1866. STEVENS v. WEBSTER. Judgment. owner of Crown lands, may prevent it. On the whole my answer is, that the Plaintiffs are not entitled to the water under the circumstances, and the owner of the dam is not entitled to a drainage area for the supply of the dam or reservoir. VIVIAN AND OTHERS, APPELLANTS, v. DENNIS AND APPEAL PEAL from the Court of Mines of the Mining District of Castlemaine. The following statements are taken from the case stated by the Judge of the Court. 1866. Nov. 16, 26. Plaintiffs, occupants of ground held under a perinit from a Warden for the erec tion of ma chinery, complained of a their area, by trespass under the holders of a claim on the Beehive Reef at Maldon, who followed the dips and angles of the reef, under the authority Local Court Regulations of 6th March, 1857. of No. 3 of the On the 1st of May, 1866, Dennis and others instituted in the Court of Mines at Maldon a suit in which they alleged that they were, and had been since the 9th of April, 1858, in possession of a piece of land on the Beehive Reef, commonly known as "The Great Western Company's Grant," under a "permit" or grant signed by a Warden; that for the same period they had been in possession of and claimed to occupy under their miners' rights a piece of land adjoining to that occupied under the "permit," extending twenty-three feet easterly to within 100 feet of the base line of the reef; and that the Defendants had trespassed upon both pieces of land and taken therefrom auriferous stone. The Plaintiffs prayed that the Defendants might be ordered to remove therefrom and to make compensation to them. On hearing the case it appeared that the Plaintiffs had on the 9th of April, 1858, obtained from the Warden a document authorising them to erect machinery on land described on a plan deposited in the that the plainWarden's office on the condition of their making a road round the lower end of the ground for the convenience of the Defendants Vivian and others, and allowing them sufficient water to feed their machine. Under this document the Plaintiffs went into possession of the ground, erected machinery, sank a shaft, and crushed quartz raised by themselves and others. The Plaintiffs held miners' Held, reversing the judgment of the Court of Mines, that such regula tion was not ultra vires; tiffs who had mined in their machine area could have no title to the reef in dispute but that of unlawful occupation; and that the defendants were in con structive possession of the gold as connected with the reef on which their claim was marked out. Section 73 of the " Mining Statute 1865" has a retrospective operation. D 1866. VIVIAN v. DENNIS. Statement. rights when they obtained the permit, and by such means continued in occupation until the commencement of the suit. They first struck the reef at the bottom of the shaft, obtained gold in December, 1863, and continued working the reef. The Defendants, Virian and others, in May, 1855, took up a claim on the Beehive Reef, and after publication of the Local Court Rules, published on the 6th of March, 1857, marked out their claim, measured along eighty feet of the course of the reef north and south. The third rule of these regulations was as follows:— "The "width of claim from east to west shall be 200 feet-100 "feet on each side of the working shaft on the line of reef, "and the holders of quartz claims shall be entitled to the "dips and angles of all reefs found within the reef, and 66 may follow the same to whatever distance they may dip, "east or west." The width of claim was increased to.400 feet by a by-law of May, 1859, and by by-law of the 18th of August, 1863, further extended to 600 feet; and provisions were made for marking off and registering claims. The Defendants marked off and registered their extended claim accordingly on the 22nd of January, 1864, the Plaintiffs unsuccessfully opposing the registration. The Defendants continued to work their claim ever since the time when they first took it up, and were during all that time holders of miners' rights. Before the commencement of the suit the Defendants, following the dip of the reef, undermined the land, the surface of which was occupied by the Plaintiffs. This was the trespass complained of. The locality of the alleged trespass was more than 100 feet but less than 200 feet westerly from the Defendants' shaft, and about 143 feet westerly from the base line of reef. The Judge's finding was as follows:-" "I find as a "matter of fact that the Plaintiffs were in occupation of "the piece of ground called the Great Western Com"pany's Grant, by virtue of their miners' rights, previous "to the Defendants' claim accruing; and that the Defen"dants trespassed on the said piece of ground." A decree was made for the Plaintiffs for £620 damages, and £30 costs. 1866. VIVIAN v. DENNIS. Statement. Mr. Fellows and Mr. Holroyd for the Appellants (Defen- Argument. dants below). The grounds of appeal are substantially that the Defendants have a title and the Plaintiffs have none. The Plaintiffs rely upon the permit or grant from the Warden, and at the same time repudiate the restrictions which it imposes and seek to convert the permissive occupation of a machine area into a title to mine beneath it to the exclusion of everybody else. The Defendants are at least justified in acting on the received construction of a local by-law, as against the Plaintiffs who can pretend to no legal justification, as the Local Court not the Warden had power to grant a machine area. The provisions as to dips and angles are not void for uncertainty, but within the maxim, "Id certum est quod certum reddi potest." The Defendants were in legal possession of the gold which they are alleged to have taken by a trespass. Being in possession of part of the reef they were in constructive legal possession of all within their boundaries. Assuming the Plaintiffs to have been in lawful occupation of the surface, their rights did not extend "ad inferos." A pastoral tenant might with equal justice claim to hold his run as a mining property. The surface may be in one, the subsoil in another. Cox v. Glue (m). Mr. J. W. Stephen and Mr Helm for the Respondents (Plaintiffs below).-The case has been argued as one of conflicting titles, but the Plaintiffs are not to prove title, being in occupation under their miners' rights. The Plaintiffs, however, have a title under their miners' rights, and the Act 18 Vic., No. 37, the provisions of which were kept (m) 5 C. B., 533. 1866. VIVIAN v. DENNIS. alive in their favor by 21 Vic., No. 32, secs. 130 and 131. The definition of a claim as regards the Plaintiffs is to be found in the former Act, not in the by-laws by which claims were to be defined under the latter. The miner's Argument. right, authorised mining for gold on any waste lands of the Crown, an area was only prescribed for residence. The power to make rules and regulations, given by sec. 17 of the Act No. 37, was permissive, to supplement the provisions of the Act, but the Act itself contained all its essential definitions, independent of any exercise of the power. There are no exceptions in the permit given by the Warden. Cox v. Glue is therefore inapplicable. The permit being for quartz crushing is for mining purposes. Harvey v. Rodda (n). The Defendants could in no event interfere with our possession without obtaining a Warden's order under sec. 77 of Act No. 32. Critchley v. Graham (0). The Defendants never properly marked out their extended area, and the regulation as to dips and angles is ultra vires, void for insensibility, and can give the Defendants no right to go beyond their original limit of 100 feet east and west of the reef. McGill v. Tatham (p), Fahey v. Koh-i-noor Company (g). Mr. Holroyd in reply.-We could not have applied under sec. 77 of Act No. 32, as by doing so we must have admitted the Plaintiffs' possession, and recognised their claim to occupy under that Act. Nov. 26. MR. JUSTICE MOLESWORTH :— Cur, adv. vult. Judgment. The Plaintiffs' right appears to be as follows:-Persons whom the Plaintiffs now represent, on the 9th April, 1858, (n) Ante, Vol. I. Law, 21. now reported, Ante Vol. II. Law, 52. (q) Ante, p. 4. |