-owners do not fall within any of I these designations. It is true their title rests on the same foundation as that of Coplen. A co-owner of a mineral claim is entitled I to apply for a certificate of improvements, which, if he obtains it, he becomes a trustee for the share of his co-owners. The Frys did not join in the application for a certificate of improvements, but apparently were content to permit Coplen to make the application, and take the benefit of it. Although not privies in the ordinary sense of the word, they were privy to the proceedings which resulted in the judgment. Res judicata can be pleaded when the action is between the same parties for the same cause of action, and the rule laid down in the Duchess of Kingston's ease, that with certain exceptions, a transaction between two parties in judicial proceedings ought not to bind a third, for it would be unjust to bind any person who could not be admitted to make a defence or examine witnesses, or to appeal from a judgment he might think erroneous, and therefore the depositions of witnesses in another cause and the judgment of the Court upon the facts found, although evidence against the parties and all claiming under them, are not in general to be used to the prejudice of strangers. In my opinion the defendants are entitled to raise the defence of estoppel to be dealt with at the trial. The fact that a mineral claim is in the nature of a yearly tenancy, leaves it open to the parties to sustain or defend these actions in the state and position i of the claims as they were at the commencement of the several ac- j tions, and not as they were when the action of Callahan v. Coplen [wag commenced. The state of affairs may be entirely* altered by neglect of statutory duties, and this reason alone is sufficient to prevent MARTIN'S MINING CASES. [vol. the appeal from succeeding. I therefore think the appeal should be dismissed with costs, but I also think the actions should be con£j fl solidated. Martin, J.:—By agreement of the parties the question to be argued before the learned trial Judge was " Does the decision of the adverse action of Callahan v. Coplen prevent this action being maintained ?" and he answered that question in the negative, and in favour of the plaintiffs. During the argument before this Court, the opinion was expressed that that judgment was not in the nature of a judgment in rem, thus leaving for consideration the remaining point as to whether or not the plaintiffs (respondents) are estopped, by reason of the adverse proceedings under sec. 37 taken in the case of Callahan' v. Coplen. It is contended by the plaintiffs' counsel that such is not the case, and that the said section has no appUcation to co-owners of the same claim but to owners of conflicting claims. The learned trial Judge, as I understand his judgment, practically adopted this view, and, in my opinion, it is the correct one. The general scope and object of adverse proceedings appears from a consideration of sub-sees. 36 and 37, and I see nothing to lead me to believe that they are to be construed as a means by which co-owners may attack one another. The whole procedure is directed to the procuring of a certificate of improvements, which results to the benefit and not to the detriment of the co-owners, whose interests are fully protected by sec. 36, sub- sees, (d) and (h). According to sub-sec. (d) of sec. 36, the notice ■ to be posted in the Mining Becorder's office must contain " the name of the lawful holder thereof;" and sub-see. (h) requires that "the recorder shall also set out in Form 1 the name of the recorded owner of the claim at the date of signing the same," and the Crown grant subsequently issues to such recorded owner under sec. 40 as amended by sub-secsAO and 19 of the Mineral Amendment Act, 1899. It will thus be seen that all through these proceedings the titles of co-owners are not only not disputed, but admitted, and how can there be any adverse proceedings between themselves in regard to their respective position which are clearly defined and protected by the statute itself? Such being the case, I am of opinion that the learned trial Judge was right in answering the question as he did, and this appeal should be dismissed with costs. Appeal dismissed with costs. Note.—As to res judicata, see Pellent v. Almoure. ante, p. 134: Dunlop v. See sees. 2 and 3 of for'the future determin Act and Amendments. [End of Beports.] APPENDIX. APPENDIX A. ble (a) oi- Proclamations, Ordinances and Statutes oe the Colo: .Vancouver Island and British Columbia and oe the Pi«n British Columbia relating to Mining. (Exclusive of Private Acts.) *18o3. 26th March (V.I.) Proclamation respecting Gold Mining Queen Charlotte's Island. * " 7th April (V.I.) Provisional Regulations regarding the *1857. 28th December . . (V.I.) Proclamation respecting Gold Mining i Districts of Fraser's R,iver and Thompson's River, commonly known as the " Quaatlan,"- " Couteau," and " Shuswap " countries. * " 29th December . . (V.I.) Provisional Regulations regarding the i "■ 30th December.. (V.I.) Provisional Regulations regarding the same, (Amending the preceding by raising the licence fee from 10s. to 21s. per month). 1858 June (6) ...(V.I). -'Regulations to be observed by the persons digging for gold or otherwise employed at the Gold Fields," with accompanying Form of Mining Licence. 1st July (V.I.) Instructions to Assistant Gold C. " 13th July (V.I.) General Regulations for Gold Dii " 19th November. .. Colony of British Columbia established (e. 1859. 8th February . . (B.C.) Proclamation confirming Proclamat 28th December, 1857, and Regulations of 30th December, 1857, and 13th July, 1858, and fixing: " 14th February . . (B.C.) Proclamation possession of Crown Lands and Mines and Gold Claims—sees. G. 7, and 9. " 10th August (B.C.) Proclamation. The * | 31st August (B.C.) Proclamation. The " (Consolidation.) * " 7th September. . (B.C.) Rules and Regulations for the ^ Gold Mines under foregoing Act. (a) Those proclamations, &c, which are hereinafter printed, i in this Table by an asterisk. (6) No date is appended to these Regulations which were issued i nection with mining licences, concerning which Governor Douglas says despatch of June 19th, 1858. " We have commi - ■ licences, all parties entering the river (Fraser' being required to pay one month's licence in a affairs of B. C. 1859, Pt. I., pp. 18, 19-22, 30-; (c) Though the union of the two Colonies acted after 1858, though references to mining r ions proclamations respecting Crown lands, e.r, 12,16, 17 and 18; and that of 6th Sept.. 1862, s MARTIN'S MINING CASKS. m 1860. 6th January ... (B.C.) Further Rules and Regulations for the Working of Gold Mines under said Act. (Bench Diggings.) 1862. 29th September.. (B.C.)Further Rules and Regulations under said Act. I specting crossing of mining ditches by i 1863. 24th February , " 25th March .. . " 27th May 1864. 1st February . " 26th February 1865. 28th March 1866. 29th March . .. &c.) . (B.C.) Further Rules and Regulations under said . (B.C.) Proclamation (No. 4) amending the "Gold Fields Act, 1859." . (B.C.) Proclamation (No. 7) "The Mining District Act, 1863." .(B.C.) Ordinance (No.'1) "The Mining DrairaB Act, 1864." . (B.C.) Ordinance (No. 4) The "Gold Fields Act, 1864." , (B.C.) Ordinance (No. 14) The " Gold Mining Ordinance, 1865." (Consolidation.) (B.C.) Ordinance (No. 10) "The Williams Creek Flume Ordinance, 1866." , (B.C.) Ordinance (No. 12) " The Gold Export Repeal Ordinance, 1866." . Uni j Nan: ish *1S67, 2nd April Ordinance (No. 34) " Gold Mining Ordinance, 1867." (Consolidation.) .1869. 10th March Ordinance (No. 22) "Mineral Ordinance, 1869." (Respecting the working of minerals other thanr-| gold.) 1871. 20th July Union of the Colony with Canada. 1871. Revised Laws... (No. 90) "The Gold Mining Ordinance, 1867." "... (No. 123) " Mineral Ordinance, 1869." 1872. 11th April (No. 14) "The Gold Mining Amendment Act, 1872." 1873. 21st February .. (No. 3) " Mineral Ordinance Amendment Act, 1873." (No. 4) "The Gold Mining Amendment Act, 1873." " (Xo. 14) " The County Courts Extension Act, 1873." (Giving County Court Judges jurisdiction oyer the Mining Court.) 1874. 2nd March (No. 3) " Gold Mining Amendment Act, 1874." 1875. 22nd April (Chap. 12) "Williams Creek Flume Ordinance Ex tension Act, 1875." 1876. 19th May (Chap. 26) "Gold Mining Real Estate Repeal Act, 1876." 1877. 18th April (Chap. 13) " Quartz Act, 1877." " (Chap. 14) " An Act Relating to Minerals other than Coal." (Mineral Act, 1877. Relating to lode claims exclusively.) ' (Chap. 15) "The Coal Mines Regulation Act, 1877." " " " (Chap. 35) "An Act to amend the Gold Mining Amendment Act, 1872." (Reserved.) " Consol. Stats (Chap. 122) " The Coal Mines Regulation Act, 1877." *' (Chap. 123) " Gold Mining Ordinance, 1867." " (Chap. 124) "Quartz Act, 1877." " (Chap. 125) "Mineral Ordinance, 1869." " (Chap. 126) "An Act relating to Minerals other than Coal." (Mineral Act. 1877.) m 1878. 1881. 1882. 1883. APPENDIX A.—TABLE OF MINING PROCLAMATIONS. 533 10th April (Chap. 11) "Coal Mines Regulation Act (1877) Amendment Act, 1878." " (Chap. 12) "Quartz. Act, 1878." " (Chap. 13) "Mineral Act, 1878." 2nd September.. (.Chap. 29) "Mineral Act Amendment Act, 1878." 25th March (Chap. 15) "Mineral Act, 1881." 21st April .(Chap. 8) "Mineral Act, 1882." (Consolidation.) 12th May (Chap. 2) " Coal Mines Regulation Amendment Act, 1883." " " (Chap. 3) "Coal Prospecting Act, : " " (Chap. 19) "Mineral Amendment Act, i 18th February .. (Chap. 10) "Mineral Act, 1884." (Consolidation.) 6th April ., (Chap. 14) "Mineral Amendment Act, 1886." 7th April (Chap. 22) "An Act to amend the 'Mineral Act, 1884,' and Amending Acts." " " (Chap. 24) "An Act to aid the Development of Quartz Mines." (Government guarai vances to extent of $60,000.) 28th April (Chap. 12) " Foreign Mining Compai Act." " (Chap. 21) "Coal Mines Regulation Act, 1888." " " (Chap. 22) " An Act to aid in the further velopment of Quartz Mines." " " (Chap. 34) "An Act to amend certain Sta Consol. Stats (Chap. 82) "Mineral Act." (Chap. 83) "Coal Mines Act." (Chap.. 84) "Coal Mines Regulation Act." " .... (Chap. 85) "An Act ,to aid the Development of Quartz Mines." 6th April (Chap. 16) "An Act to amend the 'Mineral Act.'" " " (Chap. 17) "Quartz Mines Development Act, .' 26th April (Chap. 31) " Mineral Act Amendment " " (Chap. 32) "An Act to alter and amend the 'Coal Mines Act.' " " " (Chap. 33) "Coal Mines Regulation Amendment Act, 1890." 20th April (Chap. 25) "Mineral Act, 1891." (Chap. 26) " Placer Mining Act, 1891." " " (Chap. 27) "An Act to recompense the members of 23rd April (Chap. 31.) "Coal Mines Amendment Act, 1892." (Chap. 32) "Mineral Act (1891) Amendment Act, 12th April (Chap. 28) "Mineral Claim Confirmation Act, 1893." (Chap. 29) " Mineral Act. (1891) Amendment Act, 1893." 11th April (Chap. 5) "Coal Mines Regulation Amendment Act, 1894." " " (Chap. 32) " Mineral Act Amendment Act, 1894." (Chap. 33) " Placer Mining Amendment Act, 1894." 21st February... (Chap. 3) "Bureau of Mines Act, 1895." "... (Chap. 37) "Coal Mines Amendment Act, 1895." " " ...(Chap. 38) "Coal Mines Regulation Amendment Act, 1895." " " ... (Chap. 39) "Mineral Act Amendment Act, 1895." " " ... (Chap. 40) "Placer Mining Act (1891) Amendment Act, 1895." 17th April (Chap. 5) "Bureau of Mines 1896." , " " (Chap. 34) "Mineral Act, 1896." 584 MARTIN'S MINING [vol. 7th April (Cba£DJ») """' er Mining 1 'An A ct to aid the id Amending 1897. I th May . ....(Cha^271 "Inspe ction of M ■talUferon s Mines Act, ■::::iaSiD)"2£ iym "ST\i .(*, 1897." 391) Amend- evised Sta "' ..ichnF^f®^ j^Sta?*? Mcinll ferous Mines I '-• .. (Chap. 138) "Coa Mines Ac pg (Chap. 33) "Mine r^ts Let (1891 fiSE* 27th • ^ggg1,^ "^ eau of Mi nes Amendment Act, 0. 18th 1. 11th March .. May tion of Me Creek D 1." nd the 'Coal Mines mmission Act, 1S99." nd the rights of the ndment Act, 1900." gent Exemption Act, endment Act. 1901." .'ulation Act Amend- x] APPENDIX A.—TABLE OF MINING PROCLAMATIONS. 535 ♦1901. 11th May (Chap. 37) " Inspection of Metalliferous Mines Act, Amendment Act, 1901." (Chap. 38) "Placer Mining Act Amendment Act, 1901." *1902. 6th " ,. Order in Council revoking Order in Council of 5th March, 1&00, respecting assessment work. * " 15th " Order in' Council respecting assessment work. rap02. 21st June (Chap. 7) "Canadian Contingent Exemption Act, 1902." " (Chap. 46) " An Act to amend the " Mineral Act." (Chap. 47) "Coal Mines Regulation Act Amendment Act, 1902." (Chap. 48) "Coal Mines Regulation Act, Further Amendment Act, 1902." ['Disallowed, 5th Dec, * " " " ....... (Chap. 49) "Iron Placer Act, 1902." * " " " (Chap. 50) "Iron Placer Act, 1902, Amendment Act, 1902." -* " 5th August Order in Council rescinding Order in Council of 15th May, 1902, respecting assessment work, and substituting a new order therefor. TAXATION OF MINING PROPERTY-Lode and Placer Claims. (Statutes now in force relating thereto.) 1897. Assessment Act, R. S. B. C, chap. 179. 1899. Feb. 27 Assessment Act Amendment Act, 1899. 62 Vic. chap. 72. 1900. Aug. 31 Assessment Act Amendment Act, 1900. 64 Vic. chap. 38. 1901. May 11 Assessment Act Amendment Act, 1901. 1 Edw. VII. ohap. 56. 1902. June 21 Assessment Act Amendment Act, 1902. 2 Edw. VII. chap. 64. RE-PRINT OF CERTAIN 'PROCLAMATIONS, ORDERS-IN-COUNCIL, AND STATUTES SET OUT IN THE FOREGOING TABLE. In selecting what should be included in 'the re-print that follows it has been decided, after consultation with several leaders of the Bar, that the proper course to adopt is to give, first, a limited number of the earlier and most important laws so that a true understanding of the origin and foundation of our present system may be had, and second, all the statutes from and including the Consolidated Mineral Act of 1884. This will cover the title, so far as can be ascertained, to every mineral claim in British Columbia. Coal mining being a branch by itself, and, with the exception of one case, Peck'v. Reginam, decided in 1884, there being no reported decision on the Acts relating to coal, and practically no litigation thereon, none of such Acts is reprinted here; to do so would add greatly to the bulk and cost to the practitioner without any compensating practical benefit. MARTIN'S MINING CASES. [vol. In regard to the 'origin of our mining laws, it may be stated that in his despatch of September 27th, 1852, to Governor Douglas, containing instructions regarding gold mining, the Secretary of State for the Colonies says: " I therefore send you copies of two papers, which have been lately presented by command of Her Majesty to Parliament, relating to the recent discovery of gold in Australia, from which you will derive very valuable information as to the course of procedure adopted by the respective Governors in that country for granting licences to persons to prosecute the search for gold. You will find thfe principal information at pages 70 and'71 of the Parliamentary Paper of February, and at pages 20, 21, 54 and 55 in that of June, and will frame'such regulations as you may deem practicable and advisable for granting licences for collecting gold upon the principle of those which you will find, from the correspondence, have been granted to the Australian Colonies." (Parliamentary Return of July 19, 1853, for " Copies or Extracts of Correspondence, relative to the Discovery of . Gold at Queen Charlotte's Island," p. 13. And see, also, despatches in the Parliamentary " Papers Relative to the Affairs of British Columbia," 1859-60; Part i., p. 67; Part ii., p. 51; Part iii., pp. 10, 17.) Subsequently several provisions of the laws of the United States were introduced here, particularly the practice relating to adverse actions,'though not precisely the same; notes on these differences will be found in the preceding pages of the Reports wherein they occur. PROCLAMATION.* (26th March, 1853.) By his Excellency James Douglas, Esq., Governor of Vancouver's Island, and Lieutenant-Governor of Queen Charlotte's Island and its Dependencies, &c, &c, &c. Whereas by law all mines of gold, and all gold in its natural place of deposit within the colony of Queen Charlotte's Island, 'whether on the lands of the Queen, or of any of Her Majesty's subjects, belong to the )Crown; And whereas information has been received by the' Government that g ld I exists upon and in the soil of the colony, and that certain persons have commenced, or are about to commence, searching and digging for the same or their own use, without leave or other authority from Her Majesty: 'Now I, i James Douglas, Esquire, the Governor aforesaid, on behalf of Her Majesty, do I hereby publicly notify and declare that all persons who shall take from any f lands within the said colony any gold, metal, or ore containing gold, or shall dig for and disturb the soil in search of such gold, metal, or ore, without J having been duly authorised in that behalf by Her Majesty's Colonial Govern- 1 ment, will 'be prosecuted both criminally and civilly, as the law allows. And I I further notify and declare, that such regulations as may be found expedient J will be prepared and published, setting forth the terms on which licences will j be issued for this purpose, on the payment of a reasonable fee. Given under my hand and seal at the Government Office, Victoria, this 26th I day of March, in the year of our Lord One thousand Eight hundred and Fi ty- J three, and in the seventeenth year of Her Majesty's reign. By his Excellency's command. James Douc God Save the Queen! ♦Parliamentar of Corresponded Island." thereon. 4. Rul e form annexed. and who will be authorised t the fee payabh And I further notify and declare that such regulations a; diem will be prepared and published, setting forth the term ill be issued for this purpose on the payment of a reasonabl 588 MARTIN'S MINING CASES. [vol. Proe. 1857. Given under my hand and seal at Government Office, Victoria, this 28th day December 28. of December, in the year of our Lord one thousand eight hundred and fifty-seven^ and in the twenty-first year of Her Majesty's reign. (Signed) James Douglas, Governor. By His Excellency's command. Richard Golledge, Secretary. God Save the Queen ! PROVISIONAL REGULATIONS. Government House, Victoria, December 29, lSST.^jiM With reference to the proclamation issued on the 28th of December, declaring the rights of the Crown in respect to gold found in its natural state of deposit within the districts of Fraser's River and of Thompson's River, commonly known as the Qu&atlan, Couteau, and Shuswap countries, his Excellency the Governor, has been pleased to establish the following provisional regulations, under which licences may be obtained to dig, search for, and remove the 1st. From and after the first day of February next, no person will be permitted to dig, search for, or remove gold, on or from any lands, public or private, without first taking out and paying for a licence in the form annexed. 2nd. For the present, and pending further proof of the extent and productiveness of the gold deposits, the licence fee has been fixed at 10s. per month to be paid in advance; but it is to be understood that the rate is subject to future adjustment as circumstances may render expedient. 3rd. The licences can be obtained at Victoria, Vancouver's Island, until a Commissioner is appointed by his Excellency the Governor to carry those regulations into effect, and who will be authorised to receive the fee payable thereon. 4th. Rules adjusting the extent and position of land to be covered by each licence, and for the prevention of confusion, and the interference of one licence with another, will be regulated by the said Commissioner. (Signed) James Douglas, Governor. By isExc ind, PROCLAMATION.* (7th September, 1859.) Douglas, Companion of the Most Honorable Order-.a id Commander-in-Chief of British Columbia and cies, Yice-Admiral of the same, &c, &c. the force of law in Her Majesty's Colony of Britisl He Maj and by virtue of an Act of Parliament made and passsd J •liament held in the 21st and 22nd years of the reign of Victoria, intituled an Act to provide for the " Government ] Note.—In his despatch of Septe the Colonies, Governor Douglas ss nexed rules and regulations embrace vides very fully for contingent qt special care. As a class they are free from charge of £1 for the free miner's certificate. 1860, Part iii., p. 51. tber 13, 1859, to the Secreta: s: " The ' Gold Fields Act,' the whole subject of gold m: PROCLAMATH inder the Great Seal of the United Gold Field* imes Douglas, have been appointed Act,: 1859. authorised by Proclamation under " Gold Commissioner " shall include jj ces of the Peace, acting as Gold Commi c the authority of this Proclamation, the jurisdiction of a Gold Commissio istant Gold Coi >ners either under v any other person • for the locality de any mode or method of working whatso- , iny rock may be disturbed, removed, washed, • otherwise dealt with for the purpose of e may have been previously disturbed or not. " Claim" shall mean in speaking of individual persoi nine as by law may belong or be alleged to belong to the i ind in speaking of any partnership so much of any mine a; r be alleged to belong to the persons of whom the partnet hall not extend to a lease of auriferous land as mentioned "Fr i Min ' shall n ise XI. named in and lawfully possessed o Free Miner." igistered hall mean a free miner registered as entitled ie, of auriferous earth, ditch, or water privilege. j>ree5Min number shall include the plural, and the mas- Excellency the Governor, by any document Goid Commis. 1 of the Colony, from time to time to appoint gioners to be >per to be Chief Gold Commissioner or Gold appointed by Commissioners in British Columbia, either for the Governor icular district or districts therein, and from under thePub- x and vary the limits of such districts, and ll0 Seal, ke any such appointments and make new iits and sub-divide any such districts into 540 MARTIN'S MINING CASES. [vol. Gold Fields HI. It shall be the duty of every Gold Commissioner upon payment of $1, Act, 1859. to deliver to any person applying for the same a certificate, to be called a free miner's certificate, which may be in the following form. Free Miner's Certificate. BRITISH COLUMBIA. Free - Miner's - Certificate. Date. Not Transferable. No. Valid for One Vear. This is to certify that A. B., of , has paid me this day the sum of One Pound Sterling, and is entitled to all the rights and privileges of a free miner for one year from the date hereof. (Countersigned) A. B. (Signature of free miner) (Signed) G. B. Chief Gold Commissione Pes 3 the c ' be. lo continue in yy. r^e free miner's certificate shall continue in force for twelve calendar J torce for one montns from the date thereof, including the day of issuing the same, and no ' y a ' fonger, and shall not be transferable or capable of conferring any rights upon any other person than the person therein named, and only one person shall be named as a free miner in each certificate. Must be coun- Such certificate must be countersigned by the free miner therein named before I tersigned by being produced by him for any purpose. And where such certificate shall be j theFreeMiner issued to the free miner therein named in person, the Gold Commissioner or j the person issuing the same shall cause the same to be countersigned by the ] applicant before himself signing or delivering the same. Right to enter ^- Everv ^ree miner shall, during the continuance of his certificate, have I and mine. the right to enter without let or hinderance upon any of the waste lands of the I Crown, not for the time being lawfully occupied by any other person, and to I mine in the land so entered upon. Registration VL AU Persons wco sna11 at the date of this Proclamation coming into ] of claim an- force or previous to the 27th of October, 1859, hold any claim, ditch, or water I nually. privilege, must on or before the 1st of November, now next, and all persons 1 who shall at any time after the 26th of October, now next, hold any claim, I lease, ditch, or water privilege, must within such space of time after first i taking possession thereof, as shall be fixed by the rules, regulations, or by-laws J for the time being in force in the place or district in which such claim, lease, 1 ditch, or water privilege shall be situated, register the same at the office of the I Gold Commissioner who shall record in a tabular form in a book or books to I be kept by him, the name of the holder, the dates of his certificate, of his taking I possession, and of his. recording the claim, the name of the mine and the dis- I tinguishing number of the claim; and all such further particulars as shall from 1 time to time be required by any valid by-law for the place or district. And j such registration shall be valid for the space of one year and no longer. Four shillings shall be taken by the Gold Commissioner for the use of Her I Majesty, Her Heirs and Successors, upon every registration or re-registration of I any claim. And no person, not being a free miner, shall be entitled to record a claim or any interest therein. Free Miners VII. Every free miner shall have during the continuance of his certificate I «;»"* !itC°g„ tke exclusive&ight to the soil and gold in any claim for the time being duly I registered and worked by him according to the regulations and by-laws hereby I ssued, and for the time being in force, in relation to the I ing any right '-s^ ™ in claims %to authorized 1 J APPENDIX A.—MINING PROCLAMATIONS. ig any right or interest in, or to any Gold Fields e shall be, or in case of any disputed Act, 1859. he time of the dispute arising, a free ;:.VIII. In case of anj • rock, ditches and wati ; registration subject dispute, the title to claims, leases of au r privileges, will be recognized according to the p nly to any question which may be raised as ; act of registration. • at the time of issuing a date, number, and nan certificate was issued to jerson, and the applicant 1st of July, " ority of regis- i of the free miner Records to be uch miner in person kept of the : name, and shall on F.M.C.issued. und 1st of October in every year ■cause to be made out a revised list of all the free miners holding certificates I issued by himself and still in force, and also of all free miners registered as holding claims in his district, and shall cause to be posted up, in a conspicuous I place on each mine in his district, a list of the free miners for the time being I The Ohief Gold Commissioner shall in like manner, on the 1st of January I and'1st of July in every year, cause a revised list to be published of all the free miners in British Columbia. All such records and lists shall be open to the (inspection of the public, gratis, under such reasonable regulations as to hours or 'otherwise, as the Gold Commissioner in each place or district may from t to time ordain. X. In case any free miner's certificate shall be accidentally destroyed or 1( the same may, upon evidence of such loss or destruction, be replaced by a n [certificate to bear the same date and to be issued and signed by the Gold Com-' ■ for the same district as such lost or destroyed certificate. Every such certificate shall be marked " substitute for original of same date, this day ." And until some material irregularity or impropriety be shewn aspect thereof, every original or substituted free miner's certificate shall be snce of all the matters stated therein or clearly implied thereby. XI. Leases of any portions of the was ir mining purposes, for such term of v mt, and the mode of working, and as to ith, and otherwise in each case, as sha 3 lands of the Crown may be granted Leases 0f au_ us, and upon such conditions as to rjferous lands, any water privileges connected there- be deemed expedient by His Excel- I XII. In respect of any place or district wherein there shall for the t being be no Mining Board as hereinafter described, or any separate mine within g^ationTto be feuch place or district, it shall be lawful for His Excellency the Governor, by issued under Lvriting under his hand and the public seal of the Colony, from time to time to the Public Seal makes rules and regulations in the nature of by-laws, concerning all n ating to claims and ditch and water privileges, and leases of the auriferou ands in the Colony in .larger quantities than the claims herein mentioned' o referred to, and for the registration thereof so far as such matters are not hei Defined and set forth. And also, from time to time in like manner to annul, repeal, or alter an existing rule, regulation or by-law; and to make new rules, regulatii by-laws in reference to all or any of such matters. And all such rules, regula- ions, and by-laws shall continue in force until repealed by the Governor, by pome writing under the public seal of the Colony, or by some valid by-law pstablished by the Gold Commissioner and Mining Board of some district under he provisions hereinafter contained. [ XIII. It shall be lawful for His Excellency the Governor by a n. jinder the public seal of the Colony to make provisions for the custi parriage of gold at and from and between such points as may be thought lind to establish such rates of charge for the carriage and custody 1 MINING CASES. r to change and alter a Custody to be XIV. The custody and care of all deposits, whether footnwaanost port s0 undertaken Dv or on behalf of the government, i office fetters responsibility as that under which letters are received and carried by the post office. And in case of any loss or dispute concerning any such deposit the prop- j erty in the same may in any proceedings, or suits, or actions at law, be stated j as being in the colonial treasury for the time being. And all clerks and persons 1 employed by or on behalf of the government, or acting in the capacity of being so ] employed in reference to any such deposit, shall in case of neglect or misfeas- I ance, be liable in the same manner as if they had been clerks or acting as clerks I in the post office, mutatis mutandis. Jurisdiction of XV. And as to the powei Gold Cominis- Commissioner, I do hereby ei Every Gold Commissioner shall have and exercise during his term of office, 1 all the authority and jurisdiction of a Justice of the Peace for British Columbia, I in addition to his proper authority as Gold Commissioner. Any claim, mine, I ditch, or water privilege situate as to part thereof within the express limits I of same Gold Commissioner's jurisdiction, and as to other part thereof not within I the express limits of any Gold Commissioner's jurisdiction, shall be deemed to I be wholly within the jurisdiction within which any part of such claim, mine. 1 ditch, or water privilege, shall be situated. In the case of any claim, mine, ditch. 1 or water privilege, situate at more than a distance of ten miles from the office I of any Gold Commissioner, any Justice of the Peace for British Columbia, I although not otherwise or specially empowered to act as a Gold Commissioner! is hereby authorized, or as the case may be, required to do any act herein author-1 ized or required to be done by a Gold Commissioner. And wherever the ditch or other property i may arise, shall be situated partly in one distrid it shall be doubtful within whose jurisdiction the same or any part thereof I shall be totally situated, any Gold Commissioner in the neighbourhood before 1 whom the complaint or matter shall be first brought shall have jurisdiction.! In every case in which a Justice of the Peace not being also a Gold Commissioner! shall act as a Gold Commissioner under this clause, he shall with all convenient! speed communicate the particulars of his acting to the Chief Gold Commissioner.! and if there shall be no Chief Gold Commissioner, then to the nearest Gold! Commissioner. Allminingdis- XVL An disputes relating to the title to any mine or claim, or to any part! putes may be °' tne proceeds thereof, or relating to any ditch or water privilege, or to anyl decided by the contract for labour to be done in respect of a ditch or water privilege, mine, or! Gold Commis- claim, or relating to the mode of carrying on the same, or any of them, and.! sioner without all disputes concerning partnerships in any mine or claim may be investigated! limit in value. jn tne firgt instance, before the Gold Commissioner, having jurisdiction as afore! said, without any limit to the value of the property or- subject matter involvec! in such dispute. Except incases XVII. Provided always that n of partnership, civil disputes between partners, u his satisfaction that the joint stocl Appeal to the XVIII. Any person convicted i SupremeCimrt the same, or any by-law, rule, or in B. C. in to any term of imprisonment beyoi criminal and over and above the costs of summ] summary cases to be holden for the district or ^ >vided tha )ld Oomm i the first place! hip is under the ditioned pers< ally I APPENDIX A.—MINING PROCLAMATIONS. XXIII. The Gold Commissioner shall have the power to cause such parties and witnesses as he shall think proper to attend on any proceedings before him, and to compel the production of documents on any such proceedings. XXIV. The Judge of the Supreme Court of Civil Justice shall, with the i advice and consent of the Chief Gold Commissioner, or of any two Gold Commissioners, have the power, from time to time, to make, repeal, and alter such rules and regulations for the conduct of the business before the Gold Commissions for the times of proceeding, and also such lists of costs of proceed] I as he shall think fit. Provided always that all such rules, regul I of costs shall, within one calendar month from the making thereof, be laid befor< I His Excellency the Governor. And it shall not be necessary for the Gold Commissioner, in any proceeding! before him to follow any set forms, provided th l done and to be done be therein expressed; nor si I Gold Commissioner be liable to be set aside for matters of substance have not been omitted. the further judgment of the Court at such assizes, and to pay such costs' as shall Gold Fields be by such last-mentioned Court awarded. And the convicting Gold Commis- Act, 1859. doner may bind over any witness or informant, under sufficient recog- nizances, to attend and give evidence at the hearing of such appeal, and the costs of such witnesses shall be allowed and paid by the colonis' tke first instance, and, if such appeal be dismissed, shall be colonial treasurer by the appellant. XIX.-On any such appeal, no objection shall be allowed to the conviction No merely on any matter of form or insufficiency of statement, provided it shall appear to formal objec- the said Supreme Court that the defendant has been sufficiently informed of the tions allowed., charge to be made against him, and that the conviction was proper on the merits of the case. XX. If either party, in any civil cause where the subject i .is more than £20, shall be dissatisfied with the determination, he j from the same to the Supreme Court of Civil Justice in British Columbia, provided that the appealing party shall, within four days of the determination appealed from, give notice of such appeal to the other party, and also gi' rity, to be approved by the Gold Commissioner, for the costs.of the appeal, and also for that amount payable by the appealing party under the judgment appealed against. And the said Court of Appeal may either order a new trial j on such terms as it shall think fit, or order judgment to be entered for either | party, or try the cause de novo, and may make such order as to the costs of the I appeal as such Court shall think proper, and such appeal may be in the form I of a case settled and signed by the parties or their attorneys, and if they agree, the said Gold Commissioner may settle and sign the same upon being I applied to by the parties or their attorneys. XXI. In any < brought in the first Columbia, wherein £50, it shall be la\ I tried before any G terms as the I ise of any cause relating to a mine, els »„ instance before the Supreme Court of Civ** „ ^ ,. ,,, in the sum of damages sought to be recovered shall be less than ^r^5>, „„^„ f i f th P v+ ft - - a t l* t tii t h Gold Uommts- Gold Commissioner who irt shall think fit. or divisio: whole ac MARTIN'S MINING CASES. [vol. ■artnership stock, and to direct the partnership account to be self and declare what amount, if any, is due on the one partner to another and generally to make such uch directions therein as he shall think fit, and to take , as he may deem expedient in the way of taking security «■£ er, or otherwise for securing the partnership property in the •Summary power to abate enoroach- XXVI. It shall be lawful for any Gold Commissioner, upon complaint made any wrongful encroachment on a claim, mine, ditch, or water privilege, and deposit made of £2 in his hands by the complainant, to proceed forthwith to the place at which such alleged encroachment has been made, and there and then to demand the like sum of £2, from the party complained of, and thereafter, on view - ,of the premises, and on such evidence as to such Gold Commissioner shall seem sufficient to hear and determine the dispute in a summary way, and whether all parties in difference shall appear or not, and in a summary way to cause such encroachment to be abated, and to restore to the person who shall appear to be entitled thereto, full possession of the claim, ditch, or other matter encroached upon, or alleged so to be, and also all gold or other property (if any) which may have been unlawfully taken or removed. And also to award such damages as the nature of the case shall seem to require. And if each party shall have deposited the said sum of £2, he shall restore the said sum of £2 to the party whom he shall judge to have been in the right, and retain the other £2 as for costs of Court, and if either party make default in appearance the Gold Commissioner may make such order as to costs as shall seem to him proper. Provided always, that it shall be lawful for the Gold Commissioner, if in his discretion the matter shall not be made clear for a final determination, to take such steps as he shall think necessary for the preservation of the matter:^ dispute, and to adjourn the final decision of the case until such time as he shall think proper. XXVII. It shall be lawful for the Gold Commissioner to mark out f or *fe j i- use of any registered free miner in his district, a space of land not exceeding j five acres to be occupied as garden ground or for a residence. The right con- | is ferred by such occupation shall only endure so long as the occupier shall be a j registered free miner of the district, and for such further period as shall be I requisite for the enjoyment of any crop standing thereon at the period when he ] shall cease to be a registered free miner. And for attending and marking out such land, whatever be the size, the Gold I Commissioner shall be entitled to demand the sum of ten shillings for the use of I Her Majesty, Her Heirs and Successors. Plots for ti i- XXVIII. It shall be lawful for the Gold Commissioner to m e use of any person intending to carry on temporarily any trad '• mine, a plot, or plots of waste Crown land convenient for that pi ■for garden purposes, not being larger than one acre. There s conferred enjoyment for so long as such trader shall pay all licer spect thereof, and also the right to any crop standing thereon at t of licence duties. Provided always, that the land on or near any mine so marl of the purposes mentioned in this or the last section, shall alwaj by the Crown and applicable to general mining purposes on six thereof given by the Gold Commissioner to any occupier thereof. As to Mining Boards I do enact, proclaim, and declare as fc t fori XXIX. Upon i 1 by less than c J under his hand and seal to direct the Gold Commissioner acting district to constitute therein a local board to be called the M te manner and with the powers hereinafter expressed. XXX. The Mining Board shall co i twelve of the general body of the voter: ing scale, viz.:—If there shall be not more then the Mining Board shall consist of six number of fifty voters beyond the first one iall comprise one additional member, but jvelve members. The members shall be elected by the votes of the registered free miners of Vol the district who shall have been on the register during three months at least, previous to the election, each voter to have as many votes and no more, as there ■e members of the Board to be elected or vacancies to be filled up which he may distribute among the candidates as he may think fit. XXXI. The votes of the electors shall be given I I person by the voter. The Gold Commissioner of the di 1 examiner of votes, and the returning officer. And the I place on such day as His Excellency the Governor may a] j The Mining Board shall meet together at such intervals as shall be appointed I by the Gold Commissioner, and it shall be competent for three or more members I meeting together to proceed to the dispatch of business. I XXXlI. If any member shall cease to be a registered free miner in the dis- I trict or shall be convicted of any misdemeanor or felony or of any assault, being I armed with a lethal weapon, or of any wilful and malicious contravention of I this Act, or of any by-law in force in the district, he shall ipso facto vacate his I seat in each case, and not be re-eligi"' only by reason of ceasing to be a registered free miner shall be again eligible at any time upon his again becoming entitled to vote. Thre ir agre< ided further that eve td approved, and not i g contrary to natural a as a good local law, members of the Board, or so many members as together with i aforesaid shall make up three members, shall retire annually, by lot, tent, or seniority. Retiring members shall be immediately re-eligible. | XXXIII. All vacancies in the Board shall be supplied and the full number Election! of members for the time being, due to the district according to the tariff afore- take p I said, shall be made up at a general election to take place on such day in the Janua month of January in each year, as His Excellency the Governor shall froi ' to time by notice under the public seal of the Colony direct. XXXIV. The Mining Board shall, subject [power by resolution, to make by-laws, and also I repeal any existing by-laws for regulating the I mode in which claims may be registered, wori [other matters relating to mining matters in their distr new by-law, repeal, or alteration shall be of any forci have been approved of by His Excellency the G< such by-law, repeal, a copy thereof extracted from the by-laws and 5ld Commissioner of the district shall be good ne have been lawfully made and were in full extract in that behalf specified. -. MARTIN'S MINING CASES. [VOL., Mode of conducting proceeding Ids XXXV. Any resolution of such Mining Board and Gold Commissioner may 3. be passed by a bare majority of the members of such Board if the Gold Commissioner shall consent thereto, or by two-thirds of the members of such Board if the Gold Commissioner shall not consent thereto. The Gold Commissioner shall, within seven days of the passing of any resolution concerning any by-law or general regulation which he shall on any grounds deem expedient to lay before His Excellency the Governor, make and send to His Excellency a fair copy thereof signed by such Gold Commissioner with his opinion thereon. XXXVI. The votes of all resolutions of the Mining Board shall be given the by the members personally, and by word of mouth. All questions of order and of the time and manner of conducting the business, j at such Mining Board, and of the times and places of meeting after the fifijt- meeting thereof, and of the propriety of elections and qualifications and disqualifications of members subject hereto, may be decided by the Gold Commissioner, either from time to time as any question shall arise, or by any fixed rules, and i orders as may be thought advisable, and which such Gold Commissioner is hereoy authorized to make by writing under his hand and seal. Powe XXXVII. It shall be lawful for His Excellency the Governo governor to under the public seal of the Colony, at any time to declare the Mining H mfS?r,Irew,y^ m aQy district dissolved, as from a day to be named in such order, and i: mining ooara. day be th.erein nanred in that behalf, then as from the date of such order, from and immediately after such dissolution, the power to make and repeal laws and regulations shall immediately be vested in the Governor in the £ manner as if such Mining Board had never been constituted. Interim acts Provided always, that notwithstanding any such dissolution, all by-laws to continue working rules and regulations (if any), and all other acts (if any), made, d notwithstand- and established in the meantime, under the authority of this Proclamation, s ing disso- be valid until the same be altered or repealed by the Governor by some o lution. under the public seal of the Colony. Irregularities XXXVIII. The acts of any Mini: not to affect sanctioned as aforesaid, shall be v such acts. irregularity in the mode of election, c the passing of any of such Acts. ; Board, previous to such dissolutioi id notwithstanding any informant of meeting of such Mining Board, c XXXIX. Any person who shall wilfully and maliciously damage or destroy any free miner's certificate, or fraudulently fill up, or post, date, or alter, any name or date or particular in a free miner's certificate, or in any document purporting to be a free miner's certificate, or who shall falsely pretend that he is the person named in any such certificate or document, or who shall wilfully and maliciously damage, destroy or falsify any of the records and registers hereby r directed to be kept, shall be guilty of felony, and being duly convicted thereof | shall be liable, at the discretion of the Court, to penal servitude for not than ten years. XL. Any person wilfully or unlawfully acting in contravention of thift :s or of any by-law, rule, or regulation to be established by virtue of this Ac refusing to obey any lawful order of the Gold Commissioner, shall, on being | summarily convicted, before any Justice of the Peace or Gold Commissions* liable to a fine not exceeding £50, or to an imprisonment not exceeding three | months. y proceedings be referr s the " Gold XLII. This Proclamation shall ( Island on the 1st of January, 1860, i the 1st of September, 1859. • I thereto "Gold C the Gold F ost floodet shall mean any mine over which a river never extends. include a flume or ra 1 weight natural water course or lake where water is first taken words in the singular number shall include the plural, and th< 'shall include the feminine. . II. All claims are [marked by four pegs ai j foot above thi peg shall be' concealed the Gold Commiss III. The size of a claim, when not otherwise established by a by-law, shall e, for bar diggings, a strip of land, twenty-five feet wide at the mark to which ie river rises when flooded, and thence extending down direct into the river ndefinitely. For dry diggings, a space of twenty-five feet wide by thirty feet. 9"or ravine diggings a space of twenty-five feet along the bank of the ravine and extending up to the top of each bank. In c when not otherwise established by a by-law, shall be one hundred feet in length, neasured along the vein or seam, with pow seam and its spurs, dips, and angles. »etween the two extremities of such length ranee upon or beneath the surface of the ei M*ral direction from the Measured. All leglecting inequalities. "s boundary pegs. MARTIN'S MINING CASES. [v is IV. If any free miner, or party of free miners, shall discover a new mine, and such discovery shall be established to the satisfaction of the Gold Commissioner, the first discoverer or party of discoverers, if not more than two in number, shall be entitled to a claim double the established size of claims in the nearest mines of the same description (i.e., dry, bar, or quartz diggings). If such party consist of three men, they shall collectively be entitled to five claims of the established size on such nearest mine, and if of four or more men, such party shall be entitled to a claim and a half per man. A new stratum of auriferous earth, or rock, situate in a locality where the claims are abandoned, shall for this purpose be deemed a new mine, although the same locality shall previously have been worked at a different level. And dry digging discovered in the neighbourhood of bar diggings shall be deemed a new mine, and vice versa. V. The registration of claims shall be in such manner and form as the Gold Commissioner shall in any locality direct, and shall include, besides the matters mentioned in the Gold Fields Act, 1859, all such other matters as the Gold Commissioner shall think fit to include. VI. No transfer of any claim or of any interest therein shall be enforceable, unless the same, or some memorandum thereof, shall be in writing, signed by the party sought to be charged, or by his lawfully authorized agent, and registered with the Gold Commissioner. VII. Any person desiring any exclusive ditch or water privilege, shall make application to the Gold Commissioner having jurisdiction for the place where the same shall be situated, stating for the guidance of the Commissioner in estimating the character of the application, the name of every applicant, the proposed ditch head, and quantity of water, the proposed locality of distribution, and if such water shall be for sale, the price at which it is proposed to sell the same, the general nature of the work to be done, and the time within which such work shall be complete; and the Gold Commissioner shall enter a note of all such matters as of record. VIII. Unless otherwise specially arranged, the rent to be paid for any water privilege shall be in each month one average day's receipt, from the sale thereof, to be estimated by the Gold Commissioner with the assistance, if he shall so IX. If any person shall refuse or neglect his application, or within such further tim ner may, in his discretion, think fit to grai the whole of the water applied for, he shall take within the time mentioned (if any), as the Gold Commis- for the completion of the ditch, t the end of the time mentioned 1 his application, be deemed entitled only to the quantity actually taken by him, and the Gold Commissioner shall make such entry in the register as shall be proper to mark such alteration in the quantity, and may grant the surplus to any other, person according to the rules herein laid down for the granting of water privileges. X. Every owner of a ditch or -water privilege shall be-bound to take all reasonable means for utilizing the water granted to and taken by him. And if any such owner shall wilfully take and waste any unreasonable quantity of water, he shall be charged with the full rent as if he had sold the same at a full • price. And it shall be lawful for the Gold Commissioner, if such offence be persisted in, to declare all rights to the water forfeited. XI. It shall be lawful for the owner of any ditch or water privilege to sell and distribute the water conveyed by him to such persons, and on such terms as they may deem advisable, within the limits mentioned in their application. Provided always that the owner of any ditch or water privilege shall be bound to supply water to all applicants, being free miners, in a fair proportion, and shall not demand more from one person than from another, except when the difficulty of supply is enhanced. Provided, further, that no person, not being a free miner, shall be entitled to demand to be supplied with water at all. by the Gold ( go prospecting days, and sue re to be omil XIII. Wh rock within ( of such claim before enterin XIV. If tl >et And if such wrong-doer shall have commenced work immedi atelv at the jundary peg of the last previous claim, the Gold Commissioner ma undary six feet further on than the open work of such wrong-doer; and all such pen work, and also the next three feet of such space of six feet sh id form part of the last previous claim, and the residue of such et shall be left as a boundary wall. XVI. Every such boundary wall shall be deemed the joint pro perty of the svners of the two claims between which it stands, and mav not b i worked or jurcd. save by the consent of both such owners. XVII. In staking out plots of land for free miners and traders for garden- g and residential purpo&es, under the powers of the said Gold Field s Act, 1859, ^deSig person de siring such Lny perso a desiring t my purpo se, or to mi MARTIN'S MINING CASES. co Leases in Larger Proportions than Claims. tions for leases are to be sent in triplicate to the Gold Corn- jurisdiction for the locality where the land desired to be taken will not be granted in general for a longer term than ten years, space than ten acres of alluvial soil (dry diggings), or half a; unworked quartz reef, or a mile and a half in length of quartz, een attempted and abandoned by individual claim workers, with a half attempted general be granted of any land, alluvium, , be immediately available for being worked j tal claims. Nor will such a lease in any Gold Commissioner, contained may be er cover to the Goli together with his command of His Excellency William A. G. Young and in the twenty-third s James Douglas. (L.S. -MINING STATUTES. •MINING STATUTES. ) Gold Mining. (2nd April, 1867. :e the laws relatin 1. From and after the passing of this Ordinance, "The Gold Mining H ■Ordinance, 1865," and the proclamations, rules, and regulations' and ordinances v: repealed thereby, are hereby repealed; provided, however, that such repeal shall not in any manner affect any rights acquired, or any liabilities or penalties incurred thereunder, or any remedies or punishments prescribed thereby, hut such remedies and punishments may still for the purposes of such enforcement, but not further or otherwise, be available and capable of imposition. 2. In the construction of this Ordinance the following interpretations respectively, sistent or repugnant thereto in the context: The Her hei words "Her Majes ty"o r "the Cro wn ' shal l Her Majesty Her Maje the Crowi sty, The ing the Goven 'Gove of thL shall mean and Colony; ncl ide an y per minister- Governor "Gold Con tant Gold Com •either under sj m author shall d oth include Ch ers lawfully the author lef Gold )f this Gold Ordi Comm |gg Gold Con The word " Mine " shall mean any locality in which any vein, stratum, ]yr;ne_ or natural bed of auriferous earth or rock shall be mined; and the verb I to mine" shall include any mode or method whatsoever of working the ■same for the purpose of obtaining gold therefrom; The word " Claim " shall mean the personal right of property or interest Claim, in any mine; and in the term " Mining Property " shall be included every •claim, ditch, or water privilege used for mining purposes, and all other mat- Mining ''fSfe'and things thereto belonging or used in the working thereof; Pr " Bar Diggings " shall mean every mine over which a river extends g£ •when in its flooded state; y Diggings' mean any mine over which a river never extends; Dry diggings, shall be known as " Bench Diggings," and shall Bench e of claims therein be excepted out of Diggings. The mines on ben for the purpose of as( the class of "Dry Diggings;" " Streams and Ravines" shall include water-courses, whether usually •Containing water or not, and all rivers, creeks and gulches; " Hill Claims " shall include all claims located on the surface of any hill Ditch " shall include a flume or race, or other artificial means for con Ditch •duct ing wa ter by its own w Hght, to be used for mining purposes; Ditch Head" shall me an the point i nan xtural water-course or lak Ditch Head. r is first taken nto a ditch; Gold Minin Ordin MARTIN'S MINING CASES. eMin " shall n lamed in, and lawfully possessed of/a Ord., 1867." valid existing free miner's certificate, and no other. And words i —- singular number shall include the plural, and the masculine gender shall Free Miner. include the feminine gender ; Record, etc. The words " Record," " Register," and " Registration," as hereinafter used shall be synonymous. 3. This Ordin e shall be divided i relating to the ap > twelvi of Gold Commis: their jurisdictic The second part to free miners and their privileges; The third part to the registration of claims and free l The fourth part to the nature and size of claims: The fifth.part to bed-rock flumes; The sixth part to the drainage of mines; The seventh part to mining partnerships and limited liabil The eighth part to administration; The ninth part to leases; The tenth part to ditches; The eleventh part to mining boards and their constitutic The twelfth part to the penal and saving clauses: PART 1. Appo\ I of Gold Comm i and thei isdictio 4. The Governor may from time to time appoint such persons as he shall ,e think proper to be Chief Gold Commissioner and Gold Commissioners either | for the whole Colony, or for any particular districts therein, and from t me r. to time in like manner fix and vary the limits of and sub-divide such distri ts, and make and revoke all such appointments. . Within every such district or districts thei 1 Mining Court," in which the Gold C< is Judge thereof. 6. Such " Mining Court" shall have original jurisdiction as a Court of . law and equity, to hear and determine all mining disputes arising within its I district, and shall be a Court of Record with a specific seal; and in determining | suits or actions brought therein, the Gold Commissioner may render such judgment, or make such order or decree as he shall deem just, and'for the purposes thereof and for enforcing the same he shall have and exercise, sav hereinafter excepted, the same powers and authority, legal and equitable, as I are now exercised in the Supreme Court of Civil Justice of British Colum ia, I by any Judge thereof. Provided, however, that the Gold Commissioner shal if I desired by both parties to a cause, in cases of liquidated damages, or if des red J by either party to a cause in case of unliquidated damages, or if desired b either party to a cause in case of unliquidated damages, summon a jury of f om I three to five free miners to assess the amount of such damages. 7. N rescribed forms shall be necessary, provided that the substance of I complained of be properly expressed in writing and embodied > be issued from the Court, and served on the opposite party or I be directed, and such summons may by leave of the Gold Commissioner I APPENDIX A.—MINI1 8. Where disputes i situated in adjoining c of such districts before ding property, portions whereof are , the Gold Commissioners of either is first brought shall determine it. 9. The Gold Commissioner may, in cases of disputed boundaries or measurements, employ a surveyor to mark and define the same, and cause the reasonable expense thereof to be paid by either or both of the parties interested therein. 1 under such circumstances as he may think p 11. He shall have power to order any mining works to be so carried on as I insure the safety of the public, or protect the interests of claim holders or «■ •rock drains; and any abandoned works may by his order be either filled S or guarded to his satisfaction, at the cost of the parties who may have con- icted the same, or in their absence then upon such terms as he shall deem 553 Gold Mining Ord., 1867. Jurisdiction beyond dis- Mining 12. It shall be lawful for him, upon being so requested, to mark out for Plots for business purposes or gardens, on or near any mining ground, a plot of ground traders and of such size as he shall deem advisable; subject, however, to all the existing gardens, rights of free miners then lawfully holding such mining ground, and their assignees. And any building erected, or improvements made thereon for any such purposes, shall in every such case be erected and made at the risk of the persons erecting and making the same; and they shall not be entitled to any compensation for damage done thereto by such free miners so entitled in working their claims bona fide. i 13. It shall be lawful for him, upon being so requested, to mark out for Compensat business purposes or gardens, on or near any mining ground not previously —howallot pre-empted, a plot of land of such size as he shall deem advisable, to be held subject to all the rights of free miners, to enter upon and use such lands for mining purposes, upon reasonable notice to quit being given to the occupier; such notice to be subject to the approval of the Gold Commissioner, and, ; further, upon the payment of due compensation for any crops thereon, and for | the buildings and improvements erected on such plots; such compensation to be assessed by the Gold Commissioner previous to entry, with or without a jury of not less than three. } A monthly rent of five dollars shall in every such case be payable by the Rentforsai , grantees of such plot, or their assignees, to the Gold Commissioner. : 14. Any Judge of the Supreme Court of Civil Justice of British Columbia Forms of p: i may, with the advice and consent of the Gold Commissioner of any particular ceeding, coi i district, from time to time make, repeal, and alter any rules and regulations etc. | for the conduct of the business before such Gold Commissioner, and for the | costs incident thereto. j 15. Where any mining cause, wherein the sum of damages sought to be Causes und recovered shall be less than two hundred and fifty dollars, is brought in the S250. first instance before the Supreme Court of Civil Justice of British Columbia, it shall be lawful for the Court, after issue joined, to direct the cause to be tried : before any particular Gold Commissioner, upon such terms as the Court shall ' think fit. 16. All jurors and witnesses summoned under and by virtue of the powers Jurors' and ; contained in this Ordinance, shall be entitled for their attendance to receive witnesses'fi : such compensation as the Court may direct. MARTIN'S MINING CASES. . . [vfim ? 17. When, in civil cases, the subject matter in any mining dispute, is in value more than two hundred and fifty dollars, an appeal shall, save as hereinafter excepted, lie from the decision, ruling, judgment, order, \or decree of the Gold Commissioner, to the Supreme Court of Civil Justice of British Columbia ; provided, however, that the decision of the Gold Commissioner, or of a jury summoned under the provisions of this Ordinance, upon all matters of fact, shall be final and conclusive, and no appeal shall lie therefrom. No appeal shall be allowed in any cause, unless notiee thereof be given in writing to the opposite party, or his attorney, within four days after the decision complained of, and also security be given, to the approval of the Gold Commissioner, for the costs of the appeal, and the amount (if any), payable under the judgement ; and the said Court of Appeal may make such order as it shall think fit. Such appeal may be in the form of a case settled and signed by the parties, their counsel, or attornoys. PART II. Who may be Free Miners, and their privileges. 18. Every person laim. Miners, who roperty and liabili dults. over, but not under sixteen years shall be entitled to hold shall become free miners, shall, as regards their minn ies, contracted in connection therewith, be treated a 19. Every Gold C oned, shall deliver ailed a free miner's ommissioner. upon payment of the sums hereinafter mei to any person applying for the same a certificate, to 1 certificate, which may be in the following form :— BRITISH COLUMBIA. Free Miner's Certificate. Not Transferable. Date No. Valid for years. This is to certify . and is or year that A. B., of . has paid me this day the sum c entitled to all the rights and privileges of a free mine rom the date hereof. (Signed) G. B. Chief Gold Commissioner, or Gold Commissioner, (as the case may be.) c 20. Such free miner's certificate shall, at the request of the applican granted and continue in force for a period of one year, or three years, the date thereof, upon payment by such applicant, to the use of Her Maj of the sum of five dollars for one year, and fifteen dollars for three y •Such certificate shall not be transferable, and only one person shall be ns w therein. And every holder of a certificate shall'have three clear days i the expiration thereof, and no longer, to renew the same. 21. If any free miner's certificate shall be accidentally destroyed or lost same may, upon evidence thereof and upon payment b dollars and fifty cents, be replaced by a true copy ther Commissioner of the district wherein the original certifi< such new certificate shall be marked " Substituted Certifica some material irregularity be shewn in respect thereof stituted free miner's certificate shall be evidence of a the f pplicant of two ned by the Gold s issued. Every ificat ." And unless the matters therein J 22. Every free miner shall during the no longer, have the right to enter and mine upon Crown, not for the time being occupied by 23. In the event of such entry being -occupied for other than mining purposes, tion shall be made to the occupant or owi case of disputed o arising, a free mi 25. Every free miner locating a c the Gold Commissioner of the district three days after the location thereoi office. One additional day shall be a ten miles, or fraction thereof; Such for the purpose, in which shall be in •each locator, the number of his certific nd s quisite t upon payment of the sum of t year included in such record; a and during the time therein m same force and effect as if the entioTed.TuT'fot 27. It shall be lawful for the applying to record a claim, the r therein. roduction^-Ss°ce 28. In case of any dispute. the title to claims as to the validity of the record tiohs, and privileges contained ir itself, and, subject 29. No transfer of any claim unless the same or some memow transferrer, or by his legally a Commissioner. ndum thereof sha 30. For every record made, ter or thing whatever, relating have been provided, the Gold C two dollars and fifty cents, as indleawe of iabsen 31. The books of r inspection, anil "the'stir search made therein. MARTIN'S MINING CASES. [VOL. f 32. Every copy of, or extract froi Ordinance, and certified to be a true Gold Commissioner, or other person e y register, shall, in the absence of the o I cial proceeding as evidence of the mi " the sum of one dollar and twenty-fi " of a record so certified. l, any record or register kept under this~ copy or extract, under the hand .of the - itrusted to take and keep such record or •iginal register, be receivable in any judi- itters and things therein contained; and -e cents shall be charged for each copy : the s ¥reehIider 33- Every free miner sha11 be allowed t0 hold' ! number ofaDy ber °^ c^a'ms acquired by purchase, but only two claims by pre-emption in tne claims by pur- same locality, save as hereafter provided, viz.:—One quartz claim, and one chase, and two other claim; subject, however, to the laws as to record, occupation, and other- by pre-emp- wise, for the time being in force. And every free miner may sell, mortgage, tion, and more or dispose of the same. He shall also be entitled, in addition to the above, than two by to hold pre-emption claim on each (but not on the same) hill, creek, ravinlM? certauiPca?esm or bench- Miners' inter- 34. The interest which a free miner has in a claim shall be deemed anM est in mining taijen to be a chattel interest, equivalent to a lease, for such period as tn|"| chattel y a same may have been recorded, renewable at the end thereof, and subject to tmEV conditions as to forfeiture, working, representation, registration, and otherwise, for the time being in force with respect to such claim. Definition of a 35. Every free miner shall, during the continuance of his certificate, h*a|S Miner's right the exclusive right of entry upon his own claim, for the miner-like workiffi"Ir: in a claim. thereof, and the construction of a residence thereon, and shall be entitled exclusively to all the proceeds realized therefrom; provided, that his claim be duly registered, and faithfully and not colourably worked, but he shall have no surface rights therein. Right of entry Provided, also, that the Gold Commissioner may, upon application made to to adjacent him, allow adjacent claim-holders such right of entry thereon as may be abso- claim-holders. lutely necessary for the working of their claims, and upon such terms as may to him seem reasonable. One record 36. In addition to the above rights every registered free miner shall be en- otonly titled to the use of so much of the water naturally flowing through or past *u ouare of *"s claim, and not already lawfully appropriated as shall, in the opinion of the theTnecessary Gold Commissioner, be necessary for the due working thereof. 37. No claim located and recorded in any district, -within fourteen days before, or at any time after the claims therein shall have been laid over to the ie ensuing season, or other specific date, shall be deemed to be so laid over, unless so much work shall have been bona fide expended thereon by the holder thereof as shall, in the opinion of the Gold Commissioner, fairly entitle him to have such claim laid over. 38. A claim shall be deemed to be abandoned and open to the occupation of any free miner, when the same shall have remained unworked by the registflp holder thereof for the space of seventy-two hours, unless sickness or other reasonable cause be shewn; Sundays, and such holidays as the Gold Commissioner may think fit to proclaim, are to be omitted in reckoning the time of claim mult be 39. Every full sized claim, worked. and bona fide worked by the o1 taivT^ld* 40- Th<* G°W Commissions to work with miners who shall be required 1 less than full until gold in paying quantitiei Forfeiture 41. Every forfeiture of a c s Ordin shall have the power to regulate the number of d work in prospecting a claim, or set of claims, MARTIN'S, .MINE Gold Mining 52. For the more convenient wi Ord., 1867. the Gold Commissioner may, upon thereof to drive a tunnel through t seem to him expedient. lade to him, permit the mting on any creek, rm tions upon all parties a s. 53. Quartz claims shall be 150 feet in length, measured along the lode- or vein, with power to follow the lode or vein and its spurs, dips, and angles^: anywhere on or below the surface included between the two extremities of suchfe length of 150 feet, but not to advance upon or beneath the surface of the- earth more than 100 feet in a lateral direction from the main lode or vein, alongr which the claim is to be measured. or 54. In quartz claims and reefs, each successive claimant shall leave 3 feet unworked, to form a boundary wall between his claim and that of the last preig-" vious claimant, and shall stake off his claim accordingly, not commencing at.'.. the boundary peg -of the last previous claim, but 3 feet further on. If any% person shall stake out his claim contrary to this rule, the Gold CommissioneS| shall have power to remove the first boundary peg of such wrong-doer, 3 feeS* further on, notwithstanding that other claims may then be staked out beyond him; so that such wrong-doer shall then have but 147 feet. And if such wrongdoer shall have commenced work immediately at the boundary peg of the last previous claim, the Gold Commissioner may remove his boundary peg 6 feet further on than the open work of such wrong-doer; and all such open work, and: also the next 3 feet of such space of 6 feet, shall belong to and form part, of the last previous claim, and the residue of such space of 6 feet shall be left as a boundary wall. Every such boundary shall be deemed the joint property1 of the owners of the two claims between which it stands, and may not be worked' or injured, save by the consent of both owners. 55. If any free miner, or party of free miners, shall discover a new mints;, and such discovery shall be established to the satisfaction of the Gold Com,; missioner, the first discoverer, or party of discoverers if not more than two in number, shall be entitled to a claim double the established size of claims in the nearest mines of the same description (i.e., dry, bar, or quartz diggingsV If such party consist of three men, they shall collectively be entitled to five claims of the established size on such nearest mine; and if of four or more any other claims legally held by pre-emption or otherwise. A new stratum doned, shall, for this purpose, be deemed a new mine, although the same locality- covered in the vicinity of bar diggings shall be deemed a new mine, and vice versa. A discoverer's claim shall for all purposes be reckoned as one ordinary claim. 56. All claims shall be as nearly as possible in rectangular forms, and marked by four pegs, at least four inches square, standing not less than four feet above the surface, and firmly fixed in the ground. No boundary peg shall be concealed, moved, or injured without the previous permission of the Gold Commissioner. Any tree may be used as a stake, provided that it be cut down to at least the legal height, and the stump squared' 57. In definin 58. The Gold Commiss i the vicinity for deposi' lining ground whatsoever I.] APPENDIX A.—MINING STATUTES. PART V. Bed-Rock Fh 59. It shall be lawful for the Gold Commissioner, upon the application here- Gi | inafter mentioned, to grant to any Bed-Rock Flume company, for any term not m exceeding five years, exclusive rights of way through and ing ground in his district, for the purpose of constructing, laying, and maintaining Bed-Rock Flumes. 60.' Three or more free miners may constitute themselves into a Bed-Rock 1 [ Flume company, and every application by them for such grant shall'be in writ- constitute a I ing, and shall state the names of the applicants, and the nature and extent of company. I the privileges sought to be acquired. Ten clear days' notice thereof shall be Notice of 10 j given between the months of June and November, and between the winter days. \ months of November and June, one month's notice shall be given, by affixing same to some conspicuous part of the ground, and a copy thereof upon the walls of the Gold Commissioner's office of the district. Prior to such applica- M ■ ,- f an, the ground included therein shall be marked out by posts of the legal flume to be ze, placed at intervals of 150 feet along the proposed main line or course of staked off. le flume, with a notice affixed thereto stating the number of feet of ground claimed on either side of such main line. A ' ' : miner to protest before the Gold Commiss said, but not afterwards, against such applica a for a grant shall be accompanied by a depos I five dollars, which shall be refunded if the I application shall be entertained then such st I dollars shall be retained and paid into the I Her Majesty, whether the application be aft 61. Eve mil b (a) The rights of way through and entry river, creek, gulch, or ravine, and the e strip of ground one hundred feet wide and t bed thereof to each individual of the compan; (6) The rights of way through and « or ravine, worked by miners for any per such entry, and already wholly or right to stake out and work both the thereof, one hundred feet in width, ai each individual of the company; (e) And no person heretofore or hereafter locating doned ground within the limits of the said company's ground, afti notice hereinbefore mentioned has been given, shall be held to have have had any right or title as against such company to any ground so up by them; (d) The words " abandoned ground " shall be construed new and unworked ground, and ground not legally held and repr within the meaning of this Ordinance: (e)' Such rights of way through and and ravines, discovered within the two y application before mentioned, and upon free miners are legally holding and bon Gold Commissioner may seem advisable; (f) The rights of t at the time of the noti and not colourably wor of cutting a channel ar space for titled t vided, tha laintaining, and repai the c 3 of s ad- t of I the gold found in t ?e equivalent to the cos 1 claimholder by reason 1, the Bed-rock Flume compan king such cut to the bed-rock; shall be « ' (g) The use and enjoyment of so much of the unoccupied and unapplj^H priated water of the stream on which they may be located, and of other adjacent streams, as may be necessary for the use of their flumes, hydraulic power, and machinery to carry on their mining operations, and they shall' have their right of way for ditches and flumes to convey the necessary water to their works, they being liable to other parties for any damage whj"*"ff/ may arise from running such ditch or flumes through or over their ground. (h) The right to all the gold in their flumes. 63. The holders of claims through which the line of the proposed flmhejM such company runs, may, upon giving at least ten days' notice in writfl8!||| of such, their intention, to the Bed-rock Flume company, put in a Bed-rock Flume to connect with that of the Bed-rock Flume company, but they shW maintain the like grade, and build their flume as thoroughly, and of as staffiP/ materials, as are used by such company. 64. Claim-holders so constructing their own flumes at their own expense; through their respective claims, shall also keep their flume clear of obstruction^/ and they shall be entitled to all the gold found therein, but they shall be subject to the same rules and regulations with regard to cleaning up the flume, repairs, and other matters in which both parties are interested, as may. be adopted by such Bed-rock Flume company; and such claim-holders shall base, the right at any time before the abandonment of their claim or claims to become members of the Bed-rock Flume company, by uniting their claims and flume with the ground and flume of the company, and taking an interest proportionate to that which they shall cede to the company, or should they so desire, they may abandon their claims and flume, and such abandonment shall enure to the use and benefit of the Bed-rock Flume company. 65. Every Bed-rock Flume company shall, for each of the men constituting the same, construct and lay at least fifty feet of flume during the first year, and one hundred feet annually thereafter. 66. Any free miner or miners lawfully working any cl entitled to use rock Flume may be constructed, shall be entitled to tail theii flume for tail- and gr0unds sluices into such flume, but so as not to obstru of such flume by rocks, stones, boulders, or otherwise. 67. All Bed-rock Flume companies shall register their grant when obtained, and a registration fee of twenty-five dollars shall be charged therefor; and they shall also pay an annual rent of twelve dollars and fifty cents for each quarter of a mile of right of way legally held by such company. No re-registration of a grant shall be necessary. 68. Bed-rock Flumes and anj are hereby declared to be persona ferred, or otherwise dealt with s APPENDIX A.—MINING STATUTES. PART VI. Drainage of Mines. 69. It shall be lawful for the Gold Commissioner to gi miner, company of free miners, or joint stock companies, for any exceeding ten years, exclusive rights of way through and entry upon any grant rights oi mining ground in his district, for the purpose of constructing a drain or drains way. through for the drainage thereof. mmin'; 70.. E- 'ery application for such grant shall be in writing, and shall state the Application to the applicants, the nature and extent of the proposed drain or drains, De m writing, it of toll (if any), to be charged, and privileges sought to be acquired. indred and t 1 for such grant shall be accompanied by a deposit of Dep _ -five dollars, which shall be refunded in case the appli- $125 I cation shall be refused by the Government, and if the application shall be tained, then such sum of one hundred and twenty-five dollars shall be retained and paid into the Treasury of the Colony, to the use of Her Majesty, whether the application be afterwards abandoned or not. y) ther and free from all obstructions, and in default thereof that the Gold Combe made by any free miners, other than the grantees, at the cost and expense of the latter; such cost and expense to be levied by sale (subject however to the conditions of the grant) of all or any part of the di (c) ,Tflat tliey w'"' within a reasonable time construct proper tap drains from or into any adjacent claims, upon being required so to do by the owners thereof, and in default thereof suffer such parties to make them themselves, in which case such parties shall only be chargeable with one- half the usual rates of drainage, toll, or such other proportion of toll as the Gold Commissioner shall in that behalf prescribe; truction and maintenance of such drai (d) That they s and tap drab holders, and i: the e itiotice given as above shall only be necessary. i 76. The Gold Commissioner alone, or if desired by either party with the Da 'assistance of a jury of five free miners, which he is hereby authorized to sum- jmon for that purpose, may ascertain whether any and what compensation shall be paid for any damage which may be caused by any such '- s aforesaid. wenty-five dollars for each quart [rain companies collecting tolls, ti aence from the date of their grai larged therefor, save wl of collecting tolls, in id of five dollars be pa: 1 grant shall be necessa mile, and fraction the Gold Commiss Co-partner- Majority of partnership shall c specified in writinj it the expiration of 3 pertain solely thereto. 81. A majority of the co-partners, oi decide the manner of working the claims to be employed, and the extent and mat fray the expenses incurred by the compa foreman or local manager, who shall reprt in the name of the company, for assessm' power, with the consent of a majority < contracts; and the partnership or compan of the company's claims. Any co-partner, titled t t his erest i the ork and labour, : and performed to the satisfaction of the foreman, workman being discharged by the foreman, the Gold Coi cation to him may summon the foreman before him, and may make such order as he shall deem just. e of v rking all a s when 1 Penalty for 83. n def aul default. any not ce specif aed by th ild Commis- to sell such be sufficient r property, or such part conspicuously posted up of such mining or other h sale shall be by public for the smallest portion mch portion. The pur- therein all the right and liate possession thereof, the Gold Commi sioner j upon the purch ser. a APPENiMK; A.—MINING STATUTES, | 85. After a notice of abandonment in writing shall have been j foreman of the company, by any member thereof, such abandon] [considered absolute, and operate as a discharge against all debts ^™ the company after such notice has been given, and no such member shall be ®°ticJ> of ve abandoned such interest without having sen Limited Lia bUity. the liabilities of its that is to say:— company, members composed of upon comply two or more free ing with the requii s rs, may limit its following, Upon fil the location of the claim, anry,°fthtea dec) ch n jund claimed, ember of the company; a letters, the such condit shall be lia nd s lso placin of the cc shall have been complie spicuous part of the claim, in large red by the word " registered." After d with, no member of such company 87. No person shall locate, purchas ne full interest of 100 feet in any coi ot apply to gold quartz mining claim: 88. All mining companies : "assets and liabilities, together terest held by each, and shall names of the creditors, and the papers of the company; and su bhall t interest, or some portion ther ponment, in writing, of his the company and -the Gold ( mpany shall decla | 92. If any such company fail to comply with any of the foregoing pr< ions, such company shall be liable to a fine of not less than twenty-five dollt lor more than one hundred and twenty-five dollars. I 93. The Gold Commissioner in each mining district shal Busively for the purpose, in which he shall record all declaratory 'led in his office, and another book in which he shall record all [bandonment. j 94. There shall be paid to the Gold Commissioner, for the use of Her Majesty, pon the filing of each declaratory statement, the sum of two dollars and fifty pnts; and upon the filing of each notice of abandonment, the sum of one dollar, nd no more. | 95. All other matters not herein provided for shall, as far as is practicable, s governed by the provisions of the "Mining Joint Stock Companies' Act, S64," but nothing in the nine preceding sections contained shall be p as to repeal or vary any of the prior or subsequent sections of this Ordi 3 constituted shall keep a correct account of its Accoui with the names of the shareholders, and the in- Compani make out a monthly balance sheet shewing the how to t amounts due to each, and file the same among the kept, h balance sheet and all the books of the t of creditors of the company 564 MARTIN'S MINING CASES. Gold Mining 96. In the case of any mining joint stock company, duly registered in this Ord., 1S67. Colony under the provisions of the " Mining Joint Stock Companies' Act, 1864," and not under this Ordinance, every shareholder of such company, though not a When persons free miner, shall be entitled to buy, sell, hold, or dispose of any mining shares Minersfmav tnere'n> anything to the contrary notwithstanding herein contained, hold interests. in Companies. PART VIII. Administration. Deceased 97. In case of the death of any free miner, while registered as the holder of miners' inter- any mining property, his claim shall not be open to the occupation of any other est- person, for non-working or non-representation, either after his decease, or dur ing the illness which shall have terminated. in his decease. Power of Gold 98. The Gold Commissioner shall in all such cases take possession of the j ' Commis- mining property of the deceased, and may cause such mining property to be duly j sioner. represented or dispense with the same at his option, and he shall sell and dispose j of the same by private sale, or upon giving ten days' notice thereof by public 1 auction, upon such terms as he shall deem just, and .out of the proceeds pay all I costs and charges incurred therein. Custody of 99. The Gold Commissioner shall take into his custody and safe keeping, or property of order some person- so to do, all the property of deceased miners until proper I deceased letters of administration be obtained. ants to 1()0- A11 Srants nnder this Ordinance for any mining ground, ditch privileges, j writing. or otherwise, shall be in writing, in the form of a lease to be signed by he Gold j Commis; md by the grantees or lessees. Exce his 6c- Appl cations dupli ate. Leases for 10 "TO ' ' Dry diggings Bar diggings. 101. Save where the contrary is expressed in this Ordinance, the following j clauses shall apply:— Applications for leases, accompanied by a plan of the' proposed under- j taking, are to be sent in duplicate to the Gold Commissioner of th district I wherein the ground desired to be taken is situated, who shall immediately j forward it, with his report, to the Governor for his sanction, exc pting ii eases where the lease does not exceed five years, but the ground shall be j secured to the applicant until the Governor's decision has been received. | Prior to such application, the ground applied for shall be marked out b it posts of the legal size, and written notice of application, signed by he appl cant, shall be affixed to any post nearest to mining claims then bein<* worked, j A copy of such notice shall also be put up at the Gold Commissioner's office, j 102. Every application for a lease shall be accompanied by a deposit of one I hundred and twenty-five dollars, which shall be refunded if the application be j refused; and if it be entertained such sum of one hundred and twenty-five dollars j shall be retained and paid into the treasury of the Colony, for the u e of Her j Majesty, whether the application be afterwards abandoned or not. 103. Leases will not in general be granted for a longer term than ten years, I - for a quantity of ground greater than that herein prescribed, that is to sa In dry diggings, ten acres. In1 bar diggings, unworked, half a mile in length along the h gh v nile and a half in length] I.J APPENDIX A.—MINING STATUTES. In quarts reefs, 1 length. orked, half a mile 1 ;efs, worked and abandoned, one mile and a half With liberty in the two last cases to follow the spurs, dips, and angles and within the surface for two hundred feet on each side of the main lead I 104. Leases as above will not in general be granted of any land, alluvium or j quartz, which will be considered to be immediately available for being worked I by free miners as holders of individual claims. Nor will such a ease be granted [ in any case where individual free miners are in previous actual occupation of I any part of the premises unless by their consent. I 105. Every such lease shall, without expressing the same, be understood to I contain a reservation of all rights of the Crown, and all reasonable provisions I for securing to the public,' rights of way and water, save in so far as shall be I necessary for the miner-like working of the premises thereby demised. The j premises demised shall be granted for mining purposes only, and it shall not be I competent to the lessee to assign or sub-let the same or any part thereof, with- I out the previous licence in writing of the Gold Commissioner. Every such I shall contain a covenant by the lessee to mine the .said premises ii I like way, and also, if it shall be thought fit, to perform the works therein defined I within a time therein limited. And it shall also contain a clause by j whereof the said lease may be avoided, provided that the lessee shall refuse I neglect to observe "and perform all or any of the covenants therein contained. PART X. Ditches. i 106. It shall be lawful for the Gold Commissioner, upon the application here- qq^ Qomm;s. linafter mentioned, to grant to any person for any term not exceeding five years, sionermay the right to divert and use the water from any creek, stream, or lake, at any grant ditch particular part thereof, and the rights of way though and entry upon any privileges for mining ground in his district, for the purpose of constructing ditches and flumes 10 years. to convey such water. [ 107. Ten days' notice thereof shall be given, by affixing the same [conspicuous part of the ground, and a copy thereof upon the walls of the Gold [Commissioner's office of the district, and it shall be competent to any free [miner to protest before the Gold Commissioner within such ten days, but not [afterwards, against such application being wholly or partially granted. [ 108. Every application for a grant of water exceeding 300 inches shall be Deposit of [accompanied by a deposit of one hundred and twenty-five dollars, which shall $125 to be be refunded in case the application shall be refused by the Government, and if paid. [the application be entertained, then such sum of one hundred and twenty-five Hollars shall be retained and paid into the colonial treasury, for the use of Her [Majesty, whether the application be afterwards abandoned or not. I 109. Every application for such rights shall be in writing, and shall ^gjg ... the names of the applicants, the name of the stream or lake to be diverted, the topbpe point of diversion or ditch head, the quantity of water to be taken, the locality ,ng_ lor its distribution, and the price (if any) to be charged to free miners or Ltbers for the use of such water, and the time necessary for the completion of [he ditch. t being entered, such application • for reasonable Gold Comn h MARTIN'S MINING CASES. r 111. Every grant of a ditch or water; privilege in oc subject to the right of such registered free miners as shi grant be working on the stream above or below the ditch person or persons whatsoever who are then in any wa ®'water; for any purpose whatsoever. , shall be 115 the grant aforesaid h water to work his claim, as he may require. And in computing such damages, the expense of the construction of the ditch,.the loss or damage sustained by any claim or claims then using and depending upon the -water conveyed in the said ditch, and all other losses reasonably sustained shall be considered jM shall be entitled to any grant of the water of any stream ose of selling the water to present or future claim-holders on tream. The Gold Commissioner may, however, in his discre- ivileges as he may deem just, when such ditch is intended to claims fronting on any such stream; provided that the rights using the water so applied for be in all such cases protected. 113. No perso any pa t of such tion grant s work bench or hil of free re the s- 114. The Gold Commissioner ;_ advisable, to order the enlargem to fix what (if any) compensatio s such alteration or enlargement. tall ha\ 115. r of a r- reasonable means for uti such owner shall wilfully t he shall be charged with th And it shall be lawful for in, to declare all rights to litch or water privilege s hall be boun g the water gr anted and aken by him ke and waste any unrea onable quan o 116. It shall be lawful for the owner of anj d tribute for use the water conveyed by him to as he may deem advisable, within the limits Provided, always, that the owner of any ditch < to supply water to all applicants being free m shall not demand more from one person than an of supply is enhanced. ditch or w uch person; nentioned i Rent of $5 per . Unless i in proper cases do so with the S£ cases the right of the party firs water privilege is to prevail, so a if the same be just. rranged, an annual rent of five dollars si :er used for mining purposes when not si r any water privilege shall be in each mo i sale thereof, to be estimated by the G f he shall so think fit, of a jury. idge across any stream, or claim, or ot under or through any ditch or flume, oi d already occupied by any other perso"Mi :ion of the Gold Commissioner. In all » i possession whether of the mine or of > entitle him to compensation and indemi with a pressure of seven inches. a trough placed horizontally at aperture through which, the-wati The same mode of measuremen earth o tered o be give road or w otherwise whatsoeve : engaged in Gold Comm * privilege, < h other property. fc|re^f0laffe be given, tstruction of any Rules for i for Gold Commis- tirements aforesaid, the Gold Commis- J hand that the person or persons named c e damage or interference aforesaid, and a in mentioned, and have also duly satis- a or them occasioned to any persons interference referred to. wed to, and shall discharge the I granted from all liability with d shall be sufficient evidence in any And to be matters and things therein contained sufficient ir srson or persons to or for whom the Law Court espect to the damage or interference 126. The Gold Commissioner s treated therein, and after notice i jitcern. enquire into and decide all ich damage or interference as af > final and without appeal, and i fiereof; which shall be stated ii tall, upon the application of any party in- Gold Cc > hereinafter mentioned to all whom it may sioner t matters arising out of or connected with any c^e disi resaid, and such decision or judgment shall i all cases where such decision or judgment m or matters at issue, the amount or value the decision, shall not exceed five hundred e such amount or value shall exceed five hundred dollars, . , >y such decision may appeal against the same to tte ^EEde £* 1 Justice, upon giving written notice of such intention to cases over §500 rj'Witliini four days of such decision, and upon giving, to the Su- -s to the Gold Commissioner whose opinion is appealed preme Court. fiicient bond or mortgage, the amount of which shall be ner, from the party or parties appellant, for the prosecu- 1 for the payment of all such costs as may be awarded 12& The owi m expense, ct issage of wast* 568 MARTIN'S MINING CASES. [Vi Gold Mining 129. The owners for the time being, not being the Government, of any ditch Ord., 1867. or water privilege, shall construct and secure the same in a proper and snbstanjp tial manner, and maintain the same in good repair to the satisfaction of the Gold Ditches to be Commissioner, and so that no damage shall occur, during their ownershifflp constructed in thereof; t0 ^y road or WQI\\ in its vicinity, from any part of the works of such a secure man- djtcn> water privilege, or right, giving way by reason of not being so as aforesaid constructed, secured, or maintained. Damages to be 130. The owners of any ditch, water privilege, or right, shall be liable and made good by Bhall make good, in such manner as the Gold Commissioner shall determine, all grantees. damages which may be occasioned by or through any parts of the. works of such ditch, water privilege, or right, giving way as aforesaid, and the same may be recovered before a Magistrate in a summary manner. Notice to be 131. The publication of any written notice to the party intended to be given in affected thereby, in two consecutive numbers of the Government Gazette, or any Government newspaper circulating in the Colony, or by affixing the same for ten days on , Gazette. some conspicuous part of any premises referred to in such notice, and also at the office of the Gold Commissioner, shall be deemed good and sufficient notice for all purposes under this Ordinance. 132. Nothing herein contained shall be construed Chief Commissioner of Lands and Works to lay ou public roads of the Colony across, through, along, oj privilege, or mining right, in any unsurveyed Crown tion, doing as little damage as conveniently may be ir :o limit the right of the from time to time the under any ditch, water land, without compensa- Oonstitufcion of Mining PART XL Mining Boards and their Constitution. 133. Upon petition, signed by not less than one hundred and one free miners i any district, it shall be lawful for the Gold Commissioner, acting< for such i therein a local board, to be called " The Mining Board." ir 134. The Mining Board shall consist of nine members, who shall retire annually, and shall be elected by the votes of the inhabitants of the district, who are free miners at the time of the election. 135. No free miner or other person shall be eligible as a candidate, unless he shall have been a registered owner of a mining interest in the district, for at least three months previous to the election. e votes, but shall not be allowed to give more j. 137. The votes of the electors shall be given in person by the voter, and the Gold Commissioner of the district shall act as the Returning Officer, and shall decide all questions as to qualification and disqualification of the members elect. The first election shall take place on such day as the Gold Commissioner \ may appoint. 138. If any member shall cease to be a registered free miner in the district, or shall be convicted of any misdemeanour, or felony, or of any.wilful and malicious contravention of this Ordinance, or of any By-law in force in the district, he shall ipso facto vacate his seat in each case, and not be re-eligible, j save that a member vacating his seat, only by reason of ceasing to be a registered j free miner, shall be again eligible at any time upon his becoming a registered | free miner. J APPENDIX A.—MINING STATUTES. i any member shall absent himself from three or more consecu- Gold Mining the Board, whether regular or adjourned meetings, he shall, Ord., 1867. passed by the Board to that effect, be considered to have ., ! rherein Absence from 140. The Gold Commissioner shall fill by appointment may arise in the said Board, when the same may occur, i shall hold office until the next general election. 141. The Mining Board shall, subject to the provisions hereof, have *,-., by resolution to make By-laws, which shall be submitted for the approval of the make by-laws,. Gold Commissioner, (any By-laws so approved by the Gold Commissioner, shall mUgV*beai>- be immediately posted in the Gold Commissioner's office), and also from time pr0Tefi by the to time to suggest any alteration or repeal of existing laws for regulating the Governor. size of claims and sluices, the mode in which claims may be worked, held, and forfeited, and all other matters relating to mining in the district; and any By-laws so made shall be binding in such district, until the same shall have been disapproved by the Governor. i 142. Any resolution of such Mining Board may be passed by a bare majority MaJ°r'ties' j of the members of such Board. The Gold Commissioner shall, within seven days ■ after the receipt of the copy of such resolution, signed by the Chairman of the | Board, concerning any By-law or general regulation which he shall on any ; grounds, deem expedient to lay before the Governor, make and send a fair copy thereof, signed by such Gold Commissioner, with his opinion thereon. j 143. The Mining Board shall meet at such times as a majority of the said Mining Board : Board shall decide, and one-half of the members of the said Board shall c stitute a quorum. Provided, nevertheless, that it shall be lawful for the Gold I Commissioner, and so often as in his opinion occasion shall require, to call ; together such Mining Board. , 144. The votes on all i the members personally a 145. All questions of order and of the time and manner of conducting the Mode of ^c | business at such Mining Board, and of the times and places of meeting after due*— / the first meeting thereof, may be decided by the majority of the said Mining proceeding Board, either from time to time as any question shall arise, or by any fixed rules and others as may be thought advisable. 146. It shall be lawful for the Governor, by an order under the public seal of i,ow< the Colony, at any time to declare the Mining Board in any district dis- di°Jolve solved, at a day to be named in such order, and if no day be therein named in Mining Boa that behalf, then as from the date of such order. Penal Clau. PART XII. » and Glauses of Indem 147. Any person wilfully or unlawfully acting in contravention of this Summary Ordinance, or of any By-law, rule, or regulation to be established by virtue of Pow this Ordinance or refusing to obey any lawful order of the Gold Commissioner, ° ■ shall, on being summarily convicted before any Justice of the Peace or Gold Commissioner, be liable to a fine not exceeding two hundred and fifty dollars, or to an imprisonment not exceeding three months. 570 MARTIN'S MINING CASES. [vol. Gold Mining 148. All penalties imposed under this Ordinance may be recovered forthwith, Ord., 1867. or at such reasonable interval after conviction' and non-payment as shall be allowed, by distress and sale of any mining or other personal property of the Je6 ofered ^ offender- All fines and 149. All fines and fees whatsoever payable under this Ordinance^except *&T 'th*36 l'aid otnerw'se expressly appropriated, shall be paid into the treasury of the *ColoBME treaJirv as Potion of the revenue thereof, to the use of Her Majesty, Her heirs ahdfe Appeal to the 150. Any person convicted and sentenced to any term of imprisonmenai SupremeCourt beyond thirty days, or to pay any fine beyond one hundred dollars over adw in criminal aibove the costs of conviction, may appeal to the Supreme Court of Civil ■cases UmU'ary Justice; provided that such person do, within forty-eight hours after such conviction, enter into recognizance with two sufficient sureties, conditioned perso3s"Hf ally to appear to try such appeal, and to abide the further judgment of the Court, and to pay such costs as shall be by such last mentioned Court awarded^ And the convicting Gold Commissioner may bind over any witness or informant under sufficient recognizances to attend and give evidence at the hearing of such No merely 151- On any such appeal no objection shall be allowed to the convictibh'^K formal objeo- any matter of form or insufficiency of statement, provided it shall appear to the i'ton allowed, said Supreme Court that the defendant had been sufficiently informed of the charge made against him, and that the conviction was proper on the merits of -Cert»in 152. Any person who shall wilfully damage, destroy, or alter any free' offences. miner's certificate, or who shall falsely pretend that he is the person named therein, or who shall wilfully destroy or falsify any of the records and registers Felony, hereby directed to be kept, shall be guilty of felony, and being duly convicted thereof shall be liable at the discretion of the Supreme Court of Civil Justice, to penal servitude for not more than ten years. Stealing gold 133. Any person who shall steal, or sever with intent to steal, any gold or dust from gold dust from any claim, or from- any ground comprised in any lease granted claim, felony, under this Ordinance, shall be guilty of felony, and being convicted thereof shall be liable to be punished in the same manner as in cases of larceny. Defrauding •"***• ^ny P6113011 wno shall, with intent to defraud his co-partner (or in co-partner or cases of agency his principal) in any claim, secrete, keep.back, or conceal any principal, gold found in such claim he shall be guilty of felony, and upon conviction thereof feh my. shall be punished in the same manner as if he had feloniously stolen the same. Saves existing 155. Nothing herein contained shall, save where such intention is expressly mining rights, stated, be so construed as to affect prejudicially any mining rights and interests acquired prior to the passing of this Ordinance; and all rights and privileges heretofore and hereunder acquired shall, without the same being expressly stated, be deemed to be taken and held subject to the rights of Her Majesty, Her heirs and successors, and to the public rights of way and water of this Colony. Short title. 156. This Ordinance may be cited for all purposes as "The Gold Mining, Court be deferred MARTIN'S MINING CASES. [vol. , 2. The Acts and parts of Acts mentioned in this section shall stand repealed and be repealed; but such repeal shall not be deemed to imply that any of the said Acts or parts of Acts which have been repealed at any time prior to the passing of this Act have been in force since such repeal: Provided further, that I such repeal shall not affect any rights acquired or any liabilities or penalties-, incurred or any act or thing done under any of the said Acts or part of Acts:—I 867," save and except sees. 4, 5, 6, 7, 8, 9, The "Mineral Ordinance, 1869"; No. 14, 1872—An Act to amend the " Gold Mining Ordinance, 1867;" Sections 21 and 22,of No. 3, 1873, being the " Mineral Ordinance Amendment Act, 1873;" No. 4, 1873—An Act to amend " The Gold Mining Ordinance, 1867," and • "The Gold Mining Amendment Act, 1872;" No. 14, 1873—An Act to amend " The Gold Mining Ordinance, 1867," by giving County Court Judges jurisdiction over the Mining Court, as constituted under the said Ordinance, and to declare the powers of the said County Court Judges, and to regulate the procedure in relation thereto; No. 3, 1874—An Act to amend the several Acts relating to Gold mining, and to make provision for the security of mining property acquired in certain parts of the Province; No. 26, 1876—An Act to amend the " Gold Mining Amendment Act, 1873 9 No. 14, 1877—An Act relating to Minerals other than Coal; No. 35, 1877—An Act to amend the " Gold Mining Amendment Act, 1872 9 Cap. 13, 1878—An Act relating to Minerals other than Coal, found in lodes or veins, and to amend the " Gold Mining Ordinance, 1867;" Cap. 15, 1881—An Act to amend the Gold Mining and Mineral Acts; Cap. 19, 1883—An Act to amend the " Mineral Act, 1882." 3. This Act shall be divided into eleven parts:— The first part relating to some of the powers of Gold Commissioners, and • to County Court jurisdiction in mining cases and appeals; The second part to free miners and their privileges; The third part to the registration of claims and free miners' general rights; The fourth part to the nature and size of claims, including mineral claims; The fifth part to bed rock flumes; The sixth part to the drainage of mines; The seventh part to mining partnerships and limited liability; The eighth part to administration of the mining property of deceased miners; The ninth part to leases; The tenth part to ditches; The eleventh part to the penal and miscellaneous clauses. PART I. aring of 4. The hearing of any summons, plaint, or other process hi n|?s'. shall not be deferred beyond the shortest reasonable time r M.mmg terests of all parties concerned therein. 5. The Gold < nd reasons as h And any comp ing established t TNG STATUTES. party of free miners, who shall discover as defined by this Act shall, upon such faction of a Gold Comi r six months. 6. Where the supply c water is insufficient to work hydraulic or other lable them to be worked, such claims shall be laid virtue of this section during such insufficiency, but no longer, except i of the Gold Commissioner. (a) Upon proving to the Gold Com expended on such claim o labour, or machinery, an a out any return of gold or ^expenditure : ■ portion of the set of clai ual to $1,000 on each full intei rerals in reasonable quantities fi ich leave being signed by all the o1 Such leave of absence shall not be deemed to relieve the party holding the same from carrying out the provisions of this Act respecting free licences, and record of the claims above mentioned; nor shall this deemed to affect the discretionary power of the Gold Commissioner with respect to granting a leave of absence under other conditions. 8. He shall have the power to summarily order any mining works to be Protectioi so carried on as not to interfere with or endanger the safety of the public, against da any public work or highway, or any mining property, mineral claims, mining geroi ■ claims, bed-rock drains*, or bed-rock flumes; and any abandoned works may by his order be either filled up or guarded to his satisfaction, at the cost of the parties who may have constructed the same, or in their absence upon such as he shall think fit. 9. Every County Court shall exclusively have and exercise within the limits i\j of its district all the jurisdiction, rights, powers and privileges of a Mining di Court, and such jurisdiction may be distinguished as the mining jurisdiction to County of the said County Court; and every Judge authorized to preside in such County ^ourt;s- Court shall, in the exercise of such mining jurisdiction, have the "like powers and authorities as may be exercised by any Gold Commissioner sitting as Judge of a Mining Court. All proceedings in mining causes brought before a County pfu lo Court shall, as far as practicable, be similar to the proceedings had and taken proceedings. in a Mining Court; but all summonses, writs, or other process, and all papers or documents 'in a mining cause instituted in a County Court shall be intituled in the said Court and have the words " Mining Jurisdiction " written or printed The Judge of any County Court may, notwithstanding anything judge to ming c vithin the contained in this section, from time to time make, vary, for regulating the forms or proceedings o jurisdiction of his Court. 10. The provisions of the preceding section shall not have effect portions of the Province as may be defined by order of the Lieutenant-Governor apply or in Council, and such order may from time to time be varied or revoked. such par the prov 11. The attendance of jurors and witnesses in any mining cause in the as*1^Lle' County Court or in the Mining Court may be obtained and enforced according ^' ^^t to the practice of the County Court, and such jurors and witnesses shall be T & entitled for their atendance to receive such compensation as the Court may - direct. MARTIN'S MINING CASES. [vol. ;> 12. An appeal shall lie from any judgment of a Mining Court or of a County Cpurt, in a mining cause to the Supreme Court of British Columbia at Vfe I toria, sitting as a Full Court. The appellant shall, within ten days from the date 1 of such judgment, give notice of the appeal to the other party, and also give security, to be approved of by the Judge of the Court appealed from, for the costs of appeal and for fulfilling any orders which may be made in the course of such appeal by the Supreme Court; and the said Supreme Court may either order a new trial on such terms as it shall think fit, or order judgment to be . entered for either party, or try the cause de novo, and make such order as to costs as may be deemed proper. The appeal may be in the form of a case- settled and signed by the parties or their solicitors, and if they cannot agree the Judge of the Court appealed from may settle and sign the same upon being . applied to by the parties or either of them: Provided that in the electoral district of Cariboo, the appeal shall lie to a Judge of Assize and- nisi prius, . and if either party be dissatisfied with his decision he may appeal therefrom to the Supreme Court at Victoria, sitting as a Full Court, upon giving, within I four days from the decision of the Judge of Assize, notice of appeal to the opposite party, and, within ten days from such decision, or within such delay.? as such Judge may allow or as may be allowed by the Appellate Court, furnish-^ Ing such security in the matter of the appeal as the Judge of Assize may direct. ^; 13. Appeals from the decisions on mining questions of any Judge of the ?- Supreme Court, when presiding in a County Court, shall be allowed as in ordinary cases of appeals from County Courts, or as may be provided by rules for regulating the practice and procedure of the Supreme Court. 14. In all mining actions or suits, the Judge of the Court having jurisdiction in mining disputes shall, when practicable, decide the question at issue upon the ground in dispute, and such decision shall be entered as in ordinary cases,-; and have the same virtue and effect as if rendered in Court. be treated as adults. certificate. s of age shall be entitled ;rs, shall, as regards their ion therewith, be treated Who may be Free Miners, a 15. Every person over but not under sixl to hold a claim. Miners, who shall become mining property and liabilities contracted ii as adults. 16. Upon payment of the sums hereinafter mentioned any such ] shall be entitled to a free miner's certificate signed hj a Gold Commis or Mining Recorder in the following form:— BRITISH COLUMBIA. Not Transferable. Valid for year only. , and is entitled to all the rights and privileges of a from the date hereof. (Signa ure of Gold Commissioner, Assistant Gold Comr Mining Recorder, as the case may be.) 17. Any company incorporated under the "Companies Act, 1878," or ander any law in force in this Province relating to joint stock companies, shall be entitled to all the rights and privileges of a free miner upon taking 18. The free miner's certificate to be granted to a company shall be issued in its corporate name, and every leave of absence or record of mining pertife interests, or other mining property held by the company, and every transfer be8ia"* and record thereof, shall be given or made in the corporate name of the ffSie« company. cil may appoint any person to be a Minii of the Province, for the purpose of Recoi ;ring mining records; and the certifi- such recorder shall be as valid as if 19. The Lieutenant-Governor in Cou Mining Recorder in and for any part issuing free miners' certificates and en cates and records issued and made by issued and made by a Gold Commissioner. Provided, always, that every Mining Recorder shall forward to the Gold Commissioner, if any, of the district within which the Mining Recorder shall discharge his duties, the transcripts of the records made by the Mining Reco * ticably may be after the making of the same. 20 A free miner's certificate may be granted for oi from the date thereof, upon the payment therefor of fi' and fifteen dollars for three years. A certificate shall not be transferable, fc and only one person shall be named therein. 21. If any such certificate shall be accidentally destroyed or lost [ owner thereof may, on payment of two dollars and fifty cents,* have a copy of it, signed by a Gold Commissioner or Mining Recorder. Every copy shall be marked " substituted certificate." And unless irregularity be shewn in respect thereof every original or substituted free miner's certificate shall be evidence of all. matters therein contained. 22. Eve - free the tir ;r shall, during the ight to enter and mine upt e being lawfully occupied by being made upon lands already lawfully Com] ises previously to entry, full compensation )wner, for any loss or damages he may , such compensation to be determined by ining disputes, with or without a jury j 23. In the event of such enti occupied for other than mining pu shall be made to the occupant c sustain by reason of any such en the Court having jurisdiction in j of not less than five. 24. No person shall be recognized as having any right o ■ any mining claim, mineral claim, or any minerals therein mining ditch, unless he shall be, or in case of disputed ov shall have been at the time of the dispute arising, a free mil I 25. No person shall be entitled to recover any wages fci |as a miner in any mining claim or mineral claim, or on a I bed-rock drain, or ditch, unless he has had a free miner's time of the performance of such labour. Every person « for minerals (other than coal) shall take out a free miner's certificate. 26. The assessor or collector of any Provincial taxes may, by himself or Product jhis agent, demand from any person engaged or. employed in mining the produc- freemin jtion of his free miner's certificate, and in case of the neglect or refusal of such certinca jperson to immediately produce such certificate when demanded, or to pay for ^^™p*°^ b certificate, the assessor or collector may, by himself or his agent, levy the g_ sum payable for a certificate, with costs, by distress of any goods and chattels nc nf the person who ought to pay the same, or of any goods or chattels on the th of his certificate, but Right any waste lands of the and mine ly other person. Crown Lands Registra MARTIN'S MINING'CASES. [vol. Mineral Act, premises occupied by him, whether the goods or chattels be his property or be 1884. the property of or be in possession of any other occupant of the premises; and the costs chargeable shall be those payable as between landlord and n of Claims, a e Min s General Rights e miner locating a mining claim or a mineral claim must with the Gold Commissioner or Mining Recorder of the dis- ieh the same is situated, within three days after the location thereof, if located within ten miles of the office of the said Gold Commissioner or Mining Recorder. One additional day shall be allowed for such record for every additional ten miles or fraction thereof. Such record shall be made in a book to be kept for the purpose, in which shall be inserted the name of the claim, the name of each locator, the number of his certificate, the locality of the mine, the date of his recording the same, and such other matters as may be deemed requisite by the Gold Commissioner or Mining Recorder. 28. Where auriferous land is discovered in a part of the Province so situated that the provisions of this Act as to free miner's certificates ,and records of mining property cannot be justly applied or enforced by reason of there being no Gold Commissioner or Mining Recorder in the locality, it shall be lawful for the miners of such locality to hold meetings at such times and places as may be agreed upon, and at such meetings, by a two-thirds to make rules consistent with this Act for their good government, and appoint one of their number to issue free miner's certificates and to enter of mining property; and such certificates and records shall be valid withstanding any informality therein. 29. All clain it being real ei ecord his claim •s and fifty cem t be for a period of for each year included !-recorded annually; but years, upon 30. The Gold Commissioner or Mining Recorder may require any miner applying to record a claim to produce his certificate, and upon non-produc- thereof to refuse to record such claim or any interest therein. 31. In case of any dispute, the title to claims will be recognized according to the priority of their registration, subject to any question as to the validity of the record itself, and subject further to the terms, conditions, and privileges, contained in s. 27 of this Act. 32. No transfer of any mineral oi shall be enforceable unless the same in writing, signed by the transferrer, and registered with the Gold Commist n or of any interest therein emorandum thereof shall be agent authorized in writing, 33. The transfer of any real estate acquired under t Gold Mining Amendment Act, 1873," or under this < als other than coal, shall be in writing, signed l t authorized in writing, and need not be by deed e provisions of the r any Act relating ; the transferrer or '' •r under seal. 34. Every free miner oi tm or set of claims in on I every " leave of abset representation. Two dollar! absence," and for any bill of sale or other document o company of free miners may record his or their j record on payment of two dollars and fifty cents; j e" may contain all the interests exempted from and fifty cents shall be charged for such " leave of lable hours, be open to public shall be r and the s certified. aid books, certified • Mining Recorder, therein contained, 37. Every bill of sale of a mining interest, or of any fraction thereof, shall be recorded within the time prescribed for recording pre-emption claims; and if any owner of such bill of sale shall wilfully neglect or refuse so to do, he shall be liable to such fine, not exceeding fifty dollars, as any Gold Coi r shall be allowed t bench. hold, at the same time, any tly two claims by pre-emption in mayhold any id, viz.:—One mineral claim, and number of le laws as to record, occupation, ch ; 39. The interest of a free miner in his c] in fee simple, be deemed to be a chattel int I such period as the same may have been recor [ and subject to the conditions as to forfeiture, working, | tion, and other wise, for the time being in force with 40. Every free miner shall, during the continuanc | the exclusive right of entry upon his own claim, foi | thereof, and the construction of a residence thereon, [ clusively to all the proceeds realized therefrom; pro | duly registered, and faithfully and not colourably wc | no surface rights therein. Provided, also, that the ! I upon application made to him, allow adjacent clai | entry thereon as may be absolutely necessary for the I and upon such terms as may to him seem reasonable. 41. In addition to the above rights, every registered free miner shall be r,;^ I entitled to the use of so much of the water naturally flowing through or past share of I his claim, and not already lawfully appropriated, as shall in the opinion of I the Court having jurisdiction in mining disputes be necessary for the due I working thereof. 42. No claim located and recorded in any district within fourteen days be- Laying ot ; fore, or at any time after the claims therein shall have been laid over, to the claims I ensuing season, or other specific date, shall be deemed to be so laid over, recorded: I unless so much" work shall have been bona fide expended thereon by the holder close seas thereof as shall in the opinion of the Gold Commissioner, fairly entitle him to have such claim laid over. 43. A claim shall be deemed to be abandoned and open lany .free miner when the same shall have remained unworl [by the registered holder thereof for the space of seventy-tv, pess or other reasonable cause be shewn. 44. Every full-sized claim or full interest as defined represented and bona fide worked by the owner thereof, or '■is behalf. I 45. The Gold Commissioner may prescribe the number of n pe required to work in prospecting a set of claims until gold shall, save as to claims held Mi equivalent to the lease, for in enewable at the end thereof, p' ing, representation, registra- in rith respect to claims. ance of his rked; but he shall have _ }old Commissioner may, n-holders such right of Bight of working of their claims, o the occupation of when claim ;d on working days shall be deem ■> hours, unless sick-ed abandoned. i this Act shall be puj] s;zed by some person on claims mui 49. Eve MARTIN'S MINING CASES. e of a claim shall be absolut 47. Where any undivided mining interest in a company shall be claimed, by any free miner by reason of any defect in the title or representation there*: of, which defect shall be first established to the satisfaction of the Court having jurisdiction in mining disputes, the company shall be bound either to- admit the claimant as a member of the company to the extent of such defective- interest or to stake off to the separate use of the claimant any portio-aaHB ground in the joint ground of the company equal in extent to such defecjgK interest. In such latter event the claimant shall not be entitled to any in- Admit claim- terest whatever in the remaining ground of the company or be considered a ant as a mem- member thereof by reason of such appropriation. In either case the company ber or stake off shall pay all costs and expenses incurred by reason of allowing the non- . 1 representation aforesaid. The Court may make such order as to costs as he may deem just. 48. Notwithstanding anything contained in the " Gold Mining Amendment ryclaim Act, 1873," or in any Crown grant issued under the said Act, or under this have Act, it shall be lawful for the Court having jurisdiction in mining disputes,, rivi- in its discretion, and with or without any terms or conditions, to allow to of claims not held in fee simple all such right over mineral or other claims held in fee simph ordinary claims; and owners of mineral or simple shall be entitled to the same rights and pri ary claims. as may be allowed in and other claims held in fee lieges as owners of ordin- vith refer- under this Act, and notwithstanding any law to the contrary, having the same powers and authorities to decide all matters or disputes arising between the thereof, or between the owners thereof and any third person, or between mining joint stock companies, or between shareholders therein, or between them and the company, in the same way and as fully as it might do concerning claims not being real estate; and actions, suits and other proceedings relating to such matters or disputes, shall be brought and had in the same manner as actions, suits or proceedings relating to mining claims not being real estate. e of Clai 50. The size of claims shall be as follows: For "bar diggings," a strip of land 100 feet thence extending into the river to its low For " dry diggings," 100 feet square. " Creek claims" shall be 100 feet long, measured in the direction of the general course of the stream, and shall extend in width from base to base of the hill or bench on each side, but .when the hills or benches are less than 100 feet apart the claim shall 6e 100 feet square. " Bench claims " shall be 100 feet square. " Mineral claims," that is, claims containing, or supposed to contain minerals, precious or base (other than coal), in lodes or veins, or rock to place—shall be 1,500 feet long by 600 feet wide, as hereinafter pro- the side lines thereof. Posts of th on both the base and side lines. T lines shall form a " hill claim." 53. In tunnelling under hills, which may be of an oblong or el tunnel from any of the said angles interfere with parties tunnelling f - 54. The Gold Commissioner sh claim on any creek, which claim within 100 feet of any gulch or tr: of which angles occur, or Tunnelling party shall be allowed to under hills, end of such hills, so as to ) refuse to record any hill Gold Commis- lafts shall be considered as belonging t ■e constructed, and as abandoned or for e of the claim itself. | 56. For the more conveni slopes, the Gold Commissioner I through the claims fronting c [ terms as shall seem expedient. ers, shall discover a new mine, ] satisfaction of a Gold Commis- c , bench, creek, or hill diggings, f four discover ..1000 in number do do where what shall h ■ And to each member of a party beyond four [ordinary size only. A new stratum of auriferous earth or gravel situated in a [the claims are abandoned, shall, for this purpose, be deemed [although the same locality shall have been previously worked at a different mine. |level; and dry diggings discovered in the vicinity of bar diggings shall be [deemed a new mine, and vice versa. A discoverer's claim shall be reckoned as [one ordinary claim. (a) Creek discovery claims shall extend 1,000 feet on each side of the Creek | centre of the creek or as far as the summit; (6) Any discovery claim heretofore granted and duly recorded and held Declai under terms or conditions similar to those herein provided for discovery covere [ claims, shall be deemed to have been lawfully granted and he/d; claims withstanding anything on the contrary, the provision as t ms being increased in size by reason of their being discover II not extend or apply to quartz claims or minerals found i curded to b valid. | 58., All claims shall be as nearly as possible rectangular in form and ti [narked by four pegs, at least four inches square, standing not less than four q ket above the surface and firmly fixed in the ground. No boundary peg shall ei [e concealed or moved without the previous permission of the Gold Commis- IV ioner. Any tree may be used as a stake, provided that it be cut down to at ci past the legal height and the stump squared as above. i defining the * tired ] tally, MARTIN'S MINING CASES. [vol. Mineral Act, 60. The Gold Commissioner may mark out a space of ground for deposits 1884. of leavings and deads from any tunnel, claim, or mining ground upon such terms as he may think just. :d " mineral" as used in this Act shall mea us and base (other than coal), found in vein! . and. whether such minerals are found separately i with the other. and include all t- lodes, or rock in combination 62. Any free miner desiring to acquire a right to mine any lands for locatingIofana minerals as above defined shall, subject to the provisions of this Act with Mineralelaitns resPect to land which may be used for mining, enter upon the same and locate a plot of ground 1,500 feet long by 600 feet wide, as nearly as possible in rectangular form; such plot of land shall be described and recorded as a " Mineral Claim;" and every mineral claim shall, as in the case of ordinary mining claims, be fully and separately represented and not colourably worked; and all the provisions of this Act relating to ordinary mining claims shalL when the same are applicable, apply to mineral claims. 63. Such mineral claim shall, notwithstanding any provisions of this Act, be marked by three posts of the size and height prescribed by this Act, placed at equal distances from each other along the centre line, and any tree or stump which will answer the purpose may be used in lieu of posts. On each post, stump, or tree there shall be placed a legible notice in writing, stating? any) of the claim, its length in feet, and the direction of the centre line, with the date of the notice and name of the claimant of the ground. 64. The lawful holders of mineral claims shall have the exclusive right and possession of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in fhefe "ownwards as to extend outside the vertical side lines of such surface locations; but their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downwards as above described through the end lines of their locations so continued in their own direction that such planes will-intersect such exteBJor,. parts of such veins or ledges; and nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claims to enter upon the surface of a claim owned or possessed by another. 55. Where two or more veins intersect or cross each other priority of title nere shall govern, and such prior location shall be entitled to all ore or mineral "
H 78. The holders of such grant shall be entitled to the following rights and vileges, that is to say :— (a) The rights of way through and entry upon any new and unworked river, creek, gulch, or ravine, and the exclusive right to locate and work a strip of ground one hundred feet wide and two hundred feet long in the bed thereof to each individual of the company; (6) The rights of way through and. entry upon any river, creek, gulch, or ravine, worked by miners for any period loriger than two years prior to such entry, and already wholly or partially abandoned, and the exclusfflH right to stake out and work both the unworked and abandoned portionlM thereof, one hundred feet in width, and one-quarter mile in length, for each individual of the company; (c) And no person locating unworked or abandoned ground within the limits of the company's ground, after the notice above mentioned has been given, shall have any right or title as against such company to the ground so located; (d) The words " abandoned ground " shall include new and unworked ground, and ground not legally held and represented; (e) Such rights of way through and entry upon any river, creek, or ravine, discovered within the two years next preceding the date of their application before mentioned, and upon any portions of which four or more free miners are legally holding and bona fide working claims, as to the Gold Commissioner may seem advisable; (f) The rights of way through and entry upon all claims which are at the time of the notice of application before mentioned bona fide worked by any free miners, for the purpose of cutting a channel and laying their flume therein, with such reasonable space for constructing, maintaining, and repairing the flume" as may be necessary: Provided, that the owners of such last mentioned claims shall be entitled to take and receive the gold or other minerals found in the cut so made, but where any advantage equivalent to the cost of making the cut accrues to the claim-holder by reason of such flume being laid through the claim, the bed-rock flume company shall be entitled to the cost of making such cut; (g) The use of so much of the unappropriated water of the stream on which they may be located, and of other adjacent streams, as may be necessary for the use of their flumes, hydraulic power, and machinery to carry on their mining operations, and the right of way for ditches and flumes to convey the necessary water to their works, subject to the payment of any damage which may be done to other parties by running such ditch or flume through or over their ground; (h) The right to all the gold or other minerals in their flumes. 79. The holders of claims through which the line of the company's flumes pany's flume, upon giving the company ten days' notice in writing to that effect 'r but they shall maintain the like grade, and build their flume as thoroughly,, flume and of as strong materials as are used by such company. I.] APPENDIX A.—MINING STATUTES. 585 80. Claim-holders constructing such flumes through their claims shall keep Mineral Act, their flumes free from obstruction, and they shall be entitled to all the gold or 1884. other minerals found therein, but they shall be subject to the same regulations with regard to cleaning up the flume, repairs and other matters in which both Where so con- parties are interested as may be adopted by such flume company; and such s'ru°ted "id claimholders shall have the right at any time before the abandonment of their at)ancloned- claims to become members of the bed-rock flume company, by uniting their claims and flume with the ground and flume of the company, and taking an interest proportionate to that which they shall cede to the company; or they may abandon their claims and flume, and such abandonment shall enure to the use and benefit of the flume company. ; least fifty feet of flume Length of 81. Every bed-rock flume company sha during the first year, and one hundred feet i of the flume. built annus 82. Any free miners lawfully working any claims where a bed-rock flume Free miner exists shall be entitled to tail their sluices, hydraulics, and ground-sluices into entitled to such flume, but so as not to obstruct the free working of such flume by rocks, flume for stones, boulders, or otherwise. tailings. 83. All bed-rock flume companies shall register their grant when obtained, Registratic and pay for such registration a fee of $25; and they shall also pay an annual of grant, rent of $12.50 for each quarter of a mile of right of way legally held by such Rental, company. No re-registration of a grant shall be necessary. - . 84. Bed-rock flumes and any interest therein, and all fixtures connected Declares therewith, are hereby declared to be personal property, and may be sold, mort- flumes, etc gaged, or otherwise dealt with as such. be persona Drainage of Mines. 85. Any free miner, or company of free miners, shall be entitled to run a Tunnel for drain or tunnel, for drainage purposes, through any occupied mining land, upon drainage compensating the owners of such land for any damage they may sustain by purposes. the construction of such tunnel or drain; such compensation, if not agreed on, shall be settled by the Court having jurisdiction in mining disputes, with or without a jury, at the option of either party, and be paid before such drain or tunnel is constructed; and the Court may make such order as may seem just, and such tunnel or drain, when so constructed, shall be deemed to be a part of the claim of the person or persons by whom the same shall have been run | 'or constructed. 86. It shall be lawful for the Gold Commissioner to grant to any free Gold Comm: i miner, company of free miners, or joint stock company, for any term not ex- sioner may ceeding ten years, exclusive rights of way through and entry upon any mining |™v through ground in his district, for the purpose of constructing a drain or drains for the mm;r)g drainage thereof. ' grounds 87. Every application for such grant shall be in writing, and shall state - ' I the names of the applicants, the nature and extent of the proposed drain or ^ mwritins drains, the amount of toll (if any), to be charged, and the privileges sought to De I be acquired. ailar to that required for the right of way Notice to be ing, and upon such c MARTIN'S MINING CASES. [vol. eral Act, 91. The rights of way and entry above mentioned, the power .to assess, levy, 1881. and collect tolls (not exceeding in amount that mentioned in the application) —— from all free miners using such drain or benefited thereby, shall be given to t right* the grantees. The following covenants and conditions on the part of the ^°Wnbv grantees and their assigns shall be deemed to be part of every grant, whether 'rant. expressed therein or not :— nantsand (a) That they will construct such drain itions. meet all requirements within the time (if an (6) And have and keep the same in thorough working order and repair, and free from all obstructions, and in default thereof, that the Gold Com-; missioner may order all necessary alterations or repairs to be made by any free miners, other than the grantees, at the cost and expense of the latter; such cost and expense to be levied by sale (subject, however, to the conditions of the grant j of all or any part of the drainage works, materials and (c) That they will within a reasonable time construct proper tap drains from or into any adjacent claims, upon being requested by the owners thereof, and in default thereof permit such parties to make them themselves, in which case such parties shall only be chargeable with one-half the usual rates of drainage toll, or such other proportion of toll as the Gold Commissioner may direct; (d) That they will not in the construction and maintenance of such drains and tap drains in any way injure the property of adjacent claim- holders, and that they will make good any damage done by them. 92. In the c o be used as tap drains only, thr e days 93. The Court having jurisdiction in mining disputes, or, if desired by either party, with the assistance of a jury of five free miners, may assess the damages (if any) for any injury which may be caused by any such entry or 94. Such grant shall be recorded and a fee of $5 paid therefor, save where such grant gives the grantees the right to collect tolls, in which case the sum of $25 shall be paid as a registration fee. No re-registration of any such grant shall be necessary. An annual rent of $25 for each quarter of a mile, and fraction thereof shall be paid by drain companies collecting tolls to the Gold Commissioner, such rent to commence from the date of their grant. PART VII. Ining Partnerships. l referred to shall be mining and such decide the of the co-partners, or their legally authorized agents, may of working the claims of the co-partners, the number of men to be employed, and the extent and manner of levying the assessments to defray the expenses incurred by the company. Such majority may also choose a foreman or local manager, who shall represent the company, and I.] APPENDIX A.—MINING STATUTES. 1 the name of the ng,snaii.nave power, with the consei by his contracts. The partnership record of their claims. Every co- be entitled to" represent his interest thereof, by work and labour, and factory to the foreman. In the e the foreman, the Court having juris summon the foreman before it, and It shall deem just. any for assessments and otherwise; and ]yr a majority of the company, to bind them i of a company shall be er, or his duly authorized agent, shall Rep te co-partnership property to the extent tic •ng as such work and labour be satis- by of such workman being discharged by in in mining disputes may, if requested, a hearing the facts make such order as 99! ner in any mining company shall, at any meeting thereof, be C< ipon any interest or fraction of an interest which he may hold "V result of the votes -given shall be determined by the number "" sts voted upon and not by the number of co-partners voting at twithstanding anything contained in the preceding' section. he close season no free miner shall be bound to work his claim; t, 1; that any mining company shall have the right to work their artners representing two-thirds or more of the full ___. decide, and, in such event, all the members of the company d tary cases, be responsible for the expenses of such working. se *nts 1 shall be riff to seize -and sell s shall in either of the •ior to the day of sale the Court House nes i-ict, such notices sha of sale, and if any newspaper or other property is situated. ; such sale shall be by publi ring the 1 be giv titled irsonal property of the debt ,' be conspicuously posted up, ten clear nity of such mining or other property, •. But if such debtor be absent from is aforesaid fourteen clear days before published in the district wherein such copy of such notice shall be inserted ii ic auction, and the bidder offering to pay q . , ... t due for the smallest portion of the said property auction possession thereof, and to a bill of sale therefor signed ich bill of sale shall confer such title upon the purchaser ! 103. After a no ice of abandonment in writin g sha 11 h ive «en sei ved on the Eff ctof | foreman of a company, by any member th as a discharge against all debts contrac ed°by "th* ^om pan nent shall operate 7 after service of abandonment. [such notice, and n iban doned without service of such notice. 104. The last s x preceding sections s lall ap Ply 1 0 ev ery mining claim and Ap jlies seo- mineral claim held in fee simple or otherwise. s 98, 99, 100 101:102, Limited Li %bility and 103 to all mining claims. ! 105. Any mining company, composed of two 0 free m ners, may •How liability "limit the liabilities of its members, upon compl ring with the >ments f.il of c o-partner [lowing, that is to ay:— maj be limited Upon filing with the Gold Commis ioner or M g Recorder of the dis 1 trict a declaratc ry statement, containi lg the of the -, the loca may be hel be kept. MARTIN'S MINING CASES. [vol. j tion and size of the claim, and the particular interest of each member* of the company; and also ■ placing upon a conspicuous part of the claim,' in large letters, the name of the company, followed by the word " registered."- After such conditions shall have been complied with, no member of such company shall be liable for any indebtedness accruing thereafter, beyond an amount proportioned to his interest in the company. 1 106. No person shall locate, purchase, or hold less than one-fourth of one- afull interest in any company so constituted. This section shall not apply to mineral claims. 107. Every such mining company shall keep a correct account of its assets and liabilities, together with the names of the shareholders, and the interest held by each, and shall make out a monthly balance sheet shewing the names of the creditors, and the amounts due to each, and file the same among the . papers of the company; and such balance sheet and all the books of the company, shall be open to the inspection of creditors of the company at all reasonable hours. 108. No member of such company shall, after a bill of sale conveying his- interest, or some portion thereof, has been duly recorded, or after he has served a notice of abandonment of his interest on the foreman, and left a copy thereof with the Gold Commissioner or Mining Recorder, be liable for any indebtedness of the company accruing thereafter. 1 dividend until all their liabilities declared. What debts the company is liable for Penalty for 112. The Gold Commissioner or Mining Recorder in each district shall keep a book exclusively for recording all declaratory statements filed in his office, > and another book in which he shall record all notices of abandonment. j. 113. Upon the filing of each declaratory statement a fee of two dollars and fifty cents shall be paid; and upon the filing of each notice of abandonment the sum of one dollar. arporated, though not a free PART VIII. Administration. Deceased min- 115. In case of the death of any free miner, while registered as the holder er's interest. 0f any mining property, his claim shall not be open to the occupation of any other person for non-representation, either during his last illness or after his decease. Power of Gold 116. The Gold Commissioner shall take possession of the mining property Commissioner 0f ^ deceased, and may cause such mining property to be duly represented, or to deal with dispense therewith at his option, and he shall sell the property by private same. ^^ Qr ajter ten ,jayS' notice thereof by public auction, upon such terms as he shall deem just, and out of the proceeds pay all costs and charges incurred thereby. Custody of U7, The Gold Commissioner, or any person authorized by him, shall take property of de-charge of ajj tne property of deceased miners until the issue of letters of ad- cease miner. minjstration or probate of the will, if any. —J APPENDIX A.—MINING STATUTES. 589 118. All grants under this Act for any mining ground, other object, shall be in writing, in the form of a lease t Gold Commissioner, and by the grantees or lessees. writing. expressed in this Act, the following clauses Except otherwise expressed Applications for leases, accompanied by a plan of the proposed under- applications taking, are to be sent in duplicate to the Gold Commissioner of the district m„st be in wherein the ground desired to be taken is situated, who shall immediately duplicate, forward it, with his report, to the Lieutenant-Governor for his sanction, excepting in cases' where the lease does not exceed five years, but the ground shall be secured to the applicant until the Lieutenant-Governor's decision has been received. Prior to such application, the ground applied for shall be marked out by posts of the legal size, and written notice of application, signed by the applicant, shall be affixed to any post nearest to mining claims then being worked. A copy of such notice shall also be put up at the Gold Commissioner's office. a. longer term than ten years, Leases for ten In dry diggings, ten a In bar diggings unw< srked and abandoned, | 121. Leases as above will not be granted of any land or alluvium which will ] 8 considered to be immediately available for being worked by free miners as 1 holders of individual claims, nor will such a lease be granted in any case where 1 individual free miners are in previous actual occupation of any part of the < premises, unless by their consent. Leases may be renewed, if deemed advisable, J by the Lieutenant-Governor in Council. seMin 122. Every such lease shall, without expressing the ss mtain a reservation of all rights of the Crown, and all for securing to the public rights of way and water, save I necessary for the miner-like working of the premises de I shall be granted for mining purposes only, and it shall no I lessee to assign or sub-let them without the previous lice | Gold Commissioner. Every lease shall I mine the said premises in a miner-like v I to perform the works therein defined v te, be understood to Reservation of easonable provisions rig'ats of the a so far as shall be Crown underused. The premises stood.also pub- be competent to the uo ways> etc. :e in writing of the Not to assign ,<wit by the lessee to without id also if it shall'be thought fit, lloeu°e- a time therein limited. And it a by 123. The Gold Commission I tioned, grant to any person, f I to divert and use the water f | thereof, and the rights of wa " is district, for the purpos Ditches. r may, upon the application hereinafter men- Gold Commis ■r any term not exceeding ten years, the right sioner may om any stream or lake at any particular part grant ditch through and entry upon any mining ground privileges for : of constructing ditches and flumes to convey ten years- Twenty days' MARTIN'S MINING CASES. - [VC« such water: Provided always, that every such grant shall be deemed as appur-; tenant to the mining claim in respect of which it has been obtained, and when-'. ever the claim shall have been worked out or abandoned, or whenever the1' occasion for the use of the water upon the claim shall have permanently ceased,? the grant shall be at an end and determined. The grantee shall, during each year of the continuance of the grant, and whilst it shall be in operation, record the same as in the case of an ordinary mining claim. 124. Twenty days' notice of the application shall be given, by affixing the- ame to some conspicuous part of the ground, and a copy thereof upon the waliSgi f the Gold Commissioner's office; and any free miner may protest within such twenty days against such application being wholly or partially granted. • 125. Every application for a grant of water, exceeding three hundred inches^ shall be accompanied by a deposit of $25, which shall be refunded in case the- application shall be refused by the Government. J- 126. Every such application shall be in writing, and shall state the names 1_ of the applicants, the name of the stream or lake to diversion or ditch-head, the quantity of water to be distribution, and the price (if any) to be charged for the time necessary for the completion of the ditch. ted. the point of Applic. . may be refused n or modified. Grants to be 128. Every grant of water privilege on occupied creeks shall be subject iST subject to free the right of such registered free miners as shall, at the time of such grant, be- miners' rights, working on the stream above or below the ditch head, and of other persons lawfully using such water for any purpose whatsoever. Certain pro- 129. If, after the grant has been made, any free miner or miners locate portion of and bona fide work any mining claim below the ditch head, on any stream so water allowed diverted, he or they shall collectively be entitled to forty inches of water if two to miners free, hundred inches be diverted; and sixty inches if three hundred inches be diverted, and no more, except upon paying to the owner of the ditch, and all other persons interested therein, compensation equal to the amount of damages sustained by the diversion of such extra quantity of water as may be required; and, in computing such damages, the expense of the construction of the ditJ**"P: the loss sustained by any claims using water therefrom and all other reasonajlej- losses, shall be considered. Compensa speculative ' purposes prohibited. Construction of the works tc be prosecuted 130. No person shall be entitled to a grant of water of any si purpose of selling the water to present or future claimholders on such stream. The Gold Commissioner may, however, grant such he may deem just, when such ditch is intended to work bench ( fronting on any such stream; provided, that the rights of free using the water so applied for be protected. 131. Within sixty days after the grant is made, the grantee sh excavation or construction of the works in which he intends 'ey the water, and shall prosecute the work diligently and ur ^ to completion, except in so far as the Gold Commissioner may al of the work. If any grantee shall not comply with this section h cease and be determined. y 132. Persons who have heretofore obtained grants of water a '" not constructed works in which to divert and convey it, and v « diverted or applied it to some useful purposes, must after this Act and within six months thereafter, proceed as in the last precedi provided, or their right ceases. !•] APPENDIX A.—MINING STATUTES. 133. Every owner of a ditch or water privilege shall take all reasonable m means for utilizing the water granted to him; and if he wilfully take and waste any unreasonable quantity of water, the Gold Commissioner, if such offence be persisted in, may declare all rights to the water forfeited. Wa 134. The owner of any ditch or water pr such persons and on such terms as he may mentioned in his application : Provided alwt to supply water to all applicants, being fr Shall not demand more from oi of supply is enhanced. ege may distribute the water em advisable, within the lin that such owner shall be bound {** 5 *.icc miners, in a fair proportion, and j than another, except where the difficulty 135. Any person desiring to bridge any stream, claim, or other any purpose, or to mine under or through any ditch or flume, or to ca through or over any land already occupied, may, in proper cases, d< the written sanction of the Gold Commissioner. In all such cases, th the party first in possession, whether of the mine or of the water pr to prevail, so as to entitle him to compensation if the same be just. 136. In measuring water in any ditch or sluice, the following rules shall be R, observed:—The water taken into a ditch or sluice shall be measured at the m< ditch or sluice head. No water shall be taken into a ditch or sluice except in a trough placed horizontally at the place at which the water enters it. One inch of water shall mean half the quantity that will pass through an orifice two inches high by one inch wide, with a constant head of seven inches above the upper side of the orifice. 137. Whenever it shall be intended, in forming or upholding any ditch, to enter upon and occupy any part of a registered claim, or to dig or loosen any earth or rock, within four feet of any ditch not belonging solely to the registered owner of such claim, three days' notice in writing of such intention shall n! be given before entering or approaching within four feet of such other property. S- 138. Any person heretofore or hereafter engaged in the construction of any Livertin? road or work may, with the sanction of the. Gold Commissioner, cross/divert, otherwise interfere with any ditch, water privilege, or other mining rights ditche whatsoever, for such period as the said Commissioner shall direct. 139. The Court having jurisdiction in mining disputes shall order what The cc compensation for every such damage or interference shall be paid, and when, settle o I and to whom, and whether any and what works damaged or affected by such sation t interference as aforesaid shall be replaced by flumes or otherwise repaired by the person or persons inflicting any such damage. 140. Upon compliance with the requirements aforesaid, the Gold Commis- q0\^ c, i sioner shall certify in writing that the persons named therein were duly author- sioner i j ized to create the damage or interference aforesaid, and have duly fulfilled the i requirements herein mentioned, and have also duly satisfied and discharged all ! claims in respect of the damage or interference referred to. | 141. Every such certificate shall be recorded by the Mining Recorder in a 0ertifi( I book to be kept by him for that purpose, which shall be at all times open to be reco ! inspection upon payment of a fee of one dollar for each inspection. ■ 142. Every certificate so recorded shall be sufficient evidence in any Court Act of Judicature of all matters and things therein contained or referred to, and su1 | shall discharge the person or persons to or for whom the same is granted from lat ' all liability with respect to the damage or interference therein mentioned. ! 143. The Court having jurisdiction in mining disputes shali,_ upon the appli- M cation of any party interested therein, and after m " concern, enquire into and decide all matters arising r connected with ingi MARTIN'S MINING CASES. ct, any such damage or interference as aforesaid, and such decision shall be final and without appeal, in all cases where such decision shall be given in respect of any sum or matters at issue, the amount or value whereof, which shall be stated in the decision, shall not exceed five hundred dollars. 11 144. Where such amount or value shall exceed five hundred dollars, any party aggrieved by such decision may appeal against the same in the manner provided in Part I. of this Act. e 145. The owners of any ditch, water their own expense, construct, secure, and s the passage of waste and superfluous watt ditch, water privilege, or right. 146. The o dlege, or mining right, shall, at all culverts necessary for flowing through or over any such Construction 146. The owners of any ditch or water privilege shall construct and secure and repair of the same in a proper and substantial manner, and maintain the same in good ditches. repair to the satisfaction of the Gold Commissioner, and so that no damage shall occur to any road or work in its vicinity, from any part of the works of such ditch, water privilege, or right. Damages to be 147. The owners of any ditch, water privilege, or right, shall be liable and made goad by shall make good, in such manner as the Gold Commissioner shall determine, all -owners. • damages which may be occasioned by or through any parts of the works of such ditch, water privilege, or right breaking or being imperfect. 148. If any written notice to the party intended to be affected thereby be posted for ten days on some conspicuous part of any premises referred to in such notice, and also in the office of the Gold Commissioner, such notice shall be deemed good and sufficient. 149. Nothing herein contained shall be construed to limit the right-''OflgHk- Chief Commissioner of Lands and Works to lay out, from time to time, the public roads of the Province, across, through, along, or under any ditch, water privilege, or mining right, in any Crown land, without compensation, provided that as little damage as possible shall be done in so doing. PART XI. Penal Clauses and Clauses of Indemnity. 150. Any person wilfully acting in contravention of this Act, or veiaJMJt is to obey any lawful order of the Gold Commissioner or of any Judge presiding in e the Court having jurisdiction in mining disputes, shall on conviction thereof before him be liable, in the discretion of such Gold Commissioner or Judge, to ,v a fine not exceeding two hundred and fifty dollars, or to imprisonment for any term not exceeding three months. if 151. All fines and penalties imposed or recovered by distress and sale of any mining offender. T be the s collected under this Act shall be paid into is existing 153. Nothing herein contained shall, save where such intention is expressly ■ -~\is. stated, be so construed as to affect prejudicially any mining rights and interests acquired prior to the passing of this Act; and all mining rights and privileges heretofore and hereunder acquired shall, without the same being expressly stated, be deemed to be taken and held subject to the rights of Her Majesty, Her heirs and successors, and to the public rights of way and water. 154. This Act may be cited for all purposes as the " Mineral Act, 1884." APPENDIX A.—MINING STATUTE! i and with the advi iritish Columbia, i first instance Coj 3. And for the avoidance of any doubt it is hereby declared that the Gold Goid oommjs. any Judge having jurisdiction in mining causes, may direct sioner may ' | the issuing of writs of capias ad respondendum, ne exeat regno, and cap'i [ satisfaciendum in all cases in which by law he has jurisdiction over the sub- and other liki [ject-matter of the suit, but under such and subject to such conditions as a writs. [Judge of the Supreme Court might usually require in applications of a similar [ 4. The Court having jurisdiction in mining causes shall also have juris- jyr;nin~ Court [diction to entertain and adjudicate upon any and all personal claims or dis- to try all min- [putes arising within the jurisdiction of such Court between persons engaged ing disp [in mining, and in respect of supplies furnished to persons engaged in mining. " Mineral Act, 1884 6. Section 62 of the said Act i hereby amended, right to " Any free miner desiring to acquire a right to mine any lands for minerals, gjze form an(j s above defined, shall, subject to the provisions of this Act with respect to locating of [and which may be used for mining, enter upon the same and locate a plot of mineral claims ground 1,500 feet long by 600 feet wide, as nearly as possible in- rectangular form; such plot of land shall be described and recorded as a mineral claim, find all the provisions of the ' Mineral Act, 1884,' relating to ordinary mining lianas shall, when the same are applicable, apply to mineral claims." Section 68 of the said Act is hereby amended by (d) the words " one thousand" and substituting in lieu thereof the five hundred." " Any free miner hi e entitled to hold the , provided. that I [ 8. Section 72 of the said Act is hereby repealed, and instead thereof the [ollowing is enacted:— ; duly recorded and located a mineral- claim shall Annual expen- i for the period of one year from the recording of diture of $100 within the first three months from such recording in money or fc shall have expended upon the claim itself money or labour to the amount or labour, [ilue of one hundred dollars, and shall have satisfied the Gold Commissioner E such expenditure, and obtained from him and recorded within such t lonths a certificate of such expenditure. If the certificate shall not be so litained and recorded the claim shall be deemed vacant and abandoned; and ^ertificate [t like manner as to each succeeding year the holder of the mineral claim shall ^^d I entitled to hold the same for one year from the re-recording of the s I he shall expend within the first three months from such re-recording money MINING CASES. tificate. Amends i . or labour upon the claim to the amount or value of one hundred dollars, to the i t, satisfaction of the Gold Commissioner, and shall have obtained and recorded J within such three months a certificate of such expenditure." 9. The Gold Commissioner, for the purpose of granting any such certificate,, j r or the laying over of any claim, may act upon declarations made before any < Justice of the Peace, Notary Public or Mining Recorder, or before himself. ieof lers of 11. In cases where the holders of two or more mineral claims upon the same | i on same lode desire to unite for the purpose of prospecting one of such claims, the Gold may unite Commissioner may, in his discretion, lay over the other mineral claims for SS£f°u 6ucn time and uP°n sucn conditions as he may think fit, but the work or money i be done or expended on the one claim shall not be applicable in any manner | to the claims laid over. title 12. This Act- mnv ho pited as the " Mineral Amendment Aet. IKSfi." 1. Section 120 of the " Mineral Act, 1884," t the end of the said section, the following wore " In creek claims on abandoned creeks, one m ia, enacts as follows •<-**& s hereby amended by adding,: 2. Section 1 9 of the "Provided alw iys that, 3. The section substituted by the " Mineral Am • 72 of the "Mineral Act, 1884," is hereby amendt " three," wherever the same occurs in the said sec for the word " six." ment Act, 1886," ftfr"sec. iy striking out the word , and substituting there-1 MARTIN'S MINING CASES. Division into Parts. 3. This Act shall be divided into eleven parts:— The first part relating to some of the powers of Gold Commissioner to County Court jurisdiction in mining cases and appeals; The second part to free miners and their privileges; The third part to the registration of claims and free miners' general 1 The fourth part to the nature and size of claims, including mineral c The fifth part to bed-rock flumes; . The sixth part to the drainage of mines; The seventh part to mining partnerships and limited liability; The eighth part to administration of the mining property of de The ninth part to leases; The tenth part to ditches; The eleventh part to the penal and miscellaneous clauses. 1884, ch. 10, t Powers of Gold Commit and Appeals. Gold Commis- . The Lieutenant-Governor in Council may from time to time appoint suijjp >ns as he shall think proper to be respectively Chief Gold Commissioner inted by and Gold Commissioners, either for the whole Province or for any particular jieuten- districts therein, and from time to time in like manner fix and vary the limits it-Governor. 0f ana sub-divide such districts, and make and revoke all such appointments. R. L. No. 90, sec. 4. Mining Courts 5. Within every such district or districts there shall be a Court to be in each district called the "Mining Court," in which the Gold Commissioner of the district 3E8TI preside as Judge thereof. R. L. No. 90, sec. 5. Jurisdiction of 6. Such " Mining Court" shall have original jurisdiction as a Court of Gold Commis- Law and Equity, to hear and determine all mining disputes arising within its j district, and shall be a Court of Record with a specific seal; and in deter- : mining suits or actions brought therein, the Gold Commissioner may render such judgment, or make such order or decree as he shall deem just, and for the purposes thereof and for enforcing the same he shall have and exercise, j save as hereinafter excepted, the same powers and authority, legal and equit- ] able, as are now exercised in the Supreme Court by any Judge thereof; pro- j vided, however, that the Gold Commissioner shall, if desired by both parties to a cause in eases of liquidated damages, or if desired by either party to a cause in cases of unliquidated damages, summon a jury of from three to five free miners, to assess the amount of such damages. R. L. No. 90, sec. 6. j within the limits leges of a Mining ning jurisdiction, . preside ' of the : sry County Court shall e strict all the jurisdiction ind such jurisdicti r be ( ively have and e istinguished as t-ized t County Court shall, in the exercise of such mining jurisdiction, have the like powers and authorities as may be exercised by any Gold Commissioner sitting as a Judge of a Mining Court. All proceedings in mining causes brought before a County Court shall, as far as practicable, be similar to the proceedings had and taken in a Mining Court; but all summonses, vj or other process, and all papers or other documents in the mining cause i tuted in a County Court shall be intituled in the said Court and have the words " Mining Jurisdiction " written or printed thereon. The Judge of any MARTIN'S MINING CASES. h 18. The Gold Commissioner shall have the power to summarily order mining works to be so carried on as not to interfere witk or endanger safety of the public, any public work or highway, or any mining property, r eral claims, mining claims, bed-rock drains, or bed-rock flumes; and ibandoned works may by his order be either filled up or guarded to his sa faction, at the cost of the parties who may have constructed the same, or their absence, upon such terms as he shall think fit. 1884, ch. 10, sec. 8. u, M. It shall be lawful for the Gold Co to mark out for business purposes or gardens, on or neai not previously pre-empted, a plot of land of such size a visable, to be held subject to all the rights of free miner use such lands for mining purposes, upon reasonable notici to the occupied, such notice to be subject to the approvt missioner; and, further, upon the payment of due compen thereon, and for the buildings and improvements erected compensation to be assessed by the Gold Commissioner pr< or without a jury of not less than three. A monthly rent e be payable by the grantees of such plo any 1 Coi R. L. No. 90, i . 13. requested, ■ng ground., i he shall deem ad- to enter upon and', to quit being given in such plots; sucW vious to entry, *$&& of five dollars shall , or their assignees, beyond i teeming mining property, portions whereof are t districts, the Gold Commissioner of either of dispute is first brought shall determine it. R. ing Court nc to be def erre Prescribed the The hearing of 8 shall not be deferred beyond the shortest reasonable t terests of all parties concerned therein. 1884, ch. 10, se 22. No prescribed form shall be necessary, provided that the substanc§§gj|; . the matter complained of be properly expressed in writing and embodied in a sary. summons to be issued from the Court, and served on the opposite party, or as may be directed; and such summons may, by leave of the Gold Commissioner, be amended, if requisite, by either party upon such terms as he may impose, and the sum of ten dollars shall be charged for every summons so issued. R. L. No. 90, sec. 7. Questions to 23- fn a*l mining actions or suits, the Judge of the Court having jurisdic- be decided tion in mining disputes shall, when practicable, decide the question at issue upon ground upon the ground in dispute, and such decision shall be entered as in ordinary in dispute. cases, and have the same virtue and effect as if rendered in Court. 1884, ch. g the 5 1886, ch. 14, sec. e be borne by the party 26. The attendance of jurors and a County Court, or in the Mining Court, r to the practice of the County Court, and such jurors titled for their attendance to receive such compensat rect. 1884, ch. 10, sec. 11. 27. Any Judge of the Supreme Court may, with the advice and consen of | the Gold Commissioner of any particular district, from time to time m ke, repeal, and alter any rules and regulations for the-conduct of the business^ fore such Gold Commissioner, and for the costs incident' thereto. R 1 No. 90, sec. 14. PENDIX A.—MINII 28. Where any mining cause recovered shall be less than two instance before the Suprem after issue joined, to direct the c missioner, upon such terms s ..„„.. Stat. r dollars, is brought in the Min. Act, 1888 e lawful for the Court, fore any particular Gold Causes under hink fit. R. L. No. 90, *250- 29. An appeal shall lie from any judgment of a Mining Court Cojmty Court in a mining cause to the Supreme Court at Victoria, s Trull Court. The appellant shall, within ten days from the date judgment, give notice of the appeal to the other party, and also give s ;o be approved of by the Judge of the Court appealed from, for the costs of ippeal, and for fulfilling any orders which may be made in the course of such appeal by the Supreme Court; and the said Supreme Court may either order a new trial on such terms as it shall think fit or order judgment to be [entered for either party, or try the case de novo, and make such order as to costs as may be deemed proper. The appeal may be in the form of a ( j settled and signed by the parties or their solicitors; and if they car ithe Judge of the Court appealed from may settle and sign the same upon (being applied to by the parties or either of them: Provided, that in the electoral district of Cariboo the appeal shall lie to a Judge of Assize and Nisi Appeals ii Prius, and if either party be dissatisfied with his decision he may appeal there- Ca J' from to the Supreme Court at Victoria, sitting as a Pull Court, upon giving, "it within four days from the decision of the Judge of Assize, notice of appeal to the opposite party, and, within ten days from such decision, or within such delay as such Judge may allow or as may be allowed by the Appellate Court, furnishing such security in the matter of the appeal as the Judge of Assize may direct. 1884, ch. 10, sec. 12. ). Appeals from the decision on mining questions of any Judge of the Appeals [Supreme Court, when presiding in a County Court, shall be allowed as in County [n-dinary cases of appeals from County Courts, or as may be provided by Courts, [•ules for regulating the practice and procedure of the Supreme Court. 1884, r Mining Recorder, and in the following form :- BRITISH COLUMBIA. ontracted in connection therewith, be treated Free n I k under age to °- be treated as , „ adults. s hereinafter mentioned any such person shall Minerg. „ :ertificate signed by a Gold Commissioner tificate. Incorporated companies may be free Certificate to be granted and records made to be in MARTIN'S MINING CASES. [vol. 33. Any company incorporated under any law in force in this Province 18 relating to joint stock companies shall be entitled to all the rights and privileges ' -, upon taking out a free miner's certificate. 1884, ch. 10, sec. 17. . 10, s 18. three years Not transferable. Lost 34. The free miner's certificate to be granted to a company shall be issued in its corporate name, and every leave of absence or record of mining interests, or other mining property held by the company, and every transfer and record thereof, shall be given or made in the corporate name of the company. 1884, n ch. 10, sec. 18. 35. A free miner's certificate may be granted for one year, or three years, from the date thereof, upon the payment therefor of five dollars for one year, and fifteen dollars for three years. A certificate shall not be transferable, and. only one person shall be named therein. 1884, ch. 10, sec. 20. 36. If such certificate be accidentally destroyed or lost, the owner thereof may, on payment of two dollars and fifty cents, have a true copy of it, signed by a Gold Commissioner or Mining Recorder, Every such copy shall be marked '-' substituted certificate." And unless some material irregularity be shewn in i respect thereof, every original or substituted free miner's certificate shall be j evidence of all matters therein contained. 1884, eh. 10, sec. 21. x 37. Every free miner shall, during the continuance of his certificate, but j not longer, have the right to enter and mine upon any waste lands of the Crown, '• not for the time being lawfully occupied by any other person. And may also, j during the continuance of his certificate, enter upon any Crown lands, or lands j covered by timber leases, to cut timber for mining purposes. 1884, ch. 10, sec. 22; 1888, ch. 34, sec. 13. n 38. In the event of such entry being made upon lands already occupied for other than mining purposes previously to entry, full compensation shall be made to the occupant or owner for any loss or damages he may sustain by reason of any such entry, such compensation to be determined by the Court having jurisdiction in mining disputes, with or without a jury of not less than five. 1884, ch. 10, sec. 23. Mining in- 39. No person shall be recognized as having any right or interest in c ierests, etc., any mining claim, mineral claim, or any minerals therein, or in or to )nly acquired mining ditch, unless he shall be, or in case of disputed ownership unless he iy free miners. shall have been at the time of the dispute arising, a free miner. 1884, ch 10, | Miners, etc., 40. No person shall be entitled to recover any without certi- as a miner in any mining claim or mineral claim ticate cannot bed-rock drain, or ditch, unless he has had a free m recover wages. 0j ^ne performance 0f such labour. Every pers minerals (other than coal) shall take out a free r 10, sec. 25. rages for labour performed or on any bed-rock flume, j aer's certificate at the ti n engaged in mining for tner's certificate. 1884, ch. Regi of Claims and Fr. Min aral Rights 41. Every free miner locating a mining claim or mineral claim must record l the same with the Gold Commissioner or Mining Recorder of the district within which the same is situated, within three days after the location thereof, if located within ten miles of the office of the said Gold Commissioner or Mining j Recorder. One additional day shall be allowed for such record for every addi- j tional ten miles, or fraction thereof. Such record shall be made in a book to ] be kept for the purpose, in which shall be inserted the name of the claim, thei 1 . APPENDIX A.—MINING STATUTES. 601 name of each locator, the number of his certificate, the locality of the mine, Qonsol Stat the date of his recording the same, and such other matters as may be deemed Min. Act, 1888 requisite by the Gold Commissioner or Mining Recorder. 2. If a free miner, or any person applying for a free miner's licence, makes Application in application at the Recorder's office during his absence and leaves the fee absence of required by this Act with the officer in charge of said office, he shall be Recorder, entitled to have a licence or record from that date. 1884, ch. 10, sec. 27; 1888, ch. 34, sec. 12. 42. The Lieutenant-Governor in Council may appoint any person to be a Mir Mining Recorder in and for any part of the Province, for the purpose of issuing Ree free miner's certificates and entering mining records; and the certificates and records issued and made by such Recorder shall be as valid as if issued and made by a Gold Commissioner. Every Mining Recorder shall forward to the Gold Commissioner, if any, of the district within which the Mining Recorder shall discharge his duties, the transcripts of the records made by the Mining Recorder, as soon as practicably may be after the making of the same. 1884, ch. 10, sec. 19; 1887, ch. 22, sec. 2. 43. Where auriferous land is discovered in a part of the Province so situated Un< that the provisions of this Act as to free miners' certificates and records of ci'.'° mining property cannot be justly applied or enforced by reason of there being mln no Gold Commissioner or Mining Recorder in the locality, it shall be lawful for "*{ the miners of such locality to hold meetings at such times and places as may j^ec be agreed upon, and at such meetings, by a tworthirds vote, to make rules consistent with this Act for their good government, and to appoint one of their number to issue free miner's certificates and to enter records of mining property ; and such certificates and records shall be valid notwithstanding any informality therein. 1884, ch. 10, sec. 28. 44. The Gold Commisi ■ 45. Every free r company of fre and every " leave of absence" may contain all the inte representation. Two dollars and fifty cents shall be chai of absence" and for any bill of sale or other document 1884, ch. 10, sec. 34. 46. All claims, not being real estate, must be recordei free miner may record his claim for a period of two or m ment of two dollars-and fifty cents for each year included ii ch. 10, sec. 29. :. 35. inst 48. Every copy of, or extract from, any record in the said books, certified Cer to be a true copy or extract by the Gold Commissioner or Mining Recorder, trac shall be received in any Court as evidence of the matters therein contained, fr01 and the sum of fifty cents shall be charged for each copy or extract so certified. 9™ 1884, ch. 10, sec. 36. 49. Eve - bill of sale of a MARTIN'S MINING CASES. Priority of rights recognized aqeord- er of such bill of sale shall wilfully neglect or refuse so to do, he ble to such fine not exceeding fifty dollars, as any Gold Commissioner 1884, ch. 10, sec. 37. ;ase of any dispute, the title to claims will be recognized according - i-ity of their registration, subject to any question as to the validity rd itself, and subject further to the terms, conditions, and privileges n sec. 41 of this Act. 1884, ch. 10, sec. 31. Transfers of 51. No transfer of any mine! claims to be shall .be enforceable unless the s enforced must writing signed by the transfers ^dre=egd.^tered 'with the Gold Comm T other claim, or of any interest therein, or some memorandum thereof shall be in r by his agent authorized in writing, and . ner or Mining Recorder. 1884, ch. 10, quired under the Gold, etc Mining Acts. of any real estate acquired under the provisions of the udment Act, 1873," or under this or any Act relating to coal, shall be in writing, signed by the transferrer or his d need not be by deed or under seal. 1884, ch. 10, sec. 33. dner shall be allowed to hold at the same time, any number y purchase, but only two claims by pre-emption in the same eafter provided, viz.:—One hill claim and one other claim; the laws as to record, occupation, and otherwise, for the And every free miner may sell, mortgage, or dispose of i also be entitled, in addition to the above, to hold a preach (but not on the same) hill, creek, ravine, or bench. ; 1888, ch. 34, sec. 14. erest of a free miner in le deemed to be a chattel ame may have been recot conditions as to forfeitur for the time being in fort equ hall, save as to claims held alent to a lease, for such > at the end thereof, and iresentation, registration, to claims. 1884, ch. 10, a 55. Every free miner shall, during the continuance of his certifieate.-'lKjjK 3 the exclusive right of entry upon his own claim, for the miner-like working thereof, and the construction of a residence thereon, and shall be entitled exclusively to all the proceeds realized therefrom: Provided that his claim be duly registered and faithfully and not colourahly worked; but he shall have nfl surface rights therein: Provided also, that the Gold Commissioner may, upon application made to him, allow adjacent claim-holders such right of entry thereon as may be absolutely necessary for the working of their claims, and upon such terms as may to him seem reasonable. 1884, ch. 10, sec. 40. 56. In addit: i to t thereof. 1884, ch. 10, sec above rights, every registered free miner shall be uch of the water naturally flowing through or past lawfully appropriated, as shall in* the opinion of the 7 for the due working 57. No claim located and recorded i oefore, or at any time after the claims th ensuing season, or other specific date, sha so much work shall have been bona fid opinion of the Gold Commissioner, fairlj >ver. 1884, ch. 10, sec. 42. any district within fourteen days ein shall have been laid over to the be deemed to be so laid over, unless expended thereon as shall, in the mtitle him to have such claim laid When claims 58. A claim shall be deemed to be abandoned and open to shall be deem- any free miner when the same shall have remained unworke •ed abandoned, by the registered holder thereof for the space of seventy sickness or other reasonable cause be shewn. 1884, ch. 10, s e occupation of i working days > hours, unless Creek claii Bench clai " Creek claims ?' shall be one hundred feet long, met of the general course of the stream, and shall extend : base of the hill or bench on each side, but when the hi than one hundred feet apart the claim shall be one hui " Bench claims " shall be one hundred feet square. " Mineral claims," that is, claims containing or claims. Discovei claims. fore granted and duly recorded to be narrow, to define adequate claims in such manner as he shall think fit. 1884, ch. 10, sec. 51. 69. Every claim on the face of any hill, and fronting on any natural stream' or ravine, shall have a base line or frontage of one hundred feet, drawn parallel to the main direction thereof. Parallel lines drawn from each end of the base line, at right angles thereto, and running to the summit of .the hill, shall constitute the side lines thereof. Posts of the legal size shall be planted, one hundred feet apart, on both the base line and side lines. The whole area included within such boundary lines shall form a "hill claim." 1884, ch^i^J 70. In tunnelling under hills, on the frontage of which angles occur, or which- may be of an oblong or elliptical form, no party shall be allowed to tunnel from any of the said angles, nor from either end of such hills, so as to interfe^S?. with parties tunnelling from the main frontage. 1884, ch. 10, sec. 53. i 71. The Gold Commissioner shall have power to refuse to record any hill 3 claim on any creek, which claim or any part thereof shall include or come within one hundred feet of any gulch or tributary of such creek. 1884, ch^fST sec. 54. 72. If any free miner, or party of free miners, shall discover a new mine, and such discovery shall be established to the satisfaction of a Gold Commissioner, claims of the following size, in dry, bar, bench, creek, or hill diggings, shall be allowed, viz.:—■ To one discoverer 300 feet in length. To a party of two discoverers 600 do do To a party of three discoverers 800 do do To a party of four discoverers 1000 do do And to each member of a party beyond four in number, a claim of the ordinary size only. a A new stratum of auriferous earth or gravel situated in a locality where the i claims are abandoned, shall, for this purpose, be deemed a new mine, although the same locality shall have been previously worked at a different level; anSp diggings discovered in the vicinity of bar diggings shall be deemed a new mine, and vice versa. A discoverer's claim shall be reckoned as one ordinary claim. ' (a) Creek discovery claims shall extend 1,000 feet on each side of the centre of the creek or as far as the summit; (6) Any discovery claim heretofore granted and duly recorded and held under terms or conditions similar to those herein provided for discovery claims, shall be deemed to have been lawfully granted and held; (c) Notwithstanding anything to the contrary, the, provisions as to 3 mining claims being increased in size by reason of their being discovery J n APPE JDIX A.—MINUS STATUTES. 605 1888 ^l3^LCY1I!f' eXC6pt1 aS &fe»* Provided, shall be as nearly as possible Consol. Stat, rectangular in form and marked by four pegs, at least four inches square, Min. Act standing not less than four feet above the surface and firmly fixed in the ground. noved without the previous permission Marking ty be used as a stake, provided that it claims, nd the stump squared as above. 1S84, ch. 10, s j 58; 1888, . 34; sec 74. In defining the ■ Min 75. Any free miner desiring to acquire a right to mine any lands for minerals, Sizi as hereinbefore defined, shall, subject to the provisions of this Act with respect loci to land which may be used for mining, enter upon the same and locate a plot niir of ground 1,500 feet long by 600 feet wide, in the form of a rectangular parallelogram; such plot of land shall be described and recorded as a mineral claim and all the provisions of this Act relating to ordinary mining claims shall, when the same are applicable, apply to mineral claims. 1886, ch. 14, sec. 6; 18S8, ch. 34, sec. 16. 76. Such mineral claim shall, notwithstanding any provisions of this Act, Marking out be marked by three posts of the size and height prescribed by this Act, placed claim, at equal distances from each other along the centre line, and any tree or stump which will answer the purpose may be used in lieu of posts. On each post, stump, or tree there shall be placed a legible notice in writing, stating the name (if any) of the claim, its length in feet, and the direction of the centre line, with the date of the notice and name of the claimant of the ground. 1884, ch. 10, sec. 63. 11. The lawful holders of mineral claims shall have the exclusive right and Claim-holder possession of all the surface included within the lines of their locations, and of entitled to all veins, lodes, and ledges throughout their entire depth the top or apex of veinsi> etc., which lies inside of such surface lines extended downward vertically, although "^ ? ,• such veins, lodes, or ledges may so far depart from a perpendicular in their of'the claim163 course downwards as to extend outside the vertical lines of such surface locations ; but their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn | downwards, as above described, through the end lines of their locations so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges; and nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claims to enter upon the surface of a claim owned or possessed by another. 1884, ch. 10, sec. 64. 78. Where two or more veins intersect or cross each other, priority of title Rights of par- shall govern, and such prior location shall be entitled to all ore or mineral ties where contained within the space of intersection: Provided however, that the subse- veins intersect quent location shall have the right of way through the said space of intersection or cross eMCh for the purpose of the convenient working of the said mine; and provided, also, Aer ln elr that where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection. 1884, ch. 10, sec. 65. 79. Where a tunnel is run for the development of a vein or lode the owner of such tunnel shall, in addition to any mineral claim legally held bv him, have the right to all veins or lodes discovered ground containing such veins or lodes be marked out by him "in three days after such discovery, and be duly recor I further, that such lodes or veins are not included in any exis As to tunnels irai Claim legally ueiu uv mm, nave , . r i such tunnel: Provided that the ™ "Tlode MARTIN'S MINING GASES. not to hold more than on claim on the ted. ;n (-he following n (a) Upon 'iling in the Land Office of the situate an application for such grant, shewing lode has been found or exists within the limits cant is holder and in undisturbed possession a plat and field-notes of the claim, made by a s tions from the Chief Commissioner of Lands a ately the boundaries of the claim, which sh r by posts placed at the angles or (6) Upon posting a copy of sucl application for a grant, on a conspicuoi plat, previous to the filing of the applic (d) The Government Agent of the district shall theret published, at the cost of the applicant, a notice of the appl days in the British Columbia Gazette, and in any nev circulating in the district, and he shall also post such notict the same period. The applicant, at the time of filing his a any time within the sixty days of publication, shall also fi Government Agent a certificate of the Gold Commissioner o of an Assistant Gold Commissioner, or, if there be none, i Judge of a Court having jurisdiction in mining disputes (i such evidence thereof as he may think fit), that a sum of fivt has been Bono fide expended in money or labour upon th applicant, or by others under whom he lawfully claims, and will identify the claim and accurately describe the land to b Crown grant. At the expiration of the sixty days the ap to the issue of a Crown grai applicant has failed to complj sec. 68; 1886, ch. 14, sec. 7. NDIX A.—MINING STATUTES. . , „., ...... ^..c,v^ w. \jv\x, ui L11C L'UJteU IMllgtlOIll OI Ireland, Queen, Defender of the Faith. To all to w • shall come, Greeting \ Know ye, that We do by these presents, for Us, Our heirs and in consideration of (the fulfilment of the conditions of the laws pr the acquisition of minerals other than coal), give and grant unto h heirs and assigns, All that parcel or lot of land situated and numbered on the official plan or survey of the said To have and to hold the said parcel of land, and all minerals, precious and (save coal), which may be found therein, unto the said h heirs and assigns for ever: Provided that it shall at all times be lawful for Us, Our heirs and or for any person by Our authority, to resume any portion (not exceeding twentieth part) of the said lands for making roads, canals, bridges, tov paths, or other works of public utitlity or convenience, but no such resumptiot shall be made on land on which any permanent buildings may have been erected Pr authorized by ided further, that it shall be lawful for any per Our heirs and successors, to take and occupy such water privileges, ant e and enjoy such right of carrying water over, through, or under any pt he hereditaments hereby granted as may be reasonably required for agricul- d or other purposes in the vicinity of the said land, upon paying therefor a ionable compensation to the aforesaid , h heirs and assigns. In testimony whereof, We have caused these Our Letters it, and the Great Seal unto affixed. Witnesses His Horn of Our said Province, at Our Got this day of thousand eight hundred and Our Reign. e of British Columbi land, 1884 c 10, sec 83. When an adverse claim is filed during the period of publication, it shall be made upon oath of the person making the same, and shall shew the boundaries, and extent of such adverse claim; and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided according to law, or the adverse claim waived. The adverse claimant shall, within thirty days after filing his claim, commence proceedings in a Court of competent jurisdiction, with a view to determine the question of the right of possession, and he shall prosecute the same with reasonable diligence to final judgment, and a failure to do so shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party in whose favour it has been given may. ! without further notice, file a certified copy of the judgment roll with the said Government Agent, together with the certificate of the Gold Commissioner. Assistant Gold Commissioner, or Judge of a Court having jurisdiction in mining disputes, that the requisite amount of expenditure has been made, and the description of the land as herein required, whereupon the whole proceedings MARTIN'S MINING CASES. [vi Consol. Stat, and the judgment roll shall be s< Min. Act, 1888 missioner of Lands and Works, claim, or such portion thereof a j of the Court, to rightly possess. ' that several parties are entitled int by the Government Agent to the Chief Com- and a Crown grant shall issue thereon for the s the applicant shall appear, from the decision If it appears from the decision of the Court separate and different portions of the claim, r all of such parties may file the certificate and description, whereupon the said Government Agent shall send the proceedings and judgment roll to the Chief Commissioner of Lands and Works, as in the preceding case, and Crown grants shall issue to the several parties according to" their respective rights. 1884, ch. 10, sec. 70. mineral sec. 71. 85. Any free miner having duly recorded and located a mineral claim shall be entitled to hold the same for the period of one year from the recording of y the same, provided that within the first six months from such recording he shall have expended upon the claim itself money or labour to the amount of value of one hundred dollars, and shall have satisfied the Gold Commissioner or Mining Recorder of such expenditure by a detailed and attested description of the work ;e- performed (but in case continuous work is being prosecuted upon any claim, al it shall not be necessary to obtain a certificate of expenditure), and obtained from him, and recorded within such six months, a certificate of such expenditure. If the certificate shall not be so obtained and recorded the claim shall be deemed vacant and abandoned; and in like manner as to each succeeding year the holder of the mineral claim shall be entitled to hold the same for one year from the re-recording of the same, if he shall expend within the first six months from such re-recording money or labour upon the claim to the amount or value of one hundred dollars, to the satisfaction of the Gold Commissioner, and shall have obtained and recorded within such six months a certificate of such expenditure. 1886, ch. 14, sec. 8; 1887, ch. 22, sees. 3 and 5; 1888, ch. 34, sec. 18. 86. The Gold Commissioner or Mining Recorder, for the purpose of granting any such certificate, or the laying over of any claim, may act upon declarations ir made before any Justice of the Peace, Notary Public, or Mining Recorder, or r- before himself. 1886, ch. 14, sec. 9. 87. There shall be levied and collected from the owner or occupier of every is mineral claim of which a Crown grant has issued, an annual tax of one dollar 1 for every acre and fractional part of an acre of land conveyed by the grant, payable on the 31st day of December in each year. Such tax shall form a charge upon the claim. The Assessor appointed under or by virtue of any existing Assessment Act, or any Collector appointed under the " Provincial Revenue Tax Act," is hereby authorized, as to the mineral claims situate within the district for which he is appointed, to collect and receive the tax. In the event of the tax not being paid to the Assessor or Collector, he may cause the , claim upon which the tax is charged to be offered for sale by public auction, of which twenty days' notice shall be posted upon the principal Court House of the district in which the claim is situate, and in one newspaper, if any, pub- ' lished in such district, and may sell such claim, receive the purchase money, 3£ and execute a conveyance thereof to the purchaser. The purchase money shall be applied in payment of the expenses of advertising and the payment of the tax, and any surplus shall be paid into the treasury in trust for the owner of g. the claim. In the event of there being no purchaser, or if the price offered shall . not be sufficient to pay the tax and expenses of advertising, the land shall absolutely revert to the Province, and the Crown grant thereof shall be deemed void. The Assessor or Collector may, before offering the .claim for sale, sue • the owner or occupier for the tax, in a summary manner, before any Justice of the Peace, who may adjudge the same to be paid; and in default of payment, the amount due, together with costs, may be recovered by distress of the j goods and chattels of the person against whom the tax may be recovered: ppENDrx a.—Mitfn ' STATUTES. al claim shall establish, to the Consol. Stat. Recorder, or Assessor and Col- Min. Act, 1"" that the sum of two hundred If $200 e »vided, that if the owner of any such m agatisfaction of the Gold Commissioner, Mini lector of the district in which the claim 1 dollars has been expended thereon in labour or improvements tfi& the tax shall not be levied in respect of such claim for such y ch. 10, sec. 73; 1888, ch. 34, sec. 17. 88. Any lawful holder of a mineral claim shall be thereof on payment to the Government of British O twenty-five dollars per acre in lieu of representation claim. The applicant for a Crown grant under this s< respects save representation and expenditure, comply wi Act with respect to the acquisition of Crown grants. 1886, ch. 14, sec. 10. 89. In cases where the holders of two or more mineral claims upon the Holders c same lode desire to unite for the purpose of prosecuting one of such claims, the claim on Gold Commissioner may in his discretion lay over the other mineral claims for lode may such time and upon such conditions as he may think fit, but the work or money t?rPr°y)e,ct. to be done or expended on the one claim shall be appli ' " the claims laid over. 1886, ch. 14, sec. 11. 90. Any company, free miner, or party of free miners, who shall discover a Leave of ab- [ new lode or vein containing minerals as defined by this Act shall, upon such s [ discovery being established to the satisfaction of a Gold Commissio: I entitled to a leave of absence therefrom for six months. 1884, c PART V. Bed-rock Flume*. | 91. It shall be lawful for the Gold Commissioner, upon the application here- Grant not for [ inafter mentioned, to grant to any bed-rock flume company, for any term not more than five | exceeding five years, exclusive rights of way through and entry upon any mining years. | ground in his district, for the purpose of constructing, laying, and maintaining [ bed-rock flumes. The grant of such right may be renewed for any further term Renewal of | not exceeding five years, subject to such conditions as the Gold Commissioner grants for bed- may see fit. 1884, ch. 10, sec. 75; 1888, ch. 34, sec. 19. [ 92. Three or more free miners may constitute themselves into a bed-rock [flume company, and every application by them for such grant shall be in I writing, and shall state the names of the applicants and the ni ' lof the privileges sought to be acquired. Ten clear days' notice thereof shall [be given between the months of "June and November, and between the months [of November and June one month's notice shall be given by affixing the [to some conspicuous part of the ground, and a copy thereof upon the walls of [the Court House or of the Gold Commissioner's Office of the district. Prior [to such application, the ground included therein shall be marked out by posts [of the legal size, placed at intervals of one hundred and fifty feet along the [proposed main line or course of the flume, with a notice affixed thereto stating [the number of feet of ground claimed on either side of such main line. And It shall be competent to any free miner to protest before the Gold Commissioner [within such times as aforesaid, but not afterwards, against such appli peing granted. Every application for a grant shall be accompanied by a deposit pf one hundred and twenty-five dollars, which shall be refunded if the application be refused but not otherwise. 1884, ch. 10, sec. 76. shall be in writing, signed by the Gold Comm: 610 , M-ARTJNl§ MJSUNG CASES. ftjgljts ape} privileges of holders. ' Right of way creeks, etc. Upop creeks, etc., worked for 2 years and discovered within 2 years. Rights of way through claims legally held and worked. Right to us ateT™te" (a) The rights of way through and entry upon any new and unworked river, creek, gulch, or ravine, and the exclusive right to locate and •vork a strip of ground one hundred feet wide and two hundred feet long in the bed thereof to each individual of the company; (b) The rights of way through and entry upon any river, creek, gulch, q^ ravine, worked by miners for any period longer than two years prior to such entry, and already wholly or partially abandoned, and the exclusive right to stake out and work both the unworked and abandoned portions thereof, one hundred feet in width, and one-quarter mile in length, for each individual of the company; (c) And no person locating unworked or abandoned ground within the limits, of the company's ground, after the notice above mentioned has been given, shall have any the ground so located; (d) The words " abandoned, ground" shall include new and unworked ground, and ground not legally held and represented; (e) Such rights of way through and entry upon any river, creek or ravine, discovered within the two years next preceding the date of their appUcation before mentioned, and upon any portion of which four or more free miners are legally holding bona fide working claims, as to the, (mm ■ Commissioner may seem advisable; (f) The rights of way through and entry upon all claims which are at the time of the notice of application before mentioned bona fide worked by any free miners, for the purpose of cutting a channel and laying their flume therein, with such reaspngjije space for constructing, maintaining, and repairing the flume as may be necessary: Provided, that the owners of such last-mentioned claims shall be entitled to take and receive the gold and other minerals found in the cut so made; but where any advantage equivalent to the cost of making the cut accrues to the claim-holder,, by reason of such flume being laid through the claia^ t&fe bed-rock flume company shall be entitled to the cost of making ?uch; cut; (g) The use of so much of the unappropriated water of the stream on which they may be located, and of other adjacent streams, as may be necessary for the use of their flumes, hydraulic power, and machinery to carry on their mining operations, and the right of way for ditches and flumes to convey the necessary water to their works, subject to the payment of any damage which may be done to other parties by running such ditch or flume through or over their ground; (h) The right to all the gold or other- i 10, sec. 78. erals i the c- fiwaesi. ISSi.clu Where so con structed and abandoned. s 95- The holder- of claims, through which the line of the conii is to run may put in a bed-rock flume in their claims to conne company's flume, upon giving the company ten days' notice in wri effect; but they shall maintain the like grade, and build their flu oughly and of as strong materials as are used by such company. 3 sec. 79. 96. Olaimholders constructing such flumes through their fi3^9K their flumes free from obstruction, and they shall be entitled to all other minerals found therein, but they shall be subject to tihet §85^ with regard to cleaning up the flume, repairs, and other matters in parties are interested, as may be adopted by such flume eompanj claimholders shall have the right at any time before the abandonm MARTIN'S MINING CASES. Min. Act, 1 8 levy, and collect tolls rights of way. and t , froi all : r benefited t What rights t0 the grantees. The f ollov • gWen°byethere &ssi^as sha11 be deemed to be part of every grant, whether expressed; therei*|. grant. or not: Covenantsand (a) That they will construct such drain or drains of sufficient size to meet conditions. all requirements within a time (if any) therein named; (b) And have and keep the same in thorough working order and repair, and . free from all obstruction, and in default thereof that the Gold Commissioner may Order .all necessary alterations or repairs to be made by any free miners, other than the grantees, at the cost and expense of the lattej» such costs and expense to be levied by sale (subject, however, to the conditions of the grant) of all or any part of the drainage works, materials, - and tolls, or either of them; (c) That they will within a reasonable time construct proper tap-drainS from or into any adjacent claims, upon being requested by the owners thereof, and in default thereof permit such parties to make them thei^S selves, in which case such parties shall only be chargeable with one-hafff the usual rates of drainage toll, or such other proportion of toll as the Gold Commissioner may direct; (d) That they will not in the construction and r and tap-drains in any way injure the property and that they will make good any damage do ach draii m-holdei 109. The Court having jurisdiction in mining disputes, or, if desired by either Damages, how party, with the assistance of a jury of five free miners, may assess the damages | assessed. ^ ^y) f0T any injUry which may be caused by any such entry or construction as aforesaid. 1884, ch. 10, sec. 93. ■Grant to be re ^®' ^ucn grant shall be recorded and a fee of five dollars paid therefor, sarv% corded. where such grant gives the grantees the right to collect tolls, in which caSfc the sum of twenty-five dollars shall be paid as a registration fee. No re- registration of any such grant shall be necessary. An annual rent of tweW*y- J I ees and rent- gve cloll-ars for each quarter of a mile, and fraction thereof, shall be paid by 1" drain companies collecting tolls to the Gold Commissioner, such rent to com- mence from the date of their grant. 1884, ch. 10, sec. 94. PART VII. Mining Partnerships.' Co rtner 111. All mining companies shall be governed by the provisions hereof, un ship rules *^ey sba'11 have other and written articles of co-partnership properly sigi where no attested, and recorded. 1884, ch. 10, sec. 95. Majority of 114. A majority of the co-partners, or their partners gov- decide the manner of working the claims of the c em. to be employed, and tne eStent and manner of lev- partners, the.-nuinber of j ins the assessments to defray I 118. In default of payment within such time the debtor, after rec eiving a Penalty for personally feblf thereto-0to u'e"!--m, anv' amfhi if such amount be co rect be default, may be have accrued due thereon up to the harges occasioned by such default; an i if the proceeds of the sale be to pay off the several sums mentioned isdiction Notice of sale. 3f*aU, seize1 andTell1 anTotherP personal8 pror. issue an order idireSctte 1 to the pTcuyousfly%dted0urp,nt en clear d£5u ISto^wSsSS illESSb] rom the SyiDgthe" other propu ry is situated.^ copy^ HHulpel arfswat 119. Af S:,^".0^^!^.0011^1 SUCh I tie upon the purchase rved on Effect of notice 1 the forem at shall of abandon. Si irss'SH tpSESS urn and Applies Sees. .884, ch. 10, sec. 104. 114,115, 116, 117, 118 and 119 to all min- qh martIn's Mining cases. [vol. Consol. Stat. Limited Liability. Min. Act. 1888 ^±% Any mining company, composed of two or more free miners, may liini,-^ How liability tne liability of its members, upon complying with the requirements f ollowing, of co-partners that is to say :— i may e lmite upon gling with the Gold Commissioner or Mining Recorder of the dist$effl| a declaratory statement, containing the name of the company, the location and size of the claim, and the particular interest of each member of the company; and also placing upon a conspicuous part of the claim, in large letters, the name of the company, followed by the word" registered." After, such conditions shall have been complied with, no member of Su|» company shall be liable for any indebtedness accruing thereafter beyofnB an amount proportioned to his interest in the company. 1884, ch. 10, sec. 105. Not less than 122. No person shall locate, purchase, or hold less than one-fourth of one one-fourth of a full interest in any company so constituted. This section shall not apply t$ full interest mineral claims. 1884, ch. 10, sec. 106. may be held. Accounts to be 123. Every such mining company shall keep a correct account of its assejffle kept. and liabilities, together with the names of the shareholders, and the interest held by each, and shall make out a monthly balance sheet shewing the names of the Inspection of treditors, aJld tne amounts due to each, and file the same among the papers of same ' tue company; and such balance sheet and all books of the company shali''H& open to the inspection of creditors of the company at all reasonable houfW 1884, ch. 10, sec. 107. Cessation of 124. No member of such company shall, after a bill of sale conveying his individual interest, or some portion thereof, has been duly recorded, or after he has served liability, a notice of abandonment of his interest on the foreman, and left a copy thereof with the Gold Commissioner or Mining Recorder, be liable for any indebtedness of the company accruing thereafter. 1884, ch. 10, sec. 108. 1 declare any dividend until all their liabilities 884, ch. 10, sec. 109. What debts ^®* ^° suc^ companj theromnahv contracted by their forei is liable for. 1884, ch. 10, sec. 110. 127. If such company fail to comply with any of the f lenalty for they shall be liable to a fine of not. less than twenty-five di plianc™ than one hun<3red and twenty-five dollars. 1884, ch. 10, sec. Declaratory 128, The Gold Commissioner or Mining Recorder in statementsand ^eBP a °ook exclusively for recording all declaratory stat notices to be office, and another book in which he shall record-all notic recorded. 1884, ch. 10, sec. 112. 129. Upon the filing of each declaratory state Ety cents shall be paid; and upon the filing of ei lm of one dollar. 1884, ch. 10, sec. 113. 130. Every shareholder of a company duly In iner, shall be entitled to buy, sell, hold, or t terein. 1884, ch. 10. sec. 114. 131. In case of the death of a of any mining property, his clahr other person for non-representatic decease. 1884, cb. 10, sec. 115. fj APPENDIX A.—MINING "STATUTES. 132. The Gold Commissioner shall take possession of the mining property Coht of the deceased, and may cause such mining property to be duly represented, Mm. Act-, 1888 or dispense therewith at his option, and he shall sell the property by private sale, or after ten days' notice thereof by public auction, upon such terms as he Power of Gold shall deem, just, and out of the proceeds pay all costs and charges incurred Comm,is!' thereby. 1884, ch 10j sec. 116. ""'""'" 133! The Gold Commissioner, or any person authorized by him, shall take Custody of oharge of all the property of deceased miners until the issue of letters of ad- property of nSSnistration or probate of the will, if any-. 1884, ch, 10s sec. ,117; deceased 134. All grants under this Act other grants, shall be in writing, Gold Commissioner, and by the gr 135. Save where the contrary is ex shall apply :— Applications for ieases, accomp* ing, are to be sent in duplicate t wherein the ground desired to be forward it. with his report, to the Lieutei excepting in cases where the lease does ground shall be secured decision has been received. Prior to such hpplii for shall be marked, out by posts of the legal size, application, signed by the applicant, shall be affixed mining claims then being worked. A copy of such at the Gold Commissioner's office. 1884, ch. 10, In dry diggings, ten acres; In bar diggings unworked, half- 137. Leases as above will : will be considered to be immediately miners as holders of individual claims, : <;ase where individual free miners are part of the premises, unless by their advisable, by the Lieutenant-Goverr 138. I such lease sli contain a rvation of all fo^caii ing t o the public In bar diggings worked and abandoned, i along the high water mark; In creek claims on abandoned creeks, one mile and a half in length. 1884j ch. 10, sec. 120; 1887j ch. 22, sec. 1. anted of any land or alluvium which Leases not to dlable for being worked by free be granted of vill such a lease be granted in any land occupied; actual occupation of any or available for if deemed being worked, Council. 1884, ch. 10, sec. 121. by free miners. ill, without expressing the same, be understood td Resery„„ltJ„ rights of the Crown, and all reasonable provisions rights'oT'the ights of way and water, save in so far as shall Crown tindei-- De necessary for the miner-like working of the premises demised. The prem- stood,also pubises shall be granted for mining purposes only, and it shall not be competent lie ways, etc. to the lessee to assign or sub-let them without the pre^' of the Gold Commissioner, Every lease s" t by the lessee Not the said premises in a miner-like way, and also, if it shall be thought fit) to perform the works therein defined within a time therein limited. And it shall also contain a clause providing that the said lease shall be voidable if the lessee refuse Or neglect to observe and perform all or any of the covenants therein contained. 1884, ch. 10, sec. 122. MARTIN'S MINING CASES. PART Xv: Ditches. gr°a"tch ti?™*' §rant t0 ^y PBr! Privileges for ^vert and use the wat ten years. thereof, and the rights < his district, for the pur] water: Provided always, to the mining claim in the claim shall havt t here , for i ding t right t for the use of the grant shall be at ! of the the s 1 the any particular part way through, and entry upon any mining ground an se of constructing ditches and flumes to convey suchj hat every such grant shall be deemed as appurtenant espect of which it has been obtained, and whenever been worked out or abandoned, or whenever the occasion vater upon .the claim shall have permanently ceased, the i end and determined. The grantee shall, during each year - of the grant,, and whilst it shall be in operation, record 2ase of an ordinary mining claim. 18S4, ch. 10, sec. 123. l shall be given, by affixing the ad a copy thereof upon the walls i miner may protest within s«iffl"§ oily or partially granted. 1884, Twenty days' 140. Twenty days' notice of the applicat notice of appli- same t0 some conspicuous part of the ground, cation to be of the Gold Commissioner's office; and any f: given, twenty days against such application being v ch. 10, sec. 124. and a deposit 141. Every application for a grant of water, exceeding three hundred inches, of $2o. sha.ll be accbmpanied by a deposit of twenty-five dollars, which shall be refunded in case the application shall be refused by the Government. 1884, ch. 10, 1- 142. Every such application shall be in writing, and shall state the of the applicants, the name of the stream or lake to be diverted, the p diversion or ditch head; the quantity of water to be taken, the locality distribution, and the price (if any) to be charged for the use of such wat the time necessary for the completion of the ditch. 1884, ch. 10. sec. 12( )r modified. 3-rants to be 144. Every grant of ubject to fre e to the right of such regi miners' right *• be working on the s person lawfully usin sec. 128. ilege on occupied creeks shall be subject miners as shall, at the time of such grant e below the ditch head, and of any other or any purpose whatsoever. 1884. ch. 10, 145. If, after the grant has been made, any free miner or miners locate and jno fide work any mining claim below the ditch head, on any stream so diverteu, e or they shall collectively be entitled to forty inches of water if two hundfed iches be diverted, and sixty inches if three hundred inches be diverted, and no tore, except upon paying to the owner of the ditch, and all other persons iterested therein, compensation equal to the amount of " and, i j loss msidere 1884. ( . 10, . 129. Grants of 146. No person shall be entitled to a grant of the water of any stceai ^fj^ifor spec- for the purpose of selling the' water to present or future claim-holders, on an part of such stream. The Gold Commissioner may, however, grant such priv he may deem just, when such ditch is intended to work bench or hill | claims fronting on any such stream: provided, that the rights of free mil then using the water so applied for be protected. 1884, ch. 10, sec. 130. poses prohibi- 152. Whenever it shall be enter upon and occupy any p earth or rock within four fei tered owner of such clai be given before entering e*ty. 1884, ch. 10, sec. . 155. Upon compli Corner shall certify in writ] orized to create the damage requirements herein claims in respect of >618 MARTIN'S MINING CASES. [vol. Consol. Stat. 156, Every such Certificate shall be recorded by the Mining Recorder in a Mitt. Act, 1888 book to be kept by him for that purpose, which shall be at all times Open to inspection upon payment bf a fee of one dollar for each inspection; 188*;"^ Certificate to cn. 10, sec. 141. Act to be 157. Every certificate so recorded shall be sufficient evidence in any Court* sufficient in 0f Judicature of all matters and things therein contained or referred to, and Law Courts, shall discharge the person or persons to or for whom the same is granted from all liability with respect to the damage or interference therein mentioned. 1884, ch. 10, sec. 142. Mining Court 158. The Court having jurisdiction in mining disputes shall, upon the app"F|| mining cation of any party interested therein, and after notice to all whom it may disputes. concern, enquire into and decide all matters arising out of Or connected \rith. any such damage or interference as aforesaid, and sttch decision shall be final and without appeals in all cases where such decision shall be given in resprfecfj;, of any sum or matters at issue* the amount or value whereof, which Shall rh"*B* stated in the decision, shall not exceed five hundred dollars. 1884, ch. 10, -$il8ft 143. ct«es over S500 159- lllPl sUeh amoullt or yalue sha11 exceed five hundred dollars, any party aggrieved by such, decision may appeal against the same in the manner provided in Part 1 of this Act. 1884, ch. 10, sec. 144. Works for the 160. The owners of any ditch, Water privilege, or mining right, shall, at security ot their own expense, construct, secure, and maintain all culverts necessary fdF ing through or over any sue®* c. 145. 161. The owners of any ditch or water privilege shall construct and secure the same in a proper and substantial manner, and maintain the same in good' repair to the satisfaction of the Gold Commissioner, and so that no damage shall occur to any road or work in its vicinity, from any part of the workr of such ditch, water privilege, or right. 1884, ch. 10, sec. 146. e 162. The owners of any ditch, water privilege, or right, shall be liable y and shall make good, in such manner as the Gold Commissioner shall determine, all damages which may be occasioned by or through any parts of the works of such ditch, water privilege, Or right, breaking or being imperfect. 1884, ch. 10, sec. 147. 163. If any writteh notice to the party intended to be afffected thereby be posted for ten days on some conspicuous part of any premises referred to in such notice, and also in the office of the Gold Commissioner, such notice sha 1 be deemed good and sufficient. 1884, ch. 10, sec. 148. public roads of the Province, across, through, along, or under any ditch, wa privilege, or mining right, in any Crown land, without compensation, provii that as little damage as possible shall be done in so doing. 1884, ch. 10," i Penal and MiseeHaneou. L65. Any person wilfully acting in contravent bey any lawful order of the Gold Oommissione he Court having jurisdiction in mining disputei re him be .liable, in the discretion of such Gold not exceeding two hundred and fifty dollars, i not exceeding three months. 1884, ch. 10, s -MINING STATUTES. 153. 169. The assessor and collector of any Provi ■or his agent, demand from any person engaged production of his free miner's certificate, and in t 4£ such person to immediately produce such certi pay for a certificate, the assessor or collector m levy the sum payable for a chattels of the person who on the premises occupied b; r be the proper ave where such intention is expressly Saves icially any mining rights and int ; and all mining rights and pri- ithout the same being evpressiy stated, the rights of Her Majesty, Her heirs af way and water. 1884, ch. 10, sec. premises; f may, by himself Prodi d in mining the free i aeglect or refusal demanded, or to of any goods and noTp'i . goods er chattels the fe hether the goods and chattels be his prop- same L other occupant of the levied se of i vith costs, by disi sts chargeable shall be those payable a i. 10, : :. 26. l landlord ^*s' H~ "ER MAJESTY, by and with the advice and ci Assembly of the Province of British Columbia, (Note.—Sections 1 to 11 inclusive, relate t Power of Attorney Act, 1875, and other statute relate to mining, as follows:) 12. Section 27 of the " Mineral Act, 1884,' thereto the following as sub-see. 2: the fee required by the Mineral Acts with tl he shall be entitled to have licence or record 13. Section 22 Of the "Mineral Act, 1SS4,' thereto the following: " And may also, during the continuance any Crown lands, or lands covered by timbe eral purposes." 14. Section 38 of the " Mineral Act, 1884," [ out the word " mineral" in the 4th fine of th [ therefor the word "■hrf!".* o the Interpretation Act, 1872, s. Sections 12 to 19 inclusive, is hereby amended by adding lying for a free miner's licence, Free miner's' during his absence and leaves licences ap- e officer in charge of said office, P* ied for in from that date." ^sence of Re- is hereby amended by adding r leases, to cut timber for min- *>er for mining is hereby amended by striking Amends sec, e said section, and substituting ""8 of " Mineral Act, ansent of the Legislativ enacts as follows:— 620 Stot-Amend- 15. Section ment Act, 1888 after the wore Amends sec. ■ 58 of same Act n ^ M*H3. 'Section Amends sec. .. jjjjueral Ante ..ne form of a Amends sec. 17. Section 73 of same Act after the wore MARTIN'S MINING CASES. avided for in sec. 62 as amended." ndment Act, 1886," is hereby amended by striking o rectangular parallelogram." Detailed state- 18. The section substituted 1 ment of annual 1880," for sec. 72 of the "Miner expendittireon after the word " expenditure " i: toofgivento attested description of the work jp Recorder. prosecuted upon any claim, it si expenditure. HER MAJESTY, by and with the advice and con Assembly of the Province of British Columbia, I 1. The definition of " close season," as given in sec. '. is hereby amended by inserting the words " other thar naming wi|h- substitute d thei lertificT^'3 rockflum licence, si talto" andWKin the 5th li a7the -MINING STATUTE 4. Sub-section section, the follow " (2) The Gold Cot in his discretion, to exte by this section shall tx months, upon being sat are good and sufficient " 90. Any company, free miner, or party of free miners, who shall dis- Li er a new lode or vein containing minerals, as defined by this Act, shall, cli in such discovery being established to the satisfaction of a Gold^Com- r Mining Recorder, be entitled to have their discovery claim laid over by the Gold Commissioner or Mining Recorder for six months. Such six months shall be in addition to, and shall not be considered or be counted Hot as any part of, the six months within which the expenditure of one hundred "e dollars, as required by this Act, shall be performed." " Mineral [ amended by striking out the words " bt " Provided, however, that where any free miner shall die intestate, and the c0ld Commis- 'ii amount of the personal estate of such deceased free miner is less than three sioner to hundred dollars, it shall not be necessary for the Gold Commissioner to ob- administer tain from any Court letters of administration, but in such case the Gold e Commissioner may administer and wind up the personal estate of the de- I ■ceased, and do all things necessary and proper therefor, and act in all " respects as if letters of administration to the personal estate of such deceased free miner had been granted to such Gold Commissioner, and the Gold Commissioner shall produce and pass his accounts, in each estate of ^°°°"n^'c wMch he shall undertake the administration, before two 1 MARTIN'S MINING CASES.: .- SCHEDULE, Sections of the "Mineral Act"! which are inapplicable to 1 To what extent, mineral claims. Section 14 The whole. " 34 '.!!'.'.''.'.'.'.'..'...'.'.'.'. ISo far as "'leave of absence" is con " 45 The whole, except that portion whi 54 The whole. " 55 So much thereof as declares that a " 57,58,59 iThe whole. " m ..The whole. " 65 The whole. " 72 The whole. 4 to 13! . Th 126th April, 1890.1 W*22gg$ } APPENDIX A-—-MINING STATUTES. "(e) Where the application has been made before th Act, the said deposit shall be made within ten months of this Act; cquire the claim under the provi- 1 of one hundred and five dollars the accounting for the purchase f the said Act is hereby repealed, and in lieu thereof be "85. 1 Any free miner, having lawfully acquired a mineral elaim within the jSltway belt, as provided in sec. 75 and its sub-section, shall be entitled to hold such claim for the period of one year from his record, although no labour or expenditure may have been bestowed thereon, and any free miner having law- §0? acquired a mineral claim anywhere else in the Province shall be entitled to hold the same for a like period of one year from the date of his record, if he shall, within the first so, months from such record, expend upon the claim itself, or in connection with its development, money or labour to the amount or value of one hundred dollars; shall satisfy the Gold Commiss Mining Recorder of such expenditure by a detailed and attested description of the work performed; and shall also, within such six months, obtain from such Gold Commissioner or Mining Recorder a certificate of such expenditure, and record the same with such Gold Commissioner or Mining Recorder. And so, from year to year, the holder of a mineral claim shall be entitled to hold the same for one year from the expiration of his previous year of holding, if he shall, within the first sis months of each new year, expend money or labour upon the elaim, or in connection with its development, to the amount or value of one hundred dollars, to the satisfaction of the Gold Commissioner or Mining Re- aopder-, and shall, within such six months, have obtained a certificate of suoh expenditure, and have recorded the same with the Gold Commissioner or Mining Recorder." I (2) The Gold Commissioner or Mining Recorder shall have power in his discretion to extend the period within whieh the expenditure required by this section shall be made for a further period of three months, upon being satisfied, upon evidence taken under oath, that there are good and sufficiei 8S8nting such extension." 3. Section 136 of the " Mineral Act*" is hereby amended by adding there! the following: " In bench lands adjoining unworked or abandoned riv creeks, an area for hydraulic workings not exceeding one hundred anc acres of land, and for a period not ex-eeeding twenty years." Regis, n of Claims . It shall t l Council to divide any lawful for the Lieutenant-Gc lMtrict into Mining Divisions, or to portion off any part of a Distrit Mining Division, and to establish in such Mining Division an office for ing and registering certificates, records, documents, or other instruments affecting mines, claims, or mining property situate within such Mining Division, and to appoint a fit and proper person to perform the duties of Mining Recorder in such office. 5. Upon the establishment of a Mining Division, syid the open! cording office therein under the authority of the last preceding section :- ae other, shall be the proper office for r records, certificates, documents, or other merits affecting mines, claims, or mining proper ing Division, and wfeeneyerv by the " Mineral • ' Such office, and i Transcript of and kept by isiblTin MARTIN'S MINING CASES. [VOL. (o) It sion to for by such Mi Cold Commis- in such M the same, any act or thing is required to be done at or in the office of the Gold Commissioner of the District, such Act or thing shall, if the same affects or concerns tiny claim, mine, or mining property situate within a''Mining™ Division, be done at or in the office of the Mining Recorder of the Mining I Division wherein such mine, claim, or other mineral property is situate; (6) A transcript of all records, certificates, documents, or other instruments affecting mines, claims, or mining property situate in such MiningM Division, shall be sent to the Recorder of such Mining Division, and shall be kept in such office as part of the records of such office, and all transcripts of such records, certificates, documents, or other instruments shall prima facie be deemed to be true copies of the several records, certificates, documents, or other instruments of which they purport to be transcripts; and such transcripts or copies thereof, when certified by the Gold Commissioner of the District, or by the Recorder of the Mining Division in whose office they are kept, shall be admissible in evidence in all Courts of Judicatuita| in this Province; shall not be necessary for the Mining Recorder of a Mining Divi,- vard to the Gold Commissioner transcripts of the records made aing Recorder affecting mines, claims, or mining property situate , Li« i Cot upc the i Sr free miner or a mining company, grant to such free miner or mining company a lease for such period and upon such terms as the Lieutenant-Governor shs!H think fit, of an area (not, however, to exceed five acres) of unoccupied Crown land, not known to contain minerals, to be used as a.site for a quartz mill) concentrators, or for any other works for reducing ores, or for any other pur' pose which would further profitable working of the applicant's claim. (a) Applications for leases of land under this section, accompanied by a v plan of the proposed site, are to be sent in duplicate to the Gold Commit sioner of the district wherein the area desired to be taken is situate, wh'6 shall immediately forward it, with his report, to the Lieutenant-Governor in Council. Prior to such application the ground applied for shall be marked out by posts of the legal size, and a written notice of application, signed by the applicant shall be affixed to any of the said posts, and thereupon the land shall be secured to the applicant until the Lieutenant-Governor's decision shall be made known. A copy of such notice shall be put up at the office of the Gold Commissioner. . This 7 be cited as the " Mineral Act Amendment Act, 1890." An Act relating to Gold and other Minerals excepting Coal. IWth April, 1891.] HER MAJESTY, by and with the advice and consent of the LegishiittWf Assembly of the Province of British Columbia, enacts as follows:— Short Title. Short title. j. This Act may be cited as the " Mineral Act, 1891." " Judgmer which tall include any s " shall include " APPENDIX A. 2. In the construction of thi illowing meanings respectively, " Mine " shall mean any land in which any vein or lode, or rock in place, shall be mined for gold or other minerals, precious or base except coal; "Rock in place " shall mean all rock in place bearing valuable deposits of gold, silver, cinnabar, lead, copper, iron, or other minerals usually mined, except coal; -" Vein " or " lode ;" Whenever either of these in place " shall be deemed to be included ■" Mineral claim " shall i any mine; " Mining property " shall include every mineral claim, ditch, mill-si water right used for mining purposes, and all other things belongin mine or used in the working thereof; ■ Legal post " shall mean a stake standing not less than four feet above " the ground, and squared or faced on four sides for at least one foot from the top, and each side so squared or faced shall measure at least four inches on its face so far as squared or faced, and any stump c cut off and squared or faced to the above height and size; ■"Mill-site " shall mean a plot of ground located, as defined by this Act, for "I the purpose of erecting thereon any machinery or other works for transporting, crushing, reducir power for working mines I Streams " shall include all ing water or not, and all " Ditch" shall include a flume, or race, or other artificial conducting water by its own weight, to be used for mining purposes; i the point in a natural water-course, or lake ter is first taken into a ditch; ■ Free miner " shall mean a person, or joint stock company, or foreign cc pany named in, and lawfully possessed of, a valid existing free certificate, and no other; | Record," " register," and " registration " shall have the same meaning, and shall mean an entry in some official book kept for that purpose i Mineral " shall include all minerals, precious or base (other than coal) found in veins, lodes, or rock in place, and whether such found separately or in combination with each other; | Real estate " shall mean any mineral land held in fee simple under this or " any Act relating to Gold Mines, or to minerals other than coal; "Joint Stock Company" shall mean any company duly incorporated for " mining purposes under the " Companies Act," " Companies Act, 1890," Co." and any company duly incorporated in British Columbia for mining purposes under the "Companies Act, 1862" (Imperial), and shall include all companies falling under the definition of a foreign company in the "Companies Act." MARTIN'S MINING CASES. Free Min Past I. s and their Privileges. Who may be a 3. Every .person over, but not under, eighteen years of age, and every joint free miner. stock company, shall be entitled to all the rights and privileges pf a free miner, and shall be considered a free miner, upon taking out a free miner's certificate. A minor who shall become a free miner shall, as regards his mining property and liabilities contracted in connection therewith, be treated as of full age. A free miner's certificate issued to a joint stock company shall be- issued in its corporate name. A free miner's certificate shall not be transferable. Dura 4. A fret ertificate may be granted for < existing certificate, upon the payi of Fees to this Act. Only one named therein. therefor of the fees set out in the Schedule joint stock company shall be jrtificate shall be in the following form Bbitish Columbia. Free Miner's Certificate. NOT XEAJSTSITEBABLB. Valid for yeat ertify that of , and is entitled to all the year from the day of (Signature of Gold Con as the cas e.) vileges of a free - Mining Recorder, Application at 6. If any person or joint stock company shall apply for a free miner's cerfi- Recorder's ficate at the Mining Recorder's office during his absence, and shall leave the fee office in his required by this Act with the officer or other person in charge of the said office, absence. he or it shall be entitled to have such certificate from the date of such applica tion ; and any free miner shall at any time be entitled to obtain a free miner's certificate commencing to run at the expiration of his then existing free miner's certificate, provided that when he applies for such certificate he shall produce tc the Mining Recorder, or in case of his absence shall leave with the officer oi other person in charge of the Mining Recorder's office, such existing certificate. "Substituted 1' ^ any free miner's certificate be accidentally destroyed or lost, the owner | certificate." thereof may, on payment of the fees set out in the Schedule to this Act, have a true copy of it, signed by the Mining Recorder, or other person by whom or out of whose office the original was issued. Every such copy shall be marked ' substituted certificate;" and unless some material irregularity be shewn in respect I thereof, every original or substituted free miner's certificate shall be evidence of j all matters therein contained. 8. Every person and joint stock company engaged in mining for minerals (other than coal) shall take out a free miner's certificate, and every person or joint stock company who mines or works as a miner in any. mineral claim, mine held as real estate, or tunnel, or on any flume,- drain or ditch, without having ] taken out and obtained such certificate, shall, on conviction thereof in a s mary way, forfeit and pay a penalty not exceeding twenty-five dollars, b sides | costs: Provided, always, that nothing herein contained shall prejudice the right I to collect wages or payment for work done by any person who, through not being ] a free miner, has rendered himself liable to the above penalty. befor e the dt y follow ving the expirat rovided, neverth not be ii& hold, 01 apply to miners ver aent c r Crow a grant has been issued ve y fre shall, during the con have the rig t to en ter, locate, pros the Crot m for a 1 miner er upoi >r her safter shall be,' locate, i rospect :er and the ( d its li n< land oc cupied by any building. 0 dwellin 'ot lly u her tl nder cu 1rVn>nai a, and any Ian ng, and also Ine 11. Any fr- timber leases, ■ i> cut timber for MARTIN'S MINING CASES. [vol. Mineral Act, determining the centre line and length of the claim a line shall be run from Ik 1891. through 2 and be continued in the same straight line to the required distance, without reference, as to direction, to post 3, but, as to distance, such line shaft: not exceed the distance in a straight line between posts 1 and 3, and shall not exceed 1,500 feet. On each post there shall be placed a legible notice in writing, stating the name of the claim, its length in feet, and the direction of the centre line, with the date of the notice and name of the claimant of the ground. When • a claim is located in a timBered country, where any one post cannot be seen from the next post, the locator shall blaze a line connecting all the posts. It shall be unlawful to remove or change the situation of any post unless th% claim shall have been previously abandoned or forfeited. Where stakini properly done 16. Any loeatio: ason be invalid, ] 17. Inc shall n : for that ?here, from the nature or shape of the ground, it is impossible to the centre line of the claim, as provided by this Act, then the claim may e. be marked by placing posts as nearly as possible to the centre line, and noting the distance and direction such posts may be from such centre line, which distance and direction shall be set out in the record of the claim. 18. In case of any dispute as to the location of a mineral claim the title to the claim shall be recognized according to the priority of such location sub^ ject to any question as to the validity of the record itself, and subject further to the free miner having complied with all the terms and conditions of this Act. 19. Every free miner locating a mineral claim shall record the same wiffi' the Mining Recorder of the district within which the same is situate, within fifteen days after the location thereof, if located within ten miles of the office of the said Mining Recorder. One additional day shall be allowed for such record for every additional ten miles, or fraction thereof. Such record shall be made in a book to be kept for the purpose in the office of the said Mining Recorder,'*® which shall be inserted the name of the claim, the name of each locator, the lumber of each locator's free miner's certificate, the locality of the mine, the direction of the centre line, the length in feet, the date of location, and the date of the record. "When a free 20. A free miner shall not be entitled to miner is en- shall have furnished the said Mining Recordi titled to ■ . record. 21. Upon the establishment of a mining t Mining Re- Recorder's office therein, under the authorit corder's office. other shall be the proper office for recordi mining division, and making all records in ird o Recording at Recorder^ -offine-hahis absence. 22. If through ignorance any free g different district or mining division to error shall not affect his title to such el the discovery of his error, record sucl in which it is situate, and such new ret and a note shall be made thereon of th of the same. 23. If a free miner applies at the ft to record a mineral claim, or any docut to be recorded, and leaves the fee requ information required to enable the Mini officer or other person in charge of sa: record dated on the date of such applic 24. . hold the s; md thence from yea: :h succeeding year, s' g duly m APPENDIX A.—MINING STATUTES. *he claim itself to the value of one hundred dollars, and shall satisfy the Gold Commissioner or Mining Recorder that such work has been done, by an affidavit of the free miner or his agent, setting out a detailed statement of such work, and Siall obtain from such Gold Commissioner or Mining Recorder, and shall record ^•certificate of such work having been done. If such work shall not be done, or if such certificate shall not be so obtained and recorded, in each and every year, the claim shall be deemed vacant and abandoned, any rule of law or equity to • l'l :e as to the title to any mineral claim, no irregularity Cei :e of the record of the certificate of work next preceding ^ :ertificate of work shall affect the title thereto, and it an<rct tlfc'e t< to that date the title to such claim was perfect. maim. 26. No free miner shall be entitled to hold, in hi any other person, more than one mineral elaim on by purchase, but such free miner may hold by locati separate vein or lode. obtained the written pgrmissi location ; and he shall hold no location, without such permist 30. Should any free miner locate and record more than one mineral claim on Locati the same vein or lode, all such lqcations and records, excepting the location and than record of his first claim on such vein or lode, shall be void, unless such first on the claim shall have been abandoned or forfeited. lode. 31. The lawful holder of a mineral claim s possession of all the surface included within th veins or lodes, throughout their entire depth, t side of such surface lines extei r lodes may so far depart from extend outside the vertical sid< utside par portions thereof as lie betwee scribed, through the end li that such planes will inters* nothing in this section shall which extends in its downws enter upon the surface of a always, that a prior location a subsequent location on the may be upon the apex of the t whic ning p .. | rights and interests of such | clared that a location laid cross-* I crosses the same instead of follow: of the vein or lode as it actually ! location will become the end lines a mineral claim he shall have the righ and any personal property which he may arj re which he may have extracted therefrom c'! the Gold Commissioner or Mining Recorder. e abandoned or forfeited, unless he shall have abandc f the Gold Commissioner to make such re- claim, rest in any portion of such perpendicular in their course downwards as to lines of such surface location; but his right s of such veins or lodes shall be confined to such ertical planes drawn downwards, as above de- of bis location s vn din tthorize the locator I course beyond the vertical lines of his claim to :laim owned or possessed by another: Provided, t the dip of a vein or lode shall have priority over me vein or lode, though such subsequent location ?ein or lode; and provided, always, that ag the course thereof, will secure only so much rosses at the surface, and the side lines of the thereof, for the purpose of defining the rights MARTIN'S MINING CASES. lode A location shall be deemed to have been laid c nade by the centre line falling on the general | er than (45°) forty-five degrees. Where lodes 32. Where two or more veins or lodes intersect intersect pri- downward dip, priority of title shall govern, and t a ' ' however, that the subsequent location shall have the right of way through thS said space of intersection for the purpose of the convenient working of the said subsequent location: and provided, also, that where two or more veins or lodes unite, on their downward dip,- the oldest or prior location shall take the vein or lode below the point of union, including all the s; Right to lodes 33. Where a tunnel is run for the development a tunnel. the right to all veins or lodes discovered in such ground containing such veins or lodes be marked om and be duly recorded within fifteen days after si further, that such veins or lodes are not included in Any money or labour expended in constructing a lode shall be deemed to have been expended on sucl 1 their ly held by him, have : Provided that the overy; and provided isting mineral claim. .0 develop a vein or t- lode. 34. ?he i real estate, be deemed to be a chattel int year, and thence from year to year subjet ; of all the terms and conditions of Act. 35. Any lawful holder of a mineral claim shall be entitled to a Crown gr 1 thereof on payment to the Government of British Coumbia of the sum of twenty- five dollars per acre in lieu of expenditure on the claim. The intending purchaser shall cause a notice of his intention to purchase to be. inserted in the British j Columbia Gazette, and in one newspaper circulating in the district in which^jjjg | a shall have complied with j ceive from the Gold Com- : such claim:— itself in developing a mine a of all houses, buildings, a. Whenever the lawful holder of a mineral clai ollowing requirements, he shall be entitled to r oner a certificate of improvements in respect ( a) Done or caused to be done work on the clain to the value of five hundred dollars, exclusr and other like improvements; 6) Found a vein or lode within the limits of such claim ; 0) Had the claim surveyed by an authorized Provincial Land Surveyor who shall have made three plats of the claim, and placed one such plat ot the No. 2 or centre post of the claim, or on a post as near thereto a possible, and who shall have accurately defined the boundaries of such | 0 shall i ingles s of and that (d) Shall have posted 10 examined the work done 0 and made an affidavit setting out fully ] lusive of houses, buildings, and other j c of his belief the value of such work, \ st as the said plat, and also on the out- I :order, a legible notice in writing of his T of improvements, and such notice shall | 1. The name of the claim; 2. The name of the lawful holder thereof; 3. The number of such holder's existing free miner's certificate; 4. His intention to apply for a certificate of improvements at th end | of sixty days, for the purpose of obtaining a Crown gra 5. The date of the notice: ] APPENDIX A.—MINING STATUTES. (e) Inserted a copy of such notice in the British Columbia Gazette, one newspaper circulating in the district in which the claim ^at least sixty days prior to such application, which ."at any time after the posting of the notice on the claim; (f) Filed with the Mining Recorder— . Affidavit of the said s . Two copies of the pla : of such cla: 1 field-notes. 37. Provided, nevertheless, that i granted in respect of a mineral clain certificate of improvements granted i and void. certificate of .improvements shall be Ceitifioi :he title to which is in litigation, and a granted respect of any such elaim shall be null 38. After th While such cert: or forfeited on •certificate, and ing and recording of such certificate of improvements, and Effect of shall be in force, the claim shall not be deemed abandoned tincate- of of the holder thereof failing to take out a free miner's Piemen lot be necessary to do any work thereon. 39. On i spect of a i shall be entitled to a Grown gra twenty-five dollars per acre requ recording of such certificate of imi inside the railway belt, the holdet such claim on the payment of Recorder. 40. The holder of a mineral claim for which a certificate of improv has been granted and recorded shall make application for a Crown grant to the for*Crown Mining Recorder, in Form J of the Schedule to this Act, within three months grant, from the date of such certificate of improvements, and in default of such application having been made within such time, such certificate of improvements shall lapse and become absolutely void. 41. If the holder of a mineral claim, after applying for a certificate of Xransfer of improvements, shall sell and transfer such claim to another free miner, upon claim after satisfactory proof of such sale and transfer being made to the Gold Commis- application for sioner, the new holder of the claim shall be entitled to a certificate of improve- ci '" ments in his own name. And if a sale and transfer shall be made to any person or company after a certificate of improvements shall have been issued, upon proper proof of such sale and transfer being made to the satisfaction of the Chief Commissioner of Lands and Works, the Crown grant shall i holder of the claim. 42. The issuance of a Crown grant shall not inv: have attached to any mineral claim previous to tb grant. 43. A Crown grant of a mineral claim located Crown shall be deemed to transfer and pass the rig] or base (excepting coal), found in veins, lodes, or such minerals are found separately or in combinatior ling of such certificate of improvements in re- Record of c utside of the railway belt, the holder thereof tifica it of such claim without the payment of the proyi red by section 35. And on the granting and ei rovements in respect of a mineral claim situate *' thereof shall be entitled to i me hundred and five dollars to the Mining Railway Belt. y waste lands of the ™ o all minerals, precious ^ _-t in place, and whether with each other, in, upon, MARTIN'S MINING CASES. (Royal Arms.) " Mineral Act." norm. * Victoria, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith. To all to whom these presents ■ shall come, Greeting: Know ye, that We do by these presents, for Us, Our heirs and successors, iii consideration of (the fulfilment of the conditions of the laws providing for the acquisition of minerals other than coal), give and grant unto h heirs and assigns, All that parcel or lot of land situated and numbered on the official plan or survey of the said To have and to hold the said parcel of land, and all minerals, precious and base (save coal), which may be found therein in veins, lodes, or rock in place, and whether such minerals are found separately or in combination with each other, unto the said h heirs and assigns forever; Provided that it shall at all times be lawful for Us, Our heirs and successd^pp or for any person by Our authority, to resume any portion (not exceeding one- twentieth part) of the said lands for making roads, canals, bridges, towing-paths, or other works of public utitlity or convenience, but no such resumption shall be made of land on which any permanent buildings, may have been erected; Provided also, that the grant hereby made of the said lands shall be subject to the laws for the time being in force respecting mineral lands held in fee Provided further, that it shall be lawful for any person duly authorized by Us, Our heirs and successors, to take and occupy such water privileges, and to have and enjoy such right of carrying water over, through, or under any parts of the hereditaments hereby granted, as may be reasonably required for agricultural or other purposes in the vicinity of the said land, upon paying therefor a reasonable compensation to the aforesaid h heirs and assigns. In testimony whereof We have caused these Our Letters to be made Patent, and the Great Seal of Our Province of British Columbia to be hereunto affixed: Witness His Honour , Lieutenant-Governor of Our said Province, at Our Government House, in Our City of Victoria, this day of , in the year of Our Lord One thousand eight hundred and , and in the year of Our Reign. By command. What passes 44- Crown grants of mineral claims located on lawfully occupied lands the by Crown tight whereon to enter, prospect and mine all minerals (other than coal), has grant when all been reserved to the Crown and its licencees, shall pass to the grantee all minerals (save minerals, precious or base, other than coal, found in veins or lodes, or rock in coal) have been piace( and whether such minerals are found separately or in combination with reserved. 6ach other, which may be in, upon, or under the land in the said Crown grant mentioned, and including all the rights given to mineral claim-holders of mineral claims so located in section 31 of this Act, but such Crown grant shall expressly reserve the rights of such prior occupant, and may be in the following form:— M APPENDIX A.—MINING STATUTES. (Royal Arms.) "Mineral Act." British Columbia. No. ) Victoria, by the Grace of God, of the United Kingdom of Great Britain and Poi Ireland, Queen, Defender of the Faith. To all to whom these presents shall come, Greeting: Know ye, that We do by these presents, for Us, Our heirs and successors, in consideration of (the fulfilment of the conditions of the laws providing for the acquisition of minerals other than coal), give and grant unto h heirs ninerals, precious and base (save coal), which may 1 separately o situated of the said f rock in place, and whether such minerals are found a combination with each other, under all that parcel or lot of land ceptx and numbered To have and to hold the said minerals heirs and assigns forever, excepting nevertheless [se «.] Provided also, that the grant hereby made of the said minerals shall be subject to the laws for the time being in force respecting mineral lands held in fee simple: Provided further, that it shall be lawful for any person duly authorized by Us, Our heirs and successors, to take and occupy such water privileges, and to have and enjoy such right of carrying water over, through, or under any parts of the said land as may be reasonably required for agricultural or other purposes in the vicinity of the said land, upon paying therefor a reasonable compensation to the aforesaid h heirs and assigns. In testimony whereof We have caused these Our Letters to be made Patent, and the Great Seal of Our Province of British Columbia to be hereunto affixed: Witness His Honour , Lieutenant-Governor of Our said Province, at Our Government House, in Our City of Victoria, this day of , in the year of Our Lord One thousand eight hundred and , and in the year of Our Reign. By command. located on la grant shall convey the 6 iccupied under a -— tinerals, precious and t but shall reserve the (Where the mineral claim is located on land lawfully ber lease, the C base (save coal) found timber). 45. Crown grants of mineral claims located on lawfully occupied lands, the what passes right whereon to enter and mine gold and silver has been reserved to the Crown byCrowngrant- Md* its licencees, shall pass to the grantee all the gold and silver found in veins where gold or lodes, or rock in place, which may be in, upon, or under the land in the said and silver Crown grant mentioned, and including all the rights given to mineral claim have holders of mineral claims so located in section 31 of this Act; but such Crown serve< grant shall expressly reserve the rights of such prior occupant, and may be in the following form:— (Royal Arms.) "Mineral Act." British Colum No. J ICTORIA, by the Grace of God, of the United Kingdom of Great Britai: Ireland, Queen, Defender of the Faith. To all to whom these pr shall come, Greeting: Know ye, that We do by these presents, for Us, Our heirs and s t consideration of (the fulfilment of the conditions of the laws providing for the Igmcnt shall be entered in the " Record Book;" and if by any judgnieii inal boundaries of any claim shall be changed, a plat made by a Prj Land Surveyor, and signed by the Judge by whom the judgment has bee tall be filed in the office of the Mining Recorder. APPENDIX A.—MINING , bill t sale, i >rtg£ relating to any mineral claim, mine held be recorded within the time prescribed for recording i -always, that the failure to so record any such documer same as between the parties thereto, but such dofument take effect from the date of such documet 51. No '! Of £ rceable unless the si his agent authorized in writing, ant -signed by an agent, the authority < record of such transfer. • 52. The transfer of any real es " Gold Mining Amendment Act, 181 minerals other than coal, shall be i agent authorized in waiting, and m Recorder. 53. In ca: open to locat period of twe of the death of a m by any other pt free miner ,hall hold at any one time more than under this Ji mill si te shall be as n ■of a square . On locat ng a mil site, the free following r quirements: (a) Ma rik out the la nd by pla cing a legal post (5) Pos t a notice oi i each po >t, stating— 1 The name of such f ee miner; 2 The number of his free miner's cer 3 His intent on, at th e expiration of the notice, to apply for the land as 4 The date of the no (c) Pos t a copy of such not ce on the office 56. On the expirati on of si rty days after s, the free n with the M lrthatdthe above requi cements, and said land is no •and shall furnish such the Gold Commissioner a lease, for ! Gold Commissioner. If during t to the satisfaction o [ -constructed ichinery f least fiv ill site upon payment of land. Any free miner now havi ag a lease of a upon provir g to the sat of the Gold Con •constructed works, or n aachinery for mining or 636 Mineral A 1891. Applicatio for mill sit MARTIN'S MINING CASES. [VOL. 57. On applying for a Crown grant of a mill site the free miner shall— (1) Pay the sum of five dollars per acre to the Mining Recorder; (2) Deposit with the Mining Recorder the following documents:— (a) Lease of the mill site; (6) Plat of the mill site; (c) Surveyor's original field-notes; (d) A certificate from the Gold Commissioner that works or machinery for mining or milling purposes have been put the mill site to the value of at least five hundre (e) Application for the Crown grant; , (/) Affidavit that the applicant holds no other mil him under this Act. 58. Crown grants of mill sites shall pass to the grantee all the land in the said Crown grant mentioned, but all such Crown gr pressly reserve all minerals under the said land, and the right and its licencees to enter and mine the said minerals, and ja following form:— i obtained by arface of the nts shall ex- > the Crown Victoria, by the Grace of God, of the United, Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, and so forth. To all to whom these presents shall come, Greeting: Know ye that We do by these presents, for Us, Our heirs and successors,, in consideration of the sum of to Us paid, give and grant unto h heirs and assigns, All that parcel or lot of land situate and numbered on the official plan or survey of the said in the Province of British Columbia, To have and to hold the said parcel or lot of land, and all and singular the premises hereby granted, with their appurtenances, unto the said h heirs and assigns for ever. Provided, nevertheless, that it shall at all times be lawful for Us, Our heirs and successors, or for any person or persons acting in that behalf by Our or their authority, to resume any part of the said lands which it may be deemed necessary to resume for making roads, canals, bridges, towing paths, or other works of public utility, or convenience, so nevertheless that the lands so to be resumed shall not exceed one-twentieth part of the whole of the lands aforesaid* and that no such resumption shall be made of any lands on which any buildings may have been erected, or which may be in use for the mere convenient occupation of any such buildings. Provided, also, that it shall at all times be lawful for Us, Our heirs and successors, or for any person or persons acting under Our or their authority, to enter into and upon any part of the said lands, and to raise and get thereout any minerals, precious or base, which may be thereupon or thereunder situate, and to use and enjoy any and every part of the same land, and of the easements and privileges thereto belonging, for the purpose of such raising and getting, and every other purpose connected therewith, paying in respect of such raising, getting, and use, reasonable compensation. Provided, also, that it shall be lawful for any person duly authorized in that behalf by Us, Our heirs and successors, to take and occupy such water privileges, and to have and enjoy such rights of carrying water over, through, or APPENDIX A.—MINING STATUTES. any parte of the hereditaments hereby granted, as may be reasonably for mining or agricultural purposes in the vicinity of the said heredi paying therefor a reasonable compensation to the aforesaid ivided, also, that it shall be at in that behalf by Us, Our heirs and any part of the hereditaments hereby granted, without compensation, sand, <;onstructi public wo , timber, or other ks. 1 testimony whereof We have caused these Our letters to be made patent, and the Great Seal of Our Province of British Columbia to be hereunto affixed: Witness His Honour , Lientenant-Goi of Our Province of British Columbia, at Our Government House, in Our City of Victoria, this day of , in the year of Our Lord one thousand eigl^t hundred and , in the year of Our By Command. Tu: 59. Any free miner, being the holder of a mineral claim or mine held as License to ru. real estate, may, at the discretion of the Gold Commissioner, obtain a licence tunnels and to run a drain or tunnel, for drainage or any other purpose connected with dra' the development or working of such claim or mihe, through any occupied or unoccupied lands, whether mineral or otherwise, upon security being first deposited or given to such Gold Commissioner to his satisfaction for any damage that may be done thereby, and upon such other terms as he shall think expedient. Water Righ 60. A free miner who is the holder of a mineral claim or mine held estate, or of any mill site, may, at the discretion of the Gold Coi ■obtain a grant to a water right in any unappropriated water, for any mining or milling purpose, for any term not exceeding twenty years, upon such and conditions as such Gold Commissioner shall think fit. 7 such grant, the free writing on a legal post which such water is intended to be used and a copy the office of the Mining Recorder for at least sixty shall contain the following particulars:— 61. Before applying for (1) Post a notice of the ground j of such notice "days, which notice shall contain (a) The name of each applicant; (6) The number of each applicant' (c) The name, or if unnamed, a sufficient descripti lake, or other source from which such water (d) The point of-diversion or intended ditch-head; (e) The number of inches of water applied for; (/) The-purpose for which it is required; (g) The date of the notice. (2) If more than three hundred inches are applied for, a deposit shall be made with the Gold Commissioner of if the grant is not made. 62. The grant of such water right shall be recorded in the office of the Record of Mining Recorder within the time limited for the recording of mineral chr— which time can be extended by the Gold Commissioner in his discretion. MARTIN'S MINING CASES. 63. No grant shall take effec 64. On any dispute prior to working on the stream above or be] is lawfully using such water for ai tall be deemed as appurtenant to tl te, or mill site in respect of which im or mine shall have been worked out or t for the use of the water upon the claim, tenty ceased, the grant shall be has- 67. No person shall of selling such water, • which the water was orded. 68. Within six months after the grant is made, the grantee shall commence- the construction of the ditch or other works through which he intends to cons vey the water, and shall prosecute the same diligently and uninterruptedly to> completion, unless interrupted by the severity of the weather: Provided, always; that the Gold Commissioner may, in his discretion, allow such work to cease- for any time, upon cause being shewn.' Upon the non-fulfilment of any of the- •conditions of this section the grant shall be forfeited. 69. The Gold Commissioner shall, in his discretior grantee of any water right to change the place .of d otices and complying with such terms as the Gold Coi t to be forfeited. his 71. Any person desiring to bri '> any purpose, or to mine under or t through or over any land already tion of the Gold Commissioner. Ir in possession, whether of the mine entitle him to compensation if the si i- 72. In measuring water in any observed:—The water taken into : ditch or sluice head. No water si in a trough placed horizontally at t Notice to be 73. Whenever i proaching any estate, or to dig t ered owi n shall bi property. MARTIN'S MINING CASES. .1 Act, claim, but the share of the partner who shall so fail to keep up his free miner's 1. certificate shall become vested in his partners, pro rata, according to their — former interests. s right gg_ ^ partner in any mining partnership or his agent authorized in writing shall, at any meeting thereof, be entitled to vote upon any interest Or fraction of an interest which he may hold therein; but the result of the votes given shall be determined by the number of the full interests voted upon, and not by the number of partners voting at such meeting. y to 87. A majority of such votes may decide when, how long, and in what man- isess- ner to work the partnership claim, the number of men to be employed, and the extent and manner of levying the assessments to defray the expenses incurred by the partnership: Such majority may also choose a foreman or manager, who shall represent the partnership, and sue and be sued in the name of the partnership for assessments and otherwise; and he shall have power to bind them by his contracts: Every partner, or his duly authorized agent, shall be entitled to represent his interest in the partnership property by work and labour so long as such work and labour be satisfactory to the foreman or manager. In the event of such workman being discharged by the foreman or manager the Court having jurisdiction in mining disputes may, if requested, summon the foreman or manager before it, and upon hearing the facts make such order as it shall deem just. 38. All a shall be payable within thirty days after being made. After sale, liable for debts 89. Any partner making default in payment after receiving a notice specifying the amount due by him, shall, if such amount be correct, be personally liable therefor to the partnership, and his interest in the partnership property may- be' ' sold by the partnership for the payment of the debt, and any further assessment which may have accrued thereon up to the day of sale, together with all costs and charges occasioned by such default; and if the proceeds of the sale be insufficient to pay off the several sums mentioned, the Court having jurisdiction in mining disputes upon being applied to, shall issue an order directed to the sheriff to seize and sell any other personal property of the debtor. Notices of sale shall, in either of the above cases, be conspicuously posted thirty clear days prior to the day of sale, in the vicinity of such mining or other property, and on the Court House or Mining Recorder's office nearest thereto. But if such partner be absent from the district such notices shall be posted as aforesaid sixty clear days before the day of sale, and a copy of such notice shall be published in some newspaper circulating in the district wherein such mining or other property is situate. Such sale shall be by public auction to the highest bidder. The purchaser shall be entitled to possession of the property sold, and to a bill of sale therefor signed by the auctioneer; such bill of sale shall confer such title upon the purchaser as the owner had. e 90. After a notice of abandonment in writing shall have been served on | the foreman or manager of a partnership by any member thereof, and duly recorded, such member shall not be liable for any debts or other liabilities of the partnership incurred after service and record of such I ber shall be deemed to have abandoned an interest until service and record of 91. Upon the abandonment of a to the abandoned share shall vest ir to their former interests. 92. Any partner shall be entitled to sell, or contract foi interest in the partnership property, but such all the debts of the partnership. APPENDIX i -MINING STATUTES. Limited Liability. 94. Any mining partnership composed of two or m le liability of its members, upon complying with the requi that is to say:— i declaratory Upon filing with the Mining Recorder i the name of the partnership, the loct claim, and the particular interest of each partner a conspicuous part of every such claim, in large letters, the ■ . partnership, followed by the words " Limited Liability." 96. After such conditions shall have been complied wit1 partnership shall be liable for any indebtedness incurred th an amount proportioned to his interest in the partnership. 97. Every such partnership shall keep a correct account of its assets and | liabilities, together with the names of the partners, and the interest held by bek< each, and shall make out a monthly balance sheet shewing the names of the creditors, and the amounts due to each, and file the same among the of the partnership; and such balance sheet and all the books of the partnership shall be open to the inspection of creditors at all reasonable hours. . Evei part 99. No member of such partnership, after a bill of sale conveying his inter- After sale, est has been duly recorded, or after he has served a notice of abandonment of his partner not ; interest on the foreman, and left a copy thereof with the Mining Recorder, shall h*ble for °f*?te . be liable for any indebtedness of the partnership incurred thereafter. of partnership 100. No such partnership shall declare any dividt ave been paid. 101. Every such partnership shall appoint a foreman or manager, who App shall represent the partnership, who shall sue and be sued in the name of the of foi artnership, and his contracts in relation to the business of the partnership shall be deemed to be the contracts of the partnership. .02. No such partn contracted by its fore ship shall be liable for a ership fail to comply with any of the provisions jj 103. Should any such partnership fail to comply with any of the provi: , of this Act relating exclusively to " limited liability " partnerships, such par I ships shall, from the date of such fa51"™ «"■<"> *™ ho » " "m"*a IimMI partnership. Mining Recorders—Appointment, Duties, 104. The Lieutenant-Governor in Council may appoil I Sfinmg Recorder in and for any part of the Province. 105. Where mineral land is discovers Jthat the provisions of this Act as to ft mining* property cannot be justly applied < ; Gold Commissioner or Mining Recorder in a part of the Prov: ie miners' certificates and r enforced by reason of there being no n the locality, it shall be lawful for MARTIN'S MINING CASES. [vol. eral Act, the miners of such locality to hold meetings at such times and places as may 1891. be agreed upon, and at such meetings, by a two-thirds vote, to appoint one of their number to issue free miners' certificates and to enter records of mining property; and such certificates and records shall be valid, notwithstanding any informality therein: Provided that all records so made, and all fees for the same in accordance with the Schedule to this Act, and a list of all free miners' certificates issued, and the date of the term thereof, and the fees for the same, be forwarded to the nearest Gold Commissioner or Mining Recorder as soon thereafter as practicable. Books to be kept by Min s. 107. Such free miners' certificates shall be taken from a printed book of forms, with duplicate counterfoils, one of which counterfoils shall be filed in the - office of the Mining Recorder. 108. Every Mining Recorder shall keep the following books:— (a.) A book to be known as the " Record Book " ; (b.) A book to be known as the " Record of Abandonments " ; (c.) A book to be known as the " Record of Affidavits " ; (d.) A book to be known as the " Record of Conveyances." Record of 109. Upon the application of or on behalf of any free miner, and upon claim. receipt of all the particulars required by sec. 19, the Mining Recorder shall record any mineral claim, by entering all the particulars required by sec. 19 in the Record Book, which entry shall be, as near as convenient, in the Form B in the schedule to this Act, and he shall give a copy of such entry to the free miner or his agent. The Mining Recorder shall not make any Such entry unt 1 he has received all the particulars required by sec. 19, and any entry made in violation of this section shall be absolutely void, and any company of free miners who locate and record adjoining mineral claims to be worked by them in company as a mining partnership, as provided in Part III. of this Act, shall be allowed to perform upon any one of such claims all the work required to entitle > them to a certificate for work done for each claim held by such company, and upon being satisfied by affidavit, setting out fully the particulars of such work,, that it is equal to one hundred dollars for each claim held by such company, the Mining Recorder shall issue a certificate for work for each of such claims. Issue of certifi- HO- Upon receipt of an affidavit setting forth a detailed statement of work, cate. as required by see. 24, the Mining Recorder shall issue a certificate of work in. the Form E in the Schedule to this Act. Filing and HI. Upon issuing such certificate of work, the Mining Recorder shall file- record of affi- sucn affidavit and record the same in the Record of Affidavits, and also reco d davit and cer- such certificate of work in the Record Book, tificate. Record of certificate of im- re What Recor- 113. The Mining Recorder shall record all extensions of time, licencees, per- dermust re- mits, grants of water rights, and other privileges granted by the Gold Coram: s- cord. sioner or Mining Recorder, and all forfeitures declared by the Gold Commis sioner, and a memorandum of every judgment affecting a mineral claim or other mining property, in the Record Book. Record of 114. Upon the receipt of a notice of abandonment, the Mining Recorder shall' j abandonments record the same in the Record of Abandonments, and file such notice, and write across the record of the claim affected by such notice, in the Record Book, the- j word " Abandoned," and the date of the receipt by him of the notice. If on y 116. The Mining Recorder shall record, by copying c Record of Conveyances, all conveyances, mortgages, bills of sale, < sale, and other documents of title, including powers of attorney, or other a 11 or any of the above description of documents o him for that purpose. 117. The Mini shall file all such 120. Every copy of, of any document filed in the Mil or extract by the Mining Recorder, shall be of the matters therein contained. 121. Upon receipt from the holder of a certificate o application for a Crown grant, in the proper form, and all moneys payable in c respect of the claim for which a Crown grant is applied, the Mining Recorder r shall send such moneys, together with the under-mentioned papers, to the Gold a (1.) The certificate of impr (2.) Affidavit of the holder of the $.) Affidavit of the Provincial Land Survey (4.) A copy of the plat of the mineral claim; (5.) The Surveyor's original field- (6.) An application for the Crown gr 122. Upon receipt fr< :s mentioned in sec. i | Commissioner. 123. Before issuing any free miner's certificai certificate of work, or making any entry document, or making any copy or extract therefi I collect the fees payable in respect thereof. 124. On being s atisfied that at least two hundred dollars' worth of work has Ce rear on any mine held as real estate, by an affidavit setting tvo culars of the work done, the Mining Recorder shall issue to mine a certificate of work, shewing that such work has been done. The year i l this section shall be deemed to commence on the first of January of each y 125. It shall be lawful for the Lieutenant-Governor in Council to divide and ]V [subdivide any district into mining divisions, and to establish in each mining d I division a Mining Recorder's office. 1891. Effect of establishme of Recorder ing district. MARTIN'S MINING- G^SES. (a.) Such office, and none other, shall be the proper office for recording all claims, records, certificates, documents, or other instruments affecting'v claims, mines held as real estate, or mining property situate within such mining division; and whenever, by this Act, or any Act amending the same, any thing is required to be done at or in the office of the Gold:- Commissloner or Mining Recorder of the district, it shall, if the same affects or concerns any claim, mine held as real estate, or mining property situate within a mining division, be done at or in the office of the Mining.-| Recorder of the mining division wherein such claim or mine, or other mining property, is situate; (b.) Upon the district or division of any Mining Recorder being divided' or subdivided into mining divisions, it shall be the duty of such Minings Recorder to make, or cause to be made, a transcript of all the entries in all the books mentioned in sec. 108, affecting claims, mines held as real estate, or mining property, situate in each newly created mining division, and to forward the same to the Mining Recorder of such mining division, and such transcript shall be kept in such office as part of the records of such office, and all transcripts of such records, certificates, documents, or other instruments shall prima faeie be deemed to be true copies of the several records, certificates, documents, or other instruments of which they purport to be transcripts; and such transcripts or copies thereof, when certified by the Mining Recorder of the mining division in whose- office they are kept, shall be admissible in evidence in all Courts eg Judicature in this Province. 127. When there shall be no Mining Recorder for a district or division, the ties of the Mining Recorder shall devolve upon the Gold Commissioner, and it ill at all times be lawful for the Gold Commissioner to perform the dutifflg and the Gold Commissioner shall have all the powers of a Mi ing Recorder. 128. The Mining Recorder's office shall be open upon such days and hours as the Lieutenant-Governor in Council may from time to time appoint, and failing any particular appointment shall be kept open upon all days excepting public holidays, from 10 a. m. to 4 p. m., and such times shall be deemed the office hours of such office. Part V. Tu nd 1 e Gold Commissioner 129. It shall be lawful for, but not incumbent or mine held as real estate, to run a drain or tunnel for any purpose connected, with the development or working of such claim or mine through any occupied or unoccupied lands, whether mineral or otherwise, upon security being deposited or given to him to his satisfaction for any damage that may be done thereby, and upon such other terms as he shall think fit. Wate . It shall be lawful for, but n nabent upon, the Gold Commissioner a water right to any free miner who is the lawful holder of a mineral ine held as real estate, or mill site, in any unappropriated water, for ing or milling purpose, for any term not exceeding twenty years, and I] APPENDIX A.—MINING STATUTES. upon such terms and conditions as the Gold Commissioner shall think fit, upon Mi being satisfied that all the conditions of sec. 61 have been complied with. And in all cases where he shall think fit to extend the time for the recording of the grant of such water right. 131. On the expiration of the grant to any such water right, it shall be Rei lawful for, but not incumbent upon, the Gold Commissioner to renew such grant gra: for a further period not exceeding ten years, on being satisfied that the necessity rigl for the use of the water for the purpose for which it was originally granted continues to exist. 132. Upon proof that any grantee has not complied with all or any of the Forfei conditions upon which grants of water rights are held, the Gold Commi may declare the grant to be forfeited. 133. When such grant shall have been declared forfeited, the Gold Commissioner shall cause such forfeiture to be recorded by the Mi Record Book. 134. The Gold Commissi, change the place of diversioi such change. 135. The Gold Commissioner may, in all proper in writing to any person desiring to bridge any stream, cla: for any purpose, or to mine under or through any ditch or water through or over any land already occupied, and to any person heretofore or hereafter engaged in the construction of any road or work, to cross, divert, pr otherwise interfere with any ditch, water privilege, or other mining rights whatsoever, for such period as the said Commissioner shall think fit. 136. The Gold Commissioner may order th pipe to make good, in such manner as such Gold Commissi all damages which may be occasioned by or through any such ditch, flume, or pipe breaking or being imperfect. 137. The Gold Commissioner shall issue to the lawful holder claim a certificate of improvements in respect of such claim upon being satisfied tific that such holder has complied with all the requirements of sec. 36 of this Act, pTOi and that such claim is not in litigation. 138. The Gold Commissioner shall have power to allow a fi adjoining mineral claims to perform upon any one of such cla required to entitle him to a certificate of work for each such being satisfied by an affidavit setting out fully the particulars shall direct the Mining Recorder to issue a certificate of work for claim. 139. The Gold Commissioner may in his discn re-locate a mineral claim, or any part thereof, which may have been abandoned cla or forfeited by such free miner: Provided that such re-locations shall not prejudice or interfere with the rights or interests of others. 140. The Gold Commissioner may mark i -of leavings and deads from any tunnel, claim as he may think just. 141. The Gold Commis.' of the public, any public r shall have a as not to ir or highway MARTIN'S MINING CASES. ing claims, bed-rock drains, or bed-rock fl by his order be either filed up or guarded cost of the parties who may have constructed the s upon such terms as he shall think fit. Crown grants 142. Notwithstanding anything contained in the ' under "Gold Act, 1873," or in any Crown grant issued under the """^AlA any other Act, it shall be lawful for the Gold Commiss ' with or without any terms or conditions, to allow claims all such rights or privileges in and over minei real estate as may be allowed in and over claims n< claims held as real estate shall be entitled to the sat owners of claims not so held. Mineral Act, claims. Gold Mining Amendment or other claims held a so held; and owners o rights and privileges a Iss 143. Upon receiving an application for a mill site from any free miner, and upon proof being furnished to his satisfaction of the non-mineral character of the land applied for, and the deposit in duplicate of a plat of said land, and upon proof of affidavit that the applicant has complied with the requirements of sec. 55 of this Act, the Gold Commissioner shall issue to the applicant a lease of such land for one year, in the form in the Schedule to this Act. Certificate of 144. Upon being satisfied that the lessee of a mill site hai work on mill thereon works or machinery or mining or milling purposes t slte- less than five hundred dollars, the Gold Commissioner shall to that effect. c construcfiffi-. lis certificate to forward 145. Upon receipt from the Mining Recorder#of the moneys and documents mtioned or referred to in sees. 121 and 122, the Gold Commissioner shall tisfy himself that the same are in order, and then forward the same to the tief Commissioner of Lands and Works. to mimissioner 147. The Gold Commissioner shall take possession of the min: take estate of any deceased free miner, and may cause such mining property ked, or dispense therewith at his option. deceased miners. -yg. The Gold Commissioner, or any person authorized by him, shall take I Commissioner charge of all the property of any deceased free miner until the issue of letters | estate r8*^ of administration or probate of the will, if any : Provided, however, that where tate deceased8 any free m'ner sna'" die intestate, and the value of the personal estate of such miner. deceased free miner is less than three hundred dollars, it shall n for the Gold Commissioner to obtain from any Court letters of administration but in such case the Gold Commissioner may administer and wind up the personal estate of the deceased, and do all'things necessary and proper therefor i and act in all respects as if letters of administration to the personal estate such deceased free miner had been granted to such Gold Commissioner, and t Gold Commissioner shall produce and pass his accounts, in each estate of which : he shall undertake the administration, before a Judge of the County Court of j the district. Paet VI. County Courts. Jurisdiction, Procedure, Forms, and C Jurisdiction of 149. In addition to the jurisdiction and powers given to County Courts by [ County Courts the " County Courts Jurisdiction Act," and other Acts, every County Court shal j in mining have and exercise, within the limits of its district, all the jurisdiction £ matters. powers of a Court of Law and Equity— APPENDIX A.—MINING STATUTES. <2.) In all actions betweei is directly connected j mining) ; <3.) In all actions for supplies to persons engaged in mining, where such supplies were bought, contracted for, or supplied, or were alleged to have been bought, contracted for, or supplied for mining purposes, or for consumption by persons engaged in mining or prospecting; <4.) In all actions of trespass on or in respect of mineral claims or other mining property, or upon or in respect of lands entered or trespassed on, or claimed to have been entered or trespassed on, in searching for, mining, or working minerals (other than coal), or for any other purpose directly connected with the business of mining (other than coal mining), or in the exercise of any power or privilege given, or claimed to be given, by this Act, or any other Act relating to mining (other than coal mining) ; (5.) In ; s of ejectment from mineral claims or other mining >m lands entered, or claimed to have been entered, in ining, or working minerals (other than coal), or for any connected with the business of mining, or entered, or i been entered, under some power, right, or authority 5 of thi 11 suits for foreclosure or redemptio , where the mortgage, charge, or li or other mining property; 11 suits for specific performance of, mine, or other mining property; proceedings for orders in the nature of injuncti requisite for the granting of relief in a m is given to the County Court by this A ven to County Court of the County Court r printed on all sumr ^350. The jurisdiction ; le " mining jurisdiction' diction " shall be written and all other documents in evei I jurisdiction of the County Court. 151. County Courts and County Court Judges, Registrars, Sheriffs, and Power of other officers, shall have the same duties, powers, privileges, and authorities in County O " actions and suits, and other proceedings brought under the mining jurisdic- n of the County Court, as they now have, or at any time hereafter may have, actions and suits and other proceedings brought under, the ordinary jurisdic- m of the County Court, and the provisions of all Acts for the time being in force regulating the duties and powers of County Courts and County Court Judges, Registrars, Sheriffs, and other officers, and regulating the pr procedure in County Courts, and all Rules and Orders for the time being MARTIN'S MINING CASES. [vol. il Act, applicable to the ordinary jurisdiction of the County Court, shall, so far^ as 11. practicable and not inconsistent with this Act, apply to the mining jurisdiction — of the County Court. ng 152. Where disputes arise concerning mining property, portions whereof are s. situated in adjoining or different districts, the County Court of either of such districts before which the dispute is first brought shall determine it. nses 153. The hearing of any summons, plaint, or other process in any County ble Court shall not be deferred beyond the shortest reasonable time necessary in th. the interests of all parties concerned, and it shall be lawful for the Registrar to r other proceedings returnable forthwith, or at any other Court may 154. In all mining actions or suits the Court may decide the question at issue - decide on the upon the ground in dispute, and such decision shall be entered as in ordinary ground. cases, and have the same virtue and effect as if rendered in Court. Issues of fact 155. In any mining cause or suit, either party may require that the issues may be found of fact shall be tried by a jury, and the Judge may, before delivering judgment by jury. m auy action, suit, or other proceeding, direct all or any issues of fact to be found by a jury. Costs. 156. In all actions, suits, and other proceedings within the mining jurisdic tion of the County Court, the Judge may order that costs be taxed on the higher or lower scale allowed by the County Court Rules; or if he shall consider the case of sufficient importance, he may order that costs be taxed as in the Supreme Court, and the costs so ordered shall be the costs recoverable in such action, suit, or other proceeding. County Court 157. Every County Court having jurisdiction in mining disputes shall, with has jurisdic- reference to real estate held under the " Gold Mining Amendment Act, 1873, tion over land 0r under this Act, and notwithstanding any law to the contrary, have the san an certain powers and authorities to decide all matters or disputes arising between tl cases- owners thereof, or between the owners thereof and any third person, or betwee mining joint stock companies, or between shareholders therein, or between them and the company, in the same way and as fully as it might do concerning claims not being real estate; and actions, suits, and other proceedings relating to such matters or disputes shall be brought and had in the same manner as actions, suits, or proceedings relating to mining claims not being real estate. Writs of capias 158. Any County Court Judge having jurisdiction in mining causes, mat ad responden- direct the issuing of writs of capias ad respondendum, ne exeat regno, and coptoi dum, ne exeat ad satisfaciendum in all cases in which by law he has jurisdiction over thf regno and subject-matter of the suit, but under and subject to such conditions as a Judge j ^?sfac'endum °* tne Supreme Court might usually require in applications of a similar nature. Part VII. Penal and Miscellane, 159. Any person wilfully acting in cont i obey any lawful order of the Gold Commiss Court shall, on conviction thereof in a sui of the Peace or a Stipendiary Magistrate, oi jurisdiction in mining disputes, be liable t and fifty dollars, or to imprisonment, with c not exceeding three months. 160. All fines and penalties imposed or payable unde recovered by distress and sale of any mining or other perst offender; and in default of sufficient distress by imprisonme hard labour, not exceeding three months. avention of this Act, or refusing t< oner or of any Judge presiding in s tmary way before any two Justice! before any Judge of a Court having ■ a fine not exceeding two hundred c without hard labour, for any t« this Act may t lal property of the I t, with or wjthout j SCHEDULES. Form A. Location Notice. Mil 1. to be known as feet in length. ; have this day located this ground the ' Mineral Claim, The direction of the centre line is Dated this day of , 189 . Take care to n umber the posts 1, 2, 3, \ I the Consolidated Revenue Fund of Bri 162. Nothing herein contained shal, _. stated, be so construed as to affect prejudicially any facquired prior to the passing of this Act; heretofore and, hereunder acquired shall, without the be deemed to be taken and held subject to the right' and successors, and to the public righ 164. Affidavits and declarations made under the provisions of this Act shall Before w be made before some Judge or Registrar of a Court of Record, or before a _ Gold Commissioner, -Mining Recorder, Stipendiary Magistrate, Justice of the be made. Peace, Notary Public, or Commissioner for taking affidavits. Repealing Clai 165. The Acts and parts of Acts mentioned in this section shall stand repealed and be repealed; but such repeal shall not be deemed to imply that any of tithe said Acts or parts of Acts which have been repealed at any time prior to the passing of this Act have been in force since such repeal: Provided further, that ("such repeal shall not affect any rights acquired, or any liabilities or penalties incurred, or any act or thing done, under any of the said Acts or parts of Acts:— Paragraph (i) in Schedule A. of the "Licences Act." (tSi/ffhe "Mineral Act," save and except sees. 4, 5, 6, 13, 19, 20, 22, 27, 28, and 29. " An Act to amend the ' Mineral Act, The " Mineral Amendment Act, 1890.'' Paragraph (i) in Schedule A of the " Section 79 of the " Companies Act." MARTIN'S MINING CASES. FOEM B. Record of Mineral Claim. Mi No. of Certificate i Set out the name of each \ \ locator, and the No. of | •< each locator's free min- ':- er's certificate, opposite ; \ such name. The claim is situate The direction of the centre line is The length of the claim is feet. The claim was located on the day of Recorded this day of , 189 . Located in the partnership name of The members of the partnership, and the Nos. of thei certificates are—i The claim is situate The direction of the centre line is The length of the claim is feet. The claim was located on the day of Recorded this day of , 189 Fobm D. Application for Certificate of Work. AlTITDAVIT. I, , of , in the District free miner, make oath and say:— I have done, or caused to be done, work on the Mineral Claim, situate at , in the District of value of at least one hundred dollars, since the day c The following is a detailed statement of such work:— [Set out full particulars of the work done in the six mo work is required to be done by sec. &£.] Sworn, &c. [This affidavit may be made by an agent, and can be alte stances.] Dated y office, and in pur- Min I Cla . Take notice that I, , free miner's certificate No. , intend, sixty days from the date hereof, to apply to the Gold Commissioner for a certificate of improvements, for the purpose of obtaining a Crown grant of the tbove claim. And further take r.otiVe. that adverse claims must be sent to the Gold Commissioner and action commenced before the issuance of such certificate of improvements. Dated this day of , 189 . I, , of make oath and s 1 Land Surveyor. 1. I am an authorized Pr< 2. I have surveyed the Mineral Claim, and made three plats thereof. 3. I have placed one such plat on the No. 2 or centre post of the claim (or on a post as nearly as possible to the centre or No. 2 post of the claim). 4. I have accurately defined the boundaries of the claim, by placing monu- 5. I have examined the work done on the mine itself for the development thereof, and the particulars of such work are as follows:— i{Set out fully particulars of work, excluding houses, buildings, and other Kfos improvements.] 6. The value of the above work, to the best of my belief, is 7. A vein or lode has been proved to my satisfaction to exist on the claim. Sworn, &c. affidavit. Any mere verbal alteration will not affect the affidavit.] MARTIN'S MINING CASES. Form H. Application for Certificate of Improvem APPLICANT'S AFFIDAVIT. I, , of , in the District ( miner, make oath and say:— 1. I am the holder and Mineral Clain sion) of 2. I have done, or caused to be done, work on the said claim in developing a mine to the value of at least five hundred dollars, full particulars whereof are hereunto annexed and marked " A." [Particulars must be exclusive of all houses and other like improvements.^: 3. I have found a vein or lode within the limits of the said claim. 4. I have had the claim surveyed by , who is an authorized \ Provincial Land Surveyor, who has made three plats of the said claim. 5. The said surveyor has placed one such plat on the No. 2 or centre post of i the said claim (or on a post as near to the No. 2 or centre post as possible). 6. I have posted a copy of the notice hereunto annexed, and marked " B," on the same post as the said plat is posted, and another copy on the Mini! g£ I Recorder's office at , which said notice and plat have been posted for at least .sixty days prior to the date of this affidavit. 7. I have inserted a copy of the said notice in the British Columbia Gazette, J and in the , a newspaper circulating in the district in which the said claim is situated, for at least sixty days prior to the date of this affidavit. Sworn, &c. [This affidavit may be made by an agent, and can be altered to suit eircum- | Certificate of Improvements. Mineral Claim. This is to certify that , of , in the Distri$8[|f J , free miner's certificate No. , has proved to r satisfaction that he has complied with all the provisions of the " Mineral Act | | to entitle him to a certificate of improvements in respect of the Mineral Claim, situate at , in the District of ; and in 1 pursuance of the provisions of the said Act I do now issue this certificate of improvements, in respect of the above claim, to Dated Gold Commissioner: j s applied for wit Form J. Application for Crown Grant of Mineral Claims. Mineral Claim. To the Mining Recorder of Sir,—I herewith enclose the sum of dollars and the following j documents, relating i Certificate Affidavit of ( Affidavit of Copy of plat of claim. ' Copy of surveyor's field-no: And I do hereby apply for APPENDIX A.—MINING' STATUTES. (surveyor's affidavit). Dated Take notice that I, , free n the date hereof, to apply at , in tl Dated Form K. Mill Site. Notice. , of t-tificate No. Mill Site. AFFIDAVIT of Applicant prior to Lease. I, , of free miner, make oath and sa , in the District of 1. I have marked out the a legal post at each corner. land required by me for a mill si te, by placing 2. I have posted a notice marked " A." on each such post, and on the Min copy of which notice is hereunto ng Recorder's annexed, and 3. The said land is not k of my knowledge and belief, rateable as mineral land. t, to the best 4. I hold no other mill s 53 of the " Mineral Act." ite obtained by me under the prov Form M. Lease of Mill Site. isions of sec. This indenture, made the day of , 189 , between , the Gold Commissioner for the District of (hereinafter called the lessor), of the one part, and , of in the District of , free miner (hereinafter called the lessee), of the other part, witnesseth, that in exercise of the powers vested in him by the "Mineral Act," he, the said lessor, doth hereby demise unto the said lessee, bis executors, administrators, and assigns, all that [Describe the mill site.] for the term of one year from the date hereof, subject conditions of the " Mineral Act" relating to mill sites. In witness whereof, the said parties have hereunto set Signed, sealed, and delivered ) the MARTIN'S MINING CASES. Mineral Act, 1891. Form N. Mill Site. Affidavit of Applicant prior to Crow I, .of , in the Distric sntioned in indenture of leasef free miner, make oath and say:— 1. I am the lawful holder of the mi dated and made between 2. During the year mentioned in such lease as the term thereof, I put or constructed works or machinery, for mining or milling purposes, on the said mill site, of the value of at least five hundred dollars. 3. I hold no other mill site obtained by me under the provisions of sees- 53, 54, and 55 of the " Mineral Act." Sworn, &c. Certificate of Improvements. to certify that ■ has put or constructed works or machinery, or milling purposes, to the value of at least five hundred dollars, site described in and demised by indenture dated the day of , 189 , and made between existence of such lease. r Drain Licence lat , a free miner and the owner of , having given security to the amount of for any damage he may do, has this day obtained a licence froi a tunnel (or drain) from to his said claim (or mine). The said licence is granted on these express conditions:—- [Set out conditions, if any.] Dated Gold C01 Form Q. Mill Site. To the Mining Recorder at Sir,—I enclose herewith the mentioned documents:— Lease of mill site. Plat of mill site. Surveyor's field-notes. Certificate of improvements. Affidavit of applicant. And I now apply for a Crot mentioned lease. dollars and the under- e demised by the above- J The purpose Dated hes of water to be applied for 'hich such water is required is Scale of Fees to be Charged. For every free miner's certificate (for each year) $5 00 Every substituted certificate 1 00 Recording any claim 2 50 Recording every certificate of work 2 50 Recording any " lay over," or every other record required to be made in the " Record Book " ? 2 50 Recording every abandonment, including the memorandum to be written on the record 2 50- r any other record made in the " Record of Abandon] r recording every affidavit, where the same does not exceed three folios of 100 words 2 50 I every folio over three, 30 cents per folio. The above rate shall be charged for all records made in the "Record of Affidavits." r all records made in the " Record of Conveyances," where the same do not exceed three folios 2 50' ir every folio over three, a further charge of 30 cents per folio. For all copies or extracts from any record in any of the above-named books, where such copy or extract shall not exceed three folios, per copy 2 50 Where such copies or extracts exceed three folios, 30 cents per folio for every folio over three. : For filing any document 1 0O MARTIN'S MINING CASES. 54 Vict. Chap. 26. An Act relating to Placer Min [20th April, 1891.] Short Title. 1. This Act may be cited as the " Placer Mining Act, 1891." Interpretation. a 2. In the construction of this Act the following expressions shall have the following meanings respectively, unless inconsistent with the context:— i- "Mine," " placer mine," and " diggings," shall be synonymous terms, and shall mean any natural stratum or bed of earth, gravel or cement mined for gold or other precious minerals; " Placer claim" shall mean the personal right of property or interest in any placer mine; and in the term " mining property " shall be included every placer claim, ditch, or water right used for placer mining -piifl| poses, and all other things belonging thereto or used in the working thereof. Placer claims shall be divided into creek diggings, bar diggings, dry diggings, bench diggings, and hill diggings; i the bed of any river, stream, which a river extends when ih^ ] "Dry diggings.' " Bench diggings.' " Dry diggings " shall mea: "Bench diggings " shall m< pose of defining the siz " dry diggings;" "Hill diggings " shall meai ally c " Ditch " shall include a flume, pipe, race, or other artificial means for conducting water by its own weight, to be used for mining purposes; " Ditch head" shail mean the point in.a natural watercourse or lake where water is first taken into a ditch; " Free miner" shall mean a person, or joint stock company, or foreign company named in, and lawfully possessed of, a valid existing free miner's certificate, and no other; " Legal post" shall mean a stake standing not less than four feet above the ground, and squared or faced on four sides for at least one foot from the top, and each side so squared or faced shall measure at least four inches on its face so far as squared or faced, or any stump or tree cut off and squared or faced to the above height and size; " Record," " register," and " registration," shall have the same meaning, : and shall mean an entry in the official book kept for that purpose; appenPj^) a:!-H8KpS?ng statutes. "Record," when us$rL y$thon$ aerifying words shewing that a different Placer A< matter is referred to, shall be taken to refer to the record of the loca- 1891i tion of a placer claim; "Full interest" shall mean any placer claim of the full size, or one of "^iT^'' several shares into which a mine may be equally divided; " jnterest." I Close season" shall mean the period of the year during which placer " Close claims in any district are laid over by the Gold Commissioner of that s district; | Cause " shall include any suit or action; "Judgment" shall include " order j" or "decree;" | Real estate " shall mean any placer mineral land held i: "Judgment." "Reales ■ Joint Stock Company " shall mean any company duly incorporated for "Joint Stock mining purposes under the "Companies Act," "Companies Act, 1890," Co." and any company duly incorporated in British Columbia for mining purposes under the "Companies Act, 1862" (Imperial), and shall include all companies falling under the definition of a foreign' company in the " Companies Act." Part I. Free Miners, and their Pr and shall be considered a fi A minor who shall become I .and- liabilities contracted i A free miner's certificate issued s corporate name. A free mine upon taking out a free miner's certificate. ner, shall, as regards his mining property therewith, be treated as of full age. joint stock company shall be issued in •tificate shall not be transferable. 4. A free miner's certificate may be granted for one or more years, to run I from the date thereof, or from the expiration of the applicant's then existing c icertificate, upon the payment therefor of the fees set out in the Schedule of Fees o this Act. Only one person or one joint stock company shall be named j?ee, therein. 5. A free miner's certificate shall be in the following form:— British Columbia. Free Miner's Certificate. not transferable. Valid for year only. certify that of has s entitled to all rights and privileges e day of , 18 . paid me this day the of a free miner, for (Signature of Gold, Gomn issioner or Mining Rec e may be.) 6. If any person or joint stock company shall apply for a free miner s cer- Mode of r£ tificate at the Mining Recorder's office during his absence, and shall leave the newai0f ct fee required by this Act with the officer or other person in charge of the said tin( [ office, he or it shall be entitled to have such certificate from the date of such j i application; and any free miner shall at any time be entitled to obtain a free MARTIN'S MINING CASES. [VOL. Penalty for mining without certificate. : miner's certificate commencing to run from the expiration of his then existing: free miner's certificate, provided that when he applies for such certificate he' shall produce to the Mining Recorder, or in case of his absence shall leave- with the officer or other person in charge of the Mining Recorder's office, such existing certificate. 7. If any free miner's certificate be accidentally destroyed or lost, the owner thereof may, on payment of the fees set out in the Schedule to this Act, have a true copy of it, signed by the Mining Recorder, or other person by whom or out of whose office the original was issued. Every such copy shall be marked " substituted certificate;" and unless some material irregularity be shewn in respect thereof, every original or substituted free miner's certificate- shall be evidence of all matters therein contained. 8. Every person and joint stock company engaged in placer mining shall take out a free miner's certificate, and any person or joint stock company who mines or works as a miner in any placer claim, or on any bed-rock flume, drain or ditch, without having taken out and obtained such certificate, shall, on conviction thereof in a summary way, forfeit and pay a penalty not exceeding Proviso twenty-five dollars, besides costs: Provided, always, that nothing herein con tained shall prejudice the right to collect wages or payment for work done by any person or company, who, through not being a free miner, has rendered himself or itself liable to the above penalty. Unless a per- ^- No person or joint stock company shall be recognized as having any son holds cer- right or interest in or to any placer claim, mining lease, bed-rock flume grant, ' tificate he shall or any minerals in any ground comprised therein, or in or to any water right, have no right mining ditch, drain, tunnel, or flume, unless he or it shall have a free miner'* to mining pro- certificate unexpired. And on the expiration of a free miner's certificate the perty. owner thereof shall absolutely forfeit all his rights and interest in or to any placer claim, mining lease, bed-rock flume grant, and any minerals in any ground comprised therein, and in or to any and every water right, mining ditch, drain, tunnel, or flume, which may be held or claimed by such owner of such expired free miner's certificate unless such owner shall, on or before the day following the expiration of such certificate, obtain a new free miner's Proviso. certificate: Provided, nevertheless, that a shareholder in a joint stock com pany need not be a free miner, and, though not a free miner, shall be entitled to buy, sell, hold, or dispose of any shares therein: And, provided, also, that this section shall not apply to placer mines for which a Crown grant has been Right of cer- -"-^- Every free miner shall, during the continuance of his certificate but tifioate-holder I0* longer, have the right to enter, locate, prospect, and mine for gold and to prospect. other precious metals upon any lands in the Province of British Columbia, whether vested in the Crown or otherwise, except upon Government reservations for town sites, land occupied by any building, and any land falling within the curtilage of any dwelling house, and any orchard, and any land lawfully occupied for placer mining purposes, and also Indian reservations. Free miner to !!• Previous to any entry being made upon lands already lawfully occupied, give security such free miner shall give adequate security, to the satisfaction of the Gold for damage Commissioner, for any loss or damage which may be caused by such entry; and caused by en- after such entry he shall make full compensation to the occupant or owner of , try on land. Right to cu timber form, ing purpose such lands for any loss or damage which may be caused by reason of such entry; such compensation, in case of dispute, to be determined by a Court having jurisdiction in mining disputes, with or without a jury. 12. Any free miner may enter upon any Crown lands, or lands covered by n- timber leases, or any lands the timber whereon has been reserved by the Crown, i . to cut timber for mining purposes. APPENDIX A.—MINING ST^TtlTES, Sizi Loca ing, Recording, Re-recording, Working and Lay-overs. 15. Every free miner shall be entitled to locate and record a placer claim What claims on each separate creek, ravine, or hill, but not more than two claims i " the same locality, only one of which shall be a creek claim. He shall be record and allowed to hold any number of placer claims by purchase, and every free miner purchase, may sell, mortgage or dispose of his claim or any interest therein. 16. The size of placer claims shall be as follows:— A " creek claim " shall be 100 feet long, measured in the direction of the s.iz.e of P]aoer general course of the -stream,- and shall extend in width fror ' base of the hill or bench on each side, but when the hills or benches are less than 100 feet apart the claim shall be 100 feet square; In " bar diggings " a claim shall be a strip of land 100 feet long at high water mark, and in width extending from high water mark into the river to its lowest water level; In " dry diggings " a claim shall be 100 feet square; In " bench diggings " a claim shall be 100 feet square: Provided that the Gold Commissioner shall have authority, when a bench is narrow, to extend the limits of the claim beyond the limits of the bench, but not to exceed 100 feet square: In '' hill diggings " a claim shall have a base line or frontage of 100 feet, I drawn parallel to the main direction of the stream or ravine on which it fronts. Parallel lines drawn from each end of the base line, at right angles thereto, and running to the summit of the hill, shall c the side lines thereof. Legal posts shall be placed, 100 feet apart, on both the base line and side lines, and no claim shall extend beyond the posts so placed. [ 17. If any miner, or party of free miners, discover a new mine, and such gjze 0f clait I* discovery is established to the satisfaction of the Gold Commissioner, placer on discover claims of the following sizes, in dry, bar, bench, creek, or hill diggings shall of n i be allowed, viz.:— To one discoverer, one claim 300 feet in length; i To a party of two discoverers, two claims amounting together to . • 600 do I To a party of three discoverers, three clain together to 800 do I To a party of four discoverers, four claims, amounting together to 1.000 do I And to each member of a party beyond four in number, a claim of the ordinary size only. A creek discovery claim shall extend on each side of the o as far as the summit of the hill, but not exceeding 1,000 feet. 18. A new stratum of auriferous earth, gravel, or cement, situated in a Nev ■locality where all placer claims are abandoned, shall be "deemed a new mine, where a although mines in the same locality shall have been previously worked; and claims a MARTIN'S MINING CASES. Placer Act, dry diggings disqovered in the v 1891. mine, and vice versa. A discovei claim, in respect to recording, w rinity of bar diggings shall be deemed a new ir's claim shall be considered as one ordinary irking and representing. Locating, Recording, Re-recording, Shape of claim 20. Every placer claim shall be as near and how and marked by four legal posts at the coi marked. ground. One of such posts shall be mark that post shall be placed a legible notice ir claim, its length in feet and general direc and name of each locator. If any side line in length, legal posts shall be placed along : ceeding 100 feet. i Sunday or as possible rectangular in form,; ers thereof, firmly fixed in the I as the " initial post," and on writing, stating the name of the on, with the date of the notice f any claim shall exceed 100 feet,'; - public holiday shall i Disputes as to 22- In case of any dispute as to the title to a placer claim, the title to the title to claim, claim shall be recognized according to the priority of such location, subject to any question as to the validity of the record itself, and subject further to the free miner having complied with all the terms and conditions of this,.Acfr ; M Record of 23. Every free miner locating a placer claim shall record the same with the Mining Recorder of the district or division' within which the same is situate, -within three days after the location thereof, if located within ten miles of the office of the said Mining Recorder. One additional day shall be allowed for making such record for every additional ten miles or fraction thereof. Such record shall be made in a book to be kept for the purpose in the office of the said Mining Recorder, to be known as the " Record Book," in which shall be inserted the name of the claim, the name of each locator, the number of each locator's free miner's certificate, the locality of the claim, its length in feet, the period for which such record is granted, the date of location, and date of the record: Provided that a free miner shall not be entitled to a record of a claim until he shall have furnished the Mining Recorder with a written statement of the above particulars. Ferfeiture bv 24- ^ter tlle recording of a placer claim, the removal of any post by the removaLof holder thereof, or by any person acting in his behalf, made for the purpose posts. of changing the limits of his claim, shall act as a forfeiture of the claim. When records 25. Upon the establishment of a mining division and the opening of a Mining are to be made. Recorder's office therein, under the authority of this Act, such office and none other shall be the proper office for recording all placer claims within such mining division, and making all records in respect thereof. ,d 26. If through ignorance any free miner shall record a placer claim in a different district or mining division to that in which such claim is situate, such error shall not affect his title to such claim, but he shall within fifteen days from the discovery of his error, record such claim in the district or mining division in which it is situate, and such new record shall bear thei date of the first record, and a note shall be made thereon of the error and of the date of the rectification of the same. 27. A free miner having duly located cord the same for one or more years, upon Schedule to this Act. plac • clain MARTIN'S MINING CASES. Holder of placer clain has no right [VOL. 37. The holder of a placer claim shall have no right to any vein or lode, as defined by the " Mineral Act, 1891," within the limits of such placer claim, unless he shall have located and recorded the ground as a mineral claim; and until he shall so locate and record such ground, the same shall be open to any free miner to locate and record as a mineral claim. 38.- Every placer claim as defined by this Act shall be represented and bona fide worked by the holder thereof, or by some person on his behalf, continuously, as nearly as practicable, during working hours, and shall be deemed to be abandoned and absolutely forfeited when the same shall have remained unworked on working days by the holder thereof, or some person on his behalf, for the period of seventy-two hours, except during the close season, some layover, or leave of absence, or during sickness, or for some other reasonable cause which shall be shewn to the satisfaction of the Gold Commissioner. sence for one year froi j) Upon proving to the Gold Commissioner that he or they has or have expended on such claim, or on any portion of the set of claims, in cash, labour, or machinery, an amount equal to one thousand dollars on each full interest, without any return of gold or other minerals in reasonable quantities from such expenditure: and Such leave of absence shall not be deemed to relieve the holder of such claim or set of claims from carrying out the provisions of this Act respecting free miner's certificates, records and re-records of such claims; nor shall this section affect the discretionary power of the Gold Commissioner with respect- to granting a leave of absence under other conditions. Forfeitures ab- 40. Eve r equity t i place twithsi shall be absolute, any rule of law Claims record- 41. No placer claim located and recorded in any district within fourteen ed 14 days be- days before, or at any time during the close season, shall be deemed to be fore close sea- laid over, unless so much work shall have been bona fide done thereon by the son not en- bolder thereof as shall, in the opinion of the Gold Commissioner, fairly entitle titled to lay him tQ haye gucn daim laid Qver Lay over dur- 42. Where the supply of • water is insufficient to work hydraulic or other ing insuffici- placer claims requiring water to enable them to be worked, such claims shall ency of water, be laid over by virtue of this section during such insufficiency, but no longer, except by leave of the Gold Commissioner; but a notice of such insufficiency of water must be posted on the office of the Mining Recorder within three days from the c 43. Every bill of sale, coi lveyance, or n aortgage of a placer claim, or of charges on any fraction thereof, shall be ecorded t vithi l the tim e prescribed for recording claims. placer claims. Cransfersmust 44. No transfer of any placer i ae in writing forceable unless the same or som- md recorded, signed by the transferrer, or by h in the Record of Conveyances. 'Gold Mining 45. The transfer of any real estate acquired under the p Amendment " Gold Mining Amendment Act, 1873," shall be in writing, Act, 1873." transferrer or his agent authorized in writing, and attested 1 avisions of the signed by the a subscribing APPENDIX A.—MINING STATUTES. 46. Any .» ~ tunnel or drain in con- Li his claim through any occupied or unoccupied lands, whether m, or not, shall obtain a licence from the Gold Commissioner for that or -which licence shall be granted or withheld in the absolute discretion th jold Commissioner; and shall also give such security to the Gold Com- • for any damage that may be caused by such tunnel or drain as such Gold Commissioner may require. Such licence shall be subject to such terms the Gold Commissioner shall think fit, and shall be recorded isidered as part of the plai 48. Any free mi right of way and ei for the purpose of c ay apply to the Gold Commissioner for a grant of Right of way trough and upon any mining ground in his district, for making ines. tunnels. 49. The application for every sucl at the name of each applicant, the le amount of toll to be charged, the for public drair grant shall be t writing, and shall set of the proposed drain, of years for which such grant is to be acquired. The application shall ing Recorder's office addressed to the Gold Commissi dication setting out the above particulars, shall be posted c the office of the Mining Recorder and on the ground for thirty clear days befoi uch grant shall be made. 50. The applicant for every such gran corder, at the time of the leaving of his dollars, which shall be refunded in case tl shall deposit with the Mi pplication as aforesaid, tv application shall be refused. 51. Such grants shall be in writing and signed by the Gold Commissioner, Grants of righ and shall not be given for a longer period than twenty years, and shall give way' e c" uch rights of way and entry and such powers to assess, levy, and collect tolls rom all persons using such drain, or benefited thereby, as the Gold Ci tdll|)8hall think fit, but not in any case to exceed the term, rights, st out in the application. 52. The following covenants and con is'assigns shall be deemed to be part of (a) That he shall construct a drain or drains of sufficient s requirements within the time therein named; (6) That he shall keep the same in thorough working order and repair, and free from all obstructions, and in default thereof that the Gold Commissioner may order all necessary alterations or repairs to be by any free miners, other than the grantee or his assigns, at th< and expense of the latter; such cost and expense to be levied by sale (subject, however, to the conditions of the grant) of all or any part Of the drainage works, materials, and tolls, or any of them; . (o) That he shall, within a reasonable time, construct proper tap-drains from or into any adjacent claims, upon being requested in writing by the holders thereof so to do; and if such grantee shall fail to commence the construction of any such tap-drains for five days after receipt of such request, or after making such commencement shall for three days fail to proceed with such construction, he shall permit such holders to construct such tap-drains, in which case such holders shall only be chargeable MARTIN'S MINtN and tap-drains, in'any way shall make good any damag 53. Every such grant shall bi deposited sum of twenty-five dollai rent of twenty-five dollars for each shall be paid annually to the Min commence from the date of the gra Water right 54. Every free miner shall be naturally flowing through or pas appropriated, as shall, in the opi for the due working thereof. Watertight unappropriated water. m 55. (1S9J,, ch. Ss, sec. 2.) A 1 Commissioner, obtain a grant to for any placer mining purpose, f such terms and conditions as such right obtain 56. Before applying for any s . of the ground on which su days, which notice -shall co (o) The name of eacl (6) The number of ea (c) The name, or if u !tion of the Gold lal (d) The point of diversion or int< (e) The number of inches of wat (f) The purpose'for which it is r (g) The date of the notice; tdred inches s (2) Tf n lore than thr with the Go if the grant is not 57. The grant of sue Mil Rec the 'ordin of the gran t, and whilst be protected. APPENDIX .A-.H4MININ5G .^STATUTES. 70. In observed :- ditch or s. A'*:- j* °Wner, any water right may distribute the water to such free miners and on such teems as he may deem Advisable, w*6hin the 1 boned an his grant: Provided, always, that such owner shall be bound to supply water to all applicants, being free miners, in a fair proportion, and Distribute: shall not demand more from one than another, except where the difficulty of *Tat.er Wlthm supply is enhanced. limitsomen- 61. If, after ^Ahe grant has been made, any free miner or free miners locate and bona fide work any >placer claim below the ditch head, on any stream so diverted, he or they shall collectively be entitled to forty inches of water if two hundred inches be diverted, and sixty inches if three hundred inches be diverted, and no more, except upon paying to the grantee compensation equal to the amount of damage sustained by the grantee on account of the'oiversj'ion g^jhsueh .extra quantity of water; and, in computing such damage, the expense of the construction of the ditch shall be considered. 62. On any dispute between applicants for a grant being made, priority of notice shall constitute priority of 63. A grant duly recorded shall speak from the dt from the date of the record. CIh)^4. Every such grant shall be subject to the shall, at the date of such grant, be working on ditch head, and of any other persons lawfully using pose whatsoever. 65. A grant of a water right made in respect of any placer clai mine held as real estate, shall be deemed appurtenant to such cla: and whenever the claim or mine shall have been worked out, abandoned forfeited, or whenever the occasion for the use of the water upon the clai: or mine shall have permanently ceased, the grant shall be at an end and de- *?ster5iained. 66. Within thirty days after the grant is made, the grantee shall commence the excavation or construction of the works in which he intends to divert and convey the water, and shall prosecute the work diligently and ffi&n*errraptedly to completion, unless interrupted by the severity of the ther: Provided, always, that the Gold Commissioner may, in his discretion, %altow 'Such work to cease for any time, upon cause being shewn. Upon the non-fulfilment of any of the conditions of thi 07. Th grantee of any water right ma "Spfeinffiissioner to change the place of diver complying with such terms as the Gold Coi I 68. Every such grantee shall take all reasonable water granted to him; and if he wilfully waste any t ^oi water in excess of his requirements, the Gold Commissi grant to be forfeited. 69. Any person desiring to bridge any 'fpllrpose, or to mine under or through any ditch through or over any land already occupied, tion of the Gold Commissioner. In all such in possession, whether of the mine oi to entitle him to compensation if the : ay ditch or sluice, the following rules shall be Rules for a a ditch or sluice shall be i shall be taken into a ditch or sluice except v 4366 MARTIN'S MINING CASES. [vol. Placer Act, 'n a trough placed horizontally at the place at which the water enters it. One 1891. inch of water shall mean half the quantity that will pass through an orifice two inches high by one inch wide, with a constant head of seven inches aboye the upper side of the orifice. Notice to be 71. Whenever it shall be intended, in form :given to owner en^er Upon and occupy any part of a placer < proaching rea* estate> or other land, or to dig or loosen at within 20 feet. feet °f any ditcn thereon, three days' notice in be given to the owner of such ditch, before entering or approaching within twenty feet thereof. Gold Commis- 72 Any person heretofore or hereafter engaged in the construction of any -allow'dTtch to I0SL^ 01" w°rk may, with the sanction of the Gold Commissioner, cross, divert, be diverted. or otherwise interfere with any ditch, water right, or other mining rights whatsoever, for such period as the said Commissioner shall direct. Owner to pro- 73. The owner of any ditch, flume, or pipe, shall, at his own expense, con- vide for waste struct, secure, and maintain all culverts necessary for the passage of waste and water. superfluous water flowing through or over any such ditch, flume, or pipe. Owner to keep 74. The owner of any ditch, flume, or pipe shall construct and secure the •ditch in repair, same in a proper and substantial manner, and maintain: the same in good repair to the satisfaction of the Gold Commissioner, and so that no damage shall occur to any road or work in its vicinity from any part of the works of such ditch, flume, or pipe. Ownei liable 75. The owner of any ditch, flume, or pipe shall be liable and shall make for damage good, in such manner as the Gold Commissioner may determine, all damage ■defect which may be occasioned by or through any parts of the works of such ditch, flume, or pipe breaking or being imperfect. 1 be affected thereby be premises referred to in order, such notice shall 77. When the term for which any water right has been granted shall have, expired, the grantee thereof may, at the discretion of the Gold Commissioner; :■ obtain a renewal of the same for a reasonable term, not to exceed ten years,:! provided the necessity for the use of said water for the purpose for which it- was originally granted continues to exist. 78. Nothing herein contained shall be construed to limit the right of the Chief Commissioner of Lands and Works to lay out, from time to time, the public roads of the Province, across, through, along, or under any ditch, watertight, or mining right, in any Crown land, without compensation, provided that as little damage as possible shall be done. What is. 76. If any written notice to the party intended effectual posted for such notic a, and also on the office of the Mining I be deemed good and s ufficient. ■apply. Partnerships JDIX A.—MININ e shall be on the first i ry partner's free miner's certificate, shall be af claims. The partnership name shall appear lims so taken up shall be the property of the partnership, or his agent authorized if, be entitled to vote upon any intei.: may hold therein; but the result of the number of the full interests voted upon, . A majority of such votes may decide when, how long, and in it to work the partnership claim, or set of claims, the number of employed, which number shall not be less than one man to each claim, lie extent and manner of levying the assessments to defray the expenses ■ed by the partnership. Such majority may also choose a jer, who shall represent the partnership and sue and be sued i partnership for assessments and otherwise; and he shall have power to :hem by his contracts. Every partner, or his duly authorized agent, shall titled to represent his interest in the partnership property by work and •, so long as such work and labour be satisfactory to the fori In the event of such partner or agent being discharged by the foreman nager, the Court having jurisdiction in mining disputes may, if request- i- before it, and upon hearing the facts arder t shal 86. All assessments shall be payable ithit e days after being made. 87. Any partner making default in payment, after receiving a notice certi- ing the amount due by him, shall, if such amount be correct, be personally hie therefor to the partnership, and his interest in the partnership property ly be sold by the partnership for the payment of the debt, and any further sessment which may have accrued thereon up to the day of sale, together with insufficient to pay off the several sums mentioned, the Court having jurisdiction in mining disputes, upon being applied to, shall issue an order directed ) the Sheriff to seize and sell any other personal property of the debtor, i Notice of sale shall, in either of the above cases, be conspicuously posted ten " ir days prior to the day of sale, in the vicinity of such mining or other pro- I perty, and on the Court House or Mining Recorder's office nearest thereto. But if such partner be absent from the district, such notices shall be posted as aforesaid thirty clear days before the day of sale, and a copy of such notice shall be published in some newspaper circulating in the district wherein such mining or other property is situate for the same period. Such sale shall be by public auction to the highest bidder. The purchaser shall be entitled to possession of the property sold, and to a bill of sale therefor signed by the auctioneer; such bill of sale shall confer such title upon the purchaser as the owner had. MARMN'* mining oases. Partner relieved by sale from future debts of partnership. "Limited 91. Any mining partnership, composed of two or more f: being free from all debts in respect of the partnership propert; liability of its members, upon complying with the requirement- Upon filing with the -Mining Recorder a declaratory statei the name of the partnership, the location and size of e claim, and the particular interest of each partner; ai upon a conspicuous part of every such claim, or set of letters, the name of the partnership, followed by, the Liability." The ords "Lit ited Liability" thereupon becoi After such conditions shall rship (shall be liable for anj t proportioned to his intere idebtedness « in the parti 94. Every such partnership shall keep a correct account of its assets tiiw liabilities, together with the names of the partners, and the interest held by t_ each, and shall make out a monthly balance sheet shewing the names of the creditors, and the amounts due to each, and file the same among the papers of the partnership; and such balance sheet and all the books of the partnership shall be open to the inspection of creditors at all reasonable hours. 95. Every partner in such partnership shall be at liberty to sell or i of his interest therein, or of any part thereof, to any other free mine: such partner shall be liable for the indebtedness on the said interest i portion to his interest in the partnership. I 96. No member of such partnership, after a bill of sale conveying 1 )f terest has been duly recorded, or after he has served a notice of abando of his interest on the foreman, and left a copy thereof with the Mihia. corder, shall be liable for any indebtedness of the partnership incurred. after. 97. No such partnership shall declare any dividend until all its lia:] . Every such partoershi : the partnership. APPENDIX. A.—MWUNG, 'SrTAflJUTES. 100. One or more free mi pant of exclusive ■rights; of t l his district, for the purpos ack flume. iy apply to the Gold Commissioner for a Application augh and entry upon any mining ground for right of nstructing, laying and maintaining a bed^ wayrfart-bed?' ach application shall be i writing, and shall be left i I 10i- Eve Mining Recorder's office, addressed to the Gold Commissioner, and shalf's the name of the. applicant .and the nature and extent of the privileges sought to be acquired. Thirty days' notice of such application shall be given, by affixing the same to some conspicuous part of the ground through which the rights of way are asked, and a copy thereof upon the walls of the Court House or of the office of the Mining Recorder of the district. Prior to such applica- |&tesuch ground, shall be marked out by legal posts, placed at intervals of •^ttijhnndred and fifty feet along the proposed main line or course of the flume, with a notice of such application affixed to one of such posts. And it shall be competent for any free miner to protest before the Gold Commissioner within such thirty daysr against such application being granted, but not afterwards. Every application for a grant shall be accompanied by a deposit of one hundred and twenty-five dollars, to be left with the Mining Recorder, which shall be refunded if the application be refused, but not otherwise. 102. 103. The grantee shall be e I to the following rights and privileges Right 0f (a) The right of way through and entry upon any new and unworked river, creek, gulch, or ravine, and the exclusive right to locate and work a strip of ground one hundred feet wide and two hundred feet long in the 'bed thereof to each grantee named in such grant; (6,) The right of way through and entry upon any river, creek, gulch, or ravine, worked by miners for any period longer than two years prior to such entry, and already wholly or partially abandoned, and the exclusive right to stake out and work both the unworked and abandoned portions thereof, one hundred feet in width, and one-quarter mile in length, for each grantee named in such grant; (e) Such right of way through and entry upon any river, creek, or ravine discovered within two years next preceding the date of his application before mentioned, and upon any portions of which any free miner is legally holding and bona fide working a claim, as to the Gold Commissioner may seem advisable; (<J) The right of way through and entry upon all placer claims which are at the time of the notice of application before mentioned bona fide being worked by any free miner, for the purpose of cutting a channel and laying his flume therein, with such reasonable space for constructing, maintaining, and repairing the flume as may be necessary: Provided, that the owner of such last-mentioned placer claim shall be entitled to take and receive the gold or other minerals found in the cut so made; (e) The use of so much of the unappropriated water of the stream on which the flumes may be located, and of other adjacent streams, as may be necessary for the use of the grantee's flumes, hydraulic power, and machinery to carry on his mining operations, and the right of way for ditches and -flumes to convey the necessary water to his works, subject -to the payment of any damage which may be done to other parties by running such ditches or flumes through or over their ground: (f) The right, to all the gold or other minerals in his flumes; (g) No person locat rated. MARTIN'S MINING CASES. [vol. and unworked or abandoned ground within the ' r the notice above mentioned has been given, itle as against such grantee to the ground so Claim-holder 104. A holder of a place may connect flume is to run may put in with bed-rock grantee's flume, upon giving flume. effect; but he shall maintaii and of as strong materials a s used by s ch gran Duties of such X05. A claim-holder constructing such flume through his claim shall keep: claim-holder jjwj flume free from obstruction, and he shall be entitled to all the gold or othe|| minerals found therein, but he shall be subject to the same regulations with>f regard to cleaning up the- flume, repairs, ' and other matters in which bothff parties are interested, as may be adopted by such grantee; and such claim# holder shall have the right at any time before the abandonment of his "lnti'M to become a partner of the grantee, by uniting his claim and flume with the- ground and flume of the grantee, and taking an interest proportionate to that which he shall cede to the grantee; or he may abandon his claim and flume, and such abandonment shall enure to the use and benefit of the grantee. 100 feet to be 106. The grantee shall lay at least one hundred feet of flume during 19 laid the first grgt year 0f g^ grant, and three hundred feet annually thereafter, until corn- year, 300 feet pletion 0f the flume. but the amount 0f flume to be laid may be reduced at X" y "'"the discretion of the Gold Commissioner. What use 107. Any free miner lawfully working any claim where a bed-rock flume claim-holder exists shall be entitled to tail his sluices, hydraulics, and ground sluices into may make of sucn flume; buf; so as not to obstruct the free working of such flume by rocks}" a flume. stones, boulders, or otherwise. Record of ^Qg rpne grantee shall record his grant with the Mining Recorder within, grant. three days after obtaining the same, and pay for such record the fee provided in the Schedule to this Act; and he shall also pay to the Mining Recorder Rent. annually a r.ent of twelve dollars and fifty cents for each quarter of a mile of right of way legally held under such grant. of 109. The interest of the grantee in his grant, and in all flumes and fixtur a chat- connected therewith, shall be deemed to be a. chattel interest equivalent to est- lease for the term of such grant. term"81 on of no. Upon the expiration of the grant for a bed-rock flume, it may h extended for any further term not exceeding five years for any one extension at the discretion of the'Gold Commissioner. Forfeiti re of 111. Any grant of a bed-rock flume shall be forfeited whenever the grant shall fail to comply with the conditions thereof, or of this Act. l the ii sut such ground by plac i on the post nearest to liate locality, and also o (1) The name of each applicant; • (2) The locality of the ground to be a (3) The quantity of ground; (4) The terms for which such lease i I-] APPENDIX A 117. No such application shall be made for any ly available for mining by .individual free 3 actually occupied by free miners, unless llo. The free miner, after staking the ground and posting his notice as piacer Act aforesaid, shall make an application in writing addressed to the Gold Com- 1891 •missioner, and leave the same at the office of the Mining Recorder, which appli- ■ "SSation shall set out— F Application (1) The name of each applicant; for lease. (2) The number of each applic (3) The locality of the ground; (4) The quantity of ground; (5) The terms of the lease desired; •(6) The rent proposed to be paid. 114. On making such a Mining Recorder for the u 115. Application shall not be made for a longer term than ten years, ex- :|||t:ing for bench lands adjoining unworked or abandoned rivers for hydraulic workings, application for which bench lands may be made for any term not exceeding twenty years. 116. Applications shall i In dry diggings, ten acres; In bar diggings unworked, half In bar diggings which have been half in length along the high water mark; In creek diggings on abandoned creeks, one mile and a half in length; In bench lands adjoining unworked or abandoned rivers, for hydraulic workings, one hundred and sixty acres; but in such lands the length shall in no case exceed half a mile. 118. The lease may be granted lommissioner, who may modify the s he shall think fit. 119. Every application for a lease for a term exceeding five years, together discretioi with a plan of the ground and the Gold Commissioner's report, shall be for- Applies Commissioner and the lessee. 121. Every lease shall provide for securing to the public reasonable rights .' way and water, and shall contain a covenant by the lessee to mine the ground in a miner-like manner, and shall contain such covenants for the con- ' ous working of such ground as the Gold Commissioner shall think reasonable, and shall reserve the right to free miners to enter on such ground and mine for veins or lodes, as defined by the " Mineral Act, 1891." 122. On the non-performance or non-observance of any covenant or condi- in any lease, such lease shall be declared forfeited by the Gold Commis- I sioner, and become absolutely void, and the ground included in such lease shall t thereupon be open for location by any free miner. <372 MARTIN'S'. MHMENG, CASES. [vol. Phveei. Ajafe 123- Leases shall be gpanted f*r ateae* raining, only, and shall not be Leases tc, be 124. When any bench lands adjoining unworked or abandonedjiwera are heH> only for pluses under lease for hydraulic working, the lessee, of such land shall be entitled* to a| mining. grant from the Geld Commissioner of such quantity of unappropriated water, Hydraulic from any stream or lake, as may, in the opinion of the Gold Commissioner, be workings on necessary to work the said bench land efficiently, and'shall have the right of laenen lands. way thr0Ugh any mining ground for the purpose of constructing- ditches and flumes to convey such water to the bench lands so held for hydraulic working, which grant shall be for the same term for which the bench land is leased. Whenever such bench lands shall have been efficiently worked as required by the conditions of the lease, to the satisfaction of the Gold Commissioner, and if at the expiration of the lease a portion of said lands remain still to be worked, the lessee shall be entitled to an extension of the lease and grant, upon the same conditions as the original lease and grant for such reasonable time as will enable him to work out such portion of said lands as still remain unworked, and the Gold Commissioner may grant such extension by memorandum endorsed on the lease: Provided, that whenever the bench lands so held under lease have been forfeited, abandoned or worked out, or the occasion for the use of the water upon such bench lands shall have permanently ceased, the grant of such water' shall terminate. But in any case where the ditch or flume constructed for conveying- such water shall have a carrying capacity of not less than five hundred inches, and shall have, cost not less than five thousand dollars, such ditch or flume shall remain the property of the owner thereof. tension of a grant of a water right for bench-: ; shall be recorded in the " Record of Water Grants," but it shall not be necessary to re-record such grants or extension annually. Grant of lease i26. it shall be lawful for the Gold Commissioner, with the sanction of the rn er" Lieutenant-Governor in Council, to grant a lease for any term, not exceeding twenty years, of the bed of any river below low water mark for dredging purposes, for a distance not exceeding ten miles, upon such terms as he shall think fit: Provided, always, that every such lease shall reserve the right to every free miner to run his tailings into such river at any point thereon, and whether straK free miner shall locate before or after the date of such lease-. Past VIII. Mining Recorders Appointment of Mining Recorder. . . 128. Where mineral land is discovered in a part of the Province so situate of^ecordeirbytnat tlie Provis'ons o£ this Act as to free miners' certificates and records.m miners them- m'n'ng property cannot be justly applied or enforced, by reason of there being the miners of such locality to hold meetings at such times agreed upon, and at such meetings, by a two-thirds vote, t and such certificates and records shall be valid, notwithstai Proviso. therein: Provided that all records so made, and all fees fi ance with the Schedule to this Act, and a list of all fr. issued, and the date and term thereof, and the fees for'tl to the nearest Gold Commissioner or Mining Recorder i practicable. Recorder to 129. Every Mining Recorder shall issue free miners* i r.J APPENDIX A.- 130. Such free miners' certifies forms, with duplicate counterRfiK; the office of the Mining Recorder. 131. Every Mining Recorder shal placer mining entries:— (a) A book to be known as the (&) A book to be known as the (a) A book to be known as the (d) A book to be known as the (e) A book to be known as the 132. Upon the application of or on behalf of any free miner, and upon receipt of all the particulars required by sec. 23 of this Act, the Mining Recorder shall record any placer claim, by entering all the particulars required by said section in the Record Book, which, entry shall be, as near as convenient, in the Form B in the Schedule to this Act. Upon the application of or on behalf of any free miner, and upon receipt of all the particulars required by sec. 28 of this Act, the Mining Recorder shall re-record any placer claim, by entering all the particulars required by said section in the Record Book, which entry " " be, as near as convenient, in the Form C in the Schedule to this Act. Mining Recorder shall not make any such record until he has particulars required by section 23, and any record made in violation of thi I section shall be absolutely void. 133. The Mining Recorder shall licence, permit, and other privilege gt ! Commissioner in the Record Book. 135. Upon the receipt of a notice of abandonment, the Mining Recorder shall Record of cord the same in the Record of Abandonments, and file such notice, and write abandonme toss the record of the claim affected by such notice, in the Record Book, the word, " Abandoned," and the date of the receipt by him of the notice. If only a interest in a placer claim is abandoned, and not the entire claim, the n | randum in the record shall shew which interest is 136. The Mining Recorder shall record, by copying out and declaratory statements brought to him in connection '■ Record of Affidavits. 37. The Mining Recorder s Record of Conveyances, all conv sale, and other documents of title, o him for that purpose. 138. The Mining Recorder shall record all other documents relating to B,ecor(j of j mining property which may be brought to him for record, and shall file all such otner documents which may be brought to him to be filed. documents. 40. All books of record shall, during office hours, free of charge, and documents filed shall be open I payment of the fee set out in the Schedule to f!~ MARTIN'S MINING CASES. [VOL. 141. Every copy of, or extract from, any entry in any of the said books, of any document filed in the Mining Recorder's office, certified to be a true ] py or extract by the Mining Recorder, shall be received in any Court t idence of the matters therein contained. 142. Before issuing any free miner's certificate, or substituted certificate, « making any entry in any book of record, or filing any document, or making any J eopy or extract therefrom, the Mining Recorder shall collect the fees payable in respect thereof, as set out in the Schedule to this Act. 143. The Mining Recorder shall receive all applications and other documents j addressed to or intended for the Gold Commissioner, and forward the sam the Gold Commissioner. 144. The Mining Recorder shall r made by this Act, and apply the same eive all deposits of mor is directed by this Act. 146. The Mining Recorder shall forward to the Provincial Treasury all fees rents, fines, penalties, and other moneys collected or obtained by him in accord ance with the provisions of this Act. 147. It shall be lawful for the Lieutenant-Governor in Council to divide ahi sub-divide any district into mining divisions, and to establish in each or eithei mining division a Mining Recorder's office. 148. Upon the establishment of a mining" division, and the opening oi£j"a Mining Recorder's office therein, under the authority of the last preceding I section— (o) Such office, and none other, shall be the proper office for recordin placer claims, records, certificates, documents, or other instruments affecting claims, placer mines held as real estate, or placer mining prop- I erty, situate within such mining division, ; .any Act amending the same, anything is r the office of the Gold Commissioner or Min it shall, if the same affects or concerns anj real estate, or placer mining property, situs be done at or in the office of the Mining Rec wherein such claim o (b) Upon the district or divisii sub-divided into mining divisic Recorder to make, or cause to in all the books mentioned in placer mines held as real estal each newly created mining di- Mining Recorder of such of anv Min ning property r being divided o; shall be the duty of such M n be made, a transcript of all the entries lection 131 of this Act, affecting claims, e, or placer mining property, situa e in ision, and to forward the same to the ig division, and such transcript shajir-be I Kept in such office as part of the records of such office, and all- scripts of such records, certificates, documents, or other instrum shall, prima faeie, be deemed to be true copies of the several records, j certificates, documents, or other instruments of which they purport t< be transcripts; and such transcripts or copies thereof, when certified by | the Mining Recorder of the mining division in whose office they a shall be admissible in evidence in all Courts of Judicature Province. ois- 149. When there shall be no Mining Recorder for a district or divis: ave duties of the Mining Recorder shall devolve upon the Gold Commissioner. of shall at all times be lawful for the Gold Commissioner to perform the d the Mining Recorder, and the Gold Commissioner shall have all the powe Mining Recorder. ■j APPENDIX A.—MINING STATUTES. 150. The Mining Recorder's office shall be open upon all days, excepting public holidays, from 10 a.m. to 4 p.m., and such times shall be deemed the office hours of such office. 151. It shall be lawful for the Gold Commissioner to perform the following acts.in accordance with the provisions of this Act:— (a) He may lay over any or all claims, and may grant to any holder of a elaim leave of absence for such period and reasons as he may think (b) He may prescribe the number of miners who shall be required to work in prospecting a set of claims until gold in paying quantities is found; (ej For the more convenient working of back claims on benches or slopes, the Gold Commissioner may permit the owners thereof to drive a tunnel through the claims fronting on any creek, ravine, or watercourse, upon such terms as shall seem expedient: Provided that in tunnelling under hills, on the frontage of which angles occur, or which may be of an oblong or elliptical form, no party shall be allowed to tunnel from any of the said angles, nor from either end of such hills, so as to interfere with parties tunnelling from (d) He may mark out a space of ground for deposits of leavings and deads from any tunnel, claim, or mining ground, upon such terms as he may think just; (e) He may extend the limits of a claim in " bench diggings " beyond the limits of the bench, but not to exceed 100 feet square; (f) He may, in case of disputed boundaries or measurements, employ a surveyor to mark and define the same, and cause the reasonable expense thereof to be paid by either or both of the parties interested therein; (g) He may permit or order mir (h) He may summarily order any mining works to be so carried on i to interfere with or endanger the safety of the public, any public or highway, or any mining property, mineral claim, placer claim rock drain, or bed-rock flume, and any abandoned works may b order be either filled up, or guarded to 1' the party who may have constructed the same, or, in his absence, upon such terms as he shall think fit; (i) He n tpplic of entry upon any adjacent claim as. of his claim, and upon such terms as : (/) He may grant licences and rights of ing drains or tunnels, and may exer in Part III. of this Act; (*) forfe Part VI. of this Act; (m) He may grant leases of placer minin Part VII. of this Act. ground, and of nt renewals of s ccordance with uch leases, and are specified in 152. Notwithstanding anything contained in Act, 1873," or in any Crown grant issued made any other Act, it shall be lawful for the Gold and with or without any terms or conditions, t the " Gold Min r the said Act, c o allow to the o ng Amendment r under this or wners of placer MARTIN'S MINING CASES. claims all such rights or privileges in real estate as may be allowed in and claims held as real estate shall be ent owners of claims not so held. Administration. Commissioner 154. The Gold Commissii tqtakedeceas- any deceased free miner. and property. r dispense therewith at his optio ' Miner's intes- 155. The Gold Commissioner, or any person authorized by him, shall take' tate estate of charge of all the property of any deceased free miner until the issue of letters less than $300 0f administration or probate of the will, if any: Provided, however, that where ;*° h% ?dmmis" any free miner shall die intestate, and the value of the personal estate of such o w r7 ■ deceased free miner is less than three hundred dollars, it shall not be necessary^ sioner fZ™' for the Gold Commissioner to obtain from any Court letters of administration, but in such case the Gold Commissioner may administer and wind up the personal estate of the deceased, and do all things necessary and proper therefor, and act in all respects as if letter's of administration to the personal estate of such deceased free miner had been granted to such Gold Commissioner, and the Gold Commissioner shall produce and pass his accounts, in each estate of which he shall undertake the administration, before a Judge of the County Cotjkts. County Courts 156. In addition to the jurisdiction and powers given to County Courts by to have powers the " County Courts Jurisdiction Act," and other Acts, every County Court of Courts of shall have and exercise, within the limits of its district, all the jurisdiction aWp Law and powers of a Court of Law and Equity— property. (1 In all person .1 ao tions, where the debt out of the bu inte s of ce with other claimed to be n, by this Ac (other than coal 1 ); (2 In all actions bet sveen mployei s and e is directly cor nected w th the busine (3) In all actions for supplies to persons engaged in mining, where such supplies were bought, contracted for, or supplied, or were alleged to have been bought, contracted for, or supplied, for mining purposes, or for consumption by persons engaged in mining or prospecting; (4) In all actions of trespass on or in respect of mineral claims or other or claimed to have been entered or trespassed on, in searching for] APPENDIX A.—MINING STATUTES. ing- for; mirting.* or working minerals (other tha: ipose!- directly connected with the business of claimed to have been entered, under some power given or obtained under the provisions of this relating to mining (other than coal mining) ; ) In all suits for foreclosure or redemption, or f In all suits for specific perfoi up, or cancelling, any agreement for sale, purchase, mineral claim, mine, or other mineral property ; (8) In all suits for the dissolution or winding up of any m whether registered or not, under the provisions of this (9) In all suits relative to water rights claimed under this Act relating to mining (other than coal mining) ; (10) In all proceedings for orders in the nature of injm same are requisite for the granting of relief in any jurisdiction is given to the County Court by this Act. 157. The jurisdiction given to County Courts by t .s.the " mining jurisdiction " of the County Court, and t liction " shall be written or printed on all summonses, and all other documents, in every action or cause br< jurisdiction of the County Court. 158. County Court officers, shall have th Midns and suits, and the County Court, as and County Court Judges, Registrars, Sheriffs, and other Powers of same duties, powers, privileges, and authorities in all County Cov :her proceedings brought under the mining jurisdi ihey now have, or at any time hereafter may 1 BgTons and suits and other proceedings brought under the ordinary jur: of the County Court, and the provisions of all Acts for th regulating the duties and powers of County Courts and Com Registrars, Sheriffs, and other officers, and regulating the . in County Courts, and all rules and orders for the time being applicable to tin; ordinary jurisdiction of the County Court, shall, so far as practicable and not inconsistent with this Act, apply to the mining jurisdiction of the County Court. 159. Iffijated in adjoining or different districts, the County Court of eit districts before which the dispute is first brought shall determine it ach adjoining , 160. The hearing of any summons, plaint, or other process in Court shall not be deferred beyond the shortest reasonable time n the interests of all parties concerned, and it shall be lawful for the . i5§2& 1 Sit0 161. In all mining actions or suits the Court may decide the ques upon the ground in dispute, and such decision shall be entered as cases, and have the same virtue and effect as if rendered in Court. jfg? sue Court may deary cide the question on ground 162. In any mining* cause or suit, either party may require that the ; of fact shall be tried by a jury, and the Judge may, before deliveringjudgi in any action, suit or other proceeding, direct all o found by a jury. 163. In all actions, suits, and other proceedings • tion of the County Court, the Judge may order that c 1 lower scale allowed by the County Court Rules; ase of sufficient importance, he may order that costs 3ourt, and the costs so ordered shall be the costs reco >r other proceeding. MARTIN'S MINING CASES. [V Jurisdictioi County Cot held under "Gold Mini Amendment Act, 1873." 164. Every County Court having jurisdiction in mining disputes shall, with; reference to real estate held under the " Gold Mining Amendment Act, 1873," or under this Act, and notwithstanding any law to the contrary, have the same powers and authorities to decide all matters or disputes arising between the owners thereof, or between the owners thereof and any third person, or between the n"n*rlS Joint stock companies, or between shareholders therein, or between them ln)„ and the company, in the same way and as fully as it might do concerning claims not being real estate; and actions, suits and other proceedings relating to such matters or disputes shall be brought and had in the same manner as actions, suits, or proceedings relating to mining claims not being real estate. 165. Any County Court Judge having jurisdiction in mining causes, may direct the issuing of writs of capias ad respondendum, ne exeat regno, and capias ad satisfaciendum' in all cases in which by law he has jurisdiction over the', subject-matter of the suit, but under and subject to such conditions as the Judge of the Supreme Court might usually require in applications of a similar nature. n givei Penal and Miscellaneous 167. Any person wilfully bey any lawful order of the Gold Commissioner or < >ourt having jurisdiction in mining disputes, shall ummary way before any two Justices of the Peace o: r before any Judge of a Court having jurisdiction it sceeding two hundred and fifty dollar r without hard labour, for any t t exceeding three months. if this Act, or refusing to any Judge presiding in a n conviction thereof in a § Stipendiary Magistrate, mining disputes, be liable Imprisonment, with 168. All fines and penalties imposed or payable under this Act may be recovered by distress and sale of any mining or other personal property of the offender, and in default by imprisonment with or without hard labour, for any term not exceeding three months. sys collected under this Saving exist- 170. Nothing herein contained shall, save where such intention is expressly ing rights and stated, be so construed as to affect prejudicially any mining rights and interests public rights acquired prior to the passing of this Act; and all mining rights and privileges of way and heretofore and hereunder acquired shall, without the same being expressly stated, water. De ^n^a t-0 De taken and held subject to the rights of Her Majesty, Her heirs id to the public rights of way and water. ss of Act. i to the Mining Recorder, : all be 172. Affidavits and declarations made under the provisions of this Act shall j be made before some Judge or Registrar of a Court of. Record, or before some , Gold Commissioner, Mining Recorder, Stipendiary Magistrate, Justice of the Peace, Notary Public, or Commissioner for taking affidavits. APPENDIX A.—-MINING STATUTES. SCHEDULE. 679 Placer Aot, Location Notice. [Set out name of clain i] Placer Claim. Take notice that [set out the n me of each locator] has this day locatec ground as a placer claim (or, as a set of placer claims) to be knovt the Placer Claim, feet i n length. Its general direction is Dated [Mark one post " Initial Post, ' and fix this notice on that post. If c of claims is located only one notice is requisite, but there must be an initial for each claim.] B. Record f a Placer Claim. [Name of claim] Placer Claim. Located by No. of certificate, [Set out the name of each loc ator, and the number of each locator's miner's certificate, opposite such n ime.] The claim is situate The length of the claim is feet. Recorded for year Located on the day of , 18 . Recorded this day of , 18 .- Re-record of a Placer Claim. [Name of claim.] [Set out the name of each holder of an i er of each holder's free miner's certificate.] The claim is situate Re-recorded for , 18 Re-recorded this D. Record of a Set of Pl< [Set out the name of each claim.] Located in the partnership name of The numbers of the partnership s j miner's certificates are:— The claims are situate The length of each claim is Recorded for years. Located on the day of Biecorded on this day of i the numbers of their MARTIN'S MINING CASES. Tunnel or Drain To all whom it may concern:— Take notice that , a free miner and owner of given security to the amount of for any damage he has this?day obtained a licence from me to run a tunnel (or drain) fro: to his said claim. The said licence is granted on these express condition [Se* out conditions, if any.] Dated Application for Public Drain Grant. We [Set out names in full of each applicant], the undersigned free miners,, do hereby apply for a public drain grant, to enable us to construct a drain ] [Set out nature and extent of proposed drain], and to charge the following tolls to all persons using such drain [Set out proposed tolls], such grant to run for | years, and we do further apply for the following privileges to be included in such grant:— [Set out privileges sought to be acquired.] Dated To the Gold Commissioner. [Post notice on ground t Water Notice. Take notice that we [Set out the name of each applicant and number i applicant's free miner's certificate], shall, twenty days from the date j notice, apply to the Gold Commissioner for a grant of a water right over in [Set out the name, or, if unnamed), a sufficient description of the s lake, or other source from which wafer is to be taken]. The intended point of diversion is The number of inches of water to be applied for is The purpose for which such water is required is ! Dated Granted this day of , 189 , to [Set out elmy . grantee's name, and the number of every grantee's certificate] inches j of water out of [source of water] for the term of years from the date hereof. Such water is to be used for [purpose] on [claim or land on which vote to be used], and is to be diverted from its source at a point [point of divcrsk Dated APPENDIX A.—MINING STATUTES. Scale of Fees to be Charged. For every free miner's certificate (for each year) $5 00 Every substituted certificate 1 00 Recording any claim (for each year) 2 50 Re-recording any claim (for each year) 2 50 Recording any " lay over," or every other record required to be made in the " Record Book " 2 50 Recording every abandonment, including the memorandum to be written ; on the record 2 50 For any other record made in the " Record of Abandonments." 2 50 For recording every affidavit, where the same does not exceed three folios of 100 words 2 50 For every folio over three, 30 cents per folio. The above rate shall be charged for all records made in the " Record of Affidavits." For all records made in the " Record of Conveyances," where the same do not exceed three folios 2 50 For every folio over three, a further charge'of 30 cents per folio. For all copies or extracts from any record in any of the above-named books, where such copy or extract shall not exceed three folios, per Where such copies or extracts exceed three folios, 30 every folio over three. For filing any document 1 00 HE Mineral Amendment Act, 1892. [28rd April, 1892.] md consent of the Legislativi umbia, enacts as follows :— ' he cited as the "Mineral Act (1891) Amendment Act, Shot 3. Section 10 of the said Act is hereby amended by inserting at the end Amends of line fourteen the following: "Provided that where any hydraulic r ' works, established in accordance with the 'Placer Mining Act, 1891,' have been in operation, the land which may have been uncovered by the operation of such works shall not be located or mined upon by any free miner other than the person or persons carrying on such hydraulic works for a space of six months next after the same shall have been so uncovered." 4. Section 11 of the said Act is hereby amended by striking out all the A words after " cut " in the third line thereof, and inserting in lieu thereof, the words " such timber as may be required for the purpose of the claim or claims worked by him alone, or by him in partnership with another or others." MARTIN'S MINING CASES. i hereby repealed, and i Repeals ss. 14 " 14. Any free miner desiring to locate a mineral claim shall, subject to the and 15. provisions of this Act with respect to land which may .be used for mining, Size and form enter upon the same and locate a plot of ground, where possible, not exceeding of free jnine/s 1,500 feet in length by 1,500 feet in breadth in a rectangular form, that is to claim. ' say, all the angles shall be right angles, but the lines need not necessarily be meridional. In defining the size of a mineral claim it shall be measured horizontally, irrespective of inequalities on the surface of the ground: How staked " 15. A mineral claim shall be marked by two posts, each post being at least out. four inches square and four feet above the surface of the ground. The posts shall be numbered 1 and 2, and upon each post shall be written the name given to the mineral claim, the date of the location, and the name of the locator. Upon No. 1 post, there shall be written, in addition to the foregoing, " Initial Post," the approximate compass bearing of No. 2 post, and a statement as to whether the claim lies to the right or left of the line from No. 1 to No. 2. Thus:—'(Name of claim,' '(date),' 'A.B.'s claim,' 'Initial post,' 'Direction of No. 2 north-east,' claim lies to right (or left), of line from No. 1 to No. 2 post. " It shall not be lawful to .move" No. 1 post, 2 post, except for the correction of distat "'as. 1 and 2 posts shall gove: e No. I jither shall : e by the Pro be lawful to This Act no to prejudici rights. :' (a) The owner of a mineral claim shall be e may lie within his claim, but he shall not the boundary lines of his claim continued 6. Section 17 of the said Act ii . " centre " in lines two, four, and fr the word " side." ititled to all minerals which be entitled to mine outside ertically downwards: I 7. Section 19 of the said Act is hereby amended by the addition thereto of the following words: " Such record shall be, as near as may be possible,-1" in the Form B. in the Schedule to this Act, and a certified copy thereof shallI be given by -the Mining Recorder to the free miner or his agent. A claim which' shall not have been recorded within the prescribed period shall be deemed to have been abandoned." Section 19 of the said Act is also amended by striking* out the word " centre" in line ten, and inserting in lieu thereof the word i 24 of the said 5- s hereby amended a lin sity of r (2) By inserting between the words "done" and "If," in the tenth line thereof," the words " Provided, also, that all work done outside of a mineral claim with intent to work the same shall, if such work have direct relation and be in direct proximity to the claim, be deemed, if to the satisfaction of the Gold Commissioner or Mining Recorder, for the purposes of this section, to be work done on the claim: Provided, further, that any free miner, being the holder of adjoining mineral claims, or any two or more free miners who locate and record adjoining mineral claims, to be worked by them in partnership under the provisions of any Act for the time being in force, shall, subject to filing a. notice of their intention with the Gold Commissioner or Mining Recorder, be allowed to perform on any one or more of such claims all the work required to entitle him or them to a certificate for work for each claim so held by him or APPENDIX A.—MINING STATUTES. 1 25 of the Act is hereby repealed, and in lieu record will determint record, and subject a •of this Act.' 1 claim priority of Repeals the validity of the Dispute s title to c he 10.^ Section 26 of the said Act is hereby amended by striking out all th er " purchase,'' in the third line thereof, and by substituting the follo't Jut a free miner shall be entitled to locate and record on separ es additional claims, not exceeding two in each mining division; provided it not more than one claim is located on each separate vein or lode, to the nber of two in all, as aforesaid." 11. Section 29 of the said Act is hereby amended by inserting between the rds " thereof" and " which," in the second line thereof, the words " which shall have failed to record within the prescribed period or." ' '. nit the words 12. Section 35 of the said Act is hereby amended by str "twenty-five dollars per acre," and inserting in lieu thereof the words "five hundred dollars," and by striking out all the words after "claim" in the ^fourth line thereof, and inserting in lieu thereof the words, "The intending •purchaser shall Comply with all the provisions of sec. 36 of this Act, except "■pruch as have respect solely to the work required to be done on claims." I 13. Section 36 of the said Act is hereby amended as follows:—(1) By inserting in line two, between " requirements " and "he " the words " to the satisfaction of thev Gold Commissioner." (2)By inserting after the word "claim" in the fourth line thereof, the words " unless an adverse claim shall have been filed in the office of the Mining Recorder." (3) By the addition to sub- sec, (a) thereof of the words " For the purpose of this section work done on the claim by a predecessor or predecessors in title shall be deemed to have been done by the applicant." (4) By striking out in line three of sub-sec. (c) thereto the words " No 2 or centre " and inserting in lieu thereof the word "initial." (5) By the addition after sub-sec. (/) thereof of the words "Provided that in the case of such applicant for a certificate not being a resident of the district, in which such claim is situate, the application and the affidavit required by this section may be made by his or its authorized agent, where such agent shall be able of his own knowledge to depose to the facts sought to be established by such affidavit." repealed, and i 37. (1) No adverse claim shall be filed by the Mining Recorder after the Objection to expiration of the period of publication in the next preceding section mentioned; and validity of and in default of such filing no objection to the issue of a certificate of im- certificate of provements shall be permitted to be heard in any Court, nor shall the validity of impn such certificate when issued be impeached on any ground except that of fraud: "(2) i to be filed shall be on the oath of the peri making the same, and shall shew, with reasonable particularity, the to be boundaries and extent of such adverse claim; and all proceedings, except the publication of notice and making and filing the affidavit thereof, shall be proceedjn„s to stayed until the controversy shall have been decided by a Court of competent be staye(jf jurisdiction or the adverse claim shall have been withdn adverse claimant shall, within thirty days after filing time shall be extended by special order of the Court u commence proceedings in a Court of competent juris question of the right of possession, and shall prosecu able diligence to final judgment; and a failure so prosecute proceedings shall be deemed "~ ' claim. After such judgment shall ha been rendered, the t thereof be Repels s. e being shewen), clai :o determine the con_ me with reason- proceed! MARTIN'S MINING CASES. [voi*. Certified copy of judgment may be filed. Certificate of after judg- Amends s. 38. any one of the persons enstitled to the possession of the claim, or any part, thereof, may file a certified copy of the same in the office of the Minings R6—J corder. After the filing of such judgment and upon compliance with all the requirements of the next preceding section, such person or persons shall be entitled to the issue to him or to them of a certificate of improvements in respect of the claim, or the portion thereof, which he or they shall appear, from the decision of the Court, to rightly possess." 15. Section 38 of the said Act is hereby amended by striking out all the words after " force," in the second line thereof, and inserting in lieu thereof the words " it shall not be necessary to do any work on such claim." * 16. Section 39 of the said Act is hereby amended by striking out the words " twenty-five dollars per acre " in line four and inserting in lieu thereof the words " five hundred dollars," and by striking out the words " one hundred and five dollars" in line eight and inserting in lieu thereof the words " five- dollars per acre." t thereof the- Sness and "S after death. Amends s. 53 s hereby repealed, and i ,e " 52. The transfer of any real estate acquired under the provisions of 3. the " Gold Mining Amendment Act, 1873," or under this or any Act relating: to minerals other than coal, shall be in writing signed by the ■transferrer or his. agent in writing, and need not be by deed or under seal." e said Act is hereby repealed, and in lieu thereof be it. " 53. No mineral claim shall be open to location by any other person during- the last illness nor, unless with the permission in writing of the Gold Commissioner, for twelve months after the death of the lawful holder." 19. Section 55 of the said Act ords between " shall " in line thr t lieu thereof the 5 for each : is hereby amended by striking out all the- ee and " such" in line four, and inserting- tied to obtain and hold under this section ineral claim lawfully held by him." '• 20. Section 56 of the said Act is hereby amended by striking out the words: " a plat of the said land with the Mining Recorder," in the second and third lines thereof, and inserting in lieu thereof the words " in the office of the Mining Recorder a plat of the said land by an authorized Provincial Land Surveyor." Regeals si (2)(f)ofs. Amends s 21. Sub-section (2) (/) of s r of the said Act is hereby repealed. 23. Section 115 of the said Act is he 'ords "brought to him," in the second lin uired to be recorded." Amends s. 148 24. Section 148 of the said Act is hereby amended by word " property," in the second line thereof, the words " t of such Commissioner." rithi tint after the n the district Amends S.1G3 25. Section 163 of the said Act is hereby amended by thereof the words "on payment of the sum of twenty-five addrr g at the end Schedule A. 26. Schedule " A " of the said Act is hereby amended b "side." and by striking out the figure'" 3 " and the" words st1. MARTIN'S MINING CASES. [vol. it is provided by sees. 44 and 45 of the " Placer Mining Act,. 891," that no transfer of any placer claim, or of any interest therein, shall be enforceable unless the same or some memorandum thereof shall be in writing, signed by the transferrer, or by his agent authorized in writing, and recorded in the Record of Conveyances, and that the transfer of any real estate acquired under the provisions of the " Gold Mining Amendment Act, 1873," shall be in writing, signed by the transferrer, or his agent authorized, and attested by a subscribing witness: And whereas similar provisions w ere r aade by sec s. 38 and 56 of the " Gold Mining Ordinance, 1867," being ch. 23 f the " Co asolidated Statutes of Bri- tish Columbia, 1877," as follows:— "38. No transfer of any claim, or of any interest therein, shall be enforceable, unless the same or some memorandum thereof shall be in writing, signed by the transferrer, or by his legally authorized agent, and registered with the Gold Commissioner. " 56. The transfer of any mining ground, or of any portion thereof, acquired! or held under the provisions of the ' Gold Mining Amendment Act, 1873,' shall be1 in writing, but need not be by deed, but such transfers may be made in writing,; according to the practice hitherto established under this Ordinance." And whereas, acting under the said sections, and in accordance with tracbV tional customs among miners, numerous informal documents were drawn, delivered and accepted as absolute transfers of the entire estate of the grantors,.; whereas the legal effect of the same.was only to pass a lesser estate: And whereas it is now frequently impossible to ascertain the existence or whereabouts of the grantors of such instruments or their heirs, and, consequently, the titles to numerous placer claims are clouded by the defects in such instruments, and it is desirable that such defects should be cured; be it therefore- enacted :— Validates 4 Ev ery instrum andum of sale, or other wri ing. vhether under informal bona seal ot, executed before the passing of this Act, pu rpori fide transfers. est ar claim oi claims held un der the authority of the Mining of the Provin ce, in fore 3 at the time o er, fr om which, by lary use, o r from other s it is plainly dedu ible that the ii tentlon of the maker there of was t o pa the transferee the e aaker's entire i uch claim or cl aims, sh ill, i nless xception oi intention appea by the omis- of p tive words inherit or b 7 the presence of sc mality, or be. deemed to pas ed, to the transferee in estate of fee n th prer the full state held or possessed by the maker Copy of record 5 Where, by rea son of the oss of the documents of title ay such claltfS. aroduce the same for purposes of n, it shall be suffic to entitle an applica at to have his title reg ed un der the Land Regi oduce to the Registrar of Titles e cor the record of sfer or transfers, cert nfied under the hand of the Minin g Recorder in whos e off ce are the books of re cord in which a SCHEDULE. ny such s recorded. I, of the of in t le Electors 1 District of Mining Recorder for the Min ng Divisio l of the said ctoral Di trict, do hereby solemnly declare: MARTIN'S .MINING CASES. [v< to Minin( Recorder How line between 1 1 and 2 tt marked. 1- but not exceeding 1,500 feet in length by 1,300 feet in breadth, in as nearly as 13 possible a rectangular form, that is to say: all angles shall be right angles, except in cases where a boundary line of a previously surveyed claim is adopted. as common to both claims, but the lines need not necessarily be meisdi<M*ai»J In defining the size of a mineral claim, it shall be measured horizontally, irrespective of inequalities on the surface of the ground. " 15. A mineral claim shall be marked by two legal posts, placed as near as possible on the line of the ledge or vein, and the posts shall be numbered 1 and 2, and the distance between posts 1 and 2 shall not exceed fifteen hundred feet, the line between Nos. 1 and 2 to be known as the location line, and: upon posts Nos. 1 and 2 shall be written the name given to the mineral claim1? I the name of the locator, and the date of the location. Upon No. 1 post there shall be written in. addition to the foregoing, ' initial post,' the approximate compass bearing of No. 2 post, and a statement of the number of feet lying to right and to the left of the line from No. 1 to No. 2 post, thus:—' Initial post. Direction of No. 2 feet of this claim lie on the right, and feet on the left of the line from No. 1 to No. 2 post.' " All the particulars required to be put the locator to the Mining Recorder at the t form a part of the record of such claim. " When a claim has been located, the holder shall immediately mark the i line between posts Nos. 1 and 2 so that it can be distinctly seen; in a timbered locality, by blazing trees and cutting underbrush, and in a locality where there is neither timber nor underbrush he shall set legal posts so that such line can be distinctly seen. " The locator shall also place a legal post at the point where he has discovered rock in place, on which shall be written ' Discovery Post;' he shall also set a legal post as near as possible at each corner of his claim, on which shall I be written ' A.B.'s claim, N.E.C (meaning north-east corner), ' A.B.'s claim, N.W.C (meaning north-west corner), as the case may be: Provided that;: when the claim is surveyed, the surveyor shall be guided by posts 1 and 2 and the notice on No. 1, the initial post, and the records of the claim." Ex< j Out Disoovety Post, o l'100v 1 iW | No. Post. til not be lawful to move No. 1 post, neither shall i !, post, except for the correction of distance by the Pro eyor. Nos. 1 and 2 posts shall govern the direction be lawful to incial Govern- )f one side of a) The holder of a boundary lines of his claim continued vertically downwards; (6) This Act shall not prejudice the rights of claim-owners nor claim- holders whose claims have been located under former Acts. y APPENDIX A.—MINING STATUTES. has been found L (o) No mineral claim shall be recorded without the application being Min. Amend- accompanied by an affidavit or solemn declaration made by the appli- e person on his behalf cognizant of the facts, that mineral n the claim proposed to be recorded." Affidavit that mineral has 4. Section 17 of the " Mineral Act, 1891," is hereby amended by striking bfen *°™d in out, in lines two, four, and five, the word "side," substituted for the word £', °' '' '' I'centre" by sec. 6 of the "Mineral Act (1891) Amendment Act, 1892," and tj0nfoTrecord •inserting in each line in lieu thereof the word " location." 5. Section 19 of the "Mineral Act, 1891," is amended line ten, the word "side," substituted for the word "centre," by sec. 6 of the "Mineral Act (1891) Amendment Act, 1892," and inserting in lieu thereof the word " location." 6. Section 10 of the "Mineral Act (1891) Amendment Act, 1892,' repealed. 7. Section 26 of the " Mineral Act, 1891," is hereby amended by inserting Amends after the word " lode " in line three thereof, the words " nor more than two mineral claims in the same mining division." 8. In case of any dispute as to the location of a mineral claim, the title ^A*''1' to the claim shall be recognized according to the priority of such location, subject to any question as to the validity of the record itself, and subject further to the free miner having complied with all the terms and conditions of thi id (/) of sec. 36 of the "Mineral Act, Repealse u thereof the following are inserted:— (c), (<*), 0 (f) of s. 3 (c) Had the claim surveyed by an authorized Provincial Land Surveyor,, who shall have made three plats of the claim, and who shall have accur- for c6rtific ately defined and marked the boundaries of such claim upon the ground, of ' and indicated the corners by placing monuments or legal posts at the 'angles thereof, and upon such monuments or posts shall be inscribed by him the name and the official designation of the claim, and the corner represented thereby, and who shall have, on completion of survey, forwarded at once the original field-notes and plan direct to the Lands and Works Department; • (d) Shall have posted on some conspicuous part of the land embraced in the survey a copy of the plat of the claim, and a legible notice in writing, of Form F. of the Schedule to this Act, of his intention to apply for a certificate of improvements, and shall have also posted a similar notice in the Mining Recorder's office, and such notice shall contain:— " (1) The name of the claim; " (2) The name of the lawful holder thereof; " (3) The number of such holder's existing free miner's certificate; " (4) His intention to apply for certificate of improvements at the end of sixty days, for the purpose of obtaining a Crown grant; " (5) The date of the notice. "(e) Shall have filed with the Mining Recorder a copy of th original field-notes and plat; " (f) Inserted a copy of such notice in the British Columbia Gazette and any newspaper published in the Province, and in which the claim is situate, for at least sixty days prior to such application, which insertion can be made at any time after the posting of the notice on the claim; MARTIN'S MINING CASES. "(g) Filed with the Mining Recorder :- " (h) At the expiration of the term of the said publication, provided no* adverse claim shall have been filed with the Mining Recorder, he shall forward to the Gold Commissioner, under Form J. of the Schedule to- this Act, the documents referred to above." Amends s. 14 10. Section 14 of the " Mineral Act (1891) Amendment Act, 1892," is hereby of 1892, c. 32. amended by inserting between the words " particularity " and " the " on the eleventh line, the following words:—" having regard to all the circumstances of~ the case;" and by adding at the end of the section the words:;—"Provided, however, that if an adverse claim has, in the opinion of the presiding Judge, been bona fide made, notwithstanding that the same may have been imperfectly made,, the same shall nevertheless have legal recognition, and effect shall be given thereto according to the intent thereof." Amends s. 40. 11. Section 40 of the "Mineral Act, 1891," is hereby amended by striking out the words " Mining Recorder, in Form J. of the Schedule to this Act," in the third line, and inserting in lieu thereof the words " Gold Commtssion-ei^J and by inserting after the word " Act," in the third line, the words " enclosing his certificate of improvements, and the Crown grant fee of five dollars." erted Repeals s. 121. Duty of Gold Commissioner on receiving application for Crown grant. s hereby repealed and the followii "121. Upon receipt from the holder of a certificate of improvements of an.: application for a Crown grant in the proper form, and all moneys payable in respect of the claim for which a Crown grant is applied, the Gold Commissioner- shall send such moneys, together with the undermentioned papers, to the Chief Commissioner of Lands and Works:— " (1) The certificate of improvements; " (2) Affidavit of the holder of the mineral claim, or his agent—Form H.; " (3) A copy of the plat of the mineral claim; " (4) The copy of the surveyor's original field-notes; " (5) Mining Recorder's certificate—Form J." . Section 145 of the said Act is hereby amended by striking out the- and \ be known as feet in breadt feet of this c " 121 c is.hereby repealed, and the following i , have this day located this e Mineral Claim, The direction of the location m lie to the right and t in length by , and ) the left of the locatio: mded by striking APPENDIX j riNG STATUTES, K " Take notice that I, , free miner's intend, sixty days from the date hereof, to apply to the Gold Comi a certificate of improvements, for the purpose of obtaining a 0 Of the above claim. 19. Schedule H. of following substituted:— the said Act is he •eby repealed, and "Appli rtifie "Applica nt's Affidavit. free miner, make oath and say:— , in the District Miner IjjfStrict (or Division) orded holder, il claim, situ ar, am in undisputed " (2) I have done, ar caused to b le, work on the said lundred dollars, full particulars whereof ante hereunto annexed and marked " A." " (Particulars must be exclusive of all houses and other like improvements.) " (3) I have found a vein or lode within the limits of the said claim. I " (4 I have had the claim surveyed by , who has made three lats of the said claim. " (5) I have placed one such plat on a conspicuous part of the land embraced in such plat. " (6) I have posted a copy of the notice hereunto annexed, and marked .," at the same place as said plat is posted, and another copy on the Min- |ing Recorder's office at , which said notice and plat have been osted. and have remained posted, for at least sixty days prior to the date of [this affidavit. : the said notice in the British Columbia Gazette, and in the , a newspaper published in the Province and circulating in the district in which the said claim is situated, for at least sixty days prior to the date of this affidavit. :n, &c. "(This affidav I be i be altc MARTIN'S MINING CASES. " Mining Recorder's ■ Ot " Date located, "To the Gold C " Sir,—1 herewith enclose the documents relating to an applica Mineral clai i recorded, a of above claim:— " Affidavit of " Copy of plat of claim; " Copy of surveyor's field-notes; " And I hereby certify that ntion to apply for a certificate of impi sertificate of i tpplicant (Form H.) ; i, and the following his offici > this date. has published a notice of his in- ents for sixty days in the Govern- 'spaper, and that no adverse claim has been filed 21. Schedule L to the said Act is hereby amended by striking out section 4 thereto. f 22. There shall be levied and collected from the owner or occupier of every mineral or placer claim of which a Crown grant has issued, including Crown grants issued under authority of an Act made and passed in the 36th year of? y Her Majesty's reign, intituled " An Act to amend the ' Gold Mining Ordinance/ 1867,' and the ' Gold Mining Amendment Act, 1872,' " an annual tax of twenty? five cents for every acre and fractional part of an acre of land conveyed by the grant, payable on the thirtieth day of June in each year. Such tax shall fornu a charge upon the claim. The Assessor appointed under and by virtue of any existing Assessment Act, or any Collector appointed under the " Provincial Revenue Tax Act," is hereby authorized, as to the-mineral or placer claims situate within the district for which he is appointed, to collect a tax. In the event of the tax not being paid to the Assessor or Collector, the n Gold Commissioner may in his discretion cause the elaim upon which the tax is charged to be offered for sale by public auction, of which sixty days' notice shall be posted upon the principal Court House of the District in which the claim it situate, and in one newspaper, if any, published in such distri such claim, receive the purchase money, and execute a conveyan ie purchaser. The purchase money shall be applied h d advertising and the payment of the tax, and any s treasury in trust for the owner of the clain e thereof to the a payment of the expenses of urplus" shall be paid into the of there be purchaser, or if the price offered shall not be sufficient to pay the t con $200 aended on penses of advertising, the land shall absolutely r 8 Crown grant thereof shall be deemed void. The Assessor o: offering the claim for sale, sue the owner or occupier for the t manner, before any Justice of the Peace who may adjudge the same to b paid, and in default of payment the amount due, together with costs, may be recovered by distress of the goods and chattels of the person against whom the tax j ■- may be recovered: Provided, that if the owner of any such mineral or placer j claim shall establish, to the. satisfaction of the Gold Commissioner, Mining I Recorder or Assessor and Collector of the district in which the claim lies, that I the sum of two hundred dollars has been expended thereon in labour or improve- mcnts in any one year, then the tax shall not be levied in respect of sue claim | for such year. HER MAJESTY, by and wit Assembly of the Province denum, phosphorus sb'e forementioned elements ^ ar any building stone w nsidered as mineral witl Ts rE m all rock in place bear ing of this Act; ng va "Legal post." "Mill-site." "Ditch." "Ditch-head.' MARTIN'S MINING CASES. ' Legal post' shall mean a stake standing not less th ground, and squared or faced on four sides for at 1 top, and each side so squared or faced shall measu on its face so far as squared or faced, and any stu squared or faced to the above height and size; ' Mill site' shall mean a plot of ground located, i the purpose of erecting thereon any machinery porting, crushing, reducing, or sampling ores, < power for working mines; ' Streams' shall include all natural watercourses, than four feet above the t least one foot from the sure at least four inches tump or tree cut off and : defined by this Act, for r other works for trans- for the transmission of ' Ditch' pany named in, and lawfully possessed of, a valid existing fr< certificate, and no other ; "'Record,' 'register,' and 'registration' shall have the same mea shall mean an entry in some official book kept for that purpose ' Real estate' shall mean any miners Act relating to gold mines, or to m ' Joint stock company' shall mean mining purposes under the ' Compc any company duly incorporated in under the ' Companies Act, 1862 ' panies, whether foreign or local, ' Companies Act.' " arporated for ct, 1890,' and aing purposes " 43. A Crown grant of a mineral clai Crown shall be deemed to transfer and pat i meaning of this Act (excepting coal) foi and whether such minerals are found sei other, in, upon, or under the land in the si Beiti No. :a, by the Grace of God, of the United Kingdoi Ireland, Queen, Defender "of the Faith. To all t shall come, Greeting: " Know ye that We do by these presents, for Us, Oi in consideration of (the fulfilment of the conditions of the acquisition of minerals other than coal), give and g h heirs and assigns, All that parcel or lot of land and numbered on the official plan or survey To have and to hold the said parcel of land, and all minei MARTIN'S MINING CASES. [vol. Amend- " Provided further, that it shall be lawful for any person duly authorized by Act, 1894 Us, Our heirs and successors, to take and occupy such water privileges, and to ■ have and enjoy such right of carrying water over, through, or under any parts of the said land as may be reasonably required for agricultural or other purposes in the vicinity of the said land, upon paying therefor a reasonable compensation to the aforesaid h heirs and assigns. , " In testimony whereof We have caused these Our Letters to be made Patent, and the Great Seal of Our Province of British Columbia to be hereunto affixed: Witness His Honour , Lieutenant-Governor of Our said Province, at Our Government House, in Our City of Victoria, this day of , in the year of Our Lord one thousand eight hundred and , and in the of our " By Command. "(Where the mineral claim is located on land lawfully occupied under a timber lease, the Crown grant shall convey the surface and minerals within the meaning of this Act (save coal) found in veins or lodes, or rock in place, but shall reserve the timber.) ■What passes " 53. Crown grants of mill sites shall pass to the grantee all the surface of by Crown ^ne j^^ ;u tke saj,j Crown grant mentioned, but all such Crown grants shall grant of mill- eXpress]y reserve all minerals under the said land, and the right to the Crov^K and its licencees to enter and mine the said minerals, and may be in the fol- Form. [L.S.] No. j " Victobia, by the Grace of God, of the United Kingdom of Great Britain and Ireland, Queen, Defender of the Faith, and so forth. To all to whom these presents shall come, Greeting: " Know ye that We do by these presents, for Us, Our heirs and successors, in consideration of the sum of to Us paid, give and grant unto h heirs and assigns, All that parcel or lot of land situate and numbered on the official plan or Burvey of the said in the Province of British Columh a, To have and to hold the said parcel or lot of land, and all and singular the premises hereby granted, with their appurtenances, unto the said h heirs.and assigns for ever. " Provided, nevertheless, that it shall at all times be lawful for Us, Our j heirs and successors, or for any person or persons acting in that behalf by Our or their authority, to resume any part of the said lands which it may be deemed necessary to resume for making roads, canals, bridges, towing-paths, or other works of public utility or convenience, so nevertheless that the lands so tt resumed shall not exceed one-twentieth part of the whole of the lands aforesaid, and that no such resumption shall be made of any lands on which any buildings may have been erected, or which may be in use for the more conveni nt j occupation of any such buildings. " Provided, also, that it shall at all times be lawful for Us, Our heirs and j successors, or for any person or persons acting under Our or their authority t enter into and upon any part of the said lands, and to raise and get thereout ] any minerals, within the meaning of this Act, which may be thereupon or I thereunder situate, and to use and enjoy any and every part of the same land, J and of the easements and privileges thereto belonging, for the purpose of such 1 raising and getting, and every other purpose connected therewith, paying ir respect of such raising, getting, and use, reasonable compensation. P APPENDIX A.—MINING STATUTES. " Provided, also, that it shall be lawful for any person duly authorized in j that behalf by Us, Our heirs and successors, to take and occupy such water n Iprivileges, and to have and enjoy such rights of carrying water over, through, or under any parts of the hereditaments hereby granted, as may be reasonably |ieq.fiired f or mining or agricultural purposes in the vicinity of the said heredita- | ments, paying therefor a reasonable compensation to the aforesaid h heirs and assigns. " Provided, also, that it shall be at all times lawful for any person duly v authorized in that behalf by Us, Our heirs and successors, to take from or upon any part of the hereditaments hereby granted, without compensation, any gravel, sand, stone, lime, timber, or other material which may. be required in the con- nance, or repair of any roads, ferries, bridges, or other public " In testimony whereof We have caused these Our Letters to be made Patent, and the Great Seal of Our Province of British Columbia to be hereunto affixed: Witness, His Honour , Lieutenant-Governor of Our Province of British Columbia, at Our Government House, in Our City of Victoria, this day of , in the year of Our Lord one thousand eight hundred and , and in the year of Our Reign. " By Command. " 14. Any free miner desiring to locate a mineral claim shall, subject to the Si provisions of this Act with respect to land which may be used for mining, enter of upon the same and locate a plot of ground measuring, where possible but not oh exceeding, fifteen hundred feet in length by fifteen hundred feet in breadth, in as nearly as possible a rectangular form, that is to say: All angles shall be right ^. angles, except in cases where a boundary line of a previously surveyed claim is adopted as common to both claims, but the lines need not necessarily be meridional. In defining the size of a mineral claim, it shall be measured horizontally, irrespective of inequalities on the surface of the ground. " 15. A mineral claim shall be marked by two legal posts, placed as near as possible on the line of the ledge or vein, and the posts shall be nUmbered 1 and 2, and the distance between posts 1 and 2 shall not exceed fifteen hundred feet, the line between posts Nos. 1 and 2 to be known as the location line, and upon posts Nos. 1 and 2 shall be written the name given to the mineral claim, the name of the locator, and the date of the location. Upon No. 1 post there shall I be written, in addition to the foregoing, ' Initial Post,' the approximate com- ''pass bearing of No. 2 post, and a statement of the number of feet lying to right and to the left of the line from No. 1 to No. 2 post, thus:—'Initial post. jj&Direction of post No. 2. feet of this claim lie on the right, and feet on the left of the line from No. 1 to No. 2 post.' "All the particulars required to be put on No. 1 post shall be furnished by the locator to the Mining Recorder at the time the claim is recorded, and shall form a part of the record of such claim. • ■" When a claim has been located, the holder shall immediately mark the line between posts Nos. 1 and 2 so that it can be distinctly seen; in a timbered locality, by blazing trees and cutting underbrush, and in a locality where there is neither timber nor underbrush he shall set legal posts so that such line can be distinctly seen. "The locator shall also place a legal post at the point where he has discovered rock in place, on which shall be written ' Discovery Post': Provided that when the claim is surveyed, the surveyor shall be guided entirely by posts 1 and 2 and the notice of No. 1, the initial post, and the records of the claim. MARTIN'S MINING CASES. I Discovsfy Post, o mt Survi I not be lawful to move No. 1 post, post, except for the correction of dists or. Nos. 1 and 2 posts shall govern the di .ther shall it be lawful to by the Provincial Govern- f one side of the "(a.) The holder of a mineral claim shall be entitled to all minerals which.! may lie within his claim, but he shall not be entitled to mine outside the | boundary lines of his claim continued vertically downwards; " (6.) This Act shall not prejudice the rights of claim-owners nor claim- . holders whose claims have been located under former Acts; "(c.) No mineral claim shall be recorded without the application being j accompanied by an affidavit or solemn declaration made by the applicant, or some person on his behalf cognizant of the facts, that mineral has been found in place on the claim proposed to be recorded." 5. Sub-section (a) of sec. 36 of the " Mineral Act, 1891," as amended by sec. 13 of the " Mineral Act (1891) Amendment Act, 1892," is hereby repealed' and the following inserted in lieu thereof:— " (a.) Done or caused to be done work on the claim itself in developing a <i) mine to the value of five hundred dollars, exclusive -of all houses, biwltjcjfi ings, and other like improvements. .For the purpose of this section, work I done on the claim by a predecessor or predecessors deemed to have been done by the applicant who recei such claim; but in no case shall the cost of surveying improvements or work done on the claim." in title shall be ves a transfer of be considered as 6. Section 17 of the "Mineral Act (1891) Amendment Act repealed, and the following is inserted in lieu thereof:— 1893," is hereby Foem F. Certificate of Improvements. Notice. * Situate in the Mining Division of Mineral Claim?* Where located. Take notice that I , free miners' certificate No. intend, sixty days from the date hereof, to apply to the Gold Commissioner for a certificate of improvements, for the purpose of obtaining a Crown grant of the above claim. And further take notice, that adverse claims must be sent to the Gold 0»m" missioner and action commenced before the issuance of such certificate of improvements. Dated this day of , 189 . 7. When a holder of a mineral claim has taken out his provements he shall not record any transfer of his rights in th he obtains his Crown grant. certificate of iifc- e said claim until MINING STATUTES. [11 th April, 189i.] H"ER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows— 1. This Act may be cited as the " Placer Mining Amendment Act, 1894." § 2. Section 55 of the "Placer Mining Act, 1891," is hereby repealed and the Amends s. following inserted in lieu thereof:— " 55. A free miner may, at the discretion of the Gold Commissioner, obtain -g h-a. grant to a water right in any unappropriated water; for any place purpose, for any term not exceeding ten years, upon such terms and conditi as such Gold Commissioner shall think fit; but no free miner shall be charged -sany. money rental for any such water used by him for mining purposes on his is hereby repealed and Aw shall deposit with the jw • a plan of the ground, p]al for a lease of mining :t shall deposit the time the application is y dollars deposited to be applied And $20. myment of the first year's rent; if the application is not granted illars deposited is to be returned to the applicant; but in case the rf application s to perform his part in accordance with his application, then the "^f™"^^ s deposited shall be forfeited to the Govei the following nserted in 1 leu thereof:— Mining Recor making sue use of the Gold Comm And every ground for an nder the provisions of of twenty dol e Gold Commissioner made. If the application is granted the twenty "115. Application shall not ■cepting for mining lands on •Mjeeks, for hydraulic workings, rfor any term not exceeding tw \ Act, 1891," is hereby repealed and . or a longer term than ten years, g unworked or abandoned rivers or aming lands application may be made 1891," is hereby repealed and the Amendss. 116 ceed the following areas or dis- Areas of ground. Dry diggings, in length alt " In bar diggings which are unworked in length along the high water mar) " In creek diggings on abandoned or ui in length; | In bench lands adjoining unwoi workings, one hundred and sixtj in no case exceed half a mile." ked or abandoned, tworked creeks, one mile and a half Oe«k diggings, or abandoned rivers, for hydraulic Bench lands, is; but in such lands the length shall 700 MARTIN'S MINING CASES. [vol. PlacerAmend- 6. Section 117 of the " Placer Mining Act, 1891," is hereby repealed and the I ment Act, 1894 following inserted in lieu thereof :— ~~7~ . " 117. A lease shall not be granted for any mining ground any portion of Amends s. 117. wllicn }g actuajiy occupied by free miners unless with the consent of such No lease occupiers; and no lease shall be granted for any mining ground which is, in the ground occu- °P'n'on of tne Gold Commissioner, available for agricultural purposes." agricuHural 7. Section 122 of the " Placer Mining Act, 1891," is hereby repealed and the ground. following inserted in lieu thereof :— Amends s. 122, " 122. On the non-performance or non-observance of any covenant or con- Forfeiture of ' dition in any lease, such lease shall be declared forfeited by the Gold Commis- leai-e. sioner, and become absolutely void, and the ground included in such lease shall!:8 thereupon be open for location by any free miner; and no money shall be received by the Gold Commissioner for any year's rent after the first unless the- terms of the lease have been fully complied with by the grantee during the- preceding year." Amends s. 124. 8. Section 124 of the " Placer Mining Act, 1891," is hereby repealed and the- following inserted in lieu thereof:— Hydraulic " 124. When any mining lands on or adjoining unworked or abandoned riversg; workings. or creeks are held under lease for hydraulic working, the lessee of such landsf| shall be entitled to a grant from the Gold Commissioner of such quantity of unappropriated water, from any stream or lake, as may, in the opinion of the Gold Commissioner, be necessary to work the said mining land efficiently, and shall have the right of way through any mining ground for the purpose of constructing ditches and flumes to convey such water to the mining lands so held for hydraulic working, which grant shall be for the same term for which thl» mining land is leased. Whenever such mining lands shall have been efficiently worked as required by the conditions of the lease, to the satisfaction of the Extension of Gold Commissioner, and if at the expiration of the lease a portion of said lands lease. remains still to be worked, the lessee shall be entitled to an extension of the lease and grant, upon the same conditions as the original lease and grant, for such reasonable time as will enable him to work out such portion of said lands as still remain unworked, and the Gold Commissioner may grant such extension by memorandum endorsed on the lease: Provided, that whenever the mining lands so held under lease have been forfeited, abandoned, or worked out, or the occasion for the use of the water upon such mining lands shall have per- When ground manently ceased, the grant of such water shall terminate. But in any case watrriehtto w^ere tne ditch or flume constructed for conveying such water shall have a cease unless carrying capacity of not less than five hundred inches and shall have cost not cost $5 000. less than .five thousand dollars, such ditch or flume shall remain the property of the owner thereof." Amends s. 125. 9. Section 125 of the " Placer Mining Act, 1891," is hereby repealed and the following inserted in lieu thereof:— Record of " 125. Every grant, and every extension of a grant, of a water right for water grants, mining lands leased for hydraulic working shall be recorded in the ' Record of Water Grants,' but it shall not be necessary to re-record such grants of exten- Repealss. 126. 10. Section 126 of the "Placer Mining Act, 1891," is hereby repealed and the following inserted in lieu thereof: — Grant of a " 126. It shall be lawful for the Gold Commissioner with the sanction of the lease of river Lieutenant-Governor in Council, to grant a lease, for any term not exceeding Dec". twenty years, of the bed of any river below low water mark for dredging pur poses, for a distance not exceeding five miles, upon such terms as he shall think fit: Provided, always, that every such lease shall reserve the right to every free miner to run his tailings into such river at any point thereon, also to mine two feet below the surface of the water at low water mark by putting in wing- dams, and whether such free miner shall locate before or after the date of such APPENDIX A.—MINING STATUTES. ce of British Columbia, enacts as follows—- y be cited as the " Mineral Act Amendment Act, 1895." .1 Act, 1891," ereby repealed, and the follow- Re- ierson or joint stock company shall be recognized as having any est in or to any mineral claim, or any minerals therein, or in or to jht, mining ditch, drain, tunnel, or flume, unless he or it shall have 's certificate unexpired. And on the expiration of a free miner's e owner thereof shall absolutely forfeit all his rights and interests mineral claim, and all and any minerals therein, and in or to any iter right, mining ditch, drain, tunnel, or flume, which may be'held y such owner of such expired free miner's certificate, unless said on or before the day following the expiration of such certificate, s- free miner's certificate: Provided, nevertheless, should any co- i keep up his free miner's certificate, such failure shall not cause a l abandonment of the claim, but the interest of the co- Uncertificated 1 to-keep up his free owner who shall f and become vested Provided, nevertheless, that a free miner, and, though not a free apply to mineral claims for/ which tificate shall, ipso facto, be according to their former interests: ■eholder in a joint stock company need not be shall be entitled to buy, sell, hold, ded, also, that this section shall not ;rant has been issued." need not have such licence. Not to apply when Crown Re-enactsl893, c. 29, s. 23. 3. Section 23 of the " Mineral Act (1891) Amendment Act, 1893," is hereby repealed, and the following inserted in lieu thereof:— " 23. The owner of a mineral claim shall be entitled to all surface rights, Surface rights including the use of all the timber thereon for mining or building purposes, so long as he holds the said claim for the purpose of developing the minerals contained therein, but no longer." 4. The holder of a mineral claim may, in lieu of the work required by sec. Payment in- 24 of the " Mineral Act, 1891," as amended, to be done on a claim in each year, stead of assess- pay to the Mining Recorder in whose office the claim is recorded the sum of ment work, one hundred dollars and receive from such Recorder and record a receipt for such payment. Such payment and the record thereof in any year shall relieve the person making it from the necessity of doing any work during the year in and for which and upon the claim in respect of which such payment is recorded. 5. Section 26 of the " Mineral Act, 1891," and sec. 10 of the " Mineral Act Repeals 1892, Amendment Act, 1892," and sec. 7 of the " Mineral Act Amendment Act, 1893," e. 32, u. 10; are hereby repealed, and the following inserted in lieu thereof:— 1893, c. 29, s. " 26. No free miner shall be entitled to hold in his own name, on in the acts 1891,s. 26. name of any other person, more than one mineral claim, on the same vein or Not more than lode, except by purchase, but such free miner may hold by location a claim upon one claim to be any separate vein or lode." • held by free 6. Section 45 of the " Mineral Act, 1891," is hereby amended by striking Amends 1891, out of the said section the words and figures, " in sec. 31 of this Act;" and c. 25, ss. 43, 44 see. 3 of the " Mineral Act Amendment Act, 1894," is hereby amended by agd 45> *?d 702 MARTIN'S MINING CASES. [vol.. Min Amend- striking out of each of the sections thereby substituted for sees. 43 and 44 of ment Act, 1895 the " Mineral Act, 1891," the words and figures, " in sec. 31 of this Act;" alsc- by striking out of the section substituted for the said section 43 of the " Mineral Act, 189.1," the words " including the rights set forth." Re-enacts 1891, 7. Section 85 of the " Mineral Act, 1891," is hereby repealed, and the fol- c. 25, s. 85. iowing inserted in lieu thereof :— One partner " 85. Should any partner fail to keep up his free miner's certificate, such fail- failing to keep ure shall not cause a forfeiture, or act as an abandonment of the partnership -r's claim, but the share of the partner, who shall so fail to keep up his free liner's certificate shall ipso facto be and become vested in his partners, pro rata, ccording to their former interests, on the said partners paying the free- miner's srtificate for the year." certificate. Provincial speetor or Mineralogis 8. The Minister of Mines and the Provincial Inspector c have the right to enter into or upon and examine any mi: 1- within the meaning of this Act. .Mineralogist shall of a mine or mineral cl work upon a mine or n fee for a free miner's licence for any perst for the fee, and may deduct the amount sc of salary or wages due ( lim, and every contractor for the ineral claim, shall pay the annual , 1 in their employment and liable paid on account x of such person- "- become due to him froi ~ To furnish collector wit >t employer upon production and delivery of the receipt for such tax to such > person. Every such owner or contractor shall furnish to the Mining Recorder or Collector, when requested by him so to do, from time to time, a list of all persons in his employ, or indirectly employed by him, liable to pay the said 1 licence fee; but no such statement shall bind the Recorder or Collector or excuse him from making due inquiry to ascertain its Penalty. 10. If any person fails to pay the said licence fee for his employees, or to deliver to the Recorder or Collector the list mentioned in the preceding^ section when required so to do, or knowingly states anything falsely in such list, such person shall be liable to a penalty not exceeding one hundred dollars, to be recovered, together with the amount of the unpaid licence fees,, upon summary conviction before one Justice of the Peace. Taxation of 11- Notwithstanding anything contained in the said " Mineral Act, 1891,"' mines and or amendments thereto, mines and moneys invested therein shall not be exempt moneys there- from taxation, but shall bear such rate as may be imposed by any law in force- in invested, in the Province. Lieut-Gover- 12. The Lieutenant-Governor in Council may make such orders as are deemed' nor may make necessary from time to time to carry out the provisions of this Act according^ rules and to their true intent, or to meet the cases which may arise and for which no regulations. provision is made in this Act, or when the provision which is made is am- r doubtful; and may also make regulations for relieving against for- rising under sec. 9 of the " Mineral Act, 1891," as amended by this* lay further make and declare any regulations which are considered'^ 0 give the provisions in this clause contained full effect; and from time to time alter or revoke any order or orders or any regulations made inf. respect of the said provisions, and make others in impose penalties not exceeding two hundred dollai months' imprisonment for violation of any regula regulations shall be verified on oath. Every order 0 of the provisions of this section shall have force an has been published for two successive weeks in the and such orders or regulations shall be laid before within the first fifteen days of the session next after biguous o - Act; and r tead; and further MARTIN'S MINING CASES. [vol. d-applicant; but in case the applicant fails to perform his part in accordance | 95 with his application, then the twenty dollars deposited shall be forfeited to | the Government, and his application shall be void. 5. The section substituted by sec. 5 of the " Placer Mining Amendment Act, 1894," for sec. 116 of the " Placer Mining Act, 1891," is hereby repealed, and I the following substituted in lieu of said section ll6 of the " Placer Mining | ' Act, 1891:" " 116. Applications shall not be for greater than the following areas or dis-1 ... " In dry diggings, ten acres ; i " In bar diggings, half a mile in length along the high-water mark; " In creek diggings on abandoned or .unworked creeks, half a mile in gs " In bench diggings, for hydraulic workings, eighty acres; but in such lands the length shall in no case exceed five hundred yards; " Provided, always, that nothing in this section or the said Act, as amended, contained, shall be deemed to affect the right of any holder of a lease to a renewal thereof, if such holder has substantially made and performed upon the ground the labour, work and expenditure required by such lease as a condition! of renewal thereof." 6. Section 120 of the said Act is hereby repealed, and the following enacted> in lieu thereof:— " 120. Every lease of mining ground shall be in writing signed by the Gold Commissioner and the lessee, and shall be in duplicate or triplicate, as the case may require, and one copy of every such lease shall, as soon as possible after it is issued, be transmitted by mail by the Gold Commissioner issuing the same, co be filed in the office of the Mining Recorder in the mining division of the district in which the land leased is situated." 14 7. Section 7 of the " Placer Mining Amendment Act, 1894," is hereby repealed, and in lieu thereof the following shall be read:— " 7. Section 122 of the " Placer Mining Act, 1891," is hereby repealed, and the following substituted in lieu thereof:— " 122. On the non-performance or non-observance of any covenant or condition in any lease, such lease shall be declared forfeited by the Gold Commissioner, subject to the approval of the Minister of Mines, unless good cause be shewn to the contrary. After any such declaration of forfeiture, the land shall be open for location by any free miner. No lease, whether made before or after the passage of this Act, shall hereafter be declared forfeited, except 8. Section 10 of the " Placer Mining Amendment Act, 1894," and the section thereby inserted in lieu of sec. 126 of the "Placer Mining Act, 1891," are hereby repealed, and the following is enacted as sec. 126 of the " Placer Mining , " 126. It shall be lawful for the Gold Commissioner, with the sanction of the Lieutenant-Governor in Council, to grant a lease for any term, not exceeding twenty years, of the bed of any river below low water mark for dredging purposes, for a distance not exceeding five miles, upon such terms as he shall d think fit: Provided, always, that every such lease shall reserve the right to every free miner or mining company to run tailings into such river at any point thereon, also to mine two feet below the surface of the water at low water mark, by putting in wing-dams, whether such free miner shall locate before or after the date of such lease; and it shall be lawful for the holder or holders of any lease or leases, whether granted before or after the passing of this Act, engaged in dredging for gold in any such river, at the time when they may be engaged in dredging, to cut into any bar, bench, or old channel on any of the EENPIX i -MINING STATUTES. iks of such river on which they hold leases, or mine in any bench or bank i reof during high or low water, provided the same ground is not leased under n i ' Placer Mining Act, 1891,' and amending Acts, or any other Act, or is not such time being worked by free miners, the right being always reserved to e miners to construct wing-dams as far as may be desired into any of such s, banks, or benches for the purpose of conducting mining operations, either I sluice or rocker, and parties holding such dredging leases shall not in any nner. interfere with any free miner or stop him from working any part of tl'river' or benches, otherwise than by dredging, of which the holders of such ses shall have the full right." 9. It shall not be lawful for any free r > thousand feet of any dredger while w fee for a free miner's licence for any the fee, and may deduct the amount the amount of salary or wages due 01 upon production and delivery of the such owner or contractor shall furnish .dfeQuested by him so to do, from tim ploy, or indirectly employed by him, liable a such statement shall bind the Recorder making due inquiry t : placer claim, and every contractor for the Qwi or placer claim, shall pay the annual to p irson in their employment and liable for for i • paid on account of such person from i become due to him from such employer reipt for such tax to such person. Every the Mining Recorder or Collector, when And tt o time, a list of all persons in his em- ^at^- pay the said licence fee; but Collector or excuse him from rrectness. 11. If any person fails to pay the said licence fee for his employees, o l^eliver to the Recorder or Collector the list mentioned in the precedin^ when required to do so, or knowingly states anything falsely in such list, such person shall be liable to a penalty not exceeding one hundred dollars, to be recovered, together with the amount of the unpaid licence fees, upon summary conviction before one Justice of the Peace. 12. Notwithstanding anything contained in the said " Placer Mining Act, ^ne 1891," or amendments thereto, mines and moneys invested therein shall not be n .exempt from taxation, but shall bear such rate as may be imposed by any law S in force in the Province. exempt from 13. The Lieutenant-Governor in Council may make such orders as are deem- L;eut.G.over- 1 necessary from time to time to carry out the provisions of this Act, ac- nor cording to their trutj. intent, or to meet the cases which may arise and for 0rde which no provision is made in this Act; or when the provision which is made out i is ambiguous or doubtful; and may also make regulations for relieving against of the Act. forfeitures arising under sec. 9 of the "Placer Mining Act," as amended by this Act; and may further make and declare any ' regulations which are considered necessary to give the provisions tj in this clause contained full effect; and from time to time alter or revoke any order or orders or any regulations made in respect of the said provisions, and make others in their stead; and further impose penalties not exceeding two hundred dollars, or not exceeding three months' imprisonment for violation of any regulations under this Act; and further provide that any s ment or returns required to be made by said regulations shall be verified on oath. Every order or regulation made by virtue of the provisions of this section shall have force and effect only after the same has been published for two guon reguia- ;essive weeks in the British Columbia Gazette; and such orders or regula- tions to be s shall be laid before the Legislative Assembly within the first fifteen days published, of the session next after the date thereof. l this Act shall affect liti i pending o the first February, Pending litiga- affected. MARTIN'S MINING CASES. 59 Vict. Cm An Act relating to Gold and othei w Minerals excepting Coal. Wth AprU, 1896.1 s the " Mineral Act, 1896." Inter a 2. In the construction of this Act the following expressions shall have the following meanings respectively, unless inconsistent with the context:— " Mine " shall mean any land in which any vein or lode, or rock in place, shall be mined for gold or other minerals, precious or base, except coal; " Mineral " shall mean all valuable deposits of gold, silver, platinum, iridium, or any of the platinum group of metals, mercury, lead, copper, iron, tin, zinc, nickel, aluminum, antimony, arsenic, barium, bismuth, boron, bromine, cadmium, chromium, cobalt, iodine, magnesium, manganese, molybdenum, phosphorus, plumbago, potassium, sodium, strontiufflK sulphur (or any combination of the aforementioned elements with themselves or with any other elements), asbestos, emery, mica, and mineral pigments; Limestone, marble, clay, or any building stone when mined for building purposes shall not be considered as mineral within the meaning of this Act; " Rock i: rateable deposits o " Vein," or " lode." Whenever either of these terms is used " rock in place " shall be deemed to be included; " Mineral claim " shall mean the personal right of property ■ any mine; " Mining property " shall include every mineral claim, ditch, mill site, or water right used for mining purposes, and all other things belonging to a mine or used in the working thereof; " Legal post" shall mean a stake standing not less than four feet above the ground, and squared or faced on four sides for at least one foot from the top, and each side' so squared or faced shall measure at least four inches on its face so far as squared or faced, and any stump or tree cut off and squared or faced to the above height and size; " Mill site " shall mean a plot of ground located, as defined by this Act, for the purpose of erecting thereon any machinery or other works for transporting, crushing, reducing, or sampling ores, or for the transmission of power for working mines; " Streams" shall include all natural watercourses, whether usually containing water or not, and all rivers, creeks, and gulches; " Ditch " shall include a flume, pipe or race, or other artificial means for conducting water by its own weight, to be used for mining purposes; " Ditehhead " shall mean the point in a natural watercourse or lake, or other source where water is first taken into a ditch; 708 MARTIN'S MINING CASES. [vol. Mineral Act, miner's certificate, provided, that when he applies for such certificate he shall 1896. produce to the Mining Recorder, or in case of his absence shall leave with the officer or other person in charge of the Mining Recorder's office, such existing certificate. " Substituted 7. if any free miner's certificate be accidentally destroyed or lost, the owner . certificate." thereof may, on payment of the fees set out in the Schedule to this Act, have a true copy of it, signed by the Mining Recorder, or other person by whom or out of whose office the original was issued. Every such copy shall be marked " substituted certificate," and unless some material irregularity be shewn in respect thereof, every original or substituted free miner's certificate shall be evidence of all matters therein contained. Penalty for 8. Every person and joint stock company engaged in mining for minerals mining with- (other than coal) shall take out a free miner's certificate, and every person or out certificate, joint stock company who mines or works as a miner in any mineral claim, mine iiield as real estate, or tunnel, or on any flume, drain, or ditch, without having taken out and obtained such certificate shall, on conviction thereof in a summary way, forfeit and pay a penalty not exceeding twenty-five dollars, besides costs: Provided, always, that nothing herein contained shall prejudice the right to collect wages or payment for work done by any person who, through not being a free miner, has rendered himself liable to the above penalty. Uncertificated 9. Subject to the proviso hereinafter stated, no person or joint stock company Srtfid11,110-* en* shall be recognized as having any right or interest in or to any mineral claim, est mi™ ff or any m'nera*s therein, or in or to any water right, mining ditch, drain, tunnel, property." or ftw1^ innless he or it shall have a free miner's certificate unexpired. And on the expiration of a free miner's certificate the owner thereof shall absolutely forfeit all his rights and interests in or to any mineral claim, and all and any minerals therein, and in or to any and every water right, mining ditch, drain, tunnel, or flume, which may be held or claimed by such owner of such expired free miner's certificate, unless such owner shall, on or before the day following the expiration of such certificate, obtain a new free miner's certificate : Provided, P 'd d i nevertheless, should any co-owner fail to keep up his free miner's certificate, terest of a C" sucn failure shall not cause a forfeiture or act as an abandonment of the claim, owner failing but the interest of the co-owner who shall fail to keep up his free miner's certifi- to keep up his "Bate.shall, ipso facto, be and become vested in his co-owners pro rata, accord- lioence shall ing to their former interests: Provided, nevertheless, that a shareholder in a vest in the joint stock company need not be a free miner, and, though not a free miner, shall cither co- be entitled to buy, sell, hold, or dispose of any shares therein: And provided, owners. aiSOj tjjat tjjjs section shall not apply to mineral claims for which a Crown Provided a grant has been issued: Provided, always, that if any person or company shall shareholder acquire, by purchase or otherwise, any mine or mineral claim, or interest therein, need hot have an(j jt shall appear that some person or company through whom he or it claims Not to apply to the provisions of this Act, such person or company so acquiring such mine or when Crown mineral claim, or interest therein, may, within one month from the time when he grant issued. 0r it shall first acquire knowledge thereof, or if knowledge already acquired within case of nnr ***■ one uaonth after this Act becomes law pay to the Recorder of the mining •ohasVof claim division in which the claim affected is situate the fee or fees which ought to have where default been Paid by such person or company in default as aforesaid, and thereupon the has been made title of such person or company so acquiring the said mine or mineral claim, or in keeping np interest therein, shall be deemed to be and always to have been as good and •certificate. effectual as if no such default had occurred, but this last proviso shall not affect litigation pending at the passage of this Act. Owners and 10. Eve ry owner of a mine or mineral claim, and everv contractor for the e of any work upon a 1 nine or mineral claim, shall pay the annual fee for a f «e miner's licence for ar y person in their employment and liable for so paid on account of such person from the amount of to become due to him from such employer ction and delivery of the receipt for such tax to such person. Every such owner or contractor shall f urru sh to the Mining Recorder or Collector, when APPENDIX A.^44iittfr<§ STATUTES. him so to do, from time tc ectly employed by him, lial t shall bind the Recorder o time, a list of all persons in ) e to pay the said licence fee; Collector or excuse him from : a fails to pay the said licence fee for his employees, oi ler or Collector the list mentioned in the preceding sect so, or knowingly states anything falsely in such list, s e to a penalty not exceeding one hundred dollars, to be th the amount of the unpaid licence fees, upon summ e Justice of the Peace. 12. Every free shall, during the e of his tificate, but not Where a free , nave me rigiii. co enter, locate, prospect, and mine upon any waste lands of miner may :own for all minerals other than coal, and upon all lands the right where- prospect and so enter upon, prospect, and mine all minerals other than coal shall have mme- or hereafter shall be, reserved to the Crown and its licencees, and also co enter, locate, prospect, and mine for gold and silver upon any lands the right whereon to so enter and mine such gold and silver shall have been, or shall be, reserved to the Crown and its licencees. Excepting out of all the above descrip- jftion of .lands any land occupied by any building, and any land falling within the Occupied curtilage of any dwelling house, and any orchard, and any land for the time lands, being actually under cultivation and any land lawfully occupied for mining purposes other than placer mining, and also Indian reservations and military or naval reservations: Provided that where any hydrauli in accordance with the " Placer Mining Act, 1891," land which may have been uncovered by the operati Be located or mined upon by any free miner other ths carrying on such hydraulic works for a space of six mo shall have been so uncovered: Provided that in the e\ made upon lands already lawfully occupied for other th not being a portion of lands granted to and held by or for a railway company ■ under any railway subsidy Act heretofore or to be hereafter passed, such free miner, previously to such entry, shall give adequate security to the satisfaction ive been in 1 of such w- ■ks. y being Proviso for ses and seourlty and "'•mpensation. y the Cot isdicti i mining, to kill gar all the rights and Right to k ; Act." 15. Any free miner desiring to locate a mineral claim, shall, subject to the gize an<j form provisions of this Act with respect to land which may be used for mining, enter 0f free miner's upon the same and locate a plot of ground measuring, where possible but not claim. 'fxeeeding, fifteen hundred feet in length by fifteen hundred feet in breadth, in 4*8 nearly as possible a rectangular form, that is to say: All angles shall be right angles, except in cases where a boundary line of a previously surveyed claim is adopted as common to both claims, but the lines need not necessarily be meridional. In defining the size of a mineral claim, it shall be measured horizontally, irrespective of inequalities of the surface of the ground. 16. A mineral claim shall be marked by two legal posts, placed as near as Sow ^^^ possible on the line of the ledge or vein, and the posts shall be numbered 1 and out. 2, and the distance between posts 1 and 2 shall not exceed fifteen hundred feet, the line between posts Nos. 1 and 2 to be known as the location line, and upon posts Nos. 1 and 2 shall be written the name given to the mineral claim, the name of the locator, and the date of the location. Upon No. 1 post there shall 710 MARTIN'S MINING CASES. Mineral Act, be written, in addition to the foregoing, " Initial. 1896. bearing of No. 2 post, and a statement of the n to the left of the line from No. 1 to No. 2 post, of post No. 2 feet of this claim lie on the left of the line from No. 1 to No. 2 post." All the particulars required to be put on No. nished by the locator to the Mining Recorder, ii is recorded, and shall form a part of the record o When a claim has been located, the holder i between posts Nos. 1 and 2 so that it can be distin by blazing trees and cutting underbrush, and in timber nor underbrush he shall set legal posts itely mark the line a timbered locality, lere there is neither uments of earth or ; base, so that such the notice of No. 1, the ii r shall be guided e: y posts 1 and 2 and No. 1 It shall not be lawful to move No. 1 post, neither shall i No. 2 post, except for the correction of distance by the Pro Surveyor. Nos. 1 and 2 posts shall govern the direction of oi (a) The holder of a mineral claim shall be entitled to may lie within his claim, but he shall not be entitled boundary lines of his claim continued vertically down (6) This Act shall not prejudice the rights of claim-owne whose claims' have been located under former Acts; (c) No mineral claim of the ful tion being accompanied by an S., made by the applicant or facts: That the legal notices affids tall b ■ solen ecorded without the APPENDIX A.—MINING STATUT facts: T has been under cultivation, or any Indian Reservation. In the said declaration shall be set out the name of the applicant, the number and date of his free miner's certificate, and the name of the place where the said certificate was issued, and the date of the location of the claim. The words written on the No. 1 and No. 2 posts shall be set out in full, and as accurate a description as possible of the position of the claim given. A description of the land bounding the fractional claim on all sides shall state whether it is vacant Crown land or land occupied by mineral claims, with the names of the claims. A sketch plan shall be drawn by the applicant on the back of declaration, shewing as near as may be the position of the adjoining mineral claims, and the shape and size, expressed in feet, of the fraction desired to be recorded; d) Provided that the failure on the part of the locator of a mineral claim to comply with any of the foregoing provisions of this section shall not be deemed to invalidate such location, if upon the facts it shall appear that such locator has actually discovered mineral in place on said location, and that there has been on his part a bona fide attempt to comply with the provisions of this Act, and that the non-observance of the formalities hereinbefore referred to is not of a character calculated to mislead other persons desiring to locate claims in the vicinity. ) the c 18. In cases where, from the nature ■ mark the location line of the claim, i ay be marked by placing legal posts >r shape of the ground, it is impossi 5 provided by this Act, then the ch nearly as possible to the location li the distance and direction such posts may be from such location li and direction shall be set out in the record of the claim. I 19. Every free miner locating a mineral claim shall record the same with pecor(j 0f the Mining Recorder of the district within which the same is situate, within ciaim. fifteen days after the location thereof, if located within ten miles of the office of iihe said Mining Recorder. One additional day shall be allowed for such record for every additional ten miles, or fraction thereof. Such record shall be made in a book to be kept for the purpose in the office of the said Mining Recorder, in which shall be inserted the name of the claim, the name of each locator, the number of each locator's free miner's certificate, the locality of the mine, the ■direction of the location line, the length in feet, the date of location, and the date of the record. Such record shall be, as near as may be possible, in the Form B. in the Schedule to this Act, and a certified copy thereof shall be given by the Mining Recorder to the free miner or his agent. A claim which shall not have been recorded within the prescribed period shall be deemed to have been abandoned. 20. A f talln ;be e itled t of a .1 clai -shall have furnished the said Mining Recorder with all the above particular intil he Whet ■ 21. Upon the establishment of a Kecorder's office therein, under the other shall be the proper office fc mining division, and making all rec lg division and the opening of a Mining record, ority of this Act, such office and none joining arding all mineral claims within such jtecorde a respect thereof. office. 712 MARTIN'S MINING CASES. [vol. Mineral Act, 22. If through ignorance any free miner shall record a mineral claim in a 1896. different mining division to that in which such claim is situate, such error shall —— not affect his title to such claim, but he shall, within fifteen days from the dis- Recording covery of his error, record such claim in the mining division in which it is claim in wrong situate) and such new record shall bear the date of the first record, and a note shall be made thereon of the error and of the date of the rectification of the same. district. AppUcation Recorders absence. 1 23, If a free miner applies at the Mining Recorder's office during his absence to record a mineral claim, or any document or other matter required by this Act to be recorded, and leaves the fee required by this Act, and the particulars and information required to enable the Mining Recorder to make such record, with the officer or other person in charge of said office, he shall be entitled to have such record dated on the date of such application. 24. Any free miner having duly located and recorded a mineral claim shall be entitled to hold the same for the period of one year from the recording of the same, and thence from year to year without the necessity of re-recording: Provided, however, that during each year and each succeeding year, such free miner shall ,do, or cause to be done, work on the claim itself to the value of one hundred dollars; and shall satisfy the Gold Commissioner or Mining Recorder that such work has been done, by an affidavit of the free miner or his agent, setting out a detailed statement of such work, and shall obtain from such Gold Commissioner or Mining Recorder, and shall record a certificate of such work having been done: Provided, also, that all work done outside of a mineral claim with intent to work the same shall, if such work have direct relation and be in direct proximity to the claim, be deemed, if to the satisfaction of the Gold Commissioner or Mining Recorder, for the purposes of this section, to be work done on the claim: Provided, further, that any free miner, or company of free miners holding adjoining mineral claims, or any two or more free miners who locate and record adjoining minerals claims, to be worked by them in partnership under the provisions of any Act for the time being in force, shall, subject to filing a notice of their intention with the Gold Commissioner or Mining Recorder, be allowed to perform on any one or more of such claims all the work required to entitle him or them to a certificate for work for each claim so held by him or them. If such work shall not be done, or if such certificate shall not be so obtained and recorded, in each and every year, the claim shall be deemed vacant1, and abandoned, any rule of law or equity to the contrary notwithstanding. I Payment in- 25. The holder of a mineral claim may, in lieu of the work required to be stead of as- done by section 24 of this Act, on a claim in each year, pay to the Mining Re- sessment work, corder in whose office the claim is recorded the sum of one hundred dollars and receive from such Recorder and record a receipt for such payment. Such payment and the record thereof in any year shall relieve the person making it from the necessity of doing any work during the year in and for which and upon the claim in respect of which such payment is recorded. Adjoining chims held i partnership. Surface righ 26. The owner of a mineral claim shall be entitled to all surface rights, in eluding the use of all the timber thereon for mining or building purposes in con nection with the working of said claim, so long as he holds the said claim for thi purpose of developing the minerals contained therein, but no longer. Priority of 27. In^case of any dispute as to the location of a mineral claim the title to location in the claim shall be recognized according to the priority of such location, subject to cases of any question as to the validity of the record itself, and subject, furtheir, to»itM dispute. free miner having complied with all the terms and conditions of this Act. Irregularities 28. Upon any dispute as to the title to any mineral claim no irregularit; previous to happening previous to the date of the record of the last certificate of work shal last certificates affect the title thereto, and it shall be assumed that up to that date the titli of title, to such claim was perfect, except upon suit by the Attorney-General based upoi APPENDIX A.—MINING STATUTES. ainer shall be entitled to hold in his own nam •son, more than one mineral claim on the si se, but such free miner may hold by location g Recorder, and froi . 31. When a free miner abandons a take from the same any machinery an have placed on the claim, and any ore ■ within such time as shall be fixed by the 32. No free miner shall be entitled to relocate a fd-Witmn*the prescribed period, aba lless he shall have obtained the clai make such relocation; and he portion thereof which he shall have failed t or which he shall have abandoned or forfeited, i written^ permission of the Gold Commissioner t [|ps6all hold no interest in any portion of such mil such permission. 33. Where a tunnel is run for the development of a vein or lode the owner R. of such tunnel shall, in addition to any mineral claim legally held by him, have ^ the right to all veins or lodes discovered in such tunnel: Provided that the ground ;n containing such veins or lodes be marked out by him as a mineral claim, and be duly recorded within fifteen days after such discovery; and provided further, that such veins or lodes are not included in any existing mineral claim. Any money or labour expended in constructing a tunnel to develop a vein or lode shall be deemed to have been expended on such vein or lode. 34. The interest of a free miner in his mineral claim shall, save as to claims Int held as real estate, be deemed to be a chattel interest, equivalent to a lease, for cla: one year, and thence from year to year, subject to the performance and obser- int vance of all the terms and conditions of this Act. 35. Any lawful, holder of a mineral claim shall be entitled t thereof on payment to the Government of British Columbia of the sum of five hundred dollars in lieu of expenditure on the claim. The intending purchaser shall comply with all the provisions of section 36 of this Act, except such as have respect solely to the work required to be done on claims. 36. Whenever the lawful holder of a mineral claim shall have complied with Certifit the following requirements, to the satisfaction of the Gold Commissioner, he improv shall be entitled to receive from the Gold Commissioner a certificate of improvements in respect of such claim, unless proceedings by the person claiming an adverse right under section 37 of this Act have been taken :— I Done or cause to be done work on the claim itself in develop) a Cro to the value of five hut other like improvement the claim by a predecessor been done by the applicant no case shall the cost of work done on the claim; I wok on tne Claim itseir in aeveioping a mine what work to id. dollars, exclusive of all houses, buildings and Be dcme before- For the purpose of this section, work done on certificate of or predecessors in title shall be deemed to have improvements ; who receives a transfer of such claim; but in granted. ae considered as improvements or (6) For r lode within the 1: (e) Had the claim surveyed by an authori: shall have made three plats of the clai defined and marked the boundaries of indicated the corners by placing monu thereof, and upon such monuments or name and the official designation of tht h claim upon the ground, and ct :s shall be inscribed by him the claim, and the corner represented thereby, a completion of survey, forwarded at o 714 MARTIN'S MINING CASES. [vol. Mineral Act, the original field-notes and plan direct to the Lands and Works Depart- 1896. ment. After a certificate of improvements has issued in respect of any claim so surveyed, prima facie evidence of its location upon the ground Evidence of may be given by any person who has seen and can describe the position of location. sucjj p0sts purporting to be so marked as aforesaid, and the said field- notes, or a copy thereof certified in accordance with the " Evidence Act," shall be received in all Courts as prima facie evidence of the facts which they purport to set forth; Notice of; (d) Shall have posted on some conspicuous part of the land embraced in the application, survey a copy of the plat of the claim, and 'a legible notice in writing, in ■etc., to be Form F. of the Schedule to this Act, of his intention to apply for a posted, certificate of improvements, and shall also have posted a similar notice in the Mining Recorder's office, and such notice shall contain— (1) The name of the claim; (2) The name of the lawful holder thereof; (3) The number of such holder's existing free miner's certificate; (4) His intention to apply for certificate of improvements at the end of sixty days, for the purpose of obtaining a Crown grant; (5) The date of the notice; Publication of (e) Inserted a copy of such notice in the British Columbia Gazette and such notice in m any newspaper published in the Province, and circulating in the dis- Gazette, trict in which the claim is situate, for at least sixty days prior to such application, which insertion can be made at any time after the posting of the notice on the claim; Filed copy of (f) Shall have filed with the Mining Recorder a copy of the surveyor's original notes original field notes and plat immediately after posting the notice on the with Recorder. claim of his intention to apply for a certificate of improvements; Affidavit in Cff) Filed with the Mining Recorder- Form G. (1) Affidavit of the holder of the claim, or his agent, in the Form G in Schedule of this Act; Mining Re- ^ ^ t^le exP'ration of the term of the said publication, provided no border's duties action shall have been commenced and notice thereof filed with the thereupon. Mining Recorder, he shall forward to the ovraer or agent, under Form I of the Schedule to this Act, the documents referred to above, together with a certificate that the notice provided by sec, 36, sub-sec. (d), has been posted in his office, and the field-notes and plan deposited for reference therein from the date of the first appearance of the said notice in the British Columbia Gazette and continuously therefrom for a period of at least 60 days. The Recorder shall also set out in Form I the name of the recorded owner of the claim at the date of signing the same. Certificate of * .37" I improvements be impea not to be 5, (2.) In case any person shall claim an adverse right of any kind, either to possession of the mineral claim referred to in the application for certificate of improvements or any part thereof, or to the minerals contained therein, he shall, rse within sixty days after the publication in the British Columbia Gazette of the ant- notice referred to in sec. 36 hereof (unless such time shall be extended by special order of the Court upon cause being shewn), commence an action in the m to be Supreme Court of British Columbia to determine the question of the right of lenced. possession or otherwise enforce his said claim, and shall file a copy of the writ in said action with the Mining Recorder of the district or mining division in which the said claim is situate within twenty days from the commencement of said action, and shall prosecute the said suit with reasonable diligence to final Red copy judgment, and a failure to so commence or so to prosecute shall be deemed to dgment be a waiver of the plaintiff's claim. After final judgment shall have been ren- be filed, dered in the said action the person or any one of the persons entitled to the pos- cept -MINING STATUTES. 715 ■ a,Un ,0/. *Dy ?.axt thereof> may file a certified copy of the same Mineral Act, : the Mining Recorder. After the filing of the said judgment, 1S96. liance with all the requirements of the next preceding section, such ms shall be entitled to the issue to him or to them of a certificate Certificate of ts in respect of the claim or the portion thereof which he or "nprovements :ar from the decision of the Court rightly to possess: Provided fudJ^nent n shall not apply to any adverse claim filed or action to enforce lenced prior to the date of this Act coming into force, but the Pending ontinued in the same manner as if this Act had not been passed, litigation. 38. After the issuing and recording c hile such certificate shall be in force it tificate of improvements, and Effec be necessary to do any work ficate ing and recording of such certificate of improvements in Record of ;laim situate outside of the Railway Belt, the holder thereof certificate of i Crown grant of such claim without the payment of the improvements required by sec. 35. And on the granting and recording entitles owner improvements in respect of a mineral claim situate inside to Crown e holder thereof shall be entitled to a Crown grant of such &rant- it of five dollars per acre to the Mining Recorder. Railway belt. Applict for. Crc 40. The holder of a mineral claim for which a certificate of improvemei "has been granted and recorded shall make application for a Crown grant the Gold Commissioner, enclosing his certificate of improvements, the Crown en :grant fee of five dollars, the Mining Recorder's certificate, Form I, the field- ' notes and plat, and the affidavit, Form G, within three months from the date §jpf such certificate of improvements, and in default of such application having been made within such time such certificate of improvements shall lapse and become absolutely void. 41. If the holder of a mineral claim, after applying for a certificate of im- Xransfer of provements. shall sell and transfer such claim to another free miner, upon sat- claim after ;isfactory proof of such sale and transfer being made to the Gold Com- application Kpffiasioner, the new holder of the claim shall be entitled to a certificate of im- for certificate, -provements in his own name. And if a sale and transfer shall be made to any •person or company after a certificate of improvements shall have been issued, upon proper proof of sueh sale and transfer being made to the satisfaction of ||he Chief Commissioner of Lands and Works, the Crown grant shall issue to the new holder of the claim. a has taken out his certificate of im- Not to transfer r of his rights in the said claim until he after certifi- validatealie n grant of a mineral claim located on any waste lands of the What passes ■ deemed to transfer and pass the right to all minerals within by Crown this Act (excepting coal) found in veins, lodes, or rock in place, grant on wasl :ch minerals are found separately or in combination with each land. or under the land in the said Crown grant mentioned. grants of mineral claims located on lawfully occupied lands the what passes to enter, prospect, and mine all minerals (other than coal) has by Crown 0 the Crown and its licencees, shall pass to the grantee all grant when; 1 the meaning of this Act (other than coal) found in veins or minerals (sain place, and whether such minerals are found separately or in coal) have bet :h each other, which may be in, upon, or under the land in the said reserved. MARTIN'S MINING CASES. Mineral Act, Crown grant mentioned, and includin 1 the t give . to i .-al clain holders of mineral claims so located, but such Crown grant shall expres serve the rights of such prior occupant, l- (Where the mineral claim is located on land lawfully occupied under a timber lease, the Crown grant shall convey the surface and minerals within the- meaning of this Act (save coal) found in veins or lodes, or rock in place, but shall reserve the timber.) What passes by Crown grant when gold and silvt 46. Cro right wher Crown and its licencees, shall pat in veins, or lodes, or rock in pla* in the said Cr claim holders pressly reservi aims located on lawfully occup gold and silver has been resei to the grantee all the gold anc les, or rock in place, which may be in, upon, or u: wn grant mentioned, and including all the rights giv< of mineral claims so located; but such Crown gr the rights of such prior occupant. ed lands, the- Adverse claim affecting only portion of 47. If an adverse claim shall only affect a portion of the ground for which a certificate of improvements is applied, the applicant may relinquish the portion covered by the adverse claim, and still be entitled to a certificate of improvements for the undisputed remainder of his claim, upon complying with the requirements of this Act. After judg- 48. When judgment in such case is rendered by the Court, a memorandum ment is given. 0f such judgment shall be entered in the " Record Book;" and if by any judgment the original boundaries of any claim shall be changed, the plat made by a Provincial Land Surveyor, and signed by the Judge by whom the judgment has been given shall be filed in the office of the Mining Recorder. g other document o e 49. Every conveyance, bill of sale, " lating to any mineral claim, not held as real estate, or mining interest be recorded within the time prescribed for recording mineral claims: Pr always, that the failure to so record any such document shall not inv the same as between the parties thereto, but such documents as to thin shall take effect from the date of record, and not from the date of sUch doc part After Crown And pro eral cla of title the dist the sam " Land Re- the "L dded ther, that after the it shall not be necessary to r« icuted subsequent to such Grot : in which the said claim is si nay thereafter be registered ii tie relating to the trai " e of n grant for £ ay transfer or other document ; with the Mining Recorder of but all documents relating tone manner as are other doeu- and all the provis 1 Registry Act," and any amendments thereto, shall apply >e 50. No transfer of any mineral claim, or of any interest therein enforceable unless the same shall be in writing, signed by the transf by his agent authorized in writing, and recorded by the Mining Recorc if signed by an agent, the authority of such agent shall be rect record of such transfer. All mineral claims derived under Cr every transfer, thereof, or any interest therein, shall be regis provisions of the " Land Registry Act." gistry Act Transfers un- gl- The transfer of any real estate acquired under the der Gold „ Gold Mining Amendment Act, 1873," shall be in writing, si Amendment ferrer or his agent authorized in writing, and need not be Act, 1873." seal. -ded before the sred under the- Claim ir 52. No mineral claim shall be open to location by any other person during during illness the last illness nor, unless with the permission in writing of the Gold Commis- and after death si0ner, for twelve months after the death of the lawful holder. APPENDIX A.- 717 Mineral Act, ccupied and unreserved Crov exceeding five acres, as a i and hold under this sectio awfully held by him. Such i of a square. On locating oill.-site. Location of n more mill-sites, nill site a mill the date of the ) Pos . On t a the office of the Min ag Rec _ ation of sixty days after the fulfilment of the above re- Recorder may •quirements, the free miner shall deposit, in duplicate, in the office of the Mining grant lease for ^Recorder, a plat of the said land made by an authorized Provincial Land Sur- one year, veyor, and prove by affidavit that he has complied with the above requirements, and that the said land is not known to contain minerals, and shall furnish «such- other proof of the non-mineral character of the land as the Gold Commissioner may require; the free miner shall then be entitled to a lease, for one year, .of the said land, which lease shall be executed by the Gold Commissioner. If, during the continuance of such lease, such free miner shall prove to the I;satisfaction of the Gold Commissioner that he has put or constructed works •or machinery for mining or milling purposes, on the said mill site, of the value •of at least five hundred dollars, he shall be entitled to a Crown grant of such Crown grant, mil) -site upon payment of five dollars per acre for such land. Any free miner Price, now having a lease of a piece of land for a mill site, upon proving to the satisfaction of the Gold Commissioner that he has put or constructed works, or . machinery for mining or milling purposes, on the said mill site of the value of at least five hundred dollars, shall, on payment of five dollars per acre, be en- t of s 56. On applying for a Cr (1) Pay the sum of five (2) Deposit with the M (a) Lease of the m -n grant of a mill-site, the free miner sh ollars per acre to the Mining Recorder; ing Recorder the following documents :- (c) Surveyor's original field-notes; (d) A certificate from the Gold Commissioner that works or machinery for mining or milling purposes have been put or constructed on the mill site to the value of at least five hundred dollars; (e) Application for the Crown grant. sites shall pass to the grantee all the surface of what passes rant mentioned, but all such Crown grants shall by Crown under the said land, and the right to the Crown grant of mill mine the said minerals, and may be in the follow- site. [L.S.] Pkovij oeia, by the Grace of God, of the Un Ireland, Queen, Defender of the Fa these presents shall come, Greeting: MARTIN'S MINING CASES. Know ye that We do by these presents, for Us, Our heirs a in consideration of the sum of to Us paid, give and grant unto h heirs and assigns, All that parcel or lot of land situate and numbered on the official plan or survey of the said in the Province- of British Columbia. To have and to hold the said parcel or lot of land, and all and singular the premises hereby granted, with their appurtenances, unto- the said h heirs and assigns forever. Provided, nevertheless, that it shall at all times be lawful for Us, Our heirs and successors, or for any person or persons acting in that behalf by Our or their authority, to resume any part of the said lands which it may be deemed;, necessary to resume for making roads, canals, bridges, towing-paths, or other works of public utility or convenience, so nevertheless that the lands so to be-.^ resumed shall not exceed one-twentieth part of the whole of the lands afore~;- said, and that no such resumption shall be made of any lands on which any buildings may have been erected, or which may be in use for the more convenient occupation of any such buildings. al for Us, Our heirs and; ■r Our or their authority, nd to raise and get there- hich may be thereupon or-" ry part of the same land,, and of the easements and privileges thereto belonging, for the purpose of such* raising and getting, and every other purpose connected therewith, paying in respect of such raising, getting, and use, reasonable compensation. shall be lawful for any ] Provided also, that it shall at all times be lawl successors, or for any person or persons acting und to enter into and upon any part of the said lands, out any minerals, within the meaning of this Act, t thereunder situate, and to use and enjoy : h heirs and assigns. Provided also, that it shall be at all times lawful for any person duly authi- orized in that behalf by Us, Our heirs and successors, to take from or upon any part of the hereditaments hereby granted, without compensation, any gravel,, sand, stone, lime, timber, or other material which may be required in the construction, maintenance, or repair of any roads, ferries, bridges, or other public- .-orks. stimony whereof We have caused these Our Letters to be made patujj*K' Great Seal of Our Province of British Columbia to be hereunto Witness His Honour , Lieutenant-Governor this day of , in the year of Our Lord one thousand APPENDIX A..—MINING STATUTES. Wa, ■ Rights. 59. A free estate, or of an a grant to a water right in any unappropriated water for ing purpose, for any term not exceeding twenty years, upon such ' 'conditions as such Gold Commissioner shall think fit. 60. Before applying for any such grant, the free miner shall— wh (1) Post a notice in writing on a legal post upon some conspicuous part done before of the ground on which such water is intended to be used and a copy of aPP*y'ng: for such notice on the office of the Mining Recorder for at least sixty days, Srant- which notice shall contain the following particulars:— (a) The name of each applicant; (6) The number of each applicant's free miner's certificate; (e) The name, or if unnamed, a sufficient description of the stream, lake, or other source from which such water is intended to be (d) The point of diversion or intended ditch head; (e) The number of inches of water applied for; (f) The purpose for which it is required; (g) The date of notice. (2) If more than three hundred inches are applied for, a deposit shall be made with the Gold Commissioner of twenty-five dollars, to be refunded if the grant is not made. 61. The grant of such water right shall be recorded in the office of the Mining Recorder within the time limited for the recording of mineral claims, which time can be extended by the Gold Commissioner in his discretion. at shall take effect i ■ dispute prior to si jh grant, priority of i 65. Every such grant shall be subject to the rights of such free aaajKjg "■" r- shall, at the date of such grant, be working on the stream above or below the f45^ ditch head, and of any other persons lawfully using such water for any purpose whatsoever; and such grant shall be deemed as appurtenant to the mineral I claim, mine held as real estate or mill site in respect of which it has been obtained, and whenever the claim or mine shall have been worked out or abandoned, or whenever the occasion for the use of the water upon the claim, mine or mill site shall have permanently ceased, the grant shall be at an end and determined. 66. No person shall be entitled to any such grant of water for the of selling such water, or of using the same otherwise than for the for which the water was recorded. 67. Within six months after the grant the construction of the ditch or other woi vey the water, and shall prosecute the sa completion, unless interrupted by the s always, that the Gold Commissioner may Y of t s of this section the grant shall be forfeited. is made, the grantee shall ks through which he intends me diligently and uninterruptedly to structi averity of the weather: Provided, works , in his discretion, allow such work Upon the non-fulfili MARTIN'S MINING CASES. 68. The Gold Commissioner shall, in his discretion, have power to allow a rantee of any water right to change the place of diversion, on giving such atices and complying with such terms as the Gold Commissioner may require. 69. Every such grantee shall take reasonable r granted to him; and if he wilfully waste any watei in excess of his requirements, the Gold Commissio be forfeited. ins for utilizing the water >r take a quantity of water r may declare his grant to 70. Any person desiring to bridge any stream, claim, or other p 1> purpose, or to mine under or through any ditch or flume, or to through or over any land already occupied, may do so with the writ of the Gold Commissioner. In all such cases, the right of the party first in possession, whether of the mine or of the water right, is to prevail, so as to entitle him to compensation if the same be just. 71. In measuring water in any ditch or sluice, the following rules shall be I observed:—The water taken into a ditch or sluice shall be measured at the ditch or sluice head. No water shall be taken into a ditch or sluice except in a trough placed horizontally at the place at which the water enters it. One inch of water shall mean half the quantity that will pass through an orifice two inches high by one inch wide, with a constant head of seven inches above the upper side of the orifice. 72. Whenever it shall be intended, in forming or upholding any ditch, to enter upon and occupy any part of a registered claim, or mine held as real prbaching any estate, or to dig or loosen any earth or rock within four feet of any ditch not <litch. belonging solely to the registered owner of such claim or mine, three days' notice in writing of such intention shall be given before entering or approaching within twenty feet of such other property. Right to divert ^3. Any person heretofore or hereafter engaged in the construction of any I a ditch. " roa<i or work may, with the sanction of the Gold Commissioner, cross, divert, 1 or otherwise interfere with any ditch, water right, or other mining rights whatsoever, for such period as the said Commissioner shall direct. Notice tc 74. The superfluous owner of any ditch, flume, :e, and maintain all culverts water flowing through or ov e shall, at his own expense, con- eev^ary for the passage of waste and t any such ditch, flume, or pipe. o keep ^5- The owner of any ditch, flume, or pipe shall construct and secure the repair, same in a proper and substantial manner, and maintain the same in good repair to the satisfaction of the Gold Commissioner, so that no damage shall occur to any road or work in its vicinity from any part of the works of such ditch, flume, or pipe. 76. The o^ good, in such which may be occasioned by flume, or pipe bn of any ditch, flume, or pipe shall be liable and shall make ner as the Gold Commissioner shall determine, all damages through any parts of the works of such ditch, imperfect. What consti- 77. If' any written notice to the party intended to be affected thereby be tutes sufficient posted for ten days on some conspicuous part of any premises referred to in notice. BUch notice, and also in the office of the Mining Recorder, such notice shall be deemed good and sufficient. Renewal of ^8. When the term for which any water right has been granted shall have term for water expired, the grantee thereof may, at the discretion of the Gold Commissioner, right. obtain a renewal of the same for a reasonable term, not to exceed ten years, provided the necessity for the use of said water for the purpose for which it was originally granted continues to exist. APPENDIX A.—MINING STATUTES Chief Commissioner of public roads of the Pre right, or mining right, as little damage as pos 1 solely itained shall be construed to limit th* inds and Works to lay out, from time ce, across, through, along, or under any ditch, uay Crown land, without compensation, provided that Chief Con e shall be done in so doing. sloner may lay Part III. artnership shall be mining and such other matters Sco . Mini partnerships can locate and record in the partnership name a Record of for each partner, but the name of every partner, and the number i partner's free miner's certificate shall be on the record of every such ships. The partnership name must appear on every such record, and all the o taken up shall be the property of the partnership: Provided, always, who is the member of a mining partnership, holding by right al claim, shall be entitled to hold by right of location in his le name of any other partnership any interest in any other the same vein or lode on which the partnership claim is mineral ch of evei claim, claims that no fre of location I 84. Should any partner fail to keep up his free miner's certificate, such One partni failure shall not cause a forfeiture, or act as an abandonment of the par ship claim, but the share of the partner who shall so fail to keep up his free miner's certificate shall, ipso facto, be and become vested in his partners, pro rata, according to their former interests, on the said partners paying the free •miner's certificate for the year. 85. A partner in any mining partnership or his agent authorized in writing v shall, at any meeting thereof, be entitled to vote upon any interest or fraction right of an interest which he may hold therein; but the result of the votes given shall be determined by the number of the full interests voted upon, and not by the number of partners voting at such meeting. 86. A majority of such votes may decide when, how long, and in v manner to work the partnership claim, the number of men to be employed, the extent and manner of levying the assessments to defray the expe » by the partnership: Such majority may also choose a foreman or manager, who shall represent the partnership, and sue and be-sued in the name of the partnership for assessments and otherwise; and he shall have power to bind them by his contracts: Every partner, or his duly authorized agent, shall be entitled to represent his interest in the partnership property by work and labour so long as such work and labour be satisfactory to the foreman or manager. In the event of such workman being discharged by the foreman or manager, the "loreman or manager before it, and upon hearing the facts make such it shall deem just. . All asssessmenti I Any partner mi hall be payable within thirty daj after being default in ps shall, if such the partnership, and his inter ug a notice specify- witninsudays. . be personally liable P£*u^* ™^" the partnership property may be"""* 722 . MARTIN'S MINING CASES. *>< Mineral Act, solQ by the partnership for the payment of the debt, and any further assessment 1896. ' which may have accrued thereon up to the day of sale, together with all costs and charges occasioned by such default; and if the proceeds of the sale be insufficient to pay off the several sums mentioned, the Court having jurisdiction in mining disputes, upon being applied to, shall issue an order directed to the Sheriff to seize and sell any other personal property of the debtor. Notices of sale shall, in either of the above cases, be conspicuously posted thirty clear days prior to the day of sale in the vicinity of such mining or other property, and on the Court House or Mining Recorder's office nearest thereto. But if such partner be absent from the district such notices shall be posted as aforesaid sixty clear days before the day of sale, and a copy of such notice shall be published in some newspaper circulating in the district wherein such mining or other property is situate. Such sale shall be by public auction to the highest bidder. The purchaser shall be entitled to possession of the property sold, and to a bill of sale therefor signed by the auctioneer; such bill of sale shall confer such title upon the purchaser as the owner had. And for the purpose of carrying out the provisions of this section the Mining Recorder of the mining division in which the property to be sold is situate, or some one appointed by him, may act as auctioneer. Effect of notice 89. After a notice of abandonment in writing shall have been served on the of abandon- foreman or manager of a partnership by any member thereof, and duly recorded, ment. such member shall not be liable for any debts or other liabilities of the part nership incurred after service and record of such notice, and no member shall be deemed to have abandoned an interest until service and record of such notice. Title to abandoned continuing partners. Partner may sell his- ■ " 90. Upon the abandonment of any share in a mining partnership, the title to the abandoned share shall vest in the continuing partners, pro rata, according 1 to their foremost interests. all the debts of the partnership. limited liability to co pany's nai Effect of limited liability. Limited Liability. 93. Any mining partnership composed of two or more fr the liability of its members, upon complying with the reqi that is to say:— Upon filing with the Mining Recorder a declaratory statement containing the name of the partnership, the location and size of every partnership claim, and the particular interest of each partner; and also placing upon a conspicuous part of every such claim, in large letters, the name of the partnership, followed by the words " Limited Liability." " Limited Lia shall thereupon become part of the part- 95. After such conditions shall have been complied with, no member of such partnership shall be liable for any indebtedness incurred thereafter beyond an amount proportioned to his interest in the partnership. 96. Every such partnership shall keep a correct account of its assets and liabilities, together with the names of the partners, and the interest held by each, and shall make out a monthly balance sheet shewing the names of the creditors, and the amounts due to each, and file the same among the papers of MARTIN'S MINING OASES. 08. Upon receipt of an affidavit setting forth a detailed tificate of work it Issue of certificate. Filing and record of affidavit anc 109. Upon issuing such certificate of work, the Mining Recorder shall file such affidavit in the Record of Affidavits, and also record such certificate of work in the Record Book. 110. Upon receiving a certificate of improvements, the Mining Recorder shall record the same verbatim in the Record Book. 111. The Mining Recorder shall record all extensions of time, licences, permits, grants of water rights, and other privileges granted by the Gold Commissioner or Mining Recorder, and all forfeitures declared by the Gold Commissioner, and a memorandum of every judgment affecting a mineral claim or other mining property, in the Record Book. :- 112. Upon any Mining Recorder issuing a fr any free miner applying to record any mineral ;e instrument, the Mining_ Recorder shall enter in tl '" the particulars of such free miner's certificate, giv place of issue, and to whom issued. ter's certificate, or upon i, bill of sale, or other miner's certificate book mber of certificate, date, 113. Upon the receipt of a notice of abandonment, the Mining Recorder nts shall record the same in the Record of Abandonments, and file such notice, and write across the record of the claim affected by such notice, in the Record Book, the word " Abandoned," and the date of the receipt by him of the notice. If only an interest in a mineral claim is abandoned, and not the entire claim, the memorandum in the record shall shew which interest is abandoned. 114 The Mining Recorder shall re iratory statements required t ecord of Affidavits. 115. The Mining Recorder shall record, by copying out verbatim in the Record of Conveyances, all conveyances, mortgages, bills of sale, contracts for sale, and other documents of title, including powers of attorney, or other authorities, to execute all or any of the above description of documents when brought to him for that purpose. 116. The Mining Recorder shall record in the Record Book all other documents relating to mining property which may be brought to him for record, and shall file all such documents which may be brought to him to be filed. i any of the above books shall shew the date on * office hours, be Duty of Gold applicati 119. Every copy of, or extract from, any entry in any of the said books, or of any document filed in the Mining Recorder's office, certified to be a true copy or extract by the Mining Recorder shall be received in any Court as evidence of the matters therein contained. 120. Upon receipt from the holder of a certificate of improvements of an ap- ;ation for a Crown grant in the proper form, and all moneys payable in pect of the claim for which a Crown grant is applied, the Gold Commissioner for shall send such moneys, together with the under-mentioned papers, to the Chief t. Commissioner of Lands and Works:— (1) The certificate of improvements; (2) Affidavit of the holder of the mineral claim, or his agent—Form G; ' MARTIN'S MIXING a, the Gold Commissioner holder of a mineral claim mel, for any purpose connected or mine, through any occupied i, upon security being deposited age that may be done thereby, Tunnels and Drains. Commissioner 127. It shall be lawful for, but not incumbent u] may grant to grant a licence to any free miner, being the lawf licences for or mine held as real estate, to run a drain or tt tunnels. with the development or working of such clain or unoccupied lands, whether mineral or otherwi or given to him, to his satisfaction, for any da and upon such other terms as he shall think fit. Water. Grant of water 128. It shall be lawful for, but not incumbent upon, the Gold Commissioner right. to grant a water right to any free miner who is the lawful holder of a mineral claim, mine held as real estate, or mill site, in any unappropriated water, for any mining or milling purpose, for any term not exceeding twenty years, and upon such terms and conditions as the Gold Commissioner shall think fit, upon being satisfied that all the conditions of sec. 61 have been complied with. And in all cases where he shall think fit to extend the time for the recording of the grant of such water right. Renewal of 129- °n the expiration of the grant to any such water right, it shall be grant of water lawful for, but not incumbent upon, the Gold Commissioner to renew such grant right. for a further period not exceeding ten years, on being satisfied that the necessity for the use of the water for the purpose for which it was originally granted Forfeiture of 130. Upon proof that any grantee has not c grant. conditions upon which grants of water rights a: may declare the grant to be forfeited. Record of. 131. When such grant shall have been declared forfeited, the Gold Coi forfeiture. sioner shall .cause such forfeiture to be recorded by the Mining Recorder i Record Book. Change of 132' The Gold °01 place of change the place of div diversion. such change. Grant of 133. The Gold Commissioner may, in all proper j authority to writing to any person desiring to bridge any strean make a- bridge any purpose, or to mine under or through any ditch or clitcn, etc. through or over any land already occupied, and tt hereafter engaged in the construction of any road c otherwise interfere with any ditch, water privilege, or other mining rights what- an authority in other place, for • to carry water in heretofore or •, for such period as the said Commissioner shall think fit. Owner of ditch 134- The Gold Commissioi liable for pipe to make good, in such m damage. all damages which may be occ such ditch, flume, or pipe bret ir may order the owner of nner as such Gold Commiss tsioned by or through any p king or being imperfect. ny ditch, flume, or >ner shall think fit, rts of the works of 135. The Gold Commissioner may, in his discretion, permit a free miner to Re-location of re-locate a mineral claim, or any part .thereof, which may have been abandoned claim. or forfeited by such free miner: Provided that such re-locations shall not pre judice or interfere with the rights or interests of others. Marking out 136- The Gold Commissii space for of leavings and deads from deposits. terms as he may think just. APPENDIX A.—MINING STATUTES. 727 137. The Gold Corni mining works to be so carried on s of the public, any public work o claims, mining claims, bed-rock dr works may by his order be either 1 ■cost of the parties who may havt upon such terms as he shall think f lall have the power to summarily order any Mineral Act, i not to interfere with or endanger the safety 1896. highway, or any mining property, mineral tins, or bed-rock flumes; and any abandoned Commissioner lied up or guarded to his satisfaction, at the to Pr.ovld.e f or ted the same, or, in their absence, Public safety. 138. Notwithstant Act, 1873," or in anj any other Act, it sha and with or without claims all such rights real estate as may b claims held a s of claims not so held. ag anything contained in the " Gold Mining Amendment Crown grants Crown grant issued under the said Act, or under this or under "Gold be lawful for the Gold Commissioner, in his discretion, ¥imnf A f ty terms or conditions, to allow to the owners of mineral i^^ar ar privileges in and over mineral or other claims held a allowed in and over claims not so held; and owners o i shall be entitled to the same rights and priv 1 Act, 1873. 139. Upon receiving an application for a mill site from any free miner, and Isst upon proof being furnished to his satisfaction of the non-mineral character of of t the land applied for, and the deposit in duplicate of a plat of said land, and upon proof by affidavit that the applicant had complied with the requirements of sec. 54 of this Act, the Gold Commissioner shall issue to the applicant a lease of such land for one year, in the form in the Schedule to this Act. 140. Upon being satisfied that the lessee of a mill site has thereon works or machinery for mining or milling purposes to less than five hundred dollars, the Gold Commissioner shall to that effect. constructed Certificate of lount of not work on mill is certificate s'te- an receipt from the Mining Recorder of the moneys and documents Recorder to r referred to in sec. 121, the Gold Commissioner shall satisfy himself forward docu- ne are in order, and then forward the same to the Chief Commis- ments, etc., to inds and Works. C. Oof Lands 143. The Gold Commissioner, or any person authorized by him shall take q ^charge of all the property, within the district of such Commissioner, of any t( deceased free miner until the issue of letters of administration or probate of the e: if any, and may c sented or dispense there free miner shall die in deceased free miner is I for the Gold C eral claims held or owned to be duly repre- testate ith at his option : Provided, however, that where any deceased miner state, and the value of the personal estate of such s'than three hundred dollars, it shall not be necessary ;r to obtain from any Court letters of administration, but in such case the Gold Commissioner may administer and wind up the personal estate of the deceased, and do all things necessary and proper therefor, and act in all respects as if letters of administration to the personal estate of such deceased free miner had been granted to such Gold Commissioner, and the Gold Commissioner shall produce and pass his accounts, in each estate of which he shall undertake the administration, before a Judge of the County Court of the district. Past VI. Countt Courts. Jurisdiction, Procedure, Forms, and Costs. 144. In addition to the jurisdiction and powers given to the County Courts Jurisdiction of by the " County Courts Jurisdiction Act," and other Acts, every County Court County Courts shall have and exercise, within the limits of its district, all the jurisdiction and in mining powers of a Court of Law and Equity— matters. MARTIN'S MINING CASES. [vol. (1) In all personal actions, where the debt or damages claimed arise directly out of the business of mining (other than coal mining), or from the exercise of or interference with any right, power, or privilege given, or claimed to be given, by this Act or any other Act relating to mining (other than coal mining) ; (2) In all actions between employers and employees, where the employment is directly connected with the business of mining (other than coal mining) ; (3) In all actions for supplies to persons engaged in mining, where such supplies were bought, contracted for, or supplied, or were alleged to have been bought, contracted for, or supplied for mining purposes, or for consumption by persons engaged in mining or prospecting; (4) In all actions of trespass on or in respect of mineral claims or other mining property, or upon or in respect of lands entered or trespassed on, or claimed to have been entered or trespassed on, in, searching for, mining, or working minerals (other than coal), or for any other purpose directly connected with the business of mining (other than coal mining), or in the exercise of any power or privilege given, or claimed to be given, by this Act, or any other Act relating to mining (other than coal mining) ; (5) In all actions of ejectment from mineral claims or other mining property, or from lands entered, or claimed to have been entered, in searching for, mining, or working minerals (other than coal), or for any purpose directly connected with the business of mining, or entered, or claimed to have been entered, under some power, right, or authority given or obtained under the provisions of this Act, or any other Act relating to mining (other than coal mining) ; (6) In all suits for foreclosure or redemption, or for enforcing any charge or lien, where the mortgage, charge, or lien shall be on mineral claims, mines, or other mining property; (7) In all suits for specific performance of, or for reforming, or delivering up, or cancelling any agreement for sale, purchase, or lease of any mineral I claim, mine, or other mining property; (8) In all suits for the dissolution or winding up of any mining partnership, whether registered or not, under the provisions of this Act; (9) In all suits relative to water rights claimed under this Act, or any other I Act relating to mining (other than coal mining) i (10) In all proceedings for orders in the nature of injunctions, where the same are requisite for the granting of relief in any matter in which jurisdiction is given to the County Court by this Act; (11) Provided, always, that at any time during the progress of any actionj - suit or matter relating to or concerning any of the classes of subjects in this section before referred to and enumerated, any of the parties to such action, suit, or matter may apply by summons to any Judge of the Supreme Court at Chambers for an order directing the transfer of such action, suit, or matter into the Supreme Court, and upon such summons any Judge of the Supreme Court may, if satisfied that it is expedient such action, suit, or matter should be so transferred, make an order directing the transfer of such action, suit, or matter into the Supreme Court, and may in and by such order give all necessary directions for effectually procuring and completing such transfer, and may make such order as to costs, as well of the proceedings theretofore had and taken in the County Court as of such summons, as he may think fit, and from and after the making of any such order for transfer into the Supreme Court all proceedings in respect of such action, suit, or matter, shall be had and determined in the Supreme Court, and the jurisdiction of the County Court in respect thereof shall absolutely cease and determine. The Supreme Court, or a Judge thereof, shall have discretion to order that any case so transferred shall be heard, tried, or disposed of without pleadings. *•] APPENDIX A.—MINING STATUTES. the^min^ *X£S*&£ 5"T t° County Courts b* this A<* shall be known as dStion^K^ and all other documents in every action c jurisdiction of the County Court. otW6l'ffiC°Untl uT'tS and County Court Judges, Registra 1aH artten8; tadU h-7e thrar dUti6S' poWers> «^> a™ autboritiesCoun tLaCnfT^ SUftS £nd °ther Pro^edings brought under the ordinary jurist force re^Hn"nth 89 ^ ^ Prwisio^ <* all Acts for the time being in SrSta^C? and powers of County Courts and County Court duuges, registrars, Sheriffs, and other officers, and regulating the practice and procedure m County Courts, and all rules and orders for the tin^ beteg app^c able to the ordinary jurisdiction of the County Court, shall, so far as nrLticable Cnounty0tCourrStent Jf, ?j ^ ^ t0 the W«* jurisdiction tAt l^flfl lVhen.d.isPutes a«sf concerning mining property, portions whereof are Adjoining c situated in adjoining or different districts, the County Court of either of such tricts districts before which the dispute is first brought shall determine it 148 The hearing of any summons, plaint, or other process in any County Summonses t,ourt shall not be deferred beyond the shortest reasonable time necessary in returnable^ the interests of all parties concerned, and it shall be lawful for the Registrar forthwith. to malte summonses or other proceedings returnable forthwith, or at any other 149. In all mining actions or suits the Court may decide the question at Court may c issue upon the ground in dispute, and such decision shall be entered as in cide on the ordinary cases, and have the same virtue and effect as if rendered in Court. ground. 150. In any mining cause or suit, either party may require that the issues Issues of fac: Of fact shall be tried by a jury, and the Judge may, before delivering judgment may be foum in any action, suit, or other proceeding, direct all or any issues of fact to be by a jury, found by a jury. 151. In all actions, suits, and other proceedings within the mining jurisdic- Costs tion of the CoUnty Court, the Judge may order that costs be taxed on the higher or lower scale .allowed by the County Court Rules; or if he shall consider jttthe case of sufficient importance, he may order that costs be taxed as in the Supreme Court, and the costs so ordered shall be the costs recoverable in such action, suit, or other proceeding! 152. Every County Court having jurisdiction in mining disputes shall, with Oountv r„„r reference to real estate held under the " Gold Mining Amendment Act, 1873," hCiunsdic? or under this Act, and notwithstanding any law to the contrary, have the tion over lam same powers and authorities to decide all matters or disputes arising between in certain cas. the owners thereof, or between the owners thereof and any third person, or between mining joint stock companies, or between shareholders therein, or between them and the company, in the same way and as fully as it might do concerning claims not being real estate; and actions, suits, and other proceedings relating to such matters or disputes shall be brought and had in the same manner as actions, suits, or proceedings relating to mining claims not being real estate. I 153. Any County Court Judge having jurisdiction in mining causes, may di- Writs of capis rect the issuing of writs of capias ad respondendum, ne exeat regno, and capias acl respondents satisfaciendum in^ all cases in which by law he has jurisdiction over the ^um' ne exea subject-matter of the suit, but under and subject to such conditions as a Judge reff"G a'!d of the Supreme Court might usually require in applications of a similar nature. fXSn'rinm 730 MARTIN'S MINING CASES. [vol. Mineral Act, pABT yil. Penal and Miscellaneous. Penalty for 154. Any person wilfully acting in contravention of this Act, or refusing to contravention 0bey any lawful order of the Gold Commissioner or of any Judge presiding in ot Act.; a Court shall, on conviction thereof in a summary way before any two Justices of the Peace or a Stipendiary Magistrate, or before any Judge of a Court having jurisdiction in mining disputes, be liable to a fine not exceeding two hundred and fifty dollars, or to imprisonment, with or without hard labour, for any term not exceeding three months. Recovery of ^55. All fines and penalties imposed and payable under this Act may be re- peualties. covered by distress and sale of any mining or other personal property of the offender; and in default of sufficient distress by imprisonment, with or without hard labour, not exceeding three months. . ' 157. Nothing herein contained shall, save where such intention is expressly exktine before state<*> be so construed as to affect prejudicially any mining rights and interests the passing of acquired prior to the passing of this Act; and all mining rights and privileges this Act. heretofore and hereunder acquired shall, without the same being expressly stated, be deemed to be taken and held subject to the rights of Her Majesty, Her heirs and successors, and to the public rights of way and water. Copies of Act. 158. Every free miner, on application to the Min 159. Affidavits and declarations made under the provisions of this Act shall e made before some Judge or Registrar of a Court of Record, or before some told Commissioner, Mining Recorder, Stipendiary Magistrate, Justice of the 'eace, Notary Public, or Commissioner for taking affidavits. 160. The Minister of Mines and the Provincial Inspector or Mineralogist ball have the right to enter into or upon and examine any mineral claim or tine within the meaning of this Act. 161. The Lieutenant-Governor in Council may make such orders as are deemed necessary from time to time to carry out the provisions of this Act according to' their true intent, or to meet the cases which may arise and for which no provision is made in this Act, or when the provision which is made is ambiguous or doubtful; and may also make regulations for relieving against forfeitures arising under sec. 9 of this Act; and may further make and declare any regulations which are considered .necessary to give the provisions in this clause contained full effect; and from time to time alter or revoke any order or orders or any regulations made in respect of the said provisions, and make others in their stead; and further impose penalties not exceeding two hundred dollars, or not exceeding three months' imprisonment, for violation of any regulations under this Act; and further provide that any statement or returns required to be made by said regulations shall be verified on oath. Every order or regulation made by virtue of the provisions of this section shall have force and effect only after the same has been published for two successive weeks in the British Columbia Gazette; and such orders or regulations shall be laid before the Legislative Assembly within the first fifteen dajs of the session next after the date thereof. -MINING STATUTES. Taxation of Mines and Moneys Invested Therein. 162. Notwithstanding anything contained in this Act, mines and moneys lvested therein shall not be exempt from taxation, but shall bear such rate s may be imposed by any law in the Province. ed t..„„. 163. There shall be levied and collected from the owner or occupier of any Annual tax of mineral or placer claim of which a Crown grant has issued, including Crown 25 cents per grants issued under authority of an Act made and passed in the 36th year of acre to be lev- Her Majesty's reign, intituled "An Act to amend the ' &old Mining Ordinance ied on every I 1867,' and the ' Gold Mining Amendment Act, 1872,' " an annual tax of twenty- °'ai™ held un" five cents for every acre and fractional part of an acre of land conveyed by the der Crown grant, payable on the 30th day of June in each year. Such tax shallgran form a charge upon the claim. The Assessor appointed under or by virtue of any existing Assessment Act, or any Collector appointed under the " Provincial Revenue Tax Act," is hereby authorized, as to the mineral or placer claims isituate within the district for which he is appointed, to collect and receive the tax. In the event of the tax not being paid to- the Assessor or Collector, the Tn default of Gold Commissioner may in his discretion cause the claim upon which the tax p is charged to be offered for sale by public auction, of which sixty days' notice n I shall be posted upon the principal Court House of the district in which the & claim is situate, and in one newspaper, if any, published in such district, and j|may sell such claim, receive the purchase money, and execute a conveyance ft thereof to the purchaser. The purchase money shall be applied in payment of ^ -the expenses of advertising and the payment of the tax, and any surplus shall n be paid into the treasury in trust for the owner of the claim. In the event of there • being no purchaser, or if the price offered s and expenses of advertising, the land shi and the Crown giant thereof shall be deemed void. The may, before offering the claim for sale, sue the owner or in a summary manner, before any Justice of the Peace, same to be paid; and in default of payment the amount du may be recovered by distress of the goods and chattels whom the tax may be recovered: Provided, that if the mineral or placer elaim shall i > the Collector Owner occupier for the tax, sued ft who may adjudge the -, together with costs, >f the person against owner of any such Provisi of the Gold Commis- missioi ing Recorder or Assessor and Collector of the district in which the claim lies, that the sum of two hundred dollars has been expended thereon in labour or improvements in any one year, then the tax shall not be levied in respect of such claim for such year. 164. Wh im has been recorded under any name, and the owner or Change of his agent is desirous of changing the same the Recorder of said mining division name, may, upon application being made by such owner or agent, and upon -payment of a fee of twenty-five dollars, amend the record accordingly: Provided, however, that such change of name shall not in any way affect or prejudice any proceedings or execution against the owner of the said claim. 165. Whenever through the acts or defaults of any person other than the record- Where evi- - ed owner of a mineral claim or his agent by him duly authorized, the evidence dence of loca- of the location or record on the ground, or the situation of a mineral claim, tjpn, etc.. linas been destroyed, lost, or effaced, or is difficult of ascertainment, nevertheless, effacedthrough effect shall be given to same as far as possible and the Court shall have power Tamts ot otners to make all necessary enquiries, directions and references in the premises, for the purpose of carrying out the object hereof, and vesting title in the first bona fide acquirer of the claim. Pa ■ VIII. Repealing Clause. 166. The Acts and parts of Acts mentioned in this section shall.stand re- Kepealini pealed and be repealed ; but such repeal shall not be deemed to imply that any of clause, the said Acts or parts of Acts which have been repealed at any time 732 MARTIN'S MINING CASES. [vol. Mineral Act, prior to the passing of this Act have been in force since such repeal: Provided 1S96. further, that such repeal shall not affect any rights acquired, or any liabilities. or penalties incurred, or any act or thing done, under any of the said Acts or parts of Acts:— 1W» °' % '' The " Mineral Act, 1891," the " Mineral Act (1891) Amendment Act, 1892," 1893 c 29 : the "Mineral Act (1891) Amendment Act, 1893," the "Mineral Act Amend- 1894* c. 32 • ment Act, 1894," and the " Mineral Act Amendment Act, 1895," are hereby 1895] c. 39.' repealed. Pending litig feeted. 167. the Legislative Assembly. after the end of the n i pending section 6 of the SCHEDULES. , have this day located this i as the Mineral Claim, feet in breadth. The direction of the loca feet of this claim lie to the right and Mineral Clai ad as a feet in length i line is feet to the left of Dated this day of Take care to number the posts 1, mking the initial post 1. Form B. Record of Mineral Claim. I Set out the name and receipt form \ of payment of the record fee of \ each locator, and the No. of I The claim is situate The direction of the location The length of the claim is The claim was located on th Recorded this ds APPENDIX A.—MINING STATUTES. Poem C. Located in the partnership name of The members of the partnership, and the Nos. of their respective fre The receipt form of payment of the record fee. The claim is situate The direction of the location line is The length of the claim is feet. The claim was located on the day of , 189 Recorded this day of , 189 . Foem D. * for Certificate of Wo. 733 Mineral Act, 1896. Porm~c7 I have done or caused to be done, l the District of (Name of clai, This is to certify that an affidavit setti work done on the above claim since the by , has this day been filed in provisions of the Act in that behalf, I do n respect of the above claim to Dated Mineral Claim. out a detailed statement of the day of 189 , made Y office, and in pursuance of the oner or Mining Recorder. 734 Mineral A MARTIN'S MINING CASES. Foem F. Certificate of Improvements. Notice. Disi Situ 1 the Minii : Div a of Where located. Take notice that I , free miner's certificate No. ' intend, sixty days from .the date hereof, to apply to the Mining Recorder for a certificate of improvements, for the purpose of obtaining a Crown grant of the above claim. And further take notice that action, under sec. 37, must be commenced before the issuance of such certificate of improvements. Dated this day of , 189 . I, , of Fobm G. •on for Certificate of Improver. Applicant's Affidavit. , in the Dist make oath and say:— 1. I, , the recorded holder, and a the Mineral Claim, situated at (or Division) of 2. I, , have done, or caused to he done, work on the said claim;| in developing a mine to the value of at least five hundred dollars, full* particulars whereof are hereunto annexed and marked " A." 3. I, , found a vein or lode within the limits of the said claim. 4. I, , had the claim surveyed by , who has made 5. I, , placed one such plat on a conspicuous part of the land embraced in such plat on the day of , 189 . 6. I, , posted a copy of the notice hereunto annexed, and marked " B„" at the same place as said plat is posted, on the day of 189 , and another copy on the Mining Recorder's office at , on the day of , 189 , which said notice and plat have been posted and have remained posted, for at least sixty days concurrently with the publication of the said notice in the British Columbia Gazette. 7. I, , inserted a copy of the said notice in the British Columbia Gazette, where it first appeared on the day of , 189 , and in the , a newspaper published in the Province and circulating in the district in which the said claim is situated, where it first appeared on the day of , 189 , and was continuously published for sixty days concurrently with the publication of the said notice in the Britim Columbia Gazette prior to the date of this affidavit. 8. I , deposited a copy of the field-notes and plat in the Record Office at , on the day of ISO . and they remained there for reference for sixty days concurrently with the publication of the said notice in the British Columbia Gazette. ind subscribed to ,) of ♦Particular This affidav be altered to s , this , 189 , before n APPENDIX A.—MINING STATUTES. Foem H. Certificate of Improvements. Min •al Ch This is to certify that , of , in the District of , free miner's certificate -No. , has proved to my satis- iction that he has complied with all the provisions of the "Mineral Act" > entitle him to a certificate of improvements in respect of the lineral Claim, situate at , in the District of ; nd in pursuance of the provisions of the said Act I do now issue this certificate E improvements, in respect of the above claim, to Dated Gold Commiss This ee m certificate wil nths from it date. void unless a Crown grant is applied foi [For n may be dite red to su it circumstances.] Mining Divii District. Mineral Clai Date located, To Sib,—I herewith enclose the following documents relating to your application for a certificate of improvements to the above claim:— Affidavit of , applicant (Form H.) ; Copy of plat of claim; Copy of surveyor's field-notes. And I hereby certify that has published a notice of his inten tion to apply for a certificate of improvements for sixty days in the British I Columbia Gazette, from the day of , 189 , and j I newspaper from the day of • , 189 . That during the above period a notice in accordance with section 30, sub-sec. (d), has been posted, and a copy of the field-notes and plat of the said claim deposited for reference in my office, and that no notice of any action having been commenced against the issuance of a certificate of improvements to the said claim has been filed in this office up to this date. The recorded owner of the said claim at this date is Dated , 189 . , Min i Rec Foem J. Mill Site. Notice. Take notice that I, , fre rom the date hereof, to ituate at , , of e miner's certificate No apply for ac n the district of in the District of res of land for a mill site, MARTIN'S MINING OASES. Foem K. MiU Site: Affidavit of Applicant Peioe to Lease. I , of , in the District of free miner, make oath and say:— 1. I have marked out the land required by me for a mill a legal post at each corner. 2. I have posted a notice on each such post, and on the jS office at , a copy of which notice is hereun 3. The said land is not known to contain minerals, and is of my knowledge and belief, valuable as mineral land. Foi : L. Lease of Mill This indenture, made the , the Gold Commis: (hereinafter called the lessor), of the or in the District of , fre of the other part, witnesseth, that in i the " Mineral Act," he, the said less lessee, his executors, administrators, an , 189 , betw. aner for the District of- part, and , of miner (hereinafter called the lesse ercise of the powers vested in him r, doth hereby demise unto the si assigns, all that [Describe the mill site.] for the term of one year from the date hereof, subject to the provisions conditions of the " Mineral Act" relating to mill sites. In witness whereof, the said parties have hereunto set their hands and s Signed, sealed, and delivered Affidav I, ! PEIO , Of i the 1 t of :, make oath and s 1. Lam the lawful holder of the mill site mentioned in indenture of leas dated and made between 2. During the year mentioned in such lease as the term thereof, I put « constructed works or machinery, for mining or milling purposes, on the sai mill site, of the value of at least first hundred dollars. Sworn, &c. on t he mill site des ribed in and demised day of 189 , and made bet duri ng the existence of such lease. MARTIN'S MINING CASES. For a Full Clai Mining Divi District. 1. I am the holdt 2. On the Mineral Claim, situated [h District, free ■of Frt I, A.B., of in the Mining Division make oath and say:— e Miner's Certificate No. dated • , and issued at day of , 18 , 1 located the •e describe position of claim as near as possible, giving the name or names of any mineral claim or claims it may join.] 3. I have placed a No. 1 and a No. 2 and a discovery post of the legakj? dimensions on the said claim, with the legal notices on each post/ 4. I have written on the No. 1 post the following words :— 5. I have written on the No. 2 post the following words:— 6. That I have found mineral in place on the said claim. 7. That I have marked the line between No. 1 and No. 2 posts as required: by sec. 16 of this Act. 8. That to the best of my knowledge and belief the ground comprised within; the boundaries of the said claim is unoccupied by any other person as a mineral; claim; that it is not occupied by any building or any land falling within the- curtilage of any dwelling-house, or any orchard, or any land under cultivation,, or any Indian reservation. Note.—This declaration may be made by an agent. Mi Foem T. For Fractional Claim. ning Division, Dis 1. I a ., of in the Mining Division District, free miner, make oath and say:— i the holder of Free Miner's Certificate No. dated day of , 18 , and issued at 2. On the day of , 18 , I located the fractional mineral claim, situated 3. This is a fractional claim bounded on the north by , on the south by , on the east by , and on the west by , and is more particularly described on the- sketch plan on the back of this declaration. 4. I have placed a No. 1 and a No. 2 and a discovery post of the legal- dimensions on the said claim, with the legal notices on each post. 5. I have written on the No. 1 post the following words:— 6,. I have written on the No. 2 post the following words:— 7. I have found mineral in place qb the said fractional claim. 8. I have marked the line between No. 1 and 2 posts as required by sec. 16 of this Act. 9. That to the best of my knowledge and belief the ground comprised within the boundaries of the said fractional claim is unoccupied by any other person as a mineral claim; that it is not occupied by any building or any land falii*j| | within the curtilage of any dwelling-house, or any orchard, or any land under- cultivation, or any Indian reservation. Note.—This declaration may be made by an agent. APPENDIX A.—MINING STATUO 739 Mineral Act, 1896. 0 Scale of fees. every foli* over three, a further charge of 30 cents per folio. all copies or extracts from any record in any of the above-named books, where such copy or extract shall not exceed three folios, per re sneh copies or extracts exceed three folios, 30 cents per folio for every folio Over three. filing any document a Crown grant Ph An Act ip amend the "Placer Mining Act, 1891," and amending Acts. [17th April, 1896.] HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows :— 1. This Act may be cited as the " Placer Mining Act Amendment Act, £ " Plac ^t, 1891," i thereof :- " Interpretation. "2. In the construction of this Act the following expressions shall have the j . ,. following meanings respectively, unless inconsistent with the context:— "Mine," "placer mine," and "diggings" shall be synonymous terms, and „ shall mean any natural stratum or bed of earth, gravel or cement mined ., j e' for gold or other precious minerals or stones; mmA* "Placer claim" shall mean the personal right of property or interest in "diggings." any placer mine; and in the term "mining property" shall be included jf' ' every placer claim, ditch, or watei poses, and all other things belong d for placer mining pur- c'aim, or used in the working nnmng^ sek diggings, bar diggings, ProPerty- in the bed of a MARTIN'S MINING CASES. "Bar digginj " shall i I Dry diggings " shall me " Bench diggings " shall a pose of defining the si " dry diggings;" " Pre " Streams and ravines " usually containing wa " Ditch " shall include i conducting water by " Ditch head " shall meai water is first taken i: -er which a river never extends; on a bench, and shall, for the pur- 1 bench diggings, be excepted from posit of precious stones, whether 11 natural watercourses whether 11 rivers, creeks, and gulches; ce, or other artificial means for a be used for mining purposes; latural watercourse or lake where " Free miner" shall mean a person, or joint stock company, or foreign company named in, and lawfully possessed of, a valid existing free miner's certificate, and no other; " Legal post" shall mean a stake standing not less than four feet above the ground, and squared or faced on four sides for at least one foot from the top, and each side so squared or faced shall measure at least four inches on its face so far as squared or faced, or any stump or tree cut off and squared or faced to the above height and size; " Record," " register," and " registration," shall have the same meaning, and shall mean an entry in some official book kept for that purpose; " Record," when used without qualifyip ter is referred to, shall be taken I of a placer claim; " Full interest" shall mean any placer claim of the full size, or one of several shares into which a mine may be equally divided; " Close season" shall mean .the period of the year during which placer claims in any district are laid over by the Gold Commissioner of that district; " Cause " shall include any suit or action; " Judgment " shall include " order " or " decree;" " Real estate " shall mean any placer mineral land held in fee simple; " Joint stock company" shall mean any company duly incorporated for mining purposes under the ' Companies Act,' ' Companies Act, 1890,' and any company duly incorporated in British Columbia for mining purposes under the 'Companies Act, 1862' (Imperial), and shall include all companies falling under the definition of a foreign company in the ' Companies Act.' " 3. Section 12 of the " Placer Mining Act, 1891," is hereby repealed. 4. Section 26 of the " Placer Mining Act, 1891," is hereby repealed and the following inserted in lieu thereof:— Effect of record "26. If through ignorance any free miner shall record a placer claim in a in wrong different mining division to that in which such claim is situate, such error shall lot affect his title to such claim, but he shall, within fifteen days from the dis- tovery of his error, record such claim in the mining division in which it is dtuate, and such new record shall bear the date of the first record, and a note hall be made thereon of the error and of the date of the rectification of the istriet. ?ENDIX A.—MINING STATUTES. ■ Mining Act, 1891," is hereby repealed, 741 grant a lease of any unoccupied and un- leases of u purposes or for precious stone diggings Opo'wnknd rs, on such terms and conditions as he piacer mjn round by placing a legal post at each stone diggir wast nearest to ihe placer mining claims ality, and also on the office of the Min- " (1) The name of each applicant; " (2) The locality of the ground to be acquired; " (3) The quantity of ground; " (4) The term for which such lease is to be applied f the " Placer Mining Act, 1891," is hereby repealed, and Re.enaots iner, after staking the ground and posting the notices as Applicatio in thirty days, make application in writing, addressed to for lease, er, which application shall be in duplicate, with the plan back, and shall leave the same at the office of the Mining, 7. The section substituted by sec. 4 of the "Placer Mining Act (1891) Re-enacts s. Amending Act, 1895," for sec. 114 of the " Placer Mining Act, 1891," as amended 114. by sec. 3 of the " Placer Mining Amendment Act, 1894," is hereby repealed, and the following inserted in lieu of said sec. 114 of the " Placer Mining Act, 1891:" -114. On making such application the free miner shall deposit with the Plan in dupli- Mining Recorder, for the use of the Gold Commissioner, a plan of the ground, cateh°* A^ui in triplicate. And every person making application for a lease of mining ground 2°^ ^'^ for any purpose under the provisions of this Act shall deposit the sum of twenty Jjjg,^ dollars with the Gold Commissioner at the time the application is made. If «2o deposit the application is granted, the twenty dollars deposited to be applied towards the payment of the first year's rent, and the balance of the first, year's rent shall be paid by the applicant within sixty days after the Gold Commissioner gives him notice of the execution of the lease, which notice may be sent by letter to the applicant to his address; such address to be left with the Gold Commissioner when the application for the lease is made. If the application is not granted, the twenty dollars deposited is to be returned to the applicant; but in case the applicant fails to perform his part in accordance with his application, then the twenty dollars deposited shall be forfeited to the Government, and his application shall be void." 8. Section 115 of the " Placer Mining Act, stitnted b y sec. 5 of the "Placer Mining Act (1891) " for sec 116 0 | the "Placer Mining Act, 1891," is he follow ituted in lieu of said sec. 116 of the 891." 742 MARTIN'S MINING CASES. [VOL. Placer Amendment Act, 1896 ta " 116. Applicatior " In creek digging s shall not be for greater than the following are s on abandoned or unworked creeks, half a mile as or dis- n length: Creek diggings Other placer around. " Any other plac lease extend s r mining ground, eighty acres; but in no case shall any long any creek or river more than five hundred yards; excepted: ound be held also for that 10. Section 118 of the " 1 following substituted in liet "118. The Gold Commis I grant ing ground, or modify the to think fit." " 119. Every application for a lease of placer ) the plan of the ground and the Gold Commissior forwarded by such Gold Commissioner to the Liet and no lease shall be granted on any such applies 12. The section substituted by idment Act, 1895," for sec. y repealed and the following 13. Section 7 of the " Placer Mining and the section thereby substituted for 1891," are hereby repealed and the follow 122 of the " Placer Mining Act, 1891:" ; deemed to affect the to a renewal thereof, the ground the labour, in of renewal thereof." ereby repealed, and the an of the Lieutenant- t Mining Act (1891) ■f said sec. 'l20 of the ing signed by the Gold c triplicate, as the case oon as possible after it mining division of the Act (1891) Amendment Act. 18! ec. 122 of the "Placer Mining i ing is substituted in lieu of said be . On the non-performance or non-observance of any covenant or con- i any lease, such lease shall be declared forfeited by the Gold Commis- ubject to the approval of the Minister of Mines, unless good shewn to the contrary. After any such declaration of forfeiture, the mining ground shall be open for location by any free miner. No lease, whether made before or after the passage of this Act, shall hereafter be declared forfeited, except in accordance with this section." substituted by sec. 8 of the "Placer Mining Amendment . 124 of the " Placer Mining Act. 1891," is hereby repealed substituted in lieu of sec. 124 of the "Placer Mining Act, 7 placer mining ground is held under lease, the lessee of such itled to a free grant from the Gold Commissioner of •iated water, from any stream or lake, together with Re-enacts s. 124. 14. The sectior •Act, 1894," for se and the following 1891" :— Grant of wat ing ground. er " 124. When ar mining ground sha APPENDIX A.—MINING STATUTES. ssion er, be necessary to wc rk the said mining the ight of way th rough any mining ground tches and flumes to such water to the int s aall be for the same erm for which the such reasonable ti ground as still re tion of the Lieut im endorsed c Whenever such mining ground shall have been effi- d by the conditions of the lease, to the satisfaction of nd if at the expiration of the lease a portion of said ill to be worked, the lessee may obtain an extension of E i the same conditions as the original lease and grant, s will enable him to work out such portion of said min- s unworked, and the Gold Commissioner may, with the t-Governor in Council, grant such extension by memor- avided, that whenever the mining ground so -g ■ lease has been forfeited, abandoned, use of the water upon such n ^rant of such water shall ter nd s • the mtly a the property of the $5,000. adding thereto Amends 1891, "(a) The ] '•(&) The i 26; adds ter grant, the holder of a lease 124a and 124b- Procedure to ist upon some conspicuous part of grant, er is intended to be Used, and a tie Mining Recorder for at least i the following particulars:— ame of each applicant; amber of each applicant's free me, or if unnamed, a sufficiei other source from which st ertificate; a of the strt intended tt t descriptio "(d) The point of diversion or intended ditch head; "(e) The number of inches of water applied for; "(/) The purpose for which it is required; "(g) The. date of the notice. " 124b. Any free miner, or two or more free miners, holding adjoining leases Consolidation of placer mining ground, may consolidate his or their holdings into one holding, 0I holdings, not to exceed six hundred and forty acres, by filing with the Mining Recorder a declaratory statement containing. the name of the company or partnership which is to hold the consolidated lease, the location and size of each lease, and the particular interest of each free miner in the leases to be consolidated, and such statement shall be signed by the holder or holders of the leases to be (Consolidated. After filing such declaratory statement, such free miner, or free miners, shall be allowed in each and every year to perform on any one or more of such leases all the work that is necessary to be performed to hold all such leases, and any water grant that has been made for the working of any one of such leases shall, after the consolidation of such leases, be appurtenant to and may be used on any one of such consolidated leases; and provided further, that when two or more leases have been consolidated into one holding, as provided in this section, and such leases contain a provision that a certain amount of money shall be expended in working each of such leases each year in order to hold it, the holder or holders of such leases may, in lieu of the required expenditure in work on such leases in each year, pay to the Mining Recorder of the mining division in which such leases are situate, a sum equal to twenty- five per cent, of the aggregate amount required to be so expended in work on MARTIN'S MINING CASES. PlacerAmend the consolidated leases, and ret ment Act, 1896 such payment; and payment person making it from the net for which and upon the lease i erted i ive from such Recorder and record a R ad record thereof in any year shall r« ssity of doing any work during the yes respect of which payment is recorded.' i of ec. 125 of the "Placer Mining Act, Amendment Act, 1894"," is hereby re- lieu of said sec. 125 of the "Placer 16. The se 1891," by sec. 9 of the " Placer Mininj pealed and the following substituted ir Mining Act, 1891 :"— t extension of a grant, of a ■corded in the ' Record of W it shall not be n iry to r extension t 60 Vict. Chap. 28. amend the "Mineral Act, 1896.'' [8th May, 1897.] Short title. Re-enacts s. " Building " Rock in " Valuable deposits of mineral." "Mineral "■Mining property." Assembly of the Provin 1. This Act may be cited a the " Mineral Act Amendment Act, 1897.' the 2. Section 2 of the " Mineral Act, 1896," is hereby repealed and the follow ing substituted in lieu thereof:— . " 2. In the construction of this Act the following expressions shall hav following meanings respectively, unless inconsistent with the context:— " Mine " shall mean any land in which any vein or lode, or rock in place; shall be mined for gold or other minerals, precious or base, except coal; "Mineral" shall mean all valuable deposits of gold, silver,'platinum, iridium, or any of the platinum group of metals, mercury, lead, copper, iron, tin, zinc, nickel, aluminum, antimony, arsenic, barium, bismuth, boron, bromine, cadmium, chromium, cobalt, iodine, manganese, molybdenum, phosphorus, plumbago, potassium, sodium, strontium, sulphur (or any combination of the aforementioned elements with themselves or with any other elements), asbestos, emery, mica, and mineral pigments; Limestone, marble, clay, or any building stone when mined for building purposes shall not be considered as mineral within the meaning of this Act; " Rock in place " shall be deemed to mean and include mineral, not necessarily in a vein or lode, that is, when discovered in the same place or position in which it was originally formed or deposited, as distinguished from loose fragmentary or broken rock or float which, by decomposition or erosion of the rocks, is found in wash, loose earth, gravel or sand; " Valuable deposits of mineral " shall be deemed to mean and include mineral " ' l place " in appreciable quantity, having a present or prospective value justify exploration; " Vein," or " lode." Whenever either of these terms is used in this Act, " rock in place " shall be deemed to be included; " Mineral claim " shall mean the personal right of property or interest in any " Min property " shall include every mineral claim, ditch, mill site, or right used for mining purposes, and all other things belonging to a r used in the working thereof; APPENDIX A.—MINING STATUTES. 745 " Legal post " shall mean a stake standing not less than four feet above the Min. Amend- ground, and squared or faced on four sides for at least one foot from the ment Act, 1897 top, and each side so squared or faced shall measure at least four inches on its face so far as squared or faced, and any stump or tree cut off and " Legal post." squared or faced to the above height and size: Provided when the survey is made the centre of the tree or stump where it enters the ground shall be taken as the point to or from which measurement shall be made; a line " shall be the straight line between posts numbei "Mill site" shall mean ajjlot of ground located, as defined by this Act, for " the purpose of erecting thereon any machinery or other works for transporting crushing, reducing, or sampling ores, or for the transmission of power for working mines; " Free miner" shall mean a person or joint stock company, or foreign " ny, named in and lawfully possessed of a valid existing free miner's 2ate, and no other; registration," shall have the same mean: some official book kept for that purpose; ny mineral claim of the full size, or one . mineral claim shall be equally divided; " Full interest " shall mean any n several shares into which a min " Cause " shall include any suit or " Judgment " shall include " order " Real estate " shall mean any min Act relating to gold mines, or i " Joint stock company " shall mean (a) Incorporated under the ed thereby; or istered as a foreign company under any A lin. " register"i f "Fullintere " decree;" neral land in fee simple under this or any to minerals other than coal; n any company for mining purposes: Companies' Act, 1897," or any Act repeal- " Companies' Act, 1897 (c) Licenced or ■ registered as an " Companies' Act, 1897;" or (d) Incorporated by any special jxtra-Prt tct. 3. Section 12 of the said Act is hereby repealed and the following substituted B in lieu thereof:'— " 12. Every free miner shall, during the continuance of his certificate, but V not longer, have the right to enter, locate, prospect, and mine upon any waste™ lands of the Crown for all minerals other than coal, and upon all lands the right ™ whereon to so enter upon, prospect, and mine all minerals other than coal shall * have been, or hereafter shall be, reserved to the Crown and its licencees, and also to enter, locate, prospect, and mine for gold and silver upon any lands the right whereon to so enter and mine such gold and silver shall have been, or shall be, reserved to the Crown and its licencees. Excepting out of all the above description of lands any land occupied by any building, and any land falling within the 0 curtilage of any dwelling-house, and any orchard, and any land for the time being actually under cultivation, and any land lawfully occupied for mining purposes other than placer mining, and also Indian reservations i ' naval reservations : Provided that where any hydraulic mining wi in accordance with the " Placer Mining Act, 1891," have been i: . may have been uncovered by the operation of such works shall not r mined upon by any free miner other than the person or persons such hydraulic works for a space of six months next after the same g shall have been so uncovered: Provided that in the event of such entry being w made upon lands already lawfully occupied for other than mining purposes, and not being a portion of lands granted to and held by or for a railway company under any railway subsidy Act heretofore or to be hereafter passed, such free miner shall give adequate security to the satisfaction of the Gold Commissioner tablished land whicl be located carrying MARTIN'S MINING CASES. 2, and the distance between posts 1 and 2 shall not exceed fifteen hundred feet, the line between posts Nos. 1 and 2 to be known as the location line, and upon posts Nos. 1 and 2 shall be written the name given to the mineral elaim, the name of the locator, and the date of the location. Upon No. 1 post there shall be written, in addition to the foregoing, " Initial Po&ti-"-the approximate compass bearing of No. 2 post, and a statement of the number of feet lying to right and to the left of the line from No. 1 to No. 2 post, thus:—"Initial post. Direction of post No, 2. feet of this elaim lie on the right, and feet on the left of the line from No. 1 to No. 2 post." " All the particulars required to be put on No. 1 and No. 2 posts shall be or to the Mining Recorder, in writing, at the time the shall form a part of the record of such claim. earth or rock not less than two feet high and two feet in diameter at base, so that such line can be distinctly seen. " The locator shall also place a legal post at the point where he has found rock in place, on which shall be written discovery post: Provided that when the claim is surveyed the surveyor shall be guided by the records of the claim, the sketch plan on the back of the declaration made by the owner, when the claim was recorded, posts 1 and 2, and the notice on No. 1, the initial post. "Exa; 1 *" Discovery 1 No. ing Out Clai: " It shall not be lawful to n the Provincial Land Surveyor exceeds 1,500 feet in order to a™ ENDIX A .—MINING STATUTES. i' shall g vern the direction of one side tended according to this Act. af the claim, ds^S'b 1 claim shall be entitled to all m ut he shall not be entitled to mir e outside the ertically downi 06)-This Act shall not prejudice the rights of claim-owners nor claim- holders whose claims have been located under former Acts; (c) No mineral claim of the full size shall be recorded without the application being accompanied by an affidavit or solemn declaration in the of the facts: That the legal notices and posts, have been put up; that mineral has been found in place on the claim proposed to be recorded; that the ground appliefl for is unoccupied by any other person as a mineral claim, and is not occupied by any building, or any land falling within the curtilage of any dwelling-house, or any orchard or any land under cultivation, or any Indian Reservation. In the said declaration shall be set out the name of the applicant, the number and date of his free miner's certificate, and the name of the place where the said certificate was issued, and the date of the location of the claim. The words written on the No. 1 and No. 2 posts shall be set out in full, and as accurate a description as possible of the position of the claim given, having special • reference to any prior locations it may join; "' No mineral claim which at the date of its record is known by the locator to be less than a full sized mineral claim, shall be recorded without the word ' fraction' being added to the name of the claim, and the application being accompanied by an affidavit or solemn declaration in the Form T., made by the applicant or some person on his behalf cognizant of the facts: That the legal posts and notices have been put up; that mineral has been found in place on the fractional claim proposed to be recorded; that the ground applied for is unoccupied by any other person as a mineral claim, and is not occupied by any building, or any land falling within . the curtilage of any dwelling-house or any orchard, or any land under cultivation, or any Indian Reservation. In the said declaration shall be set out the name of the applicant, the number and date of his free miner's certificate, and the name of the place where the said certificate was issued, and the date of the location of the claim. The words written on the No. 1 and No. 2 posts shall be set out in full, and as accurate a description as possible of the position of the claim given. A description of the land bounding the fractional claim on all sides shall state whether it is vacant Crown land or land occupied by mineral claims, with the names of the claims. A sketch plan shall be drawn by the applicant on the back of declaration, shewing as near as may be the position of the adjoining mineral claims, and the shape and size, expressed in feet, of the fraction desired to be recorded; (d) Provided that the failure on the part of the locator of a mineral claim to comply with any of the foregoing provisions of this section shall not be deemed to invalidate such location, if upon the facts it shall appear that such locator has actually discovered mineral in place on said location, and that there has been on his part a bona fide attempt to comply with the provisions of this Act, and that the non-observance of the formalities hereinbefore referred to is not of a character calculated to mislead other 5. Section 24 of the said Act is hereby repealed and the a Re-ei .ving duly located and recorded a mineral claim shall j)n i for the period of one year from the recording of the reci r to year without the necessity of re-recording: Pro- dut lg each year and each succeeding year, such free > be done, work on the claim itself to the value of all satisfy the Gold Commissioner or Mining Recorder MARTIN'S MINING CASES. h work have dire ct relation and be in f to the satisfact on of the Gold Com- rposes of this seel lon, to be work done iners who locate and ber, to be worked by of any Act for th time, being in force, . that such work has been done, by an a 7 setting out a detailed statement of such Commissioner or Mining Recorder, and having been done: Provided, also,-rthat a. with intent to work the same shall, if st direct proximity to the claim, be deemed, on the claim: Provided, further, that ant holding adjoining mineral claims, or any record adjoining mineral claims, not exc« them in partnership under the provisions shall, subject to filing a notice of their intention with the lioid Liommlsslo: Mining Recorder, be allowed to perform on any one or more of such clai: the work required to entitle him or them to a certificate for work for each so held by him or them. If such work shall not be done, or if such cert shall not be so obtained and recorded in each and every year, the claim si deemed vacant and abandoned, any rule of law or equity to the contrary no standing." i. " 26. Notwithstanding anything to the contrary contained in any Act, Crown grant hereafter issued of a mineral claim shall convey, and be deer convey, only the right to the use and possession of the surface of such clai eluding the use of all the timber thereon, for the purpose of winning and g from and out of such claim the minerals contained therein, including all i tions connected therewith or with the business of mining, and the lawful by record of a claim shall, during the continuance of his record, be entit the same surface rights and no others, and all remaining surface rights be deemed to be vested in the Crown, and may be granted and disposed ol provided by the Land Laws for the time being in force, but subject alw* the rights of free miners as aforesaid." 0 7. Section 30 of the said Act is hereby repealed and the following subst in lieu thereof:— t " 30. A free miner may at any time abandon any mineral claim by notice in writing of such intention to abandon to the Mining Recorder, ant the date of the record of such notice all interest of such free miner in such on the claim by a predecessor o to have been done by the applican r predecessors i t who receives a this section, work done- n title shall be deemed' transfer of such claim."' in the British C s^rtewhichae^m is situated or, in the absence o I such local pa aer, in the one nearest be made at any time after the po ting of the noti ^<mWiKlata?0n ° i ther repealed and the following substi- Mm "124. Up< tablishment of a mining division, and the opening of a Re-enacts Aiming ttecorder's office therein, under the authority of the last preceding sec- s. 124. Effect of estab- "(a) Such office, and none other, shall be the proper office for recording all MhdneRe claims, records, certificates, documents, or other instruments affecting corder's office claims, mines or mining property situate within such mining division not in mining held as real estate; and whenever, by this Act, or any Act amending the district, same, anything is required to be done at or in the office of the Gold Commissioner or Mining Recorder of the district, it shall, if the same affects ■or concerns any claim, mine or mining property situate within a mining division not held as real estate, be done at or in the office of the Mining "•Recorder of the mining division wherein such claim or mine, or other mining property, is situate; ■"(&) Upon the district or division of any Mining Recorder being divided or subdivided into mining divisions, it shall be the duty of such Mining . Recorder to make, or cause to be made, a transcript of all the entries in all the books mentioned in section 107, affecting claims, mines, or mining property situate in each newly created mining division not! held as real estate, and to forward the same to the Mining Recorder of such mining division, and such transcript shall be kept in such office as part of the records of such office, and all transcripts of such records, certificates, documents, or other instruments shall prima facie be deemed to be true copies of the several records, certificates, documents, or other instruments of which they purport to be transcripts; and such transcripts or copies thereof, when certified by the Mining Recorder of the mining division in whose office they are kept, shall be admissible in evidence in all Courts of Judicature in this Province." 11. The owner of a mineral claim who has had his claim surveyed within When survey one year from the date of the record of the claim, or if the claim was recorded to be counted before the passing of this Act, then if surveyed within one year from the pass- as work done ing of this Act, and has filed in the office of the Mining Recorder in the mining on claim, ■division in which the claim is situated, a declaration by a Provincial Land Surveyor, stating that he has surveyed the claim as required by sub-section (c) •of section 36 of the " Mineral Act," and that he has delivered two plats of the claim and a copy of the original field-notes to the owner of such claim, then the •owner of such claim shall be entitled to have the cost of such survey, not to •exceed one hundred dollars, counted as work done on the claim. 12. The lawful holder of a Cr provisions of this Act shall, in ca On waste lands of the Crown or mining purposes, be entitled to rei a payment Crc a of f e dollars per a wn grant of a mineral claim issued under the purchase by es where such mineral claim has been located Crown grantee in lands not already occupied for other than of mineral nve a Crown grant of all the surface rights of claim of sur- > the Government of British Columbia of the face rights oi e for such land, and of the fee of five dollars for the w '13. When a lode is supposed to cross a valley or under an-alluvial deposit, When lode and where such lode is indicated by its appearance on the side of the mountain crosses valley leading into such valley, any free miner upon making a sworn statement before permit to the Mining Recorder or Gold Commissioner of the district that there is a lode search. %hich has indications of running through and under such alluvial deposit, shall %)e entitled to a permit for three months to search for such lode over the area of a mineral claim, with the privilege of having such permit extended, on his proving to the satisfaction of the Gold Commissioner that he has bona fide searched for such lode and has expended, either in cash or labour, or both, not less than one hundred dollars in such search. During the existence of such MARTIN'S MINING CASES. Agreements tt be evidenced by writing. permit the ground covered by the same shall not be open to record by any o1 miner. The fee for such permit, and each renewal of the same, shall be same as the fee for a record. 14. No free miner shall be entitled to any interest in any mineral cl which has been located and recorded by any other free miner unless such inte is specified and set forth in some writing signed by the party so locating s Onus of proof ^ Tf any person shall in any suit or matter claim an adverse right of an 1 "mant86 *"n'' t0 t^ie minel'al cla'm comprised in any record, or to any part thereof, o ' shall claim that any record is invalid or has been improperly obtained, or tha the holder thereof has not complied with the provisions of the Act under whic the location and record were made, or has not prior to the obtaining of sue record made a good and valid location of such mineral claim according to lavt the onus of proof thereof shall be on the person so claiming an adverse righi or so claiming that such record is invalid and has been improperly obtained a aforesaid, and in default of such proof judgment shall be given for the holder o such prior record in so far as such action, suit or matter relates to any of th matters aforesaid. Repeal uf Acts 16. Notwithstanding the repeal of any Acts relating to mineral claims, or th deemed to have saving clauses of any such repealing Acts, all such i clauses saving deemed to have contained provisions declaring the holde: right of min- claims entitled to apply for Crown grants thereof unde h-dd T" law in force at the time of such aPP'ications> and tnat obtafrTcrown suc^ applications shall be that prescribed by the Statut grants °^ such applications, the grants thereafter vesting in th Iwere declared by the statutes in force at the date of claims: Provided, however, that nothing contained in thii in any way restrict the rights and privileges conferred on owners of nainerlM claims by the preceding section of this Act. Validation cf 17. All Crown grants heretofore issued to the holders of mineral claim Grov/ri grants records shall be deemed to have been validly issued so far as relates to the proce- heretofore dure upon the application to obtain same, if in the application therefor the holder issued. thereof observed either the procedure prescribed by the statutes in force at the time of the record of such mineral claims, or the procedure prescribed by the- Pending 18. Nothing herein contained or enacted shall affect any litigation pending at. ord s of m all be; ineral' of the| re upc at th "timi its asj sh uch m all mat ineral 79,128 to 134, and Forms Q and R(water). Act." (a) The Gold Commiss be governed by the P amending Acts, and a nended by ' C A. 1888, c. 82. Schedule of schedule of fees to the " Min APPENDIX A.—MINING STATUTES. certificate issued to an individual. certificate issued to a joint stock ct inal capital of $100,000.00 or less . . inal capital exceeding $100,000.00. . SCHEDULES. I, , have this day oe known as the Miner by feet in breadth. The dire feet of this elaim lie to the right and Mineral Claim. ;ated this ground as a mineral claim, to Claim, feet in length on of No. 2 post is , and feet to the left of the location Foem B. Record of Mineral Clai No. of Certificat Located by— | e opp< The claim is situate The direction of the location lit The length of the claim is The claim was located on the Recorded this day of Mining Recorder, iply with sec. 18.] MARTIN'S MINING CASES. Hs [8th May, 1897.] Legislative 7 be cited as the "-Placer Mining Act (1891) Amendment When ditch 2. " Joint stock company " shall mean any company for mining purposes: (a) Incorporated under the "Companies Act, 1897," or any Act repealed thereby; or (6) Registered as a foreign company under any Act repealed by the " Companies Act, 1897;" or (c) Licenced or registered as an extra'-Provincial company under the " Companies Act, 1897;" or (d) Incorporated by any special Act. L, 3. The section substituted by sec. 14 of the " Placer Mining Act Amendment Act, 1896," for sec. 124 of the " Placer Mining Act, 1891," is hereby repealed, and the following inserted in lieu of said sec. 124:— " 124. When any placer mining ground is held under lease, and such min- ■ ing ground shall have been efficiently worked, as required by the conditions of the lease, to the satisfaction of the Gold Commissioner, and if at the expiration of the lease a portion of said mining ground remains still to be worked, the lessee may obtain an extension of the lease, upon the same conditions as the original lease, for such reasonable time as will enable him to work out such portion of the said mining ground as still remains unworked, and the Gold Commissioner may, with the sanction of the Lieutenant-Governor in Council, grant such extension by memorandum endorsed in the lease: Provided, that whenever the mining ground so held under lease has been forfeited, abandoned, or worked out, and when the ditch or flume constructed for conveying water has a carrying capacity of not less than five hundred inches of water, and shall have cost not less than five thousand dollars, such ditch or flume shall remain the property of the owner thereof." Re-enactsl891, 4. Sub-section (to) of sec. 151 of the " Placer Mining Act, 1891," is hereby .-repealed, and the following inserted in lieu thereof:— "(m) He may grant leases of placer mining ground, and he may grant renewals of such leases, and exercise all such powers as are specified in Part VII. of this Act." l 5. Any free miner, or two or more free miners, holding adjoining leases as creek claims may consolidate as many as ten leases, by filing with the Mining Recorder a declaratory statement containing the name of the company or partnership which is to hold the consolidated lease, the location and size of each lease; and such statements shall be signed by the holder or holders of the leases to be consolidated. After filing such declaratory statement such free miner or free miners shall be allowed in each and every year to perform, on any one or more of such leases, all the work that is necessary to be performed to hold all such leases. Repeals clauses relating to 6. The following sections and parts of sections are hereby repealed:— (a) Section 134 of the " Placer Mining Act, 1891." (6) Sections 15 and 16 of the " Placer Mining Act Amendment Act, 1896." *"•] APPENDIX A.—MINING STATUTES. 753 (c) Sub-section (e) of sec. 103, sub-sec. (ft) of sec. 151, and sub-sec. (9) piacerAmend of sec. 156, of the "Placer Mining Act, 1891." ment Act, 1897 7. The schedule of fees in the " Placer Mining Act, 1891." is hereby amend- Amends scale ed by striking out "For every free miner's certificate (for each year) $5.00," of fees, free _ and insert the following:— miners cr-*- For every free miner's certificate issued to an individual $ 500 For every free miner's certificate issued to a joint stock company:— (a) Having a nominal capital of $100,000.00 or less .50 00 (b) Having a nominal capital exceeding $100,000.00 100 00 Revised Statutes, B. C, Chap. 134 ( 'or securing the Safety and Good Health of Worknik about the Metalliferous Mines im, the Province of Bi Columbia by the appointment of an Inspector of Metalliferous Mines. Whereas it is expedient to secure t engaged in or about the mines (otherw Therefore, Her Majesty, by and with the ad^ lative Assembly of the Province of British Columbi cited a the " Inspectic 2. The Lieutenant-Governor in Council may appoint an Inspector of Metalliferous Mines, or mines of whatever description other than a mine to which ^ T tor the " Coal Mines Regulation Act" applies, who shall be a man of at least seven (7) years' practical experience in mining, whose duties shall be as hereinafter specified, and who shall receive such salary and allowances as shall be determined by the Lieutenant-Governor in Council; and before entering upon the discharge of his duties he shall take and subscribe to an oath that he will discharge such duties faithfully. 1897, ch. 27, sec. 2: 3. The Inspector of Mines shall not act as manager 0: for any mining or other corporation during the term of his office, but shall | ■give his whole time and attention to the duties of the office to which he has for persons been appointed; he shall not make a report on any mine or mining property ci for any person or persons interested in such mine or mining property, with intent to promote or aid in the sale or other conveyance thereof; and this ■officer violating this provision shall,' upon summary conviction thereof, forfeit Penalty, and pay a fine of not less than one hundred dollars nor more than one thousand dollars. 1897, ch. 27, sec. 3. 4. The Minister of Mines shall, on receipt of reliable information relating Minister may to the health and safety of the workmen employed in any metalliferous mine in order inspec- the Province of British Columbia, or whenever he deems such inspection ne- tion. ■cessary, instruct the Inspector to examine and report to him the condition of such mine. The mine-owner, agent, manager, or lessee shall have the right to appeal to the Minister of Mines on any difference that may arise between s parties and the Inspector. On receipt of notice of any serious accident i mine, the Minister of Mines shall instruct the Inspector to inquire into the ■of such accident. 1897, ch. 27, sec. 4. MARTIN'S MINING CASES. [VOL. 5. The Minister of Mines shall instruct the Inspector to examine and report to him the condition of the hoisting machinery, engines, boilers, whims, cages,, cars, buckets, ropes, and cables in use in all the metalliferous mines in opera- 37 tion in the Province of British Columbia, the appliances used for the extinguishing of fires, the manner and method of working and timbering the shafts, drifts, inclines, stopes, winzes, tunnels, and upraises through which persons pass while engaged in their daily labours, all exits from the mine, and how the mine is ventilated, together with the sanitary conditions of the same, and also how and where all explosives and inflammable oils and supplies are stored, also the of signals used in the mines. The Inspector shall not give notice to ' owner, agent, or lessee of the time when such inspection shall be made. ffl ch. 27, sec. 5. 6. Every owner, agent, manager, or lessee of any metalliferous mine in this- ad- Province shall admit the Inspector to such mine on the exhibition of his certificate of appointment for the purpose of making the examination and inspection provided for in this Act, whenever the mine is in active operation, but said Inspector shall not unnecessarily obstruct the working of said mine. If the owner, agent, manager, or lessee refuse to admit the Inspector to- such mine, or to render him necessary assistance for inspection, such owner,, agent, manager, or lessee shall be guilty of an offence against this Act, and shall.be liable upon summary conviction to a fine of not less than ten nor more than five hundred dollars for each and every such refusal or neglect. 1897, ch. 27, sec. 6. Inspector to 7. If the Inspector shall reveal any information in regard to ore bodies, keep secret in- chutes, or bodies of ore, or location, course, or character of underground- formation ob- workings, or give any information or opinion respecting any mine, obtained by tamed.in in- hjm jn making such inspection, upon summary conviction thereof the said Inspector shall be removed from office and fined in a sum not less than one- hundred dollars nor more than one thousand dollars. 1897, ch. 27, sec. 7. 8. The Inspector shall exercise a s the subjects of this Act, and in the en under; and if he shall find any matter, any metalliferous mines to be dangerov threaten or tend to the bodily injury notice in writing thereof to the owner ' j, part tl discretion in the advancement of ment of the regulations made here- tg, or practice in or connected with defective, so as to, in his opinion, ly person, the Inspector shall give- stating in such notice the particulars r de- e to be dangerot 1897, ch. 27, sec. iwne'r, agent, manager, or lessee, after written notice being : conform to or disregards any lawful order of the Inspector disobeys any regulation made hereunder, any Court of corn- may, on application or information of the Minister 3tion, enjoin or restrain, with costs, the owner, agent, man-, working the same until it is made to conform to the proof this Act; and such remedy shall be cumulative, and shall not affect any other proceedings against such owner, 'agent, manager, or lessee authorized by law for the matter complained of in such action 1897, ch. 27, sec. 9. duly given, does no made hereunder, or petent jurisdiction of Mines by civil s ager, or lessee froi 10. Any owner, agent, manager, o metalliferous mine, whenever loss of 1: nection with the working of such m report all facts thereof to the Ministe: Inspector shall investigate and ascert e or serious accident shall occur in con- le, shall give notice immediately, and of Mines or the Inspector, and the said in the cause and make a report, which e reference. 1897,. 11.- The Lieutenant-Governor in Counc om office the Inspector for int of the privileges of his office. .1897, ch. S MARTIN'S MINING CASES. [vol. Inspection of (%) Loss of life or any serious personal injury to any person employed in Metalliferous or about the mine occurs by reason of any accident whatever, the owner, agent, Mines Act, manager, or lessee of the mine shall, within twenty-four hours next after the R.S B.C., 1897 explosion or accident, send notice in writing of the explosion or accident, and of the loss of life or personal injury occasioned thereby, to the Inspector, and shall specify in such notice the character of the explosion or accident, and the number and names of persons killed and injured respectively. Notice of sub- When any personal injury, of which notice is required to be sent under sequent death. tn}s secti0n, results in the death of the person injured, notice in writing of the death shall be sent to the Inspector within twenty-four hours after such death comes to the knowledge of the owner or agent. 1897, ch. 27, sec. 19. Notice in case 20. Where any working is commenced for the opening of a new mine, or of new opening the working of a mine is abandoned, the owner, agent, manager, or lessee of or abandon- such mine shall, within two months after such commencement or abandonment, ment. gjve notice thereof to the Inspector, provided that this section shall only apply to any working or mine in which more than twelve persons are ordinarily employed below ground. 1897, ch. 27; sec. 20. Fencing of ' 21. Where any mine to which this Act applies is abandoned, or the work- abandoned jng thereof discontinued, at whatever time such abandonment or discontinuance , mine. occurred, the owner thereof, and every other person interested in the minerals of such mine, shall cause the top of the shaft, if there be such, to be and to be kept securely fenced for the prevention of accidents. 1897, ch. 27, sec. 21. Plans of aban- 22. Where any mine to which this Act applies, in which more than twelve doned mines persons have ordinarily been employed below ground, is abandoned, the owner to be sent to 0f sucn mine at the time of the abandonment shall, within three months after Jylinister. such abandonment, send to the Minister of Mines an accurate plan, on a scale of not less than thirty feet to the inch, or on such other scale as the plan last used in the mine is constructed on, shewing the boundaries of the workings of such mine up to the time of the abandonment, with the view of its being preserved under the care of the Minister of Mines, but no person except the Inspector or the Provincial Mineralogist shall be entitled, without the consent of the owner of the mine, to see such plan when so sent until after the lapse of ten years from the time of abandonment: Provided that this section shall not ■apply to any mine opened up by means of tunnels or adit-levels, below which extend no workings in which water may accumulate. 1897, ch. 27, see. 22. Plar of Mines 2s 23. The owner, agent, manager, or lessee of every mine to which this Act applies shall keep in the office of the mine, or in the principal office of JA\e ated, an accurate plan of the workings of such mine, shewing the workings up to at least six months previously, other than workings which were last discontinued at a date more than twelve months before the commencement of this Act. :> (1) The owner, agent, manager, or lessee of the mine shall produce to the Inspector under this Act, at one of the aforesaid offices, such plan, and shall, if requested by the Inspector, mark on such plan the progress of the workings of the mine up to the time of such production, and shall allow the Inspector to the s &e-) (£) If the owner, agent, ma ault, plan as is prescribed by this s to be examined such plan, or j linst conceals any part of the workii accurate plan, unless he shews perfection, or inaccuracy, he she u by further, the Inspector may, by offence has or has not been in of an; i fails t keep such -^MINING STATUTES. se fail, within twenty days, or su< ssary, after the requisition of tl ich plan, he shall be guilty of a the Legislativ (1) The A InisteTo/itl which acciden and in such c t has causec ase shall cau is he thinks 1 report of his proceedings during ^nnut , which report shall be laid before by Ina :ime direct an Inspector to make a Specia 1 a mine to which this Act applies, ious personal injury to any person, mblic at such time and in arking and passing therein. ;, but shall be stored i ces, fuse and detonating caps :ine, blacksmith shop and shaft j.jr ose-connection injector or feed j.j01 and the line of hose shall be R.S. B.C., 1897 Code signals.. (8) Each min. 1 Bell. 1 Bell. 1 1 Bell. 1 1 1-1 Bell. 1 1 1-1 1 Bell. Other signals to me in full shall be plaii shaft, and at each st i using a code of signals shall i To hoist (when the bucket, : To stop (when the bucket, s To lower; f'topiofl-taurj (9) The bell rope or ot! signals can be sounded clea ing or level. s, ropes and other wor st in every week shall e s ascend or descend and the guides, APPENDIX A.—MINING STATUTES >e closely covered, with the exception of an Inspection of i passage of a man, and shall be so arranged Metalliferous fall from one ladder through the opening Mines Act, R.S.B.C.,1897 (19) As soon as i om a shaft, or int uipped with ladders Exits. leticable each mine to which this Act applies shall Tithe said mine, and levels or drifts driven each way r stope shall be connected by upraises or winzes ivide exits, or means of escape in case of accident. 10) Each shaft, incline, stope, tunnel, level c e mine to which this Act applies, shall be, :red or protected to prevent injury to any ] ft, and any working plat 1 from falling material.' steam boiler shall be provided with a shew respectively the pressure of s with a proper safety valve. Observance of Direction: person shall observe such directioi IS) E- be given to hir Every person •ules of this s vho c mply is with respect to working Observance of th the sections of this Act. directions, at comply with any of the wthat conlti- ' offence against this Act; £j££$£» 1 be guilty of ?■ contravention of or non-compliance with any of the 1 general rules in the case of any mine to which this Act applies, by any son whomsoever, the owner, agent and manager shall each be.guilty of an nee against this Act unless he proves that he had taken all reasonable ins, by publishing, and to the best of his power enforcing, the said rules as " ing of the mine, to prevent such contravention or non- 1897, 3ut.-&ov :nor in Council may from time to time make such Rules may bi in "addition to those herein laid down, and not in- made by y be deemed advisable for the protection of the Liei rules or regulations may impose fines or penalties ei t exceeding those imposed in and by this Act; and is shall have the force of law after tbey have been in the British Columbia Gazette. 1897, ch. 27, t of the pro- owners, I MARTIN'S MINING CASES. [vt t Act, shall be deemed guilty of an. offence agai R.S.B.C., 1897 28. E- where pecui ary penalty will not mei ■y person employed in or about a mine other than an owner, agent, lessee, who is guilty of any act or omission which in the case of an owner, agent, manager or lessee would be an offence against this Act, shall be deemed guilty of an offence against this Act. 1897, ch. 27, sec. 28. 29. Every person who is guilty of any offence against this Act shall be liable •to a penalty not exceeding, if he is an owner, agent, manager or lessee, one hundred dollars, and if he is any other person, ten dollars, for each offence; and if the Inspector has given written notice of any such offence, then in case of an owner, agent, manager or lessee, to a further penalty not exceeding one hundred dollars and not less than ten dollars for every day after such notice that such offence continues to be committed, and in cases of other persons, to a further penalty not exceeding five dollars for every day after such notice that such offence continues to be committed. 1897, ch. 27, sec. 29. 30. Where a person who is owner, agent, manager or lessee of or a person employed in or about a mine is guilty of any offence against this Act which in the opinion of the Court that tries the case is one which was reasonably calculated to endanger the safety of the persons employed in or about the mine, or to cause serious personal injury to any of such persons, or to cause a dangerous accident, and was committed wilfully by the personal act, personal default, or personal negligence of the person accused, such person shall be liable, if the Court is of opinion that a pecuniary penalty will not meet the circumstances of the case, to imprisonment, with or without hard labour, for a period not exceeding three months. 1897, ch. 27, sec. 30. Appeal. 31. If any person feel aggrieved by any conviction made by a Court of Summary Jurisdiction on determining any information under this Act the person so aggrieved may appeal therefrom. 1897, ch. 27, sec. 31. Penalty may 32. All offences under this Act, and all penalties under this Act, .and all be recovered moneys and costs by this Act directed to be recovered as penalties, may be summarily. prosecuted and recovered in a summary manner before a Justice of the Peace. 1897, ch. 27, sec. 32. 33. The following provisions shall have effect:— Limit of time (1) Any complaint or information made or laid in pursuance of this Act for complaint, shall be made or laid within six months from the time when the matter of such complaint or information respectively arose; (t) The .description of any offence under this Act in the words of this I Act shall be sufficient in law; Defendant (8) Any exception, exemption, (proviso, excuse, or qualification, whether may prove ex- it does or not accompany the description of the offence in this Act, may be emption, &c. proved by the defendant, but need not be specified or negatived in the informa- I tion, and if so specified or negatived, no proof, in relation to the matters so specified or negatived shall be required on the part of the informant; Owner may ^ The owner> agent, manager, or lessee may, if he think fit, be sworn and give evidence examined as an ordinary witness in the case where he is charged in respect of any contravention or non-compliance by another person : (5) The Court shall, if required by either party, cause minutes of the evidence to be taken and preserved; (6) Any two Justices of the Peace holding a Court of Summary Jurisdiction nen'altv Justice sila11 not imPose a Penalty under this Act exceeding two hundred and fifty of the Peace 'dollars» but any sucl1 Court may impose that or any less penalty for any one may impose, offence, notwithstanding the offence involves a penalty of higher amount. 1897, I] APPENDIX A.—MINING STATUTES. 34. No prosecution shall be instituted against the owner, agent, manager or inspecti lessee of a mine to which this Act applies for any offence under this Act which Metallu can be prosecuted before a Court of Summary Jurisdiction, except by an Inspec- Mines tor, or with the consent in writing of the Minister of Mines; and in the case R.S.B.C of any offence of which the owner, agent, manager, or lessee of a mine is not p — alleged to be personally the perpetrator, if he proves that he had taken all rea- ^mst'' sonable means to prevent the commission thereof, an Inspector shall not insti- owners tute any prosecution against such owner, agent, manager, or lessee, if satisfied that he had taken such reasonable means as aforesaid. 1897, ch. 27, sec. 34. 35. Nothing in this Act shall prevent any person from being indicted or Indictmt liable under any other Act or otherwise to any other or higher penalty or pun- under ot ishment than is provided for any offence by this Act, so that no person be pun- Acts. ished twice for the same offence. And if the Court before whom a person is charged with an offence, under this Act, think that proceedings ought to be taken against such person for such offence under any other Act, or otherwise, the Court may adjourn the case to enable such proceedings to be taken. 1897, ch. 27, sec. 35. 36. A person who is the owner, agent, manager, or lessee of any mine to Prohibit which this Act applies, or the father, son or brother of such owner, agent or tain rela manager, shall not act as a Court or member of a Court of Summary Jurisdic- fr"™ act tion in respect of any offence under this Act. 1897, ch. 27, sec. 36. a Court. 37. Where a penalty is imposed under this Act for neglecting to send a To whor. notice of any explosion or accident or for any offence against this Act which penalties has occasioned loss of life or personal injury, the Minister of Mines may (if Pald- he think fit), direct such penalty to be paid to or distributed among the per- avided that— (1) Such person s did not i n his opin ion, occask or accident and did not commit omitting the offe (%) The fact of such paym ent or dis ribution sh any legal proceeding relative to plosion, accident, or offence. ve as aforesaid, i 11 penalties imposed i n pursuatic o the Provincial 1897, ch 27, sec. 3 msequential on such lis Act shall be paid Rev. Stat. B. C. Chap. 135 (1897). Act relating to Gold and other Minerals excepting Coal. 1. This Act may be cited as the " Miners t." 1896, c. 34, s. 1. MARTIN'S MINING CASES. " Building " Rock in "Valuable deposits of mineral." ■" Real esta " Mineral " shall mean all valuable deposits of gold, silver, or any of the platinum groups of metals, mercury, lead zinc, nickel, aluminum, antimony, arsenic, barium, bromine, cadmium, chromium, cobalt, iodine, magne molybdenum, phosphorus, plumbago, potassium, sodiui phur (or any combination of the aforementioned elei selves or with any other elements), asbestos, emery, i pigments; poses, shall i Act: : be c " Rock in place " shall be deemed to mean and include mineral, not necessarily in a vein or lode, that is, when discovered in the same place or position in which it was originally formed or deposited, as distinguished from loose fragmentary or broken rock or float which, by decomposition or erosion of the rocks, is found in wash, loose earth, gravel or sand; " Valuable deposits of mineral" shall be deemed to mean and include mineral " in place " in appreciable quantity, having a present or prospective value sufficient to justify exploration ; " Vein," or " lode." Whenever either of these terms is used in this Act, " rock in place " shall be deemed to be included; " Mineral claim " shall mean the personal right of property or interest in " Min shall i lg properl. er right used for m i mine or used in the 1 claim, i all othe thin nill s arking thereot; " Legal post" shall mean a stake standing not less than four feet ab the ground, and squared or faced on four sides for at least one foot f: the top, and each side so squared or faced shall measure at least f inches on its face so far as squared or faced, and any stump or 1 cut off and squared.or faced to the above height and size: Provided w the survey is made the centre of the tree or stump where it enters ground shall be taken as the point to or from which measurement s! be made; "Lot "Mi ' shall be the straight line betwee post; shall mean a plot of ground located, the purpose of erecting thereon any machiner porting, crushing, reducing, or sampling or< of power for working mines; Free miner" shall mean a person or joint stock c company, named in and lawfully possessed of a valid certificate, and no other; Record," " register," and " reg and shall mean an entry in so Full interest " shall mean any several shares into which a mi Cause " shall include any suit defined by this Act, for ■ other works for trans- ^ ir for the transmission!! " Judgment " shall include "Real estate" shall mean any any Act relating to gold mint " Joint stock company " shall m< (a) Incorporated under the pealed thereby; or itration," shall have e official book kept f jral claim shall be eq r action; " or " decree:" Ineral land in fee s PPBNDIX A.—MINING STATUTES. son over, but not under, ei ghteen years of age, and every joint shall be entitled t a all the •ights.and privileges of a free miner, isidered a free mil taking out a free miner's certificate. hall become a fret hall, as regards his mining property ontracted in com erewith, be treated as of full age. certificate issued t stock companv shall be issued in its A free miner's t ertificate shall not be transferable. 1896, ch. ner's certificate m ay be gra nted to a free, miner for one or more 30th day of June, after the issue of ment therefor of the fees set out in.th 4, and 1897, ch. 2, sec. 161. 5, A free mirer's certificate shall be i Valid for day the sun 18 ler for 1896, ch 34, sec 5. tificate at the Mining Recorder's office during his absence, and shall leave the Recorder fee required by this Act with the officer or other person in charge of the said office in 1 office, he or it shall be entitled to have such certificate from the date of such absence, application; and any free miner shall at any time be entitled to obtain a free free miner's certificate, provided that when he applies for such certificate he .shall produce to the Mining Recorder, or in case of his absence shall leave 'with the officer or other person in charge of the Mining Recorder's office, such existing certificate. 1896, ch. 34, sec. 6. 764 MARTIN'S MINING Mineral. Act, Act, have a true copy of it, signed R.S.B.C.,c.l35 by whom or out of whose office the t be marked " substituted certificate," shewn in respect thereof, every orig shall be evidence of all matters there 8. Every person and joint stock comps s_ (other than coal) shall take out a free i or joint stock company who mines or wor] mine held as real estate, or tunnel, or on having taken out and obtained such certifi besides costs: Provided always, that nothin right to collect wages or payment for wor not being a free miner, has rendered himse ch. 34, sec. 8'. j 9. Subject to the proviso hereinafter s . pany shall be recognized as having any ri claim, or any minerals therein, or in or drain, tunnel, or flume, unless he or it s unexpired. And on the expiration of a free shall absolutely forfeit all his rights and i and all and any minerals therein, and in or ditch, drain, tunnel, or flume, which may 1 . such expired free miner's certificate, unit the day following the expiration of such c Certificate : Provided, nevertheless, should free miner's certificate, such failure shall abandonment of the claim, but the interes keep up his free miner's certificate shall, ip co-owners pro rata, according to their form that a shareholder in a joint stock company not a free miner, shall be entitled to buy, therein: And provided, also, that this sect for which a Crown grant has been issued: or compalny shall acquire, by purchase or o or interest therein, and it shall appear th whom he or it claims title has neglected tt certificate, according to the provisions of t from the time when he or it shall first acqui already acquired within one month after Recorder of the Mining Division in which or fees which ought to have been paid by foresaid, and thereupon the title of sucl 189 6, ch. 34, aged drait "ai d foi all, ding* twe on Provided interest of a co- owner failing to keep up hii aeedn ;havt such licence. Not to apply grant issued. In case of purchase of claim where default said i this last proviso shall not affect liti 1896, ch. 34, sec. 9. s and 10. Every owner of a mine or m performance of any work upon a m: fee for a free miner's licence for a for the fee, and may deduct the amoi the amount of salary or wages due o: upon production and delivery of the ■ r shall furnis Ploy, ted by him >r indirectl: , fro aefore DIX A.—MINING STATUTES. to pay the said licence" fee for his employees, or to ; Collector the list mentioned in the preceding section I • knowingly states anything falsely in such list, such penalty not exceeding one hundred dollars, to be re- I : amount of the unpaid licence fees, upon summary ice of the Peace. 1896, ch. 34, sec. 11. 3 of his certificate, but "V" not longer, have the rignt to enter, locate, prospect, and mine upon any waste m lands of the Crown for all minerals other than coal, and upon all lands the m right whereon to so enter upon, prospect, and mine all minerals other than SJ coal shall have been, or hereafter shall be, reserved to the Crown and its licencees, and also to enter, locate, prospect, and mine for gold and silver upon any lands the right whereon to so enter and mine such gold and silver shall have been, or shall be, reserved to the Crown and its licencees. Excepting out of all the above description of lands any land occupied by any building, 0 and any land falling within the curtilage of any dwelling house, and any orchard, and any land for the time being actually under cultivation, and any land lawfully occupied for mining purposes other than placer mining, and also Indian reservations and military or naval reservations: Provided that where any hydraulic mining works, established in accordance with the " Placer Mining Act" have been in operation, the land which may have been uncovered by the operation of such works shall not be located or mined upon by any free miner other than the person or persons carrying on such hydraulic works for a -p space of six months next after the same shall have been so uncovered: Pro- w vided that in the event of such entry being made upon lands already lawfully occupied for other than mining purposes, and not being a portion of lands granted to and held by or for a railway company under any railway subsidy Act heretofore or to be hereafter passed, such free miner shall give adequate security to the satisfaction of the Gold Commissioner or Mining Recorder for any loss or damages which may be caused by such entry if requested by the owner or owners of such land, and should he refuse to give such security when so requested his right to such claim or mine shall cease and determine : Pro- p vided that after such entry he shall make full compensation to the occupant or 0( owner of such lands for any loss or damages which may be caused by reason of such entry; such compensation, in case of dispute, to be determined by the Court having jurisdiction in mining disputes, with or without a jury. 1897, tally prospecting o Recc , Wi and Cro 15. Any free miner desiring to locate a mineral claim, shall, subject to the Size and form provisions of this Act, with respect to land which may be used for mining, of free miner's enter upon the same and locate a plot of ground measuring, where possible claim, but not exceeding, fifteen hundred feet in length by fifteen hundred feet in Ihreadth, in as nearly as possible a rectangular form, that is to say: All angles shall be right angles, except in cases where a boundary line of a previously surveyed claim is adopted as common to both claims, but the lines need not necessarily be meridional. In defining the size of a mineral claim, it shall be measured horizontally, irrespective of inequalities of the surface of the ground. 1896, ch. 34, sec. 15. 766 Mi! lRTIN'S mining ca SES [VOL Mineral Act, R.S.B.C.,c.l35 Mode of staking a claim. 16. A mineral claim shall be marked by two 1 possible on the line of the ledge or vein, and the p 2, and the distance between posts 1 and 2 shall no the line between posts Nos. 1 and 2 to be known a posts Nos. 1 and 2 shall be -frritten the name giv name of the locator, and the date of the location. >e written, in addition to the foregoing, " Initial pass bearing of No. 2 post, and a statement of the and to the left of the line from >>o. 1 to No. 2 post, eet on the left of the line from No. 1 to No. 2 ssss be numbered 1 ant fifteen hundred feet Upon N Post," th Initial post. Direc All the particulars required to be put on No. 1 and IS furnished by the locator to the Mining Recorder, in writi claim is recorded, and shall form a part of the record of su ro. 2 posts shall be ag, at the time the When a claim has been located, the holder shall imi ocality, by blazing trees and cutting underbrush, and in a s neither timber nor underbrush he shall set legal posts jf earth or rock not less than two feet high and two feet i o that such line can be distinctly seen. nediately mark the seen; in a timbered The locator shall also place a legal post at the point rock in place, on which shall be written discovery post: Pro claim is surveyed the surveyor shall be guided by the recor sketch plan on the back of the declaration made by the ow was recorded, posts 1 and 2, and the notice on No. 1, the vhere he has found vided that when the Is of the claim, the oer when the claim Examples oe various modes of laying out Claims Loci TED AS FULL SIZED 1. 2. 3. ! No.'2 Post, No. 2 Post. No. 2 Post ps? I o , | | 1 os.o joinery Ol scovery os ., ' ■ 750' ' 760' 250- 1250- 1 40O No,l Post. No. 1 Post. ~NoTC "Polt~ It shall not be lawful to move No. 1 post, but No . 2 post may t n No. 1 1 y tne jfrovmciai uanu surveyor osts exceeds 1,500 feet in order aost on the Jine of location. Wh ess than 1,500 feet, the Provinci he claim beyond No. 2. to place No. 2 post npo Ofartfao a Land Surveyor has authority to extend has been found in place on the cli 2 ground applied for is unoccupied b tim, and is not occupied by any t having s r locat No mineral claim which at the date of its record is known by the locator to be less than a full sized mineral claim, shall be recorded without the word "fraction" being added to the name of the claim, and the application being accompanied by an affidavit or solemn declaration in the Form T., made by the applicant or some person on his behalf cognizant of the facts: That the legal posts and notices have been put up; that mineral has been found in place on the fractional claim proposed to be recorded; that the ground applied for is unoccupied by any other person as a mineral claim, and is not occupied by any building, or any land falling within the curtilage of any dwelling-house, or any orchard, or any land under cultivation, or any Indian Reservation. In the said declaration shall be set out the name of the applicant, tht #date of his free miner's certificate, and the name of the pi said certificate was issued, and the date of the location The words written on the No. 1 and No. 2 posts shall be s and as accurate a description as possible of the position given. A description of the land bounding the fractional sides shall state whether it is vacant Crown land or lant mineral claims, with the names of the claims. A sketch drawn by the applicant on the back of declaration, shewing as near as may be the position of the adjoining mineral claims, and the shape and size, expressed in feet, of the fraction desired to be recorded; umber and where the of the claim. out in full, ol the claim d o Pi in shall be ; locat • of a 1 clain comply with the provisions the formalities hereinbefore to mislead other persons des f this Act, and that tht eferred to is not of a < ■ing to locate claims in 1896, . cases where, from the nature or shape of the ground, it i ark the location line of the claim, as provided by this A may be marked by placing legal posts as nearly as possible to the P ae, and rioting the distance and direction such posts may be from a distance and direction shall be set out in the record of the . 34, . 18. 19. Every free miner locating a mineral claim shall record the same with Record oi the Mining Recorder of the district within which the same is situate, within ciaim. fifteen days after the location thereof, if located within ten miles of the office of the said Mining Recorder. One additional day shall be allowed for such record for every additional ten miles, or fraction thereof. Such record shall be- made in a book to be kept for the purpose in the office of the said Mining Recorder, in which shall be inserted the name of the claim, the name of each 768 MARTINS MINING CASES. [vol. Mineral Act, locator, the number of each locator's free miner's certificate, the locality of the R.S.B.C.,c.l35 mine, the direction of the location line, the length in feet, the date of location, and the date of the record. Such record shall be, as near as may be possible, in the Form B. in the Schedule to this Act, and a certified copy thereof shall be given by the Mining Recorder to the free miner or his agent. A claim which 6hall not have been recorded within the prescribed period shall be deemed to have been abandoned. 1896, ch. 34, sec. 19. When a free 20. A free miner shall not be entitled to , he shall have furnished the said Mining Reco: :d- 1896, ch. 34, sec. 20. g Record- 21. Upon the establishment of a mining division and the opening of a Min- iice. jng Recorder's office therein, under the authority of this Act, such office and none other shall be the proper office for recording all mineral claims within ach% mining division, and making all records in respect thereof. 1896, ch. 34, s :. 21. 22. If through ignorance any free miner shall record a mineral claim in a ' different mining division to that in which such claim is situate, such error shall not affect his title to such claim, but he shall, within fifteen days from the discovery of his error, record such claim in the mining division in which it is situate, and such new record shall bear the date of the first record, and a note shall be made thereon of the error and of the date of the rectification of the same. 1896, ch. 34, sec. 22. 23. If ch. 34, s iree miner applies at the Mining Recorder's office during his ab- rd a mineral claim, or any document or other matter required by be recorded, and leaves the fee required by this Act, and the nd information required to enable the Mining Recorder to make with the officer or.other person in charge of said office, he shall > have such record dated on the date of such application. 1896, of holder. 4. Any free miner having duly located and recorded a mineral claim shall cord and duty be entitled to hold the same for the period of one year from the recording of the same, and thence from year to year without the necessity of re-recording: Provided, however, that during each year, and each succeeding year, such free miner shall do, or cause to be done, work on the claim itself to the value of one hundred dollars, and shall satisfy the Gold Commissioner or Mining Recorder that such work has been done, by an affidavit of the free miner or his agent, setting out a detailed statement of such work, and shall obtain from such Gold Commissioner or Mining Recorder, and shall record, a certificate of such work having been done: Provided, also, that all work done outside of a mineral claim with intent to work the same shall, if such work have direct relation and be in direct proximity to the claim, be deemed, if to the satisfaction of the Gold Commissioner or Mining Recorder, for the purposes of this : section, to be work done on the claim: Provided, further, that any free miner, or company of free miners holding adjoining mineral claims, or any two or more free miners who locate and record adjoining mineral claims, not exceeding eight in number, to be worked by them in partnership under the provisions of any Act for the time being in force, shall, subject to filing a notice of their intention with the Gold Commissioner or Mining Recorder, be allowed to perform on any one or more of such claims all the work required to entitle him or therii to a certificate for work for each claim so held by him or them. If such work shall not be done, or if such certificate shall not be so obtained and recorded in each and every year, the claim shall be deemed vacant and abandoned, any rule of law or equity to the contrary notwithstanding. 1897, ch. 28, 25. The holder of a n !. done by sec. 24 of this Act in whose office the clain ral claim may, ii l a claim in each i recorded the s lieu of the work required to be 7ear, pay to the Mining Recorder tm of one hundred dollars and lerein, including all ing, and the lawful i of his record, be the same surface rights and no others, and all remaining surface I be deemed to be vested in the Crown, and may be granted and dis- : is provided by the Land Laws for the time being in force, but sub- s to the rights of free miners as aforesaid. 1897, ch. 28, sec. 6. 2ase of any dispute as to the location of a mineral claim the title to priority of hall be recognized according to the priority of such location, subject location in stion as to the validity of the record itself, and subject, further, to cases of dispute, iner having complied with all the terms and conditions of this Act. fraud. 1896, ch. 34, ■ecord of the last c ; assumed that up suit by the Attorn :laim no irregularity Irregularities •tificate of work shall previous to last :o that date the title certificates of y-General based upon t't'e- 7 hold by location a -ne claim to be held by free ny mineral claim bj ) the Mining Record terest of such free e except by purchase, but such free i separate vein or lode. 1896, ch. 34, sec. 29. 30. A free miner may at any time aband notice in writing of such intention to abandt from the date of the record of such notice a such claim shall cease. 1897, ch. 28, sec. 7. 61. When a free miner abandons a mineral claim he shall have' the right to Machinery o take from the same any machinery and any personal property which he may abandoned have placed on the claim, and any ore which he may have extracted therefrom, claim, within such time as shall be fixed by the Gold Commissioner or Mining Recorder. 1896, ch. 34, sec. 31. 32. No free miner shall be entitled to relocate any mineral claim, or any -Re-location c portion thereof which he shall have failed to record within the prescribed abandoned period, or which he shall have abandoned or forfeited, unless he shall have claim. obtained the written permission of the Gold Commissioner to make such relocation ; and he shall hold no interest in any portion of such mineral claim, by location without such permission. 1896, ch. 34, sec. 32. 33. Where a tunn ;1 is run for the de of such tunnel shall, n addition to any the right to all veins o r lodes discovered ii duly recorded within fifteen days after that such veins or lo des are not include money or labour exj shall be deemed to hav relopmi it of a MARTIN'S MININ 34. The interest of a free miner in his mineral 5 held as real estate, be deemed to be a chattel intei one year, and thence from year to year, subject t vance of all the terms and conditions of this Act. SSK-Sm. 35. Any lawful holder of a mineral claim shall be entitl thereof on payment to the Government of British Columbi hundred dollars in lieu of expenditure on the claim. The shall comply with all the provisions of sec 36 of this Act, respect solely to the work required to be done on claims. '. Certificate of 36. Whenever the lawful holder of a mineral claim shal the following requirements, to the satisfaction of the Gol shall be entitled to receive from the Gold Commissioner a ce ments in respect of such claim, unless proceedings by the adverse right under sec. 37 of this Act have been taken:— Work to be done, etc., before certificate ments granted (a) Done, or cause to be done work on the claim itself i on the claim by a predecessor- or predecessors in ti to have been done by the applicant who receives a tra Pound a vein. (6) Found a vein or lode within the limits of such clair (c) Had a claim surveyed by an authorized Provincial I 1 Land Surveyor, who- shall have made three plats of the claim, and who shall have accurately defined and marked the boundaries of such claim upon the ground, and indicated the corners by placing monuments or legal posts at the angles thereof, and upon such monuments or posts shall be inscribed by him the name and the official designation of the claim, and the corner represented thereby, and who shall have, on completion of survey, forwarded at once the original field-notes and plan direct to the Lands and Works Department. After a certificate of improvements has issued in respect of any claim so surveyed, primd facie evidence of its location upon the ground may be given by any person who has seen and can describe the- position of such posts purporting to be so marked as aforesaid, and the said field-notes, or a copy thereof certified in accordance with the " Evidence Act," shall be received in all Courts as primd facie evidence of the facts which they purport to set forth; (d) Shall have posted on some conspicuous part of the land embraced in the survey a copy of the plat of the claim, and a legible notice in writing,, in Form F of the Schedule to this Act, of his intention to apply for a (5) The date of the notice; (e) Inserted a copy of such notice in the British Columbia Gazette and in a newspaper published and circulating in the division in which the claim is situated or, in the absence of such local paper, in the one nearest thereto, for at least 60 days prior to such application, which insertion- can be made at any time after the posting of the notice on the claim. 772 MARTIN'S MINING CASES. Mineral Act, 41. If the holder of a mineral claim, after applying for a certificate of im- R.S.B.C.,c.l35 provements, shall sell and transfer such claim to another free miner, upon satisfactory proof of such sale and transfer being made to the Gold Commis- Transfer of sioner, the new holder of the claim shall be entitled to a certificate of improve- apohcation for ments in nis own uame. And if a sale and transfer shall be made to any person certificate or comPany after a certificate of improvements shall have been issued, upon proper proof of such sale and transfer being made to the satisfaction of the Chief Commissioner of Lands and Works, the Crown grant shall issue to the new holder of the claim. 1896, ch. 34, sec. 41. Not to tr. until Cro What passe by Crown grant on \va sr 42. When a holder of a mineral claim has taken ( ;e provements he shall not record any transfer of his right he obtains his Crown grant. 1896, ch. 34, see. 42. 43. The ive attached to any i -ant. 1896, ch. 34, set 43. 44. A Crown grant of a mineral claim located on any waste lands of the Crown shall be deemed to transfer and pass the right to all minerals within the meaning of this Act (excepting coal) found in veins, lodes, or rock in place; and whether such minerals are found separately or in combination with each other, in, upon, or under the land in the said Crown grant mentioned. 1896/ ch. 34. sec. 44. What passes 45. Crown grants of by Crown right whereon to enter. ] mmeralsts'ave been reserved to the Cl coall haveI been minerals within the mea lodes, or rock in ph tineral claims located on lawfully occupied lands the •ospect, and mine all minerals (other than coal) has wn and its licencees, shall pass to the grantee all ing of this Act (other than Coal) found in veins or nd whether such minerals are found separately or in combination with each other, which may be in, upon, or under the land i said Crown grant mentioned, and including all the rights given to mineral claim holders of mineral claims so located, but such Crown grant shall expressly reserve the rights of such prior occupant. (Where the mineral claim is located on land lawfully occupied under a timber, lease, the Crown grant shall convey the surface and minerals within the meaning of this Act (save coal) found in veins or lodes, or rock in place, but shall reserve the timber.) 1896, ch. 34, sec. 45. Wha passes 46. Crown grants of min °™^L„ right whereon to enter and n and its li sral claims located on lawfully occupied lands, the ine gold and silver has been reserved to the Crown jfold and silver anQ lts llcencees> shall pass to the grantee all the gold and silver found in vein?? has been re- ot lodes, or rock in place, which may be in, upon, or under the land in the said' served. Crown grant mentioned, and including all the rights given to mineral claim- holders of mineral claims so located; but such Crown grant shall expressly reserve the rights of such prior occupant. 1896, ch. 34, sec. 46. Adve e cla portion of n 47. If an adverse claim shall only' affect a portion of the ground for which ' a certificate of improvements is applied, the applicant may relinquish the portion covered by the adverse claim, and still be entitled to a certificate of improvements for the undisputed remainder of his claim, upon complying with the requirements of this Act. 1896, ch. 34, sec. 47. 48. When judgment in such case is rendered by the Court, a memorandum of such judgment shall be entered in the " Record Book;" and if by any judgment the original boundaries of any claim shall be changed, a plat made by a Provincial Land Surveyor, and signed by the Judge by whom the judgment has been, given, shall be filed in the office of the Mining Recorder. 1896, ch. 34, sec. 48. veyance, bill of sale, mortgage, APPENDIX A.—MINING STATUTES. '73 that the fai d any such document shall not invalidate the Mineral Act, , but such documents as to third parties shall R.S.B.C.,c.l35 from the date of such document: of a Crown grant for any mineral After Orown ay transfer or other document of £rant- t with the Mining Recorder of the but all documents relating to the e manner as are other documents and all the provisions of the take effect from the date of record, and And provided further, that after the is claim it shall not be necessary to register title executed subsequent to such Crown grs district in which the said claim is situated same may thereafter be registered in the s£ of title relating to the transfer of real es " Land Registry Act," and any amendments thereto, shall apply to such regis- " Lai; tration. 1896, ch. 34, sec. 49. try Act." ~ 50. No transfer of any mineral claim, or of any interest therein, shall be Transfers to enforceable unless the same shall be in writing, signed by the transferrer or by be in writing, his'agent authorized in writing, and recorded by the Mining Recorder; and if signed by an agent, the authority of such agent shall be recorded before the Agent record of such transfer. All mineral claims derived under Crown grant, and every transfer thereof, or any interest therein, shall be registered under the " Land Regis provisions of the "Land Registry Act." 1896, ch. 34, sec. 50. try Act." 51. The transfer of any real estate acquired under the provisions of the Transfers I Gold Mining Amendment Act, 1873," shall be in writing, signed by the trans- under "Gold ferrer or his agent authorized in writing, and need not be by deed or under seal. Mining 1896, ch. 34, sec. 51. Amendment Act, 1873." 52. No mineral claim shall be open to location by any other person during trlaimof minei the last illness nor, unless with the permission in writing of the Gold Commis- during illness sioner, for twelve months after the death of the lawful holder. 1896, ch. 34, "-nd after death 54. A free miner may locate any unoccupied known to contain mineral, and not exceeding fiv miner shall be entitled to obtain and hold this s. 1 lawfully held by him. Such iarly as possible in the form of a square. On locating iner shall comply with the following requirements :— (a) Mark out the land by placing a legal post at each t (6) Post a notice on each post, stating— 1. The name of such free miner; 1 mill site. No free !r more than one mill aill site shall be as 1 mill site, the free . The number of h free ertificate; o apply for the land a e of the notice; the office of the Mining Recorder. 1896, i 54. 55. On the expiration of sixty days after the fulfilment of the above require- Re( ments, the free miner shall deposit, in duplicate, in the office of the Mining gra: Recorder, a plat of the said land made by an authorized Provincial Land Sur- one veyor, and prove by affidavit that he has complied with the above requirements, and that the said land is not known to contain minerals, and shall furnish such other proof of the non-mineral character of the land as the Gold Commissioner may require; the free miner shall then be entitled to a lease, for one year, of 774 MA iTTX'S MIXING C Mineral Act, the said land, which lease sh R.S.B.C.,c.l35 ing the continuance of such 1 of the Gold Commissioner tha eLe!seurfreeminehr Si gg| If, dur- Crown gra Price. hundred dollars, he shall be hundred dollars, shall, on p Crown grant of such mill sit on the said mill site ayment of five dolla e. 1896, ch. 34, sec. iS tea Jast fivjp 56. On applying for a Cr own grant of a mill site, the ree miner sh all— for Crowi grant of n ill (1) Pay the sum of five lollars per acre to th e Mining Recorder ; (2) Deposit with the Mining Recorder the following docum (a) Lease of the mill site; (6) Plat of the mill site; (c) Surveyor's original field-notes; (d) A certificate from the Gold Commissioner that wor for mining or milling purposes have been put or cot mill site to the value of at least five hundred dolla (e) Application for the Crown grant. 1896, ch. 34, sec land in tl nill pressly re form :— [L.S.] all minerals under the sai BRIT] obia, by the Grace of God. of the Un Ireland, Queen. Defender of the Fait these presents shall come, Greeting: of the said to hold the said parcel or granted, with their appurt and assigns forever. resumed shall not exceed one-twe and that no such resumption sha may have been erected, or which tion of any such buildings. 1S96, ch. 34, : MARTIN'S MINING CASES. [vol. ame of any other partnership any interest in any other same vein or lode on which the partnership claim is :ec. 83. One partner 03. Should any partner fail to keep up his free miner's certificate, such failing to keep failure shall not cause a forfeiture, or act as an abandonment of the partner- up free miner s gfljp ciajm( Dut tne siiare 0f the partner who shall so fail to keep up his free cer 1 ca . miner's certificate shall, ipso faeto, be and become vested in his partners, pro rata, according to their former interests, on the said partners paying the free miner's certificate for the year. 1896, ch. 34, sec. 84. Partner's right 64. A partner in any mining partnership or his agent authorized in writing to vote. shall, at any meeting thereof, be entitled to vote upon any interest or fraction of an interest which he may hold therein; but the result of the votes given shall be determined by the number of the full interests voted upon, and not by the number of partners voting at such meeting. 1896, ch. 34, sec. 85. Majority to 65. A majority of such votes may decide when, how long, and in what make assess- matter to work the partnership claim, the number of men to be employed, and ments. the extent and manner of levying the assessments to defray the expenses incurred by the partnership: Such majority may also choose a foreman or manager, who shall represent the partnership, and sue and be sued in the name of the partnership for assessments and otherwise; and he shall have power to bind them by his contracts: Every partner, or his duly authorized agent, shall be entitled to represent his interest in the partnership property by work and labour so long as such work and labour be satisfactory to the foreman or manager. In the event of such workman being discharged by the foreman or manager, the Court having jurisdiction in mining disputes may, if requested, summon the foreman or manager before it, and upon hearing the facts make such order as it shall deem just. 1896, ch. 34, sec. 86. Assessments 66. All assessments shall be payable within thirty days after being made. to-5f-pfS£J 189e, ch. 34, sec. 87.' within 30 days ' Default in 67. Any partner making default in payment after receiving a notice speci- payment of fying the amount due by him, shall, if such amount be correct, be personally ""*""it by ijai)ie therefor to the partnership, and his interest in the partnership property may be sold by the partnership for the payment of the debt, and any further assessment which may have accrued thereon up to the day of sale, together with all costs and charges occasioned by such default; and if the proceeds of the sale be insufficient to pay off the several sums mentioned, the Court having jurisdiction in mining disputes, upon being applied to, shall issue an order directed to the sheriff to seize and sell any other personal property of the debtor. Notices of sale shall, in either of the above cases, be conspicuously posted thirty clear days prior to the day of sale in the vicinity of such mining or other property, and on the Court House or Mining Recorder's office nearest thereto. But if such partner be absent from the district such notices shall be posted as aforesaid sixty clear days before the day of sale, and a copy of such notice shall be published in some newspaper circulating in the district wherein such mining or other property is situate. Such sale shall be by public auction to the highest bidder. The purchaser shall be entitled to possession of the property sold, and to a bill of sale therefor signed by the auctioneer; such bill of sale shall confer such title upon the purchaser as the owner had. And for the purpose of carrying out the provisions of this section the Mining Recorder of the mining division in which the property to be sold is situate, or some one appointed by him, may act as auctioneer. 1896, ch. 34, sec. 88. APPENDIX A.—MINING STATUTES. ard of such notice. Min 69. Upon the abandonment of any share in a min to the abandoned share shall vest in the continuing p ing to their former interests. 1896, ch. 34, sec. 90. 70. Any partner shall be entitled to sell, or cont interest in the partnership property, but such interest all the debts of the partnership. 1896, ch. 34, sec. 91 71. No partner shall, s recorded, be liable for any 1896, ch. 34, sec. 92. shall 91. eying his R.S.B.C.,c,135- 5 Partner n Lit I Liabil 72. Any mining partnership composed of two or more free ir the liability of its members, upon complying with the requirei that is to say:— Upon filing with the Mining Recorder a declaratory s the name of the partnership, the location and size of every partnership claim, and the particular interest of each partner; and also placing upon a conspicuous part of every such claim, in large letters, the name of the partnership, followed by the words " Limited Liability." 1896, ch. 34, :. 93. shall thereupon become part of the part- 74. After such conditions shall have, been complied with, no member of such pany's name, partnership shall be liable for any indebtedness incurred thereafter beyond an Effect of limi- amount proportioned to his interest in the partnership. 1896, ch. 34, sec. 95. ted liability. 75. Every such partnership shall keep a correct account of its assets and Accounts t0 D liabilities, together with the names of the partners, and the interest held by kept each, and shall make out a monthly balance sheet shewing the names of the creditors, and the amounts due to each, and file the same among the papers of the partnership; and such balance sheet and all the books of the partnership shall be open to the inspection of creditors at all reasonable hours. 1896, ch. 34, i :. 96. 77. No member of such partnership, after a bill of sale conveying his in- After salt terest has been duly recorded, or after he has served a notice of abandonment partner n of his interest on the foreman, and left a copy thereof with the Mining Re- liable for indebtedness of the partt rred there- debts of p 79. Every such i represent the partnei ship, and his contra deemed to be the co artnership shall appoint a foreman or m ship, who shall sue and be sued in the nai :ts in relation to the business of the pai ttracts of the partnership. 1896, ch. 34, inager, who shall Appointmen ne of the partner- of foreman, tnership shall be 80. No such partnership shall be liable for a contracted by its foreman or manager, or by writing. 1896, ch. 34, sec. 101. 778 MARTIN'S MINING CASES. [vol. Mineral Act, 81. Should any such partnership fail to comply with any of the provisions R.S.B.C.,c.l3o of this Act relating exclusively to " limited liability " partnerships, Such partner- ships shall, from the date of such failure, cease to be a " limited liability " part- Failure to nership. 1896, ch. 34, sec. 102. Mining Recorder in and for any part of the Pro' 83. Where mineral land is discovered that the provisions of this Act as to fre mining property cannot be justly applied or enforced by reast no Gold Commissioner or Mining Recorder in the locality, it for the miners of such locality to hold meetings at such timi may be agreed upon, and at such meetings, by a two-thirds voti of their number to issue free miners' certificates and to enter ing property; and such certificates and records shall be valid, any informality therein: Provided that all records so made, with the Schedule to this Act, and part of the Province so situate iers' certificates and records of a of there being ■ shall be lawful s and places as , to appoint one records of min- no.twithstanding and all fees for list of all free rs' certificates issued, and the date and term thereof, and the fees for the , be forwarded to the nearest Gold Commissioner, or Mining Recorder as thereafter as practicable. 1896, ch. 34, sec. 104. kept by Min ing Kecordei Filing ai affidavit t- 85. Such free miners' certificates shall be taken from a printed book of forms, with duplicate counterfoils, one of which counterfoils shall be filed in the office of the Mining Recorder. 1896, ch. 34, sec. 106. 86. Every Mining Recorder shall keep the following books:— (a) A book t a be known as the " Record Book;" (6) A book t o be known as the " Record of Abandont (c) A book t i be known as the " Record of Affidavits;" (d) A book t o be known as the " Record of Conveyance 1890 ch. 34, sec as the " Record of Free 3t 107. 87. Upon receipt of an affidavit setting forth a detailed sta as required by sec. 24, the Mining Recorder shall issue a certifi the Form E in the Schedule to this Act. 1896, ch. 34, sec. 108. 88. Upon issuing such certificate of such affidavit in the Record of Affidavi work in the Record Book, 1896, ch. 34, s n in the Record Book, order shall record all e: , the Mining Recorder shall 189i ch. obe 92. Upon the receipt of a notice of abandonment, the Mining Recorder shall scord the same in the Record of Abandonments, and file such notice, and write rross the record of the claim affected by such notice, in the Record Book, ie word "Abandoned," and the date of the receipt by him of the notice. If lly an interest in a mineral claim is abandoned, and not the entire claim, the emorandum in the record shall shew which interest is abandoned. 1896, ch. 1, sec. 113. ficate book. Record of abandon- free tat purpose. 1896, ch. 34, se . The Mining Recorder shal copying out verbatim in the Record £ ills of sale, contracts for sale, and ai attorney, or other authorities, to f documents when brought to him I record in the Record Book all other docu- I which may be brought to him for record, and d h may be brought to him to be filed. 1896, r of the above books 3 made. 1896, t iled in the Mining Recorder's office, ce the Mining Recorder, shall be received in any Court as e\ rs therein contained. 1896, ch. 34, sec. 119. pt from the holder of a certificate of improvements of a >own grant in the proper form, and all moneys payable i a for which a Crown grant is applied, the Gold Commissiont >urs, be oper Book to be spection. id books, o o be a tru Office copy to Duty of Gold on receiving application for The ce Affidav tificaf t of the holder of the n A copy of the plat of- the mine The copy of the surveyor's ori Mining Recorder's certificate— . Upon receipt from the lessee c mentioned in sec. 56, the Mini) iommissioner. 1896, ch. 34, sec. MARTIN'S MINING CASES. 102. It sha: and subdivide any district intc ing division a Mining Recorde: ful for the Lie: 1896, ch. 34, t :. 123. of Recorder* Effect of 103. Upon the establishment of a mining division, and the opening of a Min- tablishment ing Recorder's office therein, under the authority of the last preceding section— (a) Such office, and none other, shall be the proper office for recording all claims, records, certificates, documents, or other instruments affecting claims, mines or mining property situate within such mining division not held as real estate; and whenever, by this Act, or any Act amending the same, anything is required to be done at or in the office of the Gold Commissioner or Mining Recorder of the district, it shall, if the same affects or concerns any claim, mine or mining property situate within a mining division not held as real estate, be done at or in the office of the Mining Recorder of the mining division wherein such claim oi- mine, or other milling property, is situate: (b) Upon the district or division of any Mining Recorder being divided or subdivided into mining divisions, it shall be the duty of such Mining Recorder to make, or cause to be made, a transcript of all the entries in all the books mentioned in sec. 86, affecting claims, mines or mining property situate in each newly created mining division not held as real estate, and to forward the same to the Mining Recorder of such mining division, and such transcript shall be kept in such office as part of the records of such office, and all transcripts of such records, certificates, documents, or other instruments shall prima facie be deemed to be true copies of the several records, certificates, documents, or other instruments of which they purpose to be transcripts; and such transcripts or copies thereof, when certified by the Mining Recorder of the mining division in whose office they are kept, shall be admissible in evidence in all Courts of Judicature in this Province. 1897, eh. 28, sec. 10. Gold Com- 104. When ther missioner has duties of the Minin all powers of shall at all times be iawf ul f or the Gold Commi Tiemrder of the Mming Recorder, and the Gold Commissit of a Mining Recorder. 1896, ch. 34, sec. 125. shall be no Mining Recorder for a district or division, the Recorder shall devolve upon the Gold-Commissioner, and it ler to perform the duties shall have all the powers e hours. 105. The Mining Recorder's office shall be open upon such days and hours as the Lieutenant-Governor in Council may from time to time appoint, and failing any particular appointment shall be kept open upon all days, excepting public holidays, from 9 a.m. to 4 p.m., and such times shall be deemed the office hours of such office. 1896, ch. 34, sec. 126. be appointed by the Lieut. - Governor. 106. The Lieutenant-Governor in Council may from time such persons as he shall think proper to be respectively Chit sioner and Gold Commissioners, either for the whole Province ticular districts therein, and from time to time in like manner limits of and subdivide such districts, and make and revoke i ments. C. A. 1888, ch. 82, sec. 4. Tunnels and Drains. r 107. It shall be lawful for, and not incumbent t to grant a licence to any free miner, being the lawf or mine held as real estate, to run a drain or tunne with the development or working of such claim or the Gold Commissioner ilder of a mineral claim • any purpose connected i, through any occupied APPENDIX A.—MINING STATUTES.- Working of Min 108. The Gold Commissioner t thereof, which i ivided that such i nterests of others, lay have been abandoned cla e-locations shall not pre- 1896, ch. 34, sec. 135. 109. The Gold Con of leavings and deads from any tunnel, cla as he may think just. 1896, ch. 34, sec. r shall ha1 136. a. space of ground for deposits Marking oi nining ground, upon such terms space for 110. The Gold Commissioner shall have the power to summarily order any Commiss mining works to be so carried on as not to interfere with or endanger the safety to provide for of the public any public work or highway, or any mining property, mineral claims, public safety, mining claims, bed-rock drains, or bed-rock flumes; and any abandoned works may by his order be either filled up or guarded to his satisfaction, at the cost ■of the parties who may have constructed the same, or, in their absence, upon such terms as he shall think fit. 1896, ch. 34, sec. 137. 111. Notwithstanding anything contained in the " Gold Mining Amendment Crown grants Act, 1873," or in any Crown grant issued under the said Act, or under this or under " Gold any other Act, it shall be lawful for the Gold Commissioner, in his discretion, Mining ■and with or without any terms or conditions, to allow to the owners of mineral Amendment claims all such rights or privileges in and over mineral or "other claims held as ^-ct» -^3. real estate as may be allowed in and over claims not So held; and owners of claims held as real estate shall be entitled to the same rights and privileges as owners of claims not so held. 1891, ch. 34, sec. 138. 112. Upon receiving an application for a mill site from any free miner, and issue of lease upon proof being furnished to his satisfaction of the non-mineral character of of mill site, the land applied for, and the deposit in duplicate of a plat of said land, and upon proof by affidavit that the applicant has complied with the requirements of sec. 54 of this Act, the Gold Commissioner shall issue to the applicant a lease of such land for one year, in the form in the Schedule to this Act. 1896, ch. 34, sec. 139. 113. Upon being satisfied that the lessee of a mill site has put or constructed Certificate of thereon works or machinery for mining or milling purposes to an amount of not work on mill less than five hundred dollars, the Gold Commissioner shall issue his certificate slte- to that effect. 1896, ch. 34, sec. 140. 114. Upon receipt fro mentioned or referred to i that the same are in ore sioner of Lands and Wor l the Mining Recorder of the moneys and documents Recorder sec, 100, the Gold Commissioner shall satisfy himself forward c r, and then forward the same to the Chief Commis- ments, et £ 1896, cb. 34, sec. 141. ?'"! 116. The Gold Commissioner, or any person authorised by him, shall take Commissioner aarge of all the property, within the district .of such Commissioner, of any to administer eceased free miner until the issue of letters of administration or probate of estate of intes- iny, and may cause any mineral claims held or owned to be duly tate deceased ir dispense therewith at his option: Provided, however, that where ln,ner- ler shall die intestate, and the value of the personal estate of such the 782 MARTIN'S MINING CASES. [VOL. Mineral Act, deceased free miner is less than three hundred dollars, it sha] R..S.B.C.,c,13ofor the Gold Commissioner to obtain from any Court letters but in such case the Gold Commissioner may administer anc sonal estate of the deceased, and do all things necessary an and act in all respects as if letters of administration to the such deceased free miner had been granted to such Gold Com Gold Commissioner shall produce and pass his accounts, in ea personal estate o'f missioner, and the Application of (a) The Gold Commissioner or person authorized by him .. n...e„ia .tall ■ ministrators any Rules and Regulations thereunder. 1897, ch. 28, s County Courts the '- County Courts Jurisdiction Act," and other Acts, every C in mining have and exercise, within the limits of its district, all the matters. powers of a Court of Law and Equity— SsB or in the exer by this Act, sr maj apply I y Judge of the ler directing the t ransfer of such to the Supreme Court, and upon such summons me Cc if satisfied that it is expedient transferred, make matter into the Supreme Court, give all i ecessary direction s for effectually uch order as to s theretofore had and take a in the County he may think fit, and froi n and after the into the Supreme ch act or matter, shall be had and de- and the jurisdiction of th e County Court absolu tely ceas e and determine. The Supreme 1896, ch. 34, sec. 144. 118. The jurisdiction given to Count the "mining jurisdiction" of the Cc jess, and all other documents in eve ing jurisdiction of the County Court. y Courts by this Act shall t unty Court, and the words y action or cause brought t 1896, ch. 34, sec. 145. 119. County Courts and County Court ers, shall have the same dnties, pov* ons and suits, and other proceedings b Judges, Registrars, Sheriffs, ers, privileges, and authorit rought under the mining juris the Cou and sui lty Court, as they now have, or a s and other proceedings broug Court, and the provisions of a RegistM in Coun 1896, ch le duties and powers of Co rs. Sheriffs, and other officers, y Courts, and all Rules and 0 jurisdiction of the County Co tent with this Act, apply to the 34, sec. 146. 120. feftuated Where disputes arise concerni in adjoining or different distr before which the dispute is fir 1896, ch. 34. : or suits the Co and such decis ■tue and effect MARTIN'S MINING CASES. 123. In any mining cause o tit, either party may requi R.S.B.C.,c.l35of fact shall be tried by a jury, and the Judge in any action, suit, or other proceeding, direct Issues of fact found by a jury. 1896, ch. 34, sec. 150. may be found by a jury. ^24. In all actions, suits, and other proceedings within the mining jurisdic- Costs. tion of the County Court, the Judge may order that costs be taxed on the higher or lower scale, allowed by the County Court Rules; or if he shall consider the case of sufficient importance, he may order that costs be taxed as in the Supreme Court, and the costs so ordered shall be the costs recoverable in i such action, suit or other proceeding. 1896, ch. 34, sec. 151. •County Court 125. Every County Court having jurisdiction in mining disputes shall, with I has jurisdic- reference to real estate held under the " Gold Mining Amendment Act, 1873," tion over land or under this Act, and notwithstanding any law to the contrary, have the same in certain powers and authorities to decide all matters or disputes arising between the cases. owners thereof, or between the owners thereof and any third person, or between mining joint stock companies, or between shareholders therein, or between them and the company, in the same way and as fully as it might do concerning claims not being real estate; and actions, suits, and other proceedings relating to such matters or disputes shall be brought and had in the same manner as actions, suits, or proceedings relating to mining claims not being real estate. 1896, ch. 34, sec. 152. Writs of capias 126. Any County Court Judge having jurisdiction in mining causes, may direct I ad responden- the issuing of writs of capias ad respondendum, ne exeat regno, and special I dum, ne exeat orders for the arrest and detention of a judgment debtor, in all cases in whichrS regno and by law he has jurisdiction over the subject-matter of the suit, but under and I |Pecl*r °™ers subject to such conditions as a Judge of the Supreme Court might usually re- ror arrest. ^.^ in applications of a similar nature. 1896, ch. 34, sec. 153. Part VII. Penal and Mis ellar ,n claii 3n survey 127. The owner of a mineral claim who has had his claim surveyed within e counted one year from the date of the record of the claim, or if the claim was recorded i°^^0ne b^01,6 fhe passing of this Act, then if surveyed within one year from the passing of this Act, and has filed in the office of the Mining Recorder in the Mining Division in which the claim is situated, a declaration by a Provincial Land Surveyor, stating that he has surveyed the claim as required in sub-sec. (c) of sec. 36 of this Act, and that he has delivered two plats of the claim and a copy of the original field-notes to the owner of such claim, then the owner of such claim shall be entitled to have the cost of such survey, not to exceed one hundred dollars, counted as work done on the claim. 1897, ch. 28, sec. 11. Purchase by 12&- The lawful holder of a Crown grant of a mineral claim issued under Crown grantee the provisions of this Act shall, in cases where such mineral claim has been of mineral located on waste lands of the Crown or on lands not already lawfully occupied claim of sur- for other than mining purposes, be entitled to receive a Crown grant of all the facerightson surface rights of such mineral claim on payment to the Government of BritisEf Columbia of the sum of five dollars per acre for such land, and of the fee of five dollars for the Crown grant. 1897, ch. 28, sec. 12. e land. When lode permit to 129. When a lode is supposed to cross a, valley or under an alluvial deposit, and where such lode is indicated by its appearance on the side of the mountain leading into such valley, any free miner upon making a sworn statement before the Mining Recorder or Gold Commissioner of the district that there is a lode which has indications of running through and under such alluvial deposit, shall be entitled to a permit for three months to search for such lode over the area of a mineral claim, with the privilege of having such permit extended, on his proving to the satisfaction of the Gold Commissioner that he has bond fide searched for such lode and has expended, either in cash or labour, or both, not 136 ay lawful order of t t shall, on conviction thereof the Peace or a Stipendiary Magistrate, I risdiction in mining disputes, be liable d fifty dollars, or to imprisonment, with t exceeding three months. 1896, ch. 34, 137. *-l APPENDIX A.—MINING less than one hundred dollars in s permit the ground covered by the sa: miner. The fee for such permit, a same as the fee for a record. 1897, 130. No free miner shall be entitled to any interest which has been located and recorded by any other fn interest is specified and set forth in some writing signed by the party such claim. 1897, ch. 28, sec. 14. 131. If any person shall in any suit or matter claim an adverse right of any Onus of proof kind to the mineral claim comprised in any record, or to any part thereof, or by adverse shall claim that any record is invalid or has been improperly obtained, or that claii the holder thereof has not complied with the provisions of the Act under which the location and record were made, or has not prior to the obtaining of such record made a good and valid location of such mineral claim according to law, the onus of proof thereof shall be on the person so claiming an adverse right, or so claiming that such record is invalid and has been improperly obtained as aforesaid, and in default of such proof judgment shall be given for the holder of such prior record in so far as such action, suit or matter relates to any of the matters aforesaid. 1897, ch. 28, sec. 15. 132. Notwithstanding the repeal of any Acts relating to mineral claims, or the saving clauses of any such repealing. Acts, all such repealing Acts shall be deemed to have contained provisions declaring the holders of records of mineral claims entitled to apply for Crown grants thereof under the provisions of the law in force at the time of such applications, and that the procedure upon any such applications shall be that prescribed by the statutes in force at " of such applications, the grants thereafter vesting in the holders such rights as were declared by the statutes in force at the date of record of such mineral claims: Provided, however, that nothing contained in this section shall or in any way restrict the rights and privileges conferred claims by the preceding section of this Act. 1897, ch. 28, sec. 16. 133. All Crown grants heretofore issued to the holders of mineral claim Validation of records shall be deemed to have been validly issued so far as relates to the pro- Crown grants cedure upon the application to obtain same, if in the application therefor the P^^or6 holder thereof observed either the procedure prescribed by the statutes in force ir at the time of the record of such mineral claims, or the procedure prescribed by the statutes in force at the time of the applications for Crown grants thereof. 1897, ch. 28, sec. 17. MARTIN'S MINING CASES. be paid into Consolidated Revenue. 13g Nothing herein contained shall, save where such intention is expressly Savnag rights stated, be so construed as to affect prejudicially any mining rights and interests henaslinaoi acquired prior to the passing of this Act; and all mining rights and privileges ° heretofore and hereunder acquired shall, without the same being expressly stated, be deemed to be taken and held subject to the rights of Her Majesty, Her heirs and successors, and to the public rights of way and water. 1896, ch. 34, sec. 157. the passing o Copie of A 140. Every free miner, on application to the Min shall be entitled to a printed copy of this Act on pa; five cents. 1896, ch. 34, sec. 158. Before whom 141. Affidavits and declarations made under the provisions of this Act shall affidavits must be made before some Judge or Registrar of a Court of Record, or before some be made. Gold Commissioner, Mining Recorder, Stipendiary Magistrate, Justice of the Peace, Notary Public, or Commissioner for taking affidavits. 1896, ch. 34, i of Mines and' the Provincial Inspector i to enter into or upon £ aing of this Act. 1896, ch. 34, s Rules and Regulations. Lieut.-Gover- 143. The Lieutenant-Gov deemed necessary from time according to their true inter which no provision is made in this Act, : to Council may make such orders as are to carry out the provisions of this Act meet the cases which may arise and for when the provision which is made it ambiguous or doubtful; and may also make regulations for relieving against forfeitures arising under sec. 9 of this Act; and may further make and declare - any regulations which are considered necessary to give the provisions in this 9. clause contained full effect; and from time to time alter or revoke any order or orders or any regulations made in respect of the said provisions, and make others in their stead, and further impose penalties not exceeding two hundred dollars, or not exceeding three months' imprisonment, for violation of any regulations under this Act; and further provide that any statement or returns required to be made by said regulations shall be verified on oath. Every order or regula^B tion made by virtue of the provisions of this section shall have force and effect only after the same has been published for two successive weeks in the BritisfijB Columbia Gazette; and such orders or regulations.shall be laid before the Legi^M lative Assembly within the first fifteen days of the Session next after the date thereof. 1896, ch. 34, sec. 161. Ta: of Min and Moneys Invested Thei ed therein. Annual tax 144. Notwithstanding anything contained in this Act, mines and moneys t. invested therein shall not be exempt from taxation, but shall bear such rate as may be imposed by any law in the Province. 1896, ch. 34, sec. 162. f 145. There shall be levied and collected from the owner or occupier of every mineral or placer claim of which a Crown grant has issued, including Crown grants issued under authority of an Act made and passed in the 36th year of Her Majesty's reign, intituled " An Act to amend the ' Gold Mining Ordinance, 1867,' and the ' Gold Mining Amendment Act, 1872,' " an annual tax of twenty- five cents for every acre and fractional part of an acre of land conveyed by the grant, payable on the thirtieth day of June in each year. Such tax shall form a charge upon the claim. The Assessor appointed under or by virtue of any exist- APPENDIX A.—MINING STATUTES. 787 ing Assessment Act, or any Collector appointed under the " Provincial Revenue Mineral Act Tax Act,' is hereby authorized, as to the mineral or placer claims situate within R.S.B.C.,a 135 the district for which he is appointed, to collect and receive the tax. In the event of the tax not being paid to the Assessor or Collector, the Gold Commis- " n cause the claim upon which the tax is charged to jn default of c auction, of which sixty days' notice shall be posted payment,claim upon tbe principal Court House of the district in which the claim is situate, and may be sold, m one newspaper, if any, published in such district, and may sell such claim, receive the purchase money, and execute a conveyance thereof to the purchaser. The purchase money shall be applied in payment of the expenses of advertising n , -"-i the payment of the tax, and any surplus shall be paid into the Trea t for the owner of the claim, or if the price offered shall not be sufficii advertising, the land shall absolutely reve grant thereof shall be deemed void. The offering the claim for sale, sue the owner mary manner, before any Justice of the Pes paid; and in default of payment the amot recovered by distress of the goods and chattels of the perse tax may be recovered: Provided, that if the owner of any such mineral or placer claim shall establish, to the satisfaction of the Gold Commissioner, Mining Recorder, or Assessor and Collector of the district in which the claim lies, that the sum of two hundred dollars has been expended thereon in labour or improvements in any one year, then the tax shall not be levied in respect of such claim for such year. 1896, ch. 34, sec. 163. t of there being no purchaser, nt to pay the tax and expenses of ■t to the Province, and the Crown Assessor and Collector may, before q or occupier for the tax, in a sum- s, 2e, who may adjudge the same to be t due, together with costs, may be 146. Where a claii s agent is desirous o ay, upon application ' a fee of twenty-fivt er, that such changt oceedings or executi c. 164. the c Provided, how- r prejudice any 1896, ch. 34, 147. Whenever through the acts or defaults of any person other than the ■^■jlere evj. recorded owner of a mineral claim or his agent by him duly authorized, the <jence of evidence of the location or record on the ground, or the situation of a mineral location, etc., .claim, has been destroyed, lost, or effaced, or is difficult of ascertainment, never- effaced theless, effect shall be given to same as far as possible, and the Crown shall have through faults power to make all necessary inquiries, directions and references in the premises, of others, for the purpose of carrying out the object hereof, and vesting title in the first bona fide acquirer of the claim. 1896, ch. 34, sec. 165. 7 Clause. 148. The Acts and parts of Acts mentioned in this section shall stand repealed Repealing and be repealed; but such repeal shall not be deemed to imply that any of the clause, said Acts or parts of Acts which have'been repealed at any time prior to the passing of this Act have been in force since such repeal: Provided further, that such repeal shall not affect any rights acquired, or any liabilities or penalties incurred, or any act or thing done, under any of the said Acts or parts of Acts :— The "Mineral Act. 1891," the ."Mineral Act (1891) Amendment Act, 1892," 1891, c. 25; the " Mineral Act (1891) Amendment Act, 1893," the " Mineral Act Amendment 1892. K 32; Act, 1894," and the " Mineral Act Amendment Act, 1895," are hereby repealed. *°j™> °- j*|> 1896, ch. 34, sec. 166. X895 c' 39- 788 R.S.B.C.,c MARTIN'S MINING CASES. SCHEDULES. Fokm A. Location Notic Min ral Claim. I, , have this day located this ground as a mineral claim, to be known as the Mineral Claim, feet in length by feet in breadth. The direction of No. 2 post is , and feet of this claim lie to the right and feet to the left of the location line. Dated this day of ") , 189 . Take care to number the posts 1, 2, J- l the 1897, Record of Min No. of Cer of r the r for of of each locator tne ISO. of each locator's free n certificate opposite such nami The claim is situate The direction of the location lit The length of the claim is The claim was located on the Recorded this dar the location Un mply with seo. 18.] Form C. Record of Partnership ■ai^Clain Located in the partnership name of The members of the partnership, and the Nos. of their ret The receipt form of payment of the record fee. The claim is situate The direction of the location line is The length of the claim is feet. The claim was located on the day of Recorded this day of , 189 APPENDIX rA^M-INING STATUTES. I hav, Claim, si of at Ieai tke oat caused to be done, work on it , in the District c hundred dollars, since the s a detailed statement of such v 11 particulars of the work done quired to be done by sec. 24-1 [This affidavit n (Na, 1 affidavi 5 of claim) Min * out a detailed state ork done on the above claim since the day of ade by , has this day been filed in my office, and i : the provisions of the Act in that behalf, I do now issue this < Ork in respect of the above claim to Dated tificate No. intend, Recorder for a certificate grant of the above claim. MARTIN'S MINING CASES. Form G. Application for Certificate of Improve Applicant' iVIT, a the District of the r Div n) of Min 2. I, have done, or caused to be done, work on the said claim in developing a mine to the value of at least five hundred dollars, full* parti1 culars whereof are hereunto annexed and marked "A." 3. I, , found [specify the particular mineral and whether in a vein, lode or deposit] within the limits of the said claim. 4. I, , had the claim surveyed by , who has made three plats of the said claim. 5. I, , placed one such plat on a conspicuous part of the land embraced in such plat on the day of , 189 . 6. I, , posted a copy of the notice hereunto annexed, and marked " B," at the same place as said plat is posted, on the day of , 189 , and another copy on the Mining Recorder's office at , on the day of , 189 , which said notice and plat have been posted, and have remained posted, for at least sixty days concurrently with the publication of the said notice in the British Columbia Gazette. 7. I, , inserted a copy of the said notice in the British Columbia Gazette, where it first appeared on the day of 189 , and in the , a newspaper published in the Province and cir culating in the district in which the said claim is situated, where it first appeared on the day of 189 , and was continuously published for sixty days concurrently with the publication of the said notice in the British Columbia Gazette prior to the date of this affidavit. 8. I, , deposited a copy of the field-notes and plat in the Record Office at , on the day of , 189 , and they remained there for reference for sixty days concurrently with the publication of the said notice in the British Columbia .Gazette. at , this day 1 *Particulars must be exclusive of all houses and other like improvements. This affidavit may be made by an agent, duly authorized, in writing and m be altered to suit circumstances. 1896, ch. 34, Form G., & 1898, ch. 33, sec. 13. This is to certify th that he has complied v him to a certificate of , in the District of , has proved to my satisfaction 3 of the "Mineral Act" to entitle ect of the Mineral TES. e this cer and in pu ificate of Id - Mine a-R.S.B 791 ralAct, C.c.135 Gold Com missio er. nt is applied for with n APPENDIX A.—MINING STATUTES. tance of the pro Dated This certificate will become void unless a Cro ree months from its date. [Form may be altered to suit circumstances.] Mineral Claim. Date located, Date recorded, Sir,—I herewith enclose the following documents relating to your application for a certificate of improvements to the above claim:— Affidavit of , applicant (Form G.) ; Copy of plat of claim; Copy of surveyor's field-notes. And I hereby certify that has published a notice of his intention to apply for a certificate of improvements for sixty days in the British Columbia Gazette, from the day of , 189 , and newspaper from the day of , 189 . That during the above period a notice in accordance with section 36, sub-section (d), has been posted, and a copy of the field-notes and plat of the said claim deposited for reference in my office, and that no notice of any action having been commenced against the issuance of a certificate of improvements to the said claim has been filed in this office up to this date. The recorded owner of the said claim at this date is Dated , 189 . 1896, ch. 34, Form I. , Mining Recorder. Take notice that I, , of in the Distric of , free miner' 3 certific iteNo. , intend, sixty days from the date hereof, to apply for acres of land for a mill site, situate , in the dis trict of , as a mill site. Dated 1896, ch. 34, Form J. For n K. Affidavit o . Mill F Applic ant Prior to Lease. I, , of in the Dis rict of , free mil ler, make oath and say:— 1. I have marked out the la .nd requ red by me for a mill site, by placing a leg al post at each corner. 792 MARTIN'S MINING CASES. [vol. Mineral Act, 2. I have posted a notice on each such post, and on the Mining Recorder's R.S.B,C„c.l35 Office at , a copy of which notice is hereunto annexed, and marked" A." 3. The said land is not known to contain minerals, and is not, to the best of my knowledge and belief, valuable as mineral land. 1896, ch. 34, Form K. Lease of Mill Site. This indenture, made the day of , 189 , between , the Gold Commissioner for the District of (hereinafter called the lessor), of the one part, and , of in the District of , free miner (hereinafter called the lessee), of the other part, witnesseth, that in exercise of the powers vested in him by the id lessor, doth hereby demise unto the said lessee, his and assigns, all that [Describe the mill site.] if one year from the date hereof, subject to the provisions and he " Mineral Act" relating to mill sites, whereof, the said parties have hereunto set their hands and seals. Signed, sealed, and deliv 1896, ch. 34, Fo make oath and s Form M. Mill Site. lAviT of Applicant Prior to Crown Grant. , of , in the District of mtioned in indenture of lease . During the year mentioned in such lease as the term thereof, I put c tructed works or machinery, for mining or milling purposes,' on the sai site, of the value of at least five hundred dollars. Sworn, &c. 1896, ch. 34, Form M. Certificate of Improvements. This is to certify that has put or constructed works or . machinery, for mining or milling purposes, to the value of at least five hundred gpllars, on the mill site described in and demised by indenture dated the day of , 189 , and made between during the existence of such lease. 1896, ch. 34, Form N. APPENDIX A.—MINING STATUTES. Form O. ■ Take notice that having given security to the amou has this day obtained a licence fr , a free min er and the owner of for any dama n a tunnel (or drain The said licence is granted on these expre 3S conditions :- Dated if any.] 1896, ch. 34, Form O. Form P. Mill Site. Gola Com Applicati ON for Cro tvN Grant. To the Mining Recorder at Sir,—I enclose herewith the s mentioned documents:— urn of dollars ar nd the under- Pla of mill s field-n Certificate of improve: Affidavit of applicant. And I now apply for entioned lease. 1896, ch. 34, Form P. e demised by the above- of Form S. For a Full Claim. Mining Division, I, A. B., of in the Mining Divisio District, free miner, make oath and say :— 1. I am the holder of free miner's certificate, No. dated day of , 18 , and issued at 2. On the day of , 18 , I located the Mineral Claim, situated [here describe position of elaim as near as possible, giving the name or names of any mineral claim or claims it may join]. 3. I have placed a No. 1 and a No. 2 and a discovery post of the legal dimensions on the said claim, with the legal notices on each post. 4. I have written on the No. 1 post the following words:— 5. I have written on the No. 2 post the following words:— 6. That I have found mineral in place on the said claim. 7. That I have marked the.line between No. 1 and No. 2 posts as required by section 16 of the "Mineral Act." 8. That to the best of my knowledge and belief the ground comprised within the boundaries of the said claim is unoccupied by any other person as a mineral Claim; that it is not occupied by any building or any land falling within the curtilage of any dwelling-house, or any orchard, or any land under cultivation, or any Indian reservation. Note.—This declaration may be made by an agent. 1896, ch. 34, Form S. MARTIN'S MINING CASES. [VOL. 5 For Fractional Claim. Mining Division, District. I, A. B., of in the Mining Division of Dis trict, free miner, make oath and say:— 1. I am the holder of free miner's certificate. No. dated day of , 18 , and issued at 2. On the day of , 18 , I located the fractional mineral claim, situated 3. This is a fractional claim bounded on the north by , on the south by , on the east by , and on the west by , and is more particularly described on the sketch plan on the back of this de- 4. I have placed a No. 1 and a No. 2 and a discovery post of the legal dimensions on the said claim, with the legal notices on each post. 5. I have written on the No. 1 post the following words:— 6. I have written on the No. 2 post the following words: — 7. I have found mineral in place on the said fractional claim. 8. I have marked the line between No. 1 and No. 2 posts as required by sec. 16 of the "Mineral Act." 9. That to the best of my knowledge and belief the ground comprised within the boundaries of the said fractional claim is unoccupied by any other person as a mineral claim; that it is not occupied by any building or any land falling within the curtilage of any dwelling-house, or any orchard, or any land under cultivation, or any Indian reservation, f Xote.—This declaration may be made by an agent. 1896, ch. 34, Form T. Schedule of Fees to be Charged. For every free miner's certificate issued to an individual $ 5 00 For every free miner's certificate issued to a joint stock company,— ■ (a) Having a nominal capital of $100,000.00 or less 50 00 (B) Having a nominal capital exceeding $100,000.00 100 00 (1897, ch. 28, sec. 22.) Every substituted certificate 1 00 Recording any claim 2 50 Recording every certificate of work 2 50 Recording any " lay over," or every other record required to be made in the " Record Book " 2 50 Recording every abandonment, including the memorandum to be written on the record 2 50 For any other record made in the " Record of Abandonments " 2 50 For recording every affidavit, where the same does not exceed three folios of 100 words 2 50 For every folio over three, 30 cents per folio. The above rate shall be charged for all records made in the " Record of Affidavits." For all records made in the " Record of Conveyances," where the same do not exceed three folios 2 50 For every folio over three a further charge of 30 cents per folio. For all copies or extracts from any record'in any of the above-named books, where such copy or extract shall not exceed three folios, per copy 2 50 Where such copies or extracts exceed three folios, 30 cents per folio for every folio over three. For filing any document . ...' 25 For a Crown grant 5 00 1896, ch. 34; 1897, ch. 28, sec. 22; and 189S, ch. 33, sec. 14. APPENDIX 1 -MINING STATUTES. Rev. Stat. B. C. Chap. 136 (1897). An Act relating to Placer Mines. tdvice and consent of the 1 e of British Columbia, enacts as fol Short Title. ted as the "Placer Mining Act." 1891, ch. Mine." "placer mine," and "diggings" shall be synonymous terms, and "Mine," shall mean any natural stratum or bed of eftrth, gravel or cement mined "placer mine," for gold or other precious minerals or stones; "diggings." Placer claim" shall mean the personal right of property or interest in "Placer any placer mine; and in the term " mining property " shall be included claim," "min- every placer claim, ditch, or water right used for placer mining pur- lnS property." poses, and all. other things belouging thereto or used in the working thereof. Placer claims shall be divided into creek diggings, bar diggings, dry diggings, bench diggings, and hill diggings; shall r i the bed of ar -, stm xtends when "Ba " Dry diggings ' shall r " Bench diggings " shall mean purpose of defining the sizi from " dry diggings; " Hill diggings " shall mean an; and fronting " d mes, whether " ■" Streams and ravines" shall include all natural watercourses whether >< usually containing water or not, and all rivers, creeks, and gulches; ri " Ditch " shall include a flume, pipe, race, or other artificial means for con- « ■ ducting water by its own weight, to be used for mining purposes; ■"Ditch head" shall mean the point in a natural watercourse or lake where « water is first taken into a ditch; " Free Miner " shall mean a person, or joint stock company, or foreign com- " pany named in, and lawfully possessed of, a valid existing free miner's certificate, and no other; " Legal post" shall mean a stake standing not less than four feet above „ the ground, and squared or faced on four sides for at least one foot from the top, and each side so squared or faced shall measure at least four inches on its face so far as squared or faced, or any stump or tree cut off and squared or faced to the above height and size; .-"Record," "register," and "registration," shall have the same meaning, ,, and shall mean an entry in some official book kept for that purpose; " MARTIN'S MINING CASES. Placer i tei " Record," when used without qualifyi lg words shewing that a differ R.S.B.C. c.136 matter is referred to, shall be taken to refer to the record of the lo tion of a placer claim; "Record " Full interest" shall mean any placer claim of the full size, or one several shares into which a mine m ay be equally divided; " Close " Close season" shall mean the period of the year during which pla season." claims in any district are laid over by the Gold Commissioner of t "Judgment." "Real estate." "Joint Stock Co." district; " Cause " shall include any suit or action ; "Judgment" shall include "order" or "decree;" " Real estate " shall mean any placer mineral land held 1 " Joint Stock Company " shall mean any company for m: (a) Incorporated under the " Companies Act, 1897," or thereby; or (6) Registered as a foreign company under any Act " Companies Act, 1897;" or (c) Licenced or registered as an extra-Provincial coi " Companies Act, 1897;" or (d) Incorporated by any special Act. 1896, ch. 35, fee simple; any Act repealed. ? and their Privileges. under, eighteen years of age, and every joint i all the rights and privileges of a free miner,. er, upon taking out a free miner's certificate. miner, shall, as regards his mining property- therewith, be treated as of full age. joint stock company shall be issued in its ■tificate shall not be transferable. 1891, 3. Every person over, but stock company, shall be entitle and shall be considered a free A minor who shall become a and liabilities contracted A free miner's certificate issued corporate name. A free miner ch. 26, sec. 3. 4. A free miner's certificate may be granted to a free miner for one or more years, to run from the date thereof, or from the expiration of the applicant's- then existing certificate, and to a joint stock company for the period ending on the 30th day of June, after the issue of the certificate next ensuing, upon the payment therefor of the fees set out in the Schedule of Fees to this Act. Only one person or one joint stock company shall be named therein. 1891, ch. 26, sec. 4, 1897, ch. sec. 2, sec. 161. . A free s certificate shall be i British Colui the follot ; form Mode of re newal of cei tificate ing Recorder's offio APPENDIX A.—MINING STATUTES. 797 t shall be entitled to have such certificate from the date of such Placer Act, tnd any free miner shall at any time be entitled to obtain a free R.S.B.C.,c.l36 cate commencing to run from the expiration of his then existing :ertificate, provided that when he applies for such certificate he to the Mining Recorder, or in case of his absence shall leave :r or other person in charge of the Mining Recorder's office, such be accidentally 8. Every person and joint stock company engaged in placer mining shall take pel rat a free miner's certificate, and any person or joint stock company who mines mil >r works as a miner in any placer claim, or on any bed-rock flume, drain or out litch, without having taken out and obtained such certificate, shall, on convic- ion thereof in a summary way, forfeit and pay a penalty not exceeding twenty- ive dollars, besides costs: Provided always, that nothing herein contained shall u-ejudice the right to collect wages or payment for work done by any person Pre ir company, who, through not being a free miner, has rendered himself or itself iable to the above penalty. 1891, ch. 26, sec. 8. shall be recognized as having any No perso ing lease, bed-rock flume g ner holding linn I,,- ■ a free miner's ^Md mining tihcate the property. mining ditch, drain, tunnel, 01 " certificate unexpired. And on owner thereof shall absolutely placer claim, mining lease, bed-rock flume grant, and any minerals in any ground comprised therein, and in or to any and every water right, mining ditch, drain, tunnel, or flume, which may be held or claimed by such owner of such expired free miner's certificate, unless such owner shall, on or before the day following the expiration of such certificate, obtain a new free miner's certificate: Provided, nevertheless, should any free miner's certificate, such failure shall not c abandonment of the claim; but the interest of the co-owner who shall fail celtificatef to keep up his free miner's certificate shall, ipso facto, he and become vested 111 his co-owners, pro rata, according to their former interests: Provided, nevertheless, that a shareholder in a joint stock company need not be a free miner, Shareholder and, though not a free miner, shall be entitled to buy, sell, hold, or dispose of company net any shares therein: And provided, also, that this section shall not apply ton°tbefree placer mines for which a Crown grant has been issued. 1895, ch. 40, sec. 2. miner. fail- 10. Every owner < performance of any v fee for a free miner's the fee, and may dedu 5 or placer claim, and every contractor for the Owners, etc., a a mine or placer claim, shall pay the annual to pay the fees liner's licence for any person in their employment and liable for for employees, y deduct the amount sd paid on account of such person from the ry or wages due or to become due to him from such' employer 1 and delivery of the receipt for such tax to such person. Every contractor shall furnish to the Mining Recorder or Collector, And to furnish when requested by him so to do, from time to time, a list of all persons in hisl'sts- employ, or indirectly employed by him, liable to pay the said licence fee; but no such statement shall bind the Recorder or Collector, or excuse him from making due inquiry to ascertain its correctness. upon produt ) pa; the said 1 snce fee for his employees, or to Penalty, mtioned in the preceding section anything falsely in such list, weeding one hundred dollars, to MARTIN'S MINING OASES. i- 11. Every free whether vested in t for town sites, lam curtilage of any dv pied for placer mi: sec. 10. Right to kill 13. Any fl game. actually prosp ch. 26, sec. 13. Rights under 14. A free What claims 15. Every free miner shall be entitled • free miner may on each separate creek, ravine, or hill, but record and same locality, only one of which shall be £ lowest water level; In " dry diggings " a claim sha: In " bench diggings " a claim s Gold Commissioner shall ht to exceed 100 feet square-; In " hill diggings " a claim shE drawn parallel to the main < fronts. Parallel lines draw angles thereto, and running the side lines thereof. Legs both the base line and side posts so placed. 1891, ch. 2i APPENDIX A.—MINING STATUTE Loco , Rei , Re- and marked by four legal posts at the c One of such posts shall be marked as t be placed a legible notice in writing, s in feet and general direction, with th locator. If any side line of any claii posts shall be placed along such side 1: 1891, ch. 26, sec. 20. the Mining Recorder of the district or division wit within three days after the location thereof, if lo office of the said Mining Recorder. One additio making such record for every additional ten mil record shall be made in a book to be kept for th said Mining Recorder, to be known as the " Rec inserted the name of the claim, the name of eacl e allowed for hereof. Such i office of the vhich shall be " the number of each *° locator's free miner's certificate, the locality of the claim, its length in feet, the period for which such record is granted, the date of location, and date of the record: Provided that a free miner shall not be entitled to a record of a p claim until he shall have furnished the Mining Recorder with a written statement of the above particulars. 1891, ch. 26, sec. 23. 24. After 1 of a il of any post by the Forfeitt Lde for the purpose of removal e of the claim. 1891, posts. MARTIN'S MINING CASES. 25. Upon the establishment of a mining divisi ing Recorder's office therein, under the authority none other shall be the proper office for mining division, and making all records i and the opening of a Min E this Act, such office an •ding all placer claims within sue respect thereof. 1891, ch. 26, sec. 21 a 26. If through ignorance any free miner shall record a pi different mining division to that in which such claim is situate, not affect his title to such claim, but he shall, within fifteen discovery of his error, record such claim in the mining divisioi situate, and such new record shall bear the date of the firs i of the error and of the date of the miner having duly located £ e for one or more years, up > this- Act. 1891, ch. 26, se of his record o: his placer claim the Schedule to made in the Re a claim. 28- A f ree miner shall, at any time during record, be entitled to extend the term of his interest in one or more years, upon payment of the fees set out in Act, by re-recording such claim. Such re-record shall be Book, and shall set out— (1) The name of the claim; (2) The name of each holder of an interest in such claim; (3) The number of each such holder's free miner's certificate; (4) The locality of the claim; (5) The period for which such re-record is granted; (6) The date of the re-record. 1891, ch. 26, sec. 28. Application to 29. If a free miner shall apply for a record, and shall make such application record in Re- at the Mining Recorder's office during office hours, but during his absence, and corder's ab- shall leave the fee required by this Act, and the particulars and information sence. required by sec. 23, with the officer or other person in charge of the said office, he shall be entitled to have a record dated on the date of such application. 1891, ch. 26, sec. 29. record3,8 *° **' 30- If a free miner sha11 apply for a re-record> and sha11 make such application at the Mining Recorder's office during office hours, but during his absence, and shall leave the fee required by this Act, and the particulars and information required by sec. 28,- with the officer or other person in charge of the said office, he shall be entitled to. have a re-record dated on the date of such application, but commencing to run from the expiration of his existing record or re- record. 1891, ch. 26, sec. 30. 26, i 31. A free miner ttitled to hold the s a upon complyin tec. 31. having duly located and recorded a placer claim, shall be tine during the existence of his record or re-record of such ; with all the terms and conditions of this Act. 1891, ch. r 32. Every free miner shall have the exclusive right of entry upon his placer claim, for the miner-like working thereof, and the construction of a residence ■ thereon, and shall be entitled exclusively to all the proceeds realized therefrom: Provided that the Gold Commissioner may, upon application made to him, allow other free miners such rights of entry thereon as may be necessary for the working of their claims, upon such terms as may to him seem reasonable. 1891, ch. 26, sec. 32. 33. Upon any dispute as to the title to a placer claim, no irregularity made 1 prior to the date of the then current record or re-record of such claim shall affect the title thereto, and it shall be assumed that up to the date of such record or re-record the title to such claim was perfect: Provided always, that I MARTIN'S MINING CASES. [VOL. a shall not apply to land or mining property i Part VII. of this Act, but such leases shall ms thereof. 1891, ch. 26, sec. 32, and 1895, Placer Act, 42. Where the supply of water is insufficient to work hydraulic or other R.S.B.C.,c.l36 placer claims requiring water to enable them to be worked, such claims shall be laid over by virtue of this section during such insufficiency, but no longer, Lay over^ dur- except by leave of the'Gold Commissioner; but a notice of such insufficiency be posted on the office of the Mining Recorder within three days ' of work: (2) The provisions of this secti held under haining leases, pursuant in all matters be governed by the tt ch. 40, sec. 3. 43. Every bill of sale, conveyance, or mortgage of a placer claim, or of any thereof, shall be recorded within the time prescribed for recording placer claims. 1891, ch. 26, sec. 43. 44. No transfer of any placer claim, or of any interest therein, shall be ™™w? enforceable unless the same or some memorandum thereof shall be in writing, signed by the transferrer, or by his agent authorized in writing, and recorded . in the Record of Conveyances. 1891, ch. 26, sec. 44. "Gold Mining 45. The transfer of any real estate acquired under the provisions of the Amendment " Gold Mining Amendment Act, 1873," shall be in writing, signed by the trans- Act, 1873." ferrer or his agent authorized in writing, and attested by a subscribing witness. 1891, ch. 26, sec. 45. S. Every instrument, memorandum of sale, or other writing, whether under or not, executed before the passing of this Act, purporting to transfer any est in any placer claim or claims held under the authority of the mining laws of the Province in force at the time of such transfer, from which, by reason of its customary use, or from other satisfactory reasons, it is plainly deducible- that the intention of the maker thereof was to pass to the transferee the maker's entire interest in such claim or claims, shall, unless some reservation or excep- contrary intention appears, otherwise than by the omission of proper operative words, or of words of inheritance, or by the presence of some other informality, or of one or more such, pass, and be deemed to have passed, to the transferee an estate of fee simple in the premises, or other the full estate held or possessed by the maker. 1893, ch. 28, sec. 4. 47. Where, by reason of the loss of the documents of title to any such claim, »e usea it is impossible to produce the same for purposes of registration, it shall be- ■egistra- sufficient to entitle an applicant to have his title registered under the Land purposes. Registry Acts, to produce to the Registrar of Titles a copy of the record of such transfer or transfers, certified under the hand of the Mining Recorder in whose- the books of record in which any such transfer is recorded. 1893, ch. 28, sec. 5. Part III. Tunnels and Drains. Licence to 48. Any free miner requiring to run or construct a tunnel or drain in con- make tunnels nection with his claim through any occupied or unoccupied lands, whether minor drains eral or not, shall obtain a licence from the Gold Commissioner for that purpose, igh other which licence shall be granted or withheld in the absolute discretion of such Gold Commissioner; and shall also give such security to the Gold Commissioner ' for any damage that may be caused by such tunnel or drain as such Gold . Commissioner may require. Such licence shall be subject to such terms and' conditions as the Gold Commissioner shall think fit, and shall be recorded in the Record Book. 1891, ch. 26, sec. 46. 49. A tunnel o msidered a MARTIN'S MINING CASES. [vol. e charged (Note.—Queen's Printer's Err Placer, ch. 136: strike out caption from 1894, ch. 33, sec. 2, repealed b ch. 190, sec. 154, sub-sec. (c), page lis shall >piy- less they shall have ot artnerships 58. A be a yea ch. 26, st rly partnershii ic. 80. lopeof 59. T he business of n solely therett 1891, c ec. 81. 60. Mining partnerships can locate and record in the partnership name a placer claim for each partner who is a free miner. Such partnership claims may be located and recorded as a set of claims, and each such claim shall be staked as an ordinary placer claim. One stake on each such claim shall be marked as an initial stake, by writing thereon the words " Initial post." It shall not be requisite to post more than one location notice on each set of claims, which notice shall be on the first initial post. 1891, ch. 26, sec. 82. of clai - be i The i partner, and the number of evei •y part ner's free miner's certificate shall be f clain is. The partnership name shall appear record, and all cla taken up shall be ty of the partnership. \ 1891, ch. 26, sec. 83 62. A part ner in any m ining partners hip, or his agent authorized ir i writing, neeting thereof, be entitled to vote upon any • fraction y hold ; but the result of the votes g: iven shall be determined by the numl the ful 1 interests voted up ■on, and m at by the number of par tners voting at sue! i meetii ag. 1891, ch. 26, se c. 84. 63. A majt irity of sucl l votes i may decide when, how long, and in what k the partnei •ship cl set of claims, the n umber of t nen to be employed, whi ch number si lall not : be less than one man to i sach claim , and the extent and ma inner of levy ing the i assessments to defray the expenses incurred by the partner ship. Such i also choose a forems tger, who shall represent : the partners ihip an nd be sued in the m ame of the partner- ship for assess .ments and o them by his contracts. Every parte y authorized agent, shall be ei ititled to nterest in th md labour In the ng discharged by the forem ager. the man or manage ^tetoe'it a ndTo- nheari ng the facts make st tch order a s^tsfhan deem just. 1891, ch. 26, set :. 85. 64. All ass essments shall be payah le within five days after beir ig made. 1891, ch. 26, si ac. 86. APPENDIX A.—MINING STATUTES. 805 be insufficiei the Sheriff t !ault in payment, after receiving a notice certify- Placer Act, shall, if such amount be correct, be personally R.S.B.C.,c. 136 lip, and his interest in the partnership property p for the payment of the debt, and any further Saleof partner- rued thereon up to the day of sale, together with ?hlP property I by such default; and if the proceeds of the sale cents' assess_ veral sums mentioned, the Court having jurisdic- aeing applied to, shall issue an order directed to 7 other personal property of the debtor. Notices love cases, be conspicuously posted ten clear days e vicinity of such mining or other property, and 1 Recorder's office nearest thereto. But if such i the district, such notices shall be posted as aforesaid tutrtj ciear days before the day of sale, and a copy of such notice shall be published in some newspaper circulating in the district wherein such mining or other property is situate for the same period. Such sale shall be by public auction to the highest bidder. The purchaser shall be entitled to possession of the property sold, and to a bill of sale therefor signed by the auctioneer; such bill of sale shall confer such title upon the purchaser as the owner had. 1891, ior to the day of sale the Uourt House or rtner be absent froi ce of abandonment, in writing, shall have C of a partnership by any member thereof not be liable for any debts or other liabil service and record of such notice, and i andoned an interest until service and ret rved on the Effect of all the debts of th i shall 1 ititled to' sell, erty, but such 1891, ch. 26, t :ontract for the sale of, his jnte rest shall continue liable for g0],j 68. No partner shall, after a bill of sale con recorded, be liable for any indebtedness of the pa: 1891, ch. 26, sec. 90. Limited Liability. 69. Any mining partnership, composed of two o free from all debts in respect of the partnership pr of its members, upon complying with the requir eved by sale ebts of Upon filing with th name of the pai and the particu' spicuous part o name of the p: 1891, ch. 26, se 70. The words "! ; Mining Recorder become part of the to be added to 71. After such conditions shall have been complied with, no member of such Effect o{ same partnership shall be liable for any indebtedness incurred thereafter beyond an 72. Every such partnership shall keep a correct account of its assets and.. .. , liabilities, together with the names of the partners, and the interest held by«'limited each, and shall make out a monthly balance sheet shewing the names of the liability" part- creditors, and the amounts due to each, and file the same among the papers of nership. the partnership; and such balance sheet and all the books of the partnership shall be open to the inspection of creditors at all reasonable hours. 1891, ch. Every partner in such p interest therein, or of any r shall be liable for the . interest in the partnershi MARTIN'S MINING CASES. shall be at liberty to sell or dispose part thereof, to any .other free miner; but such ndebtedness' on the said interest in proportion p. 1891, ch. 26, sec. 95. future debts of limited liability partner- 74. No member of such partnership, after a bill of sale conveying his interest a been duly recorded, or after he has served a notice of abandonment of his erest on the foreman, and left a copy thereof with the Mining Recorder, shall liable for any indebtedness of the partnership incurred thereafter. 1891, ch. represent the partnership, and \ partnership; and his contracts shall be deemed to be the contra> 77. No such partnership shal contracted by its foreman or man 1891, ch. 26, sec. 99. Part VI. Bed-rock Flunu indebtedness than that rights of way !6, sec. 100. application i Mining Recoi the name of the applicant be acquired. Thirty days : the to the Gold Comm and the nature and extent of the privileges sought to i? notice of such application shall be given, by affixing uous part of the ground through which the rights of way are asked, and a copy thereof upon the walls of the Court House or of the office of the Mining Recorder of the district. Prior to such application, such ground shall be marked out by legal posts, placed at intervals of one hundred . and fifty feet along the proposed main line or course of the flume, with a notice of such application affixed to one of such posts. And it shall be competent for any free miner to protest before the Gold Commissioner within such thirty days against such application being granted, but not afterwards. Every application for a grant shall be accompanied by a deposit of one hundred and twenty-five dollars to-be left with the Mining Recorder, which shall be refunded if the application be refused, but not otherwise. 1891, ch. 26, sec. 101. and shall be for i e shall be entitled to the following rights and t i) The right of wa creek, gulch, or rt of ground one hu through and ent fine, and the excl idred feet wide a (6) The right of way through and e right t thereof r wholly or partial! work both the unvt iet in width, and o creek, gulch, or > years prior to id the exclusive idoned portions : in length, for • APPENDIX A.—MINING STATUTES. 0 Such right of way through and entry upon any river, creek, or ravine discovered within two years next preceding the date of his application R before mentioned, and upon any portions of which any free miner is legally holding and bond fide working a claim, as to the Gold Commis si The 1 advi iWe; right of way through and entry upon all placer claims which are at n«; Lime of the notice of application before mentioned bond fide being worked by any free miner, for the purpose of cutting a channel and laying his flume therein, with such reasonable space for constructing, maintaining, and repairing the flume as may be necessary: Provided, that the owner of such last-mentioned placer claim shall be entitled to take and receive the gold or other minerals found in the cut so made; (e) The right to all the gold or other minerals in his flumes; (f) No person locating new and unworked or abandoned ground within the limits of such grant, after the notice above mentioned has been given, shall have any right or title as against such grantee to the ground so located. 1891, ch. 26, 103, and 1897, ch. 29, sec. 0. 82. A hold, flume, upon gr a. placer claim through which the line of the grantee's flume put in a bed-rock flume in his claim to connect with the grantee's 'ing the grantee ten days' notice in writing to that effect; but he the like grade and build his flume as thoroughly and of as strong •e used by such grantee. 1891, ch. 26, sec. 104. Claim-holder with bed-rock dder ich flui flume free from obstruction, and he shall t minerals found therein, but he shall be subject regard to cleaning up the flume, repairs, and othe: are interested, as may be adopted by such grante have the right at any time before the abandons partner of the grantee, by uniting his claim ar flume of the grantee, and taking an interest propc cede to the grantee; or he may abandon his claii ment shall enure to the use and benefit of the gra ! through a his 84. Th t lea of flume during the first a-eafter, until completion reduced at the discretion 100 feet to be laid the first year, 300 feet annually there- 85. Any free miner lawfully working any claim where a bed-rock flume exists shall be entitled to tail his sluices, hydraulics, and ground-sluices into such flume, but so as not to obstruct the free working of such flume by rocks, stones, boulders, or otherwise. 1891, ch. 26, sec. 107. 86. The grantee shall record his grant with the Mining Recorder within three days after obtaining the same, and pay for such record the fee provided in the Schedule to this Act; and he shall also pay to the Mining Recorder annually a rent of twelve dollars and fifty cents for each quarter of a mile of right of way legally held under such grant. 1891, ch. 26, sec. 108. 87. The interest of the grantee in his grant, and in all flumes and fixt connected therewith, shall be deemed to be a chattel interest equivalent t lease for the term of such grant. 1891, ch. 26, sec. 109. 88. Upon the expiration of the grant for a bed-rock flume, it may be extei for any further term not exceeding five years for any one extension, at the 1891, ch. 26, sec. 110. What use claim-holder may make of a Interest of grantee a chattel interest. MARTIN'S MINING CASES. Leases of u: Lea Crown land for Lieutenant 90. It shall be lawful for the Gold Commissioner, with the sanction of the r in Council, to grant a lease of any unoccupied or unre- mining served Crown land for placer mining purposes or for precious stone diggings for and precious any term not exceeding twenty years, on such terms and conditions as he shall stone diggings, think fit; and any free miner desiring to obtain a lease of any placer mining ground shall mark out such ground by placing a legal post at each corner, and shall post a notice on the post nearest to the placer mining claims then being worked in the immediate locality, and also on the office of the Mining Recorder, which notice shall set out— (1) The name of each applicant; (2) The locality of the ground to be acquired; (3) The quantity of ground; (4) The term for which such lease is to be applied for. 1896, ch. 35, sec. 5. Application 91- The free miner, after staking the ground and posting the notices as afore- forlease. said, shall, within thirty days, make application in writing, addressed to the Gold Commissioner, which application shall be in duplicate, with the plan of the ground on the back, and shall leave the same at the office of the Mining Recorder, which application shall set out— (1) The name of each applicant; (2) The number of each applicant's free miner's certificate; (3) The locality of the ground; (4) The quantity of ground; (5) The term of the lease desired; (6) The rent proposed to be paid. 1896, ch. 35, sec. 6. Plan in dupii- 92. On making such application the free miner shall deposit with the Mining ground Recorder, for the use of the Gold Commissioner, a plan of the ground, in triplicate. And every person making application for a lease of mining ground for my purpose under the provisions of this Act shall deposit the sum of twenty, dollars with the Gold Commissioner at the time the application is made. If the application is granted, the twenty dollars deposited to be applied towards the payment of the first year's rent, and the balance of the first year's rent shall be paid by the applicant within sixty days after the Gold Commissioner gives him notice of the execution of the lease, which notice .may be sent by letter to the applicant to his address; such address to be left with the Gold Commissioner when the application for the lease is made. If the application is not granted, the twenty dollars deposited is to be returned to the applicant; but in case the applicant fails to perform his part in accordance with his application, then the twenty dollars deposited shall be forfeited to the Government, and his application shall be void. 1896, ch. 35, sec. 7. sought tt leased to be filed. $20 deposit. Areas. Creek digi Other pla ground. } than five hundred yai 93. Applications shall not be for greater than the tances:— ,s In creek diggings on abandoned or unworked creeks, 1 Any other placer mining ground, eighty s extend along any creek or river mo diggings excepted; ie Precious stone diggings, ten acres; but the right to mine for precious stones shall not include the right to mine for gold or other precious metals, unless the ground be held also for that purpose separately, under the provisions of this Act. Provided always, that nothing in this Act shall be deemed to affect the right of any holder of a lease of placer mining ground to a renewal thereof, if such holder has substantially made and performed upon the ground the labour, work, and expenditure required by such lease as a condition of renewal thereof. 1896; ch. 35, sec. 9. APPENDIX A.—MINING STATUTES. 809- . A lease shall not be granted for any mining ground any portion of which Placer Act, aally occupied by free miners, unless with the consent of such occupiers; R.S.B.C.,c. 136- o lease shall be granted for any mining ground which is, in the opinion of old Commissioner, available for agricultural purposes. 1894, ch. 33, sec. 6. No lea''e . The Gold Commis :. 10. aner may, with the sanction of the Lieutenant- pje(j nor a~, r refuse any application for a lease of placer mining cultural grou and conditions of such application as he shall think Qold Comm 96. Every application for a lease of placer mining ground, 1 plan of the ground and the Gold Commissioner's report there warded by such Gold Commissioner to the Lieutenant-Governoi no lease shall .be granted on any such application without his ch. 35, sec. 11. 97. Every lease of mining ground shall be in writing signed by the Gold Leases t Commissioner and the lessee, and shall be in duplicate or triplicate, as the case writing, may require, and one copy of every such lease shall, as soon as possible after it is issued, be transmitted by mail by the Gold Commissioner issuing the same, to be filed in the office of the Mining Recorder in the mining division of the district in which the mining ground leased is situated. 1896, ch. 35, sec. 12. 98. Every lease shall provide for securing to the public reasonable rights of Content: way and water, and shall contain a covenant by the lessee to mine the ground lease. in a miner-like manner, and shall contain such covenants for the continuous working of such ground as the Gold Commissioner shall think reasonable, and shall reserve the right to free miners to enter on such ground and mine for veins ' or lodes, as defined by the " Mineral Act." 1891, ch. 26, sec. 121. 99. On the non-performance or non-observance of any covenant or condition Forfeitu in any lease, such lease shall be declared forfeited by the Gold Commissioner, lease, subject to the approval of the Minister of Mines, unless good cause be shewn to the contrary. After any such declaration of forfeiture, the mining ground shall be open for location by any free miner. No lease, whether made before or after the passage of this Act, shall hereafter be declared forfeited, except in accordance with this section. 1896, ch. 35, sec. 13. 100. Leases shall 'be granted for place mining only, and shall not be Leas assigned or sub-let without the written consen ; of the Gold Commis 1891, only Ax. 26, sec. 123. mini 101. When any placer mining ground is held under lease, and such mining j^r*"™ ot water ground shall have been efficiently worked, as required by the conditions of the w^round11 lease, to the satisfaction of the Gold Commissioner, and if at the expiration of s s the lease a portion of said mining ground remains still to be worked, the lessee may obtain an extension of the lease, upon the same conditions as the original lease, for such reasonable time as will enable him to work out such portion of said mining ground as still remains unworked, and the Gold Commissioner may, with the sanction of the Lieutenant-Governor in Council, grant such extension Extension. by memorandum indorsed on the lease: Provided, that whenever the mining ground so held under lease has been forfeited, abandoned, or worked out, and when the ditch or flume constructed for conveying water has a carrying capacity of not less than five hundred inches of water, and shall have cost not less than five thousand dollars, such ditch or flume shall remain the property of the owner thereof. 1897, ch. 29, sec. 3. 102. Any free miner, or two or more free miners, holding adjoining leases as Consolidation creek claims, may consolidate as many as ten leases, by filing with the Mining 0f leases held Recorder a declaratory statement containing the name of the company or part- as creek claims, nership which is to hold the consolidated lease, the location and size of each lease; and such statement shall be signed by the holder or holders of the leases to be consolidated. After filing such declaratory statement such free miner, or 810 MARTIN'S MINING CASES. [vol. Placer Act. free miners, shall be allowed in each and every year to perform, on any one or R.S.B.C.,c.l36 more of such leases, all the work that is necessary to be performed to hold all such leases. 1897, ch. 29, sec. 5. of river bed. 103. It shall be lawful for the Gold Commissioner, with the sanction of the Lieutenant-Governor in Council, to grant a lease for any term, not exceeding twenty years, of the bed of any river below low water mark for dredging pur- •p. , poses, for, a distance not exceeding five miles, upon such terms as he shall think Sfmgsi ™and fit: Proyided always, that every such lease shall reserve the right to every free ™;„,.o *„,.(■ miner or mining company to run tailings into such river at any point thereon, also to mine two feet below the surface of the water at low water mark, by putting in wing-dams, whether such free miner shall locate before or after the date of such lease; and it shall be lawful for the holder or holders of any lease or leases, whether granted before or after the passing of this Act, engaged in dredging for gold in any such river, at the time when they may be engaged in dredging, to cut into any bar, bench, or old channel on any of the banks of such river on which they hold leases, or mine in any bench or bank thereof during vided the same ground is not leased under the " Placer this or any other Act, or is not at such time being lers, the right being always reserved to free miners to con- s far as may be desired into any of such bars, banks, or rpose of conducting mining operations, either by sluice or rocker, and parties holding such dredging leases shall not in any manner interfere with any free miner or stop him from working any part of said river or benches, otherwise than by dredging, of which the holders of such leases shall have the full right. 1895, ch. 40, sec. 8. Dredgers—Protection. 104. It shall not be lawful for any free miner to construct wing-dams within one thousand feet of any dredger while working, nor to obstruct any dredger in below surface. And lessees may cut into bars, benches ining Act, 1891," irked by free min t-uct wing-dams a nches for the ] Mining Rec . 127. intment 100. Where mineral land is discovered in a part of the Province so situate ;order by that the provisions of this Act as to free miners' certificates and records of ■s them- mining property cannot be justly applied or enforced, by reason of there being t- no Gold Commissioner' or Mining Recorder in the locality, it shall be lawful for the miners of such locality to hold meetings at such times and places as may be agreed upon, and at such meetings, by a two-thirds vote, to appoint one of their number to issue free miners' certificates and to enter records of mining property, and such certificates and records shall be valid notwithstand- so- ■ ing any informality therein: Provided that all records so made, and all fees for the same in accordance with the Schedule to this Act, and a list of all free miners', certificates issued, and the date and term thereof, and the fees for the same, be forwarded to the nearest Gold Commissioner or Mining Recorder as soon thereafter as practicable. 1891, ch. 26, sec. 128. 108. Such free n forms, with duplicatt the office of the Min tificates shall be taken from a printed book of oils, one of which counterfoils shall be filed in der. 1891, ch. 26, sec. 130. APPENDIX A.- -MINING STATUTES. 11 keep the following bool (o) A book to be known (6) A book to be known (e) A book to be known (d)A book to be known (e) A book to be known sec. 131. as the " Record Book ;" as the " Record of Abai .s the " Record of Affidav s the " Record of Convey as the " Record bf Wat :ee miner, and upon receipt Record and rt ^.ct, the Mining Recorder record of irticulars required by said claims. 110. Upon the application of or on behalf of any all the particulars required by sec. 23 of this tall record any placer claim, by entering all the ,.„. ction in the Record Book, which entry shall be, as orm B in the Schedule to this Act. Upon the appli ly free miner, and upon receipt of all the particula is Act, the Mining Recorder shall re-record any placer claim, by entering all ie particulars required by said section in the Record Book, which entry shall !, as near as convenient, in the form C in the Schedule to this Act. The ining Recorder shall not make any such record until he has received all the trticulars required by sec. 23, and any record made in violation of this sec- m shall be absolutely void. 1891, ch. 26, sec. 132. 111. The Mining Recorder sha rence permit, and other privilege ammissioner in the Record Book. 1 record every lay- ,-ranted and forfeiti 1891, ch. 26, sec. 133. 112. Upon the receipt of a notice of abandonment, the Mining Recorder shall Record c cord the same in the Record of Abandonments, and file such notice, and write abandon toss the record of the claim affected by such notice, in the Record Book, the ord " Abandoned," and the date of the receipt by him of the notice. If only i interest in a placer claim is abandoned, and not the entire elaim, the emorandum in the record shall shew which interest is abandoned. 1891, ch. i Re ling Recorder shall record, •atory statements brought tc f Affidavits. 1891, ch. 26, affi-. . 136. i Min arder shall r ord, by copying out verbatim, in the tgages, bills of sale, contracts for and other documents of title, including powers of attorney, or other auth- is, to execute all or any of the above.description of documents when brought m for that purpose. 1891, ch.'26, sec. 137. 115. The Mining Recorder shall n property which may be brought to ments which may be brought to him lall file all such docu- 5 3 books shall shew x of record shall, during office hours, be open to public in- Books to be arge, and documents filed shall be open to public inspection open for ie fee set out in the Schedule to this Act. 1891, ch. 26, sec. inspection. led in the Mining Recorder's office, t the Mining Recorder, shall be recei iters therein contained. 1891, ch, 26, 812 MARTIN'S MINING CASES. [V- Placer Act, H9. Before issuing any free miner's certificate, or substituted certificate, or R.S.B.C.,c,136 making any entry in any book of record, .or filing any document, or making: any copy or extract therefrom, the Mining Recorder shall collect the fees pay- Fees to be able in respect thereof, as set -out in the Schedule to this Act. 1891, ch. 26, pre-paid. sec. 142. Recorder to 120. The Mining Recorder shall receive all applications and other, docu- receive docu- ments addressed to or intended for the Gold Commissioner, and forward the ment for same to the Gold Commissioner., 1891, ch. 26, sec. 143. Commissioner. To receive Ri- The Mining Recorder shall receive all deposits of money directed to money under be made by this Act, and apply the same as directed by this Act. 1891, ch. 26, Act. sec. 144. To collect 122. The Mining Recorder shall collect all rents collectible under the con- rent- ditions of any lease or other documents granted under the provisions of this- Act. 1891, ch. 26, sec. 145. Moneys col: lected to be' paid into Treasury. Recorder's office. Effect of es tablishing Record offic 123. The Mining Recorder shall forward to the Provincial Treasury all fees, rents, fines, penalties, and other moneys collected and obtained by him in accordance with the provisions of this Act. 1891, ch. 26, sec. 146. 124. It shall be lawful for the Lieutenant-Governor in Council to divide and subdivide any district into mining divisions, and to establish in each or either mining division a Mining Recorder's office. 1891, ch. 26, sec. 147. 125. Upon the establishment of a mining division and the opening of a Mining Recorder's office therein, under the authority of the last preceding section— (a) Such office, and none other, shall be the proper office for recording all placer claims, records, certificates, documents, or other instruments affecting claims, placer mines held as real estate, or placer mining property, situate within such mining division, and whenever by this Act, or any Act-amending the same, anything is required to be done at or in the.office of the Gold Commissioner or Mining Recorder of the district, it shall, if the same affects or concerns any claim, placer mine held as real estate, or placer mining property, situate within a mining division, be done at or in the office of the Mining Recorder of the mining division wherein such claim or mine, or other mining property is situate; (6) Upon the district or division of any Mining Recorder being divided or- subdivided into mining divisions, it shall be the duty of such Mining- Recorder to make, or cause to be made, a transcript of all the entries in all the books mentioned in sec. 109 of this Act, affecting claims, placer mines held as real estate, or placer mining property, situate in each newly created mining division, and to forward the same to the Mining- Recorder of such mining division, and such transcript shall be kept in such office as part of the records of such office, and all transcripts of such records, certificates, documents, or other instruments, shall, prima facie, be deemed to be true copies of the several records, certificates, documents, or other instruments of which they purport to be transcripts; and such- transcripts or copies thereof, when certified by the Mining Recorder of the mining division in whose office they are kept, shall be admissible in 1 Courts of Judicature in the Province. 1891, ch. 26, sec. 148. ing Recorder for a district or devolve upon the Gold Comm j Gold Commisstener to perfor arder's office shall be open a.m. to 4 p.m., and such t 1891, ch. 26, see. 150. APPENDIX A.—-MINING STATUTES. old C 128. It shall be lawful for the Gold Commissioner to perform the following Pov, acts in accordance with the provisions of this Act:— Con (a) He may lay over any or all claims, and may grant to any holder of a claim leave of absence for such period and reasons as he may think proper; (6) He may prescribe the number of miners who shall be required to work in prospecting a set of claims until gold in paying quantities is found; (c) For the more convenient working of back claims on benches or slopes, the Gold Commissioner may permit the owners thereof to drive a tunnel through the claims fronting on any creek, ravine, or watercourse, upon such terms as shall seem expedient: Provided that in tunnelling under hills, on the frontage of which angles occur, or which may be of an oblong or elliptical form, no party shall be allowed to tunnel from any of the said angles, nor from either end of such hills, so as to interfere with parties tunnelling from the main frontage; (d) He may mark out a space of ground for deposits of leavings and deads from any tunnel, claim, or mining ground, upon such terms as he may think just; ts of a clai t to exceed 100 ft " bench diggings " beyond the t square; </) He r case of disputed boundaries o surveyor to mark and define the same, and ci thereof to be paid by either or both of the pa: (g) He may permit or order mining posts to be (ft) 'He may summarily order any mining works to be to interfere with or endanger the safety of the put or highway, or any mining property, mineral clair rock drain, or bed-rock flume; and any abandonee order be either filled up, or guarded to his satisfai the party who may have constructed the same, or, such terms as he shall think fit; -ed; absence, upon a free miner such right of jssary for the working of seem reasonable; (i) He may, upon application made to him, allo^ entry upon any adjacent claim as may be n< his claim, and upon such terms as may to hin (j) He may grant licences and rights of v ing drains or tunnels, and may exercise . Part III. of this Act; (k) He may grant rights of way for the purpose of constructing a bed-rock flume, and may extend the grant at its expiration, in accordance with Part VI. of this Act; (I) He may grant leases of placer mining ground, and he may grant renewals of such leases, and exercise all such powers as are specified in Part VII. of this Act. 1891, ch. 26, sec. 151, and 1897, ch. 29, sees. 4 and 6. 129. Notwithstanding anything contained in the " Gold Mining Amendment " Act, 1873," or in any Crown grant issued under the said Act, or under this A or any other Act, it shall be lawful for the Gold Commissioner, in his discre- " tion, and with or without any terms or conditions, to allow to the owners of placer claims all such rights or privileges in and over mineral or other claims held as real estate as may be allowed in and over claims not so held; and owners of .claims held as real estate shall be entitled to the same rights and privileges as owners of claims not so held. 1891, ch. 26, sec. 152. MARTIN'S MINING CASES. Commissioner 131. The Gold Commii to take deceas- 0f any deceased free mine ed miner s worked, or dispense therei property. ith a Miner's intes- 132. The Gold Commissioner, or any pers tate estate of charge 0f an the property of any deceased fr< t b ad of admmistratlon or probate of the will, if anj tered by'the S any free miner shall die intestate, and the va Gold Commis- deceased free miner is less than three hundred sioner free. for the Gold Commissioner to obtain from an but in such case the Gold Commissioner may sonal estate of the deceased, and do all things i act in all respects as if letters of administrati deceased free miner had been granted to st Gold Commissioner shall produce and pass his he shall undertake the administration, before the district. 1891, ch. 26, sec. 155. Judge of the County < Jurisdiction, Procedure, Forms, and Costs. County Courts 133. In addition to the jurisdiction and powers given to County Courts the "County Courts Act," and other Acts, every County Court shall'have a exercise, within the limits of its district, all the jurisdiction and powers of Court of Law and Equity— of Courts of Equity in a] (1) In all personal actions, where the debt or damages ly out of the business of mining (other than coal n exercise of or interference with any right, powe: 7 other Act relating t ilaimed arise direct- ining), or from the ilege given, or (3) In all actions for supplies to persons engaged in min supplies were bought, contracted for, or supplied, or wer been bought, contracted for, or supplied, for mining puri sumption by persons engaged in mining or prospecting; (4) In all actions of trespass on or in respect of mineral clai ing property, or upon or in respect of lands entered or t claimed to have been entered or trespassed on, in searcl or working minerals (other than coal), or for any other connected with the business of mining (other than coa the exercise of any power or privilege given, or claimed this Act, or any other Act relating to mining (other tha (5) In all actions of ejectment from mineral claims or ot perty, or from lands entered, or claimed to have been en ing for, mining, or working minerals (other than coal), pose directly connected with the business of mining claimed to have been entered, under some power, right oi or obtained under the provisions of this Act, or any ot to mining (other than c—' mining) ; APPENDIX j 3 of injunctions, where the officers, shall have the same duties, powers, privileges, and authorities in actions and suits, and other proceedings brought under the mining jurisdict of the County Court, as they now have, or at any time hereafter may hi in actions and suits and other proceedings brought under the ordinary ju diction of the County Court and the provisions of all Acts for the time be in force regulating the duties and powers of County Courts and Cou Court Judges, Registrars, Sheriffs, and other officers, and regulating the p: tice and procedure in County Courts, and all rules and orders for the t being applicable to the ordinary jurisdiction of a County Court, shall, so as practicable and not inconsistent with this Act, apply to the mining juris tion of the County Court. 1891, ch. 26, sec. 158. 136. Wh beyond the shortest reas jerned, and it shall be proceedings returnable her process in any County Summonses mable time necessary in the be made re- awful for the Registrar to turnable as orthwith, or at any other soon as ag actions or suits the Court may decide the question at issue Court may de- l dispute, and such decision shall be entered as in ordinary cide the ques- same virtue and effect as if rendered in Court. 1891, ch. 26, tion on ground found by mining cause or suit, either party tried by a jury, and the Judge mi ait or other proceeding, direct al' 1891, ch. 26, sec. 162. may require that the issues issues of fact , before delivering judgment may be tried or any issues of fact to be by jury. 140. In all actions, suits, and other proceedings within the mining jurisdit tion of the County Court, the Judge may order that costs be taxed orf th higher or lower scale allowed by the County Court Rules; or if he shall cor sider the case of sufficient importance, he may order that costs be taxed a in the Supreme Court, and the costs so ordered shall be costs recoverable i such action, suit, or other proceeding. 1891, ch. 26, sec. 163. 816 Placer Act, 141. Every County Cour R.S.B.Cc.136 reference to real estate held under this Act, and notwithstanding Jurisdiction of powers and authorities to decide all County Court owners thereof, or between the ov w'thQ between mining joint stock companies n them and the company, in the erning claims not being real estal relating to such matters or dispui MARTIN'S MINING CASES, ing jurisdiction in minin. 3stab 1891, ch. : ec. 164. eeedin 142. Any County Court Judge having jurisdiction ir direct the issuing of writs of capias ad respondendum, '- special orders for the arrest and detention of judgment c • which by law he has jurisdiction over the subject-matter and subject to' such conditions as the Judge of the Sv usually require in applications of a similar nature. 1891, trate, or before any Judge of a Court having jurisdiction in mining disputes, be ■ liable to a fine not exceeding two hundred and fifty dollars, or to imprisonment, with or without hard labour, for any term not exceeding three months. 1891, ch. 26, sec. 167. 145. All fines and penalties imposed or payable under this Act may be recovered by distress and sale of any mining or other personal property of the offender, and in default by imprisonment, with or without hard labour, for any term not exceeding three months. 1891, ch. 26, sec. 168. Act shall be paid into the Provincial Treasury. 1891, ch. 26, sec. 169. 147. Nothing herein contained shall, save where such intention is expressly [ stated, be so construed as to affect prejudicially any mining rights and interests acquired prior to the passing of this Act; and all mining rights and privileges heretofore and hereunder acquired shall, without the same being expressly stated, be deemed to be taken and held subject to the rights of Her Majesty, j Her heirs and successors, and to the public rights of way and water. 1891, ch. 26, sec. 170. 149. Affidavits and declarations made under the provisions of this Act shall I be made before some Judge or Registrar of a Court of Record, or before some Gold Commissioner, Mining Recorder, Stipendiary Magistrate, Justice of the Peace, Notary Public, or Commissioner for taking Affidavits. 1891, ch. 26, APPENDIX A.—MINING STATUTES. Rules and Regulattt Plac • Act, 150. The Lieutenant-Governor in Council may make such orders as are Lieut.-Gover- deemed necessary from time to time to carry out the provisions of this Act nor may make according to their true intent, or to meet the cases which may arise and for orders to carry which no provision is made in this Act, or when the provision which is made out provisions is ambiguous or doubtful; and may also make regulations for relieving againstof the Aot- forfeitures arising under sec. 9 of this Act; and may further make and declare any regulations which are considered necessary to give the provisions in this And to relieve -clause contained full effect; and from time to time alter or revoke any order against for- or orders or any regulations made in respect of the said provisions, and make feitures under others in their stead; and further impose penalties not exceeding two hundred s- 9- dollars, or not exceeding three months' imprisonment for violation of any regulations under this Act; and further provide that any statement or returns required to be made bysaid regulations shall be verified on oath. Every order c regulation made by virtue of the provisions' of this section shall have force and jr" effect only after the same has been published for two successive weeks in the p British Columbia Gazette; and such orders or regulations shall be laid before the Legislative Assembly within the first fifteen days of the session next after the date thereof. 1895, ch. 40, sec. 13. , Such r< Taxation of Mines and Moneys invested therein. 151. Notwithstanding anything in this Act, mines and moneys invested Mine therein shall not be exempt from taxation, but shall bear such rate as may be mone imposed by any law in force in the Province. 1895, ch. 40, sec. 12. sted m vaxatfoV1 152. There shall be levied and collected from the owner or occupier of every . , ' . mineral or placer claim of which a Crown grant has issued, including Crown 25 centg ner grants issued under authority of an Act made and passed in the 36th year of acre t0 Dq Her Majesty's reign intituled " An Act to amend the ' Gold Mining Ordinance, levied on 1867,' and the ' Gold Mining Amendment Act, 1872,' " an annual tax of twenty- every claim five cents for every acre and fractional part of an acre of land conveyed by the held under grant, payable on the 30th day of June in each year.' Such tax shall form a Crown grant, charge upon the claim. The Assessor appointed under or by virtue of any existing Assessment Act, or ^ny Collector appointed under the, " Provincial Revenue Tax Act," is hereby authorized, as to the mineral or placer claims situate within the district for which he is appointed, to collect and receive the tax. In the event of the tax not being paid to the Assessor or Collector, the In default of Gold Commissioner may, in his discretion, cause the claim upon which the tax payment, is charged to be offered for sale by public auction, of which sixty days' notice claim may be shall be posted upon the principal Court House of the district in which thes°W. claim is situate, and in one newspaper, if any, published in such district, and may sell such claim, receive the purchase money, and execute a conveyance thereof to the purchaser. The purchase money shall be applied in payment of the „ DUrchase expenses of advertising and the payment of the tax, and any surplus shall be money applied paid into the Treasury in trust for the owner of the claim. In the event of there being no purchaser, or if the price offered shall not be sufficient to pay the tax and expenses of advertising, the land shall absolutely revert to the ' Province, and the Crown grant thereof shall be deemed void. The Assessor or Owner may be Collector may, before offering the claim for sale, sue the owner or occupier for Sued for tax. the tax, in a summary manner, before any Justice of the Peace, who may adjudge the same to be paid; and in default of payment, the amount due, together with the costs, may be recovered by distress of the goods and chattels of the person against whom the tax may be recovered: Provided, that if the Proviso for re- owner of any such mineral or placer claim shall establish, to the satisfaction mission of tax of the Gold Commissioner, Mining Recorder, or Assessor and Collector of the dis- on $200 having trict in which the claim lies, that the sum of two hundred dollars has been been expended expended thereon in labour or improvements in any one year, then the tax shall on claim, not be levied in respect of such claim for such year. 1896, ch. 34, sec. 163. APPENDIX A.—MINING STATUTES. Located in the partnersh: The members of the pat The length of eac Recorded for Located on the Recorded on this 1S91, ch. 26, D. To all whom it n Take notice tl Dated 1891, ch. 26, E. liner and the owner of for any damage he may do, h a. tunnel (or drain) from nted on these express conditions :- Applic i for Public Dra We [Set out names in full of each applicant], the undersigned free miners, do hereby apply for a public drain grant, to enable us to construct a drain [Set out nature and extent of proposed drain], and to charge the following tolls to all persons using such drain- [Set out proposed tolls], such grant to run for years, and we do further apply for the following privileges to be included in such grant:— [Set out privileges sought to be acquired.] Dated 1891, ch. 26, F. For every free min r's certifica te issued to an individual ....$ 5 00 For every free min te issued to a joint stock companv :- (a) Havi 1 capital of $100,000.00 or less 50 00 (6) Havi [ capital exceeding $100,000.00 100 00 Every substituted t Recording any clai oi (for each year) S20 MARTIN'S MINING CASES. [vol. Placer Act, Re-recording any claim (for each year) $2 50 R.S.B.C.,c.l36 Recording any " lay over," or every other record required to be made in the " Record Book " 2 50 Recording every abandonment, including the memorandum to be written on the record 2 50 For any other record made in the " Record of Abandonments." 2 50 For recording every affidavit, where the same does not exceed three folios of 100 words 2 50 For every folio over three, 30 cents per folio. The above rate*shall be charged for all records made in the " Record of Affidavits." For all records made in the " Record of Conveyances," where the same ■ do not exceed three folios 2 50 For every folio over three, a further charge of 30 cents per folio. For all copies or extracts from any record in any of the above-named books, where such copy or extract shall not exceed three folios, per copy 2 50 Where such copies or extracts exceed three folios, 30 cents per folio for every folio over three. For filing any document 1 00 For every lease 5 00 1891, ch. 26, I. and 1897, ch. 29, sec. 7. TXTHEREAS V T the notice of appli claim is required to be adv And whereas a large number of such n faith and under a mistake as to the me appears to have resulted therefrom, it is dt certificates of improvements so far as such notict Therefore, Her Majesty, by and with the ad lative Assembly of the Province of British Colui 1. This Act may be cited as the " Mineral CI 2. Any notice heretofore inserted in the Briti newspaper, and purporting to be published unde of the " Mineral Act," shall, unless heretofore a " Mineral Act." [16th M arch, 1898.] ection '(e) of section 36 of the " Mineral lication for a certificate of improvemen advertised as is therein prescribed; ttCoTaanaineral become customary to include in one n se has been held illegal; otice a number ces have been published in good ing of the law, and as no injury •able to validate applications for ices affect the validity thereof; . Hereafter the said sub-section shall i rate publication of a copy of a notice :e such notice shall contain the names of APPENDIX A.—MINING STATUTES. -. Chap. 33. ' the " Mineral Act." [20th May, 1898.] HE the words after s the " Mineral Act Amendment Act, 1898." eral Act " is hereby amended by s ing out all Amends s. 5 d including (building stone). ection (a) Amends s. j (a) Any free miner desiring to locate a fractional mineral claim shall, sub- Si ject to the provisions of this Act with respect to land that may be used for0,' mining, enter upon the same and locate any plot of ground lying between and bounded on opposite sides by previously located mineral claims, and known by the locator to measure less than fifteen hundred feet in length by fifteen hundred feet in breadth, as a fractional mineral claim; such fractional mineral claim need not be in rectangular form, and none of the angles need necessarily be right angles nor the lines be meridional, and the lines of the previously located mineral claims (whether surveyed or not) between which the fractional mineral claim is located may be adopted as the boundary of the fractional mineral claim. " In defining ured ereby repealed and t " 16. A mineral claim shall be marked by two legal posts, placed as near as JV possible on the line of the ledge or vein, and the posts shall be numbered 1 and " 2, and the distance between posts 1 and 2 shall not exceed fifteen hundred feet, the line between posts Nos. 1 and 2 to be known as the location line, and upon posts Nos. 1 and 2 shall be written the name given to the mineral elaim, the name of the locator, and the date of the location. Upon No. 1 post there shall be written, in addition to the foregoing, " Initial Post," the approximate compass bearing of No. 2 post, and a statement of the number of feet lying to right and to the left of the line from No. 1 to No. 2 post, thus:—' Initial post. Direction of post No. 2. feet of this claim lie on the right, and feet on the left of the line from No. 1 to No. 2 post.' to be put on No. 1 and No. '. ing Recorder, in writing, at th of the record of such claim. "All the particulars required furnished by the locator to the Min is recorded, and shall form a part "When a claim has been located, the holder shall immedi between posts Nos. 1 and 2 so that it can be distinctly s locality, by blazing trees and cutting underbrush, and in a is neither timber nor underbrush he shall set legal posts or earth or rock not less than two feet high and two feet in diameter at base, so that such line can be distinctly seen. " The locator shall also place a legal post at the point where he has found rock in place, on which shall be written discovery post: Provided that when the •claim is surveyed the surveyor shall be guided by the records of the claim, the sketch plan on the back of the declaration made by the owner when the elaim was recorded, posts 1 and 2, and the notice on No. 1, the initial post. 1 be ark the line a timbered where there anuments of MARTIN'S MINING CASES. " It shall not be lawful to m< the Provincial Land Surveyor j exceeds 1,500 feet in order to pli line of location. When the dis 1,500 feet, the Provincial Land APPENDIX A.—MINING STATUTES. ing within the curtilage i land under cultivation, or tion shall be set out the i certificate was issued, an words written on the No. as accurate a description A description of the land state whether it is vacant with the names of the c applicant on the back of ed in feet, of the fraction y land fall- Mi rd, or any men id declara- tnd date of re the said l. Amend t Act, 1898 ether located be Core or after the passage of th it shall contain, a etween the previo usly located mil id in the affidavi claim was record t and by the sket h plan made by shall exceed fifte en hundred feet i a length; "(f) Provided that when a fractional mineral claim has been located between previously located and unsurveyed mineral claims, if when any such previously located mineral claims are surveyed, any of the posts of the fractional mineral claim are found to be on the previously located mineral claims, the location of such, fractional mineral claim shall not be invalid by reason of the location posts of the, fractional mineral claim being on such previously located mineral claims, and the owner of such fractional mineral claim may, by obtaining the permission of the Gold Commissioner of the district, move the posts of the fractional mineral claim and place them on the surveyed line of the adjoining previously- located mineral claims: "The sub-sec. (a) of sec. 15 and sub-sees, (d), (e), and (/) of sec. 16 of s Act, shall apply to all fractional mineral claims located, and to the ■veys of fractional mineral claims made after the passing of this Act, and dl also apply to the completed surveys of fractional mineral claims the field- :es of which have not yet been accepted by the Department of Lands and irks, notwithstanding anything hereinbefore enacted. "(g) Provided that the failure on the part of the locator of a mineral claim to comply with any of the foregoing provisions. of this section shall not be deemed to invalidate such location, if upon the facts it shall appear that such locator has actually discovered mineral in place on said location, and that there has been on his part a bond fide attempt to comply with the provisions of this Act, and that the non-observance of the formalities hereinbefore referred to is not of a character calculated to mislead other persons desiring to locate claims in the vicinity; " (h) Provided that, in regard to fractional mineral claims, the Lieutenant- Governor in Council may make such orders as are deemed necessary from - time to time to carry out the provisions of this Act, according to their MARTIN'S MINING CASES. Amends s. 5 Record of ce 5. Section 24 of the said Act is hereby amended by adding the followir "Provided that if said free miner shall have done the work within the J year, and if he shall, within thirty days after t e effect i i for obtaining and i additional fee of ten if recorded within the i hundred dollars ($100) be done in any one year •tificate of the work done Work to be done, etc., before certificate of improve- year. " Provided, further, should any free miner i ss his claim during any one year to the value of or more, in excess of the amount of work requirec by this Act, he shall have the right of recording e to the value of each one hundred dollars ($100), work for each of such additional year or years, by paying the proper recording fee for recording each of such certificates of work, and he shall be exempt from performing assessment work for each year covered by such record, and the certificate of work shall be issued and recorded accordingly." 3> 6. Section 35 of the said Act is hereby repealed, and the following substituted in lieu thereof :— " 35. Any lawful holder of a mineral claim shall be entitled to a Crown ' grant thereof on payment to the Government of British Columbia of the sum of five hundred dollars in lieu of expenditure on the claim, or if the intending purchaser shall have performed assessment work in accordance with sec. 24 of the said Act, and paid any sums of money in accordance with sec. 25 of the said Act, such assessment work and payments of money may be considered as part payment of the above sum of five hundred dollars, and on payment in money of the balance of said sum of five hundred dollars the said intending purchaser shall be entitled to said Crown grant. The intending' purchaser shall comply with all the provisions of sec. 36 of the said Act, except such as have respect solely to the work required to be done on claims." 6> ' 7: Sub-section (a) of'sec. 36 of the said Act is hereby repealed, and the following substituted in lieu thereof:— " (a) Done, or cause to be done, work on the claim itself in developing a mine, and paid money, together amounting to the value of five hundred dollars, exclusive of ail houses, buildings, and other like in For the purpose of this section, work done on the claim by i or predecessors in title shall be deemed to have been done by the applicant who receives a transfer of such claim." >aled, nd the "(g) Filed with the Mining Recorder— Re-ei s;37. 9. Section 37 of the said Act is repealed and the following substituted:— lertificate of improvements when issued as aforesaid shall not a any Court peached except "(2) In case any perso for fraud. to possession of the mineral claim referred to Adverse claim- of improvements or any part thereof, or to tl ant. shall, within sixty days after the publication any ground except that of fraud, hall claim an adverse right by special o the Suprem of possessioi .] APPENDIX A.—MINING STATUTES. E the notice referred to in sec. 36 hereof (unless such time shall be extended Mil aurt upon cause being shewn), commence an action in men itish Columbia to determine the question of the right enforce his said claim, and shall file an affidavit, to ' ' ' uiaue uy uie person asserting the adverse claim, and setting forth the natui boundaries and extent of such adverse claim, together with a map or plan thereof, made and signed by a Provincial Land Surveyor, and a copy of the writ in said action with the Mining Recorder of the district or mining division in which the said claim is situate within twenty days from the commencement of said action, and shall prosecute the said suit with reasonable diligence to final judgment, and a failure to so commence or so to prosecute shall be deemed to be a waiver of the plaintiff's claim. After final judgment shall Certified cop have been rendered in the said action the "person or anv one of the persons of Jutgr2fni entitled to the possession of the claim or any part thereof, may file a certified may be Ued copy of the same in the office of the Mining Recorder. After the filing of the rwineate 0f said judgment, and upon compliance with all the requirements of the next pre- improvement ceding section, such person or persons shall be entitled to the issue to him o them of a certificate of improvements in respect of the claim or the pon thereof which he or they shall appear from the decision of the Court rig] to possess: Provided that this section shall not apply to any adverse cl filed or action to enforce the same commenced prior to the date of this coming into force, but the same shall be continued in the same manner as if Act had not been passed." s hereby repealed and the following i S judg- veyed within When st " 127. The owner of a mineral claim who has had his claim sua one year from the date of the record of the claim, or if the claim before the passing of this Act, then if surveyed before the fir&t day of Ma; 1899, and has filed in the office of the Mining Recorder in the Mining Divisio in which the claim is situated, a declaration by a Provincial Land Surveyo stating that he has surveyed the claim as required in sUb-sec. (c) of section c of the 'Mineral Act,' and that he has delivered two plats of the claim an a copy of the original field-notes to the owner of such claim, then the ownt of such claim shall be entitle-fl to have the cost of such survey, not to excee one hundred dollars, counted as work done on the claim." 11. In any adverse proceedings hereafter brought before the Court undt the " Mineral Act," each party to such proceedings shall give affirmative evii ence of title to. the ground in controversy, and if such title shall not be e'sta lished by either party the Judge shall so find, and judgment shall be entere according to such finding without costs to either party. ral Act" is hereby repealed, and t i folk "128. The owner of a mineral claim (located on waste lands of the C or on lands not already occupied for other than mining purposes) for wl Crown grant has issued or may hereafter issue, shall, so long a# the si rights thereof remain in the Crown unencumbered and unreserved, be entit receive a Crown grant of such surface right, on payment to the Goven of British Columbia of the sum of five dollars per acre for such land, fee of five dollars for the Crown grant." 13. "2. I, in developing a mine, i least five hundred doila marked 'A.'" have done, or caused to be done, i l the said claim the value of at MARTIN'S MINING CASES. [VOL. iserting s hereby repealed, and the following e Penalty for altering, etc. legal post. tl " 47. If an adverse claim shall only affect a portion of the ground for which a certificate of improvements is applied, the applicant shall nevertheless be entitled to a certificate of improvements for the undisputed remainder of his claim, upon complying with the requirements of this Act." 16. Everyone is guilty of an offence against this Act, and liable, on summary conviction before two Justices* of the Peace, to imprisonment for a term not exceeding six months, or to a fine, not exceeding two hundred and fifty- dollars or to both, who wilfully pulls down, defaces, alters, or removes any legal post lawfully erected, planted, placed, or standing, to mark the boundaries or location of a mineral claim, or any writing by law required to be thereon. ?age of this Act, the Chief Commiss \ cause the duplicate field-notes of the s •own grants have been issued, or may irence, in the office of the Mining Rec ch the mining claims are situated. and H'ER MAJESTY, by an . sembly of the Provi . This Act may be cited a K£ [20th May, 1898.] the "Placer Mining Act (1891) Amendment Act, 1 2. "Section 9 of the said Act is hereby amended by the addition thereto of the following proviso :— " Provided always, that if any person or company shall acquire, by purchase- or otherwise, any mine or placer claim, or interest therein, and it shall appear that some person or company through whom he or it claims title has neglected ' to take out or keep up a free miner's certificate, according to the provisions of this Act, such person or company acquiring such mine or placer claim, or ;s interest therein, may, within one month from the time when he or it shall first acquire knowledge thereof, or if knowledge already acquired within one month after this Act becomes law pay to the Recorder of the Mining Division in which the claim affected is situate the fee or fees which ought to have been paid by such person or company in default as aforesaid, \ and thereupon the title of such person or company so acquiring the said mine or placer claim, or interest therein, shall be deemed to be and always to have been as good and effectual as if no such default had occurred; but this last proviso shall not affect litigation pending at the passage of this Act." s hereby repealed and the follow-! " 102. Any free miner, or two or more free miners, holding adjoini s creek claims, or leases of any other placer mining grounds, may ce 3 many as ten leases, by filing with the Mining Recorder a declaratt ing leases of Con one holding, of le ing Recorder exc< partnership ac t such declaratory statement, such free miner, or fn d in each and every year to perform on any one or mo work that is necessary to be performed to hold all su> grant that has-been made for the working of any one • the consolidation of such leases, be appurtenant to ai ie of such consolidated leases; and provided- further, th ses have been consolidated into one nolding, as provid t proi t that expended in working each of such leases each y •r or holders of such leases may, in lieu of the required expendi- stuch leases in each year, pay to the Mining Recorder of the aggregate amount required to be so expended in work on the 58, andireoeive from such Recorder and record a receipt for such lyment and record thereof in any year shall relieve the person : the ; and f 9.] h-jbsss&s gislati ndment Act, 1899." g y repealed and the E its of age and is a ges of a free miner % » take out Corporation; :orporated, entitled to vince, and such rights. i of such cancellatii ;h authorization may at i such company or cor- ertificate under this Act, MARTIN'S MINING CASES. free miner's certificate already taken out shall remain in force u The word " person " in this section shall include only such coi licences "(3) A fri to do by this sectirai\a°ex-° "(4) A free miner's certificate issued before the coming into force of this isting licences, section, the holder of which is not a British subject, shall not entitle the person holding the same to take up, record, or acquire any interest in any claim under the ' Placer Mining Act,' but such certificate shall be valid only with regard to claims recorded under the ' Placer Mining Act' prior to the coming into force of this section, and as to which the holder of such certificate was, prior to the coming into force of this section, the owner, either wholly or in part. Any such certificate may be renewed, but such renewed certificate shall only be valid with regard to claims recorded under the ' Placer Mining Act £ under the circumstances in this sub-section stated. Free miners not to hold "(5) No free miner, after the coming into force of this section, shall hold claims in trust any claim under said ' Placer Mining Act,' or any interest therein, as trustee for unauthoriz- or otherwise, for any person who is not a British subject, or for any corporation ed peisons. not authorized to take out a free miner's certificate as above provided. not to apply to "(0) This section shall not apply to persons to whom the Lieutenant- dredging Governor in Council may, under the provisions of the ' Placer Mining Act,' grant leases or a lease for dredging, and for what is known as hydraulic mining, as distin- tiydrautie guished from ordinary placer sluicing." Provisions of c. 136 subject 3. All the provisions in said c to this Act. of free miners shall be subject to 32 Vict. Chai ■ Amend the " f British Columbia, ena 3 the " Mineral Act Ante "4. A free miner's certificate shall run from the date thereof and shall i- expire at midnight on the thirty-first day of May next after its date, or some subsequent thirty-first day of May. Only one person or joint stock company . shall be named in such certificate. The fee payable therefor shall be as provided in the schedule of fees to this Act. Free miners' certificates may be issued by e any Gold Commissioner or Mining Recorder." " 5. Any free miner's certificate shall be in the following form:— DIX A.—MINING STATUTES. " BRITISH COLUMBIA. to all the right day of " Issued at- e of officer i ' day immediately pre6ed- ing the day oi which certifi- dng same.)" «Lan£.famecpnor theret°. and not later than the thirty-Ren A " 4 ,^6 thirty-first day of May is a holiday, then on the next cert ™L i ? a ^oll<Jay> obtal11 ^om the proper officer, on payment of the proper fee, a free miner's certificate running from midnight on the thirty-first day of May in any year to midnight of the thirty-first day of May next thereafter, or any subsequent thirty-first day of May. 4. In case any person should allow his free miner's may obtain from the proper officer, upon payment of a . special free miner's certificate. Such special certificate shallliave" WTftect'of w l reviving the title of the person to whom it is issued to all mineral claims which such person owned, either wholly or in part, at the time of the lapse of his lormer certificate, except such as under the provisions of the " Mineral Act" nad become the property of some other person at the time of the issue of sucn special certificate, and shall also operate as a free miner's certificate until midnight of the thirty-first day of May next after its issue. In the case of a company the fee for such special certificate shall be three hundred dollars. Such certificate shall be in the following form: " BRITISH COLUMBIA. " Special Fbee Min ;'s Certi ruble.) "This to certify that ne the sum of (fifteen ntitled to all the rights a day of day of May, A.D. three the' " No. . Form of has paidsPf>ialcert''"- ly be), and is e- i midnight of *insert here of the thirty- the date on which certifi- "(Signature of officer i after * . Section 9 of said ch. 135 is hereby amended by striking out all the v l the twenty-first line thereof. of 6. Sections 8, 10, and 11 o i hereby repealed. fault in keeping up certificate.) Repeals ss. 8, r. . . 10 and 11. I. As soon as a free miner has done and recorded work upon a mineral claim When $500 of as provided in sec. 24 of said ch. 135 to the extent of five hundred dollars, or work done and has paid the sum of five hundred dollars and recorded the same, as provided by certificate of sec. 25 of said ch. 135, or has made up said sum of five hundred dollars partly improvements in one way and partly in the other, and has applied for a certificate of improve- aPuued f°r> no •ments as provided by sec. 36 of said ch. 135, it shall not be necessary to do any™*lbedone while certifi- . 830 MARTIN'-S MINING GASES. [VOL. cohere with- 8. All the powers conferred upon Gold Commissioners by withmmthe ill? ^^^^o^^T^^^t^c 8 of cl 33 of the Pe-enaete's. Statutes of 1898, is hereby struck out, and'the following subs tituted: ~ Notice of "..^ \^&vit ^ tbT holderTf thTclaim, or his agei e Form G and ^dEuSKtomto of the Mining B border the. copiesf Re-enacts s. 40 10. Section 40 of said ch. 135 is hereby repealed, and .tl e follov, ing substi- Application "40. The holder of a mineral claim for which a certfflca e of im provements for Grown has been granted and recorded, shall make application to the grant. enclosing his certificate of improvements, the Crown grant the Mining Recorder's certificate, Form I, the field-notes affidavit, Form G, within three months from the date of sue cate of im- time, such certificate of improvements shall lapse and becom eTbsoh M^voHL" in conn ection with1 entitled to diction, for of his propor- the proportionate part of said work or money which should tion of assess- paid by such co-owner. ment work. P y Amends s. 32. 12. Section 32 of said ch. 135 is hereby amended by add ing thei eto as sub-?. sec. (2) the following:— Re-location fee "(2) A fee of ten dollars shall be paid for such permiss Amends s. 37. 13- Sub-section (2) of sec. 37 of said ch. 135, as enacte d by se . 9 of said ch. 33, is hereby amended by inserting after the word " actio Proceedings to line thereof, the words "(unless such time shall be extended al order of veTsTclaini the Court upon cause being shewn.)" ^ A d 12" ' 14- Section 127 of said ch. 135, as enacted by sec. 1C of 'ch 33 of the tobTcountea ^tS^\SS%^S^'^&&'Q^oT^^o^ years," and ubstituting on claim. therefor the figures " 1900." Amends s. 143 15. Section 143 of said ch. 135 is hereby amended by stri the words lieve against sec. 9 of this Act," in the fifth, sixth, and seventh lines thei eof. APPENDIX A.—MINING STATUTES. eg miner's certificate for a period for less tl g every abandonment, including the memorar dollars instead of two dollars and fifty cent i grant, ten dollars instead of five dollars. 18. The Minister : Mines may provide for keeping a register of all free d ■ miners' certificates issued in the Province, and for all persons issuing the same m to make returns to him for that purpose. Such Register shall shew number of ce certificate, date of issue, and time for which same was in force, and shall be properly indexed. Any person shall be entitled to search same upon payment of a fee of twenty-five cents for each name, and to receive a certificate as to any name under the hand of the Deputy Minister of Mines or any person appointed by the Minister of Mines for that purpose, upon payment of 'a fee of fifty cents. , wn gra ms shall shew the 20. Nothing in this Act contained shall affect anything done or suffered, i any right, title, or interest acquired or accrued before the coming into force I this Act, or any legal proceeding or remedy in respect of any such thing, righ title, or interest. 21. This Act shall come into force on the first day of May, A.D. 1899. 2. Section 8 of ch. 134 of the Revised Statutes of British Columbia is hereb: •amended by inserting after the word " shall," in the sixth line thereof, the wore "forthwith," and by adding thereto the following sub-sec. (a) — "(a) It shall be the duty of the Inspector to forthwith post lip, or cause tt be posted up, in a conspicuous place at the mouth of the mine* or at some othei conspicuous place thereon, a copy of such notice in order that workmen about said mine may become aware of the contents thereof." and 3. Section 10 of said ch. 134 is hereby amended by striking o or," in the fourth line, and substituting therefor the word " and.' : the % duct thereof is 4. Section 13 of said ch. 134 is hereby repealed, and the following substituted c therefor:— ' " 13. No person shall be employed underground in any metalliferous mine for ? more than eight hours in every twenty-four hours." 832 MARTIN'S MINING CASES. Insp. of Met. 5. Section Min. Amend- " six," in the i ment Act, 1899 Amendss 23 6- Tlle following section is hereby added to said ch. 134:— Plans of mine. 230. Any adjoining owner may apply to the Inspector for the purpose of Inspection of learning whether such mine is being worked into his territory, and upon such plans by In- application being made the Inspector shall examine the plans of such mine, and specter to ^ necessary examine the workings of such mine, and make report thereon to uhether^n- such adjoining owner as to whether his territory is or is not being encroached taking place. i. 25 of said chapter 134 is hereby amended by adding 9. Sub-section (7) of said sec. 25 is hereby amended by adding thereto the und^g-no «**"** i,ngine bouses i§ Sub-section (12) of said sec. 25 is hereby amended by adding thereto the to be erected f 0llowing : from mouth of « Slides or conductors for shafts which are at least one hundred feet deep Amends sub- sha11 either be iron shod or a11 iron-" section (12) of s. 25. 11. Sub-section (13) of said sec. 25 is hereby amended by adding thereto the Slides. following:— Amends subsection (13) of " All vertical shafts of a depth of at least fifty feet shall be provided with a ^,2S>- cross-head and guide, and such cross-head shall descend as such shaft is sunk, bhatts. SQ tnat at no time snalj it be at a greater distance from the bottom of the shaft than thirty feet." l (20) of said sec. 25 is hereby amended by adding thereto the Timbering. " No stope 01* drift shall be carried on in any shaft which shall have attained a depth of two hunelred feet, unless suitable provision shall have been made for the protection of workmen engaged therein, by the construction of a bulkhead of sufficient strength or by leaving at least fifteen feet of solid ground between said stope or drift and the workmen engaged in the bottom of such shaft." 3hain ladder 13. A chain ladder twenty feet in length shall extend from the bottom of the ,t bottom of wooden ladder to the bottom of the shaft, fooden ladder APPENDIX A.—MINING STATUTES. Assembly of the Provine This Act may be cited a [«7*ft February, 1899.] of the Legislative tritish Columbia, enacts as follows:— " Placer Mining Act Further Amendment Shor 2. Sections 4 and 5 of ch. 136 of the Revised Statutes of I are hereby repealed, and the following substituted therefor:— "4.. A free miner's certificate shall run from the date thereof and shall n,.,. expire at midnight on the thirty-first day of May next after its date, or some 3™rti« subsequent thirty-first day of May. Only one person or joint stock company cate shall be named in such certificate. The fee payable therefor shall be as pro- w A vided in the schedule of fees to this Act. Free miners' certificates may be issued *ees theretor- by any Gold Commissioner or Mining Recorder." Who may issue 'A free rate shall be in the following form :- " BRITISH COLUMBIA. nof " This is to certify that to all the rights and privileges of a day of A.D. A.D. "(Signature of officer *.)" 3. A person may at any time prior thereto, and not later than the thirty- jjengWai 0f first day of May, or if the thirty-first day of May is a holiday then on the next ce- tificate. day which is not a holiday, obtain from the proper officer, on payment of the proper fee, a free miner's certificate, running from midnight on the thirty-first day of May in any year to midnight on the thirty-first day of May next thereafter, or any subsequent thirty-first day of May. le Special 4. In case any person should allow his free miner's certificate to expire may obtain from the proper officer, upon payment of a fee of fifteen dollars. ^ special free miner's certificate. Such special certificate shall have the effect of reviving the title of the person to whom it is issued to all mineral ciaims which Effect, such person owned, either wholly or in part, at the time of the lapse of his former certificate, except such as under the provisions of the "Placer Mining Act" had become the property of some other person at the time of the issue of such special certificate, and shall operate as a free miner's certificate until midnight of the thirty-first day of May next after its issue. In the case of a company the fee for such special certificate shall be three hundred dollars. Such certificate shall be in the following form:— 834- Placer Further Form of certificate. MARTIN'S MINING CASES. "BRITISH COLUMBIA. E MlNEl " (Not erable.) the date on cate is issued. Repeals ss. 8 and 10. (Workmen to certificates.) " This is to certify that of (fifteen or three hundred, t the rights and privileges of a of , A.D. , un " Issued at " No. , of has paid me the sum he case may be,) dollars, and is entitled to all ee miner from midnight of the* day midnight of the thirty-first day of ,A.D. "(Signature of officer S and 10 of said ch. 130 are hereby repealed. 6. All the powers conferred upon Gold Commissioners by said ch. 136 may corderf w^th' be Perf<-rmed 6y Mining Recorders, with regard to mineral claims within the their territory1 tel'ritory for which they have respectively been appointed, to have all powers of Gold 7. The Schedule of Fees to be charged as provided jn said ch. 136 is hereby Commissioner, amended as follows: tee^mwded " For every free miner's certificate for a period of less than a year, a pro- a ' portionate part of the fee charged for a certificate for a year, tificates, such fees a r abstracts and other c s the Mining Recorder n . Nothing in this Act contained shall affect anything done or suffered, or right, title or interest acquired or accrued before the coming into force of Act, or any legal proceeding or remedy in respect of any such thing, right,. Commence- 9. This Act shall come i nto force o n the first day of May A.D. 1899. Prospector's Rights Protec- An Act to Extend the Right tion Act, 1899. L 62 Vict of the Cr Chap. 58. own to Prospect for Mi Free Miners. HE Free miner's 1- Every free miner within the meaning of ch. 135 of the Revised Statutes right to pro- of British Columbia shall be entitled to exercise, on his own behalf, all the spect overall rights, powers and privileges of the Crown to prospect for minerals over all lands in Pro- lands in the Province of British Columbia, whether owned by railway companies vince. or otherwise. Attorney- 2. In case any dispute arises between any such free miner and any railway General em- company with regard to the rights of such free miner, either under this Act lowered to up-or under ch. 135 or 136 of the Revised Statutes of British Columbia, it shall be lawful for the Attorney-General of the Province to protect such free miner in any such dispute, and to institute or defend, at the expense of the Crown,, any suit or action as may be considered advisable in connection therewith. hold right t< w Act," rethe: to the true intent of sec. 5 of and of sec. 36 (as amended) o assessment work and the payr of $500, and the time or tit •tificate of improvements for a may be made befor On the recommendation of the Honourable the Minister of Mines, His Honour the Lieutenant-Governor, by and with the advice and consent of his Executive Council, and under the provisions of-sec. 143 of the "Mineral Act," has been pleased to order, and it is hereby ordered, as follows, that is to say:— That-the said sees. 5 and 30 be and are hereby interpreted so as to permit a free miner who has applied by affidavit (Form G as amended, of the " Mineral Act") for a certificate of improvements to receive and record a certificate or certificates of work for all or any assessment work done by him or his predecessor in title since the recording of the mineral claim, in excess of the value for which he has already obtained a certificate or certificates of work, provided at the time of applying for such additional certificate or certificates of work, such claim is still in good standing, in the office of the Mining Recorder, and has not lapsed or otherwise become invalid, and provided that in the particular case above referred to the affidavit required by sec. 24 of the " Mineral Act" shall state the total amount of work done in each year since the date of record of the mineral claim, and the value thereof for each of such years, also the value of the work as well as the years for which he has already received and recorded a certificate or certificates of work. A. CAMPBELL REDDIE, Deputy Clerk, Executive Council. HE 1. This Act m ay be cited as the ' M neral A t Amendment Act, 1900 Shor title. 2. A Crown grant therein, may be issued or part of claim or ir issue of such grant bei of a mineral to the admin terest in a cl ag fulfilled. cla lt°uio°n deceased ov all conditions thereof or interest Crown grant mer of such claim, may issue to precedent to the administrator of deceased 3. The "Mine sec. 8 thereof:— •al Act" i s hereb mended by inserting the follov. 1 g aSSecti to " Act. on added 836 MARTIN'S MINING CASES. [vol. Min. Amend- " 8. Any person who mines for any minerals for his own sole use and bene- ment Act, 1900 fit on any Crown lands in the Province of British Columbia without having taken out and obtained a Free Miner's Certificate, shall, on conviction thereof Penalty for in a summary way, forfeit and pay a penalty not exceeding twenty-five dollars, mining with- Desides costs." out Free Miner's certifi- | Section 11 of chap. 45 of the Statutes of 1899, being the "Mineral Act Re enacts s Amendment Act, 1899," is hereby repealed and the following section is sub- 11 of c. 45 of stituted.— 18™- " 11. Upon the failure of any one of several co-owners to contribute his Forfeiture of proportion of the expenditure required by sec. 24 of this Act, the co-owner or interest of co- co-owners who have performed the labour or made the expenditure may at the ftrils^to ° expiration of the year give such delinquent co-owner notice by publication in a tribute °°n newspaper published and circulating in the division in which the claim is situated, or in the absence of such local paper, in the one nearest thereto, for at least once a week for ninety days, and if at the expiration of the ninety days of publication such delinquent should fail or refuse to contribute his proportion of the expenditure required by said sec. 24, together with all costs of advertising, his interest in the claim shall become vested in his co-owners who have made the required expenditure, pro rata, according to their former interests, on the filing with the Mining Recorder of the division in which the claim is situated, such notice in full, and there shall be attached thereto an affidavit of the manager or publisher of the newspaper in which the notice was printed, stating the date of the first, last, and each insertion of such notice therein, and where and when the newspaper was published during that time, and the name of such newspaper. Such notice shall be recorded as aforesaid within one hundred and twenty days after the first publication thereof." s hereby repealed and ""A "(h) Twenty days after the expiration of the term of the said publication, Duties of Min- unless a notice that an action has been commenced and a copy of the ing Recorder writ m sucn acti0n have been filed in the office of the Mining Recorder tionof notice ia the mininS division in which the claim is situated, the Mining Re- of intention to corder shall forward to the owner or agent, under Form I of the apply for Schedule to this Act, the documents referred to above, together with a Certificate of certificate that the notice provided by sec. 36, sub-sec. (d), has been Improvements posted in his office, and the field-notes and plan deposited for reference therein from the date of the first appearance of the said notice in the British Columbia Gazette, and continuously therefrom for a period of at least sixty days. The Recorder shall also set out in Form I the name of the recorded owner of the claim at the date of signing the same." Re-enacts s. 6. Section 127 of the " Mineral Act" as enacted by sec. 10 of chap. 33 of 127 of "Min- the Statutes of 1898, and amended by sec. 14 of ch. 45 of the Statutes of 1899, eral Act. jg hereby repealed and the following section substituted therefor:— When survey " 127. The owner of a mineral claim who has had his claim surveyed and to be counted has filed in the office of the Mining Recorder in the mining division in which as work done the claim is situated, a declaration by a Provincial Land Surveyor, or if the on c aim. claim is situated within the Railway Belt, a declaration by either a Provincial or Dominion Land Surveyor, stating that he has surveyed the claim as required by sub-sec. (c) of sec. 36 of this Act, and has delivered to the Mining Recorder a plat of the claim and a copy of the original field-notes, and delivered two copies of the plat and one copy of the field-notes to the owner, then the owner of such claim shall be entitled to have the cost of such survey, not to exceed one hundred dollars, counted as work done on the claim as required by sec. 24 of this Act." Schedule of fees amended. Crown grant fee to be $25.00 stituting therefor "For a Croi —MINING STATUTES. WE E Brit 1 Kem l Colu: Division of the Cassiar Electoral distr: said division to be within the territoris tories, jointly located as "Discovery" Claim hundred feet in the bed of the said creek, i McLaren both of the.Town o Atlin, p nbi a, Fre M were the Creek the Atlin Lake Mining a the e aid Pro mdarie s ot the North-Wes Terri- cult; And wherea g division ; the title t 7 plac • clai s therei o confusion nd diff And whereas the Honourable Paulus JBmilius Irving, one of Her Majesty's Puisne Judges of the Supreme Court of British Columbia, acting as Commissioner for hearing and deciding upon disputes within the said Mining Division under the provisions of the " Bennett-Atlin Commission Act, 1899," excepted certain placer bench claims within the limits of the " Discovery " Claim which the said Miller and McLaren would be entitled to under the laws of the Province of British Columbia, and awarded the same to certain persons to whom the same were awarded being set forth in the Schedule " A " to this Act; And whereas the said Commissioner by his said decree directed the said Miller and McLaren to apply to the Gold Commissioner for the said mining division to re-stake their " Discovery " Claim according to the provisions of the British Columbia " Placer Mining Act" ; And whereas the said Miller and McLaren did, j August, 1899, obtain permission from the Gold Commis: sion to re-stake the said " Discovery " Claim, and did, e of August, 1899, re-stake the said " Discovery " Claim in provisions of the British Columbia " Placer Mining Act" as a discovery clair for two discoverers; And whereas it is just and equitable that the said "Discovery" Claim s re-staked as aforesaid should be vested in the said Miller and McLaren as th original locators and discoverers of placer claims in the said Mining Divisioi save and except the said placer bench claims so allowed by the said Commit and consent of the Legisls r about the 24th day of ner of the said divi- r about the 24th day ■ :ordance with the 1900." 2. The Gold Commissioner for the Bennett Lake And Atlin Lake Mining Discovery Divisions of the Cassiar Electoral District of the Province of British Columbia claim to be shall, forthwith, after the passage of this Act, record in the names of, the said recorded in Fred Miller and Kenneth McLaren, jointly, the said " Discovery" Placer "^"les of J" Mining Claim, being 598% feet in length, and extending in width 1,000 feet, ^'™*5?m,. situate on Pine Creek aforesaid, about eight miles from Atlin Lake, in the said j™" Atlin Lake Mining Division, according to the plan of survey thereof on file in Ai.,™ the office of the said Gold Commissioner, save and except the portions thereof ° !IN'S MdJNING CASE! Pine Creek excepted by the decree DiscoveryAct, Special Commissioner i 1900. made in the matter of the title to the said " Discovery " Claim, and dated the 5th day of July, 1899. Operation of 3. The said Fred Miller and Kenneth McLaren shall be deemed to have been, Act. and to be, subject to the said decree and the provisions of the " Placer Mining Act" and Amending Acts not inconsistent with this Act, the owners of the said " Discovery " Claim and as from and after the 30th day of August, 1898, and may hold, possess, and enjoy the same, and every part thereof, as if the same had been in the first instance duly staked and recorded under the provisions.of the " Placer Mining Act" in force in the Province of British Columbia on the 30th day of August, 1898. Persons who 4. it shall not be lawful for the said Miller and McLaren to disturb any have erected person who, prior to the coming into force of this Act, has erected a building tobediftobed upon said land' e^P* in so far as the Gold Commis: " y for the purpose of plae aing upon said clain SCHEDULE " A " Referred to in the preamble to this Act. The Melrose Bench Claim .. The Golden Rod Bench Clai The Golden Rod Bench Clai George Johnson. I Olaf Parrv. i J. W. Wetham. \( J. H. Rose, 1 0. D. Volkert, • j ] R. N. Perry and ! ( Charles J. Thompson. , by and with t » advi and c [11th Mat snt c mbly of the Province of British Columbi 1. This Act may be cited as the " Mineral Act Amendment Act, 1901." 2. Section 4 of the " Mineral Act Amendment Act, 1899," is hereby repealed, td the following substituted therefor :— " 4. In case any person should allow his free miner's certificate to expire he ay, at any time within six months from the date of such expiration, obtain om the proper officer, upon payment of a fee of fifteen dollars, a special free iner's certificate. Such special certificate shall have the effect of reviving the 3 :le of the person to whom it is issued to all mineral claims which such person vned at the time of the lapse of his former certificate, except such as under e provisions of the " Mineral Act" and Amending Acts had become the pro- •rtv of some other person at or before the time of the issue of such special APPENDIX —MINING STATUTES. tetf! miner's, certificate until midnight: :ef Min. Am end- next after its issue. In the case of a joint stock ment Act, 1901 special certificate shall be three hundred dollars, he following form: Fee for Joint BRITISH COLUMBIA. PanT- " This is to certify th me the sum of (fifteen o ■erttitield to all the rights •[Aeiir insert the date of th 'oeitificate] day of May, A.D. 19 . " This special rA.t "No. , of has paid the case may be) dollars, and is free miner from midnight of the I preceding the date of issue of nidnight of the thirty-first day of ■ rial certificate, so far only as such title depends upon such person miner's certificate, shall have the effect of reviving the title of whom it is issued to all mining properties which such person time of the lapse of his former certificate, except such as have at the y of A.D. 19 ituted therefor: led, and the follow " 141. Affidavits and declarations required under the provisions of this Act '"■ot M-ineral shall be made before one of the following officials having jurisdiction in the ' Province of British Columbia, or the part thereof where such affidavits or Before whom •declStValtaons may be sworn or made, that is to say:—Supreme or County Court affidavits may Judge, Registrar of a Court of Record, Gold Commissioner, Mining Recorder, made. Stipendiary Magistrate, Justice of the Peace, Notary Public, or Commissioner for taking Affidavits." 4. Tli i Act shall n intil the first day of July, A.D. 1901. 1 Ed. VII. Chap. 3 mend the "Inspection of Metallifer [11th May, 1901.] 2. Section 2 of the "Inspection of Metalliferous Mini pealed, and the following substituted therefor:— "2. The Lieutenant-Governor in Council may appoint a lectors of Metalliferous Mines, and mines of whatever description otner man Appointment tines to which the " Coal Mines Regulation Act " and amending Acts apply, 0f insp&g&fiS- ho shall be of at least seven years' practical experience in mining, whose 840 MARTIN'S MINING CASES. [vt Inspeo.of Met. duties shall be as hereinafter specified, and who shall receive such salary and Mines Amend- allowances as shall be determined by the Lieutenant-Governor in Council; and ment Act,1901.before entering upon the discharge of his or their duties he or they shall take and .—- subscribe an oath that he or they will discharge such duties faithfully; the Provincial, Provincial Mineralogist shall have the powers and may exercise the func- to'have sSne tions conferred on an Inspector of Metalliferous Mines by this Act." Inspector. 3. Section 10 of the said Act, as amended by sec Re-enacts s. 10- Metalliferous Mines Act Amendment Act, 1899," is following substituted therefor :— Accidents to be « 10 Any owner, agent, manager or lessee havin M?nusterof any metalliferous mine, whenever loss of life or sei Mines and in connection with the working of such mine, shall • Inspector. anc" report all facts thereof to the Minister of Min barge of or operating i accident shall occur i Inspector for Monthly return of output to be sent to Department of Mines. Form to be prescribed by Minister of Mines. Mining Recorder'to be notified of shipment. Mining Recorder to fui nish forms. the district in which such mine is situate, and the said Inspector shall i vestigate and ascertain the causes and make a report, which shall be filed in the office of the Minister of Mines for future reference." 4. On or before the fifteenth day of each month, the owner, agent, manager or lessee of every mine, and which is actually engaged in the shipping or treating of ore, and to which this Act applies, shall send to the Department of Mines, in the City of Victoria, a correct return, specifying with respect to such mine the following:—- (a) The name of the mine and its extent in acres, together with the name of the mining division in which it is situate; (6) The name of the company or person operating the same. If the same company or person operates more than one mine in the same mining division, the returns may be given en bloc, but the names of all the mines must be specified; (c) The quantity of ore shipped or treated during the previous month and the assay values thereof; (d) Any other particulars deemed necessary by the Minister of Mines. Such returns shall be in the form from time to time prescribed by the Minister of Mines. 5. The owner, agent, manager or lessee of every mine actually engaged in the shipping or treating of ore shall forthwith, after the passage' of this Act, notify the Mining Recorder for the mining division in which such mine is situate of such fact, and also give the place of address to which forms for the return mentioned in the last preceding section hereof shall be forwarded; the said Mining Recorder shall thereupon forward to such address a supply of forms upon which such returns shall be made; but the failure of such owner, agent, manager, or lessee to apply for, or the Mining Recorder to furnish, such forms, shall in no way relieve such owner, agent, manager or lessee from forwarding such returns within the time hereinbefore provided. l Council to order such 8. Sectio " Inspector,' 20 of the said Act is hereby amended by inserting after the word in the fourth line thereof, the words " for the district in which situate." Amends s 25 9. General Rule (8), as set forth in sec. 25 of the said Act, it by re-enacting repealed, and the following substituted therefor:— General Rule 8. "(8) In every mine where hoisting is employed either for the car persons or mineral, the following code of mine signals shall be used:- 1 Bell . 1 " . 2 Bells. APPENDIX A.—MINING STATUTES. Hoisting. ISTOP IMMEDIATELY—if in motion. HOIST (see Rule ( LOWER ( " ( CAUTION—"MEN ON" ( " I This is a caution signal—not a signal the next signal to move is given, " pre ment Act, 1901 eed slowly and \ ith a. accordance with such signal. ..'BLASTING or "READY TO SHOOT" Signal (see Rule E). j This is a caution signal, and if the engineer is prepared to accept | , it he must acknowledge it by raising bucket a few feet and letting it back slowly. This signal, once accepted, takes precedence over all others, and 1 Bell given when miners are in bucket, is signal to hoist away from blast. 2 Bells, double pause, followed by station si Calls Cage or Skip to that stati Station Signai (2 Signals. SlGNALS. Station. Station. Bells. Pause. Bells. Bells. Pause. Bells. No. 1 -j 1 No. 11 , ^■^^* " 'A.'.'.'.'.'. 2 ~ 3 " 12 " 13 hSRi^ J " 4- 1 L:..: 2 2 sS yjfii " % !' 17 " 18 I rE - '-'•ij^ai " 10 3 i^K 5 " to...... jS'fi ! tl $V" In mines where there is a sub-station or ore pocket below level of s h sub-station or pocket shall be designated and signalled by the sil >h main station followed by 1 bell. Example.—Ore pocket under station 7 shall be signalled 3 — 2 — Danger. 9 Bells, without pause between them, means DANGER (fire or other c and followed by a station signal, calls cage to that station. This signal takes precedence over all others, except an ac> ' Blasting Signal. Method and signalling. MARTIN'S MINING CASES. [vol. ;. Miscellaneous. 1 5 Bells. . STEAM—turn off or on. G " . . AIR—turn off or on. 7 " .. | FOREMAN WANTED—to be preceded by station call. 3 — 3 — 3 " . . BREAK-DOWN IN SHAFT. Engineer must proceed j very slowly and e^refully,.in accordance with signals to be afterwards given, if so directed, by verbal orders 4 — 4 — 4 " ..ALL BLASTING IN SHAFT IS FINISHED. 3 — 2 — 2 " . . SEND. DOWN DRILLS. Electric Bell Signals. The following addition to the code shall be made where electric bells are used in connection with other bells— If cage is wanted, ring station signal. Station tender will -answer 1 bell. Reply 1 bell to go up. Reply 2 bells to go below. If station is full of ore, and station tender is wanted, ring signal and do 2 1 2 bells are rung, engineer or station, tender does not understand, repeat signal. In case of danger or accident, ring 9 bells, a pause, followed by regular .—" Cage " in these rules signifies either cage, skip, " Bell" in these rules signifies stroke or bell, gon signalling arrangement. : A.—No person but the station tender shall ring signs of danger, or when a main shaft is being sunk. This shall not apply in mines where no station Engineer must slow up when passing stations vi : B.—METHOD AND ORDER OF GIVING SI( signals, make strokes on bell at regular intervals. In signals requiring such, make the pause ( — ) 1 one bell. A double pause ( ) must be made be signals, station signals, and executive signals. Signals must be given in order designated—1st, 2nd, directionary signals; 3rd, executive signals. Call. 5 C—The HOIST SIGNAL (1 bell) means " tc LOWER SIGNAL (2 bells) means "to bottom" hoisting is then being regularly done, nnleSB th ceded by a station signal signifying that cage is to' designated. APPENDIX A.—MINING STATUTES. 843 icofMet. Rule E— The BLA be acknowledi ig signal, must stand Acknowledg- Having acknowledged ing blasting t quit his post, and signal, vith his prompt obed- Rule F.—Timber, tools, & within a cage, mus hoisted. 10. Printed copies of in front of engineer, on ; and elsewhere as the Inspe illegible, they must be rep f bucket or skip, or placed Timber, tools, "Hours of Labour of Stationa " 21a. Every person who, after the first daj employed in or about a metalliferous mine, in m mentioned shall be operated for more than twt (1) operates any direct-acting, geared, or indir eeeding fifty horse-power, or (2) operates an: motor exceeding fifty horse-power, and shall pel than eight hours in any twenty-four, shall be Act. " 21b. Any person, corporation or company, any person or persons to do any act, matter oi preceding sectiou hereof shall be guilty of an shall not be deemed an offence under this or the operates any such machinery for more than purpose of relieving another employee in case i offence tmder this avention of the inducing bis Act, but it engineer to ioned for the " . This ' shall e MARTIN'S MINING CASES. PlacerAmend- ith the advice and con sent o the Legislative 2e f British Columbia, enacts as follows:— repei " placer mine" and'"diggings" "Cre diggings." diggings." "Dry diggings." t the construction of this Act the following expressions shall have ing meanings respectively, unless inconsistent with the context:— ," " placer- mine," and " diggings " shall be synonymous terms, and 11 mean any natural stratum or bed of earth, gravel or cement mineeT gold or other precious minerals or stones; ;r claim " shall mean the personal right of property or interest in - placer mine; and in the -term " mining property " shall be included ry placer claim, ditch, or water right used for placer mining purposes, I all other things belonging thereto or used in the working thereof, cer claims shall be divided into creek diggings, bar diggings, and diggings; " Creek diggings " shall i " Bar diggings " shall me " Dry diggings " shall m aean any mine in the bed of any stream or ravine an any mine between high and low water marks 01 other large body of water; an any mine over which water never extends; " shall mean deposit of precious stones, whethei watercourses whethei )itch " shall include a flume, pipe, race, or other s own weight, to be used for wate^Ts^rsttatente the point in a natural water to a ditch; lawfully possessed of, 1 a person, or joint stock con ; purposes; ertificate, and i " Legal post " shall mean a stake standing not less than four feet above- the ground, and squared or faced on four sides for at least one foot from the top, and each side so squared or faced shall measure at leas* four inches on its face so far as squared or faced, or any stump or tree cut off and squared or faced to the above height and size; " Record," " register," and " registration," shall have the same meaning, and shall mean an entry in some official book kept for that purpose; " Record," when used without qualifying matter is referred to, shall be taken t tion of a placer claim; "Full interest" shall mean one of severs be equally divided; APPENDIX A.—MINING STATUTES. "Close season" shall mean claims in any district ar district; " Cause " shall include any su " Judgment " shall include " 01 "Real estate" shall mean any "" Joint stock company " shall r (a) Incorporated under the thereby; or (&) Registered as a foreign eomp " Companies Act, 1897 "; or (c) Licenced or registered as an " Companies Act, 1897 "; or (d) Incorporated by any special A iod of the year durii ver by the Gold Comn g which placer issioner of that Placer Amendment Act, 1901 or " decree " ; r mineral land held in my company for minin apanies Act, 1897," or fee simple; g purposes; any Act repe aled "Cause." "Judgment." "Real estate." Co.'"" apany Under any Act repealed by the . In c y person shall allow his free miner's cei e within six months from the date of such from the proper officer, upon payment of a fee of fifteen doll miner's certificate. Such special certificate, so far only as •upon such person having a free miner's certificate, shall 1 reviving the title of the person to whom it is issued to all p such person owned at the time of the lapse of his former cert -as under the provisions of the " Placer Mining Act" may property of some other person at the time of the issue of such and shall operate as a free miner's certificate until midnight day of May next after its issue. In the case of a joint stoe for such special certificate shall be three hundred dollars. St be in the following form:— BRITISH COLUMBIA. ■day of A.D. he case may be), tlollars, and is entitled ree miner from midnight of the * * nidnight of the thirty-first day of May, t] telyp "This special certificate, so far only as such title depends upon sue! having a free miner's certificate, shall have the effect of reviving the title of the w'moh"the" person to whom it is issued to all mining properties which such person owned certificate v at the time of the lapse of his former certificate, except such as have become taken out. the property of some other person. " Issued at on the day of , 19 . 84,6 MARTIN'S MINING CASES. [vol-. PlacerAraend- 4. Section 9 of the ""Placer Mining Act," as amended by the " Placer Mining- mentAct, 1901 Act (1891) Amendment Act, 1898," is hereby repealed, and the following sub- stituted therefor:— of c 136 R.S. "9- No person or joint stock company shall be recognized as having any Onlv free 1-igllt or interest in or to any placer claim, mining lease, bed-rock flume grant, miners can or any minerals in any ground comprised therein, or in 'or to any water hold mining right, mining ditch, drain, tunnel, or flume, unless he or it shall have a free property. miner's certificate unexpired. And on the expiration of a free miner's certi ficate the owner thereof shall absolutely forfeit all his rights and interest in or to any placer claim, mining lease, bed-rock flume grant, and any minerals in any ground comprised therein, and in or to any and every water right, mining ditch, drain, tunnel, or flume, which may be held or claimed by such owner of such expired free miner's certificate, unless such owner shall, on or before the day following the expiration of such crtificate, obtain a new free miner's certificate: Provided, nevertheless, should any co-owner fail to keep up Upon lapse his free miner's certificate, such failure shall not cause a forfeiture or act as claim reverts an abandonment of the claim; but the interest of the co-owner who shall fail to co-owner. t0 jjggp up bjs free miner's certificate shall, ipso facto, be and become vested in his co-owners, pro rata, according to their former interests. The filing in the Proof of lapse, office of the Mining Recorder of a certificate from the Department of Mines „, , ., . that the free miner's certificate of such co-owner has lapsed shall be sufficient teintstock m evidence °f such lapse to vest the title in the continuing co-owners on the company need l-ecord in the office of such Mining Recorder : Provided, nevertheless, that a not be free shareholder in a joint stock company need not be a free miner, and, though not miner. a free miner, shall be entitled to buy, sell, hold, or dispose of any shares therein: Application ofAnd Provided, also, that this section shall not apply which a Crown grant has been issued." Penalty for 5. Every person who mines for any mineral for his own sole use and bene- other than free fit in any waste land of the Crown in the Province of British Columbia, with- miner working out having obtained and being the holder of an unexpired free miner's cer- placer claim, tificate shall, on conviction thereof in a summary way, forfeit and pay a penalty- not exceeding twenty-five dollars, besides costs. Amends ?. 11, 6. Section 11 of the said " Placer Mining Act" is hereby amended by adding- c. 136, R. S. thereto the following proviso: Agent must « provided that it shall be lawful for a free miner to appoint an agent, who record power must alg0 be & free miner; but such agent shall not be entitled to ]ocaTe or re. fore locating " cord ^ Placer claim for his Principal unless and until a power of attorney in that behalf has been recorded in the office of the Mining Recorder for the mining division in which such claim may be situate, and also that no such agent shall locate and record more than one claim each for two principals on each separate creek, ravine or hill." Amendss- 15, 7. Section 15 of the said "Placer Mining Act" is hereby amended by strik- c. 136, R. S. ing out the first three lines thereof, and substituting the following therefor:— What claims " Every free miner shall be entitled to locate and record only one claim free miner on each separate creek, ravine, hill or bar diggings." And the said section is may record. hereby further amended by adding thereto the following words :— " Provided that any free miner who posts notice on the four corner posts, of his claim, and also in case he has recorded such claim, files such notice in the office of the proper Mining Recorder that he abandons such claim, shall thereupon be entitled to locate and record another placer claim upon other ground in lieu of the abandoned claim, and the abandoned claim, upon the posting of said notice thereon, shall be open to re-location." Part II. Size and Nature of Placer Claims. "Placer Mining Act" is hereby repealed, and ] APPENDIX A.—MINING STATUTES. "16. The size of placer claims shall be as follows:— " In ' creek diggings ' a claim shall be 250 feet square: that the side lines of each claim shall be measured in t tion of the watercourse or stream; " In ' bar diggings ' a claim shall be:— . " (a) A piece of land not exceeding 250 feet square oi is covered at high water, or " (6) A strip of land 250 feet long at high water extending from high water mark to extreme loi " In ' dry diggings ' a claim shall be 250 feet square. on any bar which nark and in width 9. Section 17 of the said " Placer Mining Act " is hereby repealed, and the Re following substituted therefor :— H> " 17. If any free miner, or party of free miners, discover a new locality for ^ of placer mining and such discovery be established I satisfaction of the Gold Commissioner, placer claims of the following s be allowed to such discoverers, viz.:— " To one discoverer, one claim 600 fe " To a party of two discoverers, two claims, amounting together to 1,000 fe " And to each member of a party beyond two in number, a ordinary size only; " Provided that where a discovery claim has been established ir no further discovery shall be allowed within five miles therefro along the watercourses. The width of such claims shall be the si ary placer claims of the same class." shall length; 10. Section 20 of the said "Placer Min the following substituted therefor :— ary placer claim shall be a ; Act' 3 hereby repealed, and Re-i i form as possible rectangulai irked by four legal posts at the corners thereof, firmly fixe ground. On each of such posts shall be written the name of the locator, the number and date of issue of his free miner's certificate, the date of the location Methoi and the name given to the claim. In timbered localities all boundary lines of locatio a placer claim shall be blazed so that the posts can be distinctly seen, and underbrush cut, and the locator shall also erect legal posts not more than 125 feet apart on all boundary lines. In localities where there is no timber or In unt underbrush monuments of earth or rock, not less than two feet high and two looaliti feet in diameter at base, may be erected in lieu of the said last-mentioned legal posts, but not in the case of the four legal posts marking the corners of the claim." follow .K " 23. Every free miner locating a placer claim shall record the same in the rp. office of the Mining Recorder for the mining division within which the same is w situate, within fifteen days after the location thereof, if located within ten miles „; of the office of the Mining Recorder by the most direct means of travel. One B additional day shall be allowed for every ten miles additional or fraction thereof. c, The number of days shall be counted inclusive of the day upon which such loca- j. tion was made, But exclusive of the day of application for record. The applica- f| tion for such record shall be under oath and in the form set out in the Schedule j to this Act. A claim which shall not have been recorded within the prescribed Cl period shall be deemed to have been abandoned." a 12. Section 27 of the ing thereto the following:—" Th shall be the anniversary of the < Plact Min tig Act " i ereby mded by add-! made c. 136, R. S. S48 MARTIN'S MINING CASES. PlacerAmend- 13. Where a judgment affecting any placer claim is rendered by a Court ment Act, 1901 having jurisdiction in mining disputes, or by any Commission or Board of Inquiry held for such purpose, or any decision is given by a Gold Commis- Judgment sioner, under any powers in this Act ■ contained, the Clerk of such Court, Commission or Board, or such Gold Commissioner, shall forthwith transmit a : such judgment or decision to the Mining Recorder for the mining '' division in which such placer claim is situate, and the said Mining Recorder shall enter such minute in the Record Book and file the said minute in his office. Where If by any such judgment or decision the original boundaries of any placer claim boundaries shall be changed, a plat shewing such changed boundaries and signed by the ■changed, plan Judge, Commissioner, Board of Inquiry or a member thereof, or Gold Commis- to be filed. sioner by whom such judgment or decision has been given, shall a minute and be filed in the office of the Mining Recorder. affecting placer claims , to be recorded. ereby ?aled, i ing^nJuffi- Ut ciency of to mining leases under j?art VII. " (1) Where the supply of water is insufficient to work hydraulic or other placer claims requiring water to enable them to be worked, such claims may, by leave of the Gold Commissioner, be laid over during such insufficiency, but a notice of application for such lay-over, and bearing date of the cessation of work, must be posted on the claim forthwith, and the owner shall apply to the Gold Commissioner for such lay-over, and such lay-over shall be recorded and a notice thereof shall be posted in the office of the Mining Recorder and on the claim within three days from the cessation of work if the claim is within ten miles of such office, but two additional days shall be allowed for each further ten miles or fraction thereof, the number of days being counted in the same manner as those allowed for recording a placer claim: Provided, that during the time allowed after such cessation of work for obtaining, recording and posting such lay-over the claim shall not be open for re-location by any other free miner. " (2) The provisions of this s n shall-: tt apply to mining property held " (3) No free miner shall be allowed t a has given due notice of his intention to d< notice to be posted in a conspicuous plac before diverting such creek or stream." uch leases shall be vert any creek or stream until he to adjoining claim-holders; such t his claim for at least ten days reby amended by Amends s. 44, c. 136, R.S. Authority of agent to be recorded. Amends s. 51, -c. 136, R. S. Notice of application for grant of right of way for tunnel. Location after death of holder. Delays, etc., 19. N by officials. delays on " Provided always, that the failure to so record any such document shall not invalidate the same as between the parties thereto, but such document as to third parties shall take effect from the date of record and not from the date of such document." 16. Section 44 of the said " Placer Mining Act " is hereby amended by adding thereto the following words, " and if signed by an agent, the authority of such agent shall be recorded before the record of such transfer." 17. Section 51 of the said " Placer Mining Act" is hereby amended by igthth line thereof, and substi a shall be open to locatio 18. No placer cl i with the permi months after the death of the lawful holder. f the Gold Com APPENDIX A.—MINING STATUTES. s hereby repealed and the jje. laim, but the share of the part ;rtifieate shall, ipso facto, be ro rata, according to their for lining Recorder of a certificat liner's certificate of such partn ipse to vest the title in the co ich Mining Recorder. 23. Section 65 of the said " Placer M tg thereto the following words:— " And for the purpose of carrying i lining Recorder of the mining divisioi ituate, or some one appointed by him, i 24. Upon the abandonment of any si > the abandoned share shall vest in the lg to their former interests. shall so fail to keep up his free miner's fieate of part- >me vested in the continuing partners, ner lapses, 1 ■ests, and the filing in the office of the share revert be Department of Mines that the free - otners- psed shall be sufficient evidence of such pr00f 0I iap partners on the record in the office of : Act " is hereby 25. Section 73 of tl riking out the word ' aerefor the words "fre nited Liability. Placer Mining ' in the third 1 ! thereof, and substituting Limited liability partner- . ship failing to comply with MARTIN'S MINING CASES. I 26. Should any such partnership fail to comply with any of the pro 1 this Act relating exclusively to mining partnerships, such partnership shall, from the date of such failure, cease to be a " limited liability " partnership. Mining Recorders—Appoin nt, Duties, Power tg Act " is hereby a 27. Section 109 of the said " Placer Mi ing thereto the following words:— "(f) A book to be known as the ' Record of Leases'; " (g) A book to be known as the ' Record of Free Mi aended by add- s Certificates.' Record of free 28. Upon any Mining Recorder issuing a free miner's certificate, or upon miner's certi- any free miner applying to record a placer claim, bill of sale, or other instru- ficate. ment, the Mining Recorder shall enter in the record of free miners' certificates the particulars of such free miner's certificate, giving number of certificate, name, date and place of issue and date of expiry. Amends s. 127,. 29. Section 127 of the said " Placer Mining Act " is hereby amended by c. 136, R. S. striking out the figures " 10 " in the second line thereof, and substituting there- Office hours of for the figure " 9." SO. Section 132 of the s ng thereto the following Administra- " (2) The Gold Commissioner or pe: tion to be un- be governed by the provisions of the der "Official rules and regulations thereunder." s hereby amended by Penal and Miscellaneous. Interests in 31. No free miner shall be entitled to any interest in any placer claim which claims must be has been located and recorded by any other free miner, unless such interest is in writing and specified and set forth in some writing, signed by the locator or recorded. m title, and such writing is recorded in the office of the Mining Recorder. Inspection of claims by Government officials. c. 136, R. S. copy of this 32. The Minister of Mines, the Provincial Mineralogist, the Provincial Assayer, any Inspector of Mines, the Gold Commissioner for the District, the Mining Recorder for any district for which no Gold Commissioner has been appointed, and any other person duly authorized by the Minister of Mines in writing shall have the right, at all reasonable times, to enter into, upon, and , any placer claim, leased ground, drain, ditch, tunnel or flume. aided by add ing Act" is hereby repealed, and 136 tile following substituted tnereror :■—• R- S. "149. Affidavits and declarations required under the provisions of this Act. Before whom shall be made before one of the following officials having jurisdiction in the affidavits may Province of British Columbia, or the part thereof where such affidavits or be made. declarations may be sworn or made, that is to say :—Supreme or County Court MARTIN'S Mil Application for Record of a Placer ( " I, of , age: apply, under the provisions of the ' Placer Min for placer mining as defined in the said Act [i and I make oath and say:— " 1. That I am the holder of free miner's c at , on the • daj the said is the holder of free u 'a claim , fully], " 3. That the said land it " 4. That I did, on the and make the proper inscri] amendments, on the claim f< I did not, so far as' I know, out by any other person. " 5. That the said claim, That the said claim was previously located by i the placer claim, but has remained i venty-two hours (or after "claim" "that the free iid has lapsed.") and known irked for not less than tier's certificate of the APPENDIX A.—MINING STATUTES. " MINERAL ACT AMENDMENT ACT, 1898." pleased the British Columbia C 'to be placed upon sec. sec. 36 (as amended h} t-Governor in Council has been Order in Council of the 5th of March, 1900, published in Gazette of the same date, with regard to the interpretation K ef the " Mineral Act Amendment Act, 1898," and upon sec. 7 of the " Mineral Act Amendment Act, 1898,") of :ake effect the first daj s Office, 6th Maj J. D. PRENTICE, Clerk Executive Council. - MINERAL ACT AMENDMENT ACT, 1898." ■VT OTICE is hereby given that, under the provisions of sec. 143 of the " Min- Jl\ eral Act," His honour the Lieutenant-Governor in Council has been pleased to make the following order:— Ms That paragraph 2 of sec. 5 of the "Mineral Act Amendment Act, 1898," be so interpreted that should any free miner perform assessment work on his claim during any one year to the value of one hundred dollars or more in ex- the. right thereby given such free miner of recording a certificate of the work ■done to the value of each one hundred dollars, so as to cover his assessment work for an additional year in respect of each one hundred dollars in excess, shall be exercisable only at the time of record of the certificate of work in respect of J he amount required to hold the claim during the year in which such excess shall be performed. And it is further ordered that this order shall come into force on the first day of June, 1902. J. D. PRENTICE, Clerk Executive Council. MARTIN'S MINING CASES. XI sembly of the Province of British Colui [21st June, 1902.] t of the Legislative As- 1. In an action or suit brought in any Court under the provisions of sec. 7 of ch. 135 of the Revised Statutes of British Columbia, being the " Mineral be"tried"by"'V Act," and amendments, any party to such action or suit shall be entitled to have jury. the issues of fact arising therein tried by a jury, and shall be entitled to the benefit of all the provisions of the law with regard to juries. twoormore. 37 of ch. 135 of the Revised ^fies'of^ persons have Act," and amendments, notwithstanding anything in the said Act and amend- obtained certi-ments contained, in all cases where two or more persons have obtained certificates of work ficates of work for the whole or portion of the same elaim the title thereto shall for same claim, De decided under the provisions of sec. 27 of the " Mineral Act." thereof. g Nothing in tnis Act contained shall be held or construed so as to affect Nation not any 11111© n0W Pendin«- affected. 9 deposits of magnetic iron, in the form commonly 1," which cannot be located by free miners under any Statute, and it is expedient to make provision for the mining of same:— cited as the " Iron Placer Act, 1902." r " and " legal post " shall be interpreted 3. It shall be lawful for the Gold Commissioner, with the sanction of the Lieutenant-Governor in Council, to grant a lease of any unoccupied and unreserved Crown land for the extraction of iron from magnetic sand for any term I r not exceeding twenty years, on such terms and conditions as he shall think fit; I and any free miner desiring to obtain a lease of any such ground shall mark out such ground by placing a. legal post at each corner, and shall post a notice *| on the post nearest to the iron placer leaseholds then being worked in the im- I mediate locality, and also on the office of the Mining Recorder, which notice | shall set out— • (1) The name of each applicant; (2) The locality of the ground to be acquired; (3) The quantity of ground; (4) The term for which such lease is to be applied for. ' m APPENDIX A.—MINING STATUTES. 4. The free miner, after staking the ground and said, shall, within thirty days, make application i Gold Commissioner, which application shall be in the ground on the back, and shall leave the same Recorder, which application shall set out— posting the notices as afore- n writing, addressed to the duplicate, with the plan of at the office of the Mining A (1) The nai (2) The nui (3) The loc (4) The qu: (0) The ren te of each applicant; iber of each applicant lity of the ground; ntity of ground; t of the lease desired ; proposed to be paid. ppli 5. On making such Recorder, for the use of th cate. And every person n any purpose under the pre lars with the Gold Comm application is granted the ment of the first year's re paid by the applicant with ten dollars deposited is to be fails to perform his part in t deposited shall be forfeited t nation the free miner shall deposit with the Mining p]an jn dupli- Gold Commissioner, a plan of the ground in tripli- eats of ground king application for a lease of mining ground for sought to be isions of this Act shall deposit the sum of ten dol- leased to be the application is made. If the filed. l dollai and t: lich notice may be sent by letter to the to be left with "the Gold Commissioner de. If the application is not granted, the > the applicant: but in case the applicant with the application, then the ten dollars nment, and his application shall be void. 6. Applications shall not be for an area greater than eighty acres, and no Appiication free miner shall have granted to him more than one lease in the same locality: not to be for Provided always, that nothing in this Act shall be deemed to affect the right of more than 80 any holder of a lease of iron placer ground to a renewal thereof, if such holder acres. has substantially made and performed upon the ground the labour, work and Proviso, expenditure required by such lease as a condition of renewal thereof. 7. A lease shall not be granted for any mining ground any portion of-which ^Q jeage is actually occupied by free miners, unless with the consent of such occupiers; granted of and no lease shall be granted for any mining ground which is, in the opinion mnd n™>u. of the Gold Commissioner, available for agricultural purposes. 8. The G°ld Commissioner may with the sanction of the Lieutenant-Governe in Council grant or refuse any application for a lease of iron placer ground, e modify the terms and conditions of such application as he shall think fit. ground. Gold Com- | granting lease, (plication for a lease of iron placer ground, together with the plan Applications and the Gold Commissioner's report thereon, shall be forwarded with plan to the Lieutenant-Governor in Council, and no lease annexed, h application without his sanction. 9. Every application of the ground by such Gold Commiss shall be granted on an 10. Every lease of placer iron ground shall be in writing signed by the Gold leases Commissioner and the lessee, and shall be in duplicate or triplicate, as the case wr;tin( may require, and one copy of every such lease shall, as soon as possible after it is issued, be transmitted by mail by the Gold Commissioner issuing the same, to be filed in the office of the Mining Recorder in the mining, division of the district in which the mining ground leased is situated. 11. E\ try lease shall provide for securing to the public reasonable rights of Conl rater, and shall contain a covenant by the lessee to mine the ground lease •-like manner, and shall contain such covenant for the continuous'- MARTIN'S MINING CASES. iron placer mining grounds, may cor with- the Mining Recorder a declaratt company or partnership (if any) wl location and size of each lease ; and sn or holders of the leases to be consolic be performed to hold all such leases. free previous interests, and such surviving s tt) have form all the covenants and conditions ssts in be entitled to any interest express Shareholders in joint stock companii holders, be the holders of free miners' certifies Ity. 17. There shall be reserved to His sembly of the Pr. " 19. Nothing in this Act contained and ne shall interfere with or impair the right of free i under the provisions of the ' Placer Mining Ac AL ACT AMENDMENT ACT, 1898." e provisions of sec. 1- Honour the Lieutenant-Governor in Ci aleased to rescind the order of the 15th of May, 1902, publishe Columbia Gazette of the same date, with regard to the inter; alaced upon paragraph 2 of sec. 5 of the " Mineral Act Amendi md to make the following order in lieu thereof, namely:— Act, 18! That paragraph 2 of sec. 5 of the " Mineral Act Amendment Act, 1898," be so interpreted that, should any free miner perform assessment work on his claim during any one year to the value of one hundred dollars or more in excess of the amount required to be done in any one year by the " Mineral Act," the right thereby given such free miner of recording a certificate of work . done on the value of each one hundred dollars, so as to cover his assessment work for an additional year in respect of each one hundred dollars in excess, irther ■ed tha this r shall take effect first daj y's Office, 5th August, 1902. APPENDIX B. Robertson, Esq., B.A. Sc. A horizontal drift or other passage used as an opening or drain : applied to no level except one opening on the surface. n original shareholder or promoter in a mining enterprise. Ajttee Damp. Irrespirable gas, consisting chiefly of carbonic acid and nitrogen, left in mines after explosion of fire damp. Aib Course. Any working used for purposes of ventilation. Alluvium. Mud or silt deposited by water, especially in times of flood. Amalgam. Gold or silver combined with mercury. Agglomerate. An unstratified mass of fragments of compacted volcanic debris. Apex. The top of a vein. Abeastre. Apparatus for grinding and mixing ore by means of a heavy stone dragged around on a circular bed. The arrastre is chiefly used for ores containing free gold, and amalgamation is combined with the grinding. Sometimes incorrectly written arraster, arrastra, or raster. Span. Aech. A part of the lode left standing for support. Abgentifeeous. Silver bearing. Ascension Theoby. That referring the filling of fissures to aqueous solution from below. Assay. To test ores and minerals by chemical or blowpipe examination; said to be in the " dry way," when done by means of heat (as in a crucible) and in the " wet" or humid way when by means of solution and precipitation or liquid tests. An assay differs from a complete analysis in being confined to the determination of certain ingredients, the rest not being determined. Both assays and analyses may be either qualitative or quantitative; that is, they may determine the presence merely, or also the amount, of some or all of the constituents of the substance examined. Assessment Woek. The annual work to the value of $100 required to be • done on a mineral claim. Instead of work $100 may be paid. Attle. Waste rock. Cornish. Aueifeeous. Gold bearing. of the ve s. With eference to a drift, stope, it and the next working abov ther s uch the surface^' the part Bal. A mine. Cornish. Bank . The su rface at the pit's mouth; used i a coal min es only. Bank Cornish. sman. The man at the pit-mouth who handles he bucket or car. * This glossary is not intended peculiar relation to mining. Wher one here given expresses the sense :o include geologica n which it is used that ms which lining. . ning the APPENDIX B.—GLOSSARY OF MINING TERMS. The solid rock underly cngs. Fide Diggings. Blende. Sulphide of zinc. Blind Lode. A vein without an out-crop. Blind Shaft. Vide Winze. Blocked Out. Ore in sight which is exposed on three " blocked out." Blossom. The oxidized or decomposed out-crop of a vei .frequently the latter. Also called " smut" and " tailing.' Iron Hat. Bonanza. ! " Fair weather at sea." In good luck. A large body of paying •ore. Became a familiar term upon the opening of the immense ore bodies in the aid to be nd I An option on the purchase of a A kind of placer mining v, mt at intervals so as to util See Wo: Bond. An option on the purchase of a mine. See Working Bond. Boom Ditch. The ditch from the dam used in booming: (2) A slight chai; cut down a declivity into which is let a sudden head of water intended t to bed-rock and prospect for the apex of any underlying lode. Boeeasca. " Adversity." The reverse of Bonanza. Out of pay. Spanish Boulder. A large, loose, rounded stone.. Brat. Thin bed of coal mixed with pyrites or carbonate of lime, Bbattice. A plank lining or a longitudinal partition of wood, brick, or evei loth, in a shaft, level, or gangway, generally to aid ventilation by directinj of o iading of a dri: ac-k made up- t Broaching. • Trimming or straightening a working. Beowse. Ore imperfectly smelted, mixed with cinder and clay; a mixt slag and semi-reduced ore that coilects on the hearth in lead smelting. Buddling. Separating ores from slime or stamp-work by means of lddle, an inclined shallow trough shaken in running water. 860 MARTIN'S MINING CASES. Bullion. Uncoined gold or silver. Bunch. A small deposit of ore. Buntons. Timbers placed horizontally across a shaft Compartments and supporting guides on which the cages run. Butt. Surface of cross section of coal cut at right anglt Butt-Entby. The gallery driven at right angles to the butt Butty. A miner working on contract -by weight or mea: hidden. French. Cage. A frame to hold a bucket or car in hoisting ore it is steadied by guides on the sides of the shaft. Calcareous. Composed of, containing, or of the nati perpendicular. Spanish. Camp. Vide Mining Camp. (3) In mine timbering, the stick resting on two posts and of drift or tunnel. (4). The detonator used to set off a hi,; (sand carbonates), and sometimes compact (hard carbonat Cement. Gravel united and hardened into a compact compact as a conglomerate. Sometimes gold bearing. Certificate of Improvements. Certificate from the that the claim owner has complied with all the requirem. APPENDIX B.—GLOSSARY OF MINING TERMS. of pre-historic as in abandoned mines for ore in in order to select out the better Its iting. Gophering. Spasmodic, irregular, surface mining. i Holes. Holes in bed-rock apparently formed by eddies of wal )LE. A rocker; a short trough in which auriferous sands are agi lation in water to collect their gold. <tk a Machine, To. The operation of drilling and adjusting a ma ;k. Vide Stream. t-off Hole. Vide Missed. Hole. anide. As a mining term—is an abbreviation for cyanide of potassium, hich has the property of dissolving metallic gold. The cyanide process 862 MARTIN'S MINING CASES. Lvol. is based on this property. The metallic gold in the crushed ore is dissolved and leached out by a weak solution of cyanide. This " cyanide " containing the gold in solution is then run over zinc turnings or shavings which metal precipitates the gold out of the solution and it settles to the bottom of the tank, JSrom which it is afterwards removed and melted into bullion. Deads. Waste matter of a vein or from any mining ground. Unprofitable ore. Cf. Leavings. Dead Geound. Unproductive rock which must be moved to get at productive ground. Dead Woek. The work done in developing a mine preparatory to stoping. Debris. The loose fragments detached from the bed rock and washed down, to which the term " slide " is more appropriate; waste rock of any kind- Deeps. The lower portion of a vein—to the dip. Denouncement. The Mexican or Spanish equivalent to " location and record " of a claim. • Descension Theoey. The theory that veins are filled by mineralized waters from above. Development Woek. Work done for the purpose of (1) ascertaining the extent and value of known bodies of ore; (2) of exploring unknown territory to discover new ore lodes; and (3) of facilitating the work of taking out the ore. Diggings. Placers. Synonymous with " Mine " and " Placer Mine " under Placer Mining Act, sec. 2, in which section are given definitions of various kinds of diggings. Dike. A fissure in an older rock made and filled by plutonic action. Diluvium. Sand, gravel, clay, &c, in superficial deposits. See Drift. According to some authors, alluvium is the effect of the ordinary, and diluvium of the extraordinary action of water. The latter term is now passing out of use as not precise, and more specific names for the different kinds of material are substituted. Dip. The line of declination of strata. The angle which a lode makes with the plane of the horizon. The departure of a vein or lead from the horizontal. The departure of a vein or lead from the vertical is called the Hade. Diet Fault. A partial replacement of coal in a seam by clay. Not a true- fault. Discovery Claim. A larger claim than usual, allowed to a discoverer of " a new mine " under sec. 17 of Placer Mining Act. Discovery Post. Post to be placed when locating a claim where rock in place has .been found. Mineral Act. Ditch. An artificial watercourse, flume or canal, with or without natural- channels. Includes " a flume, pipe, race or other artificial means for eon- ducting water by its own weight to be used for mining purposes." Placer Mining Act, sec. 2. Ditch Head. " Shall mean the point on a watercourse or lake where water is first taken into a ditch." Mineral Act, sec. 2. Downcast. The opening or shaft through which the ventilating current of air descends into a mine. If air enters by an adit such is called the " intake " airway. Deift. An underground passage driven horizontally on, or with the vein. Drifting. Following along the course of the vein. Dby Diggings. Vide Diggings. Dey Oee. Vide Ore. Usually a silver ore without sufficient lead to enable it to be smelted alone. Dumb Deift. A gallery which conducts the air round a ventilating furnace- to the upcast Shaft. APPENDIX B.-GLOSSARY OF MINING TERMS. . A deposit, or place of deposit, of waste rock or tailings Exploitation. The active or productive working o from prospecting. Cf. Development and Stoping. Eye. The top of a shaft. as distinguished . Face. Synonymous with Breast. Fathom. Six feet. A fathom of m 6 feet vertical with the width of the vein. Fault. A dislocation of a stratum o Feedeb. A small vein starting from s main lode. It is practically synonymous \ oing ground is 6 feet forward and. Com. Not used in B. C. vein from its original position. >me distant point and running into a ith spur. In coal nyining, gas -issuing Fire-damp. Explosive gas generated in coal se irburetted hydrogen. Fissuee Vein. A fissure in the earth's crust Flat Fault. Vide Fault. Float. Float Obe. Masses or particles of or sin and found below it. Flookan, Flucan, Flukan. A soft clayey ein containing a preponderance of clay is known Floor. The rock underlying a horizontal vein Flume. A wooden conduit bringing water to t Fluxing Ore. Vide Ore and Self-fluxing On Foot Wall. The under wall of the vein. Forfeituee. The loss of possessory title ting chiefly of light ; or quartz detached f decomposed cross-cou as a " flookan lode." or deposit. mply tith t • Fossickee. One who re-works abandoned claims. Austra Free Milling. Applied to ores which contain free gold c be reduced by crushing a without roasting c treatment. Vide Oi Free Miner. ' Shall mean a pers or join ; stock company, or foreign' company named in, of a valid exis ficate, and no other ' Seetion-2 of Min era Act a id Placer Mining Ac Full Interest. Any placer or min era claim of full si e or on of several shares into which i Acts. may be divi ded. S ech on 2 of Mineral- and Pla cer Mining Gad. A small pointed iron or steel we dge for splitting rock. Galena. Sulph de of Lead. Gallery. A le el or drift; applied ch iefly to collierie Gangue. Crevi e material; vein m r; the base ma terial f ng the- The comm calcspar barytes, &c. Gash Vein. A vein which es or pra tical pur poses ot ly a short distance below the urface, gene ally na rro wing a. it descends. Geode. A rounded nodule of stone c ining a cavity st udded w th crystals • mineral matter; the cavity in such nodule. Giant. A jointed iron pipe-and nozzle decreasing in diameter with t ■ease of hydraulic pressure; used in hydraulic placer mining. Glory Hole. A purely local term applied to a large open quarry or 864 ' MARTIN'S MINING CASES. Lvol. Gneiss. A rock composed of the same constituents as granite, but foliated or stratified. Mica gneiss consisting of felspar, quartz, and mica; and horne- blende gneiss consisting of felspar, quartz and horneblende, are the commonest Goaf, Gob. Both terms are chiefly used in collieries, and are apparently the same word. Local usage seems to give to goaf rather the meaning of the space in which the roof has fallen after the pillars have been removed, and to gob that aste after long-wall extraction of the coal. S. Gobbing. Packing with waste rock. See Stowing. Gob-Fiee. Fire produced by the heat of decomposing gob. Gophebing. Vide Coyoting. Gossan. Hydrated oxide of iron, usually formed at the outcrop of a mineral being carried on. Grub Staking. Provisioning or outfitting a prospector on a bargain tt Guides. Vide Cage. Gulch. Vide Stream. Essentially a deep cut, rapid stream. Gut. Cf. to Rob. To gut a mine is to take out all the ore exposed and aba: dis aosed 1 ! Ro HEi Th. ! Of I arking. Headings. In ore-dressing, the heavier portions collecting at the upper end of a buddle or sluice, as opposed to the tailings, which escape at the other end, and the middlings, which receive further treatment. Heave. The horizontal dislocation of one lode by apother. Cf. Fault. High Explosives. Those of greater detonating force than gunpowder; Hill Diggings. Vide Diggings. Hole, fide Missed Hole. Horse. A mass of country rock between the enclosing walls of a vein. To constitute a horse, " It is necessary that the walls should converge about the mass below, and at both ends, but the greatest known horses do not converge over head. The two walls coming to the surface are in some instances 1,000 feet apart." Clarence King. Hudge. An iron bucket for hoisting ore or coal. Hungby. Barren. MARTIN'S MINING CASES. shaft. Lift. The spac betweei 1 two levels. LnTEBS. Holes drilled i ato the -floor at a s ight angle so tl e shot wh fired will lift the ore upward Location. The i acts by which a cla im is staked. (: ) The clai itself. Location Line. " Shall be the straight line between posts numbers or Lode. An aggregation of mineral matter containing ores in tis sur Gotta-26. A vein of ore. A ledge. Corn. Under sec. 3 of the Min this term includes " Rock in Place," q.v. Man Hole. An opening just large enough to pe Man Way. A small passage, used by workmen, : for Matrix. (Of the lode.) The country rock in which (Of the ore.) The rock or earthy material enclosing the c gangue. Matte. One of the products of matte or pyritic smelting. It consists either of ferrous mono-sulphide (FeS) or of cuprous sulphide (Cu S), with ferrous mono-sulphide in varying proportions. Vide Smelting. Metal. Precious or Base. Of. Mines' Royal. Mill Hole. A passage left in the stope for throwing down rock and ore- Mill Run. 1. The work of an amalgamating mill between two cleanups. 2. A test of a given quantity of ore by actual treatment in a mill as distinguished from an assay. Pacific. Mill Site. A plot of ground located for mining purposes. Mineral Aot, sec. 2. Mine. Any excavation made for mineral. (2) An open as distinguished from an untouched deposit. (3) Underground as distinguished from superficial workings or quarries. Vide also special definition under sec. 2 of Mineral Act and Placer Mining Act. Mines Royal. Mines of gold and silver are properly called " Mines Royal,"^ and mines of all other substances " base mines." MacSwinney, 50. Miner. A supposedly skilled working miner, as distinguished from a Mucker. In pursuit of the underground part of metalliferous mining it is necessary (1) to drill holes in the rock or ore; (2) to blast the rock down by means of exploding the holes so drilled; (3) to timber the mine for the safety of workmen engaged; (4) to shovel the rock blasted down (muck) into cars and remove the same in the car to the cage or bucket in which it is hoisted to the surface. In large mines these duties are undertaken by different men. Those who work at No. (1) are called miners, sometimes machine-men; at No. (2) blasters; at No. (3) timbermen; at No. (4) muckers. Machine-man and mucker is a more accurate distinction than miner and mucker. Broadly speaking all men engaged in a mine underground are miners, though in common parlance, especially where the two words miner and mucker are used in the context, the word miner takes the narrower meaning of drill- man or machine-man. Mineral. For special meaning see Mineral Act. Vide, sec. 2. Mineral Claim. Vide Claim. Mineeal in Place. Vide Rock in Place. Miner's Inch. In British Columbia the definition of and rules for Clauses Oonsol. . "The :aken ii the Wat I.] APPENDIX B— GLOSSARY OF MINING TERMS. 867 be measured at the ditch or sluice head. No water shall be taken into a ditch or sluice except in a trough placed horizontally at the place at which the water enters it, and which trough shall be extended two feet beyond the orifice for the discharge of the water. One inch of water shall mean the quantity that will pass through an orifice two inches high by half an inch wide made in a two-inch plank, the water to have a constant head of seven inches above the upper side of the orifice, and every additional inch of water shall mean so much as will pass through the said orifice extended horizontally half an inch. In cubic measurement, one inch of water shall mean a flow of water equal to 1.68 cubic feet per minute." This definition is absurd inasmuch as it is contradictory. The volume of water discharged by the above opening is about 25 per cent, greater than 1.68 cub. ft. per minute, according to direct experiments by Tlios. Drummond, C.E., carried out in Hydraulic Laboratory of McGill University. Furthermore, multiples of the initial opening extended horizontally do not in any way give the same multiples of the original discharge. It is furthermore practically impossible to maintain " a constant head of seven inches " as called for by the Statute. This part of the section is, therefore, impossible in practice and a dead letter. The remainder of the section, viz.. " In cubic measurement one inch of water shall mean a flow of water equal to 1.68 cubic feet per minute " may be taken as the legal " Miner's Inch " of British Columbia, which as the Statute does not define it, is assumed to run for 24 hours each day, unless otherwise specified. The Miner's Inch was devised in the early days of placer mining in California, and was supposed to represent the quantity of water flowing through a square hole of one inch side, cut in a board one inch thick, the head being specified. It was simply a means of apportioning the water among the miners, and varied in quantity in every different place it was used. California found it necessary to define the " Inch " by Statute as 1% cub. ft. per minute. • Mining Camp. (1) In a restricted sense the actual place of active mining operations by a number of different claim-holders. (2) In a broader sense, the locality, in general, or even the mining division in which one or more of such camps are in operation. Apparently synonymous with the Australian Mining Propeety. "Shall include te or water right used for mining purposes, ai or used in the working thereof." Mineral, Act, sec. z. Missed Hole. A drilled and charged hole which has missed fire wise failed to explode. A hole in a " round " of holes which has o exploded owing to the rock being displaced by the explosion of other Ji same round is often called a " cut off," because the displacement h holes and cut offs are sources of great dan ger and the Mooch. , To hang about a camp for n tention of acquiring information detrimen Cf. Rubber, and Rubber-neck—Northern B o good obje Moyle. A drill or short bar sharpene d to a squa hitches and in broaching. loaded into cars or buckets. broken out i Mucker. One who loads the muck in to cars or b Noble Metals. Vide Precious Metals. Nodule. A small, rounded, stony concretion. . Nugget. A lump of native gold, silver, copper, &c. Open Cut. A longitudinal surface working not enter Opebatoe. One who works a mine either as ownei Option. See Bond. 868 MARTIN'S MINING CASES. [vol. Ore. A natural mineral compound or admixture, of which usually at least one of the elements is a metal. An economic mineral in a sufficiently concentrated form to admit of it being profitably extracted.—Shipping Oee. Ore sufficiently rich to admit of, or render advisable, its being shipped direct without any preliminary treatment.—Concentbating Ore. Ore in which the valuable mineral is so mixed with gangue, or other matter, as to render it either necessary or advisable to concentrate it before shipping.—Smelting Ore. An ore which from its nature is best treated by a smelting process.—Self-FlujUNG Ore. An ore which from its chemical composition admits of its being smelted without the addition of fluxes.—Milling Obe. An ore amenable to a milling or amalgamating process.—Fbee Milling Ore. Usually a gold, but sometimes a silver, ore, in which the metal is in such a condition as to admit of direct amalgamation.—Dey or Wet Obes. Usually applied to silver ore, which are called ■dry if they do not carry sufficient lead to admit of their being smelted in a lead stack without further admixture of lead. Obe Body. The vein or lode in which ore is found. Obe Chute. A channel for dropping ore down. Ore Reserves. The ore body where exposed ready for stoping. Ore Shoot. The productive belts or areas of a vein. Outcrop. That portion of a vein or stratum appearing at the surface, or immediately under the soil or surface debris. Output. The gross product of a mine. Pan. (1) See Panning, or these combined, in which c Amalgamation. Panning. Aust. and Pac. Washing earth or crushed rock in a pan, by agitation with water, to obtain the particles of greatest specific gravity which it contains (chiefly practiced for gold, also for quick-silver, diamonds, and other Patch. A small placer claim outside of the main gulch. Patio. A yard or court. The space where ore is mixed and amalgamated by tread of horses. Sp. Patio Process. The Mexican method of amalgamation of silver ores. Pay Diet. Pay Gbavel. In placers, such earth as yields a profitable amount of gold. Pay Grade. Vide Pay Ore. Pay Rock. The lode material in which the mineral or pay is found; any metalliferous rock that repays working. Pay Steeak. The richer part of the ore body proper, or the seam of decomposed material which takes its place and preserves the continuity of the ore body; the richer part of the placer deposit. Penthouse, Pentice. A shed or horizontal barricade across one end of a shaft, made of strong timbers, loaded with rock to protect against any accidental fall from above. Petebing. Giving out; failing. Pikeman. The man who cuts or holes the coal; a miner who works with grubber or pike. Little used in America. Pinch. The narrow space where the walls come close together; to nar- Pinch OUT. To compress or squeeze out between strata. Pipe. Vide Chimney. To pipe; to subject to the action of a strong stream of water from an hydraulic nozzle. Prj. A shallow shaft; a coal mine shaft. Pit Coal. Mineral coal, as distinguished from charcoal. Pitch. The dip of a lode. I.] APPENDIX 1 ■GLOSSARY OF MINING TERMS, deposit of g Placer, Spanish, " plaza "—a place. Generally place;" applied to all classes of gold deposit, includi claims, except lodes in place. Gold, tin ore, chromic ire stones are found in placers. Placer Mine: See special definition in Placer Min Pluto at pres -rac Rock Igne cooled under t material in which In the Yukon before the arried by miners and others Pocket. A detached ore body; a nes Pockety. A term applied to a mint detached bodies with intervals of poor 01 plies a slur on the mine. Poke. A small bag of dressed skin or other e the miner carries gold dust or small nuggets. advent of currency such pokes were universally e out of which the current expenses were paid. Post. Vide Legal Post, Discovery Post, Initial Post. Peectous Metals. Gold and Silver. Cf. Mines Royal. Precious Stone Diggings. Vide Diggings. Prospect. (1) An undeveloped property. (2) Sufficient " colours " found in panning as to indicate probable profitable diggings. Pbospecting. A searching for deposits; applied both to the seeking for undiscovered veins and to the investigation of the value of known veins by exploration. Pbospector. One engaged in the above. Pudding Stone. Vide Conglomerate. Pulp. Pulverized ore and water; also applied to dry crushed ore. Pacific. Pup. An offshoot from, or tributary of the " mother " creek or stream— Northern B. C. and Yukon. Quarry. Any open work in rock or ore on a plan of excavating the entire mass " off the face' " as distinguished from working a seam or vein by shafts or approaches under cover. Quartz. A native silicon dioxide (SiO,) either massive or crystallizing in the hexagonal system, and varying in lustre, transparency and colour; an essential element of granite and the hardest of common minerals. The free gold of California being found in quartz, the word was applied to the gangue of such lodes and so to other forms of vein matter, until it is now used vaguely to mean the ore, the float, the gangue, or that part of the gangue which indicates the pay streak, as distinguished from gravel or earth: hence " quartz- mining " and hydraulicing. Quartzose. Containing quartz as the principal ingredient. Ragging. Vide Spall. Raise or Upraise. A shaft or winze which has been worked from lielow. Ravine. Vide Stream. Ra method-of hauling iked < the i Rebellious Ore. Refractory Obe. Vide Ore. Ores not amenat •dinary methods of treatment. Record. (1) An entry in some official book kept for the purpose, ertified copy of the record given by the recorder to the free miner—M ct. (3) "The record of the location of a placer claim." Placer Hi 870 MARTIN'S MINING CASES. [vol. Reef. An Australian term for lode or ledge. Represent. Representation. Placer claims " shall be represented and bona fide worked by the holder thereof or by some person on his behalf continuously as nearly as possible during working hours, and shall be deemed to be abandoned and absolutely forfeited when the same shall have remained unworked on working days for the period of 72 hours except during the close season, some lay over or leave of absence or during sickness or for some other reasonable cause which shall be shewn to the satisfaction of the Gold Commissioner." (2) Also, though not now so generally employed, as signifying the annual performance of assessment work on lode claims; the allegation* that such a claim work had be ng Iegislati en perform an, be ta ed or m ntanaou d in hen tf r i th°f t night be, as required Rests. Rib. 1. by the Mi t: pporting or long In coal m nteth<tJta > solid joal on t ie side of a gallery- wall face; a of coal left for support. 2. The solid ore of a vein; an e longated p liar left to support the hanging wall in work ng out a rre" timber,^ tone, o^ metal set on the bed •ock of a Rim Roc k. Rock Id-bearing deteitus EH s of chart Lisbon The bed rock between Rise. U PRAISE. A shaft oi winze e xcavated upwards. Corn. Rob. Tc gut a mil ie; to w ork foi- the ore i i sight for immediate product without rega rd to pillar ■'shiT1 ie deem ed to me 7 future consideration an and include min eSral not m^oStion .a ? which* or lode, nalfyfo med or d iscovered in the sa eposited, as distinguis ne place hed from t which, rosion of the rocks, is found in v vash, loo se earth gravel o r" sand." Mineral A t, sec. 2. Rocker. See Cradl Roof. T he stratum or rock overlyin g a depos it, or flat vein. Room. 1 Hde Breas Royalty \ Crown, r indivi lual due s on the produce of a mine. Rubbee, ck. On who h ings abou t a camp to pick up informa- e of other miners is said to be necking," or " rubberin r." Cf. Mooch. Rusty. Oxidized. Ore sut posedly coated w th oxide or iron. A oplied to gold which watoOT e So&urT algamat . Pacifi P. Also applied to coal dis- Safety ( AGE. Ac age with a safet * catch". Safety C atch. Ar automa tic devi ie for pr venting the fall of a cage in a shaft or a car in an incline, lpporting cable breaks. AMP. A 1 imp, the flame o f which i so protected that it will not immediately varieties invented by Davy, Stephenson, Clanny, an d others Salting. Fraudule ntly pla ing fort ign ore i Q a mine. Scal. A loosened i ragment of rock thr.eaten ng to break off and fall. Scabfing Splicing timbers so cut that when joined the resulting piece is not thicker it the join : than elsewhere Schist. i, sometime s argills tamorph ic rock with slaty structure usually Scraper. A tool f ar cleaning bore -holes or drill-holes. I.] APPENDIX B. -GLOSSARY OF MINING TERMS. 871 Seam. A thin layer or stratum of rock; (2) A bed of coal. Segregate. To separat •into smaller " Segregated " e the undivided joint ownership of a mining claim claims. Pacific. Segkesations. All thoE finite limits. They differ form; from impregnations by concentration from the a e aggregations Of ore having irregular form but de- from beds and lodes by the irregularity of their by their definite limits. Mineral deposits formed Self-fluxing Ore. Or e which contains all the chemical ingredients neces- the addition of flux. The Boundary (B.C.), ores The Rossland ores require the addition of lime. Selvage. A lining; a i ouge; a thin band of clay often found' in the vein ingredie rest; bu a ting m Shaj ink fro sunk c , the - ining ground, as the assignment of a certain tribute. 2. A species of timbering wherein t regular square formation supporting like These square sets are erected one above ;s of floors connected by ladders. a opening more or less perpendici- Sheer Zone. Sheee Zone Vein. A sheer zone is a belt or series of parallel fracture planes caused by the sheer of rocks when under great compression ; e.g., the sheer zones of Rossland are from, say 20 to .40 feet wide, within which space are a number of parallel fractures or sheeting, planes distant from each other several inches or several feet. Where a sheer zone is impregnated with mineral sufficient to make it ore bearing it becomes a Sheer Zone Vein. Shift. A miner's turn or spell of work. Two shifts imply 16 or 20 hours' work, or as the case may be. Three shifts imply 24 hours' work. Shoot. Vide Chute. Sill. (1) A stratum. (2) A piece of wood laid across a drift to constitute a frame with the posits, and to carry the track of the tramway. Silt. Muddy deposit. Sink Hole. A sump or sink at the bottom of a shaft. Sizing. Separating ores according to size of particles, preparatory to dressing. Usually done by screening. Skep or Skip. An iron box working between guides, in which ore or rock is hoisted. It is distinguished from a kibble which hangs free in the shaft. Corn. Slack. Small coal; coal dirt. See Culm (2). Slant. A heading driven diagonally between the dip and the strike of a Slickensides. Polished and sometimes striated surfaces on the wall of a vein, or on interior joints of the vein material or of rock masses. They are the result of movement. Slide. One kind of fault—the vertical dislocation of a lode. (2)- The mass of loose rock overlying either lode or country. Cf. Debris. Slimes. The most finely crushed ores. Corn. Slope. An opening driven upon the inclination of the vein. j'jtfcj&i Sluice. A series of boxes set in line and floored with riffle blocks to catch 872 MARTIN'S MINING CASES. [vol. Sole. The floor of a horizontal working. Sollae. Any platform or wooden floor or covering in a working. Sourdough. An experienced prospector as distinguished from a Chee- chahko (q.v.) ; so called from a prominent article of his diet, bannocks of water and flour, known as sourdough from the disposition it has to turn sour. In the Yukon Territory one who has seen the ice break up in the Yukon river can Claim the honour of that title. Spall or Spawl. To break ore. Ragging and Cobbing are respectively coarser and finer breaking than spalling, but the terms are often used interchangeably. Pieces of ore thus broken are called spalls. Spae. A name given by miners to any earthy mineral having a distinct cleavabte structure and some lustre; in Cornwall usually quartz; in British Columbia calcite. Spell. A change or turn. Speag. (1) A prop. (2) A short, round, piece of wood used to block the wheels of a car. Spur. A branch or off-shoot from a larger vein. Vide Feeder. Staking. Vide Location. Stamps. Machine for crushing ores by vertical stroke. Station. A main, and frequently a large-sized opening on a level affording ready access for workmen and cars to the shaft. Step Vein. A vein alternately cutting through the strata of country rock, and running parallel with them. Still. 1. A stratum. 2. A piece of wood laid across a drift to constitute a frame with the posts and to carry the track of the tramway. Stope. To excavate ore in a vein by driving horizontally upon it a series of workings, one immediately over the other, or vice versa. Each horizontal working is called a stope (probably a corruption of step) because when a number of them are in progress each working face being a little in advance of the next above or below, the whole face under attack assumes the shape of a flight of stairs. When the first stope is begun at a lower corner of the body of ore to be removed, and, after it has advanced a convenient distance, the next is commenced above it, and so on, the process is called over-hand stoping. When the first stope begins at an upper corner, and the succeeding ones are below it, it is under-hand stoping. The term stoping is loosely applied to any subterranean extraction of ore except that which is incidentally performed in sinking shafts, driving, levels, &c, for the purpose of opening the Stowing. The debris of a vein thrown behind a miner to support the roof or hanging wall of an excavation. Stratum. A bed of rock or earth of any kind. Dana. The plural is Streak. The powder of a mineral, or the mark which it makes when rubbed upon a harder surface. Stream. " ' Streams and ravines ' shall include all natural watercourses whether usually containing water or not, and all rivers, creeks and gulches." Placer Mining Act, sec. 2. Stripping. Removing the earth or rubbish from the outcrop of a vein or from any rock surface. Strike. The extension of a lode or deposit on a horizontal line. Synonymous with Trend and Course. It is at right angles to the dip. Stringer. Narrow branches running off from the vein. Stull. A platform (stull-covering) laid on timbers (stull-pieces), braced Sublimation. The volatilization and condensation of a solid substance ] APPENDIX B.—GLOSSARY OF MINING Sublimation-Theory. The theory that a vein filled Sulphide. The chemical union of sulphur with a metal. Sulphuret. A sulphide. Sulphide is the more recent and approved te Sump. The extension of a shaft, below the level, forming a pit for the lection of water. " Swinging " a Claim. Fraudulently changing the location posts. Tackle. The windlass, rope and bucket. TArLTNGS. The lighter and sandy portions of the ore on a buddle or i sluice. The headings are accumulated or discharged at the upper end, middlings in the middle, while the tailings escape at the foot. The term tail: is used in a general sense for the refuse of reduction processes other t smelting. Thread. An extremely small vein, even thinner than a stringer. Throw. Practically synonymous with Fault and Heave. Timbebing. See various headings such as Set, Lagging, Stull. &c. Trap. In miner's parlance, any dark, igneous, or apparently igneous volcanic rock. , Trend. The course of a vein. Cf. Strike. Tbibutees. Miners who work a set, or piece of ground, taking the ) ceeds as wages, after royalty deducted, but who work under direction of owners, and hold no possession or title as lessees. Trip. A number of cars joined together. Trouble. A fault. Tundra. The moss or scrub covered regions of the Arctic. Tunnel. A horizontal excavation -starting at the surface and driven aci the country for the discovery or working of a lode or lodes. Tut Work. Work paid for by the foot as distinguished from trih work. • Upcast. Upraise. me Rise. lating shaft where the a Vanning. A method of ws Concentrating machines for slim Veins. Aggregations of mi t6; Bainbridge, 2. The word ve metallic beds. It is also applied deposit. Vide Lode. Under sec Place," q.v. Volcanic Rock. Igneous j surface, e.g., lava and amygdaloid. shovel, analogous to panning, called Vanners. Corn. eral matter in fissures of rocks. Von Cotta, a has a broader scope than lode, including mon- n working to small seams threading the greater 2 of Mineral Act, " Vein " includes " Rock in ock which has been cooled at and near the Vn avity 1 the o Waggon Bbeast. One from which ore can Wall. The plane of the country where it when used in reference to lodes. The side of a reference to the workings. Wash. Loose surface deposits of sand, grai Water Level. (1) The level at which, by Vide Mining Propert touches the sit! water level. s removed Wa tee Right We atheetng. pheric agencies. §74 MARTIN'S MINING CASES. [vol Wedging Curb or Wedging Crib. A curb used to make a water-tight join between the tubbing in a shaft and the rock-walls, by means of split deals, moss and wedges, driven in between the curb and the rock. Eng. Wheal. A pit or hole in the ground. A mine. The names of most mines in Cornwall are preceded by the word Wheal. Old form Huel. Whim, Whimsey. A machine for hoisting by means of a vertical drum re volved by horse or steam power. Whip. The simplest horse-power pulley and a hoisting rope passing c attached. White Damp. A poisonous gas ii damp, &c.; believed by some to contain Win. To extract ore or coal. Winch or Windlass. A man-power hoisting horizontal drum with crank handles. Winding. Hoisting with a rope and drum. Winds. Vide Winze. "Winning. (1) A new opening. (2) The porti for working. Winning Headways. Headways driven to exp] seam. Newc. Winze. An interior shaft sunk from a level; i •connecting two levels. Working Bond. An option on a mine with the privilege" of''a ■during the option at the bond-holders' expense, the net proceeds to owner in reduction of the purchase price. tally but not I INDEX-DIGEST TO REPORTS OF CASES. v. Grouse Creek Flume Co 3 (3) Coal Licence.—On the facts of this case, Held, an abandonment of rights under a coal licence. Peck v. Reginam 13 VERSE A Judge exten CTI fflies* ADVERSE j for bring- of the Miner aiV and Amend- The fac been issued i t tha |§S has already Affidavit of Re- g "applied (9) Certificate of IT to record certificate of sumptive evidence of Cranston v. English ABST3NC0E. LEAVE OF. retary of the pany had re of the Count -Iocs ,,.,,, ^..„„. He, upon the assumption that, if the adverse of the Golden Butterfly were sustained, the whole of the Countess location would be invalidated, did not bring an action attacking it on his own behalf until after the expiration of the statutory sixty days from the publication of the notice of application for the He 876 ADVE *SE ACT) ON. ADVERSE Hel ing the ACTION—C «M£to^*t5 AD^ rERSE ACO ordinary cases are to be more stringently applied in mining cases. Kilbourne v. McGuigan ...142 Mineral A r^i^ mi (G) Notice of Appeal—Service (14) I teSn — Delay of the solicitor for the proposed de-. fendants. lb. lifation "to* renf°rtl ° d$N? (7) Affidavit — Husband and Wife.—An affidavit in support of an adverse claim under sec. 37 and amendments may, if bona fide, be made by the husband of the claimant. Aldous v. Hall Mines Co..213 will be refu sed. ?et rid of an a than accordin able a de ? -to** th (8) Certificate of Work—Title. —Where both sides have recorded, title will be determined according to , prior location. Fero v. Hall ... 238 davit.—In Is-lledocZl nP~Affi (9) Curative Provisions, Invocation of by Party.—See Location (16). (10) Adverse Actions are ejectment not trespass actions, and plaintiff must succeed by strength of his own title. Clark v. Haney 281 of making.( his own tit Where claims are ii .The„ e. ?SL£ aSa: (11) Title not Established.— Where both parties fail to establish title Judge will so find and direct judgment to be so entered without costs. Ryan v. McQuillan ...289 2K (12) Proof of Title.—Section 11 of the Mineral Act Amendment Act, 1898, applies to all adverse proceedings, including those commenced be- locator who is plaintiff in adverse proceedings makes out a prima facie case. Schomberg v. Holden .. .290 adverse cla inctioanffimlytbeal ng. — Th d plan ii v. Blaj (13) Certificate of Improvements — Second Adverse Action — imnr0t "" ! o set aside a ce rtificjj-te o. ADVERSE POSSESSION—APPEAL. ransfer—Bill of Sale — -incipal in mineral claim sferred by his agent by lough executed by agent der to extend the time for filing the affidavit and plan required by sec. 37 of the Mineral Act must be made by the Court and cannot be made by a Judge in Chambers. Murphy v. AMENDMENT. of adverse action that an affidavit and plan should be filed as required by Mineral Act, sec. 37, and amend- (3) Abandonment.—After judg-. ment allowing an appeal, and adjournment of the Court, but before the order was drawn up, it was brought to the attention of the Court by special leave that a notice (of which respondents' counsel was not instructed) abandoning the appeal had been served upon respondents' solicitor on the morning of, but be- (22) Judgment in Rem Co- fore the s rgument of the appeal:— Held, Tha t the appeal was at an end sw^o giving of the notice aban- ral Act and the order allowing the appeal no t having been drawn up ASSESSMENT WORK, ANNUAL. APPEAL—Continued. no order would be issued, but the appeal should stand as if struck out of the paper. Re Maple Leap Claim 68 (4) New Defence on Appeal.— Defence setting up defective location cannot be raised for the first time on appeal. Hogg v. Farrell . .. .7!) (5) Time, Extension of — Delay.—The appellant was advised by counsel, up to a period considerably beyond the time for appealing from the judgment of an inferior Court, to acquiesce in it, but he had since been advised by other counsel to appeal, and that special hardship would probably result to him if the judgment were allowed to stand:—Held, an insufficient ground for extending the time for appealing. Trask v. Pellent 86 (6) Cross-Motion — Withdrawal.—A cross-motion to the appeal for a new trial having been served by respondent and adjournments obtained by her to obtain affidavits in support of it, which were subsequently filed, the Court, on objection by defendants, refused to permit the plaintiff to withdraw such application. Atkins v. Coy .... 88 APPEAL—Continued. County Court must be taken below e (13) Costs — Interlocutory Order.—Costs of appeal from interlocutory order are payable Jorthwith. -See Jur] • Jurisdictio (8) Extending Time—Abandoned Appeal — Appeal from Mining Courts.—In extending time for appealing in mining cases, the discretion of the Court will only be exercised on the strongest grounds. Application to extend time to set down appeal on the ground of inability to procure the Judge's notes should be made to the Court for which notice of appeal has been given, and if not so made the appeal will be treated as abandoned. Appeals from Mining Courts may, despite C. S. B. C. 1888, ch. 82, sec. 29, be brought as in ordinary procedure and not only by way of a case stated. Kinney v. Harris . 131 -Agent of aosedadefe ASSESSMENT WORK, 3 represent a claim, the whole of that season being for such purposes expunged from the calendar, and an attempt to locate another claim on the same ground during that season miner-like work on such claim wit! in the meaning of the Mineral Ac 1882, sees. 48 and 50, though in o and highly organized countries would not be. The decision of the Gold Con missioner in granting leave of al sence will not be interfered with va less for fraud. Where a Free Miner finds ai other in possession of his claim s that to insist upon working it migl lead to a breach of the peace, he exonerated from the performance e til the title is d eof 7 tention to abandon. If a claim-holder does not pre erly represent his claim and so rt der it liable to re-location, he ms nevertheless, if he return to it a find it intact, resume possession, commence working and be in " as his old estate." Where one man pretends to present two claim holders at the sai vidence that his able. both c worthless. Woodbury *. — Gold Commis- :upersede statutory GNMENT—COAL. i Gold Commissioner by Jction requiring three k on each claim, instead ark by mistake 5 of claim is a cured by the :side of boundar- regularity which arding of a cer- ASSIGNMENT. See Tra ATTEMPT TO LOCATE BILL OF SALE. BONA FIDE PU 3LOSE SEASON. • Work. 30AL. Discovery of performance of assessme: Woodbuby v. Hudnut .. BRITISH NORTH AMEBIC nder the Miner: 1 on the land s CERTIFICATE of Depar 880 COAL MINE- COAL MINE. (1) Chinese in, See Chinese, and Crown (7), (8;, (10). (2) inspection of. See Discov- COMPANY. Mining Company—Shares -CONVICTION. CONTRACT—Continued. Thus where, on the sale claim, it turned out tlw - [VOL. ing claim owned by it. Granger v. Fotheringham 71 COMPASS BEARING. Error in. See Location (13), (21i, (29). CONDITION PRECEDENT. See Ad- CONSIDERATION. See Contract. CONSTITUTIONAL LAW. See Crown CONTRACT. (1) Sale — Payment by tained a proviso that " failure to make any of the above payments to render this agreement void as to all parties thereto, and the said (vendees) can quit at any time without being liable for any further payments thereunder from such time on." At the request of the vendees the ven- shfpUforP dealing1 rrTlai toppel. — W. sold cert A^who^old hAurn to ants, after which W. a the plaintiff, located a tween two of the claims tiff's name. Held, that defenda right to the fraction in of proof of fraud by W„ plaintiff was a party t held, also, that the defe I.- McNer- the defend- s agent for fraction be- m the plain- nts had no the time for- payment of one of the to \V that the ei instalments. After the original, but before the extended period for mak ing the payment, the vendees notified Gibson v. McAj the vendors that they had quit. (7) Mineral Held, that the liability of the de fendants, the vendees, to pay the in stalment in question was absolute upon the day named in the original which one of th agreement, and remained unaffected by the voluntary concession of fur ther time to pay. Webb v. Mont gomery 129 repaid the loan t (2) Parol Agreement for Part the proceeds of o nership.—See Partnership. (3) Parol establishment of to stand as a ch Agency.—See Frauds, Statute of Held, that t -An e •uted < _. a. mineral claim, being an interest in land, will not be rescinded for mere innocent misrepresentation. But where, by error of both parties and without fraud or deceit, there has been a complete failure of consideration, a court of equity will rescind the contract and compel the vendor to return the purchase money. COOK—CROWN. 881 CORPORATION. Se COSTS. See Trial < (13). COUNTY COURT. - (1 » of.—See Res Fin of I - (2) Transfer to Supreme Court.' -4-Action pending in the County Court will not be transferred to the Supreme Court unless some peculiar questions of expediency arise. . Richards v. Price 140 (3) Mining Jurisdiction—Negligence.—Action for injury in a mine may be brought in County Court, mining jurisdiction. Beamish v. Whitewater Mines, Ltd 405 (4) Jurisdiction. — If jurisdiction is objected to the point must be taken below or will not be entertained on appeal. Special defences must be raised by notice before trial. Gelinas v. Clark 428 COURT, MINING. See Mining Court. COURT. SUPREME, OF BRITISH COLUMBIA. See Supreme Court op British Columbia. McN •CROWN. t Noi s chain '.ase — Forfeiture — .... -Record.—Where mining ground is held from the Crown under a lease, which is subject to forfeiture for non-compliance- with terms and conditions, the Crown alone can declare a forefeiture and re-enter for breach, or waive it Free strangers no rights u°ndSeUrCo a le ase and hav r it. Cess ation of mini lg operation . t'of fur„ tention to abandon, even if that question could be raised by strangers to the lease. The act of recording a claim is the act of the party, and not of the ind already leased by Gi Crown. use Cre (2) Each performance -. Reginam (3) Pr —British j Co. hes i fatal t o specific st Crow n. Peck 13 10 WN—Continued, conveyance by the Province of British Columbia to the Dominion of Canada of " public lands," being in substance an assignment of its right to appropriate the territorial revenues arising therefrom, does not imply any transfer of its interest in re- l the i are not incidents of the land, but belong to the Crown, and under sec. 109 of the British North America Act, 1867, beneficially to. the Province, and an intention to transfer them must be expressed or necessarily implied. Attorney-General op British Columbia-v. Attorney- ■ General Of Canada 52 (4) Right of Crown Provincial to create Mining Courts and appoint Officers.—See Mining Court. (5) Right of Lessees of Timber - Berths from Dominion Government in Canadian Pacific Ry. Belt.—See Water-Rights (2). (6) Precio netals pass only by a pt and precise vt ords of tie words nil rals and substances whatsoe t from the <Vn wn did not the ee. B Nan. K.Y (7) Chinese in Coal Mines- Constitutional Law—Brit. N. Am. Ac*.—The provision in sec. 4 of the Coal Mines Regulation Act; as amended by the Coal Mines Regulation Amendment Act, 1890, sec. 1, that " No Chinaman shall be employed in. or allowed to be for the purpose of employment in. any mine to which this Act applies, . below- ground," is within the constitutional power of the Provincial Legislature s being a regulation of coal mines, and i : ultra ference with the subject of aliens. In re Coal Mines Regulation Act 116 (8) Chinese in Coal Mine—Penalty—Conviction—Certiorari. — The defendant was convicted before two justices of the peace of having employed a Chinaman in a coal mine underground, and was fined $100.00. t application for certiorari ) qua: t the c Held, that a contravention of the amendment to sec. 4 prohibiting the employment of Chinamen was not made an offence under the Act, for which any penalty is imposed, and that the penal Act should not be extended bevond the reasonable con- hich the words used would 56 882 CROWN GRANT—DAMAGES. i>01- CROWN—Continued. CROWN—Continued. The Interpretation Act, sec. 8, self, in a suit to set it aside for sub-sec. 21, providing that " any wil- fraud. Manley v. Collom 487 ful contravention of any Act which ^j gee Fbee Minbb and aj^. is not made an offence of some other donment kind shall be a misdemeanour and punishable accordingly," did not as- CROWN GRANT. Application for, to sist the conviction. Regina v. coai areas and specific performance- Little 220 against Crown, and statutory condi- (9) Order-in-Council - Extend- tions.-See Coal (1). ing Time—Assessment Work.—An (1) Lands—Mineral Claims.— order-in-council under sec. 161 of the An exception of " Lands held as min- Mineral Act, 1896, extending time eral claims " in Crown grant means for doing and recording of assessment de facto claims, and the word " law- work, is intra vires. Peters v. fully " cannot be imported. Nelson, Sampson 247 Etc.. Ry. Co. v. Jeeby 161 (10) Chinese — Coal Mine—B. (2) Lease from Grantee — N. A. Act Naturalization and Squatter.—A Crown grant of a min- Aliens—Constitutional Law.—Held, eral claim vests such a title at least that sec. 4 of the " Coal Mines Regu- in the grantee that a squatter upon lation Act, 1890," which prohibits such lands must show a better title Chinamen of full age from employ- or move off. ment in underground coal workings Where such a squatter takes a is in that respect ultra vires of the tease from the Crown grantee he TOVErded m'erelTas a coal work- ***%**% ^^ I te® ^^ ^ °b" se! JW^^itW°1£STm*^ Per IBVING' J-='-Section 16 of S' ?s ffttf^il Sth i^, the Mineral Act Amendment Act, ica Act But il"exclusive a.tnct 1897- is declaratory. Spencer v'. ica acc. rsut its exclusive appiica- tTat>t>t« ">qa tion to Chinamen who are aliens or -HARRIS ,294 naturalized subjects establishes a (3) Cancellation of. — Under statutory prohibition which is within sec. 86 of the Land Act a defective the exclusive authority of the Dom- Crown grant may be cancelled and a inion Parliament conferred by sec. new one issued at any time irrespec- 91, sub-sec. 25, in regard to "natur- tive of existing certificates of im- alization and aliens." Bryden v. provements for mineral claims con- Union Colliery Co 337 tained in the area of the grant. Re %P§ r, !R . * r American Boy Mineral Claim (11) Certificate of Improve- oai ments—Fraud.—Crown alone can sue - to set aside Certificate of Improve- (4) Landowner—Certificate of ments on ground of fraud. Hand Improvements — Injunction—Policy. v. Warren 376 —Application of Crown grantee of (12) Reversion of Lapsed Loea- mineraTckim °who hfs^eriifteate of ^n to-—See Location (26), (24). improvements. See Improvements, (to), (.-IS). Certificate of (6). j, iW p™°io™ Metals Grant (5) Conflicting Crown Grants— of.—-Where the Crown has granted Title.—Where there are two Crown the precious metals in a parce of grants t0 different parties. for the land a conveyance of such parcel by same daim or overiappmg portions the grantee of the Crown to a third of two ciaims the earlier must pre- person in the ordinary form will pass vail. Victor v. Butler *438 the precious metals, although not specially mentioned. Re St. Eugene CROWN LANDS. See Crown, and Co 406 Location. ment%\r^%HificR:tToTwor^ TURING DEFECTS See Location mone^uS) is the annualren- Certificate of, passim. tal payable to the Crown, and therefore in the case of a valid location D. whenever a dispute arises in which payment of a rent is concerned, the DAMAGES. Trespass.—For trespass, (i.e., payment) is conclusive against nominal damages ($1) viill be all the world, except the Crown it- awarded. Woodbury v. Hud5ut.31 DE FACTO MINERAL CLAIM—EVIDENCE. DEFEC DEPAI TIVE tTME dispt :k v. LOCATION. See Loca- NT OF STATE. (1) Stat- nditions—Waiver of.—Can ;nse with performance of Pe 13 DEVELOPMENT WORK. (5) Inspei Rights—Plan. ■ spection of a i DIVISIONAL COURT. See A DOCUMENTS. Recording of. DILIGENC DISCO VEI EJECTMENT. SCO VERY. (1) Inspbetion of Coal Mine—Form of Order.—Where defendants admit working within the f order considered. Es- EMPLOYERS' LIABILITY . Negligence. ENTRY. See Location ; Free ESOUTMALT & NANAIMO J BELT OF LANDS. I Mines (3). ESTATE. See Free Miner ; ground, and had also bee leave to do experimental o ment work on the Iron Mas to determine the characte: ESTOPPEL. See Adverse Action (22). See Title TO. See Partnership (2). See Contract (6). j See Location (27). See Owner (5). See Res Judicata (1). EVIDENCE. (1) Certificate of Compliance—A certificate of Assistant Commissioner of Lands and Works is not conclusive evidence of compliance with provisions of Mineral Ordinance 1869. Peck v. Reginam ',»0yaa EXAMINATION EVIDENCE—Continued. (3) Of colourable Re, -FREE MINER. FRAUD. (1) Of Gold ( (5) Measurements. — Where area of mineral claim is in dispute the evidence of one who has made no measurements is of kittle if any -alue. Bleekir v. Chisholm. .. .112 W Dunlop v. Hanei . Lnr .153 EOF. (8) Certificate —Recorded Instruments—Copy.—Under sec. 119 of the Mineral Act a certificate of a mining recorder may. under certain ■conditions, be admitted in evidence 3 as proof of the issu- e of a : artifi tificati of t" ■cording of a certificate of work may Copies of instruments recorded Under sec. 115 may be likewise admitted without proof of ldss of original and without notice. Pavter v. Snow 384 Whi and wit in the meaning of the Statute of Frauds is doubtful, but under the circumstances the defendant was a trustee for the plaintiff and could not set up said statute as a defence against him. . . Per McCreight. J.:—That, if the title to a mineral claim is an interest in land within the Statute of Frauds, it is so only by reason of the Mineral Act, and in order to take advantage of the defence of the Statute of Frauds, the Mineral Act should also be pleaded. Wells v. Petty 147 Miner.—Per Drake. J.:—The interest of a free miner in his claim is an interest in land within the Statute of Frauds. Stussi v. Brown 195 pedchnient—Fraud.—Conclusive evidence of performance of assessment work as between subjects till impeached by Crown for fraud. Man- HXAMINATION. See Discovei EXECUTION. See Sheriff. EXTENDING TIME. See Time. EXTRALATERAL RIGHTS. See Dis- FIERI FACIAS. See Execution. FOREIGN TERRITORY, Location cipal, will, if he repudiate the trust, .be declared a trustee for such principal. Fero v. Hall 238 (4) Trust—Location — Agent. —An agent who locates in his own name a mineral claim for his principal cannot if he repudiate the trust in the absence of anv writing to satisfy the Statute of Frauds, be declared a trustee for such principal. FREE MINER. FREE MINER'S INTEREST. FREE MINER'S CERTIFICATE. FORFEI Crow ru RE d I See Aban ^ree Miner. donm ENTj" Crown, may relieve^ agates the the for- FRAOTI Al JINERAL (11, 4JM. one en ntap of See I (29). such ex RY OF MINING TERMS—IMPROVEMENT ute of Fran "Ute of. ds.-See Fraui s, Sta- er*s(interes In procledfof sale of -Sei¥i: ce\(8)\ t6' P Officer. eal.—T>e of absence will not, on appeal, be interfered with except for fraud. Woodbuby v. Hudnut 31 (2) Powers of Gold Commissioner over Close Season.—Under the Mineral Act, 1884. and Amendments of 1886-7, a Gold Commissioner has no power to declare a close season or IMPROVEMENTS—*: INJUNCTION—JURY- ted. INTEREST of Free it—Applica- Miner*. tolheSques"- INTEREST in Land. > of taking the oath time When the affi- [VOL. e Free INTRA VIRES. See Crown. INVALID LOCATION. See Location. OINDER OF PARTIES. See Pa JOIOT TRANSFEREE. verse Action (22). (2) Delivery of. — A judgmen signed by the Judge and inclosed ii a letter directed to the proper dis trict registrar and left in the lav Courts in the customary place fo: deposit in the mail, is pronounced 01 . Dunlop. .408 9MENT CREDITOR. Certificate of (3). Court (1). oner—Crown Grant - When will not be (2) 0/ Court to extend Time.— See Adverse Action (5). liner from obtaining tCHASER. See (3) Of Objection to. oi County Court, must be taken below or will Gelinas v. Clark °. 428 Discovery. JURY. (1) Rule as to in Mining Actions.—Generally, in idVerse actions the issues cannot be tfcitsd by a jury. Corbin v. Lookout Mining Co. .126 JUS TERTII-LOCATION and RE-LOCATION. LIEN. See Mechanics' Lien. LOAN. See Contract (7). tion either party has the right to LOCATION AND RE-LOCATION. (1) trial by jury under Rule 331, sub- Re-location of Existing Location- it to Rule 332 which applied to "Jumping."—An attempt to locate he present case (one of extralateral ■ights), because it required scienti" ir local investigation which could n onveniently be made by a jut ron Mask Co. v. Centre Stj .300 ! TERT j Tn aSce°a 'aTatest^th Crown See Crow D W >RKS, Assis a existing valid location mereiy an unauthorized trespass— jumping." Woodbury v. Hud- ; V. FOTHERINt (3) Defectit Post.—A locatio . FOTHERING- 71 in Other's Pellent v. Almoure 134 (7) Re-location—Permission of Gold Commissioner.—Before re-loca- ' abandonment of an invalid location and obtain permission of Gold Commissioner, ell y. i34 vtion and Working.— ictualiy occupied and as a mineral claim i location. Water- (8) Occu 888 LOCATION AND RE-LOOiTION. LOCATION, ETC.—Continued. ' LOCATION, ET LOCATION AND RE-LOCATION. the " approximate compass bearing " of No. 2 post Invalidates a location. Such defect, if of a character calculated to mislead, cannot be cured by sec. 10 (g), nor by a certificate of work under sec. 28. Section 28 only cures little irregularities after location, and record, which do not go to the root of title. If ■rded i ai-opei r becomes 28 of the Miner: :ation and cannot 1 ■ort of a so-calle 3ver existed. Wi 1 —Lapsed Loca- 413 loca t be- Pr, i senior location wei valid at the time of the location b the junior locator, if the senior sul sequently lapsed the junior locatio would become entitled to the ovei lapped area as against a third loca- the jui B had n arded ertificate of work before the mak- ' ird location; the junior ie life of the senior was rnvalidity—Re-locat ng—Misleadirtg^Oi —Proof—Title—Fr, (g) anc then by 28 in its pt corded; and th ind existing location on is invalid to at f the ground already of work abandonn . The work is is presumptive evidence ot recording of a certificate of payment of rent is concerned the production of the certificate of work (i.e., payment) is conclusive against all the world, except the Crown itself, in a suit to set it aside for fraud. OANt25) Record of T-amfzr—EffKt wriieinvSFd\teba1ocation°f ^°' % V°^ of failur to. — See Registration Such defect if of a character cal- (26) Re-location—Lapsed Loca- l>y sec. 16° (g?. nor by^certificate of s purported to be made on [ready covered by a valid valid to at least the extent Failure to discover " mineral in aund already covered by the place" invalidates a location, and ation. On the lapse of the such discovery must be established as a fact when the onus of proving it is the Crow .'.' A 401 upon the locator—belief is insufficient. Manley. v. Collom 487 •890 LOCATION LINE—NEGLIGENCE. LOCATION LINE. See Location (4), MINERAL IN PI claim. Holden Mining Co. ... . Bright Prospect A statement in the affidavit tha ished or discontinue sufficient. 76. Bonded Claim.- a bondholder wh STwwkington MINING CLAIM. See Mineral Claim, Location. MINING COURTS. (1) Creation and Officers.—It is competent for the Pro- to fix their jurisdiction, but not to appoint any officers thereof, with other than ministerial powers. Burk v. Tunstall 61 (2) Appeals from. See Appeal MINING PROPERTY, Taxation of. MINING RECORDER. See Certificate, Registration, Gold Commissioner, Public Offices. MINING STATUTES, PROCLAMA- on the mine if the bond-holde The words "at the instartc from those " at the request " o lien does MISLE MISTA1 ADING LOCATION. t (9), (13), (17), XE of Public Officer. See Loca- 21), (29). See Pub- MINE. See Mineral Claim, Location. MINE-OWNER, Duty of. See Negli- MINERAL CLAIM. (1) Location, Record and Abandonment of. '— See Location, Record, Abandonment. (2) Sale of.—See Contract. (3) If interest in land.—See Frauds, Statute of. TURALI. GLIGENt 3ted at the top level only. Held, on the facts, that negli- nce had not been shown. Stamer Hall Mines Co 314 (2) lb.—Section 25 of the In- ection of Metalliferous Mines Act is not intended to Impose unrea- nable burdens upon the mine own- NEGLIGEXC: used for NOTICE OF APPEAL-PARTNERSHIP. OWNER—Continued. falling material " within the meaning of that term as used in r. 20 of sec. 25 of the Metalliferous Mines Inspection Act, and the amendment of 1899 (cap. 49, sec. 12), does OCCUPATION. Occupation of a mineral claim ordinarily consists of a valid location and record. Water- house V. LlFTCHILD 153 (5) Co-owners and Owners — Adverse Action—Sec. ST.—One co- owner of a mineral claim is not estopped by the result of such action instituted by an adverse claimant against another co-owner who has applied for a certificate of improve- Section 37 does not apply to co- owners of the same claim, but owners of conflicting claims. Fry v. Bots- OWXER OF LAND. See Landowner. ONUS OF PROOF. See Proof. OVERLAPPING CLAIMS. Boundary —Overlapping.—Locations which do not overlap do not conflict, at least in so far as the boundaries are concerned. Dunlop v. Haney 344 See Adverse Action, Evidence, OFFICIAL OF •ORDINANCES, MINING. ■OWNER of Mining Property, shares in an incorporated mil heaminPeral tendante Van iSatbt Haney SU<h.. ° Kop"| CTNERSHIP. Claim for Par (1) Lot fnnn it" ship, and the v. Petty aall be equa are both to eral claim r partner- \. Wells 147 (2) Liabii n 126 of tl a Mineral t for sale MoNer- 892 PEACE-PUBLIC OFFICER. PARTNERSHIP—Continued. POLICY OF (5) Development Work—Share (2) 1 s by One Co- Policy of Pa Nej PEACE. • Pe PLACER CLAIM. PLAN. See Advers PLEADING. (1) General Denial—A, peal.—A general denial is bad an not only will- be disregarded but tl allegations must be taken as admi ted. If it is intended to rely on not compliance with the requirements i the Mineral Act as to location, t otherwise, this must pleaded and the materi on which reliance is ] Defences of such time. Hogg v. Farm Aldous v. Hall M» -61 POST. See Lot oal ('16>> (17»- '?!? POSTPONEME ment should set out particulars of the title under which the claim is advanced. Esquimalt and Nan. Ry. Co. v. New Vancouver Coal Co.237 lb. PROOF. IJ PUBLIC POLICY-SPECIFIC PERFORMANCE. PUBLIC OFFICER—Continued. REGISTRATION—Continued. (2) Public Policy — Improper not afford relief before recor Conduct—Equitable Principles.—The veyance. Grutchfield i Court should deal with mining dis- bottle putes upon the principles of a Court of Equity, and should discountenance a plaintiff, whose action is based upon defects in title, knowledge of which was acquired by him while a Government employee in a r>TOc<r,TC!c!T/-»xT c „ mining record office, it being contrary RESCISSION. See Contract. t° n« such information'^fipli™ RES?5?^S?._°J' MINER. See Assess- 39G PROVISIONS. See Cur- -. Fothei 71 ien the titles t PUBLIC POLICY. PURCHASER, Noti RE-LC REGIS Qumre : Whether mining records otice, and to what extent? of the judgment creditor a special Atkins v. Coy SS the Mineral' Act Amendment Act of (2) N otice — Record.—Though 1899, in the name of the owner of the documents duly recorded are notice jnt purchasers, the mere otice of claim being filed sheriff power to renew a certificate Norman ...' "...510 Recorder is not notice. Stussi v. I rown 195 SILVER. Discovery of, in B. C. See 13) E fleet of non-record on Preface. Location.— Failure to record a con- SOLICITOR. Service of Notice of Ap der sec. 49 of the Mineral peal on Agent.—Notice of appeal ot result in thfi claim be- may be served on agent of solicitor ste lands of the Crown for proposed defendants in an ad open to loc verse action. Kilboubne v. Mc There tjyeen sees is an apparent conflict be- 49 and 50 which can be Guigan 142 SPRnTiTTO PERFORM A NOltl Sep. jreJy that a Court should SQUATTER. See Crown Grant (2). STAKE. See Post. STATE. See Department of State. CLAIM AND DE- ?ee Frauds. Table and Re- STATUTE OF FRAUDS. STATUTES, MINING, print of. See Appendix, uu isni- utes. STATUTORY CONDITIONS. See Condition Precedent. STRANGER. See Cbown (1). El—TITLE. TITLE. (1) Estopp up as against i MU Root ofl itle.— Locati cordi title. to th Hall Mini s C 01 Pleading — Title Vork— Where both sides have re- orded certificates of work, title will e determined according to prior loca- ion and record. Fero v. Hall. .238 ..504 SUPREME COURT OF BRITISH COLUMBIA. Judge in Chambers- Time—Extension.—Order extending time for bringing adverse action must be made by Court and not by a Judge in Chambers. Murphy v. Star Mining Co 450 SURRENDER. See Abandonme: SURVEY of Mine. See Discovej OF MINING Action (12), (8) Onus of Proof.—Where a location is alleged to be invalid on the ground that it was made upon an existing valid location, that fact must be established, particularly where the location attacked was otherwise valid and orded 1 9) Onus of Proof int, and if he is j establish his cas Pa ..384 TERMS—Gloss , and Free Min- iry of Mining. See Pre- TIMBER-LEASE. Rights of timber lessees from Dominion Government. See Water-bights (2). TIME. (1) Extending Time to bring Adverse Action. See Adverse Action (1), (2), (3), (5), (16), (201. (2) Extending Time to bring Appeal. See Appeal (5), (8). (3) Extending Time for Assessment Work. See Crown (9), of the Miner MEYER V. Cl (12) Cc u TITLE—( 1898, affirm TRANSFER-WATER CLAUSES CONSOLIDATION ACT. e of title, does n be give the cl Cook v fendant is the senior locate] mission by the plaintiff, th. locator, that the defendant 1 recorded certificates of work, and £ the : adjo : for that purpose, obtained the adjournment, but on the terms that all costs- occasioned thereby should be borne by them in any event. . Held, on appeal that such costs, should abide the result of the issues Mask Co. v. Centre Stab Co.. .362 . Denh 1.441 UNDERTAKING Unlawful Re-location —Attempt to locate a xisting valid location lauthorized trespass— WOODBUEY V. HUD- ....31 —The practice 3 should be dis v. Fotheeing UNOCCUPIED LANDS OF CROWN. VEIN. VENDC TRIAL. (1) B. (2) Frc case of adv closed, and v WATER CLAUSES CROWN. CONSOL. S96 WATER, WATER-RIGHTS—WORDS AND PHRASES. WATER. WATE'R-RIGHTS. Grant — Hill Claims — Co Rights—Gold Ordinance, 18( der the Gold Mining Ordinane unless the owner of a hill cl obtained a grant of water une X. he has no right to intercei higher up a stream that flows • past with ar ■ of £ WATER, ETC.—Continued. cation for a record of the same water for domestic, mechanical and industrial purposes should not be adjudicated upon by an Assistant Commissioner of Lands and Works without express notice to the applicants before the Gold Commissioner. A water notice posted on a board used for such notices, in a hall, leading to the rooms occupied by th© Commissioner and his staff, is posted in the office of the Commissioner within the meaning of sec. 9 of the Water Clauses Consolidation Act. Where an application is not contested the Commissioner need not : the ( ian proprietors to an injunction re- his notice than he is entitled to that focated^un-ste^m after ^ does not invalidate the notice; it is valid for that which he is entitled to, and it is the duty of the Gold Commissioner to adjudicate upon and not reject the application. Semble: A supply of- water for fire purposes may be necessary as being directly connected with the der the Placer Mining Act, 1891. does working of a mine or incident there to. Re Water Clauses Consol. the detriment of the rights of others. Act .460 The Dominion Government is in possession of said lands within the (6) Water Record—Priority- railway belt as trustee to administer Pending and Conflicting Applications. —Where two different officials are grant a timber lease to the plaintiffs, called upon to exercise their functions who would have the right to the use of the water flowing through their rights respecting the same water, the limits in its ordinary and natural official who is determining the later condition. Columbia Rivee Lum ber Co. v. Yuill 64 til. the final result of. the prior ap (3) Water Clauses Consol. Act plication before the other official is known. Re Water Clauses Con- affected by a decision appealed from under sec. 36 of„the Water Clauses Consolidation Act. may be let in on WITNESSES. See Evidence. the monthfor giving notice of appeal WORDS AND PHRASES. "Adverse Proceedings."—Dunlop v. Haney Such person mav make his ap '„"«■,'■■ '369 plication on the hearing of appellant's motion for directions. Re reques^'-ANDER^ON11 v ^odsIl . 416 Water Clauses Consol. Act. .421 " Costly."—Nelson. Etc., Ry. (4) Water Clauses Consol. Act —Notice—" Tn the Office " — Con- -flicting and Concurrent Applications —Evidence and Procedure.—Where an application for a record of water for mining purposes is pending before a Gold Commissioner, an appli- WORK, CERTIFICATE WORDS AND Fr Lar "In the Office."—Re Water Clauses Con. Act 422 " Lands."—Atty.-Gen. of B. C. v. Atty.-Gen. of Canada 52 Bainbridge v. Esq. and Nan. Ry. Co 98 " Lands held as Mineral Claims;" "Lawfully." See Mineral Claim (4) ; Crown Grant (1). "Mineral in Place."—Manley v. Collom 487 " Public Lands." See Ceown (3). "Rock in Place."—Nelson & Foet Sheppard Ry. Co. v. Jerry 161 "Trial." See Dunlop v. Haney 344 " Valuable deposit of Mineral.;" " Costly." lb. " Water naturally flowing."— Jenny Lind Co. v. Bradley-Nicholson Co 9 WORK, CERTIFICATE OF. (1) Curative Effect of—Irregularity. — See Location (9), (13), (15), (16), (17), (21), (23), (24), (2) Title.—Where both parties have recorded certificates of work, the title will be determined according to prior location and record. Fero v. Hall 238 (3) Order-in-Council Extending Time for Assessment Work—-Irregularity—Delay.—An Order-in-Council, under sec. 161 of the Mineral Act, 1896, extending the time for the doing and recording of as work on a mineral claim, rtificat pursuant to permission granted t Gold Commissioner acting under s an Order-in-Council, is a good ce ficate within sec. 28 of the said i The word " irregularity," in 28, extends to the certificate of w itself. orded Delay in rec ording such a ficate of work is a n irregularity is cured by said s ec. 28. Meaning of sidered. Peters v. Sampson. to mislead, such defect cam cured by recording certificate o: which only cures little irregul which do not go to the root o Callahan v. Coplen (5; (6) Curative, Effect - Lapsed Location—Reversion. — Irregularity. See Location (23). Pavier v. Snow 384 (7) Abandonment—Mineral in Place.—Failure to record certificate of work is presumptive evidence of abandonment. Record of certificate of work is an answer to objection that mineral in place was not discovered. Cranston v. English Canadian Co..394 Tri (9) Fraud.—Certificate of work cannot be invoked in support of so- called location which has been fraudulently changed. Wise v. Christopher 413 (10) Re-location—Lapsed Location—Irregularity— Cur- H of Certificate on.—See (28). Gelinas v. Clark, (11) Irregularity— Assessment Work—Mistake of Officials-Curative Provisions—Time.—If a free miner by mistake perform his assessment work outside the boundaries of his claim that is an irregularity which is cured by recording a certificate of The Attorney-General is the only party who could attack such certi- If a free miner is misled by the statement of the Gold Commissioner, and consequently neglects to give the notice required by sec. 24, and makes an incorrect affidavit, he is protected by sec. 53. The effect of sec. 53 of the Min- ' , 1898, is to provide ' of t vithin v l be obtained. La\ i the WRIT OF EXECUTION—YUKON. JERTIFIOATE OF.—Continued WORK, CERTIFICATE OF.—Continued rtificate of work is not irregular evidence of performance of assess- - Evidence of Title.—See Title (14). WRIT OF EXECUTION. See Sheriff. WRIT OF SUMMONS. (1) Service within Year.—It writ is not served within a year the adverse action is out of Court. Troup v. Kilbourne 219 (2) Renewal.—Must be reason- delay in serving, are expiry will be See Assess- MARTIN'S MINING CASES, Vol. i SUPPLEMENT, Vol. I /, and , '. of the Jam ish Columbia. Booker v. Wellington Colliery Co. (1902, 9 B. C, 265.) 1902, Nov. 6. On appeal to the Supreme Court of Canada the decision of the Full Court of British Columbia was affirmed, judgment being delivered orally at the close of the argument, dismissing the appeal. This case, arising out of an accident in a coal mine, was originally tried by Martin, J., and a special jury at Nanaimo on December 19 and 20, 1901, and resulted in a verdict for the plaintiff for $1,424. An appeal was taken to the Full Court, and judgment was delivered on June 27, 1902, dismissing the appeal. At the trial the case was given to the jury solely as one of negligence in regard to the defendants running a trip of cars down the slope during prohibited hours. The only reason why the case is now noticed is because it might possibly be inferred from some re- , marks in the judgment of the learned Chief Justice that Rule 11 of sec. 82 of the Coal Mines Regulation Act had been under review at the trial, but the case turned on the question of negligence simply, and so is not a mining case. Paulson v. Beaman. (Ante, p. 471.) 1902, Nov. 17. On appeal to the Supreme Court of Canada the decision of the Full Court of British Columbia was reversed, and that of the trial Judge, Martin, J., restored for the reasons given by Hunter, C.J. (Tas- chereau, J„ dissenting.) MARTIN'S MINING CASES. McKelvey v. Le Roi Mining Co. Ltd. (Ante, p. 477.) 1902, Nov. 17. On appeal to the Supreme Court of Canada the decision ' of the Full Court was reversed on the question of negligence, apart from statutory duty, a point which had been deliberately abandoned by counsel on the argument before the Full Court, and who directed his argument solely to the question of statutory liability for alleged non-compliance with the "Inspection of Metalliferous Mines Act," and amendments, requiring shafts to be protected from falling material. The Full Court consequently considered that question only, and decided that there had been no breach of such provision, and that a cage was not " falling material" within the meaning of the Act. The result is, therefore, that its real decision has not been disturbed though its formal judgment has been reversed. (Note: Feb. 12, 1903.) The Privy Council dismissed the petition of the defendant company for leave to appeal. McJSTaught v.. Van Norman. (Ante, p. 516.) 1902, Nov. 17. On appeal to the Supreme Court of Canada tne the Full Court was affirmed (Sedgewick, J., dissenting). The written judgment of the Court was delivered by Taschereau, J., and proceeded on the same grounds as those taken by the Court below. Centre Star Mining Co. v. City of Eossland. 1903, Jan. 26. Held by the Full Court (Walkem, Drake, Irving and Martin, JJ.), affirming an order of Hunter, C.J., of October 22, 1902, that the water record on Stoney Creek, held by the City of Rossland under a special Act, " Rossland Water and Light Company Incorporation Act of 1896," could not, having regard to sec. 42 of that Act and the general scope and object of the " Water Clauses Consolidation Act," and in particular sees. 2, 4, and 18, prevent the issue of an interim record to the Centre Star Mining Co. under said section 18 for any water not now being " used for a beneficial purpose " by the City of Rossland, though ■such waste water was covered by its prior and existing record uifder the said special Act. .Per Martin, J. The right of the City under its record to the water not at present being " used for a beneficial purpose " was not lost but only dormant, and could be revived if the necessity arose for the use "of the -water now going to waste. H H^(; SUPPLEMENT. 'A Star Mining Co. v. Byron 3ST. White Co. (Ante, p. 513.) 1903, Feb. 7. On appeal to the Full Court (Hunter, C.J., Irving and Drake, JJ.) the order of Martin, J., was affirmed. Held also : the right to inspect underground workings in a mine carries with it the right to inspect and maKe copies of the plans of such Part 5 of Vol. 32 of the Supreme Court Reports, just received, contains reports of the following cases above mentioned: — Paulson v. Beaman 655 McKelvey v. Le Roi Mining Co 664 McNaught v. Van Norman A 690 And Hartley v. Matson, p. 645, should be added to the list of authorities cited in the note to Canadian Company v. Grouse Creek Flume Co. (p. 3) as supporting the judgment of Needham, C.J. ARCHER MARTIN. :Law Courts, Victoria, B.C., March 13. 1903. The University of British Columbia. Library DUE DATE SERIALS Mi 4 raw ET-7 LAW LIBRARY 3"9424"02664 0877 "
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KEB349.A47 R47 1903 (LC)
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Original Format: University of British Columbia. Library. Law Library. KEB349.A47 R47 1903 (LC)
Mining claims--British Columbia
Mining law--British Columbia--Cases
Mining claims
Reports of mining cases decided by the courts of British Columbia and the courts of appeal therefrom to the 1st of October, 1902; with an appendix of mining statutes from 1853 to 1902; and a glossary of mining terms
Text