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 dnmtU ICam &tt|onl Eihrary 
 
Cornell University Library 
 KEB 349.A47M37 
 
 Reports of mining cases decided by the c 
 3 1924 018 103 428 
 
REPORTS OF 
 
 MINING CASES 
 
 DECIDED BY THE COURTS OF BRITISH COLUMBIA AND THE 
 COURTS OF APPEAL THEREFROM TO THE 1ST OF OCTO- 
 BER, 1902 ; WITH AN APPENDIX OF 
 
 MINING STATUTES 
 
 FROM 1853 TO 1902 ; 
 AND A 
 
 GLOSSARY OF MINING TERMS 
 
 BY 
 
 THE HONOURABLE ARCHER MARTIN 
 
 ONE OP THE JUSTICES OF THE SUPREME COURT OF BRITISH C^tCuMBIA, AND THE JUDGE 
 IN ADMIRALTY FOR THAT PROVINCE. 
 
 Author of " The Hudson's Bay Company's Land Tenures" etc.^ etc. 
 
 VWWWA/W 
 
 THE OAKSWELL COMPANY, Limited, 
 
 Toronto, Canada. 
 
 1903. 
 
 /■ 
 
Entered according to Act of the Parliament of Canada, in the year one 
 thousand nine hundred and three, by the Honocbaele AEOHEfi Mabtin, 
 in the Office of the Minister of Agriculture. 
 
 !?(/ 
 
TO THE 
 
 MEMORY 
 
 RICHARD MARTIN, ESQUJRE, MR 
 
 (Surnamed "Humanity," 1754-1834.) 
 
 OF 
 BALLINAHINCH CASTLE IN THE COONTY OF GALWAY, IBELAND, 
 
 AUTHOB OF THE "ACT TO PREVENT THE 
 
 CRUEL AND IMPROPER TREATMENT OP CATTLE "* 
 
 (3 GEO. IV., CAP. 71, 1822), COMMONLY CALLED 
 
 "martin's ACT," AND WHO IN 1821 INTRODUCED INTO 
 
 THE HOUSE OF COMMONS A BILL TO PERMIT PERSONS CHARGED 
 
 WITH CAPITAL OFFENCES TO HATE THE ASSISTANCE OP COUNSEL 
 
 (commonly CALLED THE CAPITAL CRIMES DEFENCE BILl), WHICH 
 
 MEASURE WAS, ON ITS SECOND BEADING ON THE 30tH MABOH, 
 
 THROWN OUT BY THAT ASSEMBLY, AS WAS ALSO HIS 
 
 BILL FOB THE ABOLITION OF CAPITAL 
 
 PUNISHMENT FOB FOBGEBY, 
 
 THIS VOLUME 
 
 Is PeDerentlH Bebkateb 
 
 THE AUTHOR. 
 
 *NoiE. — The first statutory protection given to animals by any civilized 
 nation. 
 
Cornell University 
 Library 
 
 The original of tiiis book is in 
 the Cornell University Library. 
 
 There are no known copyright restrictions in 
 the United States on the use of the text. 
 
 http://www.archive.org/details/cu31924018103428 
 
PREFACE. 
 
 ONE hundred and seventy-two million, two hundred and forty- 
 one thousand, nine hundred and eighty-eight dollars, repre- 
 sent 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 f 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 de- 
 spatchf of August 18th of that year. The results of expedi- 
 tioiis 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. Pemberton, Surveyor-General of Vancouver Island, 
 says§ that, "In 1853 I broke off almost at random pieces of gold-bear- 
 ing 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 usually 
 met with in the south-eastern portion of the Island, and showing that 
 
 * Keporc of the B. C. Minister ot Mines for 1901, pp. 9i9-9iSl. 
 
 t " Correspondence relative to the Discovery of Gold in Queen Charlotte's 
 Island " — Return to House of Commons, 19th July, 1853. 
 
 I "Vancouver Island and British Columbia." London, 1865, p. 154. 
 
 § " Pacts and Figures relating to Vancouver Island and British Columbia." 
 London, 1860, p. 42. 
 
VI PREFACE. 
 
 it is extremely probable that Vancouver Island, when properly ex- 
 plored, will be found to be a gold-producing country." Eecent events 
 have fully justified this opinion. 
 
 So far as gold on the Mainland of British Columbia is concerned 
 the first oflBcial notice thereof is contained in the despatch * of Gover- 
 nor Douglas to the Secretary of State for the Colonies, dated April 16, 
 1856, wherein he states that Angus McDonald, clerk in charge of 
 Fort Colville, a Hudson's Bay Company's post in the Upper Columbia 
 District, had reported to him in a letter dated the 1st of March, " that 
 gold had been found in considerable quantities within the British ter- 
 ritory on the Upper Columbia, and that he is, moreover, of opinion 
 that valuable deposits of gold will be found in many other parts of that 
 country, etc., etc." These gold fields, which were at first called by the 
 Governor the " Couteau Mines " (so named after the tribe of Indians 
 inhabiting that part of the country), on further exploration were found 
 to extend to the Eraser Eiver, and the discoveries thereon led to the 
 great rush of 1858 to that region. Rapidly the miners in that 
 year continued their prospecting up the Fraser from Fort Yale to 
 Ltytton ; from Lytton to Cayoosh (Lillooet), Bridge River, and the 
 Fountain (Pavilion) ; from the Fountain to Fort Alexandria, and 
 thence next year, 1859, to the Quesnel River and Cariboo, properly 
 so-called, where, to quote Governor Douglas, ■' alluvial diggings of 
 extraordinary value " were discovered on Horsefly and Antler 
 Creeks, and, later (1860-1862) on Keithley's, Lightning, Williams 
 and other creeks, resulting in the great rush to Cariboo in these 
 and following years. + 
 
 On Vancouver Island gold was first obtained to any considerable- 
 extent from Leech Eiver, discovered in 186-1 by an expedition organ- 
 ized by Governor Kennedy under the command of Dr. Robert Brown, 
 and stimulated by the prospect of a reward of £1,000 oflEered for " the- 
 discovery of paying gold fields," and earnings as high as $34 per day 
 to the rocker were obtained. | 
 
 * " Correspondence relative to the Discovery of Gold in the Fraaer's River 
 District in British North America.'' Return to House of Commons, July 2, 1858.. 
 
 t " Papers Relative to the Affairs of British Columbia." In 4 Parts, 1859-1862 : 
 House of Commons Return. See Part II, pp. 28 9, 39, 46, 57-8 ; Part III, pp. 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 Report of Geolog. Survey, 1887, Part R., p. 142k. 
 
PllEFACE. vil 
 
 In the previous year, 1863, at Goldstream, near Victoria, several 
 -companies had engaged in working quartz veins with indifferent siic- 
 "Cess. ^Ylth 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, t 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 Gover- 
 nor Douglas, § and was also mentioned by Lieut. Richard C. Mayne^ 
 KN., in May, 1859 ;1T but its existence was first autlientically 
 established by Charles Forbes, M.D., of H.M.S. "Tppaze," 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 Van- 
 couver Island, doubtless at Suquash, specimens being brought in that 
 year by the Indians to Dr. W. F. Tolmie, then stationed at the Hud- 
 son's Bay Company's post, Fort. McLoughlin. on Milbank Sound, + t 
 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. 
 
 J lb. p. 60k., also Journal of Boy. Col. Institute for April, 1893, p. 336. 
 I| Keport of B. C. Minister of Mines, supra, p. 921. It is a fitting place to 
 note here the dates of location, or record, of some of ihe earliest mineral claims 
 in the vicinity of Kootenay Lake, as follows : —The " Blue Bell " was located on 
 -July 31, 1882; the "Kootenay Chief" on October 5, 1882; the "Comfort" on 
 ■October 6, 1882 ; and the " Lulu " was recorded on October 6, 1882. The " Silver 
 King " on Toad Mountain was located on July 6, 1887. 
 
 § Papers Relative to the Affairs of B. C, House of Commons Return, 1859, 
 Pait II, p. 31. 
 
 ^ 76., Part III, p. 33. 
 
 ** lb., Part IV, p. 32, and of. Dawson, siipra, p. 55k. 
 
 tt Dawson, supra. 
 
VIU 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 develop- 
 ment of the industry is traced by Dawson and the annual Eeports of 
 the British Columbia Minister of Mines, to which authorities refer- 
 ence should also be made, and also for information and statistics re- 
 lating to the other minerals of the Province. 
 
 Though the first proclamation and regulations (see Appendix) re- 
 lating 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 lieports of this Province was decided in 1883. Prom 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 
 " 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." Latter- 
 ly, keeping pace with the progress of lode mining, litigation of this 
 character has so much increased, and the reports of cases are so widely 
 scattered through various series of reports of the Courts of this Pro- 
 vince, of the Supreme Court, and of the Judicial Committee of the 
 Privy Council, that it has at last become necessary to begin a series 
 which will deal exclusively with that very important branch of the 
 law of British Columbia. This volume contains all the cases on 
 the subject of permanent interest decided by the Courts of this Pro- 
 vince, so far as I have been able to collect them, as the result of my 
 own efforts and circulars addressed to the Bar. Most of them have 
 already been reported, but I have added several others of utility which 
 
 * " The Great Goldfields of Cariboo," by William Carew Hazlitt, Barrister - 
 at-Law, London, 1862, p. 63 ; Dawson, supra, p. 80b. 
 
PREFACE. IX 
 
 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 aiid corrected wherever necessary. 
 
 It is a diiEcult 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 ap- 
 peal 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 ex- 
 clusively with cases decided on the mining laws of British Columbia. 
 There are, Tt is true, some mining cases in some other provinces of 
 Canada, particularly JSTova Scotia, but the laws upon which the cases- 
 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. Oollom a list of cases, more or less relating to mining, de- 
 cided 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 Eobertson, Esq., the 
 Provincial Mineralogist of British Columbia, for his kind assistance 
 in the preparation and revision of the " Glossary of Mining Terms." 
 
 ARCHEE MAETIlSr. 
 
 Ballinahinch, Victoeia, British Columbia, Canada. 
 Octoler 1st, 1902. 
 
,1 ;<i •:<..' " 1 
 
CONTENTS 
 
 PAGE. 
 
 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 . . 858- 
 
 Index-Digest .... . . . 875- 
 
(Mode op Citation : Williams Creek Bed Rock Flume <f- Ditch Co. Ltd. 
 V. Synon, (1867) 1 M. M. C. 1). 
 
 TABLE OF CASES REPORTED IN THIS VOLUME. 
 
 (Note. — An * placed before the name of a ease signifies that it is not 
 Elsewhere reported, or that it is inadequately or incorrectly elsewhere reported.) 
 
 A. 
 
 PAGE. 
 
 Aldous V. Hall Mines Co 213 
 
 Alexander v. Heath, et al 333 
 
 *Almoure et al., Pellent et al. v 184 
 
 American Boy Mineral Claim, Re . . 304 
 
 Anderson et al. v. Godsal 416 
 
 Archibald, McJSferhanie v 320 
 
 Atkins v. Coy 88 
 
 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 
 
 Bainbridge v. Esquimalt & Nan- 
 
 aimo Ry. Co 98 
 
 *Beaman et al., Paulson v 471 
 
 Beamish v. Whitewater Mines, Ltd. 405 
 
 Bentley et al. v. Botsford et al 454 
 
 Blanchard, Noble v 373 
 
 Blasdel v. Hunley 31 
 
 Bleekir et al. v. Ghisholm et al 112 
 
 *Boie V. Saulter 240 
 
 Boscowitz, Cleary et al. y 506 
 
 Botsford et al., Bentley et al. v 454 
 
 Botsford et al.. Pry et al. v 520 
 
 *Boyer et al., Pellent et al. y 134 
 
 Bradley-Nicholson Co., Jenny Lind 
 
 Co. V 9 
 
 Bright Prospects Gold Mining, etc., 
 
 Co., Holden v 292 
 
 Brit. Col. Southern Ry. Co., Centre 
 
 Star Mining Co. et al. v 421, 460 
 
 Brit. Col. Southern Ry. Co. et al.. 
 
 War Eagle Consol. Mining & 
 
 Devel. Co., Ltd., et al. v.. .4:22, 465 
 
 Brown, Stussi v 195 
 
 Bryden v. Union Coll. Co. of B. C, 
 
 Ltd., et al 337 
 
 Burk V. Tunstall 61 
 
 Butler, Victor, et al. v 438 
 
 Byron N. White Co., Star Mining 
 
 & Milling Co., Ltd. Ly., v 468 
 
 ^Byron N. White Co., Star Mining 
 
 & Milling Co. v 513 
 
 M.M.C. 
 
 c. 
 
 PAGE. 
 
 ♦Caldwell et al. v. Davys 387 
 
 Callahan v. Coplen 348 
 
 ♦Oallanan et al. v. George et al 242 
 
 ♦Canadian Company v. Grouse 
 
 Creek Flume Co., Ltd 3 
 
 Can. Pac. Bxplor'n Co., Ltd., Mc- 
 Donald V 379 
 
 Centre Star Mining Co. et al. y. Brit. 
 
 Col. Southern Ry. Co 421, 460 
 
 Centre Star Mining Co. v. Iroa 
 
 Mask Mining Co 267 
 
 Centre Star Mining Co., Iron Mask 
 
 Mining Co. v 300, 362 
 
 Chisholm dt al., Bleekir et at. v 112 
 
 Christopher et al.. Wise v. 413 
 
 *Clarke et at, Oreelman v 228 
 
 Clark, Gelinas li al. v 428 
 
 Clark V. Haney 281 
 
 Oleary 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 ol 64 
 
 Connell t. Madden, 359 
 
 Cook et al. v. Denholm et al 447 
 
 Coplen, Callahan v 348 
 
 Gorbin v. Lookout Min. & 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., 
 
 Limited 331 
 
 *Davys, Caldwell et al. v 387 
 
 Denholm et al.. Cook et al. v 447 
 
 Dunlop, Attorney-General v 408 
 
 Dunlop V. Haney 232, 344, 390, 369 
 
 Dunlop, Haney v 311 
 
 Dunlop, Nelson & Ft. Sheppard Ry. 
 
 Co. V 414 
 
 0. 
 
XIV 
 
 TABLE OF CASES REPORTED. 
 
 [VOL.. 
 
 B. 
 
 PAGE. 
 
 English Canadian Co., Cranston et 
 
 al. V 394 
 
 English, Fancoeur et al. x 203 
 
 Bsquimalt & Nanaimo Ry. Co., 
 BainbTidge v, ■ ■ ^° 
 
 Esquiinalt & Nanaimo Ry. Co. v. 
 New Vancouver Coal Co. ..223, 
 237, 284 
 
 F. 
 
 Farrell, Hogg v 79 
 
 Pero v. Hall '^ 
 
 Fotheringham, Granger v 71 
 
 Francoeur et al. v. English ^Od 
 
 Fry et al. v. Botsf ord et al 520 
 
 Fry, MaeQuillan v 520 
 
 G. 
 
 Gelinas et al. v. Clark 428 
 
 •George et al., Callanan et al. v 242 
 
 Gibson v. McArthur et al 382 
 
 Godsal, Anderson, et dl. -r 416 
 
 Golden Butterfly Fraction and Coun- 
 tess Mineral Claims, Re 125 
 
 Good Friday, Timber, Indiana, Old 
 KentUck and Good Hope, Miner- 
 al Claims, Re 84 
 
 Granger v. Fotheringham 71 
 
 Gray et al. t. McCallum et al 206 
 
 ♦Grouse Creiek Flume Co., Ltd., 
 
 Canadian Co. v 3 
 
 Grutchfield v. Harbottle 396 
 
 H. 
 
 Hall Mines Co., Aldous v 213 
 
 Hall, Feiro t 238 
 
 Hall Mines Co., Stamer v 314 
 
 •Hamilton, Partridge v 240 
 
 Hand t. Warren 376 
 
 Hiney, Clark t 281 
 
 Haney, Dunlop v 232, 344, 369, 390 
 
 H^ey V. Dunlop 311 
 
 ♦flamnlil V. Sprtule 31 
 
 Harbottle, Grutchfield v 396 
 
 I^rris, Kinney v 137 
 
 ♦Harris, Spencer v 294 
 
 Heath et al., Alexander v 3^ 
 
 Hogg V. Farrell 79 
 
 Holden v. Bright Prospects Gold 
 
 Mining, etc., Co 292 
 
 Holden 'et al., Schomberg v 290 
 
 Hudant, Woodbury v 31 
 
 Hiinley, Blasdel v 31 
 
 Iron Mask Mining Co. v. Centre Star 
 
 Mining Co 300, 362 
 
 Iroil Mask Mining Co., Centre Star 
 
 Mining Co. v 267 
 
 J. 
 
 PAGE. 
 
 Jenny Lind Co. v. Bradley-Nichol- 
 son Co 9' 
 
 Jerry et al.. Nelson & Fort Sheppard 
 By. Co. T 161 
 
 K. 
 
 Kilbourne v. McGuigan 142 
 
 Kilbourne, Troup t 219- 
 
 Kinney v. Harris 137 
 
 L. 
 
 Lanark and Maple Leaf Mineral 
 
 Claims, Re 68 
 
 Lawr T. Parker 456- 
 
 Le Roi Mining Co., Ltd., McKel- 
 
 vey V 477 
 
 Liftchild, Waterhouse v 15S- 
 
 Little, Regina t 22a 
 
 Lookout Min. & Mill. Co., Corbin v. 126 
 
 Mc. 
 
 McArthur et al., Gibson v 882 
 
 McCallum et al.. Gray et al. \. . .. 206 
 McDonald v. Can. Pac. Explora- 
 tion Co., Ltd 379 
 
 McGuigan, Kiljjourne v 142 
 
 McKelvey v. Le Boi Mining Co., 
 
 Ltd 477 
 
 McNaught V. VanNarman et al ... 516 
 
 McNerhanie v. Archibald 320 
 
 MaeQuillan v. Fry 520 
 
 McQuillan, Ryan t 289 
 
 M. 
 
 Madden, Connell v 359 
 
 Manley v. CoUom 487 
 
 Maple Leaf and Lanark Mineral 
 
 Claims, Re 68 
 
 ♦Marino v. Sproat et al 481 
 
 Meyers, Woodbury t 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 By. Co. v. 
 
 Dunlop 414 
 
 New Vancouver Coial Co., Bsqt. & 
 
 Nan. Ry. Co. v 223, 237, 284 
 
 Noble V. Blanchard 373 
 
 P. 
 
 Parker, Lawr v 456 
 
 ♦Partridge v. Hamilton 246 
 
 ♦Paulson V. Beaman et al 471 
 
 Pavier v. Snow 384 
 
 (Note. — An * placed before the name of a case signifies that it is not 
 elsewhere reported, or that it is inadequately or incorrectly elsewhere reported.) 
 
IJ 
 
 TABLE OF CASES REPORTED. 
 
 PAGE. 
 
 ♦Payne Oonsol. Ming. Co., Ltd. Lby., 
 
 V. Wilson 485 
 
 Peck V. Reginam 13 
 
 ♦Pellent et al. v. Almoure et al 134 
 
 ♦Pellent et al. v. Boyer et al 134 
 
 Pellent, Trask t 8S 
 
 Peters v. Sampson 247 
 
 Petty, Wells v 147 
 
 Pope V. Cole 2o7 
 
 Powers V. Curtis et al 403 
 
 •Price, Richards v 140 
 
 Price, Richards v 156 
 
 R. 
 
 Rammelmeyer et al. v. Curtis et al.. 401 
 
 Regina v. Little 220 
 
 Reginam, Peek v 13 
 
 ♦Richards v. Price 140 
 
 Richards v. Price 156 
 
 Ryan v. McQuillan 289 
 
 S. 
 
 Sampson, Peters v 247 
 
 ♦Saulter, Boie v 240 
 
 Schomberg v. Holden et al '^M 
 
 Snow, Pavier v 384 
 
 *Spencer v. Harris 294 
 
 *Sproat et al., Marino v 481 
 
 Sproule, HammiU v 31 
 
 St. Eugene Ming. Co., and Land 
 
 Reg. Act, Be 406 
 
 St. Keverne Ming. Co., Ltd., Dart v. 331 
 
 Stamer v. Hall Mines Ca 314 
 
 Star Ming. & Millg. Co. Ld. Lb. v. 
 
 Byron N. White Co 468 
 
 *Star Ming. & Millg. Co. v. Byron 
 
 N. White Co 513 
 
 *Star Exploring & Ming. Co., Mur- 
 phy V 450 
 
 Stu&si V. Brown 195 
 
 ♦Sunshine, Ltd. v. Cunningham 
 
 et al 286 
 
 PAGE. 
 
 *Synon, Williams Creek B. R. F. 
 
 & D. Co., Ltd. V 1 
 
 T. 
 
 Trask v. Pellent 86 
 
 Troup V. Kilbourne 219 
 
 Tunstall, Burk v 61 
 
 U. 
 
 Union Coll. Co. of B. C, Ld., et al. 
 
 Brydcn v 337 
 
 Van Norman et al., McXaught v. . . 51ff 
 Victor et al. v. Butler 438- 
 
 W. 
 
 War Eagle Consal. Ming. & Dev. 
 
 Co., Ld. et al. v. B. C. Southern 
 
 Ry. Co. ©t oJ 422, 465 
 
 Warren, Hand v 376 
 
 Water Clauses Oonsol. Act, Re .... 
 
 421, 422, 460, 465 
 
 Waterhouse v. Liftchild 153 
 
 Webb V. Montgomery 129 
 
 Wells T. Petty 147 
 
 *Whitten, Wilson v 38 
 
 Whitewater Mines Ld., Beamish t. 405 
 ♦Williams Creek B. R. F. & D. Co., 
 
 Ltd. v. Synon 1 
 
 ♦Wilson, Payne Consol. iling. Co., 
 
 Ltd. Lby. v 485 
 
 ♦Wilson v. Written 38 
 
 ♦Wise V. Christopher et al 413 
 
 Woodbury v. Hudaut 31 
 
 Woodbury t. Meyers 31 
 
 Yuill et al. The Columbia River 
 Lumber Co. v 64 
 
 (Note. — An ♦ placed before the name of a case signifies that it is not 
 elsewhere reported, or that it is inadequately or ineon-ectly elsewhere reported. ) 
 
TABLE OF CASES CITED IN THIS VOLUME. 
 
 A. 
 
 PAGE. 
 Abbott V. Minister of Lands (1895 J, . 
 
 A. C. 425 297 
 
 Adam. Re (1837). 1 M. P. C. 460. . Ill 
 Aldous V. Hall Mines. .83. 428, 429, 
 
 432, 433, 476, 504 
 Alexander v. Heath . .97, 400, 455, 
 
 484, 489, 504. 528 
 Alford V. Bai-num (1873), 45 Cal. 
 
 482 168, 169 
 
 Allen V. Richardson U879), 13 Cb. 
 
 D. 524 262 
 
 Alley V. Deschamps (1806), 13 Ves. 
 
 225 13 
 
 American Boy. Re 14G, 194. 299 
 
 Anderson v. Godsal 293. 433 
 
 Anderson v. Mikado Minin? Co. 
 
 (1902). 3 O. L. R. 581 319 
 
 Anthony v. Jillson (1890), 16 Morr. 
 
 26 360 
 
 Archibald v. Goldstein (1883), 1 
 
 Man. 8 152 
 
 Archibald v. Hubley (1890), 18 S. 
 
 C. R. 116 293. 471 
 
 Asbestos and Asbestic Co. v. Durand 
 
 (1900), 30 S. C. 285 319 
 
 Ashburv Ry. Co. v. Riche (1875), L. 
 
 R. 7 H. L. 653 209 
 
 Asher v. Whitlock (1865), L. R. 1 
 
 O T? 1 439 
 
 Atkins V. C«y.'.'37."251,"3()3. "336, 
 
 397. 400. 415. 433. 489. 500, 504 
 Attorney-General of B. C. v. Attor- 
 ney-General of Canada (1889). 
 14 App. Oas. 295. .65. 66. 67. 99, 
 100, 103. 105, 107, 108. 110, 111. 
 
 406, 407 
 Attorney-General of Ontario v. The 
 Attorney-General of Canada 
 (1894). A. C. 189. .117. 121, 122. 339 
 Attorney-General of Ontario v. At- 
 torney-General for the Dominion 
 
 ri8961 A. O. 348 339 
 
 Attorney-General v. Chambers 
 
 (1849) . 12 Beav. 159 225 
 
 Attorney-General of B. C. v. Dunlop 
 
 194, 347. 378. 415, 504 
 Attorney-General of B. C. v. Bsqui- 
 malt & Nanaimo Ry. Co. (1900), 
 
 t B. C. 221 60 
 
 Attorney-General v. Bttershank 
 (1875). L. R. 6 P. C. 354. .8, 13. 
 
 23, 25, 250 
 Attorney-General v. Lord Hotham 
 
 (1823) , 24 R. R. 21 374, 452 
 
 Attorney-General of Ontario v. Mer- 
 cer (1883) . 8 App. Cas. 767 . ..54. 59 
 Attorney-General v. Pougett (1816). 
 2 Price 38] 298 
 
 PAGE. 
 
 Attorney-General v. Theobald 
 (1890), L. R. 24 Q. B. D...557, 298 
 
 Attwood et al. v. Fricot et al. 
 
 (1860) , 2 Morr. 305 439, 445 
 
 Austin V. Tawney (1867), L. R. 2 
 Ch. 147 13 
 
 B. 
 
 B. , In re, a lunatic (1892), 1 
 
 Ch. 463 iJ,: '^°^ 
 
 Baddeley v. Earl Granville (1887) 
 
 19 Q. B. D. 423 316, 318 
 
 Badgerow v. Grand Trunk Ry. Co. 
 
 (1890) , 19 Ont. 191 315, 318 
 
 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. C. 
 
 385 139 
 
 Banner v. Johnston (1871), 5 B. 
 
 & 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. JIuir (1874). L. R. 6 
 
 P. C. 134 491 
 
 Batley v. Kvuock (18741. 19 Eq. 
 
 90 ■ 225 
 
 Beamish \. Whitewater Mines Ltd. . 63 
 Beaven v. Webb (1901). 2 Ch. 74. . 470 
 Becker v. Pugh (1887), 13 Pac. Rep. 
 
 906 233, 282 
 
 Belk V. Meagher (1881). 104 U. S. 
 
 279 366. 177. 399. 429, 434, 440 
 
 Bell V. Bilton (1828), 4 Bing. 615, 
 
 618 298 
 
 Bell V. Macklin (18871, 15 Can. S. 
 
 O. R. 676 262 
 
 Bennett v. Griffiths (1861). 30 L. iJ. 
 
 Q. B. 98 ..271. 470 
 
 Bennett v. Pharmaceutical Society of 
 
 Quebec (1881). 2 Cart. 250. .120. 124 
 Bennitt v. Whitehouse (1859). 29 L. 
 
 J. Ch. 326 224, 225, 271, 279 
 
 Bentley v. Botsford . .336. 520. 524. 525 
 Bingham v. Bingham (1748). 1 Ves. 
 
 Sr. 126 265. 266 
 
XVlll 
 
 TABLE OF CASES CITED. 
 
 [VOL. 
 
 PAGE. 
 
 Birch V. Birch (1902), P. D. 72 525 
 
 Black V. Elkhorn Mining Co. ( 1890; , 
 
 l(j3 U. S. 450 430 
 
 Bleekir v. Chisholm 83, 155, 289, 
 
 291, 372, 433, 490. 504 
 Bloomenthal v. Ford (1897), A. C. 
 
 156 259 
 
 Bluebird Mining Co. Ltd. v. Mur- 
 ray et al. (1890). 23 Pac. Rep. 
 
 1022 271,278, 279 
 
 Boggs V. The Jlerced Mining Co. 
 
 (1859) , 10 Morr. 334 378 
 
 Boie V. Saulter 504, 512 
 
 Bonnemoit v. Gill (1897), 45 Nor. 
 
 East Rep. 708 525 
 
 Book et al. v. Justice Min. Co. 
 
 (1893), 58 Fed. Rep. 827. .106, 
 
 115, 282, 356 
 Booth V. Ratte (1889), 15 App. Cas. 
 
 188 65, 67 
 
 Booth V. Turle (1873), L. R. 16 Eq. 
 
 162 286 
 
 Bradlaugh v. Clarke (1881), 7 Q. B. 
 
 D. 38 ; (1883) , 8 App. Cas. 354. . 378 
 Bradlaugh v. Newdegate (1883), 11 
 
 Q. B. D. 15 37 
 
 Brainerd v. Arnold et al. (1858), 8 
 
 Morr. 478 360 
 
 Brice v. Bannister (1878), 3 Q. B. 
 
 D. 569 211 
 
 Bridges v. Longman (1857), 24 
 
 Beav. 27 13, 23, 24 
 
 ■ _ V. Newswander (1902), 32 
 
 S. C. 405 : 8 B. O. 402 133 
 
 Brooke v. Garod (1857), 27 L. J. 
 
 Ch. 226 13 
 
 Brown v. Dunn (1894), 6 R. 67 497 
 
 Brown v. Harrow^er (1886), 3 Man. 
 
 441 383 
 
 Brown v.' Jowett '(1895) ,' 4 B. C.'ss! 293 
 Bryden v. Union Colliery Co. . . .124, 222 
 Buck V. Robson (1878), 3 Q. B. D. 
 
 691 211 
 
 Burgess v. Morton (1896), A. C. 
 
 136 366 
 
 Bulmer v. The Queen (1893), 23 S. 
 
 C. R. 488 8, 360 
 
 Burk V. Tunstall 405 
 
 Burke v. McDonald (1890), 33 Pac. 
 
 Rep. 49 177 
 
 Bushell V. Bushell (1803), 1 Sch. 
 
 & Lefroy, 90 ; 9 R. B. 21 94 
 
 C. 
 
 Caddick v. Scidmore ( 1857 ) , 2 De 
 
 G. & J. .">2 324. 329 
 
 Caldwell v. Davys 83, 291, 500 
 
 Callahan v. Coplen . .256, 413, 480, 
 431, 434. 435, 436; 487, 489, 490, 
 495, 497, 499, 500, 501, 502, 509, 
 510, 511, 520, 521, 522, 523, 524, 
 
 525 527 528 
 
 Callahan y. George 246, 490, 500i 504 
 
 Campbell. Ex jjarfe (1870), 5 Chv. 
 
 App. 706 250, 491 
 
 Can. Pac. Ry. Co. v. McBryan 
 (1896), 5 B. C. 187; 6 B. C. 136 
 
 (1899) 29 S. C. 359 67 
 
 .Can. Pac. By. Co. y. Parke (1897), 
 
 6 B. C. G; (1899) A. C. 535. ... 67 
 
 ^ PAGE. 
 
 Cape Breton Co., In re (1881), 19 
 
 Ch. D. 77 450 
 
 Cargil! V. Bower (1876), 4 Ch. D. 81. 322 
 Carroll v. Provincial Natural Gas 
 
 & Fuel Co. of Ontario (1894), 
 
 16 P. R. 518 .409 
 
 Carson v. Martley, vide Martley v. 
 
 Carson. 
 Carson v. Clark (1885), 1 B C. 
 
 (pt. 2) 189 67 
 
 Carter v. Fey (1894), 2 Ch. 541 347 
 
 Casgrain v. Atlantic & N. W. Ry. Co. 
 
 (1897) , A. C. 300 250, 401 
 
 Casson v. Ohurchley (1884), 53 L. 
 
 J. Q. B. 336 490, 498 
 
 Castrique v. Imrie (1870), L. R. 4 
 
 „ H. L. 427 .' 524 
 
 Centre Star v. Iron Mask Co... 227, 
 
 273, 275, 362, 470, 515 
 Centre Star Co. v. B. C. Southern 
 
 Ky. Co 67, 466 
 
 Chapelle v. The King (1902), 7 Ex. 
 
 414; 32 S. C. R. 586 ^«, 
 
 Chasemore v. Richards (1859), 7 H. 
 
 L. Cas. 349 65, 66 
 
 Cheesman.T. Shreeve (1889), 40 
 
 Fed. Rep. 787 270, 271, 276 
 
 Chester y. Dickerson (1873), 54 N. 
 
 Y. 1..; 326 
 
 Chippendale, Etc parte (1854), 4 
 
 De G. M. & G. 36 211 
 
 Citizens Ins. Co. v. Parsons, vide 
 
 Parsons y. Cit. Ins. Co. 
 Clare v. Lamb. (1875), L. R. 10 C. 
 
 P. 334 262 
 
 Clark Y. Hauey. .127, 236, 291, 389, 
 
 489, 504 
 Clark v. Wallond (1883), 52 L. J. 
 
 Q. B. 323 250, 491 
 
 Clarke v. Bradlaugh (1881), 8 Q. B. 
 
 „, D- 63 131, 296 
 
 Clarke v. Callow (18761, 46 L. J. 
 
 Q. B. 53 (C. A.)... 83 
 
 Clayton'^ Case (1816), 1 Mer. 572. . 200 
 Cleary v. Boscowitz . . 194, 239, 241, 
 
 289, 291. 358, 378, 412, 413, 415 
 
 459. 485, 486, 504 
 Clements v. Matthews (1883), 11 
 
 Q. B. D. 814 234 
 
 Clerk V. Withers (1704), 1 Salk 
 
 , 322 517 
 
 Clough V. The London & N. W. Ry. 
 
 Co. (1871), L. R. 7 Ex. 26 335 
 
 Coal Mines Regulation Act, Re 
 
 (1890) 222. 343 
 
 Ctoates. Ex parte. In re Skelton 
 
 (1877). 5 Ch. D. 979 ^-^l 
 
 Cochrane v. Willis (1865), 34 Bedv. 
 
 359, 1 Oh. App. 58 266 
 
 Collins v. Vestry of Paddington 
 
 (1880). 5 Q. B. D. 368. .84, 125, 143 
 Colonial Securities Co. v. Massev 
 
 (1896), 1 Q. B. 38 148 
 
 Colquhoun v. Brooks (1889) 14 
 
 App. Cas. 506 118. 2ri2 
 
 Columbia River Lumber Co. v. Yuill 
 
 12. 60, 427, 464 
 Connecticut Fire Ins. Co. y. Kavan- 
 
 agh (1892) . A. C. 480 8;J 
 
 Oonnell v. Madden . .429, 434 489, 
 
 500, 504 
 
!•] 
 
 TABLE OB' CASES CITED. 
 
 XIX 
 
 PAGE. 
 
 ■Consolidated Gold Mining Co. v. 
 
 Champion (1894), 63 Fed. Rep. 
 
 540 168, 17ti, 183 
 
 Conybeare v. Lewis (1880), 13 Ch. 
 
 L>. 469 70 
 
 Oook V. Denholm 289 
 
 Coombe V. Carter (188T), 36 Ch. D. 
 
 348 147 
 
 Cooper V. Board of Works for the 
 
 Wandsworth District (1863^ 14 
 
 C. B. IN. S. 180 440 
 
 Cooper V. Hood (1858),' 28 h. J. 
 
 Ch. 212 147 
 
 Cooper V. Ince Hall Co. (1876), W. 
 
 i\., 24 225 
 
 •Cooper V. Phibbs (1867), L. R. 2 
 
 H. L. 149 263, 265, 266 
 
 Coote V. Ingram (1887), 35 Ch. D. 
 
 119 302 
 
 Corbin v. Lookout Mining Co. . . 
 
 127, 283, 303, 356 
 Corporation of Parkdale v. West 
 
 (1887), 12 App. Cas. 602 ..166, 
 
 177, 251 
 -Coryell et al. v. Cain (1860), 16 
 
 (Jal. 567 445 
 
 Courtauld v. Legh (1869), L. R. 4 
 
 Ex. 130 475 
 
 Covert V. Petti John (1902), 9 B. C. 
 
 118 67 
 
 ■Cowell V. Lammers, 10 Saw. 246, 257, 168 
 Cranston v. English Canadian (jo. . . 
 
 2, 433. 489, 500; 504 
 Creelman v. Clarke . .2, 78. 136, 372, 504 
 Cullacott et al. r. Cash Gold & Sil- 
 ver Mining Co. (1884), 15 Morr. 
 
 392 350 
 
 Cusack V. L. & W. Ry. Co. (1891), 
 
 1 Q. B. 348 143, 144, 146, 374 
 
 -Cushing V. Dupuy (1880), 5 App. 
 
 Cas. 409 121 
 
 C. W. Mining Co. v. Champion Min- 
 ing Co. (1894), 63 Fed. Rep. 540. 176 
 
 D. 
 
 Dahl V. Raunheim (1889), 132 U. 
 
 S. 260 r. 173 
 
 Dale V. Hamilton (1846), 5 Hare 
 
 369 197, 324, 326, 329 
 
 Dallow V. Garrold (1884), 54 L. J. 
 
 Q. B. 78 452 
 
 Danford v. McAnuIty (1883) , 8 App. 
 
 Cas. 460 250, 491 
 
 Daniel v. Gold Hill Mining Co. 
 
 (1899), 6B. C. 495 133 
 
 Dann v. Spurrier (1802)7. Ves. 234 13 
 Darby v. Darby (1856), 3 Drew 495 329 
 
 Dart V. St. Keverne 504 
 
 Dauphinais v. Clark (1885), 3 Man. 
 
 ^ 227 295 
 
 Davenport v. Reginam (1877), L. R. 
 
 3 App. Gas. 128 8, 13. 250, 440 
 
 Davidson v. Taylor (1890), 14 L R. 
 
 „ T8 410 
 
 Davies v. LeRoi, &c., Co. (1899) 7 
 
 B.C. 6 ';.. 319 
 
 Davis V. Butler (1856), 1 Mor. M. 
 
 O. 7 177 
 
 Davis V. C. P. R. (1886), 12 A. R. 
 
 724 1G5, 174 
 
 PAGE. 
 
 Davis v. Crown Point Jlining Co. 
 
 (1902) . 3 Ont. 69 293, 420 
 
 Davis V. Riley (1898), 1 Q. B. 3. . . . 346 
 Davis V. Sheppard (1866 J, L. R. 1 
 
 Ch. 410 13 
 
 Davis V. Stenhenson (1899 J 24 Q. B; 
 
 D. 529 491 
 
 Davis V. Weibbold (1890), 139 U. 
 
 S. 518 168. 176, 184 
 
 Davis V. Whitehead (1894), 2 Cte. 
 
 .133 326 
 
 Davison v. Gent (1857), 1 H. & N. 
 
 744 439 
 
 De Beauvoir v. Welch (1827), 7 B. 
 
 & C. 266 250 
 
 DefiEerback v. Hawke (1885), 115 U. 
 
 S. 404 176, 183 
 
 De Groot v. Van Duser, 20 Wend. 
 
 390 500 
 
 Del Monte Mining & Milling Go. v. 
 
 Last Chance Mining & Milling 
 
 Co. (1898), 171 U. S. 55 360, 
 
 429, 434 
 Demers v. The Queen, vide Queen v. 
 
 Demers. 
 Dent V. Turpin (1861), 30 L. J. 
 
 Oh. 495 524 
 
 Derry v. Beek (1889), 14 App. Cas. 
 
 359 261 
 
 Derry v. Ross (1881), I Mor. M. 
 
 C. 6 177 
 
 Dobie V. Temporalities Board 
 
 ( 1881) , 1 Cart. 352 . 116, 117 
 
 Dover Gaslight Co. v. Dover (1855), 
 
 1 Jut. 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. 
 
 ■ JD. 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! 5^, 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), 
 
 2Ch. 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 
 
 B. 
 
 Earl of Lonsdale v. Curwen (1799) 
 
 3 Bligh O. S. 168. ........... o-'o 
 
 Earl of Northumberland's Case 
 
 (1568), 1 Plowd. 310.. 5.3, 57, 
 
 17. . T J- r. r^ 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 
 
XX 
 
 TABLE OF CASES CITED. 
 
 [VOL. 
 
 PAGE. 
 
 Edwards v. M'Leay (1815), G. 
 
 Cooper 308 264 
 
 English et al. v. Johnson et al. 
 
 (1860), 12 Morr. 202, 17 Cal. 
 
 108 439, 445 
 
 Ennor v. Barwell (1860), 1 DeG. P. 
 
 & J. 529 ^5, 270, 280 
 
 Erhardt y. Boaro (1884), 113 U. S. 
 
 527; (1885) 15 Morr. 473 ..168, 360 
 Esdaile v. Paine (1888), 40 Oh. D. 
 
 520 87 
 
 Esquimalt & Nanaimo Ry. Co. v. 
 
 New Vancouver Coal Co 469, 515 
 
 Eureka Mining Co. v. Richmond 
 (1877) 9 Morr. M. R. 578. .168, 
 
 176, 182, 183, 270, 308 
 
 Farmer v. Grand Trunk Ry. Co. 
 
 (1891). 21 Ont. 299 315, 317 
 
 Farwell v. The Queen (1894), 2 S. 
 
 C. 553 60 
 
 Fero V. Hall ..152, 202, 288, 290, 
 
 291, 350, 512 
 Fielding v. Morley Corporation 
 
 (1899), 1 tJh. 1 301 
 
 Figes V. Cutler (1832), 3 Starkie 139 147 
 Fishery. Tully (1878), L. R. 3 App. 
 
 Cas. 627 13 
 
 Ford y. Kettle (1882), 9 Q. B. D. 
 
 139 471 
 
 Porster v. Farquhar (1893), 1 Q. B. 
 
 564 367, 368 
 
 Forster v. Hale (1798). 3 Ves. 696. . 
 
 197,. 287. 324. 328, 329 
 Foskett V. Kaufman (1885), 16 Q. 
 
 D. B. 286 250, 491 
 
 Foster y. North Hendre Mining Co. 
 
 (1891), 1 Q. B. 71 479 
 
 Fowkes y. Assurance Association 
 
 (1863), 3 B. & S. 929 147 
 
 Francoeur v. English 504 
 
 Fullwood v. Fullwood (1878), L. R. 
 
 9 Ch. D. 176 13 
 
 Pry y. Botsford . .136, 194, 336, 393, 455 
 
 G. 
 
 Galloway y. The Mayor, &c.. of Lon- 
 don (1865) . 12 L. T. N. S. 623. . 346 
 Gath y. Howarth (1884), W. N. 99... 345 
 
 Gedye, Re (1852), 15 Beay. 254 313 
 
 Gelinas y. Clark . .2. 63, 83. 256, 
 289, 291, 358, 372, 386, 437, 456, 
 459, 487, 489, 490, 495, 499, 500, 
 
 507, 508, 509 
 General Finance, &c.. Co. v. Liber- 
 ator Building Society (1878), 10 
 
 Ch. D. 24 234 
 
 Germanic, The (1896), P. 84 421 
 
 Gesner v. Gas Company (1853), 2 
 
 Nova Scotia 72 175 
 
 Gettring v. Atkins (1896), 5 B. C. 
 
 138 139 
 
 Gibson v.' Cook (ISgVf.'s B.' b.'534". 453 
 
 Gilbert, In re (1885). 28 Oh. D. 550 364 
 
 Giles V. Gro\'er (1832), 9 Bing. 
 
 128 517, 518 
 
 PAGE. 
 
 Gledhill v. Hunter (1880), 14 C. D. 
 
 492 285 
 
 Goddard v. Jeffreys (1882), 46 L. T. 
 
 N. S. 905 217 
 
 Golden Butterfly Fraction. Re . .85, 
 
 374, 375, 452 
 Golden Terra Mining Co., The v. 
 
 Mahler (1879), 4 Moit. 390 360 
 
 Good Friday Mineral Claim, Re . .70 
 
 125, 139, 143, 146. 374, 375, 452 
 Gower v. Couldridge (1898), 14 T. 
 
 L. R. 165 232 
 
 Granger v. Potheringham, 2, 37 92, 
 
 231, 262, 372, 430, 433, 491. 500, 504 
 Grant v. Acadia Coal Co. (1902), 32 
 
 S. C. 427 319 
 
 Gray v. Hardman (1896), 28 N. S. 
 
 235 280 
 
 Gray v. Smith (1889), 43 Ch. D. 
 
 208 197,329 
 
 Great Western Ry. Co. v. Swindon 
 
 and Cheltenham Ry. Co. (1884), 
 
 9 A. C. 808 293 
 
 Greaves v. Tofield (1880) , 14 Ch. D. 
 
 571 250, 491 
 
 Greenhalgh v. Cwmaman Coal Co. 
 
 (1891) , 8 T. L. R. 31 316 
 
 Groves v. Lord Wimborne (1808), 2 
 
 Q. B. D. 402 316, 318 
 
 Grutchfield v. Harbottle 97, 187 
 
 Gwillim V. Donnellan (1884), 115 U. 
 
 S. 45 434 
 
 H. 
 
 Hack y. London Provident Building 
 
 Society (1883), 23 Ch. D. 111. . 
 
 490 498 499 
 Haggerty v. Grant (1892), 2 B. c' 
 
 176 293 
 
 Haigh v. Kaye (1872), L. R. 7 Ch. 
 
 474, 469 286, 326 
 
 Hallett's Estate, In re (1879), 13 
 
 Ch. D. 696 200 
 
 Hamilton v. The Merchants' Marine 
 
 insurance Co. (1899), 58 L. 'J. 
 
 Q. B. 544 302. 303 
 
 Hamilton v. Southern Nevada Gold 
 
 & Silver Mining Co. (1887), 15 
 
 Morr. 314 175, 307 
 
 Hammersmith B. R. Co. v. Brand 
 
 V..868). L: R. 4 H. L. 171. .126, 479 
 
 Hand v. Warren 194, 415. 430, 509 
 
 Haney v. Dunlop 219, 283 
 
 Harding v. Knowlson (1859), 17 TJ. 
 
 O. Q. B. 564 293 
 
 Hardrader v. Carroll (1896), 76 Fed. 
 
 Rep. 474 177 
 
 Harmer v. Westmacott (1833), 6 
 
 Sim. 284 500 
 
 Harper v. Charles worth (1825), 4 B. 
 
 & C. 574 299 
 
 Harrington y. Chambers (1882), 1 
 
 Pac. Rep. 375 168 
 
 Harris et al. y. Equator Mining & 
 
 Smelting Co. (1881). 12 Morr. 
 
 175 445 
 
 Harris v. JIudie (1882), 7 O. A. R. 
 
 429 165 
 
 Hart V. Swaine (1877), 7 Ch. D. 42. 2G.3 
 
I] 
 
 TABLE OF CASES CITED. 
 
 PAGE. 
 
 Hastings & Dakota Ry. Co. v. Whit- 
 ney (1889) , 132 U. S. 357 175 
 
 Heard v. Pilley (1869), L. K. 4 Ch. 
 552 286, 326 
 
 Headfoi-d v. The McOlary Manufac- 
 turing Co. (1893), 23 Ont. 335; 
 (1894) 21 A. R. 164; (1895) 24 
 S. C. R. 291 315, 316, 318 
 
 Helsby, Re (1894), 1 Q. B. 742 144 
 
 Hereron v. Christian (1895), 4 B. C. 
 246 166 
 
 Hess et al. v. Winder et al. (1866), 
 12 Morr. 217 445 
 
 Hewett V. Barr (1891), 1 Q. B. 
 pp. 98, 100 313 
 
 Higgins V. Senior (1841), 8 M. & W. 
 834 40 
 
 Hill V. Crook (1873), 42, L. J. Oh. 
 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. Bsquimalt & Nanaimo By. 
 Co. (1898), 29 S. C. 451; 
 (1898) 6 B. C. 228 407, 505 
 
 Hobbs V. Norton (1682), 1 Vern. 
 135 383 
 
 Hodge V. The Queen (1883), 9 App. 
 Gas. 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 South- 
 ern Ry Co. (1899) , 6 B. C. 588. . 67 
 
 Horsefly Mining Co., In re (18951, 
 4 B. C. 165 453 
 
 Houston V. Marquis of Sligo (1885), 
 29 C. D. 448 524 
 
 Howland v. Dominion Bank (1892), 
 15 P. R. 56; 22 S. G. R. 130. . 313 
 
 Huddersfield Banking Co. v. Henry 
 Lister & Son (1895), 2 Ch. 273.. 262 
 
 Hudson's Bay Co. v. Kearns & Row- 
 ling (1896), 4 B. C. 536 251 
 
 Hyman v. Wheeler (1886), 29 Fed. 
 Rep. 347 270 
 
 I 
 
 Inman v. Rae (1895) , 10 Man. 411. . 471 
 
 Institute of Patent Agents v. Lock- 
 wood (1894), App. Gas. 347.144, 250 
 
 International Financial Society v. 
 City of Moscow Gas Co. (l877), 
 7 Ch. D. 241 87 
 
 Ireland v. Livingston (1871), 5 H. 
 of L. 395 147 
 
 Iron Mask v. Centre Star . .128, 273, 
 
 275. 362, 515 
 
 Iron Silver Mining Co. v. Cheesman 
 et al. (1885), 116 U. S. 529 175 
 
 Iron Silver Company v. Mike & Starr 
 Company (1891), 148 U. S. 404.. 
 
 175, 177, 184 
 
 J. 
 
 PAGE. 
 
 James v. Grand Trunk Ry. Go. 
 
 (1901) 1 O. L. R. 127 479 
 
 James v. The Queen (1877), 5 Gh. 
 
 D. 153 323 
 
 James v. Smith (1891), 1 Ch. 384. . 
 
 83, 148, 149 
 Jaidine v. Bulleu (1808), 7 B. G. 
 
 471 491 
 
 Jay V. Johnstone (1893), 1 Q. B. 
 
 ■ 25 250, 491 
 
 Jenkins v. Bushby (1891), 1 Ch. 489. 302 
 Jenny Llnd Co. v. Bradley-Nichol- 
 son Go 67 
 
 Job V. Potton (1875), L. R. 20 Bq. 
 
 180 482 
 
 Johnson v. Kirk (1900), 30 Can. S. 
 
 C. R. 344 510 
 
 Jones v. Clifford (1876), 3 Ch. D. 
 
 779, 792 .- 266 
 
 Jones v. James, In re (1850), 19 L. 
 
 J. Q. B. 257 43a 
 
 Jordan v. McMillan (1901), 8 B. C. 
 
 27 489, 490, 499 
 
 K. 
 
 Kane v. Kaslo (1896), 4 B. G. 486. . 14a 
 Kansas Pacific Railway Go. v. Dun- 
 
 meyer (1884), 113 U. S. 641-2. . 
 
 175, 170, 180 
 Kay V. Johnston (1856), 21 Beav. 
 
 537 324, 326- 
 
 Keating v. Sparrow (1810), 1 Ball. 
 
 & Beattie. Irish Ch. Rep. 367 25 
 
 Kelly V. Wade et al. (1890), 14 P. 
 
 R. 66 410> 
 
 Kennedy v. TrafEord (1897), A. C. 
 
 180 482 
 
 Kilbourne v. McGuigan . . 85, 305, 
 
 310, 374, 452, 476 
 King, The. v. Chapelle (1902), 7 Ex. 
 
 414 ; 32 S. G. R. 586 446- 
 
 Kinney v. Harris . . .85, 87, 142. 141!, 374 
 
 L. 
 
 Lang v. Kerr, Anderson & Go. 
 
 (1878) , 3 App. Gas. 529 479^ 
 
 Langton v. Hughes (1813), 1 M. & 
 
 S. 593 500- 
 
 Last Chance Mining Co. v. Tyler 
 
 Mining Co. (1895), 157 U. S. 
 
 683 271. 273 
 
 La very v. Turley (1860), 30 L. ,J. 
 
 Ex. 49 201 
 
 Lavy V. London County Council 
 
 (1895), 2 Q. B. 577 490, 498 
 
 Lawr V. Parker 
 
 256, 350, 48.8, 500, 504, 506, 507, 508 
 Leckie v. Stuart (1901). 34 N. S. 
 
 140 (C. A.) 140 
 
 Lee et al. v. Stahl (1889), 16 Morr. 
 
 152 308 
 
 Lees V. Nuttall (1834), 31 Rev. R. 
 
 99 286 
 
 Legee v. Groker (1811), 1 Ball. & B. 
 
 506 264 
 
 Le Neve v. Le Neve (1747) , 2 White 
 
 & Tudor (Ed. 1886), 72 94. 186 
 
 Leroi v. Smith (1901), 8 B. C. 292. 420" 
 
-KXU 
 
 TABLE OF CASES CITED. 
 
 [VOL. 
 
 PAGE. 
 
 I.ewis V. Marsh (1849), 8 Hare 97. 225 
 Lindsay Petroleum Oo. v. Hurd 
 
 (1874) , L. R. 5 P. C. 239 13 
 
 Little V. Megquier, 2 Maine 17G .... 105 
 Ltoyd, In re (1850), 19 L. J. Q. B. 
 
 457 471 
 
 Locking v. Halsted (1888), 16 Ont. 
 
 32 201 
 
 Xiondon Street Tramways Co., Ltd., 
 
 V. The London County Council 
 
 (1898), A. C. 380 490, 499 
 
 Levering, £a! parte (1874), L. R. 9 
 
 Ch. 590 144 
 
 Low V. Routledge (1805), 11 3ur. 
 
 939 lie 
 
 Lnmb v. Beaumont (1884), 27 Oh. 
 
 D. 356 .270, 272, 274, 280 
 
 L'Union St. Jacques v. Belisle 
 
 (1874), L. R. 6 P. C. 31. . . .117, 121 
 Lynch v. Seymour (1887), 15 S. C. 
 
 341 505 
 
 Xiysaght v. Edwards (1876), 2 Ch. D. 
 
 506 323 
 
 Mc. 
 
 McArthur v. Brown (1888), 17 S. C. 
 
 61 505 
 
 McCIoherty v. Gale Manufacturing 
 
 Co. (1892), 19 A. R.'117 316. 318 
 
 McOormick v. Grogan (1869), L. R. 
 
 4 H. L. 97 148, 286, 320 
 
 McDonald v. Can. I'ac. Exploration 
 
 Co 319, 480 
 
 JMcGarrahan v. The New Idria Min- 
 ing Co. (1874), 11 Mor. 641 251 
 
 JMcGinnis v. Egbert (1884), 15 JXorr. 
 
 329 216 
 
 McKelvey v. Le Roi Mining Co. .319, 381 
 SIcKenzie v. The Corp. of ^'ictoria 
 
 (1879) 301 
 
 McLaughlin v. U. S. (1SS2), 107 U. 
 
 S. 526 184 
 
 McManus v. Bark (1870 J, L. R. 5 
 
 Ex. 65 482 
 
 McNair v. Audenshaw Co. (1891), 2 
 
 Q. B. 502 146 
 
 McNaught V. Van Norman. 152, 330, 336 
 
 McNerhanie v. Archibald 
 
 152, 202, 266, 288, 336, 519 
 McShane v. Kenkle (1896), 44 Pac. 
 
 Rep. 979 175, 183 
 
 M. 
 
 Machu, In re (1882). 21 Ch. D. 838. 322 
 
 Macleod v. Attorney-General of N. S. 
 Wales (1891), A. C. 455 121 
 
 Magistrates of Dunbar v. Duchess of 
 Roxburghe (1835), 3 CI. & F. 354 251 
 
 Maddison v. Alderson (1883), 8 App. 
 Gas. 467 326 
 
 Madden v. Connell — See Connell v. 
 Madden. 
 
 Magdalen College Case (1857), 6 H. 
 L. G. 189 ; 11 Rep. 716 63 
 
 Manley v. Collom 2, 37, 78, 
 
 115, 136, 155, 160, 199, 205, 
 218, 231. 241, 246, 256. 266, 283, 
 332, 336. 358, 361, 372, 386, 395, 
 404, 413, 437,. 504, 506, 507, 508, 509 
 
 PAGE. 
 
 Maple Leaf & Lanark Mineral 
 Claims, lie (1893) , 2 B. O. 323. . 143 
 
 Marino v. Sproat 133. a.jO 
 
 Maritime Bank of Canada v. Re- 
 ceiver General of New Brun- 
 swick (1892), 61 L. IJ. P. C. 77 
 
 119, 120, 121 
 
 Marquette Election, Re (1896), 11 
 Man. 381 471 
 
 Martley v. Carson (1889), 20 S. C. 
 R. 634 67 
 
 May, In re. (1885), 28 Ch. D. 516. . 393 
 
 JlerriU v. Dixon, 15 Nev. 401 168 
 
 Meydenbauer v. Stevens et al. 
 (1897) , 78 Fed. Rep. 787 360 
 
 Mills V. Haywood (1877), L. R. 6 
 Ch. D. 196 13, 20 
 
 Milward v. Thanet (1801), cited 5 
 Ves. 720n 13, 20 
 
 Monson v. Bochm (1884), 26 Ch. D. 
 405 230 
 
 Mont Blanc Mining Co. v. Debour 
 
 (1882) , 15 Mor. M. C. 286 175 
 
 Montreal Rolling Mills Oo. v. Cor- 
 coran (1890) , 26 S. C. R. 595. . . 315 
 
 Morley v. Attenborough (1849). 3 
 Ex. 500 259 
 
 Morse v. Phinney (1893), 22 S. C. 
 R. 563 293 
 
 Mounteashel v. Grover (1847), 4 U. 
 
 C. R. 25 297 
 
 Moore V. Gamgee (1890). 25 Q. B. 
 
 D. 244 430 
 
 Moore v. Shaw (1861), 79 Adj. Dee. 
 
 123 406 
 
 Murphy v. Star Exploring and Min- 
 ing Oo So 
 
 Musgrove v. Shun Teeong Toy 
 
 (1891). A. C. 272 338 
 
 Myers v. Spooner (1880), 9 Moir. 
 520 • -GO 
 
 N. 
 
 National Savings Bank Association, 
 /» re (1866). 1 Oh. App.. 549 . . . 473 
 
 Nelson & Ft. Sheppard Ry. Oo. v. 
 Dunlop 194 
 
 Nelson & Ft. Sheppard Ry. Co. v. 
 
 Jerry 83, 97, 205, 229, 230 
 
 249, 310, 371, 378. 400, 412, 415, 429 
 
 Nesbit v. Cook (1879), 4 A. R. 200. 471 
 
 Newhall v. Sangler (1875), 92 U. S. 
 761 178, 179 
 
 >evvton v. Cowie (1827). 4 Bing. 234 230 
 
 Noble V. Blanchard 85. 450, 451, 453 
 
 North V. Walthamstow Urban 
 Council (1898), 67 L. J. Q B 
 972 ....'499 
 
 North Noonday Mining Co. y. Orient 
 Mining Oo. (1880), 9 Morr. 531. 445 
 
 Nuth V. Tamplin (1881), 8 Q. B. D 
 247 430 
 
 O. 
 
 O'Brien v. Regina (1880), 4 S. C. R. 
 
 575 13 
 
 Oddie V. Woodford (1821), 3 Myl & 
 
 Cr. G25 . . . 34a 
 
I.] 
 
 TABLE OF CASES CITED. 
 
 PAGE. 
 
 Orr Ewiug ^. Colquhoun (1877;, 2 
 
 App. Oas. 839 GU 
 
 Osborne v. Kerr (18.j!J;, IT U. C. Q. 
 
 B. 144 51i 
 
 Osborne y. Dondon & N. W. Ky. Co. 
 
 (1888) , 21 Q. B. D. 220 310, 
 
 Osborne v. Morgan (1888 J, 13 App. 
 
 Cas. 234 8. 250, 377, 440, 490 
 
 Outram v. Jlorewood (1803), 3 East 
 
 340 100 
 
 Palmer v. Palmer (1892), 1 Q. B. 
 
 319 - 285 
 
 Palmer v. Wallbridge (1888), 15 S. 
 
 0. 500 303 
 
 Parkdale v. West (1887), 12 App. 
 
 Cas. 002 100, 177, 251 
 
 Parkin v. Thorold (1852), 16 Beav. 
 
 09 13 
 
 Parsons v. Citizens Ins. Co. (1881), 
 
 1 Cart. 273 
 
 116. IIT, 119, 120, 123, 124 
 Partlo V. Todd (1888), 17 Can. S. G. 
 
 R. 196 510 
 
 Partridge v. Hamilton 246 
 
 Paulson V. Beaman 146, 218 
 
 Pavier v. Snow 291, 437, 489, 500 
 
 Payne Consolidated Co. v. Wilson. . . 
 
 230, 459, 512 
 Peacock v. Peacock (1809), 16 Vesy. 
 
 49 151 
 
 Pearce v. Brooks (1866), L. R. 1 Ex. 
 
 213 336 
 
 Pearce v. Watts (1873), L. R. 20 
 
 Eq. 492 147 
 
 Peck Y. Reginani 2 
 
 Pellent v. Almoure 2, 
 
 78, 229. 231. 372, 393, 433, 504. 528 
 Pender v. War Eagle (1899), 7 B. C. 
 
 102 319 
 
 Pennell v. Deffell (1853), 4 D. M. & 
 
 (i, 372 , 200 
 
 Peters v. Sampson 2, 
 
 3S7. 430, 434. 433, 458. 490. MO. 504 
 Peterson v. The Queen (1880), 2 Ex. 
 
 74 8, 250 
 
 Phenev. Poppew^ll (1802 I, 12 C. B. 
 
 N. S. .334 229 
 
 Phillips V. Phillips (1878), 4 Q. B. 
 
 D. 127 237, 284 
 
 Phillips V. Ward (1863), 2 II. & C. 
 
 717 392 
 
 Place V. Alcock (186(i), 4 P. & F. 
 
 1074 147 
 
 Playfair r. Musgrove (1S45), 13 L. 
 
 .1. Ex. 20 517, 518 
 
 Pledge V. Carr (1895). 1 Ch. 52 
 
 490. 498 
 Poliniv. Gray (1879), ]2 Ch. D. 438 340 
 Poore V. Clark (1742), 2 Atk. 515 . . 235 
 Pope V. Cole 2, 
 
 133, 152, 239. 324. 330. 433, 504 
 Powell V. Peck et al. (1887) , 12 Ont. 
 
 Pr. .14 87 
 
 Pratt V. Pratt (18821, 47 L. T. N. S. 
 
 249 470 
 
 Prendergast v. Turton (1843). 13 L. 
 
 .7. Ch. 209 ].•; 
 
 PAGE. 
 
 Preston Banking Co. v. William All- 
 sup & Sons (1895), 1 Ch. 141 . . 479 
 
 Pugh V. Golden Valley Ry. Co. 
 
 (1880) , 15 Ch. D. 334 491 
 
 Q- 
 
 Queen v. Bradlaugh (1877), 2 Q. B. 
 
 D. 372 278 
 
 Queen v. Burah (1878), 3 App. Cas. 
 
 906 250 
 
 Queen v. Canadian Agricultural Coal, 
 
 &c. (1895) , 24 S. C. 713 505 
 
 Queen v. De Grey (1900), 1 Q. B. 
 
 542 490 
 
 Queen v. Demers (1894), 22 S. C. 
 
 482 67, 165, 174, 180, 440 
 
 Queen v. Edmundson (1859), 28 L. 
 
 J. M. C. 213 293 
 
 Queen v. Farwell (1887). 14 S. C. 392; 
 
 (1893) 3 Ex. 271; (1894), 22 S. 
 
 C. 553 67 
 
 Queen v. London County Council 
 
 (1893), 2 Q. B. 491 249 
 
 Queen. The. v. Smith (1873), L. R. 
 
 8 Q. B. 146 296 
 
 R. 
 
 Radley v. London & N. W. Ry. Co. 
 
 (1876) , 1 App. Cas. 754 313 
 
 Railton v. Wood (1890), 15 App. 
 
 Cas. 366 172 
 
 Rammelmeyer v. Curtis . .2, 289. 433, 504 
 Ranelagh v. Melton (1864), 34 L. J. 
 
 Ch. 227 13 
 
 Rawlins v. Wickham (1858), 3 DeG. 
 
 & J. 317 262 
 
 Readhead v. Midland Ry. Co. 
 
 (1867) , L. R. 2 Q. B. 419 230 
 
 Redgrave v. Hurd (1881), 20 Ch. D. 
 
 1 261 
 
 Reg. V. Aldous (1897), 5 B. C. 220. 139 
 Reg. V. Bishop of London (1889), 23 
 
 Q. B. D. 429 ] 173 
 
 Reg. V. City of Victoria (lf88). 1 
 
 B. C. pt. II.. p. 331 .116, 124 
 
 Reg. V. Clarence (1888), 22 Q. B. D. 
 
 65 172 
 
 Reg. V. Demers, ri'rfc Queen v. 
 
 Demers. 
 Rex. V. Durslev (1832), 3 B. & Ad. 
 
 465 298 
 
 Reg. V. Justices, &c. (1838), 7 Ad. & 
 
 El. 491 177 
 
 Reg. V. Little 124. 343 
 
 Reg. V. Pears (1880), 5 Q. B. D. 389 177 
 Reg. V. Taylor (1878), 36 V. C. Q. 
 
 B. 183 110 
 
 Reg. V. Wing Chung (1885), 1 B. 
 
 C. pt. II.. p. 1.50 116. 124 
 
 lieinard v. JlcClusky (1897), 5 B. C. 
 
 226 139 
 
 Reynolds v. Attorney-General of 
 
 Nova Scotia (1806), A. C. 240. . 295 
 
 Richards v. Price 63. 500, 504 
 
 Rochefoucauld v. Boustead (1896). 
 
 75 L. T. N. S. 502: (1897). 1 
 
 Ch. 196 148. 280. 287, 326 
 
 Roberts v. Bury Commissioners 
 
 (1869). L. R. 4 C. P. 700 50 
 
XXIV 
 
 TABLE OF CASES CITED. 
 
 [VOL.. 
 
 PAGE. 
 
 Robertson, In re (1869), 5 P. R. 132 471 
 Robertson v. Caldwell (1871), 31 U. 
 
 O. Q. B. 402 201 
 
 Robertson v. Daley (1885), 11 Ont. 
 
 352 166 
 
 Robinson v. Anderson (1855), 7 
 
 DeG. M. & G. 239, 20 Beav. 98 . 
 
 149, 150 
 Robinson v. Local Board (1883), 8 
 
 App. Cas. 798 177 
 
 Robinson v. MoUett (1874), 7 H. of 
 
 L. 815 147 
 
 Robinson v. Musgrove (1838), 2 M. 
 
 & Rob. 94 262 
 
 Rogers v. Pitcher (1815), 6 Taunt. 
 
 202 ; 26 R. R. 202 295 
 
 Rogers v. Reed (1900), 7 B. C. 142. 430 
 Rogers v. Saunders (1839), 33 
 
 American Decisions 641 13 
 
 Rose V. Peterkin (1884), 13 Can. S. 
 
 C. R. 706 148 
 
 Rossi V. Bayley (1868), h. R. 3 Q. 
 
 B. 628 185 
 
 Russell V. The Queen (1882), 7 App. 
 
 Cas. 829 120 
 
 Ryan v. McQuillan 
 
 370, 372, 393, 404, 432, 447, 449, 512 
 
 S. 
 
 Sadler v. G. W. Ry. Co. (1890). A. 
 
 C. 450 232, 233, 235 
 
 St. Eugene Mining Co., Re 60, 
 
 111, 299, 310 
 St. Louis V. O'Callaghan et al. 
 
 (1889) , 13 P. R. 322 313 
 
 St. Louis Mining & Milling Co. v. 
 
 Montana Co., Ltd. (1890), 23 
 
 Pac. Rep. 510; (1898), J.'! U. S. 
 
 651 278. 310 
 
 Salmon v. Duncombe (1886) , 31 
 
 App. Cas. 627 r49 
 
 Salter v. Salter (1896). P. 293 450 
 
 Sanders v. Barker (1890), 6 T. L. 
 
 R. 324 336 
 
 Sandiman v. Breach (1827), 7 B. & 
 
 •C 99 100 293 
 
 Sanford V. Sanford' (is^i) ', '139 'u. 
 
 S. 642 at 646 .309 
 
 Savage v. Foster (1723) 9 Mod. 35. 383 
 Schomberg v. Holden 83, 
 
 115, 283, 291. 369, 370, 386, 388, 
 
 389, 428, 432. 438, 447. 449, 508, 510 
 Schultz V. Archibald (1892), 8 Man. 
 
 284 471 
 
 Scott V. Brown Doering. McNab & 
 
 Co. (1892) , 2 O. B. 724 336 
 
 Scott V. Midland Ry. Co. (1901), 1 
 
 Q. B. 317 479 
 
 Shafer v. Constans (1879), 1 Mor. 
 
 M. C. 147 175 
 
 Shaw V. Foster (1872), L. R. 5 H. 
 
 L. 337 323 
 
 Sheehan v. Great Eastern Ry. Co. 
 
 (1880), 16 Ch. D. 59 524 
 
 Shepley ot al. v. Oowan et al. 
 
 (1875) . 1 Otto 338 308 
 
 Silvery. Ladd (1868), 7 Wall. 219. . 309 
 Sioux City & Iowa Palls Town Lot 
 
 & Land Co. v. Griffey (1891), 
 
 143 U. S. 32 175 
 
 PAGE. 
 
 Small V. Attwood (1832), You. 458. 235 
 Smith V. Baker & Sons (1901), A. C. 
 
 325 315, 316 
 
 Smith V. Mcintosh (1893), 3 B. C. 
 
 28 : 293 
 
 Smith V. Peters (1875), 20 Eq. 511. 225 
 Smith V. The Queen (1878), 3 App. 
 
 Cas. 614 8, 440 
 
 Smurthwaite v. Hannay (1894), A. 
 
 C. 494 232. 233, 235 
 
 Spedding v. Pitzpatrick (1888), 38 
 
 Ch. D. 410 285 
 
 Staffordshire Banking Co. v. Emmott 
 
 (1867) , L. B. 2 Ex. 220 185 
 
 Stamer v. Hall Mines Co 381, 480 
 
 Stannard v. Vestry of St. Giles, Cam- 
 ber well (1882), 20 Ch. D. 190.. 415 
 Star Mining Co. v. Byron White 
 
 Mining Co 227, 280, 368 
 
 Steel et al. v. Gold, Lead, Gold & 
 
 Silver Mining Co. (1883), 15 
 
 Morr. 292 308 
 
 Stevens v. Cook (1859), 5 Jur. N. 
 
 S. 1415 211 
 
 Stevens v. Williams (1879), 1 Morr. 
 
 564. 565 270 
 
 Stockport Water Works Co. v. Pat- 
 ton (1864), 3 H. & C. Cas. 300. 65 
 Stuart V. London & N. W. R. Co. 
 
 (1852), 21 L. a. Ch. 450 13 
 
 Stuart V. Mott (1886) , 14 S. C. 734 ; 
 
 (1894) 23 S. C. 384.322, 323, 326, 504 
 
 Stussi V. Brown 83. 97, 152, 324, 400 
 
 Sung V. Lung (1901), 8 B. C. 423. . 139 
 Sunshine, Limited, v. Cunningham. . 
 
 152, 155, 202, 239, 330, 504 
 Swyny v. North Eastern Ry. Co. 
 
 (1896) . 74 L. T. 88 302 
 
 T. 
 
 Tai Sing v. Maguire (1878), 1 B. C, 
 
 pt. I., p. 101 116, 124 
 
 Tasmania, The (1890), 15 App. Cas. 
 
 223 83, 497 
 
 Taylor v. Corporation of Oldham 
 
 (1876) . 4 Ch. D. 395 430 
 
 Taylor v. Parry (1840), 1 Man. & G. 
 
 604 439 
 
 Taylor v. Portington (1855), 7 DeG. 
 
 M. & G. 328 147 
 
 Taylor v. Salmon (1838), 4 M. & C. 
 
 134 286 
 
 Temple v. Attorney-General of Nova 
 
 Scotia (1897), 27 S. C. 355 505 
 
 -Temple Bar. The (1885) , 11 P. D. 6. 302 
 Tennant v. Union Bank of Canada 
 
 (1894). A. 0. 31 117 
 
 Theberge v. Landry (1876), 2 A. C. 
 
 102 63 
 
 Thomas v. Reginam (1874),L. R. 10 
 
 Q. B. 31 13. 25 
 
 Thomson v. Davenport (1829), 2 
 
 Smith's L. C, 368; 9 B. & C. 
 
 78 40 
 
 Thornburglj v. Savage Mining Co. 
 
 (1867) . 7 Morr. 680 271, 278 '>'?Q 
 
 Thrasher Case (1881), 1 B. C, pt. 
 
 L, 153; (1884) 9 S. 0.527 ... 9 
 Timson v. Wilson (1888), 38 Ch. D. 
 
 72 302 
 
I.J 
 
 TABLE OF CASES CITED. 
 
 XXV 
 
 PAGE. 
 
 Tod Heatley v. Barnard (1890), W. 
 
 N. 90, 130 90 
 
 Toleman v. Portbury (1870),.L. R. 
 
 5 Q. B. 295 115 
 
 Townley v. Gibson (1788), 2 Term. 
 
 Rep. 701 406, 407 
 
 Trask v. Pellant 139, 144 
 
 Trimble v. Hill (1879), 5 App. Cas. 
 
 345 211. 217, 453 
 
 Troup V. Kilbourne (1897), 5 B. C. 
 
 547 306, 313 
 
 Truax v. Dixon (1889), 17 Ont. 366, 
 
 144 293 
 Tupper V. Annand (1888), 16 S. c' 
 
 718 505 
 
 U. 
 
 U. S. V. Reed, 12 Saw. 99, 104. .168, 184 
 V. 
 
 Valin V. Langlois. (1879), 1 Cart. 
 
 177 . . ; 120 
 
 Velati V. Braham (1877), 46 L. J. C. 
 
 P. 415 226 
 
 Victor V. Butler 37, 51, 92, 500 
 
 W. 
 
 Wakefield v. Turner (1898), 6 B. C. 
 
 216 453 
 
 Wakelin v. London & S. W. Ry. Co. 
 
 (1886) , 12 A. C. 41 315 
 
 Wales V. Ttomas (1885). 16 Q. B. 
 
 D. 340 479 
 
 Walker v. Brown (1868), 14 Gr. 237 13 
 W^ar Eagle Cousol. Mining, &c., Co. 
 
 V. B. C. Southern Ry. Co 67 
 
 Warmingtou v. Palmar (1902), 32 
 
 S. C. 126 ; 8 B. 0. 344 319 
 
 Warner v. Don (1896), 26 S. C. 389. 505 
 Waterhouse v. Liftchild 37, 
 
 115, 288, 290, 291, 370, 387, 500, 504 
 Waterlow v. Dobson (1857), 27 L. J. 
 
 Q. B. 55, 50 
 
 Webb V. Montgomery 266, 484 
 
 Webster v. Bray (1848), 7 Hare 159 151 
 Weir, In re (1898), 31 N. Sc. R. 97 378 
 Weston V. Oollins (1865), 34 h. J. 
 
 Ch. 354 13 
 
 Wells V. Petty. .2. 83, 202, 239, 288, 324 
 
 PAGE. 
 
 West Derby Union v. Metropolitan 
 
 Assurance Co. (1897), A. O. 653. 256 
 West Devon, &c.. Mine, Re (1888). 
 
 38 Ch. C. 51 ; 36 W. R. 342 ; 58 
 
 L. T. 61 ; 57 L. J. Ch. 850 90 
 
 Wheeler v. Smith (1893), 32 Pac. 
 
 Rep. 785 168, 176, 183 
 
 White V Neaylon (1886), 11 App. 
 
 Oas. 171 360 
 
 Wicherley v. Andrews, 2 P. & M. 337 525 
 Wier, ilw parte (1871), 6 Ch. App. 
 
 879 250, 491 
 
 Wilkinson v. Blades (1896), 2 Ch. 
 
 788 524 
 
 Williams v. Leonard (1898), 16 P. 
 
 R. 544; (1896) 17 P. R. 73 322 
 
 Williams v. Morgan (1888), 13 A. C. 
 
 238 . .1 S 
 
 Williams Creek, &c., Co. v. Synon. . 
 
 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.) 341 318 
 
 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. 246 217 
 
 Wood V. Boozey (1867), L. R. 2 
 
 Q. B. 340 144 
 
 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. & 
 
 B. 859 517 
 
 WooUey y. Attorney-General of Vic- 
 toria (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). 9B. 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 
 
I 
 
TABLE* OF THE JUDGES 
 
 OF THE 
 
 SUPREME COURTS 
 
 OF 
 
 Yancouyer Island and British Columbia,, 
 
 1853-1902. 
 
 Colony of Vancouveu Island 
 (1849). 
 
 The Hon. David Cameron, Chief 
 Justice and Judge in Admir- 
 alty; appointed Dec. 2, 1853, 
 resigned Oct. 11,1865. 
 
 The Hon. Joseph Needham, 
 Chief Justice and Judge in 
 Admiralty; appointed Oct. 11, 
 1865, resigned March 29, 1870. 
 
 Colony of 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 llth^ 
 1894. 
 
 1870, March 11. — The Hon. He.mry Pering Pellew Crease, first 
 Puisne Judge; received Knighthood January 1st, 1896; 
 retired Januarv 20th, 1896. 
 
 ' Fot lurther particulars Bee the Author's " Chart of the Judges of the Supreme- 
 Coutts Of Vancouver Island and British Columbia," 1899. 
 
XXVlii TABLE OF THE JUDGES OF THE SUPREME COURTS. 
 
 1871, July 20.— TjNroN 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. l7th, 1897. 
 1880, Nov. 26. — The Hon. Alexander Rockk Robertson, Puisne 
 
 Judge, died Dec. 1, 1S81. 
 1882, May 23. — The Hon. George Anthony Walkem, Puisne 
 
 Judge. 
 1889, Aug. 14.— The Hon. Montague William Tyrwhi'it Drake, 
 
 Puisne Judge. 
 
 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 Admir- 
 alty, succeeding the Hon. Theodore Davie ; died Jan. 16th, 
 1902. 
 
 1897, Dec. 18. — The Hon. Paulus ^milios Irving, Puisne Judge. 
 
 1898, Sep. 12. — The Hon. Archer Martin, Puisne Judge. 
 
 1902, March 4. — The Hon. Gordon Hunter, Chief Justice, suc- 
 ceeding 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 Hunter, Chief Justice. 
 
 " George Anthony WalSem, Puisne Judge. 
 
 " " Montague William Tyrwhitt Drake, Puisne 
 
 Judge. 
 " " Paulus .(Emilius Irving, Puisne Judge. 
 
 " Archer Martin, Puisne Judge and Judge in 
 
 Admiralty. 
 
 Note. — The appellate coart of the Provinbe, known as the Full Court, is oom- 
 tpoaed of the Judges of the Supreme Court, or any three of them, sitting in banc. 
 
MARTIN'S MINING CASES, Vol. i 
 
 SUPPLEMEM2\ containinrj notes of Mining Cases decided between October 
 
 1st, 1902 (the end of the period covered by Vol. 1 ), and February, 
 
 9th, 1903, being the date of the close of the January 
 
 Sittings of the Full Court of British 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 de- 
 livered 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 fl,424. An appeal' was 
 taken to the Pull 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 ||i^ 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.) 
 
2 MARTIN'S MINING CASES. [vol. 
 
 McKelvey v. Le Eoi 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 coun- 
 sel on the argument before the Full Court, and who directed his argu- 
 ment solely to the question of statutory liability for alleged non-com- 
 pliance with the " Inspection of Metalliferous iMines Act," and amend- 
 ments, 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 " fall- 
 ing material " within the meaning of the Act. The result is, therefore, 
 that its real decision has not been disturbed though its formal judgment 
 hds been reversed. 
 
 (Note; Feb. la, 1903.) The Privy Council dismissed the petition of the 
 defendant company for leave to appeal. 
 
 McNaught v. Van Norman. 
 
 {Ante, p. &16.) 
 
 1902. Nov. 17. On. appeal to the Supreme Court of Canaaa me decision of 
 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. 
 
 Cei|tre Star Mining Co. v. City of Eossland. 
 
 1903," Jan. 26. Meld by the Full Court (Walkem, Drake, Irving and Mar- 
 tin, 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 *o sec. 42 of that Act and the general 
 scope and object of the " Water Clauses Consolidation Act," and in par- 
 ticular 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 pi'ior and existing record under 
 the said special Act. 
 
 J'er 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.' 
 
T-] SUPPLKMENT. 3 
 
 Star Mining Co. v. Byron N. 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 
 workings. 
 
 Part 5 of Vol. 32 of the Supreme Court Reports, just received, con- 
 tains reports of the following cases above mentlpned: — 
 
 Paulson V. Beaman ; ' 655 
 
 McKelvey v. Le Roi Mining Co 664 
 
 McNaught V. Van Norman ...(. 690 
 
 And Hartley v. Matson, p. 645, should be added to the list of author- 
 ities cited in the note to Canadian Company v. Orouse Creek Plume Co. 
 (p. 3) as supporting the judgment of Needham, C.j; 
 
 ARCHER MARTIN. 
 -LiAW COTTBTS, 
 
 Victoria, B.C., March 13, 1903. 
 
MARTIN'S MINING CASES. 
 
 Williams Cebek Bed Eock Flume & Ditch Co. Ltd. v. Stnon.* 1867. 
 
 July 4th. 
 
 Free Miner — Interest in Claim — Lease — Ahandonment — Forfeiture — Grown Beudik, C..T. 
 — Re-Entry — Oold Miming Ordinance, 1867, sec. 34. 
 
 Though the interest of a free miner in his claim expires, unless renewed, at the 
 end of a year, his lessor, the Crown, may relieve against the forfeiture in cases 
 where there is no one entitled to take advantage of such expiry. 
 
 An interest in a claim which has not been renewed is an abandoned interest. 
 
 Apt'KAL from decision of t^e Gold Commissionei' (Ball) heard at Statement. 
 Richfield, Cariboo, by Begbie, C.J., on July 3rd, 1867. 
 The facts sufficiently appear in the judgment. 
 H. P. WalTcer, for appellant, Synon. Argument. 
 
 Respondents, according to the notes of the learned Judge, were 
 apparently not represented by counsel. 
 
 Begbie, C.J. : — In this ease several points of law were raised, and Judgment 
 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 gelierally 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 
 
 *The case is reported only in so far as it relates to the interest of a free 
 miner. 
 
 M.M 0. 1 
 
2 MARTIN'S MINING OASES. [yol. 
 
 J l^^Iih ^^^^ ^^^ observed; much the same as where in ordinary leases, condi- 
 — ' tions are broken which expose the lessee to a re-entry by the landlord. 
 Beobie, C.J. B^j. jj. ^jy jjQ means foUows 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 
 " 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 leasfr 
 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 statut- 
 able 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 aU events three interests, had expired, and 
 had not been renewed. This expression is surely only a periphrasis 
 lor an " abandoned " interest. Being abandoned it was by Act of Par- 
 liament 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 30th May 
 produce? He onLy registers that interest which Kirwan gave him 
 and KHrwan 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. Eng- 
 Usli Canadian Co., post, p. 394 ; Pet&rs v. Sampson, post, p. 247 ; Pope v. Cole^ 
 post, p. 257; Qelinas v. Clark, post, p. 428; Manley f. Collom, post, p. 487; 
 'JRammelmeyer v. Curtis, post, p. 401. 
 
 As to abandonment generally see the next case, and Peck v. Reginam, post, 
 p. 13 ; Woodhury 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. Oan^ 
 Co., supra. 
 
I.] CANADIAN COMPANY v. GROUSE CREEK FLUME CO. 
 
 CANADIAN Company v. Gkouse Ceeek Flume Co., Ltd. 
 
 1867. 
 September 27' 
 
 Mining Lease— Crown— Waste Land— Forfeiture — Waiver — Abandonment— Nkedham, 
 Location — Bed Rock Plume — Free Miner — Gold Mining Ordinance, 1867. C.J. V.I. 
 
 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 forfeiture and re-enter for breach, or waive it. 
 Free miners in general are strangers to sucii a lease and have no rights under 
 
 or over it. 
 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 reeording a claim is the act of the party and not of the Crown, so 
 
 cannot operate as a re-demise of ground already leased by the Crown. 
 
 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 37th, 
 1867. 
 
 Park, for plaintiff. 
 
 Walker, Walhem, and Eocke Bdbertson, for defendant. 
 
 The facts sufficiently appear from the judgment. 
 
 Cur. adv. vult. 
 
 Statement. 
 
 Argument. 
 
 September 37th, 1867. 
 
 BfEEDHAM, C. J.V.I. : — This is an action of ejectment tried bv Judgment, 
 consent without a jury to determine the title to certain mining ground 
 situate on Grouse Creek in the District of Cariboo. A sum of 
 $3,668.50 has been paid into Court by the parties to abide the judg- 
 ment 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'Eeilly, of 
 Cariboo, Esquire, acting on behalf of Her Majesty the Queen, by in- 
 denture of lease of that date, in consideration of the rents and cove- 
 nants therein mentioned, granted and leased to the defendants a tract 
 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 
 
4 MARTIN'S MINING CASES. [vol. 
 
 1867. extreme points for the purpose of laying a bed-rock flume therein, 
 ep em^r . ^^^ ^^^ other the purposes in the said indenture mentioned, together 
 Nekdham, 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 suc- 
 cessors and assigns for the term of ten years from the 1st of May, 
 1864, rendering. the rent 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 cove- 
 nants, 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'Eeilly, or his successor in office for the time being, by any writing 
 under his or their hand addressed to the said Grouse Creek Flume Com- 
 pany, Limited, their successors and assigns, and afiixed to some con- 
 spicuous 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. 
 
 Xo adjudication of default, however, or declaration of forfeiture 
 had 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 
 behalf of the Crown to re-enter upon the lease for condition broken. 
 
 On the 8th of October, 1866, the plaintiffs entered upon the whole 
 of the land so demised to the defendants as aforesaid, and on the same 
 day duly recorded their claim thereto in the Gold Commissioner's 
 
1.] CANADIAN COMPANY v. GROUSE CREEK FLUME 00. 5 
 
 Court for the district in tlie name of certain persons mentioned and to 1867. 
 be known as the Canadian Company, but they took no steps to stake ^^ ^J"' 
 out the land which they so entered and recorded. Needhaji, 
 
 By indenture of the 33rd of March, 1867, and made between 
 Warren Eeeve Spalding, of Cariboo, Esquire, acting on behalf of 
 Her Majesty, the Queen, of the first part, and the defendants of the 
 other part, after reciting the above grant of the 30th of April, 1864, 
 and that the Government was desirous of resuming a great portion of 
 the ground and privileges granted to the said company by the said 
 grant of the 30th April, 1864, which the said company had consented 
 to give up in consideration of being freed from the observance of. the 
 provisions of such grant applicable to the premises so given up, and also 
 of certain portion of the provisions of such grant applicable to the 
 premises retained in the possession of the said companjr, and that the 
 said parties had concluded such agreement in manner thereinafter ex- 
 pressed — It was by the said indenture witnessed that in consideration 
 of the premises and in pursuance of such arrangement the said company 
 thereby released unto Her Majesty, her heirs and successors and as- 
 signs all the land and premises included in the said grant or demise 
 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 con- 
 tained, and by the said company their successors and assigns to be 
 respectively paid, observed and performed in lieu of the rents, coven- 
 arits, 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 suc- 
 cessors and assigns for the term of two years, from the 33rd 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 de- 
 claration 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 
 
6 MARTIN'S MINING CASES. [vol, 
 
 1867. Crown has accepted the rent reserved hy this demise up to the 39tli 
 .September 27. ^^y of September, 1867. 
 ^'^^'"AK, At the time the land was taken possession of and recorded by 
 
 the plaintiils, 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 
 pjaintiffs 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 ettected 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 compliaiice 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 plaintiils, and' that the 
 defendants takijig no steps to defeat it worked a legal surrender. 
 
 But it seems to me that the act of record in tne Gold Commis- 
 sioner'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 construc- 
 tion with propriety be put on the conduct of the defendants. 
 
 3nd. 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 for- 
 feiture, 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 inten- 
 tion to do so (by the deed of the 23rd of March, 1867). 
 
 •Gold Mining Ordinance, 1867, sees. 22 and 3S. 
 
I.] CANADIAN COMPANY v. GROUSE CREEK FLUME CO. 7 
 
 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 27. 
 is inconsistent with the supposition of thos'e lands being at that time Needham, 
 vested in the Crown by forfeiture. Moreover the Crown could at any 
 time, 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 by the 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, 13 ft. 3 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 I am asked to decide the question of fact without the inter- 
 vention 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 
 stalve 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 13 ft. 3 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 con- 
 tention, and that the Heron Sapling, or the point where that sapling 
 «tood, 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 13 ft. 3 in. by some 3 feet. 
 
8 MARTIN'S MINING CASES. [vol- 
 
 1867. But to my mind this is a reliance on the measurement which 
 
 September 27. neither the circumstances admit of nor the facts justify. 
 Nkedham, The defendants have always been in possession of this ground 
 
 as part of their grant. The adjoining owners claim up to the de- 
 fendants' 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 Com- 
 missioner's Court, nor can I find that the plaintiffs, imtil 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 de- 
 fendants on the east side up to the liae 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 e:^citement has existed with regard to this case. Nor can I hope 
 that the judgment which I have now pronounced will be equally agree- 
 able 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 consider- 
 ation, 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 tri- 
 bunals of his country — ^tribunals which have always been regarded 
 by Englishmen as the fountain 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. Ettershanh, (lb75) L. B. 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) 
 13 A. 0. 227 ; Williams v. Morgan, lb., 238 ; Peterson v. The Queen, (1889) 2 Ex. 74 
 and Bulmer v. The Queen, (1893) 23 S. C. 488. 
 
1.] 
 
 JENXX LIND CO. v. BRABLBY-NICHOLSOX CO. 
 
 Jenny Lind Co. v. Bkadlet-jSTicholson Co. isfes. 
 
 September 13. 
 (1 B. C. Pt. ii., 185.) WalI^i.-J. 
 
 Water Right — Grant — Licence — Bill Claims — Gold Mining Ordinance, 1867, 
 sec. 36— Supreme Court Rules, 1880 — Order in Council, Form of — JuriscKc- 
 , tion. 
 
 Under the Gold Mining Ordinance, 1867, unless the owner of a hill claim has 
 obtained a grant of water under Part X. he has no right to intercept water 
 higher up a stream that flows through or past his claim, and so interfere with 
 another owner of a lower hill claim in the exercise of the latter's rights under 
 a water grant obtained under said Part X. 
 
 Water so intercepted is not water " naturally flowing through or past his 
 claim " within the meaning of sec. 36 of said Ordinance. 
 
 A grant of such water right need not be in writing. 
 
 Appeal to Mr. Justice Walkem^ sitting at Eichfield, from an order statement. 
 made by the Gold Commissioner (Bowron), giving the Bradley- 
 Nicholson Company the use, for mining purposes on their claim, of 
 150 inches of the water of Williams Creek, to the exclusion of the 
 Jenny Lind Co., who also required the water to work their ground, 
 and who were, consequently, compelled to stop work, when thus de- 
 prived of it. 
 
 Irving, for appellants, the Jenny Lind Co. Argument.. 
 
 Wilson, for respondents, the Bradley-Nicholson Co. 
 
 September 13th, 1883. 
 
 Walkem, J. : — I have first to decide whether I have any jurisdic- Judgments, 
 tion 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 Eules, 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, 
 188;, 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 in- 
 suiReient 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. '[vol. 
 
 1883. of the statute under which they are promulgated, it follows that the 
 P em^r . j^jjg^^gg ^f ^|jg Qj-^gr 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 in question 
 is too defective to be operative, and that the rules embraced in it 
 are therefcire not in force. The appeal therefore has been properly 
 boought before this Court under see. 14 of the " Mineral Act, 1878." 
 
 The solution of the main question in dispute depends on a firmly 
 established interpn^tation given to' the mining laws bearing upon it 
 by the Supreme Court, from 1867 onwards. 
 
 Bach of the litigants has, for some years past, owned a hill-claim 
 fronting on the right bank of Williams Creek, the claim of the Brad- 
 ley- I^icholson 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. Coramissioner 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 com- 
 pany 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 intel- 
 ligible 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, uhder 
 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, 
 ^and asked for an injunction, and that Mr. Commissioner Ball's order 
 
1.] JENNY LIND CO. v. BRADLEY-NICHOLSON CO. 11 
 
 of June, 1878, should be enforced. Mr. Bo*ron, thereupon, made the g^pj^/^^-^^ J3_ 
 following order — ^being the order now under appeal — " It is ordered — 
 . . . that the decision given on the 30th of June, 1878, by H. M. Walkkm, j. 
 Ball, Gold Commissioner, wherein it is stated that the Bradley- 
 Nicholson Co. shall be allowed 150 in. of water to work their claim 
 is still in force, which right shall be respected by the defendants " 
 (the Jenny Lind Co.). "The water to be taken by the Bradley- 
 Nicholson Co. into either of their present ditches as they shall see 
 fit." 
 
 "Eichfield, 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 respec- 
 tive 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 re- 
 spondent'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 Ordin- 
 ance 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 apy 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 ■s^hat " natur- 
 ally 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 inter- 
 cept, 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. 
 
12 MARTIN'S MINING CASES. [vol. 
 
 c! .^'*^^' ., The contention of the Bradley-Nicholson Co. has therefore, in 
 
 September 13. •• i ,,„•■, -, 
 
 — my opinion, wholly failed. 
 Walkem, j. rpjjg 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 : — 
 
 " 150 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 Boweon, G. C." 
 
 " Eichfield, 20th April, 1883. 
 
 He contends that the word " grant " in the Mining Act, as applied 
 to water-privileges, necessarily implies that they should be given or 
 conveyed by deed. But this is confounding the grant of a privilege to 
 use a chattel interest with the well-known common law conveyance 
 required to be under seal. Under the Mining Acts, a miner is granted 
 the privilege of mining on waste lands of the Crown, and the grant 
 of the privilege as required by the Acts is issued in the form of a 
 written licence to mine, signed by the Gold Commissioner, and 
 familiarly known as a " Free Miner's Licence." The licence may be 
 for one, two, or three years. A licence is defined by Wharton as " a 
 grant of permission, a power or authority given to another to do some 
 lawful act. It may be either written or verbal: whon written the 
 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 fiume 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 re- 
 versed, and the appellants be declared entitled to the water-privileges 
 mentioned in their licence of April, 1883. 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. 
 
 Note. — For other decisions on water rights, see Colunibia River v. Yuillr 
 post, p. 64, and cases there cited. 
 
'■] 
 
 PECK V. REGINAM. 
 
 13 
 
 Peck v. Eeginam. 
 
 (IB. C. Pt. ii, 11.) 
 
 Coal — Mineral Ordinance, 1869, and amending Acts. Construction of — Pros- 
 pecting Licence — Cancellation of Licence — Condition Precedent — Waiver — 
 Croian Grant, Application for— Laches — Abandonment — Crown — Certificate- 
 — Evidence. 
 
 Petitioners held a prospecting licence for coal over 2,500 acres of land under 
 the Mineral Ordinance, 1869, and applied for a Crown grant. In support of 
 their claim, they relied on a certificate of the Assistant Commissioner of 
 Lands and Works, that they had duly posted notices of their application, and 
 " that no objection to the issue of such grant had been substantiated." 
 
 Held (1) That the certificate was not in accordance with the Act. 
 
 (2) That the certificate of an Assistant Commissioner was not conclusive evi- 
 dence of compliance 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 prelimin- 
 ary conditions imposed by the Legislature. 
 
 (4) That in a proceeding to enforce specific performance by the Crown, un- 
 reasonable 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. 
 
 M. W. T. Drake, Q.C., for the petitioners. 
 
 A. E. B. Davie, Q.C. (Attorney- General), and Harrison, for the 
 Crown. 
 
 Pooley, on behalf of parties claiming to be interested under sub- 
 sequent legislation. 
 
 The following statutes, authorities, and cases were cited and re- 
 ferred to during the argument : — 
 
 The B. C. Mineral Ordinance, 1869 ; the B. C. Mineral Ordinance 
 Amendment Act, 1873; Fisher- y. Tulley (1878), L. E. 3 App. Cas. 
 C37; Weston v. Collins (1865), 34 L. J. Ch. 354; Austin v. Tawney 
 (1867), L. E. 3 Ch. 147; Broohe v. Garod (1857), 27 L. J. Ch. 226; 
 Ranelagh v. Melton (1864), 34 L. J. Ch. 227; Davenport v. Regina 
 (1877), L. E. 3 App. Cas. 128; O'Brien v. Regina (1880), 4 Can. S. 
 C. E. 575; Davis v. Sheppard (1866), L. E. 1 Ch. 410; Stuart v. 
 London & N. W. R. Co. (1852), 31 L. J. Ch. 4:50;Milward v. Thanet 
 (1801), cited 5 Ves. 720«; Mills v. Haywood (1877), L. E. 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 Petroleum Co. 
 V. Hurd (1874), L. E. 5 P. C. 239; Alley v. Deschamps (1806), 13 
 Ves. 225; Walker v. Brown (1868), 14 Gr. 337; Rogers v. Saunders 
 
 1884. 
 March 17. 
 
 Gkat, .J. 
 
 Statement. 
 Argument. 
 
14 
 
 MARTIN'S MINING CASES. 
 
 [voi- 
 
 1884. 
 March 17. 
 
 Ueay, J. 
 
 Judgment. 
 
 (1839), 33 American Decisions 641; Attorney-General v. EUershanh 
 (1875), L. E. 6 P. C. 354; Bridges v. Longman (1857), 24 Beav. 
 27; Fullwood v. Fullwood (1878), L. R. 9 Ch. D. 176; Parhin 
 V. Thorold (1852), 16 Beav. 69; Dann v. Spurrier (1802), 7 Ves. 
 234; Thomas v. .Bejfwa (1874), L. E. 10 Q. B. 36; Fry on Specific 
 Performance, 312. 
 
 March 17th, 1884. 
 
 Gray, J. :■ — This is a proceeding under the " Mineral Ordinance,. 
 1869," by which the petitioners, in a petition of right, seek to obtain 
 from the Crown a grant of 1,000 acres of land, in consideration of the 
 due performance of the terms and conditions set forth in the said 
 Ordinance; and, on compliance with which, the statiite enacts that 
 they shall be entitled to such a grant. 
 
 The Attorney-G-eneral, on behalf of the Crown, distinctly denies 
 the performance of the terms and conditionb set forth in the Ordin- 
 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 foith, 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 Lahds- 
 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 
 
I,] - PECK V. REGINAM. 15- 
 
 can be made to the Chief Commissioner. When these preliminaries 1884. 
 
 -■ J, JyJ yircn 17 
 
 have been complied with, a two (3) years' prospecting licence may __ 
 be granted, and the applicant shall, on satisfactory proof to the Assis- Gray, J. 
 tant Commissioner that he has lona 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 
 thinlc 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 por- 
 tion of mineral land to be included in a Crown grant. 
 
 Section 13 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 licen'See 
 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 hare, prior to such 
 expiration or determination, made application -for a Crown grant as 
 therein provided ;" and a new prospecting licence over the same loca- 
 tion, 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 asso- - 
 elation or company of ten or more persons to oot more than 1,000 
 acres, selected out of the premises included in such licence. 
 
 Section 33 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. 
 
16 MARTIN'S MINING CASES. [vol. 
 
 1884., The Assistant Commissioner is to post such notice in his office 
 
 ■ for two calendar months, and (if no adverse claim is filed), to give 
 
 Gray, J. 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 sVim as the Chief Commissioner may 
 estimate as the probablfe cost of survey), shall cause a survey and 
 plan thereof to be made, and to be endorsed with his approval, desig- 
 nating 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), remain- 
 ing 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 (34), 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 39th 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., 31st February, 1873), shall have continuously and lona 
 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 betweea 
 
r.] PECK V. RBGINAM. 17 
 
 the petitioners and the Crown, and the facts established by the ,1884. 
 
 ., ^ ' "^ March ir. 
 
 evidence. 
 
 The petitioners say, first, that on the 36th November, 1873, a Gray, J. 
 mineral licence to prospect for coal was ijM ted to them under this 
 Ordinance (1869), the district not na^red^ but the boundaries set 
 forth, not exbeeding in the wjiole 3,300 statute acres, with all the 
 rights and privileges granted under this Ordinance, and also the 
 right to claim a Crown grant imder the Ordinance, and subject to 
 its provisions; the licence to continue for two years from its date — 
 that is until 36th November, 1874. 
 
 3. That they entered on the land in the licence described^ and 
 before the 36th April, i874, had " selected the portion of such land 
 which they desired to purchase under the said licence and Ordin- 
 ance," 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 36th 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 con- 
 spicuous 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 appily 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 30th April, 1874, caused the said certificate to be sent to the 
 
 Chief Commissioner, accompanied by the following letter: — 
 
 20fch April, 1874. 
 To the Chief Commissioner of Lands and Works : 
 
 " Ste, — We have the honor to enclose you a certificate of Thomas L. Fawoett, 
 made in pursuance of the 'Mineral Ordinance, 1889,' 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 l.OOO acres of land, and to request from you a note of the amount 
 that you will require in order to pay tor survey. We may mention that from 
 f8,000 to 910,000 has been expended on this claim in proving it. 
 
 "We have, &o., 
 
 (Signed) Drake & Jackson." 
 
 That they received a reply from Mr. Beaven, the Chief Commis- 
 sioner of Lands and Works, acknowledging the receipt and informing 
 them that the usual survey fee was $50, and that if they desired 
 
18 MARTIN'S MINING CASES. [vol. 
 
 1884. to have the claim surveyed at once, they could appoint a surveyor to 
 *!f_ ■ do the work at the company's expense, subject to his approval and 
 Grat, .T. under instructions from his department ; and, further, calling atten- 
 tion 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 ar- 
 rived 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 inten- 
 tion to purchase had been given, and employed men in cutting out 
 roads and doing other preliminary 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 re- 
 ceived 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 representa- 
 tives; 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 por- 
 tion 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 accord- 
 ance with the Chief Commissioner's letter of 28th April, 1874; that 
 they neglected taking any steps in support of their claim until Sep- 
 tember, 1882, when they asked for permission to employ a surveyor 
 in answer to which the Government replied that they must treat the- 
 
I,] PECK V. REGINAM. 19 
 
 claim as abandoned by reason of laches, and he denies their assertion 1884, 
 that they never abandoned it. He further describes the location of *if_ ' 
 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 hona fide vi^orked 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 iona fide vi^orked 
 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 wks Thomas Eric 
 Peck, vcho stated that he was one of the petitioners and licensees ; that 
 the notice was written by Nixon, acting as secretary for the cor- 
 poration, dated September 12th, 1873. 
 
 The notice was produced, and is as follows: — 
 
 " Notice. — At the expiration of two months from date, we, the undersigned, 
 intend to apply for a Crown grant for a certain portion of coal laud in the neigh- 
 bourhood of Willow Point. T. E. Peck, A. Kunster, William May, Charles York, 
 James Gordon, William Clarke, Charles Thos, Dupont, Geo. Nixon, S. D. Levi, 
 ■ Richard Nightingale. September 12th, 187S." 
 
 Peck continues. — That he posted these notices on the Court house, 
 had them posted on the ground, left a diagram with the Assistant 
 Commissioner, Fawcett, Government Agent at iSTanaimo ; no diagrams 
 were with the notices put up. Fawcett gave him a certificate — set out 
 in paragraph 4 of the petition, and dated 11th November, 1873. 
 
 In detailing the expenditure on the land, Mr. Peck says : — That 
 in November, 1872, prior to the licence, he sent William Lang and 
 Henry Franklin, with a canoe manned by Indians, posting the notices, 
 and paid them for 17 days. That after the licence he had men work- 
 ing on this land, three at one time, at $3 per day ; another time, two, 
 at the same — they were driven ofE by the Indians (Euclataws). That 
 he verbally complained to the Chief Commissioner of the trouble with 
 the Indians — nothing oflBcial. That he supplied the men with tools 
 and provisions; they were prospecting — cutting roads, building a 
 house, and running drifts. 'That they did not take their tools from 
 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 ex- 
 penditure; examines a memorandum of sums he paid out and col- 
 lected, 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 be- 
 yond looking after the tools, for which purpose $20 was paid to Levi, 
 
20 MARTIN'S MINING CASES. [vol. 
 
 1884. $30 to Eoselli, an Indian or half-breed; that he is owing something to 
 Mareh^iT. ^^ Indian, perhaps $40 for the same purpose. That covers all the 
 Gray, J. money during that interval, looking after tools. That the arrange- 
 ment for taking care of the tools was made by May with the Indians. 
 That he (Peck) prepared the diagram that was left with Faweett 
 about the time he got the certificate from Faweett, in ISTovember, 
 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 $lOO was on account of expenditure before 1873, the 
 remainder during the period up to 1883. 
 
 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 state- 
 ment 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 they_ went in. The 
 tools were there in 1882. He had paid towards the expenses, to Mr. 
 Peck, $155. 
 
 On his cross-examination, he says : — He had been trading off and 
 on along the coast up there, from 1875 to 1882. The first time he 
 went to the house was in 1882; fixed it up to live in; found some min- 
 ing tools and. cooking utensils — 2 axes, 1 hatchet, 1 shovel, 2 picks, 
 a frying pan, 1 tin plate, 1 tin cup, and some crockery broken; the 
 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 away dirt. States, 
 as one of the promoters, he paid $20 in 1872, $40 in 1873 ; cashed 
 
I.] PECK V. BEGINAM. 21 
 
 in 1878^ order for $20, and in November and December, 1883, $40 — 1884. 
 his proportion for expenses since 1883. He is one of the eleven. ^^^"'^ 17. 
 States that in December, 1883, he paid $25 towards expenses of this Graj-, J. 
 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 assess- 
 ments; kept dark. 
 
 Thomas L. Fawcett. — Was appointed Government Agent and Land 
 Eeeorder 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 p(^ted in his ofSee; 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 be- 
 lieve 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 prem- 
 ises, 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 Eaymond 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. 
 
 Eobert^ 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 
 
22 MARTIN'S MINING CASES. [vol. 
 
 1884. lands above Comox, and I was therefore induced to take up the rail- 
 *!L_ ' way contract; was aware of the application by Peck and others in 
 Gray, J. 1873^ and that for many years afterwards nothing was done. In conse- 
 quence of information relative thereto, from the Chief Commissioner 
 of Lands and Works and the Attorney-General, I signed the railway 
 contract in August, 1883. 
 
 W. S. Grore, the Surveyor-General, produces map from official re- 
 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 36th 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 Eailway 
 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, "An Act relating to the 
 Island Eailway, the Graving Dock, and the Eailway Lands of the 
 Province," again ceding these lands for railway construction, the 
 incorporator^ under the Clements Bill having failed to comply with 
 the conditions of their Act of Incorporation. 
 
 Such are the requirements of the local statutes under which the 
 petitioners claim their right against the Crown; such the allegations 
 of facts set forth in their petition; such the reply of the Crown to 
 their petition; such are the facts which have been established by the 
 sworn evidence of the petitioners themselves and the witnesses they 
 have produced. It is impossible to rise from the consideration of this 
 evidence without the conviction that the petitioners have failed on 
 almost every ground on which they alleged their claim to rest. Not 
 only so, but in their petition they have set forth facts which they knew 
 did not exist — facts of too serious a nature to be regarded as acci- 
 dental or inadvertent. Laying aside all minor, or what might be 
 termed technical objections to Mr. Fawcett's appointment as Assistant 
 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 was to act under the Mineral Ordinance of 1869, and assuming that 
 he gave his certificate in November, 1873, believing the parties were 
 entitled to it, it does not mend the matter. Mr. Drake contends, in 
 
I.] 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- 
 
 elusive that the conditions required by the Act were fulfilled, and that ^rm, J. 
 it is too late now to say that they were not. For the sake of the argu- 
 ment, supposing that position were correct — ^though clearly not ad- 
 mitting 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 con- 
 ditions 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) 
 " everything I had reason to believe they did, and if there was any- 
 thing 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 certi- 
 ficate shews that the requirements of sec. 33 of the Mineral Ordi- 
 nance were not complied with, because they are not set out in the 
 •certificate, and Mr. Fawcett says — therefore were not done. Mr. 
 Peek'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. Ettershanh (1875), L. E. 6 P. C. 354; and Bridges v. 
 Longman (1857), 34 Beav. 37, 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 Ettershanh's case, the party had per- 
 formed the preliminary conditions by which the right was to be 
 acquired; had entered into possession; had been recognized by the 
 
24 MARTIN'S MINING CASES. [vol. 
 
 18S4. Crown as possessor, as having acquired his right by performance of 
 ^12— the preliminary conditions, but had omitted to do something after- 
 Gbay, J. wards, 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 Eolls, 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 Govern- 
 ment, in the disposal of the public domain, cannot waive the per- 
 formance 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. 
 33) of that presumption, but that is simply prima facie " donee pro- 
 betur in contrarium." When the contrary has been proved, the pre- 
 sumption 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. Under sec. 13, the licence 
 had actually expired; it was not therefore incumbent on the Govern- 
 ment 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 continu- 
 ously and bona fide worked. The expression is " may cancel the pros- 
 pecting licence," — ^not must or shaU; 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- 
 
I.] PECK V. REGINAM. 25- 
 
 sion and ruin me^ therefore you are under a great obligation to me, ^^^'\,, 
 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, G^^y, J. 
 not to punish, I have therefore a statutory claim to 1,000 acre? of land 
 — not because I did right, but because I did wrong. Such reasoning 
 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 
 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- 
 able relief prayed for by the petitioners, if it were possible to find any 
 equity in this case in their favour, a Court cannot grant it contrary to 
 the clear provisions and intentions of the statute under which it is 
 sought. (See judgment in Ettershanh's case, 371, referring to Keat- 
 ing V. Sparrow (1810), 1 Ball & Seattle, Irish Ch. Eep. 367.) 
 
 But leaving see. 33, and turning to sees. 11, 13, 33 and 34, 
 which also govern the present application, we find the petitioners have 
 not selected or defined the land for which they ask the Crown grant. 
 This, in my opinion, was essentially necessary. The eleventh section. 
 — ^which regulates the prospecting licence under which they were 
 acting — says, that out of the 3,500 acres over which they may pros- 
 pect and search for coal, " the licensees may at or before the expira- 
 tion of the licence, or any prolongation thereof, select for purchase 
 the portion of mineral land to be specified in the Crown grant.'" 
 The 13th section — ^that the interest of the licensee under the 
 Ordinance shall be deemed to have absolutely ceased and determined 
 on the expiration or other sooner determination of the licence, or any 
 prolongation thereof, unless he shall have prior to such expiration or 
 determination made application for a Crown grant, as herein provided^ 
 In the letter of the 30th of April, 1874, addressed by the petitioners 
 to the Chief Commissioner of Lands and Works, applying for the 
 Crown grant under these provisions, no selection whatever is made,, 
 nor. even is the requisition confined or limited to the lands specified 
 in the licence, nor in the petition, or in the evidence is there one word 
 to indicate that the petitioners themselves had the slightest idea of 
 what lands they were asking for, or of their having selected any por- 
 tion of the 3,500 acres described in the prospecting licence. The case- 
 of Thomas v. The Queen (1874), L. E. 10 Q. B. 31, cited by Mr. 
 Drake, does not remove the objection. In that case, which was as to 
 the pecuniary reward to be given the inventor of certain military 'arms,, 
 on conditions laid down and complied with, the decision was simply 
 that a petition of right would lie against the Crown for a breach of 
 contract resulting in unliquidated damages. There, all that the peti- 
 tioner was to do had been done.. He had complied with aU the condi- 
 tions of the contract by him to be performed. The contract did not 
 define in amount what pecuniary reward he was to receive from the. 
 
26 MARTIN'S MINING OASES. ["^ol. 
 
 1884, Crown, but he was to receive something, and that amount was to be 
 Maroh^lT. settled by the Crown. It was therefore not open to the Crown to say 
 Geat, J. the amount was undetermined. In this case it is directly the con- 
 trary. 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 Novem- 
 ber, 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. E. 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 203 : — " 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 specula- 
 tive and fiuctuating 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 1883. Even the Government was not seriously 
 aiotified by the petitioners of this hostile violation of the rights and 
 
I.] PECK V. EEGINAM. 27 
 
 sovereignty of the Crown, and of their ownership, so. disastrous to 1884. 
 
 their operations and interests, as they would have us infer from the 
 
 allegations In the petition. Grat, J. 
 
 Thus, on every point in law, the contention of the Crown has been 
 sustained. It is in vain for Mr. Drake to contend that these peti- 
 tioners are not to be regarded as licensees, but as parties having the 
 option of purchase, based upon the terms of sec. 11 of the Mineral 
 Ordinance. This is a grave mistake. It has been distinctly shewn 
 ihat these parties had not complied with the conditions which would 
 entitle them under the Ordinance to have that option. Indeed, it may 
 be gravely questioned whether any one under the Mineral Ordinance 
 of 1869 was entitled to that option, unless coal was found upon the 
 land. Sec. 11 describes, in two sub-divisions, the option as of 
 " coal " or other mineral lands ; and sec. 24 gives the option as to 
 ■coal at the maximum quantity of 1,000 acres, and the price as for 
 " coal lands." It was the object of the Legislature to encourage coal 
 mining. Pre-emption lands were imder 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 evid- 
 ence 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 acknow- 
 ledging the very great assistance I have derived from the ability and 
 research displayed by the counsel for the Crovra, 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 30th 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, 
 
28 MARTIN'S MINING CASES. [vol. 
 
 1884. accompanied with a letter from Messrs. Drake & Jackson, in which 
 March^l7. j^^^^^ ^j^^^ applied for the Crown grant of 1,000 acres of land, and 
 Gray, J. 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 34th section of the " Mineral Ordinance, 
 1869," where it is enacted : " For coal lands the price shall be as 
 follows: For any quaMity 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 $300 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. Peek, 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 re- 
 mainder during the period up to 1883. When cross-examined on this 
 point, he says, "the remaining $1,000, or about that, was spent in No- 
 vember, 1883, 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 1873, or, indeed, 
 in .1873 ; but from the aecoimt 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 under- 
 stand how such a statement could be made. His own petition says, 
 "the petitioners caused it to be sent." It is not disavowed in the peti- 
 tion 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 
 39th of January last. Messrs. Drake & Jackson never put that state- 
 ment 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. 
 
I.] PECK V. REGINAM. 29 
 
 Again, they allege they never abandoned their claim. The evidence 1884. 
 shows distinctly that, between 1874 and 1883, not one day's labour M^^i^. 
 was expended on it ; and the estimate of value put upon it, during Geay, J. 
 that intermediate period, may be judged from the statement of Mr. 
 Levi, one of the petitioners, when called and sworn as a witness on 
 his own and their behalf. He says he was one of the promoters, and 
 in 1873 and 1873 had paid in $60, and is one of the eleven petitioners. 
 That he afterwards became bankrupt; got his discharge in 1876. 
 That in his list of assets his interest in the claim was put down, but 
 no valuation attached to it. That he was on the land in 1877 and 
 1878 ; went to where they had been drifting for coal and saw two drifts 
 filled with water. He went first to the house in jSTovember, 1883, 
 (that is a small cabin, in the evidence elsewhere stated to have been 
 put up by the petitioners, and in which the tools referred to were 
 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, 3 axes, 1 
 hatchet, 1 shovel, 3 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, 1883, 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 
 in it ; kept dark. 
 
 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, vrith manly straight- 
 forwardness, that he was interested in 1873; 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 Attor- 
 ney-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 
 afiirmative assertion they had made. The question of cancellation has 
 been disposed of. What had occurred in 1883? On the 31st April, 
 the Vancouver Land and Railway Company Bill, commonly called 
 the Clements Bill, had passed the Legislature; and in !N"ovember, 
 1883, 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 17. a,t which the coal mine they had discovered might be worked to advan- 
 Gbay, J. 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 tlie Indian reports, saw the cabin and trails described by Levi, but 
 saw neither a ranch or coal mine about there, or any indication there- 
 of, 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 ISTovember, 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 
 tliey had lona 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 obtaiii 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 the petitioners. 
 
 Petition dismissed with costs. 
 
 Note. — ^As to abandonment, see Williams Creek, cfc, Co. v. Synon, ante, 
 p. 1. 
 
I.] WOODBURY V. HUDNUT. 31 
 
 WOODBUKT V. HCDNUT. T,r-^®?*V 
 
 March 25. 
 
 Woodbury v. Meters. FullCoubt. 
 
 Blasdel v. Hunlet. 
 
 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- 
 ments. 
 
 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. 
 Building a residence on or at a place manifestly convenient for the purpose of 
 
 working a claim is doing miner-like work on such claim within the meaning 
 
 of the Mineral Act, 1882, sees-. 48 and 50, though in old and highly organized 
 
 countries it would not be. 
 The decision of the Gold Commissioner in granting leave of absence will not 
 
 be interfered with unless for fraud. 
 Where a free miner finds another in possession of his claim so that to insist 
 
 lipon 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 right to a third 
 
 claim which he himself contends he has destroyed. 
 Absence of 72 hours is not in all cases conclusive evidence of an intention to 
 
 abandon. 
 If a claim-holder does not properly represent his claim and so render it liable 
 
 to re-location, he may, nevertheless, if he return to it and find it intact resume 
 
 possession, recommence working, and be in " as of his old estate." 
 Where one man pretends to represent two claim holders at the same time, it is 
 
 strong evidence that his representation in both cases is colourable and eo, 
 
 worthless. 
 
 Appeals to the full Court from the Gold Commissioner of Koote- Statement., 
 nay. The statements made before that official were exceedingly- 
 diffuse, -but the substance is sufiSciently stated in the judgment. 
 
 In Woodlury 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." 
 
S2 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1884. 
 March 25. 
 
 In Woodbury v. Meyers, damages were claimed for trespass to the 
 same land ; Meyers had been employed by Hudnut to stake off and work 
 Pull Court, the claim for him. The decision followed immediately on that of 
 ^Yoodbury v. Hudnut (the evidence and arguments being, by agree- 
 ment, the same in both), and was in these words: " The case is de- 
 cided 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 dis- 
 pute." 
 
 Hammil v. Sproule was a similar action, with judgment in the 
 same words. 
 
 Appeal.' 
 
 Argument. 
 
 -Judgment. 
 
 The hearings before the Gold Commissioner appeared to have ex- 
 tended oyer six or seven weeks. '^ 
 
 On 25th March, 1884, the appeals in the several cases now came on 
 to be heard before Begbie, C.J., Cuease and Walkem, JJ. 
 
 The Attorney-General (A. B. 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 opin- 
 ion, 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 cases of Woodbury v. Hudnut and Woodbury 
 V. Meyers. It appears reasonably clear that on the 5th and 6th of 
 ■ October, 1883, 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] WOODBURY V. HUDNUT. 33 
 
 an abandoned claim by reason only of his absence. It was as secure to ]S84. 
 him as if- he continued to reside on it. It was insinuated that he was ' "'°' ''' 
 not really unwell. If fraudulent simulation of sickness were alleged Full Court. 
 and proved, no doubt there would be some way of preventing a miner brgbie, C.J. 
 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 con- 
 cerning 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 S5th Mej, 1883, part 
 of the ground of the Comfort claim is loeaited as the Gem claim, in 
 the name and on behalf of the defendant Hudnut, by MeySrs his 
 agent. This is the whole case. It is, in our opinion, a merely un- 
 authorized 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 de- 
 fendant 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 Hudnvit. 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 ^.gainst the. plaintiff and 
 m 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 Mej^ers 
 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 per- 
 sons 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^ 
 Maroh^25. j^y ^gj^g gQ^ committed a trespass on the 25th May, and continued to 
 Fdll Codet. trespass subsequently, by refusing to leave the ground, as we are of 
 Begbie^CJ. 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 plaintiif, 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.j we must reverse the deeisiftn of the Gold Commis- 
 sioner, 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 equi- 
 valent 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 minerlike work at all; and, moreover, that the house in 
 question was not on the Kootenay Chief ground at all, though not f^r 
 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 organ- 
 ized 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 con- 
 tinuous 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 advan- 
 tages 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 hold- 
 ing 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 in- 
 sinuation that it was inadequate, or merely make-believe. On the 
 evening of the 28th October, Blasdel's work ceases, and the defendant 
 
i:] WOODBURY V. HUDNUT. 35 
 
 claims the benefit of the 73 hours of non-worldng, which elapsed with ^/*^*- _ 
 the close of the 31st Octob«r. On the other hand it is alleged, and 1 — 
 not denied, that the Gold Commissioner had announced that as to -Fw-lCocht; 
 claims taken up in October, he should be satisfied with ten days' work begbie, C.J. 
 done on them before the general laying over on the 1st November ; and 
 there was no Gold Commissioner reasonably near on the 28th October 
 to whom special application might be made to lay over this claim. 
 Obviously, no strictly mining work could be usefully done {e.g., sink- 
 ing a shaft) in those three days. Any such work would probably be 
 obliterated before next Spring. The weather was setting in cold.. 
 Early in November the Kootenay Eiver — 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 re- 
 treated. 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 Novem- 
 ber, 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 Eeeder, 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 Eeeder; which 
 could only be conveyed by written documents. In fact, his location 
 of the claim was just as much in derogation of Eeeder's supposed 
 rights, as against Blasdel's. Hunley cannot set up a right (Eeeder'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. 
 
36 MARTIN'S MINING CASES. [vol. 
 
 1884. _ There remains the ease of Tlammil v. Sproule. Sproule has been 
 
 '^^_ "' endeavouring to do too much, I think, and has very nearly succeeded 
 Full Court, in doing nothing. He alleged (not on oath) to Hammil that he was 
 Bkgbib, C.J. ill October, 1883, representtag Gay Eeeder 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 wholfi 
 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, 1883. 
 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 35th. On 35th 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 any- 
 thing 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 legallj^ re-possessed it, 
 and that his then absence was without excuse. And Hammil accord- 
 ingly took up the ground for his own benefit, altering the name to the 
 Silver Queen. Now, it is as well to point out that the 73 hours' 
 absence mentioned in the gold laws, though it may be and generally is 
 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 " with- 
 out 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 
 
I.] WOODBURY V. HUDNUT. 37 
 
 which that occupation might be referred. On the contrary, for the 1884. 
 
 reasons already stated, this tortious occupation excuses all irregularity, . 
 
 if any, in Sproule's continuous working on and after the end of the rcLLConBT. 
 close season. The Gold Commissioner's decision in favoiir of Sproule Begbie, O.J. 
 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 unaiithorized 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 inter- 
 ference, it is scarcely necessary to state, is entirely illegal. The gentle- 
 man 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 Brad- 
 laugh; but Lord Coleridge's judgment in Bradlaugh v. Newdegate 
 (1883), L. E. 11 Q. B. D. p. 15, clearly points out the Hlegality of 
 such officious interference, and Mr. Newdegate was compelled to re- 
 coup 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 ease 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. Fotheringliam, post, p. 71; Atkins v. Coy, 
 post, p. 88; Victor v. Butler, post, p. 438. 
 
 As to abandonment, see WUliams Creek, rfc, Co. v. Synon, ante, p. 1. 
 
 As to invalidity of re-location on existing valid location, see Mauley v. 
 Collom, post, p. 487; and see in note thereto list of cases on defects in location. 
 
 As to breach of the peace, see Waterlwuse v. LiftcMld, post, 153. 
 
38 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1889. Wilson v. Whitten. 
 
 January 18, 
 
 Full Court ^"'^'■"' Claim — -Representation — Assessment Work — Close Season — Lay Over 
 — Gold Commissioner — Principal and Agent — Transfer — Bill of Sale — 
 Mineral Act, ISSJf, and Amendments. 
 
 Under the Mineral Act, 1884, and Amendments of 1886-7, 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 expendi- 
 ture of $100. 
 
 Powers of Gold Commissioner to declare a close season and lay over mineral 
 claims considered. 
 
 Decision of Walkem, J., affirmed. 
 
 Per Walkbm, J. : — The interest of a principal in a mineral claim may be trans- 
 ferred by his agent by bill of sale though executed by the agent in his own 
 name. i 
 
 Statement. 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 dis- 
 missed, at Kamloops, 23rd October, 1888. 
 
 Argument. Spinks, for plaintilf. 
 
 Eherts, for defendant. 
 
 The facts, not disputed, fully appear in the judgment handed 
 d^wn later, on 5th December, 1888, by 
 
 Judgment 
 
 below, 
 Walkem, J. 
 
 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 tres- 
 pass upon it. 
 
 The defence was that the ground in question having been aban- 
 doned by non-representation, the defendant located and recorded it, 
 on the 36th of June, 1888, as the Domingo claim; and had since occu- 
 pied- 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. WHITTBN. 39 
 
 be imieh misunderstood both by mineral claim holders and the gold 1889. 
 commissioners. '^'"^'^ ^^■ 
 
 According to the evidence, Eobert Scott iirst located the Mammoth Fdll Couet. 
 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 30th of September, 1887, Mr. Wright appointed Mr. Josiah 
 Pletcher his agent, in respect of his purchase, by a letter in the fol- 
 lowing terms: 
 
 Victoria, Sept. 20, 1887. 
 Josiah Fletcher, Esq., 
 
 Tou 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 
 shall 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. Weight. 
 
 On the 24th of October, 1887, Mr. Scott gave Mr. Fletcher a simi- 
 lar 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, assum- 
 ing that the letters gave him power to sell, he sold it to the plaiatiff, 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 : Waikem, J. 
 
 AMctoria, 29th Dec, 188T. 
 For and in consideration of the sum of four hundred dollars, the receipt of 
 •which is hereby acknowledged, we have this day sold to Wm. Wilson all our 
 right, title and interest in the Mammoth claim situate between Stump Lake and 
 Rockford near the wagon road. ... 
 
 (Sgd.) Jos. Fletcher, 
 
 for R. Scott. 
 Witness, 
 
 ■ (Sgd.) J. B. 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 E. Scott," might, possibly pass 
 Scott^s interest in the claim to the plaintiff, the second signature, 
 ■" 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 rea- 
 son of sec. 33 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 Eecorder." 
 
40 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1889. 
 January 18 
 
 In the body of the doeumentj no mention is made of the owners 
 of the claim ; and^ as signed, it obviously means, in its literal sense, 
 Fdil Couet. that " We, Josiah Fletcher, for K. 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 vir- 
 tue 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 lia- 
 bility, but showed that another person, viz., the principal, on whose 
 behalf the agreement was made, was also liable upon' it, by reason 
 of th,e 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 difEerenee 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, 370). This doctrine has been 
 the law in_ England for many years, (see the notes to Thomson v. 
 Davenport, (1839), 3 Smith's L. C. 368, 9 B. & C. 78.) In view of 
 these authorities, and the evidence, the objection taken to the plain- 
 tiff's documentary title cannot prevail. 
 
 The main objection of the defendant's counsel was that the plain- 
 tiff 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 Amend- 
 ment Act, 1886," as amended in 1887, by 50 Vic. eh. 33. 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 
 36th of June, 1888, and recorded it for himself as the Domingo claim. 
 
 Judgment 
 
 below, 
 
 Walkem, J. 
 
I-.] WILSON V. WHITTEN. 41. 
 
 He continued to occupy it thereafter, and on the 23rd of August ^^^\o 
 procured and recorded a certificate of improvements upon it^ in accord- ™^^^ 
 ance with sec. 8, above mentioned. FullCodrt. 
 
 On behalf of the plaintiff, it was shown that, by a notice inserted 
 in the B. C. Gazette, in January, 1888, page 43, 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 ap- 
 pointed 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 fpr the period of one year from the recording of the Judgment 
 same, provided — below, 
 
 (a) That within the first six months from such recording he shall have Walkkm, J- 
 'expended on the claim itself, money or labor to the amount or value of $100, and 
 
 (6) Shall have satisfied the Gold Commissioner or Mining Recorder of such 
 expenditure, and, 
 
 (c) 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, it 
 
 (o) 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. 
 
 (5) 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, h, 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 lodea 
 or veins, on a distinct legal basis of their own. The Act, in fact, with- 
 draws them from the operation of the rules embodied in the " Mineral 
 Act, 1884," with respect to alluvial mines and to their continuous re- 
 presentation, 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 see. 73 of the- 
 
42 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Judgment 
 below, 
 Walkem, J 
 
 .Tai?uT' 18 " ^^^'^^''^1 -^^^J 1884," enabled a miner to hold his claim for a year, 
 nuary . ppQ^^jg^ j^^ Spent $200 upon it, and recorded that expenditure within 
 Fdij, CouKT. 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 see. 8 will thus be 
 obvious, it will be equally obvious that the mischief, so remedied, 
 would be revived in a worse form, if the plaintiflE'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 
 after the lapse " the first six months " could not possibly be certified 
 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 in- 
 stance 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 second- 
 ary meaning is what has been gravely contended* for. 
 
 Grammatically speaking the section is not as well constructed, es- 
 pecially 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 improve- 
 ments, 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 
 ;«tatute admits of no doubt or secondary meaning, it is simply to be 
 ■obeyed " Max. on Stats, p. 49. 
 
I.] WILSON V. WHITTEN. 48 
 
 With respect to the Gold Commissioner's authority to establish a 1880. 
 
 „ , . , n ■ ■ J 1 January 18. 
 
 " 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, ^^"^^ Coukt. 
 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 dhey, and to see obeyed. He has Judicial as well as minis- 
 terial functions, and in granting a leave of absence he acts minister- 
 ially. 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 minis- 
 terially, 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 con- 
 -ditions 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 judgment 
 -of November, 1887, to the 15th of June, 1888. As the earliest notice ^^^^' j 
 -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 
 Jiotice,, is not apparent. No claim was made on plaintiff's behalf under 
 Mr. Dewdney's notice — probably because the utter fallacy of the con- 
 "tention advanced for him would be made manifest. If the plaintiff 
 hacTthe right to claim, as he has done, any benefit from Mr. Vernon's 
 Jiotice, 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, impliedlj', had his permission to disregard the declarations of the 
 .legislature, as contained in sec. 8, and to practically repeal the time 
 Jimit 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 
 oiot as he pleased. The absence was in no case compulsory. As he 
 ■chose to take advantage of the general leave given, he alone is respon- 
 ■sible for the result. 
 
u 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1889. 
 January 18. 
 
 Full Coubt. 
 
 Judgment 
 
 below, 
 
 Walkem, J. 
 
 The authority to establish a close season is conferred by sec. 5 of 
 the " Mineral Act, 1884/' which is as follows : " The Gold Commis- 
 sioner may lay over any or all claims for such period and reasons, as 
 he may think proper." 
 
 By the interpretation clause of the same Act, " the word ' claim ' 
 may include a mineral claim;" and further by sec. 100 of the same 
 Act " No free miner shall be bound to represent his claim during the 
 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 laying over claims 
 
 in a Gold Commissioner, the legislature of 1884 had, in lieu of sees- 
 
 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 months from the date of its 
 record, and for a similar period from the date of its re-record, in every succeed- 
 ing year ; and no free miner holding a mineral claim shall be bound to represent 
 it during such close season of six months." 
 
 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 pas- 
 sages 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 1884," which I have quoted, must yield to the later- 
 mineral enactments of 1886 and 1887, or, in other words, to the pro- 
 visions of sec. 8. The " close season " established by Mr. Vernon -had 
 not, consequently, the legal effect claimed for it in the present case 
 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 aban- 
 doned, on and after the 10th of June., 1888, viz., on and after the- 
 expiration of six months from the date of its xe-record, on the 10th 
 of December, 1887. His title to the ground having thus become for- 
 feited 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 ft, he- 
 allowed the defendant to occupy it and proceed to obtain and record 
 a certificate of improvements upon it, which he did, on the 33rd of 
 August last. 
 
 A further delay of a month occurred before the present proceed- 
 ings were instituted. 
 
I.] WILSON V. WHITTBiV. 45 
 
 This undue delay has not, however, influenced my decision in any 1889. 
 way, as that is based upon the legal reasons I have already given. *"^^ 
 
 Full Court. 
 
 The plaintifE appealed, and the appeal was argued on 16th Janu- Appeal, 
 ary, 1889, before Begbie, C.J., Crease and McCebight, JJ. 
 
 Wilson, for appellant. Argument. 
 
 Eherts, for respondent. 
 
 Gur. 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 15ih June, 1888; but it was doubtful whether 
 this was properly done. On the 10th December, 1888, Scott re- 
 recorded 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 plaintifE nor Scott ever did any 
 work on the claim since the 5th March, 1887. 
 
 ' On the 26th June th6 defendant recorded the Mammoth grou.nd 
 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 lay- 
 ing 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 rd|)resentation, coupled gener- 
 ally 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 
 wTioUy 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 defined by statute, or ascertained by the custom 
 of many years. By custom the Gold Commissioner lays over claims in 
 
 Judgment. 
 
46 MARTIN'S MINING CASES. [vol.- 
 
 1889. eases 'of sickness, or scarcity of provisions, or where there is either 
 anuaryis. siifeli ;.aj Scarcity or such an over-abundance of water, want of machin- 
 FuLL CouET. eijltSfc, as that the claim cannot with any reason or utility be worked 
 Bbgbie^ C.J. ^t ft^ time — ^the Gold Commissioner judging of the necessity, and 
 ofj its' probable duration. The Gold Commissioner also by custom pos- 
 sesses 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 
 fewe^ workers than the whole number of co-owners. In all such 
 casesihe exercises a discretion as to time, numbers, and other condi- 
 tions ^hich will not be lightly interfered with. To these cases the 
 statu!tes 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 efEect 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 cenain extra work 
 be performed upon it: of the sufficiency of which the Gold Commis- 
 sioner 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 contra- 
 dictions, being thus both set aside in 1886, this new provision is made 
 to prevent the last mentioned practice, by enacting (see. 8), that as to ■ 
 mineral claims the holder must within 3 months from his record 
 (increased in 1887 to 6 montfis), perform $100 worth of work to the 
 satisfaction of the Gold Commissioner, and obtain, and record a cer- 
 tificate 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 eireuinstances 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-- 
 
I.] WILSON V. WHITTEN. 47 
 
 recorded by the original holder on the 10th December, 1887. The 18&9. 
 6 months from the re-record would therefore expire on the 10th June, ""^f;^ 
 1888, or, at the latest, on the i7th June, 1888, if we take the re-record FdllCoukt. 
 to enure as from the 17th December, though actually requested and bkgbie, C.J. 
 paid for on the 10th December — and it is admitted that no work what- 
 ever was done on the claim in that interval. But the plaintiff con- 
 tends 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 idle- 
 ness, without incurring any forfeiture thereby : relying especially upon 
 see. 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 efEeet 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 eases 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- 
 
48 MARTIN'S MINING OASES. [vol. 
 
 t«S9. doned under sec. 8 (1886). But these two eases in. which it is mani- 
 
 January 18. f^^^ ^Yig,t the laying Over would entirely defeat the benevolent inten- 
 
 Fl'll Court, tion of the statute, do not arise here. Should they arise at any timg' 
 
 .BkgbieTc.J. *^he Court will endeavour to deal with them. In the present case the 
 
 question is whether there is such a manifest iucongruity as to prevent 
 
 the literal application of the new sec. 73 (sec. 8 of 1886). ^ 
 
 The appellant relied on .the words used by this Court in the 
 Kootenay mining cases (1884), 1 B. C. Pt. 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 plaintifE returned to work 
 on his claim — ^but he found that the defendant (respondent) Hunley 
 had on the 35th May, (during the close season) recorded practically 
 t'he whole ground for himself, under a new name. The Court said 
 (p. 43), " 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 35th May, when 
 Hunley jvimped his claim, fully complied with all the requirements 
 of the law entitling him to continue in possession. But in the pre- 
 :sent case, the plaintiff had on the 35th June, 1888, when the defend- 
 ant staked out the ground, entirely failed to comply with the pro- 
 visions in sec. 8 of 1886. There was time for him, had he been so 
 nlinded, 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 $13 per day are 
 easily expended upon a partially opened mineral lode. It is not per- 
 haps quite regular to look at any evidence or facts not stated by i,he 
 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 com- 
 menced and performed during the close spason of that year. And as 
 intimated in our judgment in Blasdel's case, there is nothing to pre- 
 vent 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 
 
it.] WILSON V. WHITTEN. 48 
 
 •and permission of idleness given by sec. iOO of the Statute of 1884, 1889. 
 which expressly declares that " During the close season no free miner *"]^y 
 ■shall be bound to work his claim :" a provision which is expressly ex- I'nLtCouKT. 
 tended in mineral claims by sec. 104. , In citing detached words of a oekase, J 
 statute, as in citing detached words of the judgment juSt referred to, 
 thfere 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 paTtnership duty is 
 ■concerned, no partner shall be compellable to work. But the imme- 
 diately following words considerably limit this permitted inactivity, 
 (vi^.), "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 paitners 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 sea- 
 son, unless two-thirds of the partnership decide otherwise — i.e., that 
 in some cases a miner must work (or represent) his claim, notwith- 
 standing the close season. But in truth it does not either one way or 
 the other concern claims held in severalty. 
 
 There is tlierefore no judicial decision or dictuni nor any enact- 
 ment 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 ^fter every re^record of the 
 interest in the claim itself. Why is that provision to be denied oper- 
 ation? There seems no reason why the plaintifE 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 re- 
 spondent. 
 
 Crease, J. : — [To the same effect.] 
 
 McOeeight, J. : — ^The question seems to be " has the Gold Com- 
 missioner 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?" 
 
50 MARTIN'S MINING CASES-. [vol, 
 
 1889. In order to determine this, we should according to the well known 
 
 anuary . ^.^-^^ ijjq^jj,g j^^^^ ^-^e st3,te of the law at the time the section was passed, 
 Full Ooubt. -with a view to ascertain its meaning. 
 
 McObeight.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. 73 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. « thereof, by its 
 stringent and even minute provisions, seems to be quite inconsistent 
 with its existence. We certainly have no right to read into sec. 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 ease 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 Commis- 
 sioner 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. Dohson (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. E. 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 con- 
 clusion 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 Commis- 
 sioner mero motu, practically could have done the same thing. 
 
I.] WILSON V. WHITTEN. 51 
 
 Again sec. 11 of the Act of 1886 enabling holders of claims on the i889. 
 same lode to unite so as to prospect one of such claims would not have ^^■""^'Y i^- 
 been necessary if the Gold Commissioner had the powers contended FullCouet. 
 for by the appellant. MoOmight,.J. 
 
 Mr. Wilson urged that sec. 100 of the Act of 188-1 — " 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 partner- 
 ships generally, and, I think, especially legislates on the relations of 
 partners inter se — and we find this provision in sec. 100 may accord- 
 ingly 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 con- 
 clusion which I have come to, and I think the appeal must be dis- 
 missed with costs. 
 
 Appeal dismissed with costs. 
 Note. — See preceding case, and Victor v. Butler, post, p. 438. 
 
52 MARTIN'S MINING CASES. [VQL. 
 
 1889. AtTOENET-GeNEBAL OF BeITISH COLUMBIA V. ATTOENET-GeNEEAI. 
 
 April Id, 
 — OF Canada. 
 
 Pbitv 
 OouNoiL.* (14 a. C. 295 ; 14 S. C. R. 345.) 
 
 Precious Metals, Right of Provinces to^—" Public Lands ■" — " Mines and Min- 
 erals " — British North America Act, 1867, sec. 109. 
 
 A conveyance by the Province of British Columbia to the Dominion pf Canada 
 of "public lands," being in substance an assignment of its right to appro- 
 priat-e 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. 
 
 Statement. APPEAL by the Attorney-General of British Columbia from a judg- 
 ment of the Supreme Court of Canada (Bee. 13, 1887), eonfirmiag 
 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 Can- 
 ada 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, arid 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 ease of 
 g;rants of land from the Crown to a subject was not applicable to the 
 present case, which was not the case 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 ques- 
 tion, 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- 
 ment. 
 
 GwYNNE, J. (Tascheeeau, J., concurring), agreed with the Chief 
 Justice, and relied upon the fact that nearly the whole of the belt 
 
 * Present — The Lord Chancellor, Lord Watson, Lord PitzGerald, Lord 
 HoBiiousE, and Lord Macnaghten. 
 
I.] ATTY.-GBN. OF BRITISH COLUMBIA v. ATTY.-GEX. OP CANADA. 
 
 53 
 
 of territory in question consists of mountain lands which are of no 
 value for agricultural or other surface purposes, and that the value 
 for surface purposes of such small portion thereof as consists of land 
 in the valleys of the mountain streams is reduced to a minimum by 
 reason of the large powers conferred upon the mining ownfer as against 
 the surface owner by the Mining Acts of British Columbia, which 
 Acts enable the former to enter upon the lands of the latter, and to 
 dispossess him upon payment of compensation, and to appropriate the 
 water from the mountain streams, and consequently that unless the 
 precious metals pass to the Dominion the cession is illusory and of no 
 value. 
 
 FouENiER, 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 Barl of North- 
 umberland'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 ex- 
 clusive of mines and minerals. He was also of opinion that the legis- 
 lative control over the lands in question would pass to the Dominion. 
 
 Henky^ J., based his judgment upon a previous decision of his 
 own, in a case of The Queen v. Farwell, 14 Sup. Ct. (Canada) 393, 
 in 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. 32nd and 33rd, 1888. 
 
 tSvr Horace Davey, Q.C., Jeune, Q.C., and Clay, for the appellant, 
 contended that this decision was erroneous. As to the prerogative 
 right 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 Aj^p. 
 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 
 should pass is expressed. By the British North America Act, 1867, 
 sec. 109 and sec. 10 of the order in council (May 16th, 1871), by 
 which the Province of British Columbia, was admitted into union 
 
 1889. 
 
 April 13. 
 
 Privy 
 Council. 
 
 Argument. 
 
54 MARTIN'S MINING CASES. [vol. 
 
 1889. with the Dominion of Canada, that prerogative right remained vested 
 ^]1^ ' in the Crown on behalf of the Province. Eeference was made to 
 CoTOML ^^i*is^ Columbian Acts, 43 Vic. JSTo. 11, and 47 Vic. eh. 14. No 
 transfer of prerogative right was effected thereby, nor by the grant 
 in question made by the Province to the Dominion Oovernraent. 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 JSTorth America Act, 1867, sec. 109 : see Attor- 
 ney-General of Ontario v. Mercer (1883), 8 App. Cas. 767. 
 
 Rigiy, Q.C., Sedgewich, Q.C. (Canada) and Gore, for the respond- 
 ent, contended that the principle established by the cases in Plowden's 
 Eeports, and 3 App. Cas., did not apply. This is now the case of a 
 grant of land from the Crown to a subject. Ifo 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 manage- 
 ment thereof in the Province would not belong to the Province under 
 see. 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 
 
1.1 ATTY.-GEN. OP BRITISH COLUMBIA v. ATTY.-GEN. OF CANADA. 55 
 
 passed to the Dominion Government, and is no longer vested in the ^-^^^3 
 Province. — 
 
 Sir Horace Davey, Q.C., replied. Council. 
 
 April 13th, 1889. 
 
 The judgment of their lordships was delivered by 
 
 Lord Watson: — The question involved in this appeal is one of Judgment, 
 considerable iaterest 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 Amer- 
 ica 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 pro- 
 visions 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 commence- 
 ment 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 Dom- 
 inion Government, in trust, to be appropriated in such manner as the Dom- 
 inion may deem advisable in furtherance of the construction of the said rail- 
 way, 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 Terri- 
 tories 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 rail- 
 way, 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 difiBculties, there 
 was considerable delay in constructing th6 line of railway through 
 British Columbia. Various differences arose between the two govern- 
 ments, and these were ultimately settled, in the year 1883, by a pro- 
 visional agreement, which was subsequently ratified by the respective 
 legislatures of Canada and the Province. Part of the agreement had 
 
56 MARTIN'S MINING CASES. ["^ol. 
 
 1889. reference t6 the 11th article of TJniojij which it modified to the fol- 
 
 ?!L ■ lowing extent. The Government of British Columbia agreed to con- 
 
 P?ivY vey to the Government of the Dominion, as therein provided, the 
 
 — " public lands along the railway, wherever it might be finally located, to- 
 
 LoBD Watson g, width of twenty miles on either side of the line, and, in addition, to 
 
 convey to the Dominion Governmient three and a half millions of 
 
 acres of land in the Peace Eiver District, in one rectangular block, 
 
 east of the Eocky Mountains, and joining the ISTorth-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 Yict. ch. 14, 
 
 sec. 3. 
 
 In 1884, a controversy arose between the Dominion and the Pro- 
 vincial 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 a,scertaining 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 repre- 
 sented by the Govei^nment of Canada, or as represented by the Govern- 
 ment of British Columbia ? The case was first presented to Fournier, 
 J'., in the Exchequer Court of Canada, who, without hearing parties an 
 the merits, gave a formal judgment in favour of the Dominion. On 
 appeal, his judgment was, after a full hearings afiirmed by a majority 
 of the Supreme Court of Canada, consisting of Sir William Eitchie, 
 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 mean- 
 ing to-be attributed to the words " public lands " in the 11th Article of 
 Union. The Act 47 Vict. ch. 14, sec. 3, which was passed in fulfilment 
 of the obligation imposed upon the Prpvince by that article and the 
 agreement of 1883, defines the area of the lands, but it throws no addi- 
 tional light upon the nature and extent of the interest which was in- 
 tended to pass to the Dominion. The obligation is to " convey " the 
 
I.] ATTY.-GBN. OP BRITISH COLUMBIA v. ATTY.-GEN. OP CANADA. 57 
 
 . lands, and the Act purports to " grant " them, neither expression being ^^^fj^g 
 strictly appropriate, though sufficiently intelligible for all practical — 
 purposes. The title to the public lands of British Columbia has all couhcil. 
 along been, and still is, vested: in the Grown ; but the right to admin- — 
 ister and to dispose of these lands to settlers, together with all royal 
 and territorial revenues arising therefrom, had been transferred to the 
 Province, before its admission into the federal union. Leaving the 
 pxecious 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 occup y 
 the position of a freeholder within the Province. The object of ".he. 
 Dominion Gtovurnment was to recoup the cost of constructing the rail- 
 way 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 ^-O' 
 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 ease of the baser metals, no prerogative i& 
 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 Queen by prerogative, with liberty to dig and carry away the 
 ores thereof, and with other such incidents thereto as are necessary toi 
 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 im 
 the possession of the Crown. Although the Provincial Government 
 has now the disposal of all revenues derived from prerogative rights- 
 copnected 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 
 
-58 MARTIN'S MINING CASES. [vol. 
 
 1889. the Province of "public lands," which is, in substance, an assignment 
 pn^ . ^j ^^^ right to appropriate the territorial revenues arising from such 
 Pbivy lands, does not imply any transfer of its interest in revenues arising 
 — ' from the prerogative rights of the Crown. 
 I.ORD Watson ^j^^ 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 be- 
 tween the two Governments, which obviously contemplated the cession 
 by the Province of all its interests in the land forming the railway 
 helt 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 inde- 
 pendent 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 regia; 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 sub- 
 sidy, 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 
 itherein enumerated. With that alteration, it enacts that " all la,nds, 
 anines, minerals, and royalties," which belonged to British Columbia 
 
Lord Watson 
 
 .1.] ATTY.-GEN. OP BRITISH COLUMBIA v. ATTY.-GBN. OF CANADA. 59 
 
 at the time of the union, shall for the future belong to the. Province j^pf^l\^ 
 
 ■and not to the Dominion. In order to construe the exception from that 
 
 enactment, which is created by the 11th Article of Union, it is neces- q^^^c^l. 
 sary to ascertain what is comprehended in each of the words of the 
 enumeration, and particularly in the word " royalties." The scope and 
 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 " royal- 
 ties " 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 
 vvoilld 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 
 ifs 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. 767, 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 
 carries with it the baser metals, that is to say, " mines," and " min- 
 erals," 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 
 Tights to which the Dominion Government became entitled under the 
 11th Article did not, to any extent, derogate from the Provincial right 
 i;o " 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 
 «ome or all of the royalties dealt with by sec. 109 were to pass to the 
 
60 MARTINS MINING CASES. [vol. 
 
 1889. Dominion along with the lands constituting the railwa]' belt. But 
 
 ?!!_ ■ there is not a single expression in the context which is applicable to 
 
 Cpy^^^ goid or gold-mining rights On the other hand, the whole terms of 
 
 ■ the Articles of Union, as well as of the subsequent agreement of 1883, 
 
 Lorh 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 
 e.xeluded 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 con- 
 taining 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 settle- 
 ment.'' The words " mining and agricultural industries," taken 
 per se, might be of dubious import, because they would not disclose 
 whether gold diggibg 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 
 rgport, 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 ofE 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 recom- 
 mendation. 
 
 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 corisidfered profitable to re-print in detail the over-ruled 
 decision ofi the SupEeae- Court! of Canada; a synopsis . of the views of the 
 Judge of that Court is given. 
 
 This ease considered in Harwell v. The Queen (1894). 2 S. C. 553. See 
 BainVridffe, v. EsquimoM' and Nanaimo Ry. Co., post, p. 98 ; Re SU Eugene 
 3Iin9f,g Co., post, p. 406. See also Col. River Lum. Co. v. Yuill, post, p. ^4. 
 
 As to right to minerals under public harbour, sec Attorney-Gen. v. Bsguimalt' 
 and Vimaimo By, Co. (1900)i; 7 B: C. 221t at 240. 
 
BURK V. TUNSTALL. 
 
 61 
 
 BuRK V. TuiSrSTALL. j^l^fg^ 
 
 [2 B. C. 12.] Dkake, J. 
 
 Mining Courts — Judge — Mineral Act, 1888, sec. 11, ConstHutionality of — 
 
 Officers. 
 
 It is competent for the Province to create Mining Courts, and to fix their juris- 
 diction, but not to appoint any officers thereof with other than ministerial 
 powers. 
 
 EuLE absolute to prohibit defendant, a Gold Commissioner, from ^Statement, 
 sitting as a Judge in a Mining Court. 
 
 Wilson, for the rule. Argument. 
 
 No one contra. 
 
 Our. adv. vult. 
 
 June 34th, 1890. 
 
 Dhake^ J. : — This was an application for a writ of prohibition 
 against George Tunstall to restrain him, as Gold Commissioner for 
 West Kootenay, 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 by the Provin- 
 cial 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 sup- 
 port 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 an a 
 Court of Law and Equity to hear and determine all mining disputes, 
 and is to be a Court of Eecord, and the Gold Commissioner is to have 
 
 Judgment. 
 
62 MARTIN'S MINING CASES. [vol.. 
 
 1890. the same powers for enforcing the judgments or orders of his Court 
 "^ ■ as are exercised by the Supreme Court or a Judge thereof. 
 Drake, J. Section 10 gives jurisdiction as to disputes relating to real estate 
 
 held under the Act. Sec. 11 gives jurisdiction as to personal claims 
 arising between persons engaged in mining, and in respect to supplies- 
 furnished to persons engaged in mining ; and sec. . 13 authorizes the 
 Gold Commissioner to issue writs of ca. re., ne exeat, and ca. sa., in 
 all cases in which by law he has jurisdiction, which apparently means 
 in all cases in which the Act clothes him with jurisdiction. 
 
 We here find a very large and extended jurisdiction vested in the- 
 Gold Commissioner, unlimited as to amount, and limited only by the- 
 fact that the questions to be decided by him niust be between persons 
 engaged in mining, or in respect of supplies furnished to persons 
 engaged in mining. This jurisdiction is, in reality, in excess of the 
 powers vested in the County Courts, uncontrolled by any rules and un- 
 fettered by any restrictions. The issues that can be raised under 
 these sections may involve property of a very great magnitude, and 
 questions of the greatest importance. In addition to these judicial 
 powers, the Gold Commissioner is vested with certain functions re- 
 specting the recording of claims, defining of boundaries of claims, lay- 
 ing over claims, and other matters of considerable importance to a 
 mining community, but which are not involved in the question now 
 ' before me. 
 
 Prior to Confederation, the Colonial Government had all the neces- 
 sary authority for establishing Courts of this character, and of ap- 
 pointing the presiding officers, and sees. 4, 5 and 6, were enacted prior 
 to Confederation. 
 
 Since Confederation, the Provincial Legislature has power to con- 
 stitute, maintain, and organize Provincial Courts, including procedure- 
 in civil matters, under sec. 93, sub-sec. 14, of the " British ISTorth 
 America Act." So far as that Act establishes a Mining Court and 
 creates its jurisdiction,. it was within the powers of the Colonial Legis- 
 lature, but when the Provincial Legislature attempts to appoint officers - 
 of the Courts thus constituted with other than ministerial powers, it 
 trenches on the powers expressly given to the Governor- General by sec. 
 96 of the " British North America Act." It. is true that the language 
 used in that section is limited to the Judges of the Superior, District, 
 and County Courts in each Province, and it might be contended that 
 these Courts having been expressly named, all other Courts are ex- 
 cluded, if this were so, the Provincial Legislature would only have to- 
 constitute a Court by a special name to 'enable them to avoid this 
 clause, but in the section itself, after the Special Courts thus named^, . 
 the Courts of Probate in Nova Scotia and New Brunswick are excepted 
 from the operation of the clause, thus showing that sec. 96 was in-- 
 tended to be general in its operation. 
 
Drake, J. 
 
 I.] BURK V. TUNSTALL. 63 
 
 But there is a further view which I think is conclusive on this j^^^j^ 
 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 Eep. 716, it was held that when the King^had any pre- 
 rogative, 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 Crovm 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 put that, under the 7th sec. of the Mineral Act, the 
 County Court, if there is one whose jurisdiction extends over the dis- 
 trict for which a Gold Commissioner is appointed, has exclusive juris- 
 diction 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. "W tiitewater Mines Ltd., post, p. 405. 
 
 Exception to jurisdiction must be talten below Gelinas v. Clark, post, p. 428v 
 As to transfer of action to Supreme Court, see Richards v. Price, post, p. 
 
 140. 
 
€4 
 
 MARTIN'S MINlXG CASES. 
 
 [VOL. 
 
 AugMt'io. '^^^ Columbia Eivek Lumber Co. v. Yuill et al. 
 
 Drake, J. (2 B. C. 237). 
 
 Free Miner — Water Rights — Riparian Proprietor — Lessee from Dominion Qov- 
 ernment — Can, Pac. Ry. Belt — Grown Timber — Injunction — 43 Viet. B. C. 
 ch. ll—Placer Mining Act, B. C, 1891. 
 
 Lessees of the Dominion Government in tlie Canadian Pacific Railway Belt 
 operating a saw-mill by water power are entitled, as riparian proprietors, 
 to an injunction restraining Provincial free miners, located up-stream, after 
 occupation by said lessees, and haviiig 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, 1891, does not sanc- 
 tion the user of the water to the detriment of the rights of others. 
 
 The Dominion Gov€(rnment 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. 
 
 ■Statement. 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' saw- 
 mill. 
 
 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 naine. 
 
 The stream, after passing defendants' mine, ran through the lands 
 upon which the plaintiffs' saw-mill was situated, they being in posses- 
 sion 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 Viet. ch. 35, 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 defen- 
 dants claimed that it was damnum absque injuria. 
 
 An interim injunction having been granted by t)EAKE, J. 
 
J..] THE COLUMBIA RIVER LUpVIBBR CO. v. YUILL et al. 65 
 
 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- ^^'^^^' J- 
 pend on the effect of the Provincial Statute, 43 Vict. ch. 11, granting Argument, 
 to the Dominion Government public lands of the Province, 30 miles 
 wide on each side of the track as located by the Canadian Pacific 
 Eailway, in aid of the construction of the railway, as varied by 47 
 Viet. 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 appro- 
 priate their revenues for the purpose indicated. It was neither in- 
 tended 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, AUorney-General of B.C. v. Attorney-General of 
 Canada (1889), 14 App. Cas., ante, p. 53. Lord Watson, at pp. 57, 
 ■58. The plaintiffs ought to have obtained a licence from the Pro- 
 vincial 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 
 rights 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. eh. 
 11, " This Act shall not affect . . . the rights of the public with 
 respect to common or public highways," etc. Bxpressio unius ex- 
 ilusio 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 ordfer 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; 5<ocfcpori Water Works Co. v. Ration (1864), 3 H. & C. 
 
66 
 
 MARTIN'S MINING CASES. 
 
 [VOL.. 
 
 1892. 
 August 19. 
 
 Drake, J. 
 
 Judgment. 
 
 Cas. 300; Goddard on EasementSj p. 
 (1877), 2 App. Cas. 839, 
 
 84; Orr Swing v. Colquhoun 
 
 DhakEj J.: — The defendants move to dissolve the injunction 
 granted hy 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- 
 plairftifEs' 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 YuiU 
 Creeks, to be utilized in working their dam. These creeks naturally 
 flowed into Quartz Creek below the mining claim. This year the de- 
 fendants commenced work, and the effect was to fill up with their tail- 
 ings 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 fiume 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 statu- 
 tory right to use water for mining, and this statutory right is equi- 
 valent to a grant, and if, in the use of water by them another is in- 
 jured, 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 Columhia 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 rail- 
 way belt ; but whether this working is to be carried on imder the Pro- 
 vincial regulations as regards water rights and privileges, or under 
 Dominion regulations, may be a matter of interest, but, is not, I think,. 
 
j] THE COLUMBIA RIVER LUMBER CO. v. YUILL et al. 67 
 
 necessary to be now decided, because neither the provincial regulations j^^^^^^ ig 
 
 nor the Dominion statutes in any way sanction the user of water to the 
 
 detriment of other riparian proprietors. Sec. 64 of the Placer Mining ^rakk, J. 
 Act, 1891, expressly protects the rights of persons lawfully using water 
 for any purpose whatsoever, and there are no Dominion regulations 
 affecting gold and silver mining in British Columbia. Can then, 
 any statutory authority which does not in express terms give the right 
 here contended for, be considered as impliedly sanctioning the injury 
 which admittedly has been caused to the plaintiffs by the defendants'^ 
 mining operations. 
 
 The plaintiffs are, in my opinion, lawfully using the water in 
 Quartz Creek for their mill, but it is contended that the Dominion 
 Government are not freeholders of the lands in the railway belt under 
 the decision of the Attorney-General of B.C. and the Attorney-General 
 of Canada^ supra; therefore they have no riparian or other water rights 
 in the waters and streams flowing through these lands, and can give 
 no rights to these streams. The Dominion Government are lawfully in 
 possession of the lands in the railway belt, practically as trustees for 
 future settlers, and can administer these lands as they think most 
 advisable. In issuing timber licences to the plaintiffs they are acting 
 within their power, and all licencees, while in occupation, have the 
 right to the use of the water flowing through their limits in its 
 ordinary and natural condition. In Booth & Ratte (1889), 15 App. 
 Cas. 188, it was held that if the plaintiff occupied the lands bv per- 
 mission of the owner he had a sufficient title to enable him to maintain 
 an action for injury caused by the fouling of the stream by the de- 
 fendant. 
 
 I see nothing in any Act or regulation which authorizes the de- 
 fendants to commit the nuisance complained of. If the defendants 
 desire to continue the mining operations, they must take steps to pre- 
 vent the tailings coming from their workings being an injury to the 
 plaintiffs. I, therefore, refuse the defendants' motion to dissolve, with 
 costs. 
 
 Motion dismissed with costs. 
 
 Note. — For othe* cases on mining water rights : see Jenmi Lind Co. v. 
 Bradley-Niqliolson Co., ante, p. 9; Centre Star Co. v. B. C. Soutliern Ry. Co., 
 post, pp. 421 460 ; War Eagle Consol. Min. &c., Co. v. B. C. Southern Ry. Co., 
 post, pp. 422, 465. 
 
 As to water rights in general: see Carson v. Clark (1885), 1 B. C. (pt. 2) 
 189; Martley v. Carson (1889), 20 S. C. R. 634; Canadian Pacific Railway 
 Co. V. McBryan (1896), 5 B. 0. 187; 6 B. C. 1.36; (1899) 29 S. C. 359; Can. 
 Pac. Ry. Co. v. Parke (1897), 6 B. C. 6: 1899 A. 0. 535; Hornby v. New 
 Westminster Southern Ry. Co. (1899), 6 B. C. 588; Covert v Petiiiohn 
 (1902), 9 B. C. 118. 
 
 As to the title of the Dominion Government in the Railway Bell : see 0«een 
 V. Fartvell (1887) 14 S. 0. 392; (1893) 3 Ex. 271; (1894) 22 S. C. 553- 
 Queen v. Demers (1894), 22 S. C. 482. 
 
68 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 18'J3. 
 January 10, 12 
 
 Divisional 
 
 CoDRT. 
 
 Re The Maple Leae and Lanark Mineral Claims. 
 (2 B. C. 323). 
 -Extending Time for Bringing Action — Mineral Act, 1891 
 
 Statement. 
 
 Judsment 
 
 below, 
 Drake, J. 
 
 and 
 Pra dice — Xo tice — 
 
 Adverse Claim 
 Amendments — Appeal — -Divisional Court — Jurisdiction - 
 Abandoning Appeal. 
 
 An appeal lies to the Divisional Court from the- order of a .Judge extending the 
 time for bringing an adverse action under sec. 37 of the Mineral Act, 1891, 
 and amendments. 
 
 The fact that a writ has already been issued is material to the application 
 and should have been disclosed. 
 
 Such a circumstance can be taken advantage of upon appeal from as well as 
 upon a motion to rescind the order. 
 
 After judgment allowing the 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 in- 
 structed) , abandoning the appeal had been served upon respondents' solicitor 
 on the morning of, but before, the argument of the appeal, 
 
 tield, that the appeal was at an end upon the giving of the notice abandoning 
 it, and the order allowing the appeal not having beien drawn up no order 
 would be issued, but the appeal should stand as if struck out of the paper. 
 
 Appeal from an order of Deake^ J., made in Chambers on 10th 
 of December, 1892, allowing Alexander F. McKinnon, the owner of 
 the Maple Leaf mineral claim, a period of 30 days further time 
 within which to commence proceedings in respect of an adverse claifn 
 filed by him on the 10th day of November, 1893, against the issuance 
 of a certificate of improvements in favour of JST. P. Snowden, for the 
 said Lanark claim, under sec. 14 of the Mineral Act (1891) Amend- 
 ment Act, 1892, amending sec. 37 of the Mineral Act, 1891. 
 
 The facts appear in the judgment. 
 
 Drake, J. : — The property in question is in lUeeillewaet. The 
 claimant has filed his notice of claim within time allowed by see. 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 prosecuted either in the 
 Supreme Court or the County Court. As no time had been fixed fox 
 the sittings of the County Court, it is doubtful if it. is possible for 
 proceedings to be commenced, as the plaint is the first step, and plaints 
 are onty issued by the Registrar when a day is fixed for holding County 
 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 sui'vey can be made until the snow is gone, and a delay of thirty 
 days will not prejudice the applicant for a Crown grant. 
 
I.] RE MAPLE LEAF AND LANARK MINERAL CLAIMS. 
 
 m 
 
 Divisional 
 
 COUBT. 
 
 Argument. 
 
 The Lanark Company appealed to the Divisional Court, and the j^^^^^^l^^ ^^ 
 appeal was argued on January 10th, 1893, before Begbie, C.J., Crease 
 and Walkem^ J J. 
 
 Taylor, for the Maple Leaf Company. We take the preliminary 
 objection that the appeal does not lie. The order was not made in 
 any action or proceeding pending in any Court. The right to make 
 such orders in mining matters is a special jurisdiction conferred by 
 the statute, and there is no appeal from them unless provided in ex- 
 press terms. See. 67 of the Supreme Court Act does not cover the 
 case, as its language cannot be extended further than to cover appeals 
 from orders, final or interlocutory, made in actions or matters pending 
 in the Supreme Court. To cover the case the statute should have pro- 
 vided for an appeal from any order which the Court was by any 
 statute empowered to make, whether in a matter pending in the Court 
 or not. 
 
 Bodwell, for the Lanark Company, appella-nts. 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., 
 orders for ca. re. 
 
 Per CuHiAM : — We think we have jurisdiction to entertain the Judgment, 
 appeal. 
 
 Objection overruled. 
 
 Bodwell, for the appeal: — Although it did not appear in the ma- Argument, 
 terial filed, the appellants have discovered, since the making of the 
 order appealed from, that at the time of the respondents' motion to 
 Mr. Justice Drake to extend the time for bringing an action, the re- ' 
 spondents had commenced an action by issuing a writ out of the 
 Supreme Court. This fact Mr. 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 
 
70 MARTIN'S MINING CASES. [vol. 
 
 ■'■^^^•. ^n^^^- -^t aU'events the suggestion that there was a suppression of facts 
 
 . anuary^ , ^^ ^^^ original motion is not a matter which can be urged on an 
 
 ^ Oour''*^ appeal. It is proper subject of a motion to the Judge whose discretion 
 
 is said to have been misled, to rescind his own order. Here there was 
 
 material before the Judge below to found the exercise of his discretio5i. 
 
 Judgment. pg,. CURIAM : — We think the order appealed from would not have 
 
 been made if the fact of the commencement of the action had been 
 
 before the learned Judge, and that it was a fact material to be showa, 
 
 and that its non-disclosure can be taken advantage of on this appeal a=i 
 
 well as on a motion to rescind the order. 
 
 Appeal allowed with costs, and order below dismissed with costs. 
 
 January 12th, 1903. 
 Present : — Begbie, C. J., Walkem and Crease, JJ. 
 Settling order. Taylor^ by special leave, now spoke to the question of the order to 
 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 argu- 
 ment, 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 been concluded, notwithstanding the notice of 
 abandonment, by the appearance of their counsel in support of the 
 appeal. What took place in effect was a withdrawal by consent of the 
 notice, and an agreement to argue and abide by the result of the appeal, 
 for, by not instructing their counsel of the notice, but permitting him 
 to argue the appeal, by which they would have obtained full costs if 
 successful, they are estopped from now going back to the notice. In 
 Conyleare v. Lewis, the action was discontinued. Neglect to place 
 material before the Court on a motion is.no ground for re-opening it 
 after judgment. 
 Judgment. 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 atten- 
 tion. 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 strucTc out accordingly. 
 
 Note — See Re Good Friday Mineral Claim, post, p. 84, aud notes thereto. 
 
•I.] 
 
 GRANUER V. POTHBRINGHAM. 
 
 71 
 
 Granger v. Fothbeingham^ et al. 1894. 
 
 November 8 
 (3B. G.590). Cre7^,J. 
 
 Mineral Claim — Re-location — Owner — Staking — Excess of Area — Ahandonment 
 — Public Officer — Misuse of Knowledge obtained in Offioe — Mineral Act, 
 1891, and Amendments — " Jumping." 
 
 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 
 for a consideration, 
 
 Held, not a re-location by the owners of the original claim so as to render 
 necessary the written permission of the Gold Commissioner. 
 
 A location on land already lawfully occupied for mining purposes is invalid. 
 
 A location which has a defective post is invalid. 
 
 The owner of shares in an incorporated mining company is not an owner of any 
 part of a mining claim owned by it. 
 
 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 Statement. 
 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 Eobert E. Burns, prior in date to that of the plaintiff. 
 The plaintiff alleged that the Eobert E. Burns location was void as in- 
 sufficiently staked, in that it exceeded the 1,500 feert in length per- 
 mitted 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. 
 ?9 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. 
 Davis, Q.C., for the plaintiff. 
 Pooley, Q.C., for ithe defendants. 
 
 Argument. 
 
72 MARTIN'S MINING CASES. [vol. . 
 
 Novrbers. m^emhev 8th, 1894. 
 
 Crease J. Crease, J.: — This case is one of considerable importance to the- 
 
 mining community. It discloses the attempt to wrest the possession! 
 Judgment. ^^ ^ ^-^g^-j^ ^^.^^ ^ ^^^ ^^ ^^^ ^^^ -^^^ ^^^^ ^ ^^^^^ ^^^j ^^ mining 
 
 work, and expended large sums of nioney on it in labour and machin- 
 ^^Jj ^7 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 plain- 
 tiff has expended practically nothing. The Bobbie Bums was recorded 
 on the 12th of May^ 1891, by Archibald MeMurdo, 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 record- 
 ed under the Mineral Act of 1891. The other two claims-r-the Eobert 
 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 Bums. 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 dis- 
 coverer and sole owner of the Bobbie Bums ; 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 MeMurdo his one-fourth. In September, 1892, 
 McMurdo made a written agreement (called a bond) with Fother- 
 ingham 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, 1893, 
 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 Fotheringhain. 
 
 The instruments recorded affecting the Eobert E. Burns are as 
 follows : — 
 
 On 29th July, 1893, record of Eobert E. Burns filed at Golden by 
 George McCabe, one of the defendants. On 31st July, 1893, a bill of 
 
I.] GRANGER v. FOTHBRINGHAM. 7i- 
 
 OllEASE, J^ 
 
 sale given by George McCabe to Fotheringham, in consideration ol j^-^y^^^^'g^ g 
 $500.00 of all his interest in the Eobert 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 
 Eobert E. Burns and had agreed to convey it to the defendants. De- 
 fendants, therefore, rely on the Eobert B. Burns. Plaintiff in reply 
 objects : — That the Eobert 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 Eobert 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 line " between posts 1 and 2 can be distinctly seen." 4. That 
 Ro. 2 post of Eobert E. Burns is undated. 5. That the Eobert E. 
 Burns is merely a re-staking of the Bobbie Burns. 
 
 The issue was : 1. Was the Eobert E. Burns sufficiently staked to 
 comply with the Mineral Act? Whether the location of the Eobert, 
 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 in- 
 terested in the Bobbie Burns as to make him in equity a part owner, 
 and, therefore, under the latter p^rt of sec. 29 of Stat. B. C, 1891, ch. 
 25, unable to re-stake without getting the written permission o:^ the 
 Gold Commissioner. The facts which were proved during the trial 
 were: 
 
 That by various conveyances from McMurdo, the discoverer, the 
 Bobbie Burns came into the possession of Eobert 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 maEing 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 arrangenients with Harry Cummins, a duly qualified! 
 
-74 MARTIN'S MINING CASES. [vol. 
 
 November 8 ^°^^^ survevOT, tQ STirvey the claim, make and record the proper afl&- 
 
 — ' davits and documents required by the Mineral Act to entitle him to 
 
 •Ckease, J, g^ Crown grant — obtain the necessary certificates from the mining 
 
 recorder, jind 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 improve- 
 
 • ments, 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 iji 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^ 1893, to 12th 
 May, 1893, obtained and recorded. 
 
 Pinding this, one George MeCabe 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 Eobert E. Bums 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 Eury 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, 
 ithat the claim Eobert 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 appsars; and all 
 this I find accordingly. 
 
 It has been objected that the location of the Eobert 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 eoUusively as 
 •agent of the owners of the Bobbie Burns, and that by Stat. 1891, ch. 
 35, sec. 39, 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 agree- 
 ment to convey to the defendants or agency for them having been 
 proved, the objecFion fails. 
 
 It has also been objected that his claim, Eobert E. Burns, was 
 wrongly staked, and was invalid, because, by sec. 5, ch. 32, of the 
 Mineral Act, 1893, 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. 
 
I.] GRANGER v. FOTHBRINGHAM. 75 
 
 But the words of the Act are as follows : . ^^ i^''*- „ 
 
 November 8. 
 
 " Any free miner desiring to locate a mineral claim shall, subject to the pro- 
 
 Yisions of this Act, with respect to land which may be usea for mining, enter Ceeasb, J. 
 upon the same and locate a plot of ground measuring, where possible, but not 
 exceeding 1,500 feet in length by 1,500 feet in breadth, in as nearly as pos- 
 sible a rectangular form, that is to say," &c. 
 
 Now, a glance at a correct sketch of the locality would show that 
 all the three claims are staked so much on the same lines on the 
 north and west sides, and these contain exactly the same right angle, 
 each of the two sides forming which is exactly 1,500 feet long, that the 
 construction of the 1,500 feet square specified in the Act follows as a 
 matter of course. 
 
 So that all the' excess in length, over 1,500 feet, of the Eobert E. 
 Burns can be cut off with exact precision by a line parallel to the 
 south and north boundary lines of the Eobert E. Burns without inter- 
 fering with the direction of the location line of that claim, of which 
 the evidence satisfies me as a jury ; and the Provincial Land Surveyor 
 is by sec- 15 — four lines above sub-sec. (a) -^empowered to move No. 
 2 post, and inferentially any other post, except post No. 1, " for the 
 correction of the distance," which is exactly what is wanted here. 
 And I have already said generally, that the evidence satisfies me par- 
 tieularh', that the claim is properly staked, with proper and lawful 
 posts, in compliance with the Act. 
 
 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 
 affecting the previous rights of adjacent owners, must very frequently 
 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 Eobert 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 neces- 
 sities of the case nor in accord with the spirit and intention of the 
 Act. I consider, therefore, that while liable hereafter to this rectifica- 
 tion, or, as the Act calls it, " correction of distance," the Eobert 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 
 
76 MARTIN'S MINING CASES. Lvol. 
 
 1894. continet in se minus may not, by the same process, abandon any speci- 
 — ' fie portion of a claim — provided he specify and record such abandon- 
 Ckhasb, J. uiQjit. 
 
 Holding, therefore, as I do, that the Eobert 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 con- 
 . sideration McCabe received. While that was the substantial part of 
 it, for the value of the claim is still in nuhibus, 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 
 him to hold a miner's certificate in order to keep his shares. 
 
 There is another reason for the above conclusion, which, despite 
 the deprecation of the learned counsel for the plaintiff, I think mili- 
 tates against the plaintiff's right to stake out a claim over another, 
 the effect of which would be to oust the title of the defendants — ^that 
 is the mode in which 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 whild doing business as a miner and mine dealer, 
 he obtained employment from the Mining Eecorder 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 dis- 
 covered 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 Eecorder 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 Eecorder, who appeared as a volunteer witness at the trial. 
 
I.] GRANGER v. FOTHERINGHAM. 77 
 
 Ckkask, J. 
 
 had no right whatever to grant, and the plaintiff as an honourable man jg-Qy^j'|||^-j.j.,g 
 while in such employ had no right to accept. 
 
 The Eecorder, if he had such a right, could have exercised it him- 
 self. Now, no person in Government employ is allowed to expose, 
 or himself to take advantage of, discoveries which he makes to the 
 prejudice of others in the course of such employ. It is no answer 
 to say that the public have free access to and can freely search all 
 mining records — that is perfectly true and proper, suh modo — but a 
 public officer, entrusted with the charge of public mining records, can 
 only, except in exceptional cases, such as a record coming in at night 
 in a race to record some new discovery, where five minutes may make 
 aE the difference, allow anyone to come in and search such records, 
 or make his own, except within reasonable hours in the day, and then 
 only, for very obvious reasons, in the presence of the- Eecorder or 
 someone duly authorized in his stead to protect the records, which 
 are frequently the only title which the working miner has to, some- 
 times, a vast amount of property. 
 
 Any trifling with, or irregularity or favouritism in the keeping, 
 or giving access to the records at unusual times, if known, will breed 
 such a distrust among the mining population as will seriously affect 
 their confidence in that department ; a result which is earnestly to be 
 deprecated, as it would be followed by all manner of evil consequences 
 to the mining interests of that part of the country. 
 
 While honest working and expenditure of capital, which was un- 
 deniably 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 work- 
 ing, should, under the stringent provisions of the Act, in that behalf, 
 be followed by forfeiture of the privileges which the holders have been 
 proved by experience unworthy to retain, it is of the utmost public 
 importance in a mining country requiring the safe investment oi capi- 
 tal for its development, and the steady employment of labour, that 
 the practice of jumping claims by persons — who, not working them- 
 selves, make a business of hunting for accidental or unintentional slips 
 in records happening to men more engaged in hard work underground 
 than accustomed to clerical employment (prospectors, who undergo 
 infinite labour and hardships in bringing hidden wealth to light), 
 should be discouraged, as they always have been by this Court. They 
 are the parasites who always hang about rich mining camps. 
 
 Long experience in mining camps, including British Columbia it- 
 self, from Cariboo downwards, shows that there is no more fertile 
 source of insecurity to investment (and money is a sensitive plant), 
 ill-blood, ill-feeling, not unfrequently culminating in violence and 
 bloodshed — than the practice of what is known to miners by the term 
 of " jumping " claims. 
 
78 MARTIN'S MINING CASES. [vol. 
 
 Novembers "^°^ *^^ reasons already given, and after a most careful consider- 
 
 — ■ ation as a Judge, of all the sections of the Gold Mining Acts, and, as 
 
 Creasb, J. ^ j^j.y^ Qf ^-j^g evidence and arguments adduced on both sides, I find 
 
 myself constrained to give judgment for the defendants, with the 
 
 usual accompaniment of costs. 
 
 Judgment for defendants. 
 
 Note. — ^As to abandonment : see WUliams Creek, <tc., Co. v. Synon. ante, 
 p. 1. 
 
 As to invalidity of re-location on existing valid location : see Mnnley v. 
 Collom, post, p. 487 ; and see note to that case for list of decisions on defective 
 location. 
 
 As to relocation without permission of Gold Commissioner : see Pellent v. 
 Alnoure, post, p. 134; Greelman v. Clarice, post p. 228; Dunlop v. Eaney, post, 
 p. 369. 
 
 As to " jumping " : see Woodbury v. Eudnut, ante, p. 31. 
 
 As to policy of Mineral Act% in general cf. pp. 88, 139, 146, 187, 194, 23C. 
 304. 333, 336, 414, 446. 
 
 By regulation of Sept. 10th, 1898, under sec. 143 of the Mineral Act, all Gold 
 Commissioners, Mining Recorders, clerks and employees connected v?ith the ad- 
 ministration of mineral claims, are prohibited from taking out free miner's certi- 
 ficates 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. 
 
I.] HOGG V. PARRBLL. . 79 
 
 Hogg v. Faeeell. ^ 1895. 
 
 IJeeember 12. 
 (6 B. C. 387). FoLiTcouBT.- 
 
 Practice — Pleading— Qeneral Denial Insufficient — Rules 158, 169 and 171 — New 
 
 Defence on Appeal. 
 
 A general denial is bad, and not only will be disregarded but the allegations 
 
 must be taken as admitted. 
 If it is intended to rely on non-compliance with the requirements of the Mineral 
 
 Act as to location, or otherwise, this must be specifically pleaded and the 
 
 material facts set up on which reliance is placed. 
 Defences of such a nature cannot be raised in appeal for the first time. 
 Decision of Ckease, J., affirmed. 
 
 Appeal by the defendants from the judgment of Ckease^ J., pro- statement. . 
 noTinced 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 : 
 
 Statement oe Claim; 
 
 1 and 2. [Immaterial.] 
 
 3. Contained an allegation that the plaintiffs and one Benjamin Pugh in 
 partnership, located, and on 13th June, 1893, duly recorded the Queen of the 
 Hills and Moyea mineral claims, &c. 
 
 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, conveyed 
 claims to plaintiff Hogg. 
 
 6. Under and by virtue of the said records and instrument, the plaintiffs are 
 the lawful owners of the said mineral claims. 
 
 7. Contained allegation that one Charles Farrell located, and on 18th July, 
 1893, duly recorded the Lake Shore mineral claim. 
 
 8. Contained allegation that on 27th March, 1894. the said Charles Farrell 
 transferred the said Lake Shore mineral claim to the plaintiff Hogg. 
 
 9. The said Alexander L. Hogg duly performed the representation work re- 
 quired by law, and duly received and recorded a certificate of work on the said 
 Lake Shore mineral claim. 
 
 10. The said Moyea claim adjoins the said Queen of the Hills claim, and the 
 said Lake Shore' claim adjoins the said Moyea claim. 
 
 11. Since the plaintiffs' claims were tocated and recorded the defendants 
 have located, and recorded in the oflSce of the Mining Recorder at Fort Steele, 
 certain claims known as the Deadwood and Legal Tender claims, ,ind the same 
 extend over portions of each of the said Queen of the Hills, jMoyea and Lake 
 Shore claims. 
 
 12. The defendants' said records are a cloud upon the title of the plaintiffs 
 to their said, claims. 
 
 13. The defendants have entered upon the said claims of the plaintiffs, and 
 have done considerable work thereon, and have dug. excavated and removed 
 mineral therefrom and have trespassed on the said claims of the plaintiffs, and 
 the defendants threaten and intend to continue their said work and their said' 
 
i'ULL COUBT. 
 
 80 • MARTIN'S MINING CASES. [vol. 
 
 1835. trespassing, and the plaintiffs fear that they will continue to do so unless re- 
 December 12. 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- 
 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 of 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 
 plaintiffs' said statement of claim. 
 
 3. The defendants deny all the other allegations contained in the said state- 
 ment 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- 
 tion thereof. 
 
 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 
 
 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 de- 
 fendants 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 ISth July, 1893, to 
 the knowledge of the plaintiffs. I 
 
 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 the Lake Shore claim was recorded, in the name of Charles Farrell, 
 but at the time of the location thereof the said Charles Farrell, Ole J. Johnson 
 and the defendant Charles C. Farrell were together, and it was agreed that the 
 said claim should be held by the two Farrells and Ole Johnson in partnership. 
 
 " And that while this partnership of three was existing, the same three 
 recorded two other mineral claims named the Broncho, and the Mossback, and 
 it was agreed between the three that Thomas Roder should be admitted into 
 the partnership. 
 
 " And that the plaintiff Hogg, at the; time of the transfei of the Lake Shore 
 mineral claim to him by the said Charles Farrell, purchased with knowledge of 
 ■the defendants' alleged rights." 
 
I.] 
 
 HOGG V. FARRBLL. 
 
 81 
 
 The trial took place before Ckease^ J., at Kamloops, on 4tli June, 
 ^1895, and His Lordehip held in regard to paragraph 5 of the defence, 
 that no "vein or lode" was proved to exist, and therefore that plea 
 failed. 
 
 .In regard to paragraphs 6 and Y of the defence, he held, that al- 
 though these pleas were traversed, no part of either of them was 
 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 plaintiffs' claims. 
 
 From this judgment the defendants appealed on the groimds (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. 35, 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 plain- 
 tiffs 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 re- 
 corded. (8) That the defendants are entitled to some part of the 
 ground in dispute. 
 
 , The appeal was argued 12th December, 1895, before the Full 
 Court, consisting of McCreight, Walkem and Drake, JJ. 
 
 Wilson, Q.C., for appellants. 
 
 Davis, Q.C., for respondents. 
 
 Mr. Wilson applied for leave to introduce fresh evidence, but leave 
 was refused. 
 
 1895. 
 
 December 12. 
 Full Coukt. 
 
 Appeal. 
 
 Argument. 
 
 Per Curiam: — The appeal is dismissed with costs. 
 
 Subsequently, on 1st June, 1896, the reasons for the judgment of 
 the Court were handed down by 
 
 McCreight, J. : — Mr. Wilson for the appellants and defendants 
 Farrell and Johnson in this case, made several objections to the deci- 
 sion of Mr. Justice Crease which was decided in favour of Hogg and 
 Houghton, the plaintiffs. 
 
 Judgment. 
 
82 MARTIN'S MINING CASES. [vot. 
 
 ■"^SS- First he objected that the plaintiffs didn't prove that they had 
 
 ecem^er . gg^^jggg^ ^j^g requirements of sec. 3 of ch. 29 of the Act of 1893, 
 Fl-llCoubt. as to posts and other conditions of location, but to this objection there 
 MeCKEiQHT, J. are several answers ; first, the general denial in paragraph 3 of the 
 statement of defence is bad (see Eule 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 Eule 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 defend- 
 ants intended to rely on the absence of proper posts and other condi- 
 tions of location as suggested by Mr. Wilson, Rule 158 requiring the 
 party pleading to " state the material facts on which he relies " es- 
 pecially as their omission would be likely to take the " opposite party 
 by surprise," words to be found, in Rule 169, should have been at- 
 tended 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 evid- 
 ence 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 
 iQade 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. 
 (3) 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. Wilsorij says, that certain documents referred to in the state- 
 ment 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 min- 
 eral claim Mono, being a relocation of the Moyea claim, without the 
 
I.] HUGG V. FARRBLL. 83 
 
 written permission of the Gold Commissioner. The trial Judge finds j)g(,g^,^^g^ ^g 
 that though this defence was denied it was not proved by the defend- — 
 ants who seem to have called no witnesses. Full Court. 
 
 The next plea of the defence was that Charles Farrell, mentioned MoCreight,.J. 
 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 know- 
 ledge of the plaintiffs. The learned trial Judge finds that this plead- 
 ing though denied by plaintiffs, was not proved. 
 
 The cases of James v. Smith (1891), 1 Ch. 384, and Clarke v. Cal- 
 low (1876), 46 L. J. Q. B. 53 (C.A.), per Lord Bsher, 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 Eule 
 169, and to amend would I think be plainly unjust; compare what is 
 said by Lord Hersehell in The "Tasmania" (1890), 15 App. Cas. 
 325, and see p. 230; and Connecticut Fire Insurance Company v. 
 Eavanagh (1893), 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 ; 
 Nelson and Fort Skeppard By. Co. v. Jerry, post, p. 161 ; Stussi v. Brown, post, 
 p. 195 ; Aldous v. Hall Mines Co., post, p. 213 ; and as to defences in the County 
 Court: Gelinas v. Clark, post, ^i. 428; Schomberg v. Holden, post, p. 290; 
 Galdivell V. Davys, post, p. 387. 
 
 And as to onus of proof: see Bleelcir v. CMsIiolm, post, p. 112. 
 
84 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1896. Re Good Friday, Timber, Indiana, Old Kentuck, and Good Hope 
 
 February 8. 
 
 — Mineral Claims. 
 
 Davie, C.J. 
 
 (4 B. C. 496). 
 
 Practice — Adverse Action — Time — Extension after Lapse— Mineral Act, 1H91, 
 
 and Amendments. 
 
 The Court has jurisdiction to extend the time limited for commencing adverse 
 proceedings as well after as before the lapse thereof. 
 
 Statement. 3I0TI0N by the owners of the Timber^ Indiana^ Old Kentuck, and 
 
 Good Hope mineral claims, made after the lapse of thirty days from 
 the filing of their adverse claims, to extend the time for their com- 
 mencing proceedings in a Court of competent jurisdiction to determine 
 the right of possession to the said mineral claims. The motion was 
 argued before Davie, C.J., on 8th February, 1896. 
 
 Argument. £,_ p_ x»Mf , for the motion. 
 
 P. jE. Irving, contra. 
 
 ^Tudgment. Davie, C.J. :— Section 14, sub-sec. 3 of the Mineral Act (1891), 
 
 Amendment Act, 1893, requires that an adverse claimant shall within 
 thirty days after filing his claim (unless such time shall be extended 
 by special order of the Court upon canise being shewn), commence 
 proceedings ' in a Court of competent jurisdiction to determine the 
 question of the right of possession, and the question upon this applica- 
 tion is whether after the lapse of the thirty days provided by the 
 statute the Court has power to extend the time. The omission to com- 
 mence 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 Paddington (1880), 5 Q. 
 B. D. 368, it is clear that the extension ought to be granted if the 
 statute permits it. I think that it does; the ordinary meaning of 
 the language employed by the Act imposes no limit, and the statute 
 must, I think, be read in the light of the rules of the Court, which 
 permit such extensions in the ordinary proceedings of the Court, and 
 of judicial rulings upholding such practice under statutes similarly 
 worded, see Banner v. Johnston (1871), L. B. 5 H. L. 170, decided 
 under the 134th section of the English Companies' Act, 1863, which 
 limits the period for appeal to three weeks, which time shall not be 
 
I.] Re good FRIDAY, ETC., MINERAL CLAIMS. 85 
 
 exceeded unless the Court of Appeal shall extend the time, and in 1896. 
 that case Lord Hatherly remarks that it would be a narrow construe- — 
 tion of the Act, and one which the circumstances under which the Davie, C.J. 
 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 con- 
 struction of the Act, to say that the word " extend " must be taken to 
 mean that the appfication must be made before the original time has 
 elapsed, because the time haying elapsed there is nothing remaining to 
 extend. 
 
 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 ad- 
 journment. 
 
 Order made. 
 
 Note. — See Re Golden Butterfly Fraction, post, p. 125 ; Kinney v. Harris, 
 post, p. 137 ; Kilbourne v. McGuigan, post, p. 142 ; NoMe v. Blancliard, post, 
 p. 373 ; Murphy v. Star Exploring and Mining Co., post, 450. 
 
 As to extending time for appeal, see next case. 
 
86 
 
 MARTIN'S MINING CASES. 
 
 [VOT,. 
 
 1896. 
 April 27. 
 
 TiiASK V. Pellent. 
 
 Full Coukt. 
 
 (5 B. C. 1). 
 
 
 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. 
 
 Statement. 
 
 Motion to the Full Court (Davie, C.J., McCreight and Wal- 
 KEM^ JJ.)j 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 cov- 
 ered 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 Spines, Co. J., re-located the same grotmd 
 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. Plaintiffs herein were 
 then advised by counsel against the decision of Spines, 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. 
 
 iirgument. 
 
 E. V. Bodwell, for the motion. 
 A. J. McColl, Q.C., contra. 
 
 Cur. adv. vult. 
 
 April 2nh, 1896. 
 
 The judgment of the Court was delivered by 
 
 .Judgment. McCeeight, J. : — This was an application by Mr. Bodwell to 
 
 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 
 
I.] TftASK V. PELLENT. ' 87 
 
 help this application as it might have done if appeal proceeding from ^p'^jf^ 
 the decision of Judge Spinks had been duly taken " within ten days — 
 from the date of his judgment." I think the case of Dowdeswell v. l^fLLCouar. 
 Francis (1874), 30 L. T. N. S. 608, obliges me to come to this con- MoCrkight.J. 
 elusion. , 
 
 The second dif&culty 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), 7 Ch. D. 341. 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 hard- 
 ship, 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 deci- 
 sion of Judge Spinks thg owners of the " Green Mountain," located 
 under the name of the " Defender," and allowed the time for appeal- 
 ing to elapse, and then only took advice which appears to have been 
 unsound, and now, seven or eight months after Judge Spinks' deci- 
 sion, 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. 
 Note. — See Kinney v. Barris, post, p. 137 and notes thereto. 
 
88 
 
 MARTIN'S MINING CASES. 
 
 [VOL- 
 
 1896. 
 May 9. 
 
 Full Court. 
 
 Statement, 
 
 Atkins v. Coy. 
 (5 B. C. 6). 
 
 Location — Record — Priorities — Land Registration — yotice to Subsequent Pur- 
 chasers — Appeal — Right to Withdraw — Practice — Evidence — Mineral Acts^ 
 1888, sees. 37 and 50; 1891, sees. 10 and 18; 1892, sec. 9 — " Jumping." 
 
 A location on ground already lawfully occupied for mining purposes is pro- 
 hibited 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 lajv relating to trans- 
 fers the policy of the Land Registry laws, namely, that a prior unregistered 
 conveyance must be postponed to that which is subsequent but duly regis- 
 tered. 
 
 Quaere, — iWhether mining records constitute notice, and to what extent 2 
 
 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, Oo.J., reversed. 
 
 Appeal from a Judgment of Spinks> Co-J., 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 Eambler 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' loeatioin, 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 im- 
 material, as priority of record determined the priority of right. 
 
 Judgment Spinks, Co. J. : — The point reserved in this action is whether the 
 
 Spinks,°^o. 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. 
 
FullOoukt. 
 
 1.] ATKINS V. COY. 8&- 
 
 In order to fully understand the intention of the Legislature on ^1896^^ 
 this point it is necessary to consider the history of the law. Prior ^ __' 
 to the Act of 1891, the Courts h«ld that the prior location gave the 
 prior right, without reference to the date of the record. This was 
 held notwithstanding sec. 50 of the Mineral Act, C. S. B. C, 1888 : — 
 
 " 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 sec. 41 of this Act." 
 
 The reason for this appears in sec. 37 of the same Act : — 
 
 " Every free miner shall, during the continuance of his certificate, but 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, 
 during the continuance of his certificate, enter upon any Crown lands, or land 
 covered by timber leases, to cut timber for mining purposes." 
 
 It was considered that the words " not lawfully occupied by any 
 other person " excluded lands properly located as mineral claims, even 
 before record, and that such lands were therefore within reservation. 
 
 The Mineral Act, 1891, set all doubts upon this point at rest, by 
 sec. 18, which enacted : " In case of any dispute as to the location judgment 
 of a mineral claim, the title to the claim shall be recognized according ^ below, 
 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 Act. 
 
 The Mineral Act (1891) Amendment Act, 1892, sec. 2, repeals 
 sec. 18 of 1891, and in sec. 9 enacts: 
 
 " Section 25 of the said Act is Eereby repealed, and in lieu thereof be it 
 enacted : 25. In case of any 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 record, and subject also to a compliance by the free miner with the provi- 
 sions of this Act." 
 
 This section expressly changes the root of title from the location 
 to the record. 
 
 It is possible to argue the law back to what it was prior to 1891, 
 but it is impossible to do so without in effect re-enactins; sec. 18 of ihe 
 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 miist, 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 enact- 
 ment were read as if the repealed words had never formed a part 
 of it." 
 
90 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1896. 
 May 9. 
 
 JFoi.L Court. 
 
 Appeal. 
 
 ..Judgment. 
 
 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 
 may be done. 
 
 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 23nd January, 1896, before Walkem, McCreight and Drake, 
 JJ. : 
 
 A. J. McCoTl, 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. 
 
 W. J. Taylor and Robert Oassidy, 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 Heatley v. Barnard (1890), W. K 90, 130; Re 
 West Devon, &c.. Mine (1888), 38 Ch. D. 51, 36 W. E. 343, 58 L. T. 
 61, 57 L. J. Ch. 850; 5e Downing (1891), 65 L. T. N. S. 665. It is 
 necessary for the whole matter to be disposed, of in this Court, other- 
 wise 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. 
 
 Cur. adv. vuli. 
 
 February 3rd, 1896. 
 The judgment of the Court was delivered by 
 
 Walkem, J.: — The Court has upon the appeal complete, jurisdic- 
 tion,, under sec. 29 of the. Mineral Act, 1888, over the whole sul?j.ect, 
 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 th^ appeal, an appeal from which judg- 
 ment might be taken before a higher tribunal with the result that 
 
^■] 
 
 ATKINS V. COY. 
 
 91 
 
 the whole of these proceedings and any judgment ultimately obtained ^iSSCj^ 
 thereon might be rendered abortive by the intervention of a decision — ' 
 by the County Court Judge granting a new trial. The policy of the Fi'lltourt, 
 Act is the same as that of the Judicature Act, and of Order LVIII., Walkkm, .;. 
 Kule 6, that a Judgment of a Court of Appeal should cover the whole 
 subject. 
 
 Leave to withdraw motion refused. 
 
 The appeal and cross motion for a new trial were argued before Statement. 
 McCebight, Walkem and Drake, JJ., on 23rd, 24th and 25th March, 
 by the same counsel : Besides claiming the ground in dispute as the 
 successor in title of Shea, under the Rambler location, plaintiff set up 
 at the trial a bill of sale of the ground in dispute under the Cariboo 
 location, from John King to Eichard Shea, which bill of sale was not 
 recorded until after the date of record of the bills of sale to the de- 
 fendants. 
 
 Cur. adv. vult. 
 
 May 9th, 1896. 
 
 McCkeight, J. :— This case seems to have been determined by Judgment. 
 His Honour Judge Spinks, with reference to certain, sections of 
 the Mineral Act (18i/l) Amendment Act, 1893, whic'n 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 any 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 record," &c. 
 
 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 Bambler was on 10th June. » 
 
 It was agreed by counsel before Judge Spinks, at the trial, that 
 the record of the Eambler was made on 13th June, and of 'the Cari- 
 boo 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 de- 
 cided in favour of the Rambler company on that ground. The Cariboo 
 company appealed to the Pull Court, and the Rambler company con- 
 sidering that though successful before Judge Spinks, on tlie ground of 
 having a prior record, their position would be materially strengthened 
 if a new trial were granted, and a jury, on a more thorough enquiry, 
 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 ques- 
 tion was argued at length and many affidavits were read on the part 
 
92 MARTIN'S MINING CASES. L^ou 
 
 1S96. of the Eambler company, for the purpose of shewing that the Cariboo 
 — ' claim, which included a material part of the Eambler claim, was not 
 KullCqdrt. located till many days after the location of the Eambler, which was 
 McCretght.J. admittedly located on 10th June. 
 
 The purport of the affidavits was that fresh evidence could be 
 adduced which was not and could not have been produced at the jury 
 trial, to shew the actual date 'of location of the Cariboo claim to be 
 several days after the location of the Eambler, which was on 10th 
 June. 
 
 In the view I take of this case, I consider that the judgment of 
 the learned Judge, that mere priority of record is all important, is 
 erroneous, and that his judgment should be set aside. It is true that 
 sec. 9 of the Mineral Act (1891) Amendment Act, 1893, does enact 
 " that in case of any dispute as to the ti^le to a mineral claim priority 
 of record will determine the right," but the concluding part of the sec- 
 tion contains the following material qualification : "subject to any ques- 
 tion 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, qn 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 by law. 
 
 I can, therefore, quite understand that the periods of location of 
 the ffambler and Caribop claims might be of much 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 
 Eambler, 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 really 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 different question, namely, a litigation be- 
 
 * Compare Woodbury v. Budmit, ante, p. 31; Granger i-. Fotheringhnm^ 
 ante, p. 71 ; Victor v. Butler, post, p. J:38. 
 
1.] ATKINS V. COY. 93 
 
 twcen assignees and innocent purchasers, and arising in the year ^^^g 
 1895; after several intermediate assignments, especially on the paii; _ ' 
 of the Cariboo company, and dependent not on the sections referred Fpll Couut. 
 to by the learned County Court Judge, but on sees. 50 and 51 of tbe MoChkight.J. 
 Mineral Act, 1891, which seem to introduce, as might be expected, 
 into the law relating to transfers under the above Acts of 1891 and 
 1893, the policy of the Land Eegistry Laws, namely, that a prior 
 unregistered conveyance must be postponed to that which is subse- 
 quent but duly registered. 
 
 The same policy has, 1 believe, characterized our legislation with 
 respect to gold fields mining claims for the last thirty years or up- 
 wards. 
 
 Section 50 of the Act of 1891, still in force, is as follows: 
 
 " Evttry conveyance, bill of sale, mortgage or other document of title relat- 
 ing to any mineral claim, mine 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 record, and not from the date of such 
 document." 
 
 The present parties to this action, representing the Eambler and 
 Cariboo claims ' respectively, are Jessie Wright Atkins, plaintiff, repre- 
 senting the Eambler company, and Belle Coy, A. L. Davenport, and 
 L. p. Wolfard, representing the Cariboo company. 
 
 None of them, was a party to the conveyance or bill of sale from 
 King to Shea of June 35th, 1893, and that document, as to third 
 parties, " must take effect from the date of record and not from the 
 date of such document." 
 
 The date of record of the bill of sale of June 35th, 1893, was not 
 until November 35th, 1894, and, of course, it can only take eflEect from 
 that date, which was more than two years from the " time prescribed 
 for recording mineral claims,"' and a considerable period after the 
 transfers to and records by Belle Coy, A. L. Davenport and Lake D. 
 Wolfard, all of which took place in the years 1893 or 1893. 
 
 Jessie Atkin's claim is through a conveyance from E. Shea, dated 
 December 5th, 1894, and recorded December 39th, 1894, but she can 
 of course have no better claim than E. Shea had through King's con- 
 veyance to him dated 35th June, 1893, but not recorded until 38th 
 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 way improved if a second Jury should happen to find a ver- 
 dict to the effect that King did not locate the Cariboo on 9th June, 
 1893, but several days afterwards, that is to say on some day subse- 
 quent to the day on which the Eambler 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. 
 
94 MARTIN'S MINING CASES. LvoL. 
 
 1896. 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 
 Full Court, been deliberate, not only from the great delay in recording it, but 
 McCrright.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 qiiite 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 Kambler, though I think erroneously, for they deal with the sub- 
 ject 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 repeti- 
 tion, 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 Eeports, 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 dif- 
 ferent, 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. BusMl (1803), 1 Sch. & Lefroy, 90; 9 E. R. 21, that, the 
 registry of deeds under the Irish Land Registry Act was not notice, 
 and Lord Eedesdale's reasons are given at page 23 of the Revised 
 Reports. Now I am inclined to think that the question of whether - 
 mining records are notice should be determined by similar considera- 
 tions. The case of Bushell v. Bushell has always I believe been con- 
 sidered to have been correctly decided, see the notes to Le Neve v. Le 
 Neve (1747), 2 White & Tudor, Ed. 1886, 72, and I gather Lord' 
 Redesdale's reasons have been generally followed. 
 
I.] ATKINS V. COY. 95. 
 
 I had written the above judgment under the impression that there ji*''*^;, 
 was no question as to the accuracy of the records of the Cariboo claim, — '. 
 but on perusal of the Judge's notes they do not appear to have been t^ui-L^uitr. 
 admitted though a part of the case stated. I think the plaintiff is not Walkem, J.. 
 entitled to a new trial on the question of the date of the location of 
 the Cariboo, but on the question of title, as dependent upon the records 
 of the respective claims, a question which was not argued at the trial, 
 and which, we think, in view of sec. 50 of the Mineral Act, 1891, is 
 one which governs the case, a new trial should take place if either 
 party Avishes to discuss the question of title as shewn on the registry. 
 As the Cariboo records are prima facie correct, I think that if they are 
 not successfully challenged by the plaintiffs within two months, sub- 
 ject to a Judge's order for extension of time, by means of a new trial, 
 that judgment should be entered for the defendants, Coy, ■ Davenport 
 and Wolfard. ' 
 
 As regards costs, I think the costs of the first trial should abide 
 the event of the second, if it shall take place; if not the defendants' 
 costs, and the costs of this appeal, should be the defendants' costs in 
 the cause. 
 
 WalkeMj J., concurred. 
 
 Deake, J. : — This is an appeal by defendants from the decision of' 
 County Court Judge Spinks, who held that priority of record gave 
 priority of title. The Mineral Act, 1891, by sec. 19, compels a miner' 
 locating a claim to record the same with the proper officer within 
 fifteen days, or such further time as the distance requires ; if he fails 
 to make 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. 3 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 substi- 
 tuted, 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 exist- 
 ing 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- 
 validity of the record and compliance with the provisions of the Act. 
 
M MARTIN'S MINING CASES. [vol. 
 
 Ma^^') ^® ^^^ ^y ^^^- ^^ °^ ^^^ Mineral Act, 1891, that a free miner, 
 
 — ' ' during the existence of his certificate, shall have the right to enter, 
 
 J'ut.lCoukt. locate, prospect and mine upon any waste lands of the Crown, except- 
 
 Dhake, J. ing 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 
 
 one else, after a proper location has been made, can enter on the same 
 
 ground until the period has elapsed for recording. 
 
 Therefore the second location of the Eambler, as far as it in- 
 fringes on the defendants' ground, was not a valid record, because the 
 ground recorded was not then open to location; this is of course 
 presuming that the dates of location were true. 
 
 The first lawful location .has a temporary title, liable to be dis- 
 placed by a failure to record or by non-compliance with other provi- 
 sions of the Act, such as non-possession of a miner's licence, or for 
 .not placing the post^ as required by the Act, &c. 
 
 In this case the Cariboo was alleged to be located on 9th June and 
 recorded June 15th. The Eambler located June 10th and recorded 
 June 13th. If the location of the Cariboo is right, they were in time 
 with their record and the Eambler had no right to locate on the 
 Cariboo ground. 
 
 In my opinion the judgment of the County Court Judge adjudging 
 that the Eambler obtained a priority by recording first, both records 
 being made within the statutory time, is wrong, and the appeal should 
 be allowed. 
 
 It is true that the parties agreed to leave only one question to 
 the jury, 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 been 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 ease 
 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 before 
 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. By that sec- 
 
I.] ATKINS V. COY. 97, 
 
 tion this Court can hear de novo, order a new trial or enter up a new ^^^g 
 judgment for one or other of the litigants. — ' 
 
 It would be impossible on the materials before us to hear de novo Full Court. 
 or to enter up judgment for either party. The alfidavits brought Drake, J. 
 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 ma- 
 terially 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; communi- 
 cation 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 fights. This question, and it is an im- 
 portant 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 locv 
 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 Shop- 
 pard Ry. Co. v. Jerry, post. pp. 161, 187 ; Stussi v. Brown, post, p. 195 ; 
 Alexander V. Heath, post,'p. Z^\ UTiA Grutohfield 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 y. Col- 
 lom, post, p. 487; and see note to that case for list of decisions on objects in 
 location. 
 
 As to policy of Mineral Acts : see pp. 71, 189, 187, 194, 236, 307, 333, 336, 
 414, 446. 
 
98 
 
 MARTIN'S MINING CASES. 
 
 [vox,. 
 
 1896. 
 July 28. 
 
 Privy 
 
 COUNOII,*. 
 
 Statement. 
 
 Judgment 
 
 below, 
 Dhake, J. 
 
 BAINBKIDGE V. BSQUIMALT AND NaNAIMO EY. Co. 
 (1896 A. C. 561; 4 B. C. 181). 
 
 Pi'eciOug M'eials—Free Miner's Rights — Esguimali and Nanaimo Railwav 
 Belt — " Lands " — " Mimes and Minerals " Act, Ift Vict. eft. Ih. sec. S — 
 Placer Mining Act, 1891 — Land Act, G, 8. B. V. sec. 95. 
 
 By sec. 3 of the British Columbia Act (47 Vict. ch. 14), land was granted; 
 to the Dominion Government, the appellant comi>any'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 admin- 
 ister the precious metals in the lands assigned. 
 
 Decision of Full Court of British Columbia aflBrmcd. 
 
 Appeal by the Bsquimalt and Nanaimo Kailway Company from 
 an order of the Full Court (Aug. 7, 1895), afi&rming an order of 
 DrakEj J. (Oct. 17, 1894), whereby it was adjudged that the re- 
 spondent was entitled to enter on and mine the lands of the appelianls 
 upon eomplying 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 pur- 
 pose 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. 
 
 Dkaeb, J.: — (On the original motion for injunction). This 
 is a motion by the plaintiff to restrain the defendants from inter- 
 fering with the plaintiff in his alleged right to mine for gold in a 
 certain placer claim in Alberni District knowii as Blue Euin 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 Sir Richaed 
 Couch. 
 
I.] BAJNBRIDGE v. BSQUIMALT AND NANAIMO RY. CO. 99 
 
 IsLand, which ineliiided the land in question, to the Crown as repre- 1896. 
 sented by the Dominion Government, to aid in the construction of the ^tJ_ ' 
 Bsquimalt and Nanaimo Eailway, and that on the 21st April, 1888, ^"'7^ 
 the Crown, by deed, granted to the defendants all the lands granted to 
 them by the Provincial Legislature, and claim that by the terms of 
 the deed and Act, they are entitled to all the precious metals in or 
 under the said lands. 
 
 The statute in question was passed to carry out an agreement 
 which had been arrived at between Ihe Dominion and Provincial 
 Grovernments, and was confirmed by a Dominion statute of 47 Vict, 
 ch. 6. 
 
 By the Provincial Act, 37 Vict. eh. 14, sec. 3, the land granted to 
 the Dominion is defined by metes and bounds, and is stated to include 
 all coal, coal oil, ores, stones, clay, marble, slate, mines, minerals and 
 substances whatsoever. The grant from the Crown to the defendants 
 aises the same terms as to the land and its appurtenances as that con- 
 tained 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. 58. Judgment 
 
 Mr. Pooley, Q.C., for the defendant, argues that although gold and db2ke''j 
 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 
 to include both gold and silver, especially as in the then existing and 
 antecedent legislation of the Province the term " mineral " was used 
 to defihe gold and silver. 
 
 By 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 
 minerals, 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 I^ands 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 to which' it is attached, and unless there is any clause incor- 
 
100 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 .Tuly^28 POi'3'ting the Mineral Act in the statute in question in this case, I do 
 — ■ not consider that I can give to the terms used any other meaning than 
 CoDNciL *^®^^ 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 f ouad. 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 ajid mines which 
 would pass under the term of " lands " in ordinary eases 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 
 of miners to enter upon lands for mining purposes is apparently not 
 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 lan- 
 guage 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 of 
 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. 
 
 Appeal tn From this judgment the defendants appealed to the Full Court, 
 
 and the appeal was argued before Crease, McCeeight and Walkem, 
 JJ., on the 10th day of May, 1895. 
 
 Hon. C. E. Pooley, Q.C, for the appellants. 
 
 The Attorney-General (Eberts, Q.C), contra. 
 
 -Judgment 
 
 below, 
 Drake, J. 
 
 Cur. adv. vult. 
 

 .0 
 
 I.] BAINBRIDGB v. BSQUIMALT AND NANAIMO RY. CO. 
 
 \<fi 
 
 August. 7th, 1895. 
 
 Ceease, J. : — This is a test case which puts in issue the exclusive 
 rights of the E. & N. Eailway Company to the precious metals in 
 what is known as the E. & N., or Island Eailway belt. 
 
 Briefly stated, the facts are as follows: — The plaintifE, 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, Galled the Blue Kuin placer claim, 
 within the said belt, was ejected by the defendant company as a tres- 
 passer. 
 
 Thereupon he obtained an injunction against them, which, by con- 
 sent, was turned into a motion for judgment before the Supreme 
 Court. 
 
 Mr. Justice Deake, at the hearing on the 2nd of October, 1894, by 
 his judgment, now before us on appeal, established the f^vo ques- 
 tions raised in the ease in favour of the plaintifE : — 
 
 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 Eailway 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 Eailway 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 legis- 
 lation of B. C. as to private lands, before and at that time, which deals 
 with gold mines, points with- sUflScient clearness to the interpretation, 
 which includes the precious metals in their grant, and claim a decision 
 in their favour. 
 
 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. 
 
 1896. 
 July 28. 
 
 Privy 
 
 COUNOIE. 
 
 Judgment 
 
 below, 
 Crease, J. 
 
102 
 
 MARTIN'S MINING CASES. 
 
 [voi» 
 
 180G. 
 July 28. 
 
 Pkivy 
 Council. 
 
 Judgment 
 
 below, 
 Crease, J. 
 
 Thfi 47 Vict. eh. 14, B. C. (the Act relating to the Island Eailway, 
 the graving dock and the railway lands of British Columbia), and 
 the grant of April 31, 1887, made in pursuance thereof, after granting 
 the lands of the railway belt to the Eailway 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 
 case. 
 
 These words, " mines, minerals and substances," it has been long 
 settled, are not '' precise and apt "' to grant with them a grant of the 
 royal mines of gold and silver. From the earliest time, in an un- 
 broken chain down to the present, nothing less than unmistakeable 
 language conveying the gold and silver is allowed by law to pass these 
 royal mines and metals. The law on the subject in England is the 
 law in British Colimibia, 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 
 pure gold and silver, onlj^ may, by grant of the King, be severed from 
 the Crown, &c., by apt and precise words." 
 
 They also agreed that " the words in the letters patent conveying 
 ' 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 stronglj' — for he says : " That in many cases the 
 construction of law may, for the benefit of the King, he against the 
 expressed letters of the grant ; and, when the King granteth the Manor 
 of Dale, and alf manner of imderwoods, 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- 
 
I.] BAINBRIDGE v. ESQUIMALT AND NANAIMO RY. CO. 
 
 103 
 
 chasers, there being no words in the grant of the Crown expressly 
 granting it. 
 
 Sir James Colville, delivering the judgment of the Court, speak- 
 ing of the rule in the " Mines' Case " I have referred to (1 Plowden 
 ^36), laid down that "it is perfectly clear that ever since that deci- 
 sion 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 
 Council in 1889, The Aitorney-General of British Columbia v. The 
 Attorney-GenerM of Canada, supra, the question raised was whether 
 the grant by the Province of certain public lands to the Dominion — 
 the Canadian Pacific Eailway belt — where the expression " lands " 
 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 
 Columbia. 
 
 With regard to the company's contention that the use and interpre- 
 tation of the words " mines and minerals " in several British Coluipbi* 
 Acts passed before, as well as at the time of the grant, indicated t;he 
 intention of the Crown that the words " all mines and minerals what- 
 soever " 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 Assenibly has Jieen 
 anxious, if only for the sake of the miners themselves, in all their 
 legislation and Crovra grants, whether relating to land or mines, care- 
 
 1896. 
 
 July 28. 
 Pkivt 
 
 CODNOIL. 
 
 Judgment 
 
 below, 
 Cbease, J. 
 
104 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1896. 
 July 28. 
 
 PRivr 
 Council. 
 
 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 Eailway 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 
 eifect 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. 
 
 Judgment 
 
 below, 
 
 McC HEIGHT,.! 
 
 McCeeight, J. : — The law seems to be so thoroughly settled to the 
 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 Yictoria, 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 
 Keports 243, Davis 57b, Lyttleton's Eeports 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 
 
!•] 
 
 BAINBRIDGB v. BSQUIMALT AND NANAIMO RY. CO. 
 
 105 
 
 whether upon the sales of waste lands of the Crown, etc., the gold 
 that might be fonnd in such lands passed to the purchasers, there 
 being no words in the grant from the Crown expressly granting it. 
 NoWj 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 posi- 
 tion 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 Colurnbid'y. 
 Attorney-General of Canada, supra. These authorities seem to me to 
 leave no doubt that under 47 Viet. eh. 14, sec. 3, B. C, the words 
 "including all coal, 'coal oil, ores, stones, clay, marble, slate, milies, 
 minerals, and substances whatsoever therein, thereupon and there- 
 under," 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 
 ViodUey v. Attorney-General of Victoria, "it is a regular principle of 
 the construction of statutes that the prerogative rights 'of the Crown 
 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 Crovra. 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 ba,se, ejxcepting coal," &c., 
 and the same expression is to be found in the form of Crown grantj. 
 page 39. These Acts were passed during the same session as that in 
 which the Act relating to the Island Eailway 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>a,iiy way 
 to affect the prerogatives of the Crown in reference to precious metals. 
 Not merely do these contemporaneous Acts of the Province shew this. 
 
 1896. 
 July 28. 
 
 Privy 
 
 OODNOIL. 
 
 Juclgment 
 below, 
 
 MeCBEIGHT.J. 
 
i06 
 
 MARTIN'S MINING CASES. 
 
 [vo^. 
 
 1896. 
 July 28. 
 
 Pbivy 
 ■Council. 
 
 but antecedent legislation is in tlie same direction. See the forin 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 an4 
 search therein for precious metals. 
 
 For these reasons I thinli the judgment of Mr. Justice Draka is 
 correct, and the appeal should be dismissed with costs. 
 
 •Judgment 
 
 below, 
 
 "Walkem, J. 
 
 Walkem, J. : — By sec. 3, ch. 14, of the statutes of 1884, the Pro- 
 vincial Legislature "granted" (I am quoting the words) "to the 
 Dominion Government for the purpose of constructing, and to aid ii^ 
 the construction of, a railway between Esquimalt and Nanainio, anfl 
 in trust to be appropriated as they may deem, advisable ... all that 
 piece or parcel of land situate in Vancouver Island, and described a,s 
 follows" (here follows the description), "and including all coal, coal 
 oil, ore, stones, clay, marble, slate, mines, minerals and substancjss 
 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 sub- 
 stances to the Esquimalt & Nanaimo Eailway Conipany, the now 
 appellants in this action. Briefly stated, the question we have to deter- 
 mine is whether the words " all mines, minerals and substances what- 
 soever," &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 Com- 
 mittee, 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 prero- 
 gative right of the Crown to gold and silver fojmd 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 certainly 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 pre- 
 cede them, in accordance with the maxim noscitur a sociisj and consjB- 
 quently that meaning cannot be expanded so as to include prerogatiyie 
 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 ainl 
 marble quarries mentioned. 
 
 It seems to mp that the Legislature, by its very act of minutely 
 particularizing the substances mentioned, designedly meant to exe|ii;46 
 the precious metals. Had it been otherwise, the term precious me|t^, 
 
!•] 
 
 BAINBRIDGE v. BSQUIMALT AND NANAIMO RY. CO. 
 
 107 
 
 or 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 re- 
 spectively defined, in substance, as auriferous earth or rock, or lodes 
 or veins containing any minerals excepting coal. ( Sec. 45, Vict. ch. 8 ; 
 46 Yicti ch. 19.) While thus careful to define these words in the 
 general mineral Acts, it has left them to be defined in the present 
 instance according to the well-known rule I have referred to. In ^jij 
 event, there are no apt or precise wqrds in the section to shew that the 
 Legislature intended to part with the prerogative rights of the Crown, 
 and even if that were doubtful, that fact of itself would be in favour 
 of the Province, whom tbe plaintiff, as a " free miner," licensed by the 
 Oovernment to mine for gold, may be said to vicariously represent. 
 In The Attorney-General of British Columbia v. The Attorney- 
 General of Canada^ supra. Lord Watson observes that " gold and 
 silver mines, until they have been aptly severed from the title of thfe 
 Crown and vested in a subject, are not regarded as partis 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 base metals which it contains 
 stands upon a different title from that to which its right to the 
 precious metals must be ascribed." This judgment may, in my 
 humble opinion, be said to strengthen that given in the case of Woolley 
 V. The Attorney-General of Victoria, first cited. The appeal must be 
 ■dismissed with costs. * 
 
 1896. 
 July ■i'i. 
 
 Pkivy 
 Council. 
 
 The appeal was argued before the Judicial Committee of the Privy Arg-ument. 
 Council on July 9i;h, 1896. 
 
 Voz ens-Hardy, Q.C., and W. TI. Clay, for the appellants, contended 
 that the letters patent under the Great Seal of Canada, dated April 
 21, 1887, under which the Crown, after reciting the local Act 47 Vict. 
 ■ch.l4,and the Doininion Act (47 Vict. ch. 6), granted to the appellants 
 the precious metals contained in the lands in suit. According to the 
 true construction of those Acts, a grant of those" lands effected a grant 
 of the gold, silver, and precious metals therein an^ thereunder. The 
 words " mines, piinerals, and substances whatsoever," used in both 
 Acts, are 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 
 ■construction of the word " mine," see " The Gold Mining Ordinance, 
 1867," of British Columbia; Consolidated Acts, 1877, ch. 123, sec. J; 
 •and as to "minerals," see the same Consolidated Acts, ch. 126, sec. 1; 
 ■Compare the "Mineral Act" (1884, ch. 10, sec. 154), (Consolidated 
 Acts, 1888, ch. 82) J a? to both words. The precious metals being yestfid 
 
108 MARTIN'S MINING CASES. [vol. 
 
 Juf^ 28 ^^ ^^^ appellants, the respondent was not entitled to enter upon the land 
 
 — ' for the purpose of locating or working a placer claim either under the 
 CocncIl "Land Act, 1875," (Cons. Acts, 1887,ch.98, sec. 80), or the "Land Act, 
 
 — ' 1884." ch. 16, sec. 75 (Cons. Acts, ch. 66, sec. 95) . Placer claims could 
 oKD ATsoN.^^^ ^g lawfully located or recorded on the appellants' land having re- 
 gard to the terms of their grant without their consent. The word 
 " lands " in the " Placer Mining Act, 1891," sec. 10, does not include 
 lands in which the precious metals have been previously granted away 
 by the Crown. Eef erence was made to the Attorney-General of British 
 Oolufnbia v. Attorney-General of Canada (1889), 14 App. Cas. 295, 
 ante, p. 53; Chitty on Prerogative, p. 294; WoolleyY. Attorney-General 
 of Victoria (1877), 2 App. Cas. 163, 166. 
 
 Bigham^ Q.C., Eberts, Q.C. (Attorney- General of British Colum- 
 bia), and 0. 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 re- 
 spondent'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 thern. 
 
 Gozens-Hardy, Q.C, replied. 
 
 'Cur. adv. vult. 
 
 •July 28th, 1896. 
 
 The judgment of their Lordships was delivered by 
 
 Judgment. 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 Euin 
 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, except upon 
 government reservations for towns, cities, land occupied by any build- 
 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. 109 
 
 missioner for any loss or damage which may be caused by his entry, j^f^o'u 
 and to make full compensation to the occupant or owner of (he lands — 
 for any loss or damage which may be caused by reason of his entry; qq^'^J 
 such compensation, in case of dispute, to be determined by a Court — 
 having jurisdiction in mining disputes, with or without a jury. ^°"° Watson 
 
 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 (3) for an, injunction restraining them from 
 interfering with his working, for gold and other precious metals, the 
 Blue Euin claim, as described in his certificate. The defence to the 
 action is disclosed in an affidavit filed by James Dunsmuir, the presi- 
 dent 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 Van- 
 couver Island, including the land embraced in the respondent's Blue 
 Euin 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 condi- 
 tions contained in sec. 11 of the Placer Mining Act of 1891. On appeal, 
 his judgment has been unanimously aflfirmed by the full Court, con- 
 sisting 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 Govern- 
 ments 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 Eailway 
 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 
 
no MARTIN'S MINING CASES. [VOT.. 
 
 1896. large area of land in Vancouver Island, described by boundaries which 
 "iZ_ ■ it is unnecessary, for the purposes of this appeal, to refer to. 
 
 (Fvs] '^^^ railway has been made in terms of the undertaking, given by 
 
 -1_ ■ the Dominion Government, who delegated its construction to the 
 liORD Watson appellant company. The relative obligations of the Government of 
 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 August 20th, 1883, an agreement was made between the pro- 
 moters of the appellant company and the Government of the Domin- 
 ion, to the effect that the company, when formed, should construct the 
 line now knovm as the Bsquimalt and Nanaimo Eailway. After the 
 incorporation of the company the agreement was sanctioned by the 
 Dominion Act (47 Vic. ch. 6), which also authorized the Governor 
 in Council to grant to the company all the lands situated in Van- 
 couver 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 whatso- 
 ever 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 alia, 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 by 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 
 
 alone was considered in that case, makes no mention of, and does not 
 profess to grant any subject, other than " public lands." The appel- 
 lant company, whilst admitting that apt and precise language is neces- 
 sary in order to alienate the prerogative rights of the CroWn, rely 
 upon the enumeration of minerals which is coupled with the grant of 
 lands in sec. 3 as sufficient to show the intention of the Provincial 
 
I.] BAINBRIDGE v. BSQUIMALT AND NANAIMO RY. CO. jjj. 
 
 Legislature to transfer to the Dominion Government their right to 1896. 
 administer the precious metals in these lands. "Z_ ' 
 
 The words relied on are, " including all coal, coal oil, ores, stones, couscia 
 clay, marble, slate, mines, minerals, and substances whatsoever there- — 
 upon, therein, and thereunder." The only expressions occurring in °''° aison, 
 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 minerals or substances previously enumerated; and it appears to 
 their lordships to be sufficient for the decision of the present case that 
 they may be aptly limited to minerals or substances which are inci- 
 dents of the land, and pass with the freehold. 
 
 Being of the same opinion with the learned Judges in both Courts 
 below, in whose reasoning they concur, their lordships will humbly 
 advise Her Majesty to aflBrm the judgment appealed from. The re- 
 sponde;nt's costs of this appeal must be paid by the appellant com- 
 pany. 
 
 Appeal dismissed with costs. 
 
 Note. — See Attorney-General of British Columbia v. Attorney-Qeneral of 
 Canada, ante, p. 52; Re St. Eugene Mining Co., post, p. 406. 
 
112 
 
 ■MARTIN'S MINING CASES. 
 
 LVOL. 
 
 1896. 
 November 19 
 
 McCeeight.J. 
 
 Bleekie et al.y. Chisholm et al. 
 (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. 
 
 Statement. ADVERSE action tried before McCeeight, J., at Eossland on Sep- 
 tember 29th, 1896. The facts appear in the judgment. 
 
 Argument. A. H. MacNeill and F. M. McLeod, for plaintiffs. 
 Hamilton, for defendants. 
 
 Cur. adv. vult. 
 
 November 19, 1896. 
 
 Judgment. McCreight^ J. : — The question in this case appears to be whether 
 
 the Bed 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. 34 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. Wo doubt by the Min- 
 eral Act, 1891, as already referred to, any free miner having duly 
 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 Oak 
 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 loca- 
 tion of the Blue Birdi, as having failed to satisfy certain statutory re- 
 quirements in the Mineral Acts, and that chiefly referred to and relied 
 
I.] BLBEKIR ET AL V. CHISHOLM et al. 113 
 
 upon by them is that the Blue Bird loGation line is bad, because such 3^^,^^^^^^^ ^9 
 location line is not placed on or as near as possible on the line of the -. — 
 ledge or vein: see B. C. statute, 1894, ch. 32, sec. 4. Before proceed- MoCbbwht.J. 
 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 pre- 
 pared. The objection that .the measurements were trigonometrical 
 measurements, and not actual 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 Fe measured irrespective of inequalities on the surface of the ground 
 ■or trigonometrically :" B. C. Statute, 1894, ch. 33, 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 sur- 
 veyor, admits he made no measurements, and that his diagram is not 
 made to scale. He, moreover, says that the Eed 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 plaintiifi's counsel. The objection 
 that the location line of the Blue Bird was not placed as near as pos- 
 sible on the line of the ledge or vein, seems to meto 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 Ppy 
 mineral claim is that " I started to run my line the same way as the 
 Blue Bird line and blazed a line about 300 feet. I changed my line 
 and ran my location in a westerly direction, instead of southerly be- 
 cause 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 for degrees. 
 This piece of evidence is criticized by counsel for the plaintiff in his 
 argument, but my own note is that Waterhouse says the Discovery 
 Post of the Blue Bird and Back Pay are on. the same ledge — now 
 Bleekir deliberately departed from the Blue Bird location line evi- 
 dently 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 from Ellicott's map, where the deviation 
 of the Blue Bird location line from the line of the led^ge, and Bleekir's 
 location line appears to be between forty-five and ninety degrees. It 
 is said that the buriden.of proof of thedeviation-of tTaeBlueBird line 
 
114, MARTIN'S MINING CASES. [vol. 
 
 1896. and that it was nanecessary, is on the defendants. , Supposing that 
 \em^v . ^Q jjg gQ^ ^^^ J g^j^ ^^^ g^^g ^-j^^^ ^^ .g^^j ^YtiTok the evidence I have re- 
 
 MoObkight.j. f erred to amply satisfies that burden. Bleekir's evidence and conduct 
 shews the deviation, and that there would have been no difiSculty in 
 running thp 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 de- 
 fendants, but of voluntary statements made by the plaintiff and his 
 witnesses, and. having been introduced I must deal with it. Bleekir 
 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 no ledge save that along which 
 Bleekir ran his location line for the Back Pay: see EUicott'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 repre- 
 sents 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. 33 of 1894, must be construed as con- 
 ditions 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 con- 
 strued 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 been issued and admitted in evidence for the Blue Bird 
 prima fade 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 
 
I.] BLEEKIR ET AL T. CHISHOLM et al. 115 
 
 applicable in favour at least of the plaintiffs in this case, but the case ^ ^soe.^ ^^ 
 of Toleman v. Portlury (1870), L. E. 5 Q. B. 295, shews that the °''™_!'' ■■ 
 burden of proof as to where the line of the ledge of the Blue Bird is McCreiqht.J 
 would lie in this case on the plaintiffs (Back Pay), and not on the 
 defendants, owners of the Eed Oak. The plaintiffs (I will suppose) 
 complain that the defendants (Eed 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 Channell, an eminent pleader, ap- 
 plies : " 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 sup- 
 posing the case of questions in separate defences, or one defence rais- 
 ing 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, al- 
 though I think the defendants principally through the plaintiffs' wit- 
 nesses 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 Eed 
 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 Eed 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 WaterJiouse v. Liftchild, post, p. 153 ; Dunlop v. 
 Eaney, post, p. 369. 
 
 As to plefiding 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. GoUom, supra. 
 
116 
 
 MARTIN'S MINING GASES. 
 
 [VOL. 
 
 1896. 
 December 11. 
 
 Full Codkt. 
 
 Statement. 
 
 Arrgument. 
 
 In ke The Coal Mikes Eegulation Amendment Act, 1890. 
 
 (5 B. c. 306) . 
 
 Coal Mines— Chineise — Constitutional Law — Ultra Vires — Bights of Aliens — 
 Interference with Trade and Commerce — B. N. A. Act, sec. 91. 
 
 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 Cbinam^p 
 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 constitutioniU 
 power of the Provincial Legislaturie as being a Regulp.tion of Coal Mines, 
 and is not ultra vires, as an interference with the subject of aliens. 
 
 Befeebnce to the Supxeme Court of British Columbia, sitting as 
 a Full Court, pursuant to the Supreme Court Eeference 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 rei^, ch. 33, intituled An Act to Amend the Coal 
 Mines Eegulation Act ?" 
 
 The question was argued before Walkem, DbAke and McColl, 
 JJ., on 11th December, 1896. 
 
 C. JS. Pooley, Q.C., against tjie Act : The prohibition of Chinamen 
 from working t^e coal mines is ultra vires as an interference with the 
 subjects of trade and commerce and also of aliens, wliich 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 sec. 93, 
 the Provincial Legislature has jurisdiction. If not, the Dominion 
 Pa,rliament has sole control. Parsons y. CUiz.er^'s Ivs- Co. ( 188.1 )» 1 
 Cart. 273, DoUe v. Temporalities Board (1881), lUd. 352. 
 
 This is not a matter of purely local import. The prohibition is 
 further void as discriminating against a class: Beg. v. The Oity of 
 Victoria (1888), 1 B. C. pt. II., p. 331; 22e^. v. Wing CJiung (1885), 
 md. p. 150; Tai Sing v. Maguire (1878), 1 B. C, pt. I., p. 101; Beg-'. 
 V. Taylor (1878), 36 U. C. Q. B. 183. The wholesale prohibitio^i .pf 
 Chimese from working in. coal mines is, in the known circumstances 
 of the industry, a substantial interference with that industry, which 
 is principally dependent upon export, and therefore of trade and com- 
 merce. See Low v. Boutledge (1865), 11 Jur. 939, as to the rights 
 of aliens and their reciprocal obligations, also Doutre, on Constitu- 
 tion of Canada, 186 ; Cooley on Constitutional Limitations, 491 to 493. 
 If a Chinaman owns a coal mine, under this Act he cannot work it 
 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 
 oover the particular subject, then it is dropped into sec. 91. An inter- 
 ference with trade and commerce is necessitated in some degree by 
 
t.] In be coal mines REGULATION A|MENDMBNT ACT. 117 
 
 every law dealing with property, and the regulation of industry, and i89a ^^ 
 yet, if the object and effect of the legislation be to regulate a purely _ _ 
 local industry, it does not become ultra vires because incidentally and FullCoubt. 
 unavoidably it may be said in some degree to affect trade and com- Walkbm), J. 
 meree; see Dobie v. Temporalities Board, supra.^ The presumption is 
 in favour of the validity of the Act : Attorney-General of Ontario v. 
 The 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. Go. v. Par- 
 sons, 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. BeUsle, (1874), L. E. 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 Ganada (1894), A. C. 31; Be Adam (1837), 1 M. 
 P. C. 460. 
 
 H. D. Helmcken, Q.C., on the same side : The legislation is valid 
 as within subrsecs. 10, 13, 16, of sec. 93. 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 LieTltenant-&o*rnor-ih-Council is as to whether the Coal Mines 
 Eegulation Act, 1890, is constitutional or not. 
 
 The Act consists of two short clauses, naimely, the Short Title 
 Clause, and the clause impeached, which is as follows : " Sec. 4 of the 
 Goal Mines Eegulation 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 
 for the purpose of employment in, any mine to which the Act applies> 
 below ground." 
 
 Thus> the employment: underground of any of the pereons specified 
 is prohibited. Part, only, of this prohibition is objected to, viz., that 
 referring to Chinamen. The objection is based on two constitutional 
 grotinds, viz., that the prohibition ttienches upon the Eegulation of 
 Trade and Commerce, and also deals with aliens — ^two matters as- 
 sigiied to the control of the Dominion by sec. 91 of the B. F. A. Act. 
 
118 MARTIN'S MINING CASES. [vol. 
 
 Dece?nberii With respect to the first ground, it is said that the exclusion of 
 
 — Chinamen is not only unjust and oppressive in their ease, but is 
 
 uLL^niiT. equally so in the case of 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. 
 
 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 6 to 19 shew this to 
 be the case, for they place a limit on the women's working hours above 
 ground (where they may be employed), so as to save them from 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 responsibility 
 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 Legis- 
 lature 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 Eules, after they have been posted up in a conspicuous place 
 and approved of, in amended fortoi or otherwise, by the miners, and 
 sanctioned by the Grovernment Inspector. As a matter of notoriety, 
 exceedingly few Chinese labourers understand our language, and this 
 may accouiit for Chinamen beiiig bracketed in Rule 34 with persons 
 " who do not speak English." Special Eules would therefore, be un- 
 intelligible 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. Broohs (1889,), 14 App. 
 
I.] In re coal mines REGULATION A(MENDMENT ACT. 119 
 
 Cas. 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 
 
 other parts of the Act which throw light upon the intention of the rgLLOooKT. 
 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." 
 
 Eule 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. Ad- 
 mitting, 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 (jppressive provisions:" 
 
 The Act in question comes within sub-sees. 13 and 16 of sec. 93 of 
 the B. N". A. Act, by which the Legislature is empowered to " exclu- 
 sively 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 Govern- 
 ment, in which they should all be represented, entrusted with the exclu- 
 sive administration of affairs in which they had a conimon 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 men- 
 tioned 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, i, . ,, - 
 
 The meaning of the term " regulation of trade and commerce " is 
 explained in the Citizens' Insurance Company v. Parsons (1881), 1 
 Gart. at p. 278 (or 5 App. Cas. 98), to be a term which "would 
 
120 MARTIN'S MINING CASES. [voi- 
 
 1896. include political arrangements in regard to trade requiring the sanc- 
 December 11. ^.^^ ^^ Parliamenti regulations of trade in matters of inter-provincial 
 Full ConsT. concern, and ... a general regulation of trade affecting the 
 Walkem, J. whole Dominion ... but not .. . the power to regulate 
 the contracts of a particular busiuess or trade in any Province so as 
 to conflict or compete with the power over property and civil rights," 
 oi matters of a merely local nature, " assigned to the Provincial Legis- 
 latures." 
 
 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 similax scope in the Province of Quebec. Both Acts restrict 
 the right of selling drugs to persons possessing certain specified quali- 
 fications. To some extent this restriction must neeessaTily, 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 phaxmacy, 
 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 Russell 
 V. The Queen (1882), 7 App. Cas. 839, 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- 
 sesses; . . . 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, " witliin the 
 same limits the legislation of each Province continues to be free from 
 the control of the Dominion and as supreme as it was " before Con- 
 federation, as stated by Lord Watson in the case of the Maritime Bank 
 of Canada, supra. 
 
 The case of the Quebec Pharmaby Act is an instance, as I hate 
 pointed out, of Provincial legislation trenching upon a subject assigned 
 to the Dominion; and Valin v. Langlois (1879), 1 Cart, at p. 177, is' 
 an instance of the converse, that is to say, of Dominion legislation 
 trenching upon a matter reserved to the Provinces, viz., procedure in 
 cifil matters in our- Courts. Numerous instances are given in that 
 case; in the judgment of Bitchie, C. J., of Dominion legislation on 
 subjects within itS' control, in which rules of civil procedure are en- 
 
I.], In be coal mines REGULATION A|MENDMBNT ACT. 121 
 
 acted; to meet the exigencies of the case. The legislation as to the ^^^J^f^^ ^^ 
 Canadian Pacific Eflilway, which, as an inter-provincial line, is under — 
 the jurisdiction of the Dpminion Parliament, includes a system of FullGouet. 
 civil procedure which is to apply throughout the several Provinces of walkbm, J. 
 the, Dominion in any litigation which the Eailwa,y Company may be 
 involved in. The principle upon which these encroachments of juris- 
 diction 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-Gen- 
 eral of the Dominion (1894), A. C. 193, 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), 13 App. Cas. 575; L'Union St. 
 Jacques de Montreal v. Belisle (1874), L. E. 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. 
 W(lles (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, 93, 
 and if so, whether the Court is compelled by sec. 91, or other sec- 
 tions, to cut down the full meaning of sec. 93 so that it shall not 
 include the subject of the impugned Act': 
 
 " (5) Subjects which in one aspect fall within sec. 93, 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 ex- 
 pedient, have excluded any particular class of British subjects from 
 working in the mines, — for instance, non-resideiits 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 canncrt affect this ques- 
 tion, inasmuch as it is impossible* to conceive that the status of a 
 Chinaman in any of the British possessions has bSen placed by it on 
 a higher plane than that occupied by a British subject. 
 
122 MARTIN'S MINING CASES. [vol 
 
 December 11 ^^® Dominion Naturalization Act, ch. 113, Eev. Stat. Can., is the 
 — ■ only authority we have before us with respect to aliens ; and in sec. 3 
 
 FnLLCouRT. it states that an alien may acquire and hold real and personal prop- 
 Dbakk, 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 
 ofiBce, 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 prop- 
 erty 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 Pro- 
 vince they are prohibited from acquiring Crown 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 Eitchie, C.J., observes in Valin v. Langlois, this class of 
 legislation is valuable as being evidence of the opinion of the Legis- 
 lature 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 com- 
 petence of the Legislature. 
 
 Deake^ 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. 
 
 Snd. 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 regu- 
 lating the manner in which coal mines are to be worked, in the interest 
 
i.] In re coal MINES REGULATION AtMENDMENT ACT. 123 
 
 of the employees and for their protection, as the occupation of miner p^^^^^^;^ ^^ 
 is one of danger and risk. — 
 
 The first portion of the Act is the one with which we are concerned, ^vll^vrt. 
 Section 3 prohibits the employment of boys under twelve years of age Drake, J. 
 in or aboiit 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 com- 
 merce, 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 g,pplicable 
 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 are as able and 
 as well fitted to work a mine, below ground, as men of any other 
 nationality, liie 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 em- 
 ployer 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 iipon 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, Eevised 
 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 sub- 
 jects; 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. 
 
 [VOL. 
 
 1896. 
 December 11. 
 
 Pull Court. 
 
 rights of the Provincial Legislature to deal with the subject as to who 
 shall not be employed underground in a coal mine. 
 
 What the meaning of the language used in the Act is, or how it 
 McGoLL, 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 Associa- 
 tion of Quebec ^{1S9>1), 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 cer- 
 tain 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 aSect 
 trade and commerce, it must be held that this incidental power is in- 
 cluded in the right to deal with the subjects specially placed under 
 their control." Applying these principles to the present case we must 
 come to the conclusion that this is not a case affecting trade and com- 
 merce, 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), Ihid., p. 
 150; and Tai Sing v. Maguire (1898), IB. C. Pt. I. 101, all turned' 
 on the subject of special taxation imposed on the Chinese; and, al- 
 though, incidentally, the powers of the Provincial and Dominion Legis- 
 latures were discussed, the points decided are no guide to the present 
 case. 
 
 The question of how far treaty rights are involved in this legis- 
 lation 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. 
 
 Under the circumstances, I am of the opinion that the question 
 put to us must Be answered in the affirmative. 
 
 McCoLL, J., concurred. 
 
 Act declared constitutional. 
 
 Note. — But see Bryderi v. Union Colliery Co., post, p. 337. 
 And as to enforcing penalty: see Regina v. IJittle, post, p. 220. 
 
I.] Re golden butterfly FRACTION MINERAL CLAIMS. 125 
 
 Ee " Golden Butteeflt Fraction " and " Countess " Mineral igge. 
 
 ^ December 23. 
 
 Claims. 
 
 Walkem, J, 
 (5 B. C. 445). 
 
 Practice — Mineral Act, 1896, sec. 37 — Adverse Action — Time — Extending after 
 
 Lapse. 
 
 The boundaries of the Countess and Golden Butterfly mineral claims over- 
 lapped. The Countess having applied for a certificate of improvements 
 was adversed on the ground of defective location by the Golden But- 
 terfly, 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 sufiicient ground for an order extending the 
 time. 
 
 Motion by Thomas Gilmour, locator of the Golden Butterfly Statement. 
 Eraction 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 Be Good Friday (1S9G), Argument. 
 4 B. C. 496, ante, p. 84. 
 
 G. H. Barpard, contra: The applicant made a mistake as to the law 
 in thinking that the action already instituted would be sufficient. As 
 secretary of tbe 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 Pad^ington (1880), 5 Q. B. D. 
 36,8. 
 
 Walkem, J. : — ^I will give leave to commence actiop., costs of the judgment, 
 application to be paid forthwith. 
 
 "^ Motion granted. 
 
 Note. — lit is erroneously stated in the marginal note to the report in 5 B. 
 <j. 4*5, that this motion was " in chaflijjers." 
 Si^ note to Re Good Friday, supra. 
 
126 MARTIN'S MINING CASES. [vol. 
 
 1897. CoEBiN V. Lookout Ming. & Millg. Co. (Foeeign). 
 
 February 6. 
 Full Court. (5 B. C. 281). 
 
 Jury in Adverse Action — Ejeptment — 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. 
 DeclsloB of McCbeight, J., affirmed. 
 Per McCbeight, J. : — The right to a jury under sec. 150 of the Mineral Act, 
 
 1896, is restricted to the County Courts. 
 
 Statement. APPEAL from a judgment of McCkeight^ J., dismissing an appli- 
 
 cation by the defendants for a trial by jury. The application was 
 argued on 23rd December, 1896. The facts fully appear from the 
 judgments. 
 
 Argument. ]f . j_ Taylor, for the application. 
 
 E. V. Bodwell, contra. 
 
 Judgment 
 below, McCkeight. J. : — This is an action in the Supreme Court by the 
 
 ' plaintiff to 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 considera- 
 tion I think the group of sections commencing with sec. 144 and in- 
 cluding sec. 150 deals only with County Courts, and according to the 
 law laid down in Hammersmith B. R. Go'y v. Brand (1868), L. E. 4 
 H. L. 171, the headings of different portions of a statute are to be re- 
 ferred 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 see. 150 the words " Judge 
 of the Supreme or County Court, as the ease 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 
 
 McOreighTj.J. 
 
!■] 
 
 CORBIN V. LOOKOUT MINING AND MILLING CO. 
 
 12T 
 
 prior to the Act of 189.6 this application for a jury would have been -p^^^J' g 
 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 Fdi-l Coukt.. 
 cases, that we should expect explicit language would have been used. Davie, c.j. 
 
 I think the right to trial by jury in mining cases 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 case. 
 
 Application refused. 
 
 From this judgment the defendants appealed to the full Court on Appeal, 
 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 February, 1897. 
 
 W. J. Taylor, for the appeal. Argument.. 
 
 E. V. Bodwell, contra. 
 
 Davie, C.J. : — This is an action to enforce an adverse claim. The J™g'"'«''- 
 plaintifE 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 
 right and illegal and void and that the title thereto be forever vested 
 in the plaintiff and (3) 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 jurisdic- 
 tion to make a declaration of title, or a judicial declaration of any 
 kind, was the Court of Equity. The Courts of Common Law exer- 
 cised 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 state- 
 ment 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 Clarlc v. Eaney, post, p. 281. 
 
128 MARTIN'S MINING CASES. [voc. 
 
 1897. by a jury. This is not such a case. It presents questions which before 
 
 e ruary . ^^^ Judicature Acts must have been tried without a jury. The Eng- 
 
 FuLL CoDRT. jigjj jjy^g ^2'^ provides that causes or mattefs assigned to the Chancery 
 
 Drake, J. Division shall be tried by a Judge, unless the Court or a Judge shall 
 
 MoCoLL J. otherwise order. The words " or a Judge shall otherwise order " are 
 
 left out of our rules. 
 
 The British Columbia Eule 330 leaves no discretion. I am there- 
 fore of opinion that this appeal should be dismissed. 
 
 DkakEj 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 to 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. 
 
 McCoLLj J.: — I concur. 
 
 Appeal dismissed. 
 
 Note. — ^A more extended inquiry into this question will be found in Iron 
 Mask V. Centre Star, post, p. 300. 
 
J.] WEBB V. MONTGOMERY. 129 
 
 Webb v. Montgomeet. ' , '^^7-, 
 
 March 1. 
 (5 3. C. 323). FuLrCouRT. 
 
 Sale of Mineral Claim — Contract — Instalment — Time — Consideration — Accord 
 
 and Satisfaction. 
 
 An agreement for the sate of mineral claims provided for payment by instal- 
 ments and contained a proviso that " failure to make any of the above pay- 
 ments to render this agreement void as to all parties thereto, and the said 
 (vendefes) can quit at any time without being liable for any further pay- 
 ments 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., overruled. 
 
 Appeal from a judgment of Walkem, J., dismissing the action, 
 which was to recover $3,000.00, being $2,000.00, balance of second Statement. 
 instalment of $3,000.00, and a third instalment of $3,000.00 of pur- 
 chase 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 Septem- 
 ber 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 agi'ee 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 
 ($666.67), and on Septemlber 15th, 1895, the further and final sum of nine 
 hundred and thirty-three dollars and thirty-four cents ($933.34), making in all 
 
 M.M.C. g 
 
130 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1897. two thousand dollars to be paid to the said King ; a failure to make any of the 
 
 March 1. above payments to render this agreement void as to all parties thereto, and 
 
 ~- said second parties can quit at any time without being liable for any further 
 
 iULLCouRT. payments thereunder from such time on. 
 
 MoGreiqht.J. The said first parties shall at and upon the signing of this agreement execute 
 a good and suflScient 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 ex- 
 tended period, which was also the day before that fixed for the pay- 
 ment of the third instalment, the defendants notified the plaintiffs 
 that they had quit work and abandoned the option. The appeal was 
 argued before McCkeight^Deake and Mo Coll, J J., on 8th Decem- 
 ber, 1896. 
 
 Argument. Chos. Wilson, Q.C., and R. M. Macdonald, for the plaintiffs 
 
 (appellants). 
 
 E. P. Davis, Q.C, for the defendants (respondents). 
 
 Cur. adv. vult. 
 
 March 1st, 1897. 
 
 Judgment. MoCreight, 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 I5th March, 1895, was without consideration and 
 a mere voluntary indulgence; see the ease cited by Drake, J. There 
 was no blading 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. 131 
 
 said second parties can quit at any time without being liable for any. jj^^^t^ 
 
 further payments thepeimder from such time on." • — 
 
 f ULL Court 
 But though the defendants cannot rely on this provision as exempt- — 
 
 ing them from payment of the $3,000.00, I think they can rely on it ^^^'^^' ^■ 
 
 as excusing payment of the $6,000.00. 
 
 I thinic 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 Clarice v. Brad- 
 laugh (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 to 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 under- 
 stand that the judgment of the learned trial Judge as to them is com- 
 plained of. I believe Mr. Justice McColl also agrees in the decision 
 of Mr. Justice Drake, though he has not seen either his judgraeat 
 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 Eobert 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 cer- 
 tain 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 pur- 
 chasers, after having proved the mining claims, were to be able to with- 
 draw 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 with- 
 drawal. 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 
 & McKiimon. The plaintiffs claim payment of all monies due under 
 the agreement and an account of all ore mined by the defendants. 
 
132 MARTIN'S MINING CASES. [vol.. 
 
 Marbh 1 From the evidence it appears that the defendants paid the $600.00 
 
 — ■ and entered on tlie mine and expended considerable sums of money in 
 FullCoukt. testing the mine, some ore was got out and sold, but the defendants 
 Dbake, J. alleged that the proceeds did not recoup them their outlay in opening 
 up the works. On 15th 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 dis- 
 tinct 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 $3,000.00 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 volun- 
 tary indulgence and in law the plaintiffs could have demanded the 
 whole sum on 16th September, 1894: McManus v. Barh (1870), L. K. 
 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 shew 
 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 re- 
 fused, they told the firemen to pack up everjfthing, 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 express.ed or implied, 
 affecting these gentlemen, and although a good deal of evidence was 
 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 any 
 ore sold shall be applied in payment of the instalments as they be- 
 come "due under the agreement. If such payments were to be made 
 
I-] WKBB V. MONTGOMERY, 133 
 
 through Hunter and MeKinnon, they were not parties to the agree- ^/^%\ 
 ment and undertook no duty to the plaintiffs, and there was no evid- — 
 ence that any money had come into their hands for the plaintiff. I I'''I'I|_Ooukt. 
 therefore think the action was rightly dismissed against them. MoColl, J. 
 
 In my opinion the judgment of the Court below should be varied 
 and judgment for $3,000.00 entered for the plaintiffs against the de- 
 fendants Montgomery & Mann, George W. Hughes and Eobert 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 company, out 
 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. Sprout, post, p. 481. 
 
134 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1897. 
 March 1. 
 
 Drake, J. 
 
 Statement. 
 
 Argument. 
 
 Pellent et Al. V. Almouee ET AL. 
 Pellent et al. V. Botee et al. 
 
 Location, Invalidity of — Post — Abandonment — He-location — Overlapping — 
 Res Judicata- — Mineral Act, 1891, and Amendments. 
 
 Failure to put up legal posts as required by the Mineral Act, 1891, and Amend- 
 nujnts invalidates a location. 
 
 It is necessary to record the abandonment of an invalid location and obtain 
 permission of the Gold Commissioner before re-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 stenior location. 
 
 When the titles to conflicting claims have been investigated and determined in 
 the County Court mining jurisdiction, the same question cannot be raised 
 between the same parties or their successors in title in the taupreme Court. 
 
 Advebse actions tried at Vancouver on April 29th and 30th, 1896, 
 by Deai^e, 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. Almouee. 
 
 Judgment. Deake, 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 
 Septenaber, 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 
 claim, and the plaintiffs on the 10th of December filed the usual 
 affidavit advertising the claim. The defendants allege that on the 18th 
 of April, 1895, T. F. Trask located, and on the 32nd of April recorded, 
 the Green Mountain mineral claim, which covers a considerable por- 
 tion of the same ground as subsequently located and recorded by the 
 Defender claim. It was admitted that the Defender claim was law- 
 fully posted, and there' was no objection on the ground that the pro- 
 visions 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. 
 I^wry is the owner of all Trask and Almoure's rights both in the 
 
Dbakk, J. 
 
 I.] PBLLENT ET AL. V. ALMOURE et al. 135 
 
 Green Moiintain and Defender claims. The defendants counter- nyj^^^K ^ 
 claimed to have the Anaconda location and record declared void. To 
 this the plaintiffs replied that the Defender claim was not lawfully 
 located. A great deal of evidence was directed to the posting of the 
 Green Mountain claim, which has but little bearing on the issue be- 
 fore 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 loca- 
 tion. 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 prede- 
 cessors in title to the present defendants. The evidence adduced satis- 
 fied 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. 39 of the Mineral Act, 1891, as 
 amended by sec. 11 of eh. 33 of the Act of 1893, 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, unress 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 biurne 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 per- 
 mission from the Gold Commissioner for that purpose. It may be con- 
 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 forfeit- 
 ed the claim because he had, in locating the claim, failed to comply 
 with the requirements of the Act. I think this section is clearly appli- 
 cable to Trask, and his location of the Defender claim was never valid. 
 
 The result of my judgment then is that the plaintiffs are not en- 
 titled to the declaration they ask for, as their location of the Anaconda 
 claim was invalid for want of proper legal posts. The defendants are 
 
196 MARTIN'S MINING OASES. [vol. 
 
 MaroU'l.- ^'^^ entitled to have the Green Mountain declared a valid location, as 
 - — that q^estiQn was disposed pf by judgment of the County Court, 
 ^^^' ' neither can they rely on the Defender record, as they have not pro- 
 duced any licence from the Gold Commissioner authorizing the re- 
 location. The plaintiffs will have to pay the costs of the action and 
 the counter-claim. 
 
 Pellent v. Boyek. 
 
 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 in the Anaconda, and in consequence of a notice 
 of application for a Crown grant, published 33nd 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 estab- 
 lish 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 ap- 
 pointed W. Frank O'Eeilly to examine those posts and report. His 
 evidence was that the No. 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. Under., 
 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. Collom, post, p. 487; and see in note thereto list of cases on defects in 
 location. 
 
 As to necessity to record abandonment before re-location : see Creelman 
 V. Clarke, post, p. 228, where a contrary view is taken. 
 
 As to abandonment generally: see Williams Creek, cC-c, Co. v. Synon, ante, 
 p. 1. 
 
 As to res judicata : see Dunlop v. Baney, post, p. 390 ; Fry v. Botsford, post, 
 p. 520. 
 
i-l KINNEY V. HARRIS. 137 
 
 Kinney V. Harris. ^^^^^^^ 
 
 (5B. C. 229). FciL Court. 
 
 PrQctice — Appeal — IHme — Extending — Abandonment — Form of Case on Appeal 
 —C. 8. B. C. 1888, eh. 82, see. 29. 
 
 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 dpwn 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. 
 
 Appeal by the defendants from the judgment of Spinks, Co.J., Statement. 
 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 
 niineral 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 36th October, 1893, 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 
 ISth May, 1893, wljich 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 Full Court, at the next 
 sittings of said full Court." The defend§,nts 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 
 the 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 
 (l^ink 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 
 riiay be in the form of a case settled and signed by the parties or their soli- 
 citors; 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. 
 
138 MARTIN'S MINING GASES. [vol. 
 
 Mlroh4. ^°^^^ °^ the learned trial Judge until December, 1896, and being un- 
 
 ■ — able therefore to make up appeal books did not set the appeal down 
 
 iuLi. Court. ^^^ ^^^ j^j^ ^^^^^_ ^^ ^^^^ 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 Eegistrar of the Court when asked refusing to set down the 
 appeal without same. It appeared from the affidavits filed by the de- 
 fendants 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. 
 
 Argument. Rohert Cossidy, 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 except? 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. Eule 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 war- 
 rant an extension of the time to bring on the appeal. 
 
 Rolert Gassidty, in reply : Abandonment is a question of inten- 
 tion, 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. 
 
I.] KINNEY V. HARRIS. I39 
 
 March 4th, 1897. 1897. 
 
 March 4. 
 
 The judgment of the Court was delivered by ruLLCouBT. 
 
 MoCoLL^ J. : — The ordinary practice as to the form of bringing MoColl, J. 
 County Court appeals applies to mining cases, which by sec. 29, 
 supra, may be brought by case stated if the parties so desire, but 
 the defendants by not duly setting down the appeal pursuant to 
 their notice, for the July Full Court abandoned that notice and 
 must now apply to the discretion of the Court, which will only be 
 exercised on the strongest grounds. They should have applied to 
 the Court for which they had given their notice, to extend the time 
 whej; they found that they could not procure the Judge's notes. It 
 is to the interest of the litigants and the public that mining cases 
 should be quickly determined, and strdnger grounds are required to 
 procure an extension of time therein than in ordinary eases. Those 
 shewn here are not sufficient. The appeal must be struck out and 
 tne motion dismissed with costs. 
 
 Appeal struck out and motion to 
 
 extend the time dismissed with costs. 
 
 Note. — See Trask v. Pellent, ante, p, 86. 
 
 As to extending time to begin adverse actions see Re Good Friday Claim, 
 ante, p. 84, and note thereto. 
 
 As to extension of time to appeal in ordinary casfes, cf Gettring v. Atkins 
 (1896), 5 B. C. 138; Regina v. Aldous (1897), 5 B. C. 220; Reinard v. Mc- 
 Clusky, 76. 226; Banks v. Woodjcorth (1900), 7 B. C. 385; Sung v. Lung 
 (1901), 8 B. C. 423. 
 
 As to policy of Mineral Acts, see pp. 71, 88, 146, 187, 194, 236, 304, 333, 
 336, 414, 446. 
 
140 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 T,}^^'{: „ EiCHARDS V. Price. 
 
 March 6. 
 Davie, C.J. County Court Mining Jurisdiction — Action — Transfer to Supreme Court. 
 
 IN CHAMBERS 
 
 ' An action pending in a County Court will not be transferred to the Supreme 
 Court unless some peculiar questions of expediency arise. 
 
 Statement. 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. 
 
 Argument. p^Hs (Drake, Jackson & Helmeken), for the application. 
 
 Walls, contra. 
 
 March 6th, 1897. 
 
 Judgment. Davie, C. J. : — Clause 144, stib-sec. 11, Mineral Act, 1896, auth- 
 
 orizes a Judge of the Supreme Court to transfer an action pend- 
 ing 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 comjiany of seven, of whom Mrs. Eichards and him- 
 self are members, and Mrs. Richards has located on her own behalf. 
 It is alleged that in the antecedent relations of the parties P. G. 
 Eichards, the husband of Mrs. Eichards, took advantage of knowledge 
 acquired whilst an oflBcialin 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 Su- 
 preme Court to have Mrs. Eichards, to whom Eichards has transferred 
 the property, declared a trustee of the same, but the writ has not yet 
 been served, and meanwhile Mrs. Eichards 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. 
 Eichards?" 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 
 
I.] RICHARDS V. PRICE. 141 
 
 giveiij which latter question of course will be answered if it turns out 1897. 
 that Eichards was only a trustee of the land, and that the claim is March 6. • 
 equitably the property of the company. On the other hand, it is Davie, C.J. 
 contended for Eichards that the suggestion of Price's staking being [i,, chambebs.] 
 for the company, or indeed that there is or was any company at all, 
 is only an afterthought, so far as the record of his conduct shows 
 (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 summaril}^, 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 ad- 
 judicate upon such claims. No such question of expediency has been 
 shown to arise in this case, and I must, therefore, refuse the applica- 
 tion. 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. 
 
142 
 
 MARTIN'S MINING OASES. 
 
 [VOL. 
 
 1897. 
 March 11. 
 
 Fdll Court. 
 
 Stabement, 
 
 KiLBOUENE V. McGUIGAN. 
 (5B. 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, 1892, sec. U; 189S, sec. 9, sub-sec. (h), 
 and sec. 10; 1894, sec. 0. 
 
 Under the Mineral Act Amendment Act, 1892, sec. 14, the filing of an adverse 
 
 claim in the oflBce 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 totime governing ordinary cases are to be more stringently applied 
 
 in mining cas'es 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 Drake, J., afiirmed. 
 
 Appeal from a judgment of Deake^ J., deliTered on 22nd Feb- 
 ruary, 1897, dismissing a motion by the proposed plaintiffs to extend 
 the time for commencing action to sustain an adverse claim notwitli- 
 standing 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 pro- 
 posed 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 ex- 
 pirati'on 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 Eegistrar 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 Eegistrar to enter the plaint and 
 issue the necessary summons thereon; that, until about July, when 
 
I.] KILBOURNE v. McGLlGAN. 143, 
 
 the Eegistrar informed him the plaiut had not been entered, he be- igg;, 
 lieved that the proceedings had been commenced; but at that time March ii. 
 he was negotiating a settlement with the proposed defendants, dur- Kcll Coukt.. 
 ing which they disclosed to him, by their solicitor, their knowledge 
 of the fact that proceedings had not been commenced; notwithstand- 
 ing which, all but Joseph Boss, husband and business agent of Eva 
 Boss, on 37th October, 1896, agreed to a settlement, which was sub- 
 ject however to the ratification by Boss, who was then in England, 
 but had before leaving expressed his willingness to settle. After Boss' 
 retu.rn 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 Eegistrar to enter the plaint and was convinced that he 
 had done so, and that afterwards, by consent of the proposed defend- 
 ants' 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 Argument- 
 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 see. 
 6 of the Mineral Act, 1894: Kane y. Kaslo (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 [Dkakb, J. : — Yon 
 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, anie, p. 84; Gusach v. L. & N. W. Ry. Co. 
 (1891), 1 Q. B., Lord Esher, at p. 348, . practically overruling Col- 
 lins 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. [Dbake, 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. 31 and 136, 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. ■ Unless-- 
 
144 
 
 MARGIN'S MINING CASES. 
 
 [VOE. 
 
 1897. this is done the proposed defendants' title cannot be impeached, 
 aie^ ■ The applicants might as well have filed their adverse claim) in 
 FulgCoukt. the Land Eegistry 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. E. 2 Q. B. 340, 
 Blackburn, J., at p. 353. As to extendiiig 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 be- 
 fore the expiration thereof: Ex parte Lovering (1874), L. E. 9 Ch., 
 Mellish, L.J., at p. 590; as to mistake, see Be Helsby (1894). 1 •>• 
 B. 742, per Lord Justices Halsbury and Lopes; Trask v. Fellent 
 (1896), 5 B. C. 1, anU, 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 Eecorder; 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, 
 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 Eecorder, 
 the other under the form in section 6, supra, to file it with the Gol3 
 Commissioner.] Cusack v. L. & N. W. By. 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. 
 
 Judgment 
 
 below, 
 Drake, .7. 
 
 February 22nd, 1897. 
 
 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 improve- 
 ments, and that notice follows the form of notice in sec. 6 of thie 
 Mineral Act Amendment Act, 1894, and states that notice of adverse 
 claims must be sent to the Gold Commissioner and action com- 
 menced 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 Eecorder aiid 
 not the Gold Commissioner, and that section was substituted for Form 
 F. to the Act of 1891, where the term " Gold Commissioner " was 
 
I.] KILBOURNB v. MoGUIGAN. 145 
 
 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 oi — 
 Frank H. Kilbourne and William Braden, the claimants, that adverse FdiI' Coubt. 
 claims on behalf of the Ajax and Treasure Vault had been filed in the 
 office of the Gold Commissioner at Nelson previous to 37th 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 Eecorder there, but no notices 
 of such adverse claims were filed at the office of New Denver. 
 
 Elilbourne 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 an action. 
 
 I do not think they have. By sec. 21 of the Mineral Act of 1891, 
 mineral claims are to be recorded in the Mining Eecorder's office 
 within whose district the claim is located; and by sec. 136 all docu- 
 ments affecting claims held as real estate or mining property shall 
 be recorded in the Mining Eecorder's office of the district; and when- 
 ever anything is required to he done at the office of the Gold Com- 
 missioner or Mining Eecorder, it shall be done at the office of the 
 Mining Eecorder of the mining division wherein such claim is situ- Judgment 
 
 fltpd below, 
 
 ^^^^- Drake, J. 
 
 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 Eecorder, 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 ,' 
 notice into giving notice to the Gold Commissioner and not to the 
 Mining Eecorder; but the Act is clear that whether or not notice is 
 given to the Gold Commissioners it must be given to the Mining 
 Eecorder 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 be extended, I have 
 no doubt that the Court could exercise a discretion, but when no 
 proper notice of adverse claim has been given I have no such discre- 
 tion. The motion must be refused with costs. 
 
 Motion dismissed with costs. 
 a.M.c. 10 
 
146 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1897. From this judgment tlie applicants appealed to the FtiU Court, 
 
 Maroh^u. ^^^^^ ^j^^ appeal was argued belore MoCkeight, Walkem and MoColl, 
 PuLtCoTOT. 3S., on 11th March, 1897. 
 
 Argument. 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 suffi- 
 cient. 
 
 Judgment. 
 
 Per Curiam : — We are of opinion that the service is good. 
 
 Argument. ^ ^ McPMUips, for the appellants : We were misled by the form 
 prescribed by the statute. Where the mistake arises from the mis- 
 leading 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 mis- 
 take: Lord Bowen, in McNair v. Audenshaw Co. (1891), 2 Q. B. 
 503; Gusachv. L. & N. W. By. 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 agree- 
 ment of settlement was executed by all the proposed defendants except 
 one. 
 
 Gordon Hunter, contra, was not called on. 
 
 Judgment. Per CuEiAM: — We have already decided in Kinney v. Harris, 
 
 ante, p. 137, that the rules as to time governing ordinary cases are 
 to be more stringently applied to mining cases. It is of the first 
 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 Bop, post, p.' 304. 
 
 See also Be 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. 
 
I.l 
 
 WELLS T. PETTY. 
 
 ]4r 
 
 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 circum- 
 stanetis the defendant was a trustee for the plaintiff and could not set up said 
 statute as a defence against him. 
 
 Per McCreiqht, 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 dismis- 
 sing the action. The facts sufficiently appear from the Judgments. 
 
 The appeal was originally heard before McCreight, Dbake 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. McCeeight^ J., delivered judgment allowing the 
 appeal, Dhake^ 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., McCheight and 
 Drake, JJ. 
 
 E. P. Davis, Q.C., for the appellant. 
 
 IF. 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; Fowhes r. Assurance Association (1863), 3 B. & S. 929; 
 Eindley's Case (l896), 2 Ch. 128; Place v. Alcoch (1866), 4 P. & 
 F. 1074; Robinson v. Mollett (1874), :7 H. of L. 815; Chitty on 
 Contracts, 12th ed. p. 116; Figes v. Cutler (1822), 3 Starkie, 139 ; 
 Cooper V. Hood (1858), 28 L. J. Ch. 212; Pearce v. Watts (1875)". 
 L. E. 20 Eq. 492; Taylor v. Partington (1855), 7 DeG. M. & G. 328; 
 Coornbe v. Carter (1887), 36 Ch. D. 348. 
 
 1897. 
 
 March 25. 
 Full Codht. 
 
 Statement. 
 
 Arprument. 
 
i'DLl COUKT. 
 
 148 MARTIN'S MINING CASES. [vol. 
 
 18U7. 25th March, 1897. 
 
 March 25. 
 
 Davie C.J. : — The learned Judge who tried this case without a 
 jury finds "that the conversation alleged to have taken place as to 
 Davie, C.J. ' float/ and as to its being agreed that the plaintiflE ' should be in on 
 it/ did actually take place." 
 
 This finding was not attacked upon the argument, and so we may 
 fairly assume was right: Colonial Securities Co. v. Massey (1896), 1 
 Q. B. 38. I wish to. say that, having carefully perused the evidence, 
 I think that, the learned trial Judge could have arrived at no other 
 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 indieatedT toi 
 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 pre- 
 sent 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. 503, 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. Pichersgill (1759), 1 E- E. 1, parol evidence 
 "was deemed inadmissible to show that a 'party having agreisd 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 sub- 
 sequent 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 (successfully 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. Bartlett v. Pichersgill, however, 
 is expressly overruled by Rochefoucauld v. Boustead^ which proceeds 
 upon the principle laid down in McCormicJc v. Grogan (1869), 4 H. 
 of L. 97, Rose v. PeterUn (1884), 13 Can. S. C. E. 706 and other 
 cases, that it is a fraud on the part of a person to whom land is con- 
 veyed as a trustee, and who knows it to have been so conveyed, to 
 deny the trust and claim the land, and that consequently, notwith- 
 standing the Statute of Frauds, it is competent for a person claiming' 
 
I.] WELLS V. PETTY. 149 
 
 land conveyed to another, to prove by parol evidence that it was so 1897. 
 conveyed upon trust, and that the grantee knowing the facts, is deny- * '^° ' 
 ing the trust. I can see no reason why, so far as the Statute of Full Coubt. 
 Frauds is concerned, the same principle is not applicable to the loca- davie, C.J. 
 tion 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 Min- 
 eral Act, so far as relates to rights governed by the Mineral Act, super- 
 sede 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 out by McCreight, J., the position of the 
 plaintiff apart from his statutable rights and liabilities as a free 
 miner, would be merely that of a licensee of the Crown, having no 
 title whatever to land, and consequently no interest to be defeated by 
 the Statute of Frauds. A number of witnesses were called at the trial 
 on both sides, to give their opinions as miners and experts as to the 
 meaning and measure of the expression " You will be in on it." Some 
 of these witnesses thought the expression " could only be satisfied with 
 an equal partnership," others again, considered that the expression 
 would be covered by a smaller interest, but all agreed that the words 
 pointed to an interest, to some extent, in the mine. I think, however, 
 that quite independently of the opinion of the witnesses, the Crown 
 is bound to place a construction 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 sides 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 applica- 
 tion of this principle, the case of Robinson v. Anderson (1855), 7 
 DeG-. M. & G. 239, 20 Beav. 98, is in point. There two separate soli- 
 citors 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. 
 
150 MARTIN'S MINING CASES. [vol. 
 
 1897. _ The appellant will be entitled to his costs in the Court below, and of 
 arc^ 0. ^j^g appeal, which will not include the costs of more than one argu- 
 FuLt Court, ment. 
 
 MoCbbight.J. 
 
 McCbeighx, J. : — In this case the alleged agreement is found by 
 the learned trial Judge to be in substance as follows, that the de- 
 fendant said to the plaintifE "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 plaintifE 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 inter- 
 preted 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 re- 
 maixied 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, alid 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 pre- 
 sumption of law was, &c., that the profits were to be equally divided. 
 Knight Bwce, 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 re- 
 mains, 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.] WEI/LS V. PETTY. 151 
 
 Turner, L.J., entirely agreed and said, M'^^^h'2'5 
 
 " 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- B'ntL Oopbt. 
 ment to the contrary is on the defendant." MoCheight J 
 
 In this case the learned trial Judge has found that the defendant has 
 not satisfied this burden. 
 
 Eeference 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 contri- 
 buted 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 judg- 
 ment of Lord Eldon in Peacock v. P&acoch (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 thinlc it is easy to shew that it 
 would have had none. 
 
 The well known case and the elaborate judgment in Wood v. Lead- 
 hitter (1845), 13 M. & W- 838, shews he would have a mere revocable 
 licence, and that upon revocation he would have had no rights what- 
 ever : 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 th<j 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 J^cence 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 in- 
 terests 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 noiie with respect to the Lieutenant-Governor. The defence then . 
 of tlie 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 
 
152 MARTIN'S MINING OASES. [vol. 
 
 1807. _ mineral claim or of any interest therein shall be enforceable unless the 
 
 March^2.5. ^^^^ ^^iq^^ be in Writing signed," &c., &e. But neither these sections 
 
 Full Court, nor the Act are pleaded. It may be proper to observe that it is stated 
 
 DbIIm, J. ill Odger on Pleading at pp. 63 and 63, that " a plaintiff need not 
 
 shew in his statement of claim that the Statute of Frauds has been 
 
 complied with. It is for the defendant to plead that it has not, and 
 
 it will then be for. the plaintiff to prove that it has." The defence of 
 
 the Statute of Frauds seems to be futile, and the Mineral Act of 1891, 
 
 supposing it to be a defence if pleaded, has not been referred to in 
 
 the statement of defence, and the case must be determined on the 
 
 merits which I thinlc are with the plaintiff. It might well be that the 
 
 Statute of Frauds might be satisfied, not sec. 51. 
 
 In my remarks on the first point as to the agreement I forgot to 
 say that though the learned trial Judge says, " there must be mutual- 
 ity " here we have the same kind of mutuality that exists in cases of 
 offers of rewards for the recovery of lost property, &c., where it has 
 never been doubted that there is sufficient miituality. The Mineral 
 Act was referred to in the particulars of a defence subsequently with- 
 drawn, 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 vrith 
 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 Eegistry to that effect within fourteen days. 
 
 Deake^ J., concurred. 
 
 Appeal allowed. 
 
 Note. — As to pleading, see Hogg v. Farrell, ante, 79. 
 
 As to free miner's interest and Statute of Frauds, see Williamn Creek, dc, 
 Co. V. Synon, ante, p. 1 ; Stussi v. Brown, post, p. 195 ; Fero v. Hall, post, p. 
 238 ; Pope V. Cole, p. 257 ; SunsMne, Limited v. Cunningham, post, p. 286 ; Mc- 
 "Nerhanie v. Archibald, post, p. 320 ; McNaught v. Tan Norman, post, p. 516. 
 
 The decision herein on the Statute of Frauds and proof of afiency by parol 
 evidence is supported by the judgment of the Full Court of Manitoba in Arohi- 
 lald V. Goldstein (1883), 1 Man. 8. 
 
I.] 
 
 WATERHOUSB v. LIFTOHILD. 
 
 153 
 
 WaTERHOUSE v. LiETCHILD. 1897. 
 
 April 1. 
 
 (6 B. C. 424.) • JloCoit,, J. 
 
 Mineral Claim — Occupation and Working of — Defective Location — Certificate 
 of Work — Bight of Another to Be-locate — 'Measurements — Evidence — 
 Misleading — Mineral Act, 1896, sec. 28. 
 
 Occupation of a mineral claim ordinarily consists of a valid location and record. 
 Mining ground actually occupied and actively worlied as a mineral claim is not 
 
 open to location. 
 Defects in a location made bona fide in endeavouring to avoid encroaching upon 
 
 other locations, and which do not mislead, are cured by a certificate of work. 
 Where the area of a mineral claim is in dispute the evidenc^i of one- w ho has 
 
 made no measurements is of little if any value. 
 
 Action for a declaration that plaintiif was the owner of the lands " Statement. 
 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 Eossland before McColl, J., on April 1st, 
 1897. The facts appear in the judgment. 
 
 A. H. MacNeill {Armstrong with him), for plaintiff. Argument. 
 
 Hamersley, for defendant. 
 
 McCoLL^ J. : — The Grand Prize mineral claim was recorded on 9th Judgment. 
 June, 1894, by one McDougall. A certificate of work was issued on 
 3rd June, 1895. The defendant on 27th May, 1896, purchased the 
 claim for $4,700. Another certificate of work was issued on 1st 
 June, 1896. 
 
 The plaintiff having ascertained these facts (except the amount 
 of the purchase money) from Mr. Kirkup, the Mining Eecorder, and 
 from searching the records in the Mining Eecorder's office, and while 
 the defendant was in active occupation of, and was actively engaged 
 in working the clailn, as the plaintiff then himself saw, proceeded to 
 locate the ground as another claim by the name of the Buffalo Bill 
 fraction, on 24th July, 1896, and recorded it on thie next following day 
 in his own name. In the affidavit required by sub-see. (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. 
 
154 MARTIN'S MINING CASES. [vOL. 
 
 1897. . The iDlaintiff claims the right to make his location because it is 
 
 ^— ' alleged that the posts of the Grand Prize were situate outside the 
 MoOoLL, J. 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, how- 
 ever, was not then surveyed.' I can place no reliance upon the testi- 
 mony 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 Imow, 
 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 300 feet might well 
 happen. 
 
 I am of opinion that the defects referred to were, in the circum- 
 stances 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 loca- 
 tion of the Buffalo Bill fraction, was not open to location by the plain- 
 tiff, 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. Eeferenee was noti 
 even made to it at the trial. 
 
 I think it clear that the circumstances of this ease 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 ordin- 
 arily 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 sub- 
 stantial 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 
 
I.] WATERHOUSE v. LIFTOHILD. 156 
 
 a claim upon the same ground without entry, and the previous actual a}^^\ 
 occupation of the ground surely entitles the occupant to hold it except .. — ' 
 as against some one having a better title which such other person not McOoll, J. 
 having lifid at the time of entry, manifestly cannot get in these cir- 
 cumstances, without committing a trespass. 1 do not think the Act 
 should be so construed as to permit of the acquisition of a claim in the 
 way contended, for it is not consistent with any general principle of 
 law. It is, 1 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 plaintiffs attempt, (which I cannot help charac- 
 terizing 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, 
 fails, and the action is dismissed with costs. 
 
 Action dismissed with costs. 
 
 Note. — ^As to measurements, see Bleelcir v. GMsTiolm, ante, p. 112. 
 
 As to> misleading, see Manley v. Collom, post, p. 487 ; and as to defects in 
 location, see list of decisions in note to that case. 
 
 As to occup'""'! r-ronnd and breach of peace, Woodbury v. Hudnut, ante, p. 
 31; Sunshine^LiiaUed, \. GunningJiam, post, p. 286. 
 
156 
 
 MAKTIN'S MINING OASES. 
 
 [VOL. 
 
 A pril 15. 
 
 Harbison, 
 Co..]. 
 
 ElGHAEDS V. PkICE. 
 
 (5 B. C. 362.) 
 
 Location — Invalidity — Staking — Post — " Discovery " — Bona fide 
 comply with Act — Mineral Act, ItS'JS, sec. 16 (d). 
 
 Attempt to 
 
 Statt-ment. 
 
 Arffument. 
 
 Judgment. 
 
 A bona fide attempt to comply with the provisions of the Mineral *Vct, 189G, 
 sec. 16 (d), does not merely mean an attempt to locate a claim of size and 
 form as provided in sec. 15, but means an attempt to comply with the formali- 
 ties provided by sec. 16 as to staking ; and a locator who has staked his loca- 
 tion by four corner posts, without No. 1 and No. 2 posts, has not made such 
 an attempt. 
 
 "Discovery" in sec. 16 (d)does not merely meau original discovery; it applies 
 to any locator. 
 
 Action in the County Court of Victoria, mining jurisdiction, by 
 the plaintiff as owner of the Spero mineral claim for possession there- 
 of, and that the record of a claim by the defendant covering the same 
 ground be declared void and ordered to be cancelled. The defendant 
 counter-claimed, alleging that the Spero location and record was 
 illegal, and claiming that the record thereof be cancelled. 
 
 The action was tried at Victoria on 13th ]\Iarch and 1st and 2nd 
 April, 1897, before Harkison, Co. J. 
 
 J. P. Walls, for the plaintiff. 
 
 A. S. Potts (Drake, Jackson & Helmcken), for the defendant. 
 
 Cur. adv. vult. 
 
 April 5th, 1897. 
 
 Hakrison, Co. J. : — The plaintiff in this action claims that she 
 duly and lawfully on 33rd February, 1897, located the Spero frac- 
 tional mineral claim, situate on section 49, Metchosin District, and 
 duly recorded the same, and that the defendant illegally located arid 
 recorded a mineral claim called tlie 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 plain- 
 tiff's record may be declared void and cancelled. 
 
I.] RICHARDS V. PRICE. 15? 
 
 The defendant, a free miner, entered on the plaintiff's lands, sec. 1897. 
 
 49, Metehosin District. He says he started at the Indian Eeserve post ; ^ 
 
 this post, an old survey post, was at the intersection of sees. 45, 46, 49 Habekon, 
 and 50 ; he tacked on this post a paper on which the words following 
 were written : "Last Chance mineral claim, east corner post, running 
 west 260 feet ; Henry Price, Free Miner's Licetice 90805." 
 
 West of this post he cut and squared a tree (a legal post), put on 
 it a paper on which the following words were written: "Last Chance 
 mineral claim, north corner post, running 260 feet east; Henry Price, 
 Free Miner's • Licence 90805." 
 
 He then went along the shore line and near an old mining shaft, 
 which was sunlc on a vein, and which shaft some men were then bail- 
 ing out, and close to which he found rock in place, he placed a post. 
 On this post he caused to be written the following words: "Last 
 Chance mineral claim, west comer post, running north 175 feet ; Henry 
 Price, Free Miner's Licence 90805." 
 
 A mineral claim owned by the defendant and others, called the 
 Garibaldi, adjoins sec. 49. This claim the defendant had assisted in 
 locating and marking out. He tacked on the initial post of the Gari- 
 baldi claim a paper on which the following words were written : " Last 
 Chance mineral claim, south corner post, running 175 feet west from 
 this ; Henry Price, Free Miner's Licence 90805." 
 
 He did not mark any post as a,n initial post or as a discovery post, 
 nor did he number any post as a number 1 or number 2 post, nor did 
 he mark out any location line. 
 
 On 26th January, 1897, he made an affidavit before the Gold Com- 
 missioner, in which, among other things, he swears that he had placed 
 a No. 1 and a ISTo. 2 post and a discovery post, of the legal dimensions, 
 on the said Last Chance fractional mineral claim. That he had writ- 
 ten on No. 1 post the following words : " Henry Price, Free Miner's 
 Certificate No. 90805, Last Chance post No. ]," 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 thatte 
 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- 
 tion of the location line is east and west; the length of the claim is 
 260 feet." The defendant, after getting the record, went on the 
 ground and found a man there named Atkins, who said he was going 
 on -working there. He shewed Atkins his record and subsequently 
 went there again with a hammer and drills, but Atkins would not 
 
158 MARTIN'S MINING CASES. [vol. 
 
 Apri/is. ^^^'^^ ^™ to '^^^^ 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 
 Co.J. ' ^ claim there, nor does it appear that he was a free miner. 
 
 On 23rd February, 1897, the plaintifE's agent, F. G. Eichards, 
 located, and on 24tli 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 sub- 
 section did not apply to this case, but that it was only intended to 
 benefit Discoverers, and the Placer Mining Act shews what the mean- 
 ing 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 Atkins 
 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 generally. 
 
 The Act {vide sees. 13, 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 " Ijocator " are used synony- 
 mously, and the words " Discover " and " Pound " 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 
 
I.] EIOHARDS V. PEICB. ISD* 
 
 to view, or has met with or fallen in with " rock in place " in any of i^^?. 
 the different ways in which rock in place may be discovered or found, ^_ 
 to place a discovery post, &c. The only qualifying word used in con- Hahkison,. 
 nection with "discovered" in sub-sec. (d) is "actually," i.e., in act 
 or in fact, really, in truth, positively. 
 
 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 sec. 16, but see. 16 still 
 remains part of the Act, and there must, I think, still be a iona 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 loca- 
 tion and location line must be definfed 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 Eecorder, 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 dwell- 
 ing on 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 30 clearly shew 
 that the claim must be located in the way I have stated. And I do not 
 think that sub-section (d) in sec. 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 
 
160 MARTIN'S MINING CASES. LvoL. 
 
 1897. not be recorded unless the application shall be accompanied by an 
 ApriUo. affidavit, and sees. 19 and 20 also require information, and particulars 
 Harrison, of what has been done are to be furnished to the Recorder. 
 
 Co.J. rpjjg defendant did not fail to file an affidavit, but in it he swore 
 
 that he had complied with the law, and gave particulars which were 
 false. 
 
 This was not merely a failure to comply or non-observance, but a 
 misfeasance, and one of the conditions of sub-sec. (d), which he claims 
 as the sole support of his record, is that there should be a bona fide 
 attempt to comply with the provisions of the Act, but his record is 
 based, not on a bona fide attempt to comply with, but on a violation 
 of the Act, and must fall. The defendant's location and record are 
 declared void and the record is to be cancelled. Nothing has been 
 advanced against the plaintiffs location or record, except the alleged 
 priority of the location and record of the defendant. The counter 
 claim therefore fails. I therefore give judgment for the plaintiff, on 
 her claim, and for her also on the counter claim, with County Court 
 costs on the higher scale. 
 
 Judgment for plaintiff. 
 
 Note. — As to misleading, see Manley v. Gollom, post, p. 487 ; and as to de- 
 fects in location, see list of decisions in note thereto. 
 
I.] NELSON & FORT SHEPPARD RY. CO. v. JERRY ET AL. 161 
 
 Nelson & Fort Sheppard Ey. Co. t. Jerky et al. ,1897. 
 
 May 3. 
 (5 B. 0. 396.) Full Court. 
 
 Mineral Claim — De facto- — "Rock in Place" — " Valuable Deposit "^Abandon- 
 ment — 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 provi- 
 sion 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 ; 
 " rock in place " is sufficient. 
 
 6. The words, " rock in place," are satisfied by rock in situ, bearing valuable 
 deposits of mineral, although not lying between defined walls, or in a vein or 
 ledge. 
 
 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 of improvements obtained since issue 
 of writ, that issue must be raised on the pleadings. 
 
 Decision of Davee, 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, 189S, 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 
 
 M.M 0. 11 
 
.162 MARTIN'S MINING CASES. [tol. 
 
 1897. prior to the date of the selection of the lands by the railway com- 
 ^^- pany referred to. On Decembef 34th, 1894, the Paris Belle mineral 
 Full Court, 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 expira- 
 tion 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 of 
 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 of 
 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, and 
 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 Eossland and was valuable for townsite purposes. 
 
I.] NELSON & FORT SHBPPARD R¥. 00. v. JERRY et al. 163 
 
 T] 
 1896. 
 
 W. J. Taylor, for the defendants. 
 
 The action was tried before Davie, C.J., January loth and 16th, 1897. 
 
 May 6. 
 
 Full Coubt. 
 E^ V. Bodwell, toi the plaintiffs. Argument. 
 
 Cur. adv. vult. 
 
 May- 30th, 1896. 
 
 Davie, C.J. : — The plaintiff company, incorporated by special Judgment 
 Provincial Act (1891, ch. 58), to construct, and which has constructed, davie^^.J. 
 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 Com- 
 pany. 
 
 The plaintiff's title proceeded upon 55 Vict. (1893), ch. 38, which 
 authorized the Government to grant lands in- the Electoral District of 
 West Kootenay, not exceeding 10,340 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 13th August, 1893, a reserva- 
 tion was made of a tract sixteen miles in width on each side ojf a line 
 running from the north-east corner of Lot 97, Group 1, to the inter- 
 national 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 33rd March, 1893, the plaintiffs 
 filed a plan shewing the projection of alternate blocks, among which 
 was exhibited Block 13, 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 34th September, 1894, and finished on 39th November, 
 1894, and field notes were deposited in the land department on the 
 10th January, 1895. In pursuance of such selection, the Crown, or 
 the 8th March, 1895, granted to the company what is now Imown anri 
 described as sec. 35, township 9a, comprising the former block 13 as 
 
164 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 IW. 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 
 Full Col-et. Subsidy Act declares that the company shall be entitled only to un- 
 occupied 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 pre- 
 emption 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 ISToel 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 Commis- 
 sioner, 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 ten- 
 dered. 
 
 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. Eoberts proved the situation of the claim in block 12, adjoining the 
 town of Eossland 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 
 
 Judgment 
 
 below, 
 
 Davie, C.J. 
 
I.] NELSON & FOHT SHEPPAIID KY. 00. v. JBRBX et al. 165 
 
 Zenith was never properly located, or staked, represented or worked, 1S97. 
 but was abandoned by Noel in 1893, and had consequently lapsed and .^ ' 
 become again waste lands of the Crown. Upon the evidence the plea I'ull Coubt. 
 of abandonment by JN'oel of the Zenith seems clearly established. 
 He located the land in partnership with Joseph Villendre, although 
 he recortled in his own name only. He tells us that three or four 
 months after the location he did some work starting a shaft. The 
 work was of about the value of fifty dollars. His partner was supposed 
 to do his share of the assessment work, but did not do so, and conse- 
 quently he, Jfoel himself, did no more- Noel says, " I remonstrated 
 with him for not doing his part of the assessment work, and he said 
 he did not think he would do his portion ; and when he said he was not 
 going to do his work, I quit. I never did any more assessment work 
 on the Zenith." There is nothing in the evidence at variance with the 
 testimony of Noel, nor anything to shew that any further work was 
 donu^upon that location. 
 
 The Zenith claim, therefore, having been abandoned, I am of 
 opinion that immediately upon abandonment it reverted to and became 
 the property of the Crown, Regina v. Demers (1894), 22 S. C. E. 483, 
 and as such came within the plan filed by the plaintiffs on 23rd March, 
 1893, as part of block 12, which block was afterwards adopted as a judgment 
 division of the land by the Government and conveyed to the plaintiffs beldw^ 
 in one lot by one conveyance by the Government. > ■ • 
 
 It is established upon the evidence that before any other attempt 
 at location of a mineral claim within block 12, the plaintiffs' railway 
 was constructed and the station at Wanita built and rebuilt thereon. 
 The block therefore became lawfully occupied, as to portion of it at 
 least, for other than mining purposes, the evidence shewing that the 
 line was located in 1892 and finished in 1893. The plaintiff company 
 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. E. 724, it was held that " occupied lands •' under the 
 Eailway 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 
 ether words, actual occupation of a part is deemed to be actual occupa- 
 tion of the whole. In Little v. Megquier, 2 Maine, 176, cited with 
 approval in Harris v. Mudie (1882), 7 0. A. E. at p. 429, the Court 
 remarks : " The deed may not convey the legal estate. Still t!he posses- 
 sion of a part of the land described in it . . . may be considered 
 as a possession of the whole, a,nd 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 Bolertson v. Dairy 
 
166 
 
 MARTIN'S MINING OASES. 
 
 [VOL. 
 
 Judgment 
 
 below, 
 Datik, C.J. 
 
 ji897.^ (1885), 11 Ont. 352, P., the owner of certain land, in 1811, sold it 
 — ■ to D., who went into possession and occupied until 1827 or 1828, when 
 Pull Court, he was turned out by the sherifE 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 posses- 
 sion 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 construc- 
 tion of their railway and station, lawfully occupied block 12 for other 
 than mining purposes, and, such being the ease, 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 N'elson & 
 Fort Sheppard grant by sec. 8 of 55 Vict., ch. 38), yet in making 
 entry upon lands already lawfully occupied for other than mining pur- 
 poses, the free miner, previous to entry, shall give adequate security to 
 the satisfaction of the Gold Commissioner for loss or damage, and 
 after entry shall make compensation to the owner or occupant. Com- 
 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 perform- 
 ance 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 in- 
 convenient 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 pre- 
 scribed "—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 Parhdale v. West (1887), 12 App. 
 Cas. 613. In Belk v. Meagher (1881); 104 U. S. 284, Chief Justice 
 ■\Vaite remarks : " The right of location upon the mineral lands of the 
 
I.] NELSON & FORT SHBPPABD RY. OO. v. JERRY et ai. 167 
 
 United States is a privilege granted by Congress, but it can only be ^897.^ 
 exercised within the limits prescribed by the grant." Upon the — ' 
 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. " Eock 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 synonymous with a " vein " or " lode," and, as 
 stated by the witness Kelly, means, I think, a substance confined be- 
 tween some definite walls or boundaries. Where, thesn, 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 ,. j 
 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. ^^^^^' 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 sufficieat 
 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. Eead particularly sees. 10, 14, 30, 
 and especially see. 26, " No free miner shall be entitled to hold, &c., 
 more than one mineral claim on the same vein or lode except by pur- 
 chase," 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 
 
168 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 .1897. 
 May 3. 
 
 Fdll Court. 
 
 Judgment 
 
 below. 
 DavieI C.J. 
 
 demonstrated by requiring that before the miner can locate at all he 
 must file a declaration shewing his discovery of a vein or lode. In 
 other words, he can have nbthing 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 Eevised 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 
 Ibcated," 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. E. page 578, argued in thi 
 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 tlie distinguishing characteristics of a vein or 
 lode, as the location of a vein between well defined boundaries, contain- 
 ing 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. Eep. 785, it is laid down: 
 " The mineral land laws of the United States were enacted for the 
 purposes of securing to the miners upon the public lands the title to 
 mineral discovered by them, and a sufiicient 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. Eep. 540; Harrington v. 
 Chambers (1882), 1 Pac. Eep. at p. 375 ; Erhardt v. Boaro (1884), 113 
 U. S. 527. In Bavis v. WeiUold (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 quan- 
 tity to add to their richness and to justify expenditure for its extrac- 
 tion, and known to be so at the date of the grant ; and Field, J., re- 
 marks : " There are vast tracts of country in the mining states which 
 contain precious metals in small quantities, but not to a sufiicient 
 extent to justify the expense of their exploitation. It is not to siich 
 lands that the term ' mineral,' &e., is applicable," citing Alford v. Bar- 
 num .'(18'5'3), 45 Cal. 482; Merrill v. Bixon, 15 Nev. 401; Cowell v. 
 Lam,mers,, IQ Saw. 2^6, 257; TJ. 8. v- Beed, 12 Saw. 99, 104, and 
 many other cases, shewing t)iat the expression "' mineral lands ' means 
 only lands which are va;luable for mineral purposes, that is, which 
 will pay to work, and pot lands in which you may find ' a trace ' of 
 mineral (as described by some of the witnesses in this case), and somo- 
 
I.] NELSON & FORT SHBPPARD RY. CO. v. JERRY et al. 169 
 
 itimes more, but which do not demonstrate themselves to be worth worJv- j^^^'^ 
 
 ing." As remarked in Alford v. Barnum (1873), 10 Mor. M. C. at —L ' 
 
 p. 423 : " The mere fact that portions of the land contained particles ^''^'-t' Coubt. 
 
 of gold or veins of gold-bearing quartz rock would not necessarily 
 
 impress it with the character of mineral bearing land, &e. 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 
 oited 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 an- 
 other belt of veins that these veins follow a general trend in one 
 direction. Fox instance, the most valuable mines so far discovered 
 and worked, the War Eagle, Josie, Le Eoi 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 mineral 
 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, ' "bel'm" 
 which is similar in character to the material which forms the walls Davie, C.J. 
 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 in- 
 dicate the proximity of a vein. 
 
 Speaking of the Paris Belle, with which he is quite familiar, Mr. 
 Kelly says that the rock iti 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 indicat- 
 ing 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' witnessj 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 
 
170 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1897. 
 May 3. 
 
 Fdll Court. 
 
 Judgment 
 
 below, 
 
 Davjb, C J. 
 
 is merely this, that he found rock with mineral or a trace of mineral 
 in it, which nobody doubts that he did, or that, in fact, anyone could 
 find the same thing to a greater or less extent in the country rock. 
 But that is very far from saying that he found " rock in place '' 
 according to its accurate definition, which means a vein, something 
 between walls. 
 
 Mr. Cronan further tells us that he took samples of this " rock 
 in place " as he calls it — " mineralissed rock " as it at most was — and 
 found it to contain all the way " from a trace up to $3.00 a ton in 
 value." No one doubts this; the same might be said of any of the 
 country rock in the vicinity, and in some cases it would not be sur- 
 prising to find it going as high as $9-50, as another 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 saying that you have 
 found a lode or vein ; something upon, which you could 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 -answers " I think . 
 so;" and there his examination-in-chief leaves him. But upon cross- 
 examination he says he found neither foot wall nor hanging wall; 
 he found what he calls a vein, sunk evidently between two walls, but 
 could not find either of the walls, because the vein is larger than 
 the shaft and sunk in the vein. Asked whether by sinking further 
 he thinks a vein between walls could be found, he says : " That I am 
 not prepared to say ; that is drawing a conclusion that 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 or not, not having 
 examined it. ' Mr. Thompson says this is a prospect, not a mine> 
 and that there are about two thousand prospects located in the dis- 
 trict. He does not undertake to say there is a vein, and can say 
 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 rock — seamed 
 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 
 formation to that described and condemned in the following extract 
 from' Morrison's Mining Eights, p. 106 : " Where the opinione.i 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 min- 
 
I.] NELSON & FOKT SHEPPARD RY. CO. v. JERRY et al. 171 
 
 eralization in such cases, in some of them at lea^t, is caused by in- 1897. 
 filtration of ore from a true vein, or deposit along some plane of ^21 ' 
 cleavage, or along the plane between two formations, or through mere Fnii, Ooukt. 
 mechanical cracks in the rock; and all their mineral is only precipi- 
 tated or crystalized seepage from the lode or deposit above. Such bas- 
 tard veins have just enough resemblance to true veins to be used as 
 .a pretext of title against neighbouring locations on. the legitimate 
 vein. They are generally lacking in walls, continuity, and in the 
 normal uniformity of the true vein, and yet may have slips which 
 .are practically indistinguishable from walls, and have some dis- 
 ■coloured matter and particles of ore, just enough to be dangerously 
 similar to what is of value, only as it 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 (1893, ch. 32, 
 sec. 13; 1894, ch. 33, sec. 5) — of the location of a lode or vein, 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 j . 
 having done so, the matter is now res judicata, under 1893, ch. 33, below, 
 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 per- 
 mitted to be heard in any Court, nor shall the validity of such cer- 
 tificate when issued be impeached on any ground except that of fraud.'' 
 
 This reasoning would be very powerful if the plaintiffs were lay- 
 ing 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 sub- 
 sidy Act. Their ownership of the surface is expressly subject to the 
 right of the free miner to acquire claims in accordance with the pro- 
 visions of the law. The Mineral Act prescribes a procedure to be 
 followed as between rival claimants to mineral ground and the min- 
 €rals 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 ease 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 33rd 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 
 
172 f^ MARTIN'S MINING CASES. [vol. 
 
 1897. 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 
 
 Full Court, 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 mani- 
 festly were not intended to be included by the' Legislature. In 
 Railton v. Wood (1890), 15 App. Gas. 3G6, Lord Field quotes the 
 language of Lord Seibourne in Hill v. East, &c.. Dock Co. (1882), 
 22 Oh. D. 23 : " On principle it is certainly desirable in construing a 
 statute, if it be possible, to a\'oid 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 n,ot, and does not profess to, directly deal." The 
 very summary 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, can- 
 not 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 Statiite 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 
 ' "below"' purpose only — that of exercising the statutable privilege of extracting 
 DAvra, C.J. the precious metal. There is nothing, then, unreasonable in the law 
 which confers the privilege, also exacting vigilance as one of the 
 conditions upon which that privilege shall be enjoyed. Hence it im- 
 poses the obligation of watching for notices (not to be served person- 
 ally 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 ad- 
 verse claims and the bringing of legal proceedings. As before re- 
 marked, 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 propert}', 
 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 de- 
 claration. 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 notiees 
 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 
 Eegina v. Clarence (1888), 22 Q. B. D. 65: "In the construction 
 
I.] NELSON & PORT SHEPPAliD BY. 00. v. JERRY et al. 173 
 
 of a statute, if the apparent logical construction of its language leads 1897. 
 to results which it is impossible to believe that those who framed or "^ 
 those who passed the statute contemplated, and from which one's FullCouut. 
 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. Taj'lor has referred me to the case of Dahl v. Baunheim 
 (1889), 132 U. S. 260, where it was held that when a person applies 
 for 'a placer patent in the manner prescribed by law, ancl 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, judgment 
 The dispute there was as between miners to the precious metals sought below, 
 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 opin- 
 ion: 
 
 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 otthe 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 5^ Vict. ch. 38, the plaintiffs are, 
 as against the defenda,nts, entitled to the exclusive use and possession 
 
 Davie, C.J. 
 
174 
 
 MARTIN'S MINING CASES. 
 
 [vor,. 
 
 1897. 
 May 3. 
 
 Full Codet 
 
 Appeal, 
 
 Argument, 
 
 of the before-mentioned and described hereditaments. The plaintiffs 
 will have judgment for possession of the said Paris Belle locationi 
 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 occordAngly, 
 
 Prom this judgment the defendants appealed to the Full Court, 
 and the appea was argued before McCeeight^ Walkem^ Deakb and 
 McCoLL ,JJ., on the 5th, 6th, 7th, 8th, 9th, 10th and 11th March, 1897. 
 
 W. J. Taylor and Robert Cassidy for the appeal: At and prior 
 to the date of the selection by the railway company /of 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 Derners v. The Queen (1894), 
 22 S. C. E. 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 lociis poenitentiae till the end of the year. The doctrine 
 of abandonment by leaving the claim, &c., apart from express enact- 
 ment, 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 
 Eecorder. If there was an abandonmeW of the claim, it would enure 
 
 Note (a). — " 5. The company shall only be entitled to unoccupied Orotvn 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-emptitn or lease, or as mineral claims, the com- 
 pany 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." 
 
I.] NELSON & FORT SHEPPABD RY. 00. v. JBR/RY et al. ]75 
 
 only to the Crown as landlord: Davis v. C. P. B. (1886), 13 0. A. E. 1897.^ 
 734. The owner of the land has no status to attack the validity of ^^ " ' 
 the mineral claim located thereon for non-performaHce by the miner Full Court. 
 of any of the statutory pre-requisites to his obtaining the mining 
 rights from the Crown. The Legislature did not intend to bring into 
 antagonism settlers claiming under the Land Act or grantees froqi 
 the Crown of lands as lands, and miners claiming mineral rights 
 under the Mineral Acts, or to give either a right of disputing the 
 performance of the pre-requisites to the title of the other, which is a 
 matter entirely for the Crown: Kansas Pacific Railway Company v. 
 Dunmeyer (1884), 113 U. S. 641-3; Hastings and Dakota Railway 
 Company v. Whitney (1889), 133 U. S. 357; Sioux City & Iowa Falls 
 Town Lot and Land Company v. Griffey (1891), 143 U. S. 33. 
 
 Supposing that the plaintiffs had a right to intervene and contest 
 the validity either of the Zenith or Paris Belle claims, they could only 
 do so by adverse claim, as provided by the Mineral Act; Mont Blanc 
 Mining Company v. Dehour (1883), 15 Mor. M. C. 386; Shafer v. 
 Constans (1879), 1 Mor. M. C. 147; Hamilton v. Southern Nevada 
 Mining Company (1887), 15 Mor. M. C. 314 at pp. 318, 319, and 
 they are concluded by the certificate of improvements obtained by the 
 defendants by the efEect of sec. 14, ch. 33, 1893, on all grounds, except 
 fraud, which is not alleged. 
 
 In any case, 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 occupanit or owner 
 of the land, attached to the right of 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 efEect 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. 3), is comprehen- 
 sive, 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), 3 Fova Scotia, 73; McShane v. 
 Kenhle (1896), 44 Pac. Eep. 979; Iron Silver Mining Company v^ 
 Cheesman, et al. (1885), 116 TJ. S. 539; Iron Silver' Company v^ 
 Mike & Starr Company (1891), 143 TJ. S. 404. 
 
176 MARTIN'S MINING CASES. [vot. 
 
 Ma's ^' ^' ■^'"'ff' 'contra: The discovery of a "vein" or "lode" is 
 
 — ' necessary to a valid location. " Eock in place " is not to be substi- 
 FuLL ConiiT. tuted for " vein " or " lode." The whole tenor of the Mineral Acts, 
 shews this : See the Mineral Act, 1891. Sec. 26. " No 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, 33 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 en- 
 titled to receive from the Gold Commissioner a certificate of improve- 
 ments; and see the Placer Mining Act, 1891, sec. S?: " The holder 
 of a placer claim shall have no right to any ' vein ' or ' lode ' as de- 
 fined by the ' Mineral Act, 1891,' &c." By sec. 10 of the Mineral 
 Act Amendment Act, 1893, see. 26 supra was amended, " a free miner 
 shall be entitled to locate and record on separate ' veins or lodes,' 
 &e." 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 ' 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 Com- 
 pany 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 Eights, 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: 
 ^' ' Eock in place ' shall mean all rock in place bearing valuable de- 
 posits of mineral within the meaning of this Act," and see Mineral 
 Act, 1893, see. 3, (c) p. 129 : " No 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. Eep. 784; C. W. Mining Company v. Cham- 
 pion Mining Company (1894), 63 Fed. Eep. 540; DeferiacTc v. 
 Ilawlce (1885), 115 U. S. 404; Davis v. WeiUold (1890), 139 TJ. S. 
 
I.] NELSOIsr & FORT SHEPPAiRD RY. CO. v. JERRY et al. 177 
 
 518, 519, 5S0 and 531; Iron Silver Company v. Mike & Starr Com- IW. 
 pany (1891), 143 U. S. 423; Burke v. McDonald (1890), 33 Pac. Hz' 
 Eep. 49. As to defining words, see Beg. v. Justices, &c. (1838), 7 fnLL Coow. 
 Ad. and El. 491; Reg. v. Pears (1880), 5 Q. B. D. 389; Robinson v. mcCreight.J. 
 Local Board (1883), 8 App. Cas. 798; Maxwell on Statutes, 1896, 
 ed. 425, 453. As to giving the bond under 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 see. 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 : Corpor- 
 ation of Parkdale v. West (1887), 13 A. C. 613. As to abandonment :( 
 See Hardrader v. Carroll (1896), 76 Fed. Eep. 474; Derry v. Boss 
 (1881), 1 Mor. M. C. 6; Davis v. Butter (1856), Hid. 7. It is a ques- 
 tion of intention: Belk v. Meagher (1881), 104 T. 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 min- 
 erals 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^I 
 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; 1893, sec. 2; 1893, sec. 23; 1894, sec. 3; 1895, sees. 
 Sand 6; 1896, sec. 45. 
 
 W. J. Taylor, in reply. 
 
 Cur. adv. vuU. 
 
 May 3rd, 1897. 
 
 McCreight, 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, 1893, and thus in ordinary course 
 M . M . c . li 
 
178 MARTIN'S MINING OASES. [vol. 
 
 ^897. was a good claim untilJune, 1893, under sec. 24 of the Mineral Act, 
 -!L ■ 1891,. and under sec. 34 of the same Act was to "be deemed to be a 
 FuLLConsT. chattel interest equivalent to a lease for one year and thence," &c. ■ 
 McCreisht^j. The learned Chief Justice in his judgment considers that the 
 claim was abandoned in 1893, but sec. 27 prescribes the proper method 
 of abandonment by giving notice in writing of such intention- to 
 abandon to the Mining Eecorder, 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 miner, 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 con- 
 tended 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 thfe 
 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 
 Jiis 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' 
 insetted, and I think the American cases point this out distinctly, 
 and correctly, if I may say so. In Newhall v. Sahgler (1875), 92 IJ. 
 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 siich las 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 
 
I.] NELSON & FO±lT SHEPPAIRD RY. CX). v. JERRY et al. 179 
 
 any claim to be unlawful^ but submitted them all for adjudiGation." jl8»7^ 
 Again, in Kansas Pacific By. Company v. Dunmeyer (1884), 113 U. — ' 
 S. p. 629, under the Acts granting lands to' aid in the construction of- I'ullCourt. 
 a line of railway from the Mississippi Eiver to the Pacific Ocean, the moCkeight.j. 
 claim of a homestead of pre-emption entry, made at any time before 
 the filing of that map in the G. L. Office, had attached, within the 
 meaning of those statutes, and no land to which such right had 
 attached came within the grant. The subsequent failure of the per- 
 son making such claim to comply with the Acts of Congress concern- 
 ing residence, &c., or his actual abandonment of the claim, does not 
 cause it to revert to the railway company and become a part of the 
 grant. The claim having attached at the time of filing the definite, 
 line of the road it did not pass by the grant, but was by its express 
 terms excluded, and the railway company had no interest reversion- 
 ary or otherwise in it. And in the judgment at page 641, " no attempt 
 has ever been made to include lands reserved to the United States,: 
 which reservations afterwards ceased, to exist, within the grant, though 
 this road," &g. " 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 construc- 
 tion apply to lands to which a homestead or pre-emption right had 
 attached? Did Congress intend to say that the right of the Com- 
 pany also attaches, and whichever proved to be the better right should 
 obtain the land,'' &c., &c. " The pre-emptor had similar duties to per- 
 form 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 con- 
 testants 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, 
 this great corporation with an interest to defeat their claims and to 
 come between them and the Government as to the performance of 
 their obligations." I think all this applies to the present case, sub- 
 stituting " mineral claim holders " for " settlers." I observe in the 
 schedule to the Crown grant to the railway company, the claims Le 
 Eoi, Josie, Centre Star, Idaho, War Eagle and Virginia are also in- 
 cluded in the exception, and for the reasons stated in the above judg- 
 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 company,, but if at all, only to the Crown in .right of 
 the Province. In short the exceptions in the schedule as regards the 
 railway company are absolute: Newhall v. Sanger (1875), 9-2 U. R, 
 
180 MARTIN'S MINING GASES. [vol. 
 
 1897. 761, to which -I have already referred, is discussed in the foregoing 
 
 _!L ' judgment, at page 642. 
 i DLL^rniT. rpj^g above case of Kansas Pacific Railway Company v. Durtmeyer 
 MoOreisht.J. (1884), 113 U; S. p. 629, was relied upon by the respondents sue-, 
 eessfully in The Queen v. Demers (1891), 23 S. C. E., at p. 48'iB, 
 where it was held that certain land was exempt from the statutory 
 conveyance to the Dominion Government, and that upon a pre-emp- 
 tion right granted to one D. being abandoned or cancelled, the land 
 ' became the property of the Crown in right of the Province and not 
 
 in right of the Dominion. 
 
 • If these views are correct it is unnecessary to discuss the alleged 
 right of the railway company to any part of what was the Zenith 
 claims. The only parties interested appear to be the Crown in right 
 of the Province and the defendants. And the remainder of what 
 is now the Paris Belle claim is the only subject for further consider- 
 ation. 
 
 As to this, Mr. Duff, for the railway company, says that the Chief 
 Justice held the Paris Belle location bad, as there was tio mineral in 
 place to justify location, and that a " vein " or " lode " must be dis- 
 covered in order to justify the location of the Paris Belle in Decem- 
 ber, 1894. Whether a " vein " or " lode " must be discovered in 
 order to justify location must depend upon the words of the Mineral 
 Act of 1891, and its amendments, especially the Amending Act 
 of 1894, bearing in mind the rule that " where the granunatical 
 construction is clear and manifest and without doubt, that construc- 
 tion ought to prevail unless there be some strong and obvious reason 
 to the contrary :" Hardcastle on Statutes, 98. Now the interpre- 
 tation clause in the Mineral Act Amendment Act, 1894 (and the 
 same provision is to be found in the Mineral Act of 1891), says, as 
 to " vein " and " lode " that whenever " either of thc-se terms is used 
 in this Act, ' rock in place ' shall be deemed to be included." When 
 then it is argued that a " vein " or " lode " must be discovered, the 
 argument is really met and satisfied by ascertaining whether " rock 
 in place " has been discovered. If " rock in place " has been dis- 
 covered, that is enough for due location, and the definition of " rock 
 in place " in the Act of 1894, is that it " shall mean all rock in place 
 bearing valuable deposits of mineral within the meaning of this Act." 
 The question then is not simply whether the Paris Belle locators dis- 
 covered a " vein " or " lode," but whether " rock in place " was dis- 
 covered containing any of the many minerals (some perhaps not even 
 minerals, e.g., iodine) referred to in the interpretation clause to the 
 Act of 1894. The Legislature, as might be expected, among the 
 many amendments to the Act of 1891, passed T believe every year, has 
 made what Lord Cairns once called in Hill v. Crooh (1873), 43 L. J. 
 
l.l NELSON & FOKT SHEPPAiRD RY. CO. v. JERRY bt al. 181 
 
 Ch. 716, a dictionary to shew its meaning of words used in connec' I897. 
 tion with the important subject of location and record, and of such ^!£_ 
 amendments those in the Amendment Acts of 1893 and 1894 seem ]'"ui.l Coukt. 
 to give great assistance. In those Acts, at pages 128 and 153 respec- bjoCbeight^T. 
 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 
 ^fein, &c., &c., &c." The words " ledge " or " vein " in the disjunctive 
 in both Acts, shew that the Legislature did not consider " vein " ta 
 be necessary though it might be sufficient for location, and was care- 
 ful to say so. Again on the same pages respectively, we find the fol- 
 lowing : " The locator shall also place a legal post at the point where 
 he has discovered ' rock in place,', on which shall be written ' Dis- 
 covery Post.' " This, taken in connection with the diagrams or " ex- 
 amples of various modes of laying out claims," shews that the dis- 
 covery of " rock in place " is sufficient. Such " rock in place," accord- 
 ing to the Interpretation Clause, bearing " valuable deposits of min- 
 eral within the meaning of this Act " (of 1894). See Imperial Die- , 
 tionary and Century Dictionary as to " rock " and " place." The word 
 '' valuable,'' I believe, means little more than '' capable of being 
 valued," at least in its prima,ry signification, and certainly is not the 
 same as "costly." However, fortunately, the Acts of 1893 aijd 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 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." The applicant then, in order 
 to have his claim recorded, need not swear as to the value of the min- 
 erals 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, notwithstandii^g 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 
 J!^' that "rock in place" is -practically synonymous 'with " vein "or- 
 Full Court. " lode," and means " a substance defined between some definite walls 
 MoCrbight,;!. °r 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 construc- 
 tion, for a good locati'on,- and that they are perfectly silent as to a 
 substance defined between some definite walls or boundaries. Again, 
 that according to those Acts, " roek in place " is by no means synony- 
 mous 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," or " 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. No 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." 
 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 ease 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 forma- 
 tion 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 tetm lode star, guiding star or north star, he adds, is of the same 
 origin, &c., &c. 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 Idc subject to criticism,'' &c. 
 Then the Court proceeds to say : " We are of opinion, therefore, that 
 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.] NBIiSON & FORT SHEPPARD ET. OO. v. JERRY et al. 183 
 
 separating it from the neighbouring rock." The question then in that ^*^^- 
 ease was the meaning of the term " lode " in certain Acts of Congress^ JZ_ ' 
 passed in 1866 and 1872, and considering also that that expression FullCourt. 
 " lode " does not appear in any of the sections of our Acts dealing M:cCRKraHT,J. 
 xfith the location or record, which are confined to the use of the worda^ 
 " ledge " or " vein," " rock in place," and " mineral in place," I con-i 
 fess 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 y. Smith (1893), 33 Pac. Eep. 784, &c. The marginal 
 note is "that land containing a deposit of limestone entirely devoid 
 of ore, cannot be located as a mining claim, &e., &c., since the mineral 
 land laws of the United States were enacted for the purpose of secur- 
 ing 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 ex- 
 pect to find ore readily in the neighbourhood of Eossland 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 Oonsolidated W. 0. 
 Mining Company v. Champion Mining Company (1894),- 63 Fed. 
 Eeports, 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 weU 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 loca- 
 tion 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. Eenhte' (1896), 
 44 Pac. Eep. 979-983 was referred to as illustrating the meaning of 
 sec. 3330 of Bevised 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. Defferla;ch v. EawTce (1885), 115 U. S. 393, 
 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 
 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.'' 
 
184 MARTIN'S MINING CASES. [vol. 
 
 1897. We were also referred to Davis' Administrator v. Weibiold (1890), 
 
 — ■ 139 U. S. at pp. 518-519, and to page 531, where reference is made 
 roLtCoHBT. to the judgment in the United States v. Reed, 12 Sawyer 99, 104, 
 Mc0bei8ht,.T. and quoting part of it as follows : " Judge Deady, &c., ^c.,. said : The 
 nature and extent of the deposit of precious met^lp which will make 
 a tract of land 'mineral' or constitute a 'mine' thereon within the 
 meaning of the Statute, has not been judicially determined! Atten- 
 tion is called to the quiestion in McLaughlin v. United States (1883), 
 107 U. S. 536, but no opiaion 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 coi)i- 
 tain 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 sub- 
 ject." 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 plaintifEs is that there was no vein between deiined walls, 
 and it is not denied that mineral was found in the Paris Belle. The 
 present question is whether the def endarits found " rock in place " 
 within the meaning of the B. C. Mineral Acts, 1891, and Amending 
 Acts. The Iron Silver Company v. Mihe <£• Starr Company (1891)^, 
 143 U. S., at pp. 433-434, was also referred to, and the passage : " As 
 stated above there can be no location of a lode or vein until the dis- 
 covery of precious metals in it has been had," &c. The remainder of 
 the passage seems to refer to " known " veins or lodes, and the inappli- 
 cability 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- Hep. 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 fropi 
 the enclosing country." This case by no means assists the contention 
 of the plaintiffs. The question is simply as to the rneaning of our 
 mining laws, and foreign''' stpitutes and decisions on them can hardly 
 give us much assistance, for there appears to me to be anotlier ground 
 iipon which the rights of the looatsors of the Paris Belle cannot now be 
 questioned on the suggestion of bad location and record. They obtain- 
 ed a certificate qf improy^nipnts on the 8th of Novein,ber, 1895. The 
 plaintiff Company issued theij: writ pr-eviously on the ^nd of July, of 
 the same year, and although by the Mineral Act of 1891, sec. 37, a 
 
 *Cf. pp. 190, 236, 278, 282, 307. 
 
I.] NELSON & FORT SHEPPAHD RT. OO. v. JERRY et al. Ib5 
 
 oertific9,te of improvements was not to be granteci when the title was in ^^^'J'^ 
 litigation, that ,section was repealed by the Mineral Act Amendment — 
 Act, 1892 (ch. 32), sec. 14, which further provided that the validity J'ui-LOoum. 
 of such certificate when issued should not be impeached on any ground McCekight,j. 
 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 3nd 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 ease the matter might have been at once decided and great 
 expense avoided. Considering that the plaintiffs and defendants were 
 at arms' length, at aU events from the 2nd of July, 1895, the date of 
 the issue of the writ, they, the plaintiffs, must have noticed the adver- 
 tisements 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 plead- 
 ings, make no application to set aside such certificate, or raise objec- 
 tions 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 
 tjie circumstances. This has not been done, and the certificate is not 
 challenged in the pleadings. I am disposed to think that this operates 
 ^s an estoppel upon the plaintiffs so that the certificates cannot now be 
 phallenged, upon prirfbiples laid down in Staffordshire Banhing ConiT 
 pany v. Emrnott (1867), L. B. 2 Ex. at pp. 230-221, and in Rossi v. 
 Bayley (1868), L. E. 3 Q. B. 628, approving of the judgment of 
 Baron Channell in the former ease. I also refer to the judgment of 
 Lord Bramwell in the same case of Staffordshire Banhing 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 
 
186 MAKTIN'S MINING CASES. [vol. 
 
 May's ^*' ^'^ ^^^^ S'lso bear in mind the words in the Subsidy Act of 1892, 
 — ' ch. 38, sec. 8, -which says : 
 Full Cotjkt. 
 
 ; Nothing in this Act and no grant to be made thereunder, shall be con- 
 
 MoCreight, J sti'ued to interfere with free miners entering upon and searching for precious 
 metals and acquiring claims in accordance 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 ente.r 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 evei-y 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 see. 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 im- 
 provements 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 affebt 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 afEect the defendants. Jerry con- 
 veyed 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. Lb 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 
 sec. 10 of the Mineral Act, 1891, or rather the proviso thefrein men- 
 tioned, which reads as follows : 
 
 " Proyidad that in the event of such entry being made upon lauds already 
 lawfully occupied for other than mining purposes, such free miner, previously 
 to such entry, shall give adequate security, to the satisfaction of the Gold Com- 
 missioner, for any loss or damages which may be caused by such entry, and pro- 
 vided that after such entry he shall make full compensation to the occupant or 
 
I.] KELSON & FOKT SHEPPARD RY. OO. v. JERRY et al. 187 
 
 owner of such landg for any loss or damages which may be caused by reason of 1897. 
 
 such entry ; such eompensatipu in case of dispute to be determined by the Court May 3. 
 
 having jurisdiction in mining disputes! with or without a jury." „ ~~ 
 
 Full CoDET. 
 
 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 Gold 
 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 loca- 
 tion or record made under sec. 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 
 n'ot 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 dis- 
 tance 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 
 moi-e serious objection appears when we consider the important sub- 
 ject of the transfer of claims. The Mineral Act, 1891, sub-sees. 50, 
 •51 and 58, and sub-sees. 9 and 17 of Mineral Act Amendment Act, 
 1893, shew the anxiety of the Legislature to have such transfers made 
 safe to a purchaser who purchases by the record.* If the record dis- . 
 •closes a good title, an honest purchaser can buy with safety, but 
 according to the argument the security to be given to the Gold Com- 
 missioner 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 through- 
 out the Province and claims in the mineral districts. The danger 
 which would ensue from the construction contended for is greater than 
 
 *Cf. Grutchfield v. Harhottle, post, p. 396. 
 
 tCf. pp. 71. S8, 139, 146, 194, 236, 305, 333, 336, 414, 446. 
 
188 MAf^TIN'S MIXING CASE^. [vol. 
 
 1897. any affecting the transfer of property, even in coimtries where they 
 ^ ' have no land registry laws. There a purchaser by calling for the deeds 
 Full Court, shearing a claim of title, and ascertaining that possession has been 
 Walk^m, J. 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 claim was a good location 
 prior to the 33rd of March, 1893. And that as to the location on the) 
 34th December, 1894, and record of January, 1895, of the Paris Belle, 
 it was not void as against the plaintiffs for a supposed want of compli- 
 ance with sec. 10 of the Act of 1891. This is as regards the remainder 
 of the claim, with which alone the plaintiffs are conceriied. I cannot 
 agree that the location was void on the alleged ground that " rock in 
 place '' had rwt been discovered. I think the plaintiffs are now de- 
 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 defend- 
 ants, are entitled to an injunction to restrain the defendants from 
 claiming a right to sell, &c., the surface, &e., 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 l?e 
 made as to what compensation the plaintiffs are entitled to receive in 
 respect of their surface rights. 
 
 Walkem, J., concurred. 
 
 k 
 Drake, J. : — This appeal is against a judgment of the Chief Jus- 
 tice, declaring that the plaintiffs, the railway companyj as against the 
 defendants, are entitled to the exclusive use and possession of the 
 l^nds in the pleadings mentioned, and further declaring that the loca- 
 tion a,nd record of the Paris Belle Company was illegal aiid void, and 
 grafting 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 contaijied in an Act, Stat. B. C. 1892, 
 ch. 38. Sec. 5 compensates the Company for any lands which were 
 
I.] NELSON & FORT SHEPPAiRD BY. 00. v. JERRY et al. 189 
 
 taken up either under the land or mineral laws of the Province, in ^gg^ 
 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 fbli, Court. 
 on any part of these lands in accordance with the mining laws of the — 
 Province. Subsequently the Crown, by deed, .gra,nted to the railway 
 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 lawful for any person acting under our authority to enter 
 the said lands and raise and get thereout any minerals (other than coal) and to 
 use and enjoy any part of the said land and of the easements thereto belonging, 
 for that purpose, paying in respect of -such raising arid getting and use, reason- 
 able compensation." 
 
 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 fur- 
 ther work as his partner did not dp his share. Under sec. 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 Eecorder, and he may abandon his claim at any time upoli 
 giving notice in writing to the Eecorder 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 
 (1894), 22 S. C. E. 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 plain- 
 tiffs, however, say that the location of the Zenith claim was improperly 
 done because an extra stake with a notice on it was left oh the grouhd. 
 The plaintiffs' grant excepts recorded claims, and this being a record- 
 ed claim of the 23rd of March, 1893, 1 fail to see what right- the Com- 
 pany have now to question the location on which the record is based. 
 The Crown could do so and so could any free miner diiring 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 Deceniber, 1894, the Paris Belle was ' 
 located; on the 3rd of January, 1895, recorded. This the defendants 
 claim they have a right to do, both under the Plaintiffs' Act, ch. 38 of 
 
190 MARTIN'S MINING CASES. [vol. 
 
 1897. 1893, sec. 8, and under the grant which contains the provisions before 
 — ■ mentioned. The Mineral Act, 1894, under which the defendants 
 Full Court, located and recorded this claim, defines a mine as meaning any land 
 Drake, .J. in which any vein or lode or rock in place shall be mined for gold or 
 other minerals, precious or base, except coal, and minerals include 
 valuable deposits of various ores, and also of other substances which 
 are not found in ores, such as aluminium, phosphorus, iodine, sodium, 
 and also mineral pigments which can be extracted from various earths. 
 Eoek 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 I'ock 
 in place bearing deposits of this clg-ss 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 suffi- 
 cient 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 dis- 
 covered, 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 men- 
 tioned in the Act, provided he discovers siTfficient minerals to justify 
 the expenditure of time and labour on them. The American* authori- 
 ties 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 protec- 
 tion. 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. 
 Sec. 10 is unhappily worded, the proviso is that " in the event of an 
 entry being made," this presupposes an actual entry on the land for- 
 the purpose of location and record, and yet the section proceeds to say 
 • that previous to such entry he shjill give security. The intention of 
 the Act I think was that after entry for location and >reeord purposes^ 
 
 *See ante, p. 184. 
 
I.] NELSON & PORT SHBPPARD RY. CO. v. JERRY et al. 191 
 
 the locator could not mine and prospect for minerals without giving A^^'^o 
 security, and the first part of sec. 10 gives sanction to this view, for ^L- ' 
 it authorizes a free miner to enter, locate, prospect and mine, four PcllCodrt.. 
 different and distinct operations ; entry for the purpose of viewing, dkake, J. 
 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 fur- 
 ther 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 pro- 
 viding 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 improvementg in this case was granted 8th 
 November, 1895, and recorded 18th November. The plaintiffs com- 
 menced 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 plain- 
 tiffs 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. All that 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 Eossland District, that the ores of the massive eruptive rocks con- 
 sist principally of sulphides of various metals. Of these pyrrhotite is 
 the most abundant. It constitutes the common Eossland 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" 
 
192 MARTIN'S MINING OASES. [vol. 
 
 1897. some of the ore and the fissure like regularity in others, the presence 
 .!f_ ■ in most cases of a single wall, which is often meaningless as a confining 
 FullCouht, line, and the occasional lack of any wall, the gradual blending of the 
 McCoLL, J. ore with the country rock and the presence of the latter as the prin- 
 cipal gangue, are all characters consistent with the deposition of the 
 ore from ascending waters which have eaten away portions of th6 
 country rock along lines of fracturing, and replaced it by minerals 
 held in solution, while the fissure veins are seldom observable." This 
 opinion of the characteristics of this district renders a greater part of 
 the argument addressed to us (that the absence of wall and veins on 
 the Paris Belle claim was cogent evidence of this not being a mineral 
 deposit at all) of little effect, and the further indications given by the 
 Mineral Act itself, that it was not intended to apply to ores only, but 
 to all minerals whatever discovered under the surface. 
 
 The order that we think should have been made in this case is that 
 as regards the Zenith claim the defendants are entitled to treat the 
 land covered by that claim as waste lands of the Crown, in so far as 
 they can be ascertained from the record, and as to the other portion of 
 the claim, the plaintiffs are entitled to compensation for surface dam- 
 ages (if any) to be ascertained in the mode pointed out by the Mineral 
 Act. The appeal should be allowed, with costs. 
 
 McCoLL^ J.: — ^I have had the advantage of reading the opinion of 
 Mr. Justice McCreight with "whom I concur, in tlie judgment pro- 
 posed by him. I do not think it necessary to say anything more than 
 to make some observations upon one of the questions raised bv <^hi3 
 pleadings and argued at great length upon the appeal, as I have 
 apparently taken a somewhat different view of this question. The 
 plaintiffs were met by the defendants at the threshold of this contro- 
 versy with sub-sec. (1) of sec. 14, ch. 33, 55 Vict., which provides: 
 
 " (1) No adverse claim shall be filed by the Mining Recorder after the ex- 
 piration of the period of publication in the next preceding section mentioned; 
 and in default of such filing no objection to the issue of a certificate of improve- 
 ments 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." 
 
 It is admitted that the defendant company obtained such a certi-' 
 ficate of improvements as is here provided for, and the plaintiffs have 
 not attempted to impeach it. What then is its effect between the 
 parties? For the plaintiffs it was strenuously contended as regards 
 this question that the "Mineral Act, 1891," and Amending Acts, 
 (which for convenienece I shall refer to as the Acts) only contem,plate 
 possible disputes between two or more adverse claimants to a mineral' 
 claim; that it could never have been the intention of the Ijegislature 
 to make the title to land depend upOn comjJIianCe with the provisions 
 of Acts passed' solely for the purpose of providing for the acquisition 
 
I.] NELSON & FORT SHEPPAED BY. CO. v. JERRY ET al. 193 
 
 of mineral claims, and that it is impossible to conceive that the Legis- ^^'3 
 lature meant to place upon a land owner the intolerable burthen of — 
 constant watchfulness lest he be deprived of some portion of his prop- ^'^'■^ Court. 
 erty. It was also urged that the adverse proceedings provided for McColl, J. 
 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 
 certificate had been granted. There can be no pretense that the posi- 
 tion of the plaintiff company is, in the circumstances of this case, 
 , 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 require- 
 ments 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 the exist- 
 ence 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. 
 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 claimjng under his record, but it is sufficient for the purpose of 
 this appeal to say that, whatever may be the position of the grantee at 
 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 
 he is able to prove such facts as would amount to fraud. If the 
 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 
 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 
 
 M.M.C. 13 
 
194 MARTIN'S MINING OASES. [vol. 
 
 1S97. with the right of property in the precrouB metals which may be found 
 
 ^^Z_^- upon his land. He can acquire them only in the \ta.j open to all per- 
 
 Fdll Court, sons equally iiiLd:er the Acts. His title to his land does not depend 
 
 McCoLL, J. Tip'on. the Acts, nor can he be deprived of his title to it or any part of 
 
 it by any proceedings under them. HIb liability is to have his land 
 
 entered upon and occupied for mining purposes, and the rights given 
 
 him are that he is ea;refully guarded in respect of such liability by 
 
 the exemption and security against loss provided for. 
 
 I am of opinion that the policy and provision^ of the Acts are alike 
 opposed to the construction contended for on behalf of the plaintiff 
 cohipany; that the certificate of improvements is in efEect conclusive, 
 as well against the plaintiff company as against any adverse claimants 
 (if such there were) td the Paris Belle mineral claim; and that the- 
 present rights of the plaintiff company are those, and only those con- 
 ferred by the Acts. The plaintiil 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. 
 
 Note. — ^See new definitions of " rock in place " and " valuable deposits of 
 mineral " given in the Mineral 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. Wat-ren, post, p. 376 ; Nelson & Fort Slieppard Ry. Go. v. 
 Dunlop, post, p. 414; Attorney-General v. Dunlop, post, p. 408; Manley v^ 
 Gollom, post, p. 487 ; Cleary v. Soscowitis, post, p. 506 ; Fry v. Botsford, post,. 
 p. 520. 
 
 As to abandonment, see Williams Creek, cC-c, Co. v. Synon, ante, p. 1 and! 
 notes thereto. 
 
 As to defects in location, see list of decisions in note to Mauley v. Collom,. 
 skp'rd. 
 
I.] 
 
 STUSSI ^. BROWN. 
 
 195 
 
 SxDSSi y. Brown. 
 (5 B. c. 380.) 
 
 Mineral Claim — Statute of Frauds — Interest in Land — Partnerskip- 
 jfotlce — Pleading — Admission — Mineral Act, 1S91. 
 
 1897. 
 May B. 
 
 [FoLL Court. 
 
 -Record — 
 
 The defencss of the Statute of Frauds and sec. 51 of the Mineral Act, 1891, 
 
 must be pleaded. 
 Semhle, 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 Diiakb, J., varied. 
 Per Drake, J. — The interest of a free miner in bis 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. 
 
 Action for specific performance of an agreement by the defendant Statement. 
 to convey to the plaintifE a half interest in a mineral claim. The facts 
 are set out in the judgment of Drake, J., at the trial. 
 
 Charles Wilson, Q.C.j, and J. H. Senkler, for the plaintiff. Argument. 
 
 E. P. Davis, Q.C., for the defendant. 
 
 Cur. adv. vuU. 
 
 December 19th, 1896. 
 
 Drake, J. : — The facts of this case are complicated, and it appears 
 that in July, 1894, the plaintiff and the defendant, Joseph Brown, 
 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 ad- 
 vanced 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 record- 
 ed 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 foy damages put in by Brow^n, 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 
 the recording fee. 
 
 Judgment 
 
 below, 
 Dbake, .T. 
 
196 MARTIN'S MINING CASES. [vol. 
 
 1897. The plaintiff claims an undivided half interest in the claim. The 
 
 ^' first dispute commenced here. Henry Alles claims that he was the 
 Full Couist. discoverer of this claim and had staked it out and was on the ground" 
 when Brown arrived, but Alles being uncertain whether his miner's 
 licence had been issued, because he had not received -any reply to his 
 application for the granting of a licence, agreed that Brown should 
 stake the claim in his own name and give him a deed of the undivided 
 half. As a matter of fact a licence was in existence at the date of this 
 staking. 
 
 Brown, in his pleading, admits this allegation of Alles, and there 
 is further corroboration in the evidence of Sidney Xorman, 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 $1,300.00 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 
 he recorded, he then for the first time discovered that J. A. Stussi, 
 Ihu plaintiff, claimed an undivided half interest in the claim. 
 Judsinent On the 23rd of October, 1895, the plaintiff commenced an action in 
 
 Drake^ J ^^® County Court of Kootenay to ha-^e 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 
 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 his 
 own action' struck out, which was accordingly done. 
 
 Before judgment was given by the County Court. Judge in the 
 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 32nd 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 de- 
 fendant in the action of Stussi v. Brown, which had been prohibited. 
 
 I therefore hold that this judgment, which is relied on by alll the 
 defendants, is void, as it was given without jurisdiction and without 
 trial. 
 
I.] STUSSI V. BROWN. 197 
 
 After the M'rit of prohibition was obtained, this action was com- 1897. 
 menced, namely, on the 12th of March, 1896. No evidence was ad- ^ ^' 
 duced shewing that any Crown grant had been issued. Tlie mxuilr; Full Court. 
 records, under the Placer Mining Act, contain all dealings with 
 mining property, but the Act does not make a mere notice of an 
 alleged claim entered in the book, notice to a purchaser. The record 
 books contain copies of all documents connected with mines, but the 
 mere fact of a notice of claim being filed with the Recorder is not more 
 binding on a purchaser for a valuable consideration without actual 
 notice. 
 
 Mr. McLeod, in his evidence, denied that he had any notice at all 
 in the claim of Stussi before he obtained his hill of sale from Brown, 
 and there was no evidence to the contrary. I do not, therefore, con- 
 sider that this notice of claim can in any way prejudice his right to a 
 one-fourth interest, if his right is not displaced by Alles' alleged 
 interest. 
 
 Now, \\'ith regard to Alles' claim : By his statement of defence he 
 claims he was, and is, a co-owner with Brown of this claim, and en- 
 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, judgment 
 therefore, an interest in land. Any agreement, therefore, relating to below, 
 a sale or transfer of such an interest must be in writing. No such kake, J. 
 document is produced, but the defendant. Brown, in his pleadings, 
 admits an agreement that Alles was to have an 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 
 hiin. 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 
 Mining Eecorder. Neither can he claim a superior right to the plain- 
 tiff, as he was not to be a partner of Brown's, but was to have a- con- 
 veyance 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 v. 
 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. 312. 
 Admitting there was a partnership between Brown and Stussi in this 
 claina, 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 
 
198 MARTIN'S MINING CASES. [vol. 
 
 1897. remains in Brown of the St. Louis mineral claim, lot 935, group 1, 
 
 ^^' West Kootenay, because, under the terms of the partnership, as 
 
 Full Court, alleged by Stussi, each partner had power to acquire, hold, develop 
 
 MoCreight,J. aiid dispose of mineral claims, and the effect of such a partnership 
 
 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 plain- 
 tifE is entitled to a declaration that the remaining quarter in the first 
 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 F. M. McLeod with costs and 
 as against the other defendants without costs. 
 
 . Judgment accordingly. 
 
 Appeal. From this judgment both jparties appealed, and the appeal was 
 
 heard before McCreight, Walkem and McColl, JJ., on the 3rd of 
 March, 1897. 
 
 Argument. Charles Wilson, Q.C., for the plaintiff. 
 
 E. E. Davis, Q.C., for the defendant. 
 
 Cur. adv. vidt. 
 
 May 6th, 1897. 
 The judgment of the Court was delivered by 
 Judgment. McCeeight, J.: — The partnership in July, 1894, between the 
 
 plaintiff and Brown was for the purpose of acquiring, holding, develop- 
 ing 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. AUes in his evidence says he had prospected for 
 and discovered the St. Louis elairn. and had been working on it for a 
 time before he took Brown " up there." Alles' 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 arrangememt stated 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 jjn it. Witho-uft expressing a decided 
 opinion as to whether, as between the plaintiff and Brown, it must be 
 
I.] STUSSI V. BROWN. 199 
 
 • 
 
 considered that Brown's hfilf was to be sh^r,ed with the plaintiff in the issr. 
 partnership, it seems manifest that AUes was entitled as to his one- May6. 
 half, to be placed in as good a position-as if no such agreement existed. Fwll Coubt. 
 He says he knew nothing of it, and his evidence seems to be reliable ^^^q^^j^^ j 
 ■as well as fully corroborated, and to have satisfied the learned trial 
 Judge. In June, 1895, Brown conveyed to W. L. O'ConneU a half 
 interest in the St. Louis for the e:fpressed 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 th,e 
 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, iona 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 noanifest breach 
 •of trust, and, perhaps, punishable under the Code. IMr. 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. Xo doubt, it is on the theory 
 of partnership that Stussi brings his action. The evidence frorn their 
 course of dealing 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 tl^e claim was recorded in his name. 
 But it is important to qbse-rve that tbe jury in Stussi y. Bmwrx, ^d 
 others, in November, 18,95, ftnd t^at Aljes h?id oneJialf interest in the 
 St. Louis ; of this Judge Spinks is satisfied, and Stussi, thongh of this 
 Judge Spinks is doubtful, one-q-viarter of the St. Louis, i.e.., by the 
 verdict in Sivssi v. Brown, Alles, and others, in November, 1895, 
 which, of course, is material as regards Alles, as ^he-^ing that Brown 
 could not have rightfully conveyed to O'Cpnnell, Alles' one-half share, 
 or at all events had not done, so in the opinion of th^ jury, and that 
 AUes' half share was still vested in him. The vahie of tjiis verdict dqes 
 not seem to be affet^ted by the prohibition, yhidi only prevented judg- 
 ment from being entered an the verdict, and the verdict should be 
 conclusive as between Stussi and Alles in any action subsequent there- 
 to; see Outram v. Morewood (1803), 3 East 346, and 2 Smith's L. C. 
 notes to Duchess of Kingston case. Whilst Judge Spinks dpes .not re- 
 member what interest the jury in Stussi v. firown, Alles, et al., found 
 that Stussi had, it is obvious they could not find Stussi ]^ad any after 
 finding Alles 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 
 
200 MARTIN'S MINING CASES. [vol. 
 
 1897. ■ 
 May 6. 
 
 Full Coukt. 
 
 position of McLeod presently) that O'Connell had one-half interest 
 and Alles the- other, and there seems to be abundant atithority to shew 
 that a Judge should take the same view as the jury did, supposing for 
 McCbbight.J. the sake of argument their verdict to be now open to question. 
 
 In re HalleU's Estate (1879), 13 Ch. D. 696, it was held by the 
 Court of Appeal, Thesiger, L.J., dissentiente, 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 prefer- 
 ence to the trust money. The late Master of the EoUs says in his judg- 
 ment 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 go|ods 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 whieh 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, 
 &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 writ- 
 ing," &c., &c. If these sections had been relied on by the plaintiff in 
 his reply, a serious question might have arisen, but Order XIX., Kule 
 15, says that the defendant or plaintifE (as the case may be) must raise 
 by his pleading all 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.] STUSSI V. BEOWN. 201 
 
 preceding pleadings, as for instance, Jlraiid, Statute of Limitations, isy?.^ 
 release, payment, performance, facts shewing illegality, either by May^C,^ 
 Statute or common law or Statute of Frauds." It seems plain from Full covin: 
 this rule that the Mining Act of 1891 or the sees. 34 and 51, should moCreight.J. 
 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 ease 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 in- 
 sisting 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), 31 U. C. C. P. 24:1; Robertson v. Caldwell (1871), 
 31 U. 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 well 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 Alles' 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, Alles, 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 Alles, 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 Mc- 
 Leod, Pierce, Norman and McArthur. The only question is: Has 
 Stussi any rights? 
 
 For these reasons I cannot disagree with so much of the decree of 
 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, 
 
:202 MARTIN'S MINING CASES. [vol. 
 
 1897. Pierce^ Xorman and McArthur have no interest in the St. Louis claim, 
 • — ' I think the same should be reversed and it should be declared that, 
 Fdh Coukt. without prejudice to the rights of said Pierce, Norman and McArthur, 
 McCbbight, .t Alles is entitled (but also subject to the rights of McLeod) to one-half 
 interest in the said claim and that the action be dismissed as against 
 him and Pierce, Norman and McArthur with their costs to be paid by 
 the plaintifE Stussi. It is, of course, proper that an account should be 
 taken as between the plaintiff and Brown but not an enquiry as to the 
 interest other than that assigned to McLeod outstanding in the defend- 
 ants or any of them. I think Stussi has no interest in the St. Louis. 
 
 It is. also proper that the counterclaim of Brown against Stussi 
 should be dismissed with costs and th,g.t Stussi should have the costs 
 of his action but only as against Brown. 
 
 Appeal allowed in part. 
 
 Note. — As to pleading, see Hogg v. Farrell, ante, p. 79. 
 
 As to free miner's interest and Statute of Frauds, see Wells v. Petty, ante, 
 p. 147; Fero v. Hall, post, p. 238; Sunshine, TAmited, v. Cunningham, post, p. 
 286 ; McNerhanie v. ArcMhald, post, p. 320. 
 
j:.] 
 
 FRANCOEUR et al. v. ENGLISH. 
 
 203 
 
 rEANCOEUE ET AL. V. ENGLISH. t,P^^^c 
 
 May 18. 
 
 (6 B. C. 63.) Bole, Co.J. 
 
 .Loeatkm — Invaliditi/ in — Misleading — Compass Bearing — Record — 
 Mineral Act, lUilB, sec. IG. 
 
 All error in the statement on the initial post of tlie approximate compa.ss bear- 
 ing of No. 2 post N. E. and S. W., instead of N. W. and S. E., is calculated 
 to mislead, and cannot be cuired by sec. 16 (dj . 
 
 .V loqation which is not duly recorded is invalid. 
 
 Action by plaintiffs as locators and recorders oJ: the 0. K. mineral Statement. 
 K;laim 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 iLaikud on their initial post the approximate! compass 
 beariag of the No. 2 post as north-east and south-west instead of north- 
 Tvest and south-east. The facts more JuUy appear from the judg- 
 anent. 
 
 D. G. 2Iacdonell, for the plaintifEs. 
 
 E. A. Jenns and H. F. Clinton, for the defendant. 
 
 Argument. 
 
 Jlay 18th, 1897. 
 Bole, Co.J. : — The plaintiffs claim to be owners of a mineral Judgment, 
 ■claim, known as 0. K., situate on Pitt Lake, and allege that it was 
 .located on the 37th December, 1896; that on the 7th iranu9,ry, 1897, "* 
 
 they applied to record the claim, and filed the necessary declarations, 
 and did all things neceeeary to entitle them to record it ; that on the 
 26th January they received the record of said clainij 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 9,sk: 
 (1) That the record of the mineral claim issued by the Mining Ee- 
 
 •eorder to the defendant in this action should be declared null and void, 
 --and reaaaoved as a cloud on the plaintiffs' title; (2) For a declaration 
 that the plaintiffs are entitled to the said mineral claim byt virtue of 
 
204 MARTIN'S MIXING CASES. L>OL. 
 
 M^^\s *^^° record issued to them, and that the said record should date from • 
 -- ■ the 7th January, 1897. That the defendant be restrained from tres- 
 BoLK, GO..T. passing on the said claim; and (3) Damages for such trespass. 
 
 From the evidence, it appears to me that the plaintiffs herein have 
 not fulfilled the conditions of sec. 16 of the Mineral Act, 1896, because- 
 paragraph 4 of their declaration states as follows : " I have written on 
 the ISTo. 1 post the following words: We have this day located this 
 ground as a mineral claim to be known as the 0. K. mineral claim,. 
 1,500 feet in length by 1,500 feet in wiith: the direction of the loca- 
 tion line is north-east and south-west ;■ 750 feet of this claim lie to the 
 right, and 750 feet to the left of this location," whereas the true direc- 
 tion of the line is north-west and south-east. And paragraph 5 is tO' 
 the same effect. 
 
 It is true that sec. 16 (sub-sec. d) provides that the 
 
 " Failure on the part of the locator of a mineral claim to comply with anj- 
 of the foregoing provisions of this section shall not be daemed to invalidate such 
 location, if upon the facts it shall appear that such locator has actually dis- 
 covered 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 u character cal- 
 culated to mislead other persons desiring to locate claims in the vicinity." 
 
 Now it appears to me that such a. record was most decidedly cal- 
 culated to mislead other persons desiring to locate claims in the 
 vicinity; but it does not become necessary to decide the case upon this 
 point alone, as I find that the only ofiieial record of the. 0. K. claim 
 •which I can look at, namely, that on the 36th January, 1897, was 
 made too late, and subsequent to the record of the Little Duke, which 
 appears to have been made in time. Sec. 27 provides : 
 
 " 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, 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 Act." 
 
 The official 0. K. record was confessedly not made within the time 
 limited by the statute. With respect to what occurred between the 
 Recorder and the applicants on the 7th January, I conceive I have at 
 present nothing whatever to do. If the Eecorder in any way failed 
 to do his duty, the law has provided a remedy therefor; his action in 
 the premises has, to my mind, nothing whatever to do with the matter 
 now before me. Besides all this, the evidence of the plaintiff Mc- 
 Donald shews that at the time of the location he was working for 
 Clinton, who, I gather, is interested with English, so that it is probable 
 the defendant might be in a position to ask to have the plaintiffs, if 
 their location was a good one, declared trustees for him. Plaintiff ad- 
 mitted he was in Clinton's employ on the Saturday and Monday, but 
 considered himself justified in taking up a claim on his own account on 
 
I.] FRANCOEUR et al. v. ENGLISH. 205 
 
 the intervening Sunday; but in so doing he overlooked the fact that isaz. 
 this is a Court of equity as well as a Court of law; so that it appears May^is. 
 to me thjit the plaintiffs cannot be said to have even the merits in their Bolk, Ch.j. 
 favour, apart from all technical questions. 
 
 As I understand the case of the Nelson & Fort Sheppard Railway 
 Company v. Jerry (1897), 5 B. C. 401, ante, p. 161, commonly known 
 as the Faris Belle case, it appears to lay considerable 'stress upon the 
 importance of priority of record, where there is a valid location, as in 
 this case. It appears to me the record of the defendant having been 
 made in time, and the record of the plaintifEs being made outside the 
 prescribed time limit, I must give eifeet to the protection which the 
 Act intended to extend to free miners. The Eecorder's ofRce 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 mu^t give Judgment for the 
 defendant, with costs. 
 
 Action dismissed. 
 
 Note. — As to misleading, see Manley v. Collom, post, p. 487; and as to de- 
 fects in location see list of cases in note thereto. 
 
206 MARTIN'S MINING CASES. [vol. 
 
 jJ^^^-^2. Gray et al. v. McCallum ex al. 
 
 Full Court. (5 B. C. 4G2.) 
 
 Mining PartnersMp^-Power to Incur Liabilities — Foreman — Estoppel — Mineral 
 Act, G. 8. B. C. 1888, 82, sees. 114, 126. 
 
 Section 120 of the Mineral Act does not preclude a mining partnership from con- 
 tracting 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 Deake, J., affirmed. 
 
 Statement. APPEAL from a judgment of Drake, J., upon the hearing for fur- 
 
 ther consideration and motion by Johnson, a defendant by counter- 
 claim, for directions and to vary the Eegistrar'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 pattnership known as the " Ophir Bed Eock 
 Elume 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 for 
 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 of 
 shares in the partnership, and on the same day appointed Jiames Gray 
 superintendent and director of works, to serve and work for the part- 
 nership 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 assess- 
 ments levied therefor. At the trial of the action on the 18th of Decem- 
 ber, 1891, the issue as to the assignments was»found in favour of Mc- 
 Callum, and that as to conspiracy in favoiir of the Grays and E. M. 
 Johnson, and by the order made at the trial it was ordered that an 
 account should be taken hetween McCallum and the Ophir Bed Eock 
 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 com- 
 pany 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. 
 
 207 
 
 to him, declared that the stores were purchased lor the partnership, 1897. 
 and directed the Eegistrar in taking the accounts to allow the pay- Junej2. 
 ments accordingly, and the order was confirmed on appeal by the FullCouut. 
 Divisional Court on the 37th of January, 1894, and by the Full 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 Registrar, 
 and on the 34th of July, 1895, he found that there was due to Mc- 
 Callum 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 part- 
 nership attended and opposed the allowance of the accounts. A sum- 
 mons was taken out by Johnson to vary the Eegistrar's certificate by 
 disallowing 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 fur- 
 ther consideration, and it came on, together with the summons to vary 
 the Eegistrar's certificate, before Deake^ J., on the 15th and 16th of 
 November, 1895. 
 
 L. P. Duff, for A. E. McCallum, plaintiff by counter-claim. 
 
 A P. Luxton, for E. M. Johnson, one of the defendants by counter- 
 claim, submitted that all items allowed by the Eegistrar's certificate 
 should be disallowed on the ground that McCallum was not the fore- 
 man or agent of the company duly authorized in writing, referring to 
 sees. 114 and 136 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 tTian 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 pro- 
 ceedings, that McCallum was to all intents and purposes holding the 
 controlling interest in the mine. As between Johnson and Mr. Mc- 
 Callum, Johnson is estopped by his actions and representations from 
 disputing the allowance to McCallum. 
 
 Cur. adv. vult. 
 
 Arguments 
 
 February 13th, 1896. 
 
 Drake, J. (after stating the facts) : — -As to the objection that Judgment 
 
 cheques, endorsed by the payees and supported by the oath of the dbakT J 
 drawer as to payment are not suflficient vouchers of payment, I overrule 
 
208 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1897. it at once. The Eegistrar considered the evidence in support of the 
 iine^ "■ payments and was satisfied, and I shall not interfere with his findings 
 Fui-lCoukt. on this account. (The learned Judge after discussing the eviden';e, 
 proceeded) : 
 
 The Mineral Act, C. S. B. C. 1888, ch. 82, sec. 114, 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 by the secretary 
 of the company, but Mr. Luxton contends that unless there is a fore- 
 man 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 o(ther indebtedness was incurred by Mr. McCallum, acting as 
 secretary and controlling owner, and sec. 126 has reference to liabili- 
 ties contracted by some person who had no authority to act for the 
 company. It does not preclude the company from contracting lia- 
 bilities as a company. If, for instance, the company 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 pur- 
 chase 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 judg- 
 ment 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. 
 
 Judgment 
 
 below, 
 Drake, J. 
 
 Order accordingly. 
 
I. J GRAY ET AL. V. McOALLUM et al. 209 
 
 From this judgment the defendant Johnson appealed to the full isw. 
 Court, and the appeal was argued before ]^IoCeeigi-it, Walkem and J"J>«12- 
 McCoLL, JJ., on the 11th of May, 1897. , Full Court. 
 
 A. P. Luxton, for the appeal. McObemht, J 
 
 L. P. Duff, contra. ' ^pp''*^- 
 
 Cur,, adv. vult. . 
 
 June 12th, 189T(. , 
 
 The judgment of the Court was delivered by 
 
 McCeeight, J. (after stating the facts) :— It is unfortuna:te that Judgment, 
 the note of what took place in the Divisional Court on the 37th 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 afBrmed by the Divisional Court appears in the appeal book, bilt 
 it does not appear that it was affirmed by four Judges, and the ques- 
 tion was argued before us as if the interlocutory order was not bind- 
 ing 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 at such meeting,' &c. 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 se<;ms 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 com- 
 pany, framed, as I will suppose, under the Joint Stock Companies' 
 Act of 1863. See Ashhury Railway Company v. Riche (1875), L. R. 
 7 H. L. 653, where it was held that the objects of the company, as 
 fltated in the memorandum of association, must not be departed fromi. 
 
 M.M C. 14 ' 
 
-210 MARTIN'S MINING CASES. [vol. 
 
 1897. I think for every reason we are bound by what the Divisional Court 
 June_l2. j^,^g g^j^g^ ,^^^ ^-^^^ ^-^^ decision of Drake, J., as to the item of $2^500.00 
 Full Gourt. must be affirmed. However, another point was argued and much 
 McCbbight, J insisted upon, namely: that under sec. 136 of the same Act, McCallum 
 was debarred from enforcing this claim. That section reads as fol- 
 lows: (Quoting). There seem to be many answers to this conten- 
 tion. In his evidence McCallum says : " I consider that on the ITth 
 . day of April, 1889, 1 was the foreman of the Ophir Gold Mining Com- 
 pany, Limited, by the surrender of James Gray's foremanship, by the 
 • acquiescence of the shareholders, and by the secretary of the conipany 
 
 informing me that I represented the company, and could levy assess- 
 ments for all necessary expenditures. Also, that James Gray having 
 surrendered his foremanship ... I remember Mr, Johnson say- 
 ing 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 ex- 
 penditures, just as the Grays did before.'" And as to this state- 
 ment it was said during the argument that there was no cross-exami- 
 nation on it. But there seems to be a direct answer on a broader 
 ground, and it may be well to mention it. In section 136 and the 
 other sections of Part VII., the term " company " is used indiscrimi- 
 nately 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 
 131. Now, only a stranger could bring an action against a partner- 
 ship, 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 advancesj 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 him- 
 self of section 114, or rather the general law of partnership, and cer- 
 'tainly not invoke section 136, 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 manage- 
 ment. It is, indeed, a startling contention that a member of a miming 
 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 sanc- 
 tion no ratification can be of any use; a doctrine which ^is regardless 
 of the maxim omnis ratihabiiio retro-traliihir et mandato priori oequi- 
 paraiur. . 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 
 
I.] GRAY ET AL. y. McOALLrUM et al. 211 
 
 add that there seems to be a clear case of estoppel as against B. M. i897. 
 Johnson, the only person really contesting the case, for the Ophir ""^ ^^' 
 Bed Book Flume Company did not attend or oppose the accounts. Full Coxibt. 
 
 The next point argued by Mr. Luxton was as to -the sum of $1,- McCrkkht, J 
 188.00, "James Gray's wages, due by company for ISSy." This 
 charge of McCallum was ratified by the company in recognizing the 
 account amounting to $6,1 80 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 i,ov the year 1889, which 
 were hypothecated to him,MeCallum, by Gray, under indenture of 17th 
 April, 1889. This instrument might have been more simply 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. 
 669; Buck v. Rohson, 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 
 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 
 Judge, and I think McCallum is entitled to such interest, subject as 
 to tlie sum of $iNl 3.00, balance of the sum oF $1 ,1 SS.OO. after deducting- 
 $375.00 as previously mentioned, and which I shall deal with presently. 
 Now, in Lindlfy on Partnersliip, p. 391, 6th ed., it is said that: "Sub- 
 ject to any agreement between the partners interest is payable- on 
 money paid or advanced by one partner for partnership purposes be- 
 yond 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 Trimhle v. Hill (1879), 5 
 App. Cas. 345. ^ No doubt the author refers to Stevens v. Cooh (1859), 
 "5 Jiir. N. S. 1415, as an authority to the contrary, but perusal of that 
 case, with all respect, seems to shew the party claiming interest was 
 bound by his contract of partnership to make the advances, and so 
 was not entitled to charge interest as if he had made advances inde- 
 pendently of any antecedent contract. Here McCallum paid money 
 from 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 under- 
 stand 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 
 in 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 
 
212 MARTIN'S MINING CASES. [vql, 
 
 jj*"^- of SI ,] 88.00. I confess I do not see how McCallum can charge interest 
 
 ' on this suin of $8J S.OOin tl.e characterof advances made byhimtothe 
 
 FullCouet. company, within the rule laid down by Lindley. No doubt the whole 
 MoCreight, J $1,188.00 was his by assignment from James Gray, and as such recog- 
 nized 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 differ- 
 ent sums to James Gray. The whole sum of $1,188.00, the wages of 
 James Gray for the year 1889, was assigned to McCaHum "to be 
 devoted as far as cail 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 
 the minutes. 
 
 With respect to the costs as awarded by the learned trial Judge 
 by the decree of the 13th February, 1896, I think he is right in directr 
 ing 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 Eock 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 Eegistrar's certificate as to th^ 
 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 De- 
 cember, 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. 
 
 It is much to be regretted that this litigation has been protracted 
 for many years, as there was no point of difficulty to warrant the re- 
 peated appeals, and after having spent much time on the case, I can- 
 not say I liave observed any difficult point of law in it. The costs of 
 the appeal must, of course, follow the event. 
 
 Appeal dismissed. 
 
I.] 
 
 ALDOUS V. HALL MINES CO. 
 
 213 
 
 Aldods v. Hall Mines Co. 1897. 
 
 July 12. 
 (6 B. C. 394.) — - 
 
 Location — Marking Location Line — Adverse Claim — Affidavit of — Wlicllnr good 
 if made by Plaintiff's Husband — Evidence — lie-opening of Vase — .Juriadietion 
 of Vountg t'uuvt — Practice — I'Icudiny — Costs — Mineral Act, JSOl, and 
 Amendments. 
 
 If it is intended to i-t'ly on nou-compliauce witli tlie requirements of the .Minora! 
 
 Act ;is to location or otherwise, this must be si)ecifically i)leaded, and the 
 
 material facts set up on which reliance is placed. 
 An affidavit in support of an adverse claim under sec. 37 of the Jlineral Act, 
 
 1891, and amendments, may, if bona fide, be made by the husband of the 
 
 claimant. 
 Costs of appeal will not be given to an appellant who succeeds on a point not 
 
 taken below. 
 Decision of \^'ALKEJI, J., rever.^ied on these points. 
 Per AValkem, J. : — The foundation or root of title to a mineral claim depends 
 
 upon the proper location, i.e., a location made in accord with the rules pre-, 
 
 scribed in the Mineral Act. 
 Failure to mark the location line invalidates the location. 
 After the case of an adverse claimant has been closed, and while a motion for 
 
 nonsuit is being argued, the case will not be re-opened to enable the plaintiff 
 
 to gi\-e fresh evidence in support of his location. 
 
 Adverse action brought under the Mineral Act of 1891, as Stutpiueut. 
 amended by chapter 32 of the Act of 1892, sec. 14, sub-sec. 2, and 
 subsequent Acts. The action amis coniiiienced in the County Court 
 on 4tii January, 1896, and was afterwards transferred to the Supreme 
 Court. 
 
 The plaintiff, Mary Jane Aldous, was the owner of the mineral 
 claim Berlin, located in August, 1894, and the affidavit leading to the 
 adverse claim was made by her husband, George Aldous. 
 
 The action was tried at N'elson, before Walkem, J., on 31st June, 
 1896, and after hearing the evidence it was ordered to stand over for 
 argument which subsequently took place on 27th February, 1897. 
 After plaintifi's case was closed, and during the argument on defend- 
 ant's motion for non-suit, Mr. Wilson asked leave to call a witness to 
 prove " 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. 
 
 Argument. 
 
 Cur. adv. vuU. 
 
 April 2nd, 1897. 
 
 Walkem, J. : — This case is one of an " adverse claim " brought 
 under the laws relating to minerals (other than coal) which Were in 
 force prior to 1896. The mineral ground in dispute may be shortly 
 described as an " overlap " in the locations of each of the parties. 
 
 Judgment 
 
 below, 
 
 Walkem, .J. 
 
•214, 
 
 MARTIN'S MINING CASES. 
 
 [vot. 
 
 1897. The defendant's counsel contends, that as the plaintiff's proceed- 
 
 July^2. ij^gg^ ^£^g^ ^j^g filing of her "adverse claim/' were brought in the 
 KuLL CouKT. ,County Court, they were not brought " in a Court of competent juris- 
 diction" within the meaning of section 83 of the Mineral Act, 1888. 
 A decision on this point is, in my opinion, needless, as his next objec- 
 tion, namely, that the plaintifE has not shewn that she ever complied 
 with the requirements of sec. 3 of the Mineral Act of 1893, ch. 39, 
 in the matter of defining her main line by jjosts or the blazing of trees, 
 sceins 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 pro- 
 vision from the Act on the ground that the words, " When the claim 
 has been located " must imply that a location sufficient to satisfy the 
 law has been made when the previous requirements of section 3 have 
 been complied with, and that, therefore, the marking of the line be- 
 tween posts 1 and 2 by intermediate posts, or by the blazing of trees, 
 &c., might be dispensed with as superfluous. The Legislature, it 
 will be observed, refers to that line as being the " location line," and 
 the word " located " would seem to have been used as a consequence 
 of the " location line " having been decided upon. One can, in an 
 ordinary 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 regu- 
 lation cannot be dispensed with. 
 
 The result is that the plaintiff's or claimant's case must be dis- 
 missed with costs. 
 
 Judgment 
 
 below, 
 Walkem, J. 
 
 Appeal. Prom this judgment the plaintiff appealed on the grounds, amongst 
 
 others, that the Judge erred in refusing to receive' evidence of ' the 
 blazing of the line, and that blazing of the line between posts 1 and 3 
 is not imperative nor a condition precedent, and forms no part of the 
 location and location complete without it^ 
 
I.] ' ALDOUS.y„iBA^igtl>^S CO. 215 
 
 The appeal was argued 3rd and" 4th May, 1897, before Davie, ^IW-^ 
 
 €. J., McCrbight and McColl, JJ. — — 
 
 FuLi Court. 
 Wilson, Q.C., for appellant. — 
 
 McCbeioht, J 
 Davis, Q.C., for respondent. Argument. 
 
 Cur. adv. vult. 
 
 July 13th, 1897. 
 
 The Judgment of the Court was delivered by 
 
 McCkeight, J. : — This was an action of trespass brought for the 
 purpose of enforcing an adverse claim under the Mineral Act of 1891, 
 as amended by chapter 33,of the Act of 1892, sec. 14, sub-sec. 2 and 
 subsequent Acts. The learned trial Judge held as the plaintiff had 
 not shewn that she had complied with the requirements of section 3 
 of tjie Mineral Act of, 1893, ch. 29, in the matter of defining her 
 main line by posts or the blazing of trees, she could not recover. His 
 attention does not seem to have been drawn to Order XIX., Eule 14 
 of the Supreme Court Eules,' of which it is said in .Odgers on Pleading, 
 2nd ed., at p. 64: "Although it is not any longer necessary for a 
 plaintiff to plead the due performance of all conditions precedent to 
 his right of action, yet the burden of proving the due performance 
 is still on him, if the defendant specially plead no performance." 
 'Now, in the statement of defence there is no plea referring to the de- 
 fining of the main line by posts or the blazing of trees, for paragraph 
 4 merely says that no adverse claim as required by the Mineral Act, 
 1891, &c., has been filed herein, and Odgers further remarks, referring 
 to Order XIX., Eule 14, at p. 64, that the party who desires to contest 
 the performance or occurrence of any condition precedent must raise 
 the point specifically in his pleading, and neither party need allege the 
 performance of any condition precedent. Our attention was called 
 in the Full Court to Order XIX., Eule 14, and I don't understand 
 Mr. Davis, for the Hall Mines Company, now to rely on that point, 
 though it seems to have been the ratio decidendi of the learned trial 
 Judge's judgment in favour of the Mines Company. He, Mr. Davis, 
 confined his argument in the Full Court to the points which he raised 
 under paragraph 4 of tiie statement of defence, namely, that there 
 was no proper adverse claim by plaintiff through want of an affidavit, 
 which should have been made by the plaintiff, Mary Jane Aldous — and 
 that that which was made by her husband was useless; and that the 
 action was not commeiiced within the required time, or any 
 extension obtained which became necessary, as the case was re- 
 moved from the County Court, which he contended had no jurisdic- 
 tion as to adverse claims. The first point as to the absence of an 
 affidavit by the person making the claim, that is, Mary Jane Aldpus, 
 seems at first sight, according to section 14 of the Mineral Act, 1891, 
 
 Judgment. 
 
216 MARTIN'S BONING CASES. [vol. 
 
 I8ft7. Amendment Aety 1892, to be formidable, but I think Mr. Davis did 
 aiy_i2. ^^^ suflSciently attend to section 10 of the Mineral Act of 1891, Amend- 
 FuilCourt. ment Act of 1893, which amends the section of the Act of 1892, and 
 McCreight, J reads as follows in the proviso to the section : " Provided, however, 
 that if an adverse claim has in the opinion of the presiding Judge 
 been bona fid& 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.'" 
 Now surely the mistake of having the affidavit, made. by the husbg.nct 
 instead of by the wife, appears to fall within the purview of this 
 proviso, and the attention of the learned Judge shoiild have been 
 called >to the question of whether the adverse claim had been hma fide 
 made or not. I- think there shpuld be a new trial on this ground. ' 
 The policy of the Legislature, judging from 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 b.rought, 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. 3. 
 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. 2j 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 re- 
 spect of the claim or the portion thereof which he or they shall appear 
 from the decision of the Court to rightly possess. McGinnis \. Egbert 
 (1884), 15 Mprr. 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 fronl ours. I don't 
 wish to be understood as expressing an opinion in favour of Mr. Wil- 
 son's contention that the adverse claim may be enforced by an action 
 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 procedure in 
 
I.] ALIX)US V. HALL MINES CO. 217 
 
 an ordinary action o£ trespass. Indeed, perusal of siib-secs. 1 igy;.- 
 and 2 of see. 14 shews this. For the adverse claim must be filed ^alyV2. 
 before the expiration of the period of publication in the next pre- Full Couet. 
 ceding section mentioned, that is, in sec. 36 of the Act of 18'J1, or a -v^talkeji, J. 
 period of sixty days. Again, the Statute of 1891, sec. 34, gives the 
 miner a right or interest in his claim which he had not at common 
 law, and as a remedy for breach of that right in a case like the pre- 
 sent of an adverse claim given by sub-sees. 46, 47 and 48 of the same 
 Act, coupled with sec. 149, sub-sees 4 and 5 of the same Act, and 
 sec. 14 of the Act of 1892, to be read in lieu of sec. 37 of the Act of 
 1891, it should seem that the procedure by way of adverse claim pre- 
 scribed by the Act of 1891, as so amended, is compulsory; see the 
 language of Mv. Justice WiUes in The Wolverhamplion N. IT. Oo. v. 
 Hawlesford (1859), 28 L. J., C. P. at p. 346, where he says: '■ There 
 are three classes of cases in wliich a liability may be established liy 
 statute, &c., &c. The third class is where the statute creates a lia- 
 bility not existing at common law, and gives also a particular remedy 
 for enforcing it, &c., &c., and as with respect to that class it has 
 been always held, that the party must adopt the form of remedy given 
 by the statute." It seems difficult to maintain the argument that 
 an action of trespass lies independently of the remedy by adverse 
 claim, though it may be a proper way of enforcing an adverse claim 
 in the manner prescribed by sec. 14 of the Act of 1892. I have made 
 these remarks as they refer to points alluded to in the argument, and 
 I do so without any intention of giving a decided opinion upon any 
 of them, but for the reason I have already given I think the judg- 
 rnent of the learned trial Judge cannot stand, and that there mvist 
 be a new trial, either party having liberty to amend- his pleadings as 
 he may be advised, costs of the first trial to abide the result of the 
 second, but no costs of this appeal, as the point was not taken before 
 the trial Judge. This seems to be the practice of the Lord Justices, 
 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 An- 
 nual Practice of 1896, p. 1050, and Goddard v. Jeffreys (1882), 46 
 L. T. N. S. at p. 905, 
 
 New trial ordered. 
 
 Kew triaL 
 
 Pursuant to the order of the Pull Court the case came down for 
 trial at Nelson, on 26th October, 1897, before Walkem, J., who dis- 
 missed the action in the following judgment: 
 
 Walkem, J. : — The plaintiff in this adverse claim is a married judgment 
 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 
 
:218 MAliTIN'S MINING CASES. [vol. 
 
 Juf"i''' ^^™6, and, as he states, as her agent. As such he has also brought 
 
 — "■ this adverse claim on an aiBdavit of verification made by himself. 
 
 FdllCoukt. Tiijs affidavit is objected to on the ground that, according to sec. 14 
 
 Walkem, J. of the Mineral Act of 1892, as amended by sec. 10 of the Mineral 
 
 Act of 1893, it should have been made by the plaintiff. 
 
 The amended provision is as follows: 
 
 " Any adverse claim to be filed shall be on the oath of a person or persons 
 making the same, and shall shew with reasonable particularity having regard to 
 all the circumstances of the case, the nature, boundaries and extent of' suoh. 
 adverse claim. Provided, however, that if an adverse claim has, in the opiniciq, 
 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." 
 
 It is clear that this proviso, in view of the context, merely au- 
 thorizes a liberal construction on the section to be given in respect 
 of the so-called reasonable particularities required to be stated; but 
 I cannot accede to the proposition of the plaintiff's counsel that it has 
 the effect of repealing the foremost or principal enactment in the 
 section, namely, that "any adverse claim to be filed shall be on the 
 oath of the person or persons making the same." This enactment 
 would seem to have been borrowed from sec. 2326 of the Revised 
 Statutes of the United States, which is as follows : " Where an adverse 
 claim is filed, during the period of publication it shall be upon oaih. 
 of the person or persons making the same," &c. 
 
 This provision was literally construed by the United States Courts; 
 hence to enable an adverse claim to be instituted on an agent's oath- 
 it was considered necessary by Congress to pass an Act, which it did' 
 on 26th April, 1882, to permit it. No such Act has been passed here. 
 
 Ou]- Rules of Court in cases of "Attachment of Debts" (see Order 
 XLV.. Rule 1) provide that a garnishee order may be issued on an 
 affidavit of the " plaintiff or his solicitor." 
 
 It has frequently been held by myself, as well as other members 
 of the Court, that an affidavit of any other persoiT than the " plaintiff' 
 or his solicitor," was insufficient. 
 
 When the language of a statute is clear and unambiguous, as it is 
 in the present instance, it must be followed. 
 
 The plaintiff's claim to a strip of ground marked "A" on the 
 plan produced at the trial, was abandoned at the trial. But this 
 is neither here uor there, for the foundation of this claim, namely, 
 the affidavit of Mrs. Aldous, is wanting. The claim must, therefore, 
 be dismissed with costs. 
 
 Action dismissed with costs. 
 
 Note. — As to pleading, see Eogg v. Farrell, ante, p. 79, and note thereto. 
 As to affidavit of adverse Claim, see Paulson v. licuman. prist, p. 471. 
 As to defects in location, see list of decisions in note to Manic;/ v. Collom, 
 po-tt, p. 487. 
 
I.] 
 
 TKOUP V. KILBOURNE. 
 
 219 
 
 Teoup v. Kilboubne. 1897. 
 
 August 19 
 (5 B. C. 547.) 
 
 Adverse Action — Abandonment of — Setting Aside Adverse — Writ — Service — ' 
 
 Year — Practice — Mineral Act Amendment Act, 1S92. 
 
 It the writ in an adverse action is not served within a year tlie action is out 
 of Court and no order can be made therein. 
 
 Motion to set aside the writ of summons in the action and all pro- Statement, 
 eeedings thereunder, and to vacate the adverse claim. The facts fully 
 appear from the judgment. 
 
 A. E. McPhillips, for the motion. Argument. 
 
 Gordon Hunter, contra. 
 
 August 19th, 1897. 
 
 Dhake, 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 
 Kootenay, on 25th February, 1896, and affect the Ajax and Treasure 
 Vault claims. The writ in the action has never been served, and by ' 
 Eule 31 is no longer in force, and there is no action pending in the 
 Court. The dcLuidnnt. 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, see. 14, enacts that 
 a failure to commence or prosecute proceedings by the adverse claim- 
 ant, 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 Eecorder 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, withotit costs. 
 
 Motion dismissed. 
 
 Judgment. 
 
 Note. — ^But see the mode of filing ad\ierse claim now in force under Mineral' 
 Act, 1896, sec. 37 and amendments. 
 
 As to lapse of action, by expiry of writ, see Honey \. Diinlop, post, p. 311. 
 
220 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 1898. EeGINA V. LiTTtE. 
 
 January 28. ' 
 
 Full Court. (G B. C. 78.) 
 
 Chinese — Coal itine, Underground working in — Conviction — Prohihilion without 
 Penalty — Crown — Costs — Coal Mines Regulation Act, C. iS'. B. C. 1888, eh. 
 84, sec. 4< o"* Amendiment — Interpretation Act. 
 
 The defendant was convicted before two Justices oC tlw Peace of liaving em- 
 ployed a Chinaman in a coal mine under ground, and was fined $100.00. 
 
 Upon application for certiorari to quash the conviction. 
 
 Held, That a contravention of the amendment to sec. 4 prohibiting the employ- 
 ment of Chinamen was not made an offence under thfe Act for which any 
 penalty is imposed and that the penal Act should not be extended beyond the 
 reasonable construction which the words used would bear. 
 
 The Interpretation Act, sec. 8, sub-sec. 21, providing that " any wilful contra- 
 vention of any Act which is not made an offence of some other kind shall be a 
 
 ' misdemeanour and punishable accordingly," did not assist the eonviptioii. 
 
 Decision of Drake, J., affirmed. 
 
 Statement. APPLICATION by Francis Dean Little, manager of the Union 
 
 Colliery Company, for a writ of certiorari to bring np and quash his 
 conviction had before two Justices of the Peace for the employment 
 of Chinamen in the company's coal mines below ground contrary to 
 sec. 4 of the Coal Mines Eegulation Act* as amended by sec. 1 of the 
 Coal Mines Eegulation Amendment Act, 1890, by which he was fined 
 ."$100.00 in respect of the oifeiice cliarjjed. The grounds of the applica- 
 tion were that the employment of Chinamen was not made an offence 
 by the Act, and also that the prohibition of Chinamen from working 
 in coal mines as provided was unconstitutional and ultra vires of the 
 Provincial Legislature as being an interference with the question of 
 aliens and their rights in this Province. 
 
 Argument. Robert Cassidy, for the application. 
 
 Gordon Hunter, contra. 
 
 Cur. adv. vult. 
 
 *Sec. 4. — " No boy under the age of twelve years, and no woman or girl of 
 any age, shall be employed in or allowed to be for the purpose of employment 
 in any mine to which this Act applies below ground." By sec. 12, if any person 
 contravenes or fails to comply with, &c., "any provision of this Act with re- 
 spect to the employment of women, girls, young persons, boys or children, he 
 shall be guilty of an offence against this Act." By sec. 95, "every person who 
 is guilty of an offence against this Act shall be liable to a penalty not exceed- 
 'ing, if he is . . . the manager, $100.00." 
 
 In 1890, sec. 4 was amended by inserting the words, " and no Chinamen " 
 after the word " age." 
 
I.] RBGINA V. LITTLE. 22.1 
 
 June 12th, 1897. 1898. 
 
 January 28. 
 
 Deake^ J.: — A rule was obtained. in two cases which are exactly Feu. Court. 
 similar, except that the Chinamen employed are different. The judgment 
 grounds of the rule are that the convicting Justices had no jurisdic- -p^^'^jj^-j 
 tion; that the Coal Mines Regulation 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 .con- 
 victions quashed, and all moneys paid by the defendant in respect 
 thereof must be returned. 
 
 The employment of Chinamen underground is f orbidden> by the 
 Amending Act, 1890, but any such employment is not macje an of- 
 fence under the Act, for which any penalty is imposed. Section 12 
 of the Coal Mines Eegulation Act, C. S. B. C. 1888, states in detail 
 the several breaches of the preceding sections which shall be con- 
 sidered 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. All deal with particular cases, which are to be treated 
 as offences against the Act. The Legislature has been very care- 
 ful in the enumeration of these various breaches for which pen- 
 alties utder 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 case 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. 31, 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 punish- 
 able accordingly." 
 
 Independent of the question whether the Provincial Legislature 
 can, in view of the British Forth 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 Eegulation 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. 
 
 JanuMy 28. ^i^^tenant-Goveriior-in-Couiicil. It is not usual to give costs in 
 — questions where on certiorari the conviction is quashed, so there will 
 ^'"■^^°"«''- be no costs. 
 
 Conviction quasMd. 
 
 Appeal. 
 
 Prom this judgment the Crown appealed to the Full Coiirt, and 
 the appeal was argued before Davie, C.J., Walkbm and Ieving, 
 J J., on January 38th, 1898. 
 
 Argument. Gordon Hunter, for the appeal. 
 
 Robert Cassidy, contra. 
 
 Judgment. 
 
 Per Curiam: — We think the judgment of the learned Judger 
 appealed from is correct, and we think the appeal should be dismissed, 
 but that costs shjould not be ordered against the Crown. 
 
 Appeal dismissed without costs. 
 
 Note. — ^As to constitutionality of this Act see Re Coal Mines Regulation 
 Act, 1890, ante, p. 116 ; and Bryden v. Union Colliery Co., post, p. 337. 
 
I.] BSQUIMALT & NANAIMO RY. CO. v. NEW VANCOUVER COAL CO. 
 
 223 
 
 ESQUIMALT & NaNAIMO RY. Co. Y. NbW VANCOUVER COAL CO. 
 
 1808. 
 February 7. 
 
 Full Coukt.. 
 
 (6 B. C. 194.) 
 
 Practice — Coal Mines — Inspection of — When Ordered — Order, Form of — 
 
 Rule in. 
 
 Where defendants admit working within the area of certain coal fields claimed 
 by the plaintiffs, the plaintiffs are entitled before pleading to have inspecti.m 
 'by their own agents. 
 
 Form of order considered. 
 
 Appeal to the Full Court by the defendants from an order of Statement. 
 WalkeMj J., allowing the plaintiffs to inspect before the delivery of 
 ■pleadings all the workings of the defendants under the sea in Nan- 
 aimo Harbour. The plaintiffs' claim was for trespass and taking 
 their coal from under the sea opposite their lands at ISTeweastle Town- 
 site, Nanaimo District, and for inspection of the defendants' work- 
 ings 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 
 plaintiffs' coal and. the quantity of coal got out by them. Tli.j 
 motion was argued before Walkem, J., on 3nd February, 1898. 
 
 Pooley, Q.C., and Bodwell, for the motion. 
 Helmcken, Q.C., and Hunter, contra. 
 
 .A rgument.. 
 
 Cur. adv. vult. 
 
 February 3rd, 1898. 
 
 Walkem^ J. : — The plaintiff company claims to be the owner 
 under Dominion and local legislation known as the '" Settlement 
 Acts," and under a Crown patent issued conformably to these Acts, 
 of all the coal beneath Ifanaimo Harbour. There is no dispute be- 
 tween the plaintiff company and the defendant company as to the 
 place under the harbour from which the latter company is now 
 taJcing out coal, but the plaintiffs ask for an order for inspection, hav- 
 ing commenced legal process against the defendant company for the 
 ptirpose of asserting its title to the coal lands in question. I think,. 
 
 Judgment 
 
 below, 
 
 Walkem, J.. 
 
224 MARTIN'S MINING CASES. pvoL. 
 
 FeWr 7 ^ ^^®^ °* *^^ '^^^^ °^ 5eftni<i V. Whitehouse (1859), 39 L. J., Cli. 336, 
 — '■ the plaintifE company is entitled to the order asked for. The mere 
 Toll Cohkt. admission of the defendant company that the work is now going on, 
 is not, in my opinion, sufficient reason for refusing the order, because 
 the plaintifE 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 
 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, "fhe order might folloy 
 the terms of the order in the; case cited, but the number of surveyor's 
 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 inspec- 
 tion expenses and the expenses of any men from the defendant com; 
 pany's works who are either made use of in course of the inspection 
 below," 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 this 
 Court may make as to damages in case this Court should herea f ter ■ 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 ovight to pay, and 
 plaintiffs, by counsel aforesaid, further undertaking that any information 
 obtained by them in the course of the inspection hereinafter referred to shall be 
 used by them for the purposes of this action only : Ordered, That the plaintiffs 
 shall be at liberty, on giving twenty-four hours' notice to the defendants; to go 
 down into the defendants' mine and without doing any injury to inspect all the 
 workings under the sea in Nanaimo Harbour, within the boundaries indicated 
 by the dotted lines on the blue print marked Exhibit " C " to the said affidavit 
 of William G. Pinder, and for that purpose to take such surveyors, assistants 
 and persons as the plaintiffs may choose, not to exceed eight in number, with 
 liberty of measuring, latching and dialling the mine within the limits aforesaid, 
 and of making plans of the working of the defendants therein ; and with liberty 
 also to make such measurements and observations as may be necessary to in- 
 dicate the locality of the said workings with reference to the surface of the 
 harbour within the said limits ; and for all or any of the, purposes aforesaid 
 the plaintiffs and their surveyors and assistants as aforesaid may enter the 
 defendants' mine at such place as they shall deem most convenient, and shall also 
 have the right to use the machinery of the defendants for descending and 
 ascending to and from the said mine and workings." 
 
 Appeal. Prom this order the defendants appealed to the Full Court on 
 
 the grounds that the order was unnecessary, the defendants haviAg 
 admitted mining for coal within the area claimed by' the plaintiffs ; 
 
I.] ESQUIMALT & NANAIMO RY. CO. v. NEW VANCOUVER COAL CO. 225 
 
 that the plaintiffs were not entitled at this stage to know more than iggg. 
 the situs of the defendants' workings within the said area ; and that February 7. 
 if the plaintiffs failed in the action irremediable injury would be done full Coukt. 
 the defendants by reason of the information. as to the business of the 
 defendants which the plaintiffs would be able to obtain by reason of 
 the order appealed from. 
 
 An application was made to stay proceedings pending an appeal, 
 which was refused, and as no regular sittings of the Full Court would 
 take place before thetime named for inspection, an order for a special 
 sitting of the Pull Court was made on application to the Chief Justice. 
 
 The appeal was argued 7th February, 1898, before Davie, C.J., 
 and Dkake and Irving, JJ. 
 
 Helmchen, Q.C., and Hunter, for the appellants: The cases where Argument, 
 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; omerwlse if they 
 fail the parties will have been put to useless expense, and gross in- 
 justice may be done the defendants by allowing -the plaintiffs to in- 
 spect 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. P. & J. 529. 
 
 Pooley, Q.C., and Duff, for the respondents : There is absolutely 
 no limit to the power of the Court under Eule 514, and by Eule 517 
 an order for inspection may be made at any time after issue of writ : 
 Smith V. Peters (1875), 20 Bq. 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 
 be gone: Lewis v. Marsh (1849), 8 Hare 97; East India Oo. v. 
 Kynasion (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. 
 
 M . M . C . 15 
 
226 MARTIN'S MINING CASES. [vol. 
 
 1898. , tt is not necessary to sljew a prima facie case of title, but only that 
 
 e ruary . g^^^g^^g necessary to prove the plaintiffs' case at the trial may be lost 
 FdilCohbt. uiiless inspection is ordered: Vetati v. Braham (1877), 4.6 L. J., 
 . C. P. 415. 
 
 Judgment. pg^ CuEiAM : — The Court is unanimously of the opinion that the 
 plaintiffs are entitled to have inspection made of the defendants' work- 
 ings, but the terms on which the inspection will be made will be varied 
 so that the defendants' interests will be better safeguarded. The 
 parties will 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, such 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 inspec- 
 tion should be made from that way. 
 
 Order. 
 
 Order varied. 
 
 The minutes of the order as finally settled by the Court, were as 
 follows : 
 
 " And the plaintiffs, by their counsel aforesaid, further undertaking that any 
 information obtained by them through or by reason of this order or of said 
 inspection, shall not he used or disclosed by them except for the purposes of 
 this action only. Ordered, That the said order be discharged ; that the plaintiffs 
 are entitled to have inspection made of that portion of the defendants' mine 
 under the sea, in the harbour of the City of Nanaimo, within the boundaries 
 Indicated by the dotted lines in the blue printed plan filed with the Registrar 
 of this Court and marked Exhibit " C " to the aflBdavit of W. G. Finder, sworn 
 the 2nd of February, 1898, and duly filed ; and to have the said portion of the 
 said mine measured and dialled, and to have a plan or plans made of the work- 
 ings of the said portion of the said mine, and to ascertain the amount of coal 
 removed from the disputed area. 
 , " That the persons to make said inspection, measurements, dialling and plans. 
 
 shall be the following and no others, namely : .Toseph Hunter, of the City of 
 Victoria, Civil Engineer; F. C. Gamble, of the said City. Civil Ehgineer; and 
 in case either of the above gentlemen are unable to act, Mr. H. P. Bell, Civil 
 Engineer, shall supply the vacancy : 
 
 " That for the purposes aforesaid the said Engineers shall be at liberty to 
 
 appoint and employ such assistants and chainmen as may jbe necessary, except 
 
 such persons whose names have been objected to by the defendants, and whose 
 
 names have been handed in to the Court ; 
 
 " That such inspection shall commence oh or after the 1st of March next, 
 
 between the hours of 10 p.m. and 6 a.m., and shall be continued for as many 
 
 days as may be necessary durlr)g said hours ; 
 
I.] ESQUIMALT & NaIMAIMO RY. 00. v. NEW VANOOUVBR OOAL CD. 22T 
 
 " That the defendants shall be at liberty to have their fire bosses accom- ]ggg 
 
 pany all or any of the persons aforesaid during the said inspection for the February 7. 
 
 purpose of protecting such persons from endangering either themselves or the 
 
 said mine, and for such purposes the said persons shall obey .all directions of Full Couht. 
 such fire bosses in this behalf ; 
 
 " That the said Engineers may be accompanied by a fireman to be nominated 
 by the plaintiffs, who shall be satisfactory to the defendants ; 
 
 " That the said inspection shall be had by way of Protection Island shaft, 
 and shall be had without doing any injury to the defendants' mine, with liberty 
 to use the defendants' machinery for the purposes of descending and ascending 
 into the said mine ; 
 
 " That the said Engineers do make one or more reports in duplicate, of such 
 inspection, measux-ement and dialling of the said portion of the said mine, and 
 also a plan or plans thereof in duplicate, and do deliver one of such duplicate 
 reports and plans to the plaintiffs, and the other to the defendants, and do also 
 report the quantity of coal taken from the disputed area by the defendant 
 company ; 
 
 " That subject to the further order of a Judge or Judges of this Oourt, no- 
 information whatever, other than is herein permitted, shall be disclosed by the- 
 said Engineers, assistants, chainmen, fire bosses or firemen, or any of them, to 
 any person or persons whatever ; 
 
 " That the costs of and incidental to such inspection, measurement, reports- 
 and plans, together with the costs of and incidental to the said order be borne 
 by the plaintiffs, except as to the remuneration of the Engineers, which are to 
 be paid in the first instance by the plaintiffs and to be eventually borne by such 
 party as the trial Judge or a Court of Appeal may direct. 
 
 " That the costs of the motion and appeal be costs in the cause, &c." 
 
 Note. — See on this subject : Centre Star v. Iron Mask Go., post., pp. 267, 
 362 ; and Star Mining Co. v. Byron White Mining Co., post, pp. 468, 513. 
 
228 
 
 MARTIN'S MINING CASES. 
 
 [TOL. 
 
 1898. 
 April 0. 
 
 Ceeelman V. Clabke ET AL. 
 
 Ibving, J. Location — Invalidity — Post — Aliandonment — Re-location — Mineral Act, sec. IS, 
 
 sui-sec. (d). 
 
 Failure to put up legal posts, as required by the Mineral Act, invalidates a 
 location, unless cured by sec. 16, sub-sec. (d). 
 
 The curative provisions of that section are intended as a shield for the protec- 
 tion of locators, and to be invoked by them, and not as a weapon of attack 
 upon them. 
 
 It is not necessary to record the abandonment of an invalid location before re- 
 location. 
 
 Statement. 
 
 Argument. 
 
 Adverse action tried at Nelson on March 23rd, 1898, by Ieving^ J. 
 The facts appear from the judgment. 
 P. McL. Forin, for plaintiff. 
 Sutton, for defendants. 
 
 Cur. adv. vult. 
 
 April 16th, 1898. 
 
 MTudgiuent. Ieving^ J. : — The ground in question has, at different times, been 
 
 claimed by all three parties to this action. In this action the dispute 
 is really between the defendant, Ellen Clarke, and the plaintiff. The 
 other defendant, Eobert Clarke, claims no interest in the property. 
 
 The ground was originally (14th August, 1895,) taken up by the 
 defendant, Eobert Clarke, who, on the 30th August, 1895, recorded it 
 as the Boys mineral claim, and thus, the claim in ordinary' course 
 would be a valid and subsisting claim " equivalent to a lease for one 
 year" until August, 1.896. Eobert Clarke, however, in staking the 
 ground, had omitted to use a stake of the prescribed dimensions, that 
 is, the sides squared or faced did not measure four inches — I find 
 this as a fact. 
 
 Having heard that this defect in staking was fatal, he, acting as 
 agent for his wife, the defendant, Ellen Clarke, a free miner, located 
 the same ground in her name on the 20th December, 1895, recorded 
 on the 26th December, 1895. She caused the assessment work to be 
 done and obtained and recorded the same on the 15th December, 1896, 
 and 27th December, 1897 (the 26th December, 1897, when it should 
 have been recorded, being Sunday), respectively; I find that she 
 complied with the Mineral Acts, in all respects, so far as she was con- 
 cerned. 
 
I.] OREELMAN v. CLARKE et al. 229 
 
 The plaintiff by his agent having, in going over the ground in igga 
 April, 1896, discdvered that there were two locations of the claim, he Apni^e. 
 accordingly made enquiries at Midway and found that there no aban- Ikving, J. 
 donment 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. : 31st 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 31st 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 30th Deeember, 
 1893, 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 
 kldne 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 Ntlson £ 'Fort Sheppard Railway v. Jerry (1897), 5 B. C. at p. 
 431, anie, p. 161, " sec. 37 prescribes the proper method of abandon- 
 ment by giving notice in writing of such intention to abandon to the 
 Mining Eecorder." 
 
 I would draw attention to the fact that in that decision the learned 
 Judge inferentially points out that the doctrine of surrender by oper- 
 ation 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. Poppeiuell (1863), 13 C. B. N. S. 334. But be that as it 
 may, I propose to deal with this ease upon the grounds relied upon 
 in argument. 
 
 In Pellent 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 o'ther 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 iona fide attempt on his part to comply with 
 the law), relieve the defendant under the amendment made in 1896, 
 
 * Now reported at p. 134. 
 
230 MAjRTIN'S MININP CASES. [tol. 
 
 ^1898.^ HOW s»b-sfic. (d) of 86,0." 10 of the Eev. Stat. eh. 135. But this is not 
 — ' an aption of that sort at all, and further, that the defendant does not 
 Irving, J. ask or wish to be relieyed. 
 
 The plaintiff, to upset Ellen Clarke's locations, relies on two secr 
 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 pMn that see. 27 can only apply where 
 a man has a valid 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 nqt 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 in- 
 tended to be covered by his stakes. In any action for the possession 
 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 fidfi 
 attempted to comply with the law, &c. 
 
 Before the abandonment clause (originally introduced into tli^e 
 Mineral Act in 1891) was passed, it was quite possible for a miijifif 
 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. Boehn 
 (1884), 26 Ch. D. 405. It was inserted so as to enable a free minpr 
 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 originally intended to facili- 
 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 pf 
 the intention to abandon was for his benefit, but in this case the plaiii- 
 tiff 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 con- 
 tention; cf. Beadhead v. Midland By. Co. (1867), L. E. 2 Q. B. 419. 
 
 The passage cited, if taken alone and without reference tp the 
 particular facts of that case, I admit, gives colour to the plaintiff's 
 argument, but neither the sections relating to abandoiime:^t nor th.e 
 passage in the judgment referred, lay down that where there has bpen 
 an invalid locatioji there must be a recorded abandonment in writijig. 
 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 
 
I.] 0RB]j3L,MAN v. CLARKE et al- 231 
 
 abandonment in writing and obtained permission to re-locate, but I .^*??-„ 
 think he might also rely on the ^mendmeAt (d) of sec. 16 of the E — ' 
 present Act, or upon the healing provisions of sec. 28 of the same Act. Ihvins, .J. 
 With reference to the passage cited, I would point out that there that 
 Pull 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 intro- 
 duced 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 th|at the sec- 
 tions of the Act relating to the location of claims must be construed 
 strictly, and on the other hand full effeqt to the remedial clauses 
 should be given, but it was never intended that the insertion of the 
 remedial clauses was to impose a,dditional restrictions on tla,e 
 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. 
 
 Judgment accordingly,. 
 
 Note. — ^As to necessity of recording abandonment : see Grainger v. Eot^er- 
 ingham, ante, p. 71 ; Pellent v. Almoure, atpte, p. 134 ; Bunlop v. Haney, post, 
 p. 369; and sees. 32 and 108 of the Mineral Act. R. S. B. C. cap. 135. ' 
 
 As to abandonment generally : see Williams Crefk, &c., Vo. v. Synon, ante, 
 p. 1. 
 
 As to defects in location: see in note to Manley v. Gollom, post, p. 487, list 
 of cases on that subject. 
 
232 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1898. 
 May 9. 
 
 FoLL Court. 
 
 Statement. 
 
 Argument. 
 
 DuNLOP V. Haney. 
 
 (6 B. C. 169). 
 
 Practice — Parties — Adverste Action — -Joinder of Defendants — Ejectment — Claim- 
 ants 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 Walkbm, 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 Dnnlop, 
 as administrator of Thomas D. Dnnlop, deceased. The statement of 
 claim alleged that Thomas D. Dnnlop 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 repre- 
 sented 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 3nd 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 subsec|,uent to August, 
 1890, each acting independently of the other, staked out claims known 
 as the Legal Tender, Olivett, Copper Chief, and Legal Tender Frac- 
 tion, 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 can- 
 cellation 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. R. 165; Smurthwaite v. Hannay (1894), A. C. 494, and 
 Sadler v. G. W. By. Co. (1896), A. C. 450. 
 
 Lawson, for the defendant Clark. 
 
 White (Eberts & Taylor), for the plaintiff, contra. 
 
 Cur. adv. vult. 
 
I] DUNLOP 7. HANET. 233 
 
 I'ebruary 28th, 1898. I8tf8. 
 
 May 9. 
 
 Walkem, J. : — This summons is to strike out Mr. Haney's name, Full Court. 
 on the ground that he is improperly joined as a defendant. The judgment 
 statement of claim alleges that the plaintiff located the Pack Train below, 
 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, seyerally 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 By. 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 ona 
 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 m 
 consequence of the Crown grant having been applied for. The same 
 rule, 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 party, 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 
 rule, be brought for the possession of the mineral ground in contro- 
 versy, that is to say, by way of ejectment: Becker v. Pugh (1887), 13 
 Pac. Eep. 906. 
 
 Application dismissed. 
 
234 
 
 MARTIN'S MINING OASES. 
 
 [VOL. 
 
 1898 From this jmigmerit the defendant Haney appealed, and the appeal 
 
 iL ■ was argued before Drake, McColl, and Irving, JJ., on the( 3rd 
 JuLL CouHT. li|Jay, 1898. 
 
 Drake, .J. 
 
 Appeal. 
 
 W. J. Taylor, contra. 
 
 Cur. adv. vult. 
 
 A. E. McPhilKps, for the appeal. 
 
 May 9th, 1898. 
 
 Drake, J. : — The plaintiff issued his writ on the 19th Jim^, 1897, 
 and his statement of claim on the 34th June. After setting put hts 
 own title to the Pack Train mineral claim, he alleges that the thre^ 
 above-named defendants staked and recorded three other claims over 
 the Pack Train ground. Their records 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 by Haney, asking that he be struck out of the action as 
 being improperly joined. The argument before the learned Judge 
 was not based on the omissions in the pleadings, but on the ground 
 that under the Mineral Act, R. S. B. C. ch. 135, sec. 37, the right of 
 adversing was limited to one who disputed the right of a claim-holder 
 to obtain a certificate of improvements, and that no action could be 
 commenced until the advertisement referred to in sec. 36 had been 
 published. On a careful consideration of the objects and intent of 
 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 application 
 for a certiiicate 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 relief on an equitable 
 title that the Court of Chancery would formej-ly have given. See 
 General Finance, &c., Co. v. Liberator Building Society (1878), 10 
 Ch. D. at p. 34, 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 pld writ of ejectment, and under the Mineral 
 Act the person adversing can claim possession, or he can claim 
 damages for trespass. The defendants further argued that the 
 
I.] DUxXLOP V. HANEY. . 235 
 
 statement oJ; claim disclosed separate and independent causes Jj^^% 
 of action by separate defendants and no joint liability at all. The .!^' 
 question then is, are these defendants proper parties? The Full Court. 
 •defendant relies on the case of Sadler v. G. W. B. Co. (1896), mcColl, j. 
 A. C. 450. That was an action at law for damages for 
 -separate torts, and each defendant was called upon to answer for 
 his separate acts in respect of sep9,rate causes of action. The present 
 case is of a different class. It is to establish the plaintiff's right to 
 land which a number of defendants claim in whole, or in part, ^s 
 ■belonging to them. Are they properly made parties? In Poore v. 
 Clark (1742), 2 Atk. at p. 515, Lord Hardwicke states the general 
 rule as follows : " If you draw the jurisdiction out of- a Court of law 
 you must have all parties before the Court who will be necessary to 
 make the determination complete, and to quiet the question." In 
 ■Small V. Aitwood (1832), You. at p. 458, Lord Lyndhurst states the 
 rule in a similar way. The object of the su,it is the criterion whether 
 any particular party is, or is not to be made a party. See Calvert on 
 Parties. This being the rule, the plaintiff is right m joining aU 
 parties who claim any right in. the land; but as he has not shewn 
 that Haney asserts or claims any right in the land, he is not properly 
 a party. • 
 
 I think as both parties are wrong there should be no costs of this 
 appeal, with liberty to the plaintiff to amend his cla,im forthwith. 
 
 MoCoLL^ J. : — The question discussed upon the appeal — ^though 
 perhaps not clearly raised by the statement of claim — ^is whether aa 
 adverse claimant, who brings an action, as required by sec. 37 of thq 
 Mineral Act, may properly join as a defendant a third person claim- 
 ing to be entitled to the claim, or some portion of it, under a separate 
 -location, the action being merely for a declaration of the plaintiffrs 
 -right to the claim. 
 
 It was objected for the appellant that the rights of such a defend- 
 ;ant and a third party are so entirely separate that the joinder would 
 be improper, and the cases of Smurfhwaite v. Hannay, and Sadler v. 
 ■0. W. By. Co., were relied upon. It is necessary to examine the Act 
 ior 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 judg- 
 ment. 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 ques- 
 tion to be determined is, how is the third party claimant to assert his 
 right against the plaintiff? 
 
236 mXrtin's mining cases. [vol. 
 
 1898^ It seems to me that the natural and effective way for him to do so 
 
 . ^ ' is by application to be added as a defendant in the action, and if ho 
 Full Couin-. has this right, it follows that the plaintiff might properly have made 
 Irving, J. him- a defendant. What the plaintiff requires, is to establish his 
 right to the claim, not merely as against the particular person who is. 
 applying for the Crown grant, but absolutely, in order that he himself 
 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- 
 ever numerous, 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 whicti 
 is as much at variance with the express provisions, as with the mani- 
 fest intention* of the Act to afford to the lawful holder of a mineral 
 claim speedy means of obtaining a certificate of improvements and the 
 Crown grant. The action is not on contract or for tort, but to estab- 
 lish .the right to property, and inasmuch as the Act gives to the suc- 
 cessful party the right to a Crown grant, whether he is otherwise 
 entitled to it or not, why should he not be required on the one hand, 
 and entitled u^pon the other, to have the question of title determined 
 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 
 interested in the object of the litigation to be made parties, or to be 
 'represented, as, for instance, in actions to esta;blish wills, or by way 
 of interpleader. But apart from this, I own that I am not pressed 
 "with the bbjeciiioui Unless prevented by force of the statute, the 
 duty of the Ccfurt is to determine the rights of the parties under an 
 Act in a reasonable way, and to adapt and apply the rules of Court 
 accordingly. These rules should, if necessary, yield to the Act, and 
 not be allowed to control it. 
 
 With reference to the American authorities referred to by Mr, 
 Justice Walkem, I think, with great deference, that the radical, dif- 
 fefence between the two systems of procedure renders them unsafe 
 guides. , i M 
 
 I agree with the disposition of the appeal , proposed by Mr. .Justice 
 ■Drake. 
 
 Ikving., J., concurred with Deake, J. ,, ,. , 
 
 Appeal dismissed without costs. 
 
 ♦Compare pp, 73, 88, 139, 34(i, 187, 304, 333, .S30, 414, 44fi. 
 
 Note. — As to nature of adverse action : see Clark v. Eaney, post, p. 281. 
 
 As to American authorities : compare pp. 184, 190, 278, 282, 307. 
 
I.] ESQUIMALT & NANAIMO RX. 00. >-. NEW VANCOUVER GOAL CO. 
 
 237 
 
 EsQUiMALT & Nanaimo Eailway Go. V. New Vancouver Coal 
 
 Company. 
 
 - (6 B. g. 188). 
 
 Practioe^l'leading — Embarrassing Statement of Claim- 
 Plaintiffs'. Title— Rule 181. 
 
 ]8'J8. ■ 
 .June 3. 
 
 Walkem, J. 
 
 [in CHAMBERS.] 
 
 -General Allegation of ■ 
 
 In an action by plaintiffs who have never been in possession to recover certain 
 coal seams, the statement of claim should set out particulars of the title 
 under- which the claim is advanced. 
 
 Summons to strike out the following paragrapli of the plain- 
 tiffs' statement of claim, as embarrassing: 
 
 " 3. The plaintiffs are the owners 'and occupiers of certain lands knowp 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. 137. 
 
 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 BuUen & Leake's Precedents, 4th ed., p. 538. Phillips v. Phillips 
 is distinguishable, as there the plaintiff shewed different lines of de- 
 scent 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's view, as the allegation follows the form given 
 in Bullen & Leake; but I am bound by the judgment in Phillips v. 
 Phillips and must order that the plaintiffs amend by giving particu- 
 lars within five weeks. I think it is a proper case for making the 
 costs costs in the cause. 
 
 Order accordingly. 
 
 Statement. 
 
 Argument. 
 
 Juiigment. 
 
 Note, — :See post, p. 284. 
 
238 
 
 MARTIN'S MINING CASES. 
 
 [vor,.. 
 
 1898. 
 July 6. 
 
 Drake, J. 
 
 Statement. 
 
 Argument. 
 
 Judgment. 
 
 Feeo V. Hall. 
 
 (6 B. C. 421). 
 
 Mineral Claim — Statute of Fraud's — Interest in Land — Fraud — Principal and 
 Agent — Trustee — Parol Agreement — Whether Enforceatle — Certificate of 
 Work — Prior Locaton — Title — Mineral Act, 1896, sees. 28, SJ/ and 50. 
 
 The interest of a free miner in his mineral claim is an interest in land, and a 
 parol agreement respecting it cannot be enforced. 
 
 An agent who, pursuant to a parol agreement, locates in his own name a min- 
 eral claim for his principal, will, if he repudiate the trust, be declared a 
 trustee for such principal. 
 
 Where both parties have recorded certificates of work, the title will be deter- 
 mined according to prior location and record. 
 
 Action for a declaration that defendant was a trustee for plain- 
 tifE of a one-half interest in the Great Eastern and Little Bennie 
 mineral claims. 
 
 The trial took place at Ifelson, before Drake, J., or 30th June^ 
 1898. The facts appear in the judgment. 
 
 Galliher, for plaintiil. 
 
 Hamilton, for defendant. 
 
 6th July, 1898. 
 
 Deake, J. : — The plaintiff and defendant are miners. The plain- 
 tiff alleges an agreement ixnder which the parties were to locate cer- 
 tain claims, known to the plaintiff, in their joint names as owners. 
 The agreement is denied by the defendant, but the evidence of in- 
 dependent 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 Ymlr. 
 The plaintiff's story is, that as he could neither read nor write, it was 
 necessary to get some one to go with him to place the notices required' 
 by law on the posts, and he was willing to make over one-half of the 
 claims to the person who accompanied him. He got the defendant to- 
 go with him, and they staked the Great Eastern and Little Bennie. 
 It is not shewn that these two claims were those known to the plain- 
 tiff, they are alleged to be new discoveries. The defendant placed the 
 notices on the posts in his own name, and he admits, as to the Great- 
 Easterh, that his name was used for and on behalf of the plaintiff. 
 As regards the discovery and staking of the Bennie, there is very con- 
 tradictory evidence; what, however, is clear, is that the defendant- 
 
1.] FERO V. HALL. 239- 
 
 recorded this claim in his own name and has done assessment work isgg. 
 on it. July6. 
 
 The defendant relies on the Statute of Frauds and sees. 50 and 38 Dkake, J. 
 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 ease of 
 disputed claims, both parties do the necessary assessment work and 
 obtain a certificate of work, the Court has to fall back upon prior loca- 
 tion 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 ap- 
 plication of this section of disputed claims uncertain, and, in the 
 present case, while it is admitted that both parties have done assess- 
 meni, worl: on both claims, it cannot be held that the certificate of 
 work is conclusive. By sec. 50, no transfer of any interest in a min- 
 eral 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 agree- 
 ments such as alleged here, and, therefore, as far as regards the Bennie- 
 claim, the plaintiff cannot enforce his alleged agreement. But as re- 
 spects 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 re- 
 spect 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' 
 SunsMne, Limited v. Ounningham, post, p. 286. 
 
 As to conflicting certificates of work : see Cleary v. Boscowitz, post, p. 506.. 
 
240 
 
 MARTIN'S MINING CASES. 
 
 [ VOL. 
 
 1898. 
 August 20. 
 
 MOCOLL, .T. 
 
 Statement. 
 
 Argument. 
 
 Judgment. 
 
 ■ BOIE V. Saultee. 
 Location — Invalidity — Date — Title— Mineral Act, sec. 16, suli-seo. (d). 
 
 Failure to write the true date upon the posts of a mineral claim as required by 
 the Mineral Act invalidates the location, unless cured by sec. 16, sub-sec. (d). 
 
 In an adverse action when the validity of a junior location depends upon the 
 validity of a senior location on the same ground, the. curative provisions of 
 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 30th, 1898. 
 
 McCoLL, J. : — The plaintiffs are owners of the mineral claim 
 Standard No. 5 which was located on 33nd May, and recorded on 5th 
 June, 1896. 
 
 The defendants are owners of the Mineral claim Erin, which was 
 located on the 13th and recorded on the 16th June, 1896, and have 
 applied for a certificate of improvements. 
 
 Both claims are substantially 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 been 
 located by one Sutherland though never recorded, the time for record- 
 ing it having, as they contend, expired after the location of the 
 Standard and before the location of the Erin, and (Z) was the Stand- 
 ard 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 loca- 
 tion 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, but 
 without expressing any opinion as to what might have been the effect 
 of the mistake made if the question whether the Shamrock was validly 
 
!■] BOIE V. SAULTBR. 241 
 
 located were raised by some one claiming to be entitled to the Sham- ^*"^',f, 
 rock, I think that the equity of the sub-section can be invoked only "?1^ ■, 
 by such a claimant. MoOoll, J. 
 
 The second question I must also answer against the defendants. ' 
 In case the parties should be desirous of taking the opinion of the 
 Court of Appeal, and do not restrict themselves to the questions dis- 
 cussed before me, I find, lest the view of the trial Judge should be 
 considered material, that in my opinion the plaintiffs are entitled as 
 regards the Standard to the benefit ol the sub-section referred to. 
 
 Judgment for plaintiffs with costs. 
 
 Note. — ^See the next case : and Cleary v. Boscowitz, post, p. 506. 
 
 As to defects and location : see list of cases in note to ManXev v. -VdUom, 
 p. 487. 
 
 16 
 
242 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 October" 20 CaLLANAN ET AL. V. GeOEGE* ET AL. 
 
 _ ^TT ' Location, Invalidity in — Posts — Rock Monuments — Misleading — Mineral Act, 
 Full Court. sec. 16, sul-sec. (d) . 
 
 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 calcu- 
 lated to mislead other locators. 
 
 Decision of McColl, J., affirmed. 
 
 Statement. AdveSse action tried at VanQGuver, by McColl, J., on 18th, 19tli 
 
 and 20th April, 1898. 
 Argument. WH^oti, Q.C., and L. G. McPMllips, for plaintiffs. 
 
 Duff, for defendants Willey and Sherbart. 
 Elliott, for defendant Eay. 
 
 At the trial it aj)peared that in locating the Nashville 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 I'egarded as a substitu- 
 tion 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 hona 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 con- 
 junctive, not disjunctive. The wording of the Act is such that there 
 must be upon the facts proof of a lona 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. 
 
 McPMllips : — No doubt if my learned friend is to pick out of that 
 section the words to which he has referred, and alone referred, they 
 
 * Partly reported in 8 B. C. 146. 
 
I] CALLANAN et al. v. GEORGE et al. 243 
 
 will bear and only bear perhaps the construction which he has placed i898. 
 upon them. But in considering an Act such as this, which has been October 20. 
 framed for the purpose of protecting the rights of prospectors, who Fuil Court. 
 are not supposed to know nor to define the words in the same way as 
 my learned friend would define them, it is necessary in the first place, 
 anyway, to consider not only the words which my learned friend has 
 considered, but the whole section in its entirety, and to take that with 
 what previously has happened and the previous decisions upon this 
 Act, and to construe what is meant or what was meant by the Legisla- 
 ture in the light of those facts. Now, it is not of course permissible 
 for the Court to construe the language differently from what the 
 language in its ordinary sense means, unless there is something in 
 thei Act itself to indicate what the intention of the Legislature was. 
 That intention, I submit, is clearly shewn by the last words of that 
 section, "is not of a character calculated to mislead other persons 
 desiring to locate claims in the vicinity." Now it cannot be said that 
 in so far as the plaintiffs in this case have deviated from the Act that 
 what they have done would mislead anybody. They have put up the 
 posts, they have marked the line ; they have not put up wooden posts , 
 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 pros- 
 pector to merely provide as my learned friend says they have .pro- 
 vided? 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 colnplied with. There is no 
 doubt this marking would mislead no one, because there Tias 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 
 he is straining it, because one cannot help knowing what the Legisla- 
 ture meant, and, therefore, if it is possible to construe it more in the 
 line of what the legislature intended, then it should be so construed. 
 Your Lordship has referred me to the section in which monuments 
 are allowed on the location line. That is the first time it appears 
 in this Act. 
 
 McCoLL, J. : — What I am suggesting is this : There is an express 
 provision here for the case in which there is neither timber nor under- 
 brush. That is not merely a cas« of scarcity, but where there is an 
 absolute want of either. In such a case monuments may be used for a 
 
244 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1898. 
 October 20. 
 
 Full Oouht. 
 
 Judgment 
 
 below, 
 
 McCoLL, J. 
 
 particular purpose, but the very next sub-section goes on to say, " the 
 locator shall also place a legal post at the point where he has dis- 
 covered rock in place." The difficulty you have to grapple with, be-, 
 sides, 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 notwith- 
 standing 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 Im- 
 press it upon you will go so far as that. 
 
 McCoLL^ J. :— I wish to call your attention to what I am sure you- 
 . will not fail to have perceived is the strong opinion I have formed, 
 and which I may say I do not think even a knowledge of the view 
 .which you hold, Mr. McPhillips, will shake. These words are con- 
 junctive. It not only must be an omission of something the result 
 -of which is likely to mislead, but there must be, if there is any such 
 Tcsult, 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*flde 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 
 law, 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 there 
 is no excuse — ^they have documents from certain officials indicating 
 certain requisites. It does not follow that a man must know that cer- 
 tain 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 misunder- 
 stand me when I say that I am not going to listen to any such argu- 
 ment founded upon ignorance of the law, and under these circum- 
 stances I decline to do so. 
 
 McPhillips: — Then your Lordship, holding such a strong view 
 upon that point, I refer your Lordship only to sec. 28. 
 
 McCoLL, J.: — Well, that has been decided — it is not an irregu- 
 larity. 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 emlDark upon this case with 
 -the intention of taking the decision of the trial Judge, and the case 
 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 
 
I] 
 
 CALLANAN et al. v. GEORGE et al. 
 
 246 
 
 1898. 
 October 20. 
 
 Kur.L CouBT. 
 
 Drakb, J. 
 
 of your taking it to the Court of Appeal, I may say that I must non- 
 suit you, is a foregone conclusion. You are asking me, from my 
 point of view; to repeal an Act of Parliament. I must say I never 
 bad in my life so plain a ease. I wanted to hear Mr. Davis, but 
 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 spe,edy 
 conclusion as soon as possible, and to do that I grant a non-suit with 
 costs. 
 
 Judgment accordingly. 
 
 The plaintiffs appealed, and the case was argued at Victoria on Appeal. 
 July ISth, 1898, before Walkem, Dhake and Ieving, JJ. 
 
 Wilson, Q.C., and A. E. McPhillips, for the appellants. Argument. 
 
 Davis, Q.C., and Bodwell, for the respondents. 
 
 Cur. adv. vult. 
 
 October 30th, 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, R. 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 markr 
 ing 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, Revised 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 shall 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 says a mineral claim shall be- marked by two legal posts 
 numbered 1 and 2 and the line between these posts shall be known as 
 
 Judgmen/t. 
 
246 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1898, 
 October 20. 
 
 Full Couht. 
 
 Irving, J. 
 
 the location line. This line shall be marked by the locator, , in a 
 timbered locality, by blazing trees and cutting underbrush, and in a 
 locality where there is neither timber nor underbrush he shall set 
 Walkkm, J. legal posts or erect monuments of earth or rock not less than two feet 
 high and two feet in diameter at the base. 
 
 It is well known that many mineral claims are located where 
 there is no timber or underbrush; some above the timber line 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 suffi- 
 cient 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' de- 
 fined by sec. 16, is calculated to mislead. The system of woodeii 
 posts has been universal in the Province for thirty years, and pro- 
 spectors naturally look out for posts. Stone mounds, in a mountain- 
 ous country abounding with rocks, would not attract any attentioi^ 
 and would be calculated to mislead. It is not necessary to lay down, 
 any rule of construction as to sub-see. (d) of sec. 16, each case must 
 depend on its own merits; but it is not intended that the require- 
 ments 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 Ihving, 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 
 on the 9th and 10th of January, 1901, the same question arose, and the fol- 
 Ipwing extract from the judgment delivered on the last mentioned date shews <:he 
 view taken : — " I am of the opinion that there was a hona fide attempt to comply 
 with the provisions of the Act as to location. But Callanan v. George decide^ 
 that not only must there be such an attempt, but tliat it also must not be of.?, 
 character calcujated 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 regari} 
 to the manner pf stakiijg 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 : Matiley v. Gollom, 
 post, p. 487, and list of cases in note thereto. 
 
I.] 
 
 PETERS V. SAMPSON. 
 
 247 
 
 Peters v. Sampson. ^^ 1898. 
 
 November 30, 
 
 (6 B. C. 406). 
 
 IFullCockt. 
 
 Assessment Work — Power of Lieutenant-Governor in Council to Extend Time 
 for — Abandonment and Forfeiture — Certificate of Work^lrregularity — De- 
 lay in Recording — Mineral Act, 1898, sees. 24. 2S, 53 and 161. 
 
 An Or^ej'-in^Council, under sec. 161 of the Mineral Act, 1896, extending the time 
 for the doing and recording of assessment work on a mineral claim, is intra 
 vires. 
 
 A certificate of work recorded pursuant to permission granted by a Gold Com- 
 missioner acting under such an Order-in-Council, is a good certificate within 
 sec. 28 of the said Act. 
 
 The word " irregularity " in sec. 28 extends to the certificate of work itself. 
 
 Delay in recording such a certificate of work is an irregularity which is cureiJ 
 by said sec. 28. 
 
 Meaning of " irregularity " considered. 
 
 Decision of McColl, J., reversed. 
 
 Appeal from judgment of MoColl^ J., delivered 6th August, Statement. 
 1?98. The action, which was one of adverse claim, was tried at Nel- 
 son on 16th June, 1898. The facts fully appear in the Judgment. 
 
 Macdonald, Q.C., and Johnson, for plaintiffs. 
 Pe-ters, Q.C., for defendants. 
 
 Argument. 
 
 August 6th, 1898. 
 
 McCoLL^ J. : — The mineral claim, Gold Cure, owned by the plain- 
 tiffs, was located on 13th, and recorded on 23rd August, 1895. The 
 assessment work for the first year was done within the time, but Wii3 
 not recorded until the 26th day of the month. 
 
 The mineral claim Bismarck, owned by the defendants, was located 
 on 7th October, 1896, admittedly in the belief that the plaintiffs had 
 abandoned their claim and in ignorance of any proceeding taken by 
 them under the Order-in-Coimcil presently referred to. The Bis- 
 marck, which was conceded to be a valid claim, subject only to any 
 prior claim of the plaintiffs in respect of the Gold Cure, overlaps it, 
 and the ground common to both claims is the subject of this action. 
 
 By an Order-in-C6uncil dated 2nd July, 1896, after reciting 
 that owing to the lateness of the season the depth of show in the 
 mountains prohibited many holders of claims from performing the 
 
 Judgment 
 
 below, 
 McCoLL, J. 
 
248 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1898. assessment work required by the Mineral Act during each year, it 
 November 30. ^^^^ professedly in pursuance of section 161 of the Act of 1896, pro- 
 FuLL,CouBT. vided 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 in- 
 accessible, in consequence of the depth of the snow which covers the said 
 claims." 
 
 Judgment 
 
 below, 
 McCoLi, J. 
 
 On 6th August, 1896, the Gold Commissioner of the District, 
 acting under the Order-in-Council, on the plaintiffs' application, 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 ques- 
 tions 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 seci 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 grant- 
 ing the extension. This being so, I know of no principles upon which 
 the extension, if valid when granted, would become void merely be- 
 cause 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 plain- 
 tiffs cannot apply. 
 
 It only remains to consider whether the Order-in-Council was ultra 
 vires. Section M 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 non- 
 compliance with it. And I do not think that the circumstances dealt 
 with in the Order-in-Council are such as were contemplated by the 
 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 
 passing of the Act, and if the Legislature had intended to create an 
 exception in such event from sec. 24, they would have' done so. It is 
 not even as if compliance with the Act had been impossible. The 
 
I. J 
 
 PETERS V. SAMPSON. 
 
 249 
 
 work might have been done before the commencement of the winter 18«8. 
 
 season. To delay it was to incur a known risk of increased difficulty, 
 
 with, of course, additional expense. And this case itself shews that ^''^^^ Court. 
 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 Com- 
 missioner (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 wero 
 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. 
 
 Prom this judgment the plaintiffs appealed and the appeal was 
 argued 29th' and 30th ISTovember, 1898, before the Full Court, con- 
 sisting of Walkem, IfiviNG 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 re- 
 corded. The Judge in the Court below relied on sec. 24, but that sec- 
 tion 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 for- 
 feited." 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 will. The Legislature never 
 intended that a dlaim should be lost by abandonment unless there was 
 some evidence of intention to abandon : see sec. 30. Compare sec. 9, 
 " 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 Coun- 
 cil (1893), 2 Q. B. at 491; and Salmon v. Duncomie (1886), 11 App. 
 Cas. 627, 
 
 As to the rights of a holder of a mineral claiha, he cited Nelson & 
 Fort Sheppard Rij. Go. v. Jerry et al. (1897), 5 B. C. 396, ante, p. 161. 
 
 Appeal. 
 
 Argument. 
 
Full Court. 
 
 '250 MARTIN'S MINING CASES. [vol. 
 
 JSTovember 30. ^^ ^^^^^ ^Iso, Davenport v. The Queen (1877), 3 App. Cas. at 1^9; 
 Att.-Gen. of Victoria v. Eitershank (1875), L. E. 6 P. C. at 369; 
 Osborne v. Morgan (1888), 13 App. Cas. at 23-4; and Peterson v. The 
 Queen (1889), 3 Ex. C. E. 74. 
 
 The proper construction of sec. 24 is that the lease obtained under 
 sec. 34 is avoided by the non-performance of work unless waived by 
 the Crown. 
 
 Section 161 is wide enough to cover the Order-in-Council and the 
 intent of the section is that the conditions of sec. 34 may be waived. 
 The general policy of the Legislature has been to relieve the miner 
 from consequences which would amount to a hardship. Lay-overs 
 are still permissible under the Placer Mining Act, and they were 
 under the Mineral Act until 1894, and since then they have been regu- 
 lated 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. 435. All 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 359; Hardcastle at pp. 300-2; De Beau- 
 voir V. Welch (1827), 7 B. & C. 266 ; Casgrain v. Atlantic & N. W. By. 
 Co. (1895), A. C at 300; Foskett v Kaufman (1885), 16 Q. B. D. at 
 386; Jay v. Johnstone (1893), 1 Q. B. 35; Danfvrd v. McAnulty 
 (1883), 8 App. Cas. at 460 ;^a; parte Wier (1871), 6 Chy. App. at 
 S79; ^a; parte Campbell (1870), 5 Chy. App. at 706; Greaves v. Tofield 
 (1880), 14 Ch. D. at 571; Clark v Wallond (1883), 53 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 tlie 
 Order-in-Council. Section 28 perfects our title to Gold Cure claim 
 as no one can question it iexcept 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 administ^ajtivs 
 interest in the lands, and since the passage of the Act has no control 
 over the minerals or mineral claims. As to Osborne 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. 
 By 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 
 
I.] 
 
 PETERS V. SAMPSON. 
 
 251 
 
 made in the Act for a case such as this — they could have relocated isiis. 
 under sec. 32 with the permission of the Gold Commissioner. November 30. 
 
 As to sec. 53. The appellants would not have suffered — ^they Full Court. 
 were seeking an advantage to which they were not entitled, as they •w'alkem, J. 
 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 riot 
 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 irre- 
 levant. 
 
 As to sec. 38. The failure to record certificate of work in time 
 is not. an irregularity — it is an essential requirement. The certifi- 
 cate 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 : 
 8ee Atkins v. Coy (1896), 5 B. C. 6, ante, 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: Parkdak v. West (1887), 13 
 App. Cas. 602; Hudson's Bay Go. v. Kearns and Bowling (1896), 4 
 E. C. 536. The words " issued, within the statutory year " must be 
 understood and read into the section after the word " work " in line 
 "three. 
 
 He cited also McGarrahan v. The New Idria Mining Co. (1874), 
 11 Morr. 641. As to usage, it should be long and notorious. See 
 Maxwell, 3rd ed., 425, and Magistrates of Dunbar v. Duchess of Rox- 
 burghe (1835), 3 CI. & P. 354. 
 
 Bodwell was not heard in reply. 
 
 Per Curiam : — The appeal is allowed with costs. 
 Subsequently the following opinions were handed down. 
 
 Judgment. 
 
 Walkem, J. : — This is an appeal from the interpretation given 
 by the learned Chief Justice to sec. 143 of the Mineral Act (E. S. eh. 
 135), when considered in connection with so much of the latter part 
 of sec. 24 as relates to the doing and recording of annual work on a 
 mineral claim. . 
 
 Section 24 provides that a miner, who has 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 certifi- 
 cate to that effect from the Gold Commissioner, or from the Mining 
 Eeeorder. The section then concludes as follows: 
 
 " 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." 
 
252 MARTIN'S MINING CASES. [vol. 
 
 Nove^^b^' 30 '^^^^ language is too clear to admit of any other construction 
 
 — ' than the literal one put upon it by the learned Chief Justice, except 
 FdllCokbt. ^g gjj^ ^jj^^ ^|. jjg^g j^ggjj modified by, or under the authority of, other 
 Walkbm, J. provisions of the Act. As pointed out by Lord Herschell, in Col- 
 quhoun v. Brooks (1889), 14 App. Cas. p. 506, "We are bound when 
 construing the terms of any .provision found in a statute to consider 
 any other parts of the Act which may throw light upon the intention 
 of the Legislature, and which may serve to shew that the particular 
 provision, as, for instance, the one we are now considering, ought 
 not to be construed as it would be if considered alone and apart from 
 the rest of the Act." Again, the "literal construction of any enact- 
 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 the 
 aim, scope and object of the whole Act." (Max. Stats., 3rd ed. 39). 
 
 The object of the Mineral Act is, beyond question, to encourage 
 the development of the mineral resources of the Province. In com- 
 paring the Act with prior legislation on the same subject, it will be 
 seen that it contains many changes in favour of the miner. For in- 
 stance, 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 his 
 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 bound- 
 ary lines, is also important as it clearly indicates that the Legislature 
 intended that a miner should not, when taking up a location, be de- 
 prived 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 dis- 
 tance from the line, with notices on them indicating its position. 
 Such stakes, I might observe, are known, under the American system, 
 as " Witness Stakes." In further sections of the Act, the same liberal 
 intention is apparent. All these changes are, obviously, of a remedial 
 character, and were made in recent years to meet ki\own difficulties 
 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 
 attention ; the legislation went a step further and gave the Lieutenant- 
 GrOvernor-in-Council power, by sec. 143, to " make such orders as are 
 deemed necessary from time to time ... to meet cases which 
 may arise, and for which no provision is made in this Act." Under 
 this authority, the impeached Order-in-Council, which is as foUows,- 
 was passed : 
 
I.] PETERS V. SAMPSON. 253 
 
 " Whereas, owing to the lateness of the season, the depth of the snow ]^g()g_ 
 on the mountains is still very great and thus prohibits many holders of claims November 30. 
 
 on the higher ranges from performing the assessment worls required by the . 
 
 Mineral Act during each year, and ' ¥vu. Court. 
 
 " Whereas, it is desirable with a view to obviate this difficulty that an Wj^lkem J 
 order granting discretionary permission to Gold Commissioners throughout the 
 I'rovince to extend the time for a period of sixty days for the completion of 
 the assessment work on such mineral claims as are at this date covered with 
 snow, and consequently inaccessible, be made : 
 
 " Ou the recommendation of the Honourable the Minister of Mines, 
 
 " His Honour the Lieutenant-Governor, by and with the advice of this 
 Executive Council, and under the provisions of sec. 161 (now sec. 143 of 
 K. S, 1897) of the Mineral Act, 1896, has been pleased to order, and it is 
 hereby ordered as follows, that is to say : » 
 
 '■ 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, 
 lt-96, 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." 
 
 July 2nd, 1896. Sgd. "JAMES BAKER," 
 
 Clerk Executive Council. 
 Gazetted, fol. 778, ^'ol. 1, 1896. 
 
 The above facts, in view of the date of the order, mean that snow 
 covered the ranges in mid-summer, and to such a depth as to render 
 the completion of assessment work on local mineral claims, within 
 the time prescribed by sec. 24, impossible. This has not been denied ; 
 l)ut as the Order purports to extend tjiat time, it has been held to be 
 ultra vires and unauthorized by sec. 143 ; hence this appeal. 
 
 The object of the Act has already been pointed out, and it is clear 
 from several sections that the Legislature considered that the best 
 means of promoting it was to protect the miner in the possession of 
 his claim. Consequently, he is not to lose it through unintentional 
 mis'akes in locating it (sec. 16) ; or for having located it on a Sun- 
 day (sec. 17) ; or recorded it in a wrong district (sec. 23) ; or for de- 
 lays or errors on the part of Government officers (sec. 53). Every 
 certificate of work when recorded, or registered, is to have the effect 
 of sweeping away, as it were, all irregularities existing in his title 
 prior to the moment of registration (sec. 28) ; and a certificate of 
 improvements is to operate as a release fram further assessment work, 
 and is not to be impeached except for fraud (sec. 37.) 
 
 In the light of these protective measures, the construction to be 
 put upon sec. 143 should be that which will best harmonize with them, 
 especially as that section, as applied to the case set forth in the Order, 
 is a measure of the same nature. 
 
 That case is exceptional, and is one " for which," in the words of 
 the section, "no provision is made in this Act." It is, therefore, 
 within the purview of the section. An opposite view would mean 
 
254 MARTIN'S MINING CASES. [vol. 
 
 • 
 
 189S. that the Act is remarkably inconsistent, as it affords the miner pro- 
 — ■ tection against loss from inadvertent mistakes made in matters within 
 FollCourt. his control, and yet denies him that protection in such a case as the 
 WALKEjf, J. 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 legiti- 
 mately, applied, than to the case in point. Furthermore, if they 
 cannot be applied to such a ease, they cannot be applied to eases, 
 which, physically speaking, are of the same class— such as freshets, 
 land-slides and snow-slides. 
 
 Under 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. 38, 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 hap- 
 pening 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 upon 
 fraud." 
 
 l^he 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 sec- 
 tion does not say so; and. in my opinion, it was intended that the 
 word " irregularities " should apply to certificates irregularly issued 
 as fiilly as it does, in practice, to locations or records irregularly made. 
 It would be mischievous were it otherwise, for a certificate, when en- 
 dorsed by the Eecorder as having been recorded, is, in practice, ac- 
 cepted by a purchaser of a mineral claim as official evidence of a ,good 
 title up to the date of the record. I^ow this attack upon the certifi- 
 cate 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 ab- 
 solutely prohibited by the section. 
 
 The appellants completed their work within the year which ex- 
 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 26th, on which day 
 
I.] PETERS V. SAMPSON. 255- 
 
 they got it and recorded it. The requirement in sec. 24 as to annual 1898. 
 work is evidently a matter of public policy and an essential feature ^"^"mber 30. 
 of the Act; but the provision that the certificate of work shall be Full Court. 
 recorded is a minor matter which only concerns the holder of that irvTno, J. 
 document; hence the delay in recording it, which in this ease was at 
 most seventy-two hours, may be regarded as an irregularity, and one 
 that is within the scope of sec. 38. The appellants should have the 
 costs of appeal and of the action. 
 
 Irving^ J. : — Mr. Cassidy's contention is that sec. 28 should be 
 read as if the words " issued within the year " were inserted imme- 
 diately after the words " certificate of work " in the third line. 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 pre- 
 vious 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, &c.,'' seems the fair way of amplifying the expression " no^ 
 irregularity." 
 
 When Parliament has adopted so wide an expression as "no 
 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 
 claim 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 so 
 stopped jumping before certificate of work had been obtained. By 
 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" 
 
256 MARTIN'S MINING CASES. [vol. 
 
 ^- ^^^^- „^ within the year might be so considered; the (5) recording of the work, 
 
 November 3d. j /n\ .x. , -.t- ., 
 
 • — and (6) that within the year. 
 FuLT. CouuT. Under sec. 143 provision was made in case of a forfeiture, arising 
 
 liiviNG, J. from the omission to, secure a free miner's license (1) ; sub-sec. (d) 
 of sec. 16 cured defects in location (3) ; 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 
 AtLorney-General based upon fraud," strengthens me in the opinion 
 I have formed. Lord Watson in West De'rby Union v. Metropolitan 
 Assurance Co. (1897), A. C. 653, saysthat 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. 
 
 Note. — ^As to abandonment : see Williams Greeh, Ac, Co. v. Synon, ante, 
 p. 1. 
 
 As to irregularity and certificate of work : see Callahan v. Coplen, post, 
 p. 348 ; Qelinds v. Clark, post, p. 428 ; and Manley v. Collom, post, p. 487. 
 
 As to extension of time for recording certificate : see Payne Consol. Co. v. 
 Wilson, post, p. 485 ; and Lam' v. Parker, post, p. 456. 
 
I.] 
 
 POPE V. COLE. 
 
 257 
 
 Pope v. Cole. 
 
 (29 S. C. 291; 6 B. C. 205). 
 
 ^lineral Claim — Sale of — Contract — Innocent Misrepresentation - 
 Error — Total Failure of Consideration — Bes<yission. 
 
 ■ Common 
 
 1898. 
 December 14. 
 
 SUPHEME 
 
 Court ov 
 Canada. * 
 
 An executed contract for tbe sale of 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, tliere has been 
 a complete failure of consideration, a court of equity will rescind the con- 
 tract and compel the vendor to return the purchase money. Thus where, 
 on the sale of a mining claim, it turned out that the whole property sold was 
 included in prior claims, whereby the purchaser got nothing for his money, 
 the contract was rescinded though the vendor acted in good faith and the 
 transaction was free from fraud. 
 
 Decision of Full Court of British Columbia affirmed. 
 
 Appeal from a decision of the Supreme Court of British Columbia Statement, 
 reversing the judgment of McColl, J., at the trial in favour of the 
 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. La- 
 betee, believing the representations of the defendant to be true, and 
 relying entirely on such representations, became the purchaser of the 
 undivided half of the claim for the sum of $5,350, which Laberee paid 
 to the defendant in cash, who, therefore, executed an assignment of 
 his undivided half to the plaintiff. Soon afterwards it turned out 
 that the greater part of the Eldorado plot was included within the 
 limits of the prior claim called Mascot, and that a strip which 
 remained containing an area of some ten or fifteen acres was included 
 in other claims. The plaintiff, therefore, got nothing for the money 
 he paid. The defendant made the sale in perfect good faith, and his 
 representation which turned out to be untrue was innocently made, 
 and the transaction was free from fraud. Both parties dealt upon the 
 mistaken belief that the Eldorado was an actually existing mineral 
 claim, whereas in truth, owing to other claims which were entitled to 
 priority having been previously made, the whole of the Eldorado was 
 included in pre-existing claims. 
 
 * Present : — Sir Henry Strong, C.J., and Gwynne, Sedgewick, King and 
 GiROUAED, JJ. 
 
 M.M.O. ' 17 ■ 
 
258 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1898. 
 December 14. 
 
 SUFBEME 
 
 Court 
 OF Canada. 
 
 Argument. 
 
 The plaintiff brought his action for rescission of the contract and 
 a return of the purchase money, on the ground of misrepresenta- 
 tion, and want of consideration. The action was tried before McColl, 
 J., without a jury, at Nelson, on 32nd of April, 1897. 
 
 Hamilton, for plaintiff. 
 
 Clut&, for defendant. 
 
 Cur. adv. vult. 
 
 Judgment 
 
 , below, 
 MbCoLL, J. 
 
 June 18th, 1897. 
 
 McCoLL^ J. : — This action is brought to recover $5,350, being the 
 price paid by the plaintiff to the defendant for an undivided one-half 
 interest in the Eldorado mineral claim, bought by the plaintiff from 
 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 in- 
 terests 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 Reba 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 de- 
 fendant 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 there is no 
 reason to doubt his denial of such knowledge. Neither of the deeds 
 contains any covenant for title. 
 
 Mr. Hamilton, for the plaintiff, expressly disclaimed any impu- 
 tation against the defendant of fraud or wilful misrepresentation. 
 He contended, however, that a mineral claim is, under the Mining 
 Acts, a chattel, and that the plaintiff is entitled to recover because 
 of the general rule in the case of a sale of a chattel giving to the pur- 
 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 
 claim as the Eldorado in existence; because of the validity of the title 
 of the holders of the Mascot and Eeba mineral claims. But this 
 reasoning seems to me to be fallacious. The locator of the Eldorado 
 had located upon the ground and obtained a record for that claim. If 
 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 
 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 
 the ground and a record obtained in the usual way, whether in ignor- 
 ance of such prior locations, or under the supposition that they were 
 
I.] 
 
 POPE V. OOLB. 
 
 259 
 
 Supreme 
 
 COCRT 
 
 OP Canada. 
 
 invalid, can only be a matter of conjecture, and, as I think, of no im- I8!i8. 
 portance in the present case. The question, as I understand it, really 
 is as to the title of the defendant to the Eldorado> and his liability 
 to the plaintiff for want of titl^. 
 
 Probably in agreeing to sell goods, a seller under the existing 
 authorities does impliedly wartant 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 
 the nature of the property sold, and the way in which such property 
 is commonly bought and sold. But the sale has been completed and 
 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 in- 
 nocently, 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 BtoomenihaU v. 
 Ford (1897), A. -C. 156, would perhaps enable the plaintiff to re- 
 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 
 that in the course of any remarks which may have been made by the 
 defendant on the occasion of the visit to the place he intended, or was 
 understood by the plaintiff to refer to any question of title ; and there 
 cannot, I 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. 
 
 Prom this judgment the plaintiff appealed to the Full Court, and j-'^^^'p™ 
 the appeal was argued before Davie^ C.J., Walkem and Drake, JJ., 
 on 26th January, 1898.' 
 
 Herbert Robertson, for the appellant. 
 
 Duff, for respondent. 
 
 Cuy. adv. vult. 
 
 Judgment 
 
 below, 
 MoCoLL, J. 
 
 February 8th, 1898. 
 
 WALKteM, J. : — This is an appeal from a judgment given by Mr. J'ldgment 
 Justice McColl. The plaintiff's action is one to recover $5,350 paid Walkkm] J.. 
 
260 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1898. 
 December 14. 
 
 Supreme 
 
 Court 
 
 OF Canada. 
 
 Judgment 
 
 below, 
 'Walkem .3. 
 
 by him to the defendant for an undivided half interest in a mineral 
 claim called the Eldorado^ on the grounds of misrepresentation and- 
 want of consideration, as the Eldorado had no existence except in 
 name. The evidence is to that effect, .for the ground located as the 
 Eldorado had, except as to ten or fifteen acres, been previously located 
 as the Mascot. The Mascot was a valid location, for, as the evidence 
 shews, its owners obtained a Crown grant for it after publication of 
 the usual statutory advertisements as to adverse claimants. In other 
 words, the locators of the Eldorada either did not oppose the applica- 
 tion for the grant, or if they did they were overruled. There is no 
 evidence one way or the' other on this point, but the Crown grant, as 
 a matter of law, extinguished any claim of the Eldorado to ground 
 within the boundaries of the Mascot. As to the surplusage of ten or 
 fifteen acres, it is asserted and not denied, in the evidence given at the 
 trial, that they had been located before the Eldorado was located, so 
 that, in the language of one of the witnesses, " there was nothing left 
 for the Eldorado," hence, the location of the Eldorado having been 
 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, 
 are to the effect, " I sold what I bought." More than this, he was 
 clearly guilty of misrepresentation, for he took Laberee, the plaintiff's 
 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 him 
 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," and 
 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 defendant shewed the plaintiff as being part of 
 the Eldorado, were really what was bought and sold; and as this 
 tunnel and ore belonged, incontestably, to the Mascot, the defendant 
 sold what did not belong to him. 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 
 
t] 
 
 POPE V. OOIiB. 
 
 261 
 
 Supreme 
 
 OOURT 
 OK (Jaxada. 
 
 to be," and that there was "a failure of consideration." On page 1898. 
 113 of Story's Eq. Jurisprudence, 2nd ed., the doctrine is laid down ^""^'"i""^ i*- 
 by that eminent authority, that a bargain founded upon a false re- 
 presentation, such, for instance, as the defendant made, even if inno- 
 cently made, will be avoided. 
 
 The decision of the trial Judge should, in my opinion, be set aside 
 for the above reasons, and judgnjent entered for the plaintifE for 
 $6,250.00 and costs in the Court below, together with the costs of this 
 -appeal. 
 
 Dhake^ J. : — This is an appeal from Mr. Justice McColl, who 
 tried the action without a jury, and gave a judgment for the defendant. 
 The facts as found by the learned Judge shew that the plaintifE pur- 
 chased of the defendant an undivided one-half of a claim called the 
 Eldorado, which had been located and recorded on the ground that 
 was already lawfully occupied for mining purposes. The deeds exe- 
 cuted by the defendant to the plaintifE contain no covenants for title. 
 
 The action is brought to recover back the purchase money, or in 
 the alternative damages for misrepresentation. The plaintiff at the 
 trial disclaimed any imputation of fraud or wiful misrepresentation, 
 and the learned trial Judge held that there were no circumstances 
 which took the case out bf the ordinary rule that a purchaser has no 
 rights against the vendor except such as are given to him by the deed 
 he has accepted. 
 
 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. Peeh (1889), 14 App. Cas. 359 : " If there is mis- 
 representation, however honestly made, and however free from blame 
 the person may be who made it, the contract cannot stand;" and in 
 Redgrave v. Ilurd (1881), 20 Ch. D. 1, it was lield that' although the 
 defendant made a cursory and incomplete inquiry into the facts, if 
 a material representation was made to him he must be taken to have 
 entered into the contract on the faith of it, and in order to take away 
 his right to have it rescinded if untrue, it must be shewn that he had 
 knowledge of facts which shewed it to be untrue, or that he did not 
 rely on the representation. I think the evidence here clearly shews 
 that the plaintifE 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. 
 The analogy would be worth considering if it was not for the mis- 
 representation which is complained of, and, I think, proved in this 
 case. ! 
 
 Judgment 
 
 below, 
 Dhake, J. 
 
262 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1898. 
 December 14. 
 
 SUPEEME 
 
 Court 
 01' Canada. 
 
 Judgment 
 
 below, 
 Davik, C.J. 
 
 Appeal to S. C. 
 
 Argument. 
 
 The equitable doctrine of misrepresentation avoiding a contract, 
 was laid down perhaps too broadly in Rawlins v. WicMiam (1858), 3 
 DeG. & J., ai p. 317. Turner, L.J., says, " 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- 
 rived if the representation proves to be untrue, however innocently 
 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 
 by innocent mistake, will 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 suflBcient amoiint of development 
 work done upon it as to prove its value as a mine. There are numer- 
 ous authorities shewing that in cases of far slighter misrepresentation 
 i^ has been held that they amount to failure of consideration. See 
 Robinson v. Musgrove (1838), 3 M. & Eob., 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 Mo, even if the defendant was not guilty of fraudulent 
 misrepresentation." 
 
 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 
 interest at six per cent, from date of payment. 
 
 Davie^ C.J. : — I think the appeal should be allowed. 
 
 Appeal allowed. 
 
 The defendant appealed and the case was argued on 7th Novem- 
 ber, 1898. 
 
 Clute, Q.C., for the appellant. To obtain rescission of an executed 
 contract fraud must be proved: Bell v. Macklin (1887), 15 Can. S. C. 
 T... 576 ; even when there has been a mistake by which the party seek- 
 ing relief has suffered injury: Allen v. Richardson (1879), 13 Ch. D. 
 524; Clare v. Larrib (1875), L. R. 10 C. P. 334; Ducondu v. Dupuy 
 (1883), 9 App. Cas. 150; (1886), 6 Can. S. C. R. 425. 
 
 Travers, Lewis and Hamilton, for the respondent, referred to 
 Granger v. Fotheringham (1894), 8 B. C. 590, ante, p. 71; Rudders- ■ 
 field Banking Co. v. Henry Lister cf- Son (1895), 2 Ch. 273; Cooper 
 
1.] POPE V. OOLE. 263 
 
 V. Phibbs (1867), L. R. 2 H. L. 149; Hart v. Sivaine (1877), 7 Ch. 1898. 
 
 1-^ < p December 14. 
 
 SUPBEMK 
 
 December 14th, 1898. ,,^„^l,_ 
 The judgment of the Court was delivered by Stkojtg, 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 
 claim in the neighbourhood of Eossland, 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- 
 epondent 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 
 l;alf 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 
 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 
 other 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 McCoU), 
 and that learned Judge, acting upon what he considered to be the law 
 applicable to the ease, dismissed the action. On appeal to the Full 
 Court (Walkem and Drate, 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 especially an executed contract for the 
 snle 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 
 oi; jurisdictions effected by the Judicature Acts, and as it has existed 
 
264 
 
 MARTIN'S MINING OASES. 
 
 [VOL. 
 
 1898. 
 December 14. 
 
 Sdpubme 
 
 OOUBT 
 
 OF Canada, 
 Stbono, C..J. 
 
 down to the present time, I am not upon the authorities able posi- 
 tively to controvert. Strange as it may seem that there should be 
 dearth of authority upon such a point, I find that with the exception 
 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. Croker 
 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 misrepresen- 
 tation, provided, of course, that it formed the basis of the contract. 
 It would not, however, be safe to act on these dicia. Mr. Dart in the 
 Cth 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 assert- 
 ing 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 an 
 executed contract, unless such misrepresentation would be not only sufficient 
 to afford ground in equity for rescission of an executory contract, but also 
 is deceitful in contemplation of a court of law. Whether or not this limitation 
 of the jurisdiction of Courts of Equity is satisfactory; either in practice or in 
 principle, the present state of the authorities justifies its enunciation. 
 
 Sir Edward Fry in his treatise on Specific Performance (2nd ed.), 
 p. 395, commenting on Edwards v. M'Leay (1815), G. Cooper, 308, 
 says : 
 
 But it must not thence be inferred that every representation that the 
 vendor has a good title will enable a purchaser to set aside au executed con- 
 tract, or successfully resist specific performance. 
 
 I conclude, therefore, in favour of the proposition tliat mere in- 
 nocent misrepresentation will not warrant the rescission of an exe- 
 cuted contract for the sale of an interest in land. 
 
 There is, however, another principle which I think may be in- 
 voked jn the respondent's favour, and which is quite open to him on 
 the pleadings and evidence before us. 
 
 It has been determined by several authorities and is well estab- 
 lished 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-existeiit, 
 or is already the property of the purchaser, both parties have fallea 
 into error merely, and there being no fraud or deceit in the case, the- 
 
I.] POPE V. GOLB. 265. 
 
 purchaser, who has paid his purchase money and taken a conveyance, 18»8. 
 will be relieved and the contract rescinded by a Court of Equity. In ''^"^'^^^ 
 such a case, where there is a complete failure of consideration, as ip Supreme 
 the present case, it would be unjust and unconscientious that the of Canada. 
 vendor should retain money paid to him for a supposed consideration g^.^o^iTcj. 
 which has utterly failed. 
 
 In Bingham v. Bingham (1748), 1 Ves. Sr. 136, Forteseue, M.E., 
 holding that where it appeared that the estate for which the purchase 
 money had been paid already before the sale belonged to the pur- 
 chaser, decreed rescission and said that "though no fraud appeared 
 and the defendant apprehended he had a right, yet there was a plain 
 mistake such as the Court was warranted to relieve against, and not 
 to Buffer the defendant to run away with the money in consideration 
 of the sale of an estate to which he had no right." 
 
 Sir Edward Fry, in the work already quoted from at page 337 
 (2nd ed.), says: 
 
 Further, where both parties to a contract are at the time of the contract in 
 mistake or error as to the matters in respect of which they are contracting, this 
 will not only furnish a ground for resisting specific performance, but enable 
 the Court to rescind the contract. 
 
 Dart (6th ed., p. 907) has this passage: 
 
 If it appear that the estate belonged to the purchaser, he can in equity, 
 and probably at law, recover his purchase money, although he might have- 
 discovered his right from the abstract of title ; nor is it clear that the absence 
 of fraud in the vendor will bar the relief. And it has been held that a pur- 
 chaser who, although without any fault on the part of the vendor, buys an 
 estate which in fact has no existence (e.g., a remainder expentant on an estate 
 tail which has been barred), can obtain relief in equity; but it is of course 
 otherwise if the purchaser buys an estate the existence of which he knows to 
 be doubtful. The principle has been doubted by Lord St. Leonards, but it has- 
 been decided that, even at law, an action lies in such a case to recover the 
 purchase money as money paid without consideration ; as where a life annuity 
 is sold after the death of cestui qui vie. 
 
 In Oooper v. PMUs (1867), L. E. 2 H. L. 149, JLord Cranworth 
 and Lord Westbury both recognized the authority of Bingham v. 
 Bingham (1748), 1 Ves. Sr. 126, and acted on it in decreeing rescis- 
 sion in a case in which the facts were essentially the same. The ob- 
 servations of Lord Cratiworth 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 
 payntent 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 
 Eommilly, M.E., 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- 
 
:266 MARTIN'S MINIjSG CASES. LVOL. 
 
 1898. eellor Hall, a very high authority on such a question, says, speaking of 
 
 — ' Cooper V. Phibhs: 
 
 CoDBT ' Nothing can be clearer than this, that Lord Cranworth recognized the 
 
 OF Canada, principle that the court would, even in the case of a completed contract, give 
 
 relief against a common mistake in the same way as it would against fraud. 
 
 .Stbons, C.J. 
 
 Lord Westbury, in Cooper v. Phibhs, says: 
 
 If the ijarties contract under a mutual mistake and misapprehension as to 
 their relative and respective rights, the result is that that agreement is liable 
 to be set aside as having proceeded upon a common mistake. 
 
 See, also, Webster on Conditions of Sale, 3nd ed., p. 64, and Gierke 
 & Humphreys on Sales, p. 537. 
 
 The result is that the evidence in this record being clear that the 
 consideration for the money paid by the respondent to the appellant 
 utterly failed, 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 dismissed tvith costs.- 
 
 Note. — It will be observed that both courts proceeded on the assumption 
 that because the Eldorado claim had been located over an existing valid loca- 
 tion, it " was not. in a legal sense, a mining location," to quote Walkem, 3. 
 See notes to Manley v. Collom, post, p. 487. 
 
 As to free miner's interest in claim : see notes to Williams Greek, dc, Go. 
 V. Synon, ante, p. 1 ; and cf. also McNerhanie v. ArcMMld, post, p. 320. 
 
 For other cases on sale of mineral claim: see Wel)l) v. Montgomery, ante, 
 p. 129. 
 
 For action to set aside sale of gold bearing areas for miTirepresentation, see 
 Lerkie v. Stuart, (1901) 34 N. S. 140 (C. A.) 
 
J.] CEXTIiE STAR MIXING 00 v. IRON MASK MIXING CO. 
 
 267 
 
 CuKTKE Stak Mining Co. v. Iron Mask Mining Co. 
 
 Iron Mask Mining Co. v. Centre Star Mining Co. 
 
 ((J B. c. 355). 
 
 -Mineral Claim — Apcj' — Eaetralatcral Rights — Right to Foiloic ^'cill — Practice 
 — Injunction — Order for Inspection and' ExpcriiHcntul }Vork — Rule SlJf — 
 foil. Utats. 188ti, ch. S,i, sees, 77 and b^. 
 
 Tlie Centre Star Company had been enjoined till the hearing from mining in 
 the Iron Mask ground, in which there was alleged to be a continuation of a 
 vein whose apex* was in Centre Star ground, and had also been refused leave 
 to do experimental or development work ou the Iron Slask in order to deter- 
 mine the character or identity of the said vein : 
 
 Held, (Martin, J., dissenting), that it ought to be left to the trial Judge 
 to decide whether it was necessary to have any work done to elucidate any of 
 the issues raised. 
 
 ^Tircumstauces under which such an order might be granted considered. 
 
 Decision of Walke.m, J., affirmed. 
 
 1898. 
 December 24. 
 
 Fdll Coubt. 
 
 Appeals argued together from orders continuing injunctions until Statement. 
 Iirial, and from orders refusing inspection of property in dispute. 
 
 The Centre Star Mining and Smelting Company (Foreign) issued 
 a writ in Oetobci-, 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 
 .ground, and an ex parte- order was obtained restraining the Iron Mask 
 Company from removing the ore, and upon motion to dissolve in 
 Xovember, 1897, judgment was given continuing the injunction until 
 tlie trial. 
 
 This judgment was appealed from but was not gone into on this 
 argument. 
 
 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 the Iron Mask ground. After sinking about 330 feet 
 an obstruction was encountered — this obstruction was styled in the 
 affidavits by the various names of " watercourse." " flat fault," and 
 '' mud seam." In December, 1897, the Iron Mask Company issued 
 a writ against the Centre Star Company and obtained an ex parte 
 injunction restraining the defendant company from going any farther 
 
 *By the Mineral Act (1891). Amendment Act. 1892, sec. 5, it was provided 
 that " («) The owner 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." Sub-section 
 (6) preserves rights of locations under former Acts, such as the Centre Star 
 claim. See. HI of the Jlineral Act. 1891. is repealed by sec. 2 of said amend- 
 ment of 3892. 
 
268 MARTIN'S MINING CASKS. L^ol. 
 
 i^l'^- , with the inclined shaft. On a motion to continue, judgment was 
 — " ■ given by Walkem, J., in October, 1898, continuing the injunction 
 Full Court, ^^til the trial. 
 
 This judgment was appealed from. (See infra). 
 
 Subsequently the Centre Star Company came back to a point 
 about twenty-five feet from the bottom of the inclined shaft and ran 
 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 
 was sunk twenty-five feet in the same direction as the inclined shafts 
 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,'" 
 " flat fault," and " mud seam." The Iron Mask Company then ob- 
 tained 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. 
 
 Judgment Walicem, J. : — I had intended preparing a written judgment in 
 
 Walkem' J. ^^^^ 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 me. 
 That motion is one on behalf of the Iron Mask Company to continue 
 ah order granted by Chief Jiistice McCoU 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. 
 
 The opinions of eminent Judges of the American Courts, in cases 
 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 aflBdavits have been produced on behalf of the Iron Mask 
 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 sufferer, 
 especially' as its extralateral rights are in derogation of the common 
 law, in a vein of ore with a continuity upwards from the bottom of 
 its shaft to the apex of the vein it claims, which apex is admittedly 
 in its own ground. This overwhelming evidence has not been pro- 
 duced; hence I have only one course to pursue, and that is, to con- 
 tinue the injunction already granted until the hearing, when, doubt- 
 less, fiirther and much more satisfactory evidence on both sides will 
 be forthcoming. 
 
I.] CENTRE STAR MINING 00 v. IRON MASK MINING CO. 269 
 
 This judgment is intended to settle the two adverse motions before jggg. 
 me; that is to say, the motion of the Centre Star Company to dismiss December 24. 
 the injunction granted against it, and the present motion of the Iron Full Court. 
 Mask Company for a continuance of the injunction granted in its 
 favour by Chief Justice McColl. The costs in each case will abide 
 the event. 
 
 This judgment was also appealed from. (See infra.) 
 
 It was claimed by the Iron Mask Company that the obstruction 
 is a " fiat fault " and destroys the continuity of the vein, and, on the 
 other hand, it was claimed by the Centre Star Company that the ob- 
 struction is only a '' fracture " and not fatal to continuity. 
 
 Subsequent to the judgments continuing the injunction until the 
 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 work- 
 ings 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 t6 the identity and continuity of the said vein and the rights 
 of the respective parties, and for the purpose of obtaining full infor- 
 mation and evidence requisite for the trial. 
 
 Both applications were refused by Walkbm, J., and the Centre Appeal. 
 Star Company now appealed from the refusal in both eases. 
 
 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 30th December, 1898, before McColl, C.J., Drake and , 
 ]\Iaetin, JJ. 
 
 Davis, Q.C., for appellant: In appealing from the orders con- Argument, 
 tinning 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 
 pqissession of sufiieient evidence of facts, so that it may decide pro- 
 perly. In the applications under Rule 514 for inspection, we wer? 
 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 tp be properly tried 
 unless this work is allowed to be done, that being the only way in 
 which the true facts can be properly shewn. 
 
270 MARTIN'S MINING CABJDti. [vol.. 
 
 December 24 ^^' ^^^^J^^> l^ts Provincial Mineralogist, and several other exjjerts- 
 
 — say, after looking at the winze, that more work ought to be done be- 
 ULL ConuT. fQpg ^j^gy gg^j^ arrive at a proper conclusion as to the identity and con-- 
 tinuity of the vein. 
 
 The conflicting affidavits have arisen to a certain extent from 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 filled 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 miner- 
 alized zone with well defined boundaries could be considered a vein. 
 In Hyman v. Wheeler (1886), 39 Fed. Eep. 347; Cheesman v. Shreeve 
 (1889), 40 Fed. Rep. 787, and cases there collected, it was held that 
 although it was necessary to a vein that it should have walls or boun- 
 daries, it was not n3cessary that the walls or boundaries should be 
 ■such as could be seen. 
 
 As a preliminary to the point which your Lordships wish argued, 
 is the question whether or not, as a matter of law, any fracture in a 
 vein destroys its continuity. If it did we would be out of Court. 
 
 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 faiilt to destroy 
 continuity? The authorities are clear that all faults or fractures do- 
 not destroy continuity. 
 
 A fault is a fracture, plus displacement : See Barringer & Adams, 
 lix., Ix. 
 
 Whether or not a fault destroys the continuity of the vein is a 
 question of mixed fact and law depending on the extent of the dis- 
 placement: See Barringer & Adams, ciii. ; Lindley 418, and Slevens 
 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 relied on Ennor 
 V. Barwell (1860), 1 DeG. F. & J. 539, but that case was decided 
 before there was any such rule as 514. That the Court has juris- 
 diction now is settled by Lumb v. Beaumont (1884), 37 Ch. D. 356, 
 a case very similar to the present. 
 
 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 inspec-- 
 tion. The reason is that the trial Judge should be in possession of 
 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. 
 
I.] CENTRE STAR MINING 00 v. IRON MASK MINING CO. 271' 
 
 Permission to do work of this kind is only a species of inspection : i898. 
 See Bluebird Mining Co., Ltd. v. Murray, et al. (1890), 33 Pac. Eep. December 24. 
 1032, a mining case in which the plaintiff company was mining upon Fui.i. Coukt_ 
 Jiands owned by defendants and pending litigation the company ob- 
 tained an injunction enjoining the defendants from interfering with 
 its workings, and on motion by defendants the injunction was modi- 
 fied so as to allow them to enter and inspect and prosecute certain 
 development work in order to obtain a knowledge of the character and 
 identity of the veins for use at the trial. 
 
 See, also, Thornhurgh 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. Griffiths (1861), 30 
 L. J., Q. B. 98; Bennitt v. WUtehouse, (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 Clieesman v. Shreeve (1889), 
 40 Ped. Rep. 787, and Last Chance Mining Co. v. Tyler Mining 
 Co. (1895), 157 U. S. 683. 
 
 Oalt, on the same side : In following a vein from the apex down- 
 ward, a party is not a trespasser when he gets into an adjoining- 
 claim. The Centre Star was the first location upon Eed 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 Eed 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 Rossland camp. None 
 of the mining companies regard them of any importance, because a 
 single round of shots in the face of the timnel 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 
 April, 1898, an order was made restraining the Centre Star Company 
 from drifting from the east end of the inclined 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. 
 
272 MARTIN'S MINING OASES. [vol. 
 
 1898. The first question to be tried is : Is there an apex of a vein on 
 
 ecem er 24. ^j^^ Centre Star ground? The second is: Is there any vein in the 
 Poll Coukt. 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 case, 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 thd actions is 
 on the points just mentioned, and if the litigation can be ended, as 
 we say it can, upon the evidence which we have upon these other 
 issues, what use or benefit can there be in allowing this work to be 
 done? 
 
 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 con- 
 tinuity of ore is upon the person asserting the extralateral rights; 
 and if there is conflicting testimony on that point before the trial, 
 tl e 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 powers under Eule 514 are discre- 
 . tionary. In Lumh v. Beaumont (1884), 27 Ch. D. 356, no question 
 
 of principle is discussed or expressed in the judgment. There it was 
 a question whether the defendant had joined on to an old drain or a 
 new drain. The defendant had made the connection and knew all ' 
 about it, and the plaintiff did not; and all that was done in that ease 
 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 kno^r the circumstances under which orders for inspection • 
 were made in them, the practice under which it was done, or whether 
 
X] CENTRE STAR MINING GO v. IRON MASK MINING OO. 273 
 
 we have the machiEery for working Qut an order in the way in which iggs. 
 the orders in those eases were worked out. They were cases in which P^"^'"*^^*^ 2*- 
 the whole issue was in one action, but here the issue is divided into Full Coubt. 
 two actions — the Gentry Star v. Iron Mash action can be tried after j)g~ ^ j 
 the disposal of our action; and the sftttlement of the issue in our 
 .action, while it may possibly demonstrate our right completely -in so 
 far as these workings are conceriied, will not if decided against the 
 defendant company, conclude it at all. 
 
 Davis, Q.C., in reply: As to the injunctions which by consent 
 have been continued to the trial, they refer to doing work in a certain 
 direction which was .considered not to be of any importance in pro- 
 viding 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 U. S. 683. 
 
 Cur. adv. vult. 
 
 December 34th, 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 fol- 
 lowed, as we claim, exists on the other side of the fault. 
 
 The Centre Star have been enjoined until the hearing from con- 
 tinuing the work. 
 
 They now seek for. an order to give them leave to explare in the 
 land of the Iron Mask, so as to ascertain whether or not there is any 
 ore below the fault, for they sa,j, " 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 Cejitre 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 veip. This is a question of law and 
 jr . M . c . IS 
 
274 MARTIN'S MINING CASES. [vol. 
 
 l^ss. facts; if it is decided against the Centre Star, then again there is no 
 — 'necessity for the order. 
 DiL^cRT.i j£ ^j. jg decided in their favour, then again there is no necessity f or 
 Martin, J., 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 order 
 asked for, but there is no ease that goes to such an extent based upon 
 Eule 514. Lumb v. Beaumont (1884), 37 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 
 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 defendants 
 seek to establish a theory that the alleged vein exists below the fault, 
 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 
 sought to explore the intermediate ground, they would have a stronger 
 case. The Iron Mask has rights as well as the Centre Star. There 
 is no doubt that the Court has always exercised the powers of grant- 
 ing inspection of mines and their workings, but it has not gone to the 
 extent of allowing independent work. 
 
 If the Centre Star can shew a clear title down to the fault, and 
 satisfy the Court that the fault is not such an interruption of the veim 
 matter as to. constitute a termination of the vein, then they would Dfr 
 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 
 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 
 discovery. Mitford PI. 199. 
 
 The parties here have equal rights depending however on different 
 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 all 
 ore within vertical lines of their claim. 
 
 I think it should be left to the Judge at the trial to say whether 
 or not actual work should be done for the purpose of elucidating any 
 particular point with regard to the issues raised. 
 
 The Chief Justice authorizes me to state that in his. opinion tlie 
 Centre Star appeal ought to be dismissed. 
 
 The appeal will therefore be dismissed with costs. 
 
 Maetin, J. :— In this matter I regret I am unable to come to the 
 same conclusion as my learned brothers. 
 
I.] CENTRE STAR MINING GO v. IRON MASK MINING CO. 275 
 
 The Centre Star and the Iron Mask are adjoining mineral claims, igos. 
 but the Centre Star Mining and Smelting Company, the owner of the December 2t. 
 first mentioned claim, by virtue of the Mineral Act, C. S. B. C. ch. 8a, fvlv Court. 
 sec. 77, is entitled to extralateral rights, the section quoted providing jjjj^^^ j_ 
 that : 
 
 " 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 their 
 course downwards as to extend outside the vertical side lines of such surface 
 locations," &c., &c. 
 
 In the course of sinking an inclined shaft upon the dip of a vein, 
 the apex of which the Centre Star Company alleges lies within its 
 surface lines, the said shaft entered within the lines, and underneath 
 the surface of the Iron Mask claim, and there encountered an obstruc- 
 tion which the Iron Mask Company alleges is a flat fault destroying 
 the continuity of the vein, but which the Centre Star Company con- 
 tends is only a fracture, not fatal to continuity. The Iron Mask Com- 
 pany 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 ques- 
 tions 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. 
 
 Two applications were made by the Centre Star Company, one in 
 the case of the Iron Mask v. Centre Star, and the other in the case of 
 the Centre Star v. Iron Mask, by way of summons 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 of the respective parties, 
 and for the purpose of obtaining full information and evidence re- 
 quisite for 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 
 
276 JMABIIN'S MIMNG CASES. [-vol 
 
 1898. as will permit of the inspection and experimental and sampling work 
 eoein^r . ^^^^^ specified. 
 
 TuLL^uEi;. jj^ dealing with this question it should not be forgotten that extra- 
 Mauiun, J. lateral rights are in no way in" derogation of the common law j they 
 are in fact of equal dignity with any other title, and the ownership of 
 them is founded upon statutory rights; Lindley on Mines, p. 678, 
 so any idea of a trespass in connection with their enjoyment must, 
 in view of the latest authorities, immediately be dismissed from the 
 mind. 
 
 •In regard to the vein and its continuity, we must also, as the Court 
 said in the leading case of Gheeseman v. Shreeve (1889), 40 Fed. Eep. 
 at p. 793 : 
 
 " Keep ill miud that the vein or lode must be contiuuous only in the sense 
 that it can be traced by the miner through the surrounding rocks, that is, 
 slight interruptions of the mineral bearing rock are not alone sufficient to de- 
 stroy the identity of a vein ; nor could a short, partial closure of the fissure 
 have the effect to destroy the continuity of a \eiu, if, a little further on, it 
 appeared or recurred again, with mineral bearing rock in it." 
 
 And further, at p. 795 : 
 
 " An impregnation, to the extent to which it may be traced as a body of 
 ore, is as fully within the broad terms of the Act of Congress as any other 
 form of deposit. ... It is true that a lode must have boundaries, but 
 there seems to be no reason for saying that they must be such as can be seen. 
 There may be other means of determining their existence and continuance, as 
 by assay and analysis. ..." 
 
 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 will 
 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 they 
 did not take every reasonable precaution in this respect, they would 
 -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 per- 
 mitted, and, as a result, connection is shewn to exist between the 
 Centre Star alleged vein and the disputed ore bodies, the difficulties 
 of the respondent would be vasitly increased, because after such con- 
 nection 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 ar;gument 
 
I.], CENTRE STAR MINING GO v. IKON MASK MINING 00. 277 
 
 in favour of the appellant's application, because if "any mining isos. 
 man " would take such a,, view the Court would have to do so also, December 24. 
 and the Centre Star would succeed. Though it is true that the ex- ev,.i Coukt. 
 istence of the apex, continuity and identity of the vein' are denied j^^^^J^ j_ 
 in the pleadings, yet on the argument before us it was plain that what 
 the respondent chiefly relies on is the alleged flat fault. I am satis- 
 fied that so far as is necessary for the purpose of this applicatioil the 
 appellant has made out a prima facie case for inspection, whatever 
 may be the result of' the trial. Now, for the purposes of that trial 
 the Court should be placed in the best possible position for ascertain- 
 ing the truth as to whether, primarily, the obstruction met with is a 
 fault or a fracture ; a mere fracture is- nothing, there must be a dis- 
 placement to an " unconscionable distance " : Barringer & Adams, 
 Idx.-lx., ciii. 
 
 Lot us see what course is pursued by Courts in other countries 
 under similar circumstances. 
 
 In Scotland inspection pending litigation seems to be, though not 
 of course frequently, resorted to. In Stewart's Mines, Quarries and 
 Minerals of Scotland, at p. 355, mention is made of a case where " a * 
 motion was granted to give the pursuer and two mining engineers, 
 on forty-eight hours' notice, access to the defender's workers and 
 mineral stores, and to mineral properties and workings for the pur- 
 pose 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 may, in proper 
 cases, obtain leave to measure and dial; to make sections, plans and 
 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 ventila- 
 tion 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 bs best asoertained." 
 
 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 encroaohment, 
 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 
 applicant seem to be that (1) the application must be hena fideg, a,nA 
 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. 
 
278 
 
 MARTIN'S MINING OASiJS. 
 
 [vol. 
 
 December 24. 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 
 
 CLL CURT, ^jj^j. ^^,g jQ^g^ necessarily turn for the greatest assistance. In this 
 
 Martin, J. re!spect I follow the course pursued in The Queen, v. Bradlaugh 
 
 (1877), 3 Q. B. D., by Cockburn, C.J., where he said (p. 573) : 
 
 " These decisions are not so conclusive upon us as if tliey were Courts having 
 equal jurisdiction in this country, but we look upon the decisions of the Amer- 
 ican Courts with very great respect, and take advantage of them in the solu- 
 tions of questions of law.' 
 
 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. Tlie 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 
 &n 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 enligbten 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) : 
 
 " Ought a Court of Equity, in a mining case, when it has been convinced 
 of the importance thereof, for the purposes of the trial, to compel an inspec- 
 tion and survey of the works of the parties, and admittance thereto by means of 
 the appliances in use at the mine? All the analogies of equity jurisprudence 
 favour the affirmative of this proposition. The very great powers with which 
 a Court of Chancery 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 jui-isdictlon 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 illustra- 
 tion, 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 sub- 
 versive 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 par- 
 ties. 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 Go. v. Montana Go., Limited (1890), 33 Pac. Eep. 510, which 
 case was in turn followed by The Blue Bird Mining Go., Limited, v. 
 Murray et al., at p. 1033 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 
 hy extending a, drift in order to determine the continuity and identity 
 
 *Cf. 184, 190, 23G, 282, 307. 
 
I.] CENTRE STAR MINING 00 v. IRON MASK MINING 00. 279 
 
 of a vein. In the Blue Bird case it was held that the Court had in- i898. 
 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 Foti Coubt. 
 Thorriburgh case) review the earlier English authorities, the point is mabtin, J. 
 made clear that inspection is granted " as the best means of discover- 
 ing 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 sug- 
 gestion by any jurist that rights of property are impaired or trans- 
 gressed " by the making of such orders. 
 
 The law, then, being to my mind settled, in what does the applica- 
 tion of the appellant fall short of the requirements above set out for 
 the proper exercise of our judicial discretion? I am unable to dis- 
 cover 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 Rolls pointed out 
 in Benniit v. WMtehouse (1860), 38 Beav. 122, it is not " a question 
 depending only on the balance of testimony. . . . The Court re- 
 quires the best evidence of the fact, and the best evidence here is by 
 an examination of the workings in the defendants' mine." The best 
 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 
 injury is shewn as likely to result. In addition to the foregoing we 
 have the following circumstances set out in the aflSdavit of John B. 
 Hastings, mining engineer, the manager of the Centre Star Com- 
 pany, 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 
 necessary 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 
 inspecting and tracing the plaintiffs' vein through and beyond such water 
 course, towards and into the disputed ore bodies, and also to tunnel, sink or 
 drift through the vertical dike lying immediately to the west of the plaintiffs' 
 inclined shaft, and referred to in the affidavits, in order to locate the plain- 
 tiffs' vein on the westerly side of said dike, and trace such vein into the dis- 
 puted ore bodies situate on the west side of said dike. 
 
 4. " That unless such additional work be done it will be impossible to as- 
 certain the true facts in regard to the identity and continuity of the said vein, 
 and place the Court in a position to deal with the said action upon its merits 
 at the trial thereof. 
 
 6. " That I verily believe that if the plaintiffs are permitted to do a reason- 
 able amount of work for the purpose of obtaining the true facts in regard to 
 
280 MARTIN'S MININ-G CASES. [roL. 
 
 1898. the said vein, all' the necessary evidence can be brought before the Court at 
 
 December 24; the tHal of this action, and the rights of' the parties in and to the disputed ore 
 FUttOouRT. ^°^'^^ ^^^^ determined. 
 
 7. " That the expense of preparing for the trial of this action will be very 
 
 MahtiNj J. great, and unless the defendants ai-e permitted to do the necessary work' in 
 ordte to obtain pttiper and sufficient evidence in regaord to the continuity of the 
 said' vein, the rights of the parties to the ore bodies in dispute cannot, as I 
 verily believe, be determined at the said trial." 
 
 ' 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 Mineralo- 
 gist, would of themselves fully 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 course 
 of a few feet, and another application would be made, and so on ad' 
 infinUunv. I have considered this objection with some- care, and the 
 answer to it is that the Court should not be deterred from makiag 
 an ordfer 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 shexraij and 
 which cannot be shew=n to exist, may interfere to render, the present ex- 
 pected good consequences of the order of no avail; i 
 
 In the memorandum of judgment of the learned Judge appealed 
 from, it would not appear that all the features' of this case above 
 mentioned, particuiarly the appHeation for inspection, were con- 
 sidered by him, and I understand that he deemed himself bound by 
 the ease of :En.nor v. Barwell (1860), 1 DeG. F. & J. 531, which was^ 
 quoted by the respondents, and that. Lumh. v. Bemimont (1884), 27 
 Ch. Di 356, and other cases cited to us were not before him, otherwise 
 I think 1 am justified in believing that he would have allowed the 
 inspection on the principles above established. 
 
 I would ailow the appeal with costs. 
 
 Appeal dismissed. 
 
 Note. — On 9th January, 1899, leave to appeal to the Trivy Council was 
 refused. 
 
 See as to costs : same case, post, p. 36% 
 
 As to form of orde* and enforcement of: see Star Mining Co. v. Byron N. 
 White Co., post, pp. 468, 513. 
 
 As to non iriterffereWCe with Judge's discrletion in grant^'ngordier for inspection, 
 atrd' generally on that question, see Orayv. Hurdhhni (1896i 28 N.S. 235. 
 
I.] 
 
 CLABK V. HANEY, et al. 
 
 281 
 
 Clabe v. Haney^ et At. 
 
 (8 B, C. 130). 
 
 Adverse Action — Ejectment — Location, Invalidity of^l'respass — Title — Onus- — 
 Post — Location Line. 
 
 Adverse actions are ejectment, not trespass actions, and tlie plaintiff must 
 
 succeed by the strength of his own title. 
 Failure to put up legal posts, or run the location line, invalidates a location. 
 
 Appeal from decision of Walkem^ J., in an adverse action tried ]>\ 
 him at Nelson on 27th July, 1897. 
 
 The facts appear in the judgment. 
 
 Bavis; Q.C., Bodwell and Bowes, for plaintiff. 
 
 Wilson, Q.C., and John Elliot, for defendants. 
 
 Cur. adv. vull. 
 
 April 10th, 1898. 
 
 Waleem, J.: — The plaintiff has brought these adverse proceed- 
 ings to establish his right to the possession of certain mineral land 
 ■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 def eHdants have broken into and are trespassing 
 upon the said Violet (amended to Olivette) mineral claim ground 
 and have committed' waste ther&in." Trespass is not the proper ac- 
 tion 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 plain- 
 tiff 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. 
 
 •189!). 
 January 9. 
 
 Full Couet.. 
 
 Statement.. 
 
 Argument. 
 
 Judgment 
 
 below, 
 Walkem, J^ 
 
282 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1899. 
 January 9. 
 
 Full ('ourt. 
 
 Judgment 
 
 below, 
 
 Walkem, J. 
 
 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, 350; and BBcher v. Pugh, (1887), 13 Pac. 906. 
 
 The exception is where the plaintifE is in possession, which is not 
 this ease, when his proceedings must be for equitable relief: Booh 
 ei al. V. Justice Min. Co. (1893), 58 Fed. Rep. 837. 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 36th and recorded 
 it on the 37th of February, 1895. The location was, therefore, made 
 under section 4 of the Mineral Act Amendment Act of 1894. (Quotes 
 section.) 
 
 A " legal post " as mentioned in the above section, is defined by 
 the Mineral Act of 1891 to be 
 
 " 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," 
 
 This definition of a legal post has been repeated in the succes-- 
 sive 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 Eevised 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 plaintiil 
 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.] 
 
 CLARK V. HAXEY, ET al. 
 
 283 
 
 1899. 
 January 9. 
 
 What little evidence there is as to the location has been produced 
 by the defendants' counsel. It goes to shew that post No. 2 is on the 
 Le Roi Company's ground ; and that instead of its top being at least Fuj.l Court. 
 four inches square for a foot downwards it is only three and a half 
 inches on three sides and three and a quarter inches on the fourth, 
 and, in each case, for only four inches downwards. No evidence has 
 been given as to the height of this or of No. 1 post or of the discovery 
 post. It has, therefore, not been sliewn that any one of them is a 
 legal post. Moreover, the notice on post No. 1 does not comply with 
 the terms of the statute, as it omits to state the number of feet to 
 , the right and to the left of the location line and also omits the words 
 " 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. 
 
 The plaintiff appealed to the Full Court and the appeal was argued Appeal, 
 at Victoria on 7th November, 1898, before McColl^ C.J., Irving 
 and Martin, JJ. 
 
 Davis, Q.C. {Duff with him), for appellant. 
 Wilson, Q.C, for respondent. 
 
 Arfrument. 
 
 Cur. adv. vult. 
 
 January 9th, 1899. 
 Per Curiam : — The appeal must be dismissed with costs. 
 
 Appeal dismissed with costs. 
 
 Judgment. 
 
 Note. — Tlie plaintiff's location was junior to tliat of the defendants ; see 
 Scliomberg v. Holden, post, p. 290. 
 
 As to tlie character and nature of adverse actions : see Corhin v. Lookout 
 Mining Co., ante, p. 126 ; Dunlop v. Haney, ante, p. 232. 
 
 As to defects in location : see cases cited in Mauley v. Collom, post, p. 487. 
 
 As to the result of a mere affirmance of a decision, see authorities cited, 
 post, p. 499. I 
 
284' 
 
 MAiiTIN'S MINING CASES. 
 
 [VOL. 
 
 1899. 
 January 20: 
 
 Full Court. 
 
 ESQUIMALT & XaNAIMO EY. CO. V. JSfEW VANCOUVER COAL Co. 
 
 (6 B. C. 306; 9 B. C. 162). 
 
 Coal Mine — Title — Laches — Practice — Pleading — Embarrassing General Alleffar 
 tion — Statement of Defence — Particulars- — Rule 210. 
 
 If the defendant not only traverse the plaintiff's title to certain cosiil seams, but 
 set up a title to the same in himself, lie must plead it with particularity; a 
 general allegation will be struck out as embarrassing. 
 
 Dfecision of IbVINg, J., reversed. 
 
 Statement. 
 
 Argument. 
 
 Judgment 
 
 below, 
 Irving, J. 
 
 Appeal. 
 
 Appeal by plaintiffs from an order of Ievikg^ J. 
 
 Plaintiffs obtained a summons to strike out as embarrassing 
 paragraphs 6 and 7, of the statement of defence, as follows:— 
 
 6. The defendants further say that the plaintiffs neither own, nor are they 
 entitled to mine for, any coal under the sea, either opposite the lands known 
 as Newcastle Townslte as alleged or elsewhere at or near the city of Nanaimo, 
 and the defendants further say that all coals heretofore mined by them or now 
 being mined by, them were and are the property of the defendants and not the- 
 property of the' plaintifEs. 
 
 71 The defendaots further say that if the plaintifEs ever haid any" right to 
 the coal in question in this action (which the defendants deny)' that the plain- 
 tiffs ought not to be allowed to assert any claim thereto by reason of the 
 plaintiffs' laches. 
 
 Bodwell, {Luxton with him), for plaintiffs, cited- PMllips v.. 
 Phillips (1878), 4 Q. B. D. 127, and argued that particulars of the 
 plea of laches should be given. 
 
 Hunter, {Helmck&n, Q.C., with him), for defendants: Order 
 XXI., Eule 21, renders Phillips^ v. PfeinipS' inapplicable. As to the 
 laches, particulars ought to be asked in the usual way at a later- 
 stage. 
 
 November 23rd, 1898. 
 
 iRVii^'G, J. : — I think the sixth paragraph is well pleaded and 
 m-efits the issues raised. in accordance with the rules. As to the- 
 seveidth, I think particulars should be stated as shewn in Bullen & 
 Leake, 992. Four days in which to amend. Costs in the canse. 
 
 Judgment Accordingly. 
 
 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. 
 
 Ilelnichen, Q.C., and Hunter, for respondents. 
 
 Cur. adv. vult.. 
 
Drake, J. 
 
 I.] ESQUIMALT & NANAIMO RY. GO. v. NEW VANCOUVER GOAL CO. 2«5 
 
 January 20th, 1899. latio. 
 
 January 20. 
 
 McCoLL, C.J. : — This is an action brought (1) to establish the ^ 
 
 plaintiffs' title to coal in a certain locality; (3) for an account of ^^"^'' ^°^'"'''- 
 the coal taken thence; (3) an inquiry as to other damages caused McColl, C.J. 
 by the taking; (4) payment; and (5) an injunction. Walkkm, J. 
 
 The defendants, besides denying the allegations in the statement 
 of claim, allege (par. 6) "And the defendants further say, that 
 all coals heretofore mined by them, or now being mined by them, 
 were and are the property of the defendants, and not the property 
 of the plaintiffs.'' 
 
 The plaintiffs applied to have this part of the defence struck out 
 as embarrassing. The application was refused, and leave was given 
 to amend. The plaintiffs appeal from the refusal. 
 
 Mr. Hunter urged that the action if brought in respect of coal in 
 place is an action for the recovery of land, and if not so brought, 
 that the statement of claim is bad in not asserting an exclusive right 
 to the coal. 
 
 According to the rule laid down by Jessel, M.E., in Gledhill v. 
 Hunter (1880), 14 Ch. D. 492, no action is an action for the recov- 
 ery of land unless the plaintiffs ask for possession, which these plain- 
 tiffs do not. 
 
 The rule as to particulars being in general terms I am unable to 
 understand why the defendants, having chosen to claim property in 
 themselves, should not give the particulars which the plaintiffs, if 
 claiming title in the same way, would be ordered to give as of course 
 according to the case of Palmer v. Palmer (1892), 1 Q. B. 319. 
 
 That a defendant will in a proper case be required to give par- 
 ticulars in similar circumstances is shewn by the case of Spedding 
 V. Fitzpatrick (1888), 38 Ch. D. 410. As remarked by Cotton, 
 L. J., in that ease, " The old system of pleading at common law was 
 to conceal as much as possible what was going to be proved at the 
 trial, but under the present sy-stem it is our duty to see that a party 
 so states his ease 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 neeessary 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 Dkake, JJ., concurred in allowing the appeal. 
 
 Appeal allowed with costs. 
 Liberty to defendants to amend. 
 
 Note. — See ante. p. 237. 
 
286 
 
 MARTIN'S MINING OASES. 
 
 [TOL. 
 
 1899. 
 January 23. 
 
 Drake, J. 
 
 Sunshine^ Limited^ v. Cunningham^ et al. 
 
 Mineral Claim — Parol Agreement — Trustee — Principal and Agent — Statute of 
 Frauds — Location — BuUdings^Occupation — Record — Mineral Act, sec. 50. 
 
 An agent who locates in his own name a mineral claim for his principal cannot 
 if he repudiate the trusf, in the absence of any writing to satisfy the Statute 
 of Frauds, be declared a trustee for such principal. 
 If a locator include in his location ground then occupied by buildings, the 
 record of such location will be rectified so as to exclude such ground. 
 
 Statement. ACTION for trespass OH the plaintiff company's alleged mineral 
 
 claim, the Gold Bug, adjoining its admitted claim the Silver Cup. 
 Tried at Victoria, on July 18, 1898, by Deake, J. 
 
 The plaintiff's buildings were in great part on the Gold Bug, 
 and that claim was partly used as a waste dump from the workings 
 of the Silver Cup claim. 
 
 For the purpose of the matters of law here reported, it is suffi- 
 cient 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 Min- 
 eral Act. 
 
 Argument. ^ ^_ McPUlUps, 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. NuUall (1834), 31 Eev. E. 
 99; Heard v. Pilley (1869), L. R. 4 Ch. 552; equity will relieve in 
 ease of haud—Haigh v. Kaye (1873), L. E. 7 Ch. 474; Bootli 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 because we 
 do not set up a transfer but a trust. - 
 
 Whyte, Q.C., for defendants: There must be a writing proving 
 the trust; the .employee was not in a fiduciary capacity. See McCor- 
 mich V. Grogan (1869), L. E. 4 H. L. 88. 
 
 Our. adv. vult. 
 
I.] SUNSHINE, LIMITED, v. CUNNINGPIAM, et al. 287 
 
 Januai-y 33rcl, 1899. 1899. 
 
 January 23. 
 
 Dkake^ J.: — (After stating the facts) . . a trust may be — 
 created without writing, but it must be manifested by some writing 
 that there was such a trust. Forster v. Hah (1798), 3 Ves. 696 . . J"dgment. 
 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 Duhe of Marl- 
 borough (1894), 2 Ch. 133. In Rochefoucauld v. Boustead (1897), 
 1 Ch. at p. 306, 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. Con- 
 sequently, 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 Cunning- 
 ham located the claim for the company, and at their request. The 
 evidence on this point is as follows: — (Here the learned Judge re- 
 views the evidence and finds that Cunningham did so locate. ) 
 
 None of the cases cited is exactly like the present. The major- 
 ity 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 in- 
 terest Tinder 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 equally applicable in the present one. Tht 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 
 was content, as he says, with a verbal explanation from the Eeeorder, 
 
288 MARTIN'S MINING CASES. [vol. 
 
 Januar' 23 ^^^ ^^^^ ^^^^ Eecorder said it did not matter. Under the circum- 
 — ' ■ stances, as Cunningham has no right under see. 12 of the Mineral Act, 
 
 Djjakb, J. to take up land on which buildings are erected, the def eiadants Cun- 
 ningham and McGuire are entitled to succeed to this extent, the -Gold 
 Bug fraction must be limited to the ground outside of the land occu- 
 pied by the Sunshine Company's buildings, and the curtilage thereof, 
 and the record must be altered accordingly. They are also entitled 
 to an injunction to restrain the deposit of waste upon the lands of 
 the Gold Bug. They are not entitled to any damages, for none have 
 been proved. 
 
 The Sunshine Company, as against the owners of the Gold Bug, 
 are entitled to possession of all the buildings which were erected prior 
 to the record of the Gold Bug claim, together with the curtilage 
 thereto. 
 
 The Sunshine Company are entitled to the costs of the action of 
 Cunningham v. The Sunshine, up to the trial, as this action was for 
 trespass in not removing the buildings, and for timber cut, in which 
 they fail; and Cunningham and McGuire are entitled to the costs of 
 the action of the Sunshine against themselves, including the trial, 
 one set of costs to be set off against the other. 
 
 Note. — This decision as regards the Statute of Frauds, is in conflict with 
 that of the Full Court in Wells v. Petty, ante, p. 147, and of the same Judge 
 in Fero y. Hall, ante, p. 238, neither of which was cited herein. And see 
 McA'erhanie v. Arehibald, post, p. 320. 
 
 As to occupied ground, see Waterhouse v. LiftcMld, ante, p. 153. 
 
I.] 
 
 EYAx ,-. Mcquillan. 
 
 289 
 
 Eyais' v. McQuillan. 
 
 (6B. C. 431). 
 
 Adverse Proceedings — Conflicting Locations — Measurements — Title — No Satis- 
 factory Affirmative Evidence— Mineral Act, 1898, oh. 33, sec. 11. 
 
 Where both parties in adverse proceedings fail to establish title to the prop- 
 erty in dispute the Judge will so find, and direct judgment to be entered 
 accordingly, without costs to either party. 
 
 Adverse action tried at Kelson, before Maetik", J., on 8th Feb- 
 ruary, 1899. The facts sufficiently appear in the judgment. 
 Christie,' fox plaintiff. 
 Abbott, for defendant. 
 
 1899. 
 February 8. 
 
 Mahtin, J. 
 
 Statement. 
 
 Argument. 
 
 Martin, J. :— In this matter I cannot come to the conclusion that J"dffm<-nt. 
 either of the parties has given satisfactory " affirmative evidence of 
 title to the ground in controversy," as required by sec. 11 of the Min- 
 eral 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 sur- 
 veyed, and the defendant's being unable to procure the attendance 
 of a certain witness, the Conrt 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- 
 sequently find that title has not been established by either party, 
 and judgment will be entered accordingly, without costs, as\ provided 
 by the statute. 
 
 Judgment accordingly. 
 
 Note. — See the next case. Same course adopted in Rammelmeyer v. Cur- 
 tis, post, p. 401. 
 
 This section considered in Dunlop v. Haney, post, pp. 3G9, 390 ; Gelinas v. 
 Clark, post, p. 428; Cook v. Denholm, post, p. 447; Cleciry v*. Bosoowitz, post, 
 p. 506. 
 
 As to measurements : see Bleekir v. CMsliolm. ante, p. 112. 
 
 19 
 
290 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1S99. 
 February 11. 
 
 Mabtin, J. 
 
 Statement. 
 
 Argument. 
 
 SCHOMBEEG V. HOLDEN ET AL. 
 
 (6B. O. 419). 
 
 Adverse Claim — Affirmative Evidence — Proof of Title — Senior Location — Min- 
 eral Act, 1898, sec. 11. 
 
 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) tlie overlapping of the claims in dispute, a senior locator who is 
 plaintiff in adverse proceedings makes out a prima fade case. 
 
 Adverse action under the Mineral Act and Amendment Acts 
 to establish plaintiff's title to the Black Prince mineral claim, the 
 defendants having restaked the claim under the name of the Catardin 
 and applied for a certificate of improvements. The action was tried 
 at ]Srelson before Maetin, 3., 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. 
 
 W. A. Macdonald, Q.C., and Grimmett, for defendants. 
 
 Counsel for the plaintiff put in a certified copy of the record shew- 
 ing 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 plain- 
 tiff 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 re- 
 quired 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 case that if no evidence 
 is offered on the part of the defendants the plaintiff would be en- 
 titled to judgment. A combined reading of the judgments in Waier- 
 liouse V. LiftcMld* decided by McCoU, J., on April 1st, 1897, (The- 
 Grand Prize Case), and Fero v. Hall,* decided by Drake, J., on 
 July 6th, 1898, (both unreported) support this view. 
 
 ••Note. — Waterhouse v. Liftohild is reported at p. 
 Hall is reported at p. 238, ante. 
 
 153, ante, and Fero 
 
I.] SOHOMBERG v. HOLDEN ET al. 291 
 
 Maktin, J. : — As to the first point I am of opinion that the sec- ^ i899. 
 tion in question applies to all cases which come before the Court for I'ebruary ii. 
 trial. Maktin, J. 
 
 As to the second point I think the plaintiff has made out such 
 a case 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 see. 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 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 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 plain- 
 tiff from this position. Of cotirse where the plaintiff is a subse- 
 quent (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. Hancy, pout. p. 
 369 ; Cleary v. Boscoioitz, post, p. 506, and Gelinas v. Clark, -post, p. 428. 
 
 For actions by junior locators and proof required : see Bleekir v. Ghisholm, 
 ante, p. 112; Clark v. Haney, ante, p. 281; Pettier v. Snoto. post, p. 384; Cali- 
 well V. Davys, post, p. 387. 
 
 iSchomberg v. H olden, has been I'epeatedly followed at nixi /iriiia. 
 
 If the plaintiff in an adverse action is the senior (prior) locator, he by 
 ijroving the three things above mentioned satisfies the onus imposed upon him by 
 sec. 131 of the Jlineral Act. It may be remarked that that section seems to 
 assume that in every case the locator adversed would be the holder of " such 
 prior record ;" but of course the reverse might be, and very often has been the 
 case. Note also the wide language used in the opening lines of the section 
 " in any suit or matter claim an adverse right of any kind." This sectioi 
 should be read with 27. and (particularly the two provisoes at the end of sec. 
 27) with sec. 11 of 1808. in regard to which see the preceding case. 
 
292 
 
 MARTIN'S MINIXG CASES. 
 
 [VOL. 
 
 March's HOLDEN V. BkIGHT PEOSrECTS GOLD MIXING AND DEVELOPMENT CO. 
 
 FuLrc^oRT. ^ . . (6 B.C. 439). 
 
 Vree Miner's Lien — Mineral Claim, — Mechanics' Lien — Affidavit — Stoorn iefore 
 a Commissioner — " On or A bout " — Mechanics' Lien Act, R. S. B. C. lSi)T, 
 sec. m. 
 
 A free miner may have a mechanic's lien upon a mineral claim. 
 
 A statement in the affidavit for lien that the work was finished or discontinued 
 
 " on or about " a certain date is sufficient. 
 Decision of Forin, Co.J., affirmed. 
 
 Statement. APPEAL from the jiidgment of FoEiN^ Co.J., for the County of 
 
 Kootenay, sustaining certain mechanics' liens filed by the plaintiff 
 and others against the Northern Light mineral claim, owned by the 
 defendant company. Separate actions were brought by five different 
 plaintiffs to enforce their respective liens, and they were all consoli- 
 dated and tried together as one action. 
 
 The material parts of the affidavit of lien of the plaintiff Holden 
 were as follows: 
 
 " That the particulars of the work done are as follows : 
 " Thirty-nine days' work done by me on the Northern Light mineral claim 
 between the 23rd day of September, 1898, and the 31st day of October, 1898, 
 as foreman in the running of a tunnel on said mineral claim. 
 
 " That the work was iinlshed or discontinued on or about the 31st day of 
 October, 1898." 
 
 The affidavits of the other plaintiffs were similar to that of Hol- 
 den, except that they contained the words as a miner instead of as 
 foreman. The affidavits were sworn before F. S. Andrews,' a com- 
 missioner for taking affidavits within British Columbia. 
 
 The trial took place at Nelson, on 23nd and 23rd December, 1898, 
 before Fohin, Co.J. 
 
 Macdonald, Q.C., and P- E. Wilson, for plaintiffs. 
 
 S. 8. 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 
 liy the Century Dictionary that an artisan is also defined as a mech- 
 anic, and a miner is surely included under sub-sec. 5, sec. 2. 
 
 Appeal. 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. 
 
 Argument. 
 
 Judgment 
 
 below, 
 
 FOBIN, Co..T. 
 
I.] HOLDEN V. BRIGHT PROSPECTS GOLD MINING, &c., CO. 
 
 293 
 
 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 will be construed strictly against the plain- 
 tiffs. See Archibald v. Huhley (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 
 f. 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 must come under the head of 
 " labourer ;" the words in sub-sec. 5 of sec. 2, " or the person doing 
 labour for wages," must be limited, or, it would include chimney 
 sweeps, farm labourers, and many others never intended. The " per- 
 son doing labour for wages " must be ejusdem generis with mechanics 
 and artisans, and pick and shovel men would not be included. See 
 The Queen v. Edmundson (1859), 38 L. J., M. C. 213; Great West- 
 ern Railway Company v. Swindon and Cheltenham Railway Com- 
 pany (1884), 9 A. C. at p. 808; Sandiman v. Breach (1827), 7 B. 
 & C- at pp. 99 and 100 ; Hardeastle, 98 and 201. If the Legislature 
 had intended to give a miner a lien, it would have mentioned him 
 specifically 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 E. S. B. C. 1897, 
 ch. 3, sees. 2 and 11. When the work was finished or discontinued 
 should have been stated definitely — on or ahout is not sufficient. 
 
 Duf, for the respondents, who was heard only on the question 
 of the sufficiency of the affidavit: Finished or discontinued on or 
 ahout are the exact words used in Schedule A. of the Act- Under sec. 
 8 these fqrms are supplied to every Government agent. He cited 
 Truax v. Dixon (1889), 17 Ont. 366, and Brown v. /owe«„ (1895), 4 
 B. C. at p. 53. 
 
 1899. 
 March 8. 
 
 Full Couut. 
 
 A rgument. 
 
 Per Curiam: — The Act applies to the case of a free miner, and 
 it has been sufficiently complied with. The appeal is dismissed with 
 costs. 
 
 .Judgment. 
 
 Appeal dismissed. 
 
 Note. — See Anderson v. Qodsal, post, p. 416. 
 
 In Davis v. Crown Point Mining Co. (1902), 3 Ont. 69, the Divisional Court 
 decided that a blaclssmith employed in sharpening miner's tools had a lien. 
 
294 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Mardf'20. SpENCEE V. HARRIS.* 
 
 Full Court. Mineral Claim — Surface Rights — Crown Grant — Landlord and Tenant — Crown 
 
 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 ofE. 
 
 Where such a squatter takes a lease from the Crown grantee, he cannot main- 
 tain 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- 
 tory. 
 
 Appeal from the judgment of Irving^ J. 
 Statement. Action to set aside a lease made between the parties of a certain 
 
 lot on Eeco 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, on December 5th, 1898. 
 
 The facts appear from the judgment. 
 
 Argument. M.cCann, Q.C., for plaintiff. 
 
 The Attorney-General (Joseph Martin, Q.C.,) for defendant. 
 
 Cur. adv. vult. 
 
 Judgment. 
 
 Irving, J., 
 
 at trial. 
 
 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 de- 
 fendant had a Crown grant of the surface, whereas in fact the de- 
 fendant only enjoyed such rights as were conferred on holders of 
 Crown grants issued under the Mineral Act of 1895, that the plain- 
 tiff, 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 the years 1896 and 1897, and one month in 
 1898, he attorned and paid rent to the defendant, and on 5th Novem- 
 ber, 1898, having become aware of the character of the defendant's 
 title, he issued his writ to set aside the lease and recover the money 
 so paid. 
 
 The defendant counterclaims for arrears of rent, and claims that 
 he is owner in fee. 
 
 * Partly reported in 6 B. C. 466. 
 
I.] SPENCER V. HARRIS. 295 
 
 The lot in question forms part of the parcel of land contained 1899. 
 in the description in the Crown grant to the defendants' mine, the March 20. 
 Lowden mineral claim, and as the townsite of Sandon is situate with- Foll Coukt. 
 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 — Sogers 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. ChrJc (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 plaintiS fails to establish this, 
 then his case goes by the board and the defendant is entitled, to judg- 
 ment 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 ex- 
 ceeding ll-20th) of the said lands, for purposes, but the plaintiff 
 argued it only passed the minerals, not the surface rights. Judgment 
 
 The defendant claimed the benefit of sec. 16 of 1897 (passed 8th ^^t'triaL ' 
 May, 1897), which is as follows: (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 de- 
 claratory, 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 declara- 
 tory 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 
 all 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 
 in the district land office, and move the Government Agent to pub- 
 lish his notice. 
 
296 
 
 MARTIN'S IvnNIXG CASES. 
 
 [vol. 
 
 lSi)9. 
 March 20. 
 
 Fdll Codkt. 
 
 Judgment 
 
 IrVi.no, J. 
 
 at' trial > 
 
 The form of the Crown grant agrees word for word with the de- 
 fendant'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 obtaining 
 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 att 
 to what the real intention of the Legislature was, there still remained 
 on the statute defining the rights under a Crown grant a reference 
 to the repealed sec. 31 of 1891, and the form of the Crown grant 
 conveying surface and minerals remained untouched. See Clarka 
 V. Brddlaugh (1881), 8 Q. B. D. 69, and The Queen v. Smith (1873), 
 L. K. 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 win- 
 ning and getting from and out of the claim the minerals, the pro- 
 cedure 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 uncertainty 
 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 
 f qrm 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. 
 
 Prom these contradictory enactments, a vast amount of confusion 
 hag arisen; every holder of a mineral claim would expect on com- 
 pleting the necessary amount of work to receive a Crown grant in 
 the terms of the Act under which he originally recorded his claim. 
 
r.] SPENCER v. HARRIS. 297 
 
 hut no provision was made in the repealing 'statute for the case i809. 
 of an application for a Crown grant under tlie repealed statute ; or, March^ 20. 
 indeed, for continuing the claim itself. Compare Abbott v. Minister Full Court. 
 of Lands (1895), A. C. 435. 
 
 ISTow then, having called attention to the alterations in the 
 statutes prior to 1897, we come to the Act of that year. Under the 
 earlier Acts from 1888 to 1891, the holders of mineral claims took 
 up their claims with a prospect of obtaining a grant of the surface. 
 
 In 1893 down to 1896 there was some uncertainty as to what his 
 Crown grant would give him, but it may be stated generally that he 
 would not receive the surface, but men do not, as a ru.le, locate and ob- 
 tain their Crown grant in one and the same year. That was one of 
 the matters to be dealt with ; another was that the procedure to obtain 
 a Crown grant had been ^•aried almost every year; then, a third arose 
 from the continued use of the same form of Crown grant, a grant, 
 as I have already said, conveying on its face the fee simple in the 
 minerals and surface. 
 
 The Legislature then passed sees. 16, 17 and 18 of 1897; sees. 
 133, 133, 134, of ch. 135 of the Eevised Statutes. To anyone, anx- 
 ious to arrive at the meaning of sec. 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 
 way: — 
 
 " Notwithstanding the repeal of the said Act (say of 1891), it is {j('^f"J'°* 
 hereby declared that holders of records of mineral claitns are entitled at trial. 
 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 unimport- 
 ant — and then) " The Crown grant thereafter shall vest in the 
 holder such rights as were declared "— " in force at the date of the 
 rbcord 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 ? IJnder 
 that section, the defendant would, if he located under an Act giving 
 to 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 caimot 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 
 
298 
 
 MAKTIN'S MINING CASES. 
 
 [VOL. 
 
 1899. 
 March 28. 
 
 JTULL COUKT. 
 
 -Judgment 
 
 Irving, J. 
 
 at trial. 
 
 (1847), 4 U. C. E. 25 and Attorney-General v. Thoolald (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 (1833), 3 B. & Ad. 465; Attor- 
 ney-General V. Pougett (1816), 2 Price 381. 
 
 I am of opinion that see. 16 of 1897 is a declaratory section, and 
 that the defendant is entitled to the benefit of it. Section 18 sup- 
 ports this view. The inference to be drawn therefrom is that Legis- 
 lature in providing that the Act of 1897 should not affect any pend- 
 ing 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 618. 
 
 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 sus- 
 ceptible 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 she^w 
 that it is not to be read according to its ordinary meaning. 
 
 There will be judgment for the defendant on original action, 
 also on the counterclaim with costs. 
 
 Appeal. 
 
 -Argunient. 
 
 The plaintiff appealed, and the appeal was argued at Vancouver, 
 on the 20th March, 1899, before the Chief Justice, and Dkake, and 
 Maktin, JJ. 
 
 Gassidy, 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 originalh^, being simply a squatter on Crown lands; he 
 
I-] SPENOBR V. HARRIS. 
 
 299 
 
 accepted a lease from us and we insured his quiet enjoyment and iggg 
 lived up to our covenants; he has got all he asked for; under such March 20. 
 circumstances the exact extent of our Crown grant is immaterial to FullCoui.t. 
 our tenant; that is the point which I relied on before the learned 
 Judge below, but the judgment, though in our favour, proceeds on 
 other grounds. 
 
 Per Curiam : — From the appellant's own evidence it appears that Judgment, 
 he knowingly took the lease from the respondent under the Crown 
 grant in question; he admits he has not been disturbed in possession 
 or suffered any injury ; he has consequently got all he expected to get. 
 He originally came in, not under anyone, but as a squatter, and was 
 liable 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 prem- 
 ises. 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 any 
 opinion as to the interpretation placed upon the Crown grant by the 
 learned trial Judge. The appeal must be dismissed with costs. 
 
 Appeal dismissed ivitli costs. 
 
 Note. — As to rectification of Crown grant, see In re American Boy, post, 
 p. 304. 
 
 As to passing of precious metals, see In re St. Eugene Mining Co., pott, 
 p. 406. 
 
 As to right of Crown grantee of mineral claim, see Corhin v. Lookout 
 Mining Co,, ante, pp. '126-7. 
 
300. 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 1899. 
 March 28. 
 
 Maht:n, .T. 
 
 Statement'. 
 
 Ar^ment. 
 
 Ihon Mask Mixing Co. v. Centre Stau Mining Co. 
 (6 B. C. 474). 
 
 Practice — Mining Action — Jury — Mode of Trial — Scientific Investigation — 
 Practice before Judicature Act, 1879 — Ewtralateral Rights — Apex — B. C. 
 Stats. 1876, No. 17— Rules 331, 332, 333. 
 
 In a mining action either party has the right to a trial by jury under Rule 331, 
 subject to Rule 332, which applied to the present case (one of extralateral 
 rights) because it required scientific or local investigation which could not 
 conveniently be made by a jury. 
 
 Summons by plaintiffi company for a jury. The action was one 
 respecting extralateral rights. The plaintiff company sued for an 
 injunction restraining the defendant company from continuing to 
 sink an incline shaft in plaintiff's claim, and for damages. The de- 
 fendant company pleaded that having the exclusive right and posses- 
 sion of all the surface within the lines of its location and of all veins 
 throughout their entire depth, it commenced an incline shaft at a 
 point within the lines of its said location upon a vein, the top, or 
 apex of which lies inside of such surface lines extended downward 
 vertically, and in continuing the work upon such incline shaft and in 
 fallowing the said vein upon its dip it had entered underneath the 
 surface of the plaintiff's claim, which it said it had a right to do; 
 and the defendant counterclaimed for damages and for an injunc- 
 tion restraining the plaintiff company from interfering with the said 
 incline shaft. 
 
 For further statement of facts vide ante, at page 267 ; and the 
 ae affidavits were us 
 before the Full Court. 
 
 same affidavits were used on the hearing of this summons as were 
 
 MacNeill, Q.C., for the summons. 
 Davis, Q.C., contra. 
 
 Cur. adv. vuli. 
 
 March 28th, 1899. 
 
 Judgment. Maetin, J. : — The application by the plaintiff for a jury is 
 
 resisted on two grounds, (1) that this case is within Eule 331 as 
 being one " which previously to the passing of the Judicature Act 
 could, without any consent of parties, have been tried without a 
 jury;" and (2) that, in any event, it should be tried without a jury 
 
Martin, J. 
 
 1.] IROX MASK MINING CO. v. CENTRE STAR MINING CO, 301 
 
 as being a case within Eule 332 requiting "prolonged examination ]y[arci;'28. 
 of documents "" or " scientific or local investigation.'' 
 
 Adopting the construction applied to this group of rules by the 
 case of Baring Brothers & Co. v. North Western of Uruguay Rail- 
 way Company (1893), 2 Q. B. 406, it is necessary to see what was the 
 practice as to trial i)y jury in this Province before the Judicature 
 Act, as mentioned in Eule 331. 
 
 " Judicature Act " here means, not the English Judicature Act 
 (which is referred to in the corresponding English Eule 438 as " the 
 principal Act"), but ch. 12 of the B. C. Statutes of 1879, the short 
 title of which is the " Judicature Act, 1879," and which is so referred 
 to frequently in the Supreme Court Eules of 1880. 
 
 Eule 250 of 1880 guides us to what the practice as to trial by 
 jury was prior to the Judicature Act; it was regulated by Statute No. 
 17 of 1876, entitled " An Act for giving to the parties to civil causes 
 in the Supreme Court the option of having such causes tried by a 
 Judge or jury." This title is to be read as part of the Act; Fielding 
 V. Morley Corporation (1899), 1 Ch. 1. Sec. 1 of this Act is as 
 follows : 
 
 " All issues of fact in any civil action brought in the Supreme Court, and 
 every assessment or enquiry of damages in every such action shall, in the 
 absence of the notice hereinafter mentioned, be heard, tried, and assessed by a 
 Judge of the said Court, without the intervention of a jury. Provided, that if 
 the plaintiff requires such issue to be tried, or damages to be assessed, ^or 
 enquired of, by a jury, he shall give notice to the opposite party, by serving 
 with the notice of trial, and the defendant by delivering to the plaintiff within 
 two days after, or at any time before, the receipt by the defendant of the notice 
 of trial, or either party at any other time, by leave of the Judge, delivering to 
 the opposite party a notice in writing to the effect following, that is to say — " 
 (Form of notice here). 
 
 I have been referred to the note of a judgment of the late Mr. 
 Justice Gray (see his Supreme Court Eecord No. 4, p. 157, June 3, 
 1879), in the case of McKenzie v. The Corporation of the City of 
 Victoria on this statute, but in my opinion little, if any, assistance 
 can be derived from it ; first, because it deals with the rights of par- 
 ties when the notice has 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 de- 
 pendent upon anything other than the will of the party who wished 
 to exercise it. It is urged that this statute only gave a conditional 
 tight, and that if a party failed to give notice " the cause could, with- 
 out the consent of parties, have been tried without a jury," therefore 
 there should be no jury here. 
 
302 MARTIN'S MINING CASES. [vol. 
 
 1899. If no construction had been placed upon the meaning of this see- 
 
 - ' ' 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 Goote 
 V. Ingram, 1887), 35 Ch. D. at p. IID, 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 principal 
 Act, viz., " The Supreme Court of Judicature Act, 1873." In Tim- 
 son V. Wilson (1888), 38 Ch. D. 72, the Temple Bar Case was follow- 
 ed. 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 Judi- 
 cature Acts, a right to a trial by jury, such right still exists . . ;" 
 and in the same case Lord Justice Lopes at page 493 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 followed 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. Busliby." 
 
 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 plain- 
 tifl; were otherwise entitled to a jury, the cause should be tried with- 
 out 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 aa 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 ease of Swyny 
 V. North Eastern Railway Company (1896), 74 L. T. 88, in which 
 
I.] IRON MASK MINING CO. v. CENTRE STAR MINING CO. 303 
 
 Hamilton v. The Merchants' Marine Insurance Company was con- u^^'^h^fi 
 sidered, and the application of the rule extended. That ease laid it — 
 down plainly that where there was one " scientific issue " out of ^f'^"''''''' '^■ 
 several other issues^ that brought the action within the rule. The 
 test applied by Lord Esher was : " Now is there^ in the ease 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, will 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 litiga- 
 tion 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 in the cause. 
 
 Note. — See CorUn v. Lookout Mining Co., ante, p. 126. 
 
 By the Act to Amend the Mineral Act, 1902, ch. -16, sec. 1. a jury may be 
 had in adverse actions under sec. 37 of the Mineral Act and amendments. 
 
 From the fact that in this amendment of 1902 no power is reserved to the 
 Judge to dispense with a jury in oases requiring scientiflo investigation, it would 
 he inferred that the decision herein was not brought to the attention of the 
 Legislature when the bill was passed, otherwise, doubtless, that very salutary 
 power conferred in general by Rule 332, and herein given efieot to, would have- 
 been preserved. The recent amendment calls for further legislative consideration. 
 For an important tri8|,l by jury in a county court, mining jurisdiction, see- 
 Atkiiis v. (Joy, ante p. 88. 
 
504 
 
 MAKTIVS MINIKtf OASES. 
 
 [vol. 
 
 1839. 
 March 29. 
 
 jNIahtin, J. 
 
 Statement. 
 
 Decision oi 
 C. C. L. & W. 
 
 In ee the Ameeican Boy Mineral Claim. 
 
 (7 B. C. 268h ' 
 
 Adverse Claim — Certificate of Improvements — Grown Grant — Rectification of — 
 J" Mineral Act, sec. 3^ — Land Act, sec. 86 — Policy of Mineral Act. 
 
 Under sec. 86 of the Land Act a defective Crown grant may be cancelled and a 
 
 new one issued at any time irrespective of existing certificates of improvements 
 
 for mineral claims contained in the area of the grant. 
 Where a claim owner has received a certificate of improvements for his claim 
 
 his position is assured, and he is not called upon to adverse a subsequent 
 
 application of another for a certificate of improvements for a claim which 
 
 would include a portion of his claim. 
 Section 37 of the Mineral Act requires any claimant of an adverse nature to the 
 
 ground applied for to substantiate his claim within the prescribed time or be 
 
 forever barred except for fraud. 
 The fact that a claimant began adverse proceedings and abandoned them does 
 
 not deprive him of whatever rights he otherwise had under the section. 
 Speedy finality of litigation and quieting of titles with all due celerity are the 
 
 dominant policy of the Mineral Act. 
 Decision of the Chief Commissioner of Lands and Works affirmed. 
 
 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 
 Mineral Claim. The facts fnlly appear in the following decision qf 
 the Chief Commissioner: — 
 
 December 24th, 1898. 
 
 The Chief Commissioner : — Eva Boss, J. W. Troup and Thomas 
 McGuigan are the owners of a mineral claim called the American 
 Boy. I shall afterwards refer to these owners under the name of 
 Troup. 
 
 Frank H. Kilbourne and William Braden are the owners of two 
 mineral claims called the Ajax and Treasure Vault. I shall after- 
 wards refer to these owners under the name of Kilbourne. 
 
 The Treasure Vault claim wa& 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, 1893, and the 
 field notes of the survey were r&eived at the Department of Lands 
 and Works on the 24th of January, 1896. On the 27th of November, 
 
I.] In ke the AMERICAN BOX MINERAL CLAIM. 305 
 
 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 *'f _ 
 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, pre- 
 vious to the 37th of February, 1896, an adverse claim, and he in- 
 structed Mr. J. B. McArthur to take the necessary proceedings to 
 enforce the adverse. The matter came before the Court in a §uit 
 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 ex- 
 tend the time for commencing his action. It had become necessary 
 for him to take such proceedings as Mr. McArthur had failed to prose- 
 cute 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 Eeeorder, and Mr. Justice Drake held that, by virtue 
 of sees. 21 and 126, the adverse should have been filed in the office of p^p^'lj"?^ «7- 
 the Mining Eeeorder. Prom 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 siich cancelled 
 Crown grant." 
 
 Kilbourne 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 Kilboume'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, 
 
 M.M.C. 20 
 
306 MARTIN'S MINING CASES. [vol. 
 
 M''^'i?29 ^,™otion was made to set aside the writ of summons and all proceed- 
 — ' iigs thereunder, aiid to vacate the adverse claim filed by Troup. The 
 Martin, J. matter came before Drake, J., and is reported in Troup v. Kilhournt 
 (1897), 5 B. C. 547, ante, p. 319. Mr. Justice Drake refused the 
 motion on the ground that as the writ in the action had never been 
 served, by virtue of Rule 31 it was at that time no longer in force, 
 land there was therefore no action pending in Court. He also inti- 
 mated that in his opinion Troup had waived his adverse claim against 
 the Treasure Vault and Ajax by failing to duly prosecute his action. 
 
 Ofi 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. 33 of the Statutes of 1893, 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 m 
 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 ^'^^ 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 judg- 
 ment with the Mining Recorder, 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 en- 
 titled to the issue to him or to them of a cei^ificate 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 improve- 
 ments has a legal right to such certificate and to the following Crown 
 gramt. 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 en- 
 tilled to hate issued to him a Crown grant for all the land embraced' 
 
I.] In be the AMERICAN BOX MINERAL CLAIM. 307 
 
 in the survey and field notes which he had filed with his application j^^^^^-^ 
 for certificate of improvements. 
 
 It is true that afterwards certificates of improvements were issued Mmtin, J. 
 to Kilbourne in respect of certain of the land embraced in the certi- 
 ficate of improvements before issued to Troup, and Troup failed to 
 prosecute his adverse against the issue of such certificates. Mr. Mc- 
 Phillips contends that as Troup failed to prosecute his adverse claims 
 against the Ajax and Treasure Vault, Kilbourne is in as good a posi- 
 tion 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 cou - 
 troversies if a man were compelled to adverse the claims of all per- 
 sons who might ask for certificates of improvements that would em- 
 brace some of his property. 
 
 On the argument of the application, 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 Pro- 
 Yince are in substance very similar to those of the United States, and 
 the American authorities appear to me to be quite in point. n'^p^'r'"* w 
 
 The following are some of the authorities which I would cite: 
 
 " If a senior locator permit another to locate upon the same ground and 
 make application for patent, and file no adverse or protest, and the patent be 
 issued to such junior locator, his title will hold, the failure of the first locator 
 to file an adverse being a waiver of his priority." (Kopp's Land Owner, 
 \o\. :',, p. 113.) 
 
 Sections 2,325 and 3,326 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 
 and Receiver of the proper land office within sixty days after the first publica- 
 tion 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 
 no objection from third parties to the issue of the patent shall he 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, abso- 
 lutely conclusive against adverse claims." 
 
 Hamilton v. Southern Nevada> Gold and Silver Mining Company 
 (1887), 15 Morr. 315. 
 
 *CfL pp. 184, 190, 236, 277, 282. 
 
 Tl^e original mining laws of British Columbia are based on the Australian 
 system ; see Preface and Statutes. 
 
308 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1899. 
 March 29. 
 
 Martin, J. 
 
 Decision of 
 C. C. L. & W. 
 
 And in Lee et al. v. Stahl (1889), 16 Morr. 152, at p. 155, the 
 language is as follows: 
 
 " They cannot maintain the right to the mineral within the space of lode 
 intersection, nor other rights which they may have had by virtue of a prior 
 location, because they did not assert and secure the same by adversary proceed- 
 ings as provided by the' Act of Congress ; a failure so to assert such rights being 
 deemed a waiver of them." 
 
 The following opinion has been delivered by Mr. Justice Field, 
 of the Supreme Court of the United Sates, sitting as a circuit Judge, 
 in Eureha Consolidated Mining Go. v. Richmond Mining Co. of Ne- 
 vada (1877), 9 Morr. 578, at p. 592 : 
 
 " As was said by the Supreme Court in the case of Shepley et al. v. Cowan 
 et al. (1875), 1 Otto 338, where two parties are contending for the same prop- 
 erty, the first in time, in the commencement of proceedings for the acquisi- 
 tion of the title, when the same are regularly followed up, is deemed to be the 
 first in right. But this principle has been qualified in its application to patents 
 of mining ground, by provisions in the Act of 1872, for the settlement of adverse 
 claims before the issue of the patent. Under that Act, when one is seeking a 
 patent for his mining location and gives proper notice of the fact as there pre- 
 scribed, any other claimant of an unpatented location objecting to the patent 
 of the claim, either on account; of its extent or form, or because of asserted 
 prior location, must come forward with his objections and present them, or he 
 will afterward be precluded from objecting to the issue of the patent . . . 
 The silence of the first locator is, under the statute, a waiver of his priority." 
 
 The last mentioned decision has been affirmed by the decision of 
 the Supreme Court of the United States in Richmond Mining Co. v. 
 Hureha Mining Co. (1880), 103 U. S. 839. 
 
 The following authority, it seems to me, disposes of Mr. Mc- 
 Phillips' contention, that it was incumbent upon Troup to adverse 
 the claims of the Ajax and Treasure Vault for certificates of im- 
 provements : 
 
 " But appellants contsend that the Jacob Little Company had waived its 
 right to the premises in controversy in the action brought by the Gold Lead 
 Company for a patent. This position cannot be maintained. The Jacob Little 
 Company, having regularly .applied for a patent was not, in our opinion, com- 
 pelled, in order to preserve its rights, to protest against any subsequent appli- 
 cation for the same ground while its own application was still pending in the 
 land department." 
 
 Steel et al. v. Gold, Lead, Gold and Silver Mining Company (1883), 
 15 Morr. 292 at p. 296. 
 
 The only ground, therefore, on which the right of Troup to obtain 
 a Crown grant of all the land set out in his survey can be attacked, is 
 that of fraud. Before me it was contended that Troup was guilty of 
 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 from his evidence 
 
I.] 
 
 In ke the AMDRIOAN BOY MINERAL CLAIM. 
 
 309 
 
 that at the present time it is very doubtful where the original bound- igog. 
 aries of the Treasure Vault and Ajax were located. Mr. Matthews" March 29. 
 evidence also disclosed that for a long time before Troup's applica- ma tin, j. 
 tion for a certificate of improvements there had been a dispute be- 
 tween the owners of the American Boy property on the one hand and 
 the owners of the Ajax and Treasure Vault on the other as to the 
 boundaries of their respective claims. The American Boy people 
 contended that their claim in no way conflicted with the original 
 location of the Treasure Vault and Ajax, and there is nothing to 3hc\^' 
 that their contention is not right. On that point, there is absolutely 
 no evidence before me, and the fact that the American Boy owners 
 applied for a certificate of improvements for what they claim to be 
 their property, does not, in my opinion, in itself constitute fraud. 
 The owners of the Treasure Vault and Ajax knew about the dispute; 
 they knew about the application for the certificate of improvements, 
 and they took no proceedings to adverse the claim. It may be that 
 through their failure to properly file their adverse claim and duly pro- 
 ceed with the same, they may be deprived of land that they were 
 really entitled to, but it seems to me that they have only themselves 
 to blame if such is the case. 
 
 My conclusion, therefore, on the whole case, is that the Crown 
 grant issued to Troup was issued in error; that it should be now 
 cancelled and a new one issued to him for all the land set out in the 
 survey and field notes of the American Boy claim filed by him on 
 his application for a certificate of improvements. 
 
 Braden appealed pursuant to sec. 95 of the Land Act, and the 
 appeal was argued before Maetin^ J., on 17th March, 1899. 
 
 Bodwell, Q.C., and A. E. McPhillips, for the petitioner Braden. 
 
 Davis, Q.C., for the respondents, the owners of the American 
 Boy claim. 
 
 March 29th, 1899. 
 
 Maetin^ J. : — After full consideration of the cases which I have 
 been referred to by cou.nsel for the petitioner, beginning with Silver 
 V. Ladd (1868), 7 Wall. 219, and ending with Sanford v. Sanford 
 (1891), 139 U. S. 642, at p. 646, I have come to the conclusion that I 
 am unable to apply the principles laid down in those authorities to 
 this case, for the reason that while they sustain the contention that 
 in certain cases a Crown grant may be subject to attack, yet they are 
 no guide as to what course should be pursued where there is a statu- 
 tory provision of the nature of sec. 37 of the Mineral Act (1891) 
 Amendment Act, 1892, relied on by the respondent here. Mr. Bod- 
 well's suggestion that, because the petitioner's adverse proceedings 
 
 Appeal. 
 
 Judgment. 
 
310 MARTIN'S MINING CASES. [vol. 
 
 Maroh%9 {^^^^-'bourne v. McOuigan (1897), 5 B. C. 333, ante, p. 142), have 
 
 ■ been terminated by a regretta;bie error, which prevented the merits 
 
 BCabtin, j. bfeiHg gone into, they should not now be regarded as a final termina- 
 tion 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, sec. 37 may be regarded as a provision of the 
 same nature as the Statute of Limitation, providing that in case any- 
 one 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 ad- 
 verse proceedings, but abandoned them, does not, under the cireimi- 
 stances 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 costs. 
 
 Note. — As to passing of precious metals under Crown grant, cf. In re St. 
 Eugene Mining Co., post, p. 406. 
 
 As to certificate of improvements and attack upon, see notes to Nelson and 
 Fort SJieppard Ry. Co. v. Jerry, ante, p. 161. 
 
 As to the policy of Mineral Acts, cf. pp. 71, 88, 139, 146, 187, 194, 236, 
 .S3.3, 336, 414, 446. 
 
I.] 
 
 IIANjEI y. DUNLfOP. 
 
 311 
 
 Haney v. Dunlop. 
 (6B. C. 451; 520). 
 
 Adverse Action, Dismissal of — Writ of Summons — Renewal and Service of — 
 
 Mineral Act, sec. 37. 
 
 In an adverse action where no reasonable explanation of delay in serving a 
 writ is forthcoming, an application for renewal made two days before the 
 expiry of the writ will be refused. 
 
 Section 37 of the Mineral Act does not enable a defendant to get rid of an 
 adverse action other than according to the ordinary practice of the Court. 
 
 Decision of Walkbm, J,, affirmed. 
 
 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, ajad at that time the defendant had made application foi* his 
 certificate of improvements and Crown grant to the Pack Train 
 mineral claim,, and his application was under consideration by the 
 tjovernment. The motion was argued on 29th March, 1899. 
 
 Duff, for the defendant. 
 
 A. E. McPhillips, contra. 
 
 Cur. adv. vult. 
 
 1899. 
 
 May 2. 
 FOLL COITKT. 
 
 Statement. 
 
 Argument. 
 
 April 5th, 1899. 
 
 Walkem^ J. : — This is an adverse action under the Mineral Act. 
 The plaintiff took out his writ on the 5th of August, 1897. On the 
 2nd of August, 1898, he applied successfully to have it renewed, and 
 the renewal was issued as of that date. The application for rei^ewal 
 was, as usual, made ex parte upon affidavit. Th5 defendant now 
 moves on notice that the order for renewal, and all subsequent proceed^ 
 ings taken by the plaintiff be set aside on the following, among other 
 grounds, nainely : 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 i;enfiTVed ; and that he was guilty of laches 
 in not serving it, and in npt taking steps to prosecute the action as 
 xeqiiired by see. 37 of the Mlheral Act. 
 
 I allowed the renewal, as a renewal is seldom refused — any oppo- 
 sition to it Ijeing a matter for consideration by thp defendant when 
 served with the writ. There is no evidence which sa.tisfactorily ex- 
 plains the non-service of the original writ. The pnly explanaticfn 
 offered is that which appears in the affidavit of the plaintiff's solicitor, 
 Mr. Elliott, and that explanation is that he thought that as Dunlop 
 
 Judgment 
 
 below, 
 Walkem, J. 
 
312 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 1899. 
 May 2. 
 
 Full Court. 
 
 Judgment 
 
 below, 
 Walkem, J. 
 
 had not complied with the terms of a certain order made in June, 
 1896, in an action in which he, Dunlopj was plaintiff, and Haney and 
 Enslow were defendants, the questibn in the present action was dis- 
 posed of by that order, as the order dealt with the same mineral 
 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 writ — 
 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 accouiit for the delay that occurred. If this 
 action had 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 I to do other- 
 wise, I should be overriding the above provision of the Legislature, 
 which is evidently one of public policy, as its aim is to secure, as far 
 as possible, a speedy adjustment of mining disputes, and thus pro- 
 mote the development of the mineral interests of the country. It 
 assuredly would be a most mischievous thing to hold that a plaintiff 
 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 knowp the existing Eules 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 rules 
 for th^ service of writs in ordinary actions. The motion must be 
 allowed with costs. 
 
 Motion allowed ivith costs. 
 
I.] 
 
 HANBY V. DUNLOP. 
 
 313 
 
 The plaintiff appealed, and the appeal was argued on 1st Maj', ^809^ 
 1899, before McColl, C.J., Drake, Irving and Martin, JJ. _!L ' 
 
 VVLL COUKT. 
 
 A. E. McPhilUps, for appellant, cited Howland v. Dominion Bank jj^c" q j 
 (1892), 15 P. E. 56, at pp. 59, 61 and 63, and 22 S. C. E. 130; 
 St. Louis V. O'Callaghan et al. (1889), 13 P. E. 332, 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 diflSeult 
 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 
 action. 
 
 Du-ff, ifor respondent, cited Hewett v. Barr (1891), 1 Q. B. pp. 98 
 and 100; and Barrett v. Day (1890), 43 Ch. D. 449; i?e Oedye (1852), 
 15 Beav. 254. 
 
 Cur. adv. vulL 
 
 May 2nd, 1899. 
 The judgment of the Court was delivered by 
 
 McCoLL, C.J. : — The writ of summons was issued on the 5th of Judgment. 
 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 con- 
 tained 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 judg- 
 ment 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. 
 
 Note. — As to expiry of writ in adverse action and refusal to renew, see 
 Troup V. Eilbourne, ante, p. 219. 
 
314 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1899. 
 May 22. 
 
 3?ULL Court. 
 
 Statement. 
 
 Stamee V. Hall Mines Co. 
 (6 B. C. 579). 
 
 ^ 
 
 Mine — Wop — Winze — Level — Defect — Inspection of Metalliferous Mines Act, 
 It. 8. B. G. 1897, ch. ISJf, sec. 23, Rule 18 — Negligence — Master and Servant 
 — Employers' Liability Act, 189T, cap. 69 — Oonjecture. 
 
 Rule 18, of sec. 25, ch. 134, R. S. B. C. 1897, does not require that a winze 
 extending through several levels of a metalliferous mine shall be protected at 
 each level ; the rule is sufficiently complied with if the winze is protectefl 
 at the top level only. 
 
 Held, on the facts, that negligence had not been shewn. 
 
 Action under the Employers' Liability Act for damages for in- 
 juries sustained by the plaintiff in falling down a winze in defen- 
 dant's mine, in which he was engaged as a miner. The trial took 
 place at Kelson, before Ieving^ 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. 
 
 (6) Did the defect referred to in your answer to (a) 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 per- 
 son in their service, entrusted by them with the duty of seeing that the con- 
 dition or arrangement of the ways were proper? Tes. 
 
 (c) If the injury was caused by any defect (as referred to in answer to 
 (a) — or negligence (as referred to in (6) — 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 plain- 
 tiff) 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 arid 
 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 tlje 
 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 
 grade as plaintiff during those years in the like employment within this Prov- 
 ince? $2,700. 
 
 The following are extracts from the Judge's charge to the jury: 
 " 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." 
 
I.] STAMER V. HALL MINES CO. S15 
 
 And farther : " The plaintiff himself cannot tell you if he went on 1899. 
 the foot wall side or liot. He says that if he went on the foot wall ^I__ ' 
 side he went on a place where he had no business to go." ^"^i- Court. 
 
 On the verdict Judgment was given for the plaintiff. 
 
 The defendant appealed to the Full Court and the appeal came on Appeal, 
 for argument at Victoria, on 3rd May, 1899, before McColl, C.J., 
 DiiAKB and Maetin^ JJ. 
 
 McPhillips, Q.C., for appellant : Assuming that the winze should Argument, 
 have been guarded, it has not been shewn that the accident arose 
 from an omission 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 Trunlc Railway Company (1890), 19 Ont. 191; 
 Montreal Rolling Mills Company v. Corcoran (1896), 36 S. C. E. 595; 
 Farmer v. Grand Trunk Railway Company (1891), 31 Ont. 399. 
 There. should be a non-suit, because on the plaintiff's own evidence 
 he shewed that he should have been particularly careful and he ad- 
 mitted that he was not particularly careful. Pollock on Torts, 5th 
 ed., at p. 439. 
 
 On the findings and admissions there should be a Judgment for 
 the defindant, because the Jury found that the plaintiff appreciated 
 the risk knowing of defendant's negligence — ^that he admitted that 
 lie should not be on the foot wall side — -that the Jury found that he 
 fell in from the foot wall side and that therefore the negligence of 
 the defendant as found by the Jury was not the approximate cause of 
 the accident because the plaintiff was bound to avoid the danger, and 
 lie could have done so had he been reasonably careful, "while he admits 
 that he was not careful. See Ileadford v. The McClary Manufactur- 
 ing Company (1893), 33 Ont. 335; (1894), 31 A. R. 164; and 
 (1895), 34 S. C. E. 2^1; Smith v. Baker & Sons (1891), A. C. 335. 
 
 Dvff (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. 35 (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 
 not 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 
 
316 
 
 MAKTIN'S MIXING OASES. 
 
 [vol. 
 
 1899. negligence. See Dublin, Wichlow, and Wexford Railway Company 
 
 May22. ^^^ flattery (1878), 3 App. Cas. 1155 at p. 1^01. As the defendant 
 
 FullCourt. company was .guilty of a breach of a statutory duty the doctrine of 
 
 Dkakb, J. volenti non fit injuria has no application. Baddeley v. Barl Granville 
 
 (1887), 19 Q. B. D. 423. 
 
 [Maktin, J., referred to McGloherty v. Gale Manufacturing Com- 
 pany (1892), 19 A. E. 117, and Groves v. Lord Wimlorne (1898), 2 
 Q. B. D. 402.] 
 
 See also E. S. B. C. 1897 eh. 69, sec. 6; Yarmouth v. France 
 ' (1887), 19 Q. B. D. 64:7 ; Greenhalgh v. Cwmaman Coal Company 
 (1891), 8 T. L. E. 31; Smith v. Baker & Sons (1891), A. C. 325; 
 Sanders v. Barher (1890), 6 T. L. E. 324; Osborne v. London and 
 North West&m Railway Company (1888), 21 Q. B. D. 220. He dis- 
 tinguished Headford v. McGlary Manufacturing Company, supra, 
 as there the plaintiff had he been looking could easily have seen the 
 hole into which he fell. 
 
 McPMlKps, 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. 
 
 Judgment. Deake^ J.: — This action was brought under the Employers' Lia- 
 
 bility 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 pass- 
 age way on the hanging wall side was the only passage way intended 
 for 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 pillars 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 abcident happened. The distance from the foot wall 
 to the pillars is about four feet, and it is in this space of four feet that 
 the winzes are constructed, thus dividing the slope and leaving the 
 space between these pillars and the hanging wall for a passage way 
 intended for use of the miners as agreed to by the counsel and referred 
 
I.] STAMER y. HALL MINES CO. 317 
 
 to in the learned Judge's charge. This passage was covered with a 18&9- 
 flooring of lagging. !£_ ' 
 
 The plaintiff was sent by the foreman to give a message to some FullCourt. 
 men working on the second floor some distance to the east of the Deakb, J. 
 winze. He gave the message and then proceeded towards the west 
 on other business. Whether in going west he took what the parties 
 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 plaintiff's 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 
 injury 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 negligence 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 hap- 
 pened from the plaintiff falling in on the east side then he was where 
 l:e had no business to be. It is shewn that the plaintiff wa^ no stran- 
 ger 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 con- 
 tribute 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 find- 
 ings the plaintiff is entitled to recover. The jury have not found 
 how 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 con- 
 jecture 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 which can assist 
 
318 MARTIN'S MINING CASES. [VOL. 
 
 1899.^ .him. To send the case back for a new trial will not enable this point 
 _Z_r"' to be cleared up. See also Badgerow v. Grand Trunk Railway Com- 
 rui,L COPBT. pany (1890), 19 Ont. 191. 
 
 Martin, J. 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), 33 Ont. 355; 
 (1895), 2-1 S. C. E. 291; when the plaintiff, familiar with the ordinary 
 passage, instead of following it walked into a hoist hole and was in- 
 jured, 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 eh. 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 pro- 
 tected 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. So.) 
 341. Here the plaintiff's right of action, if he has one, is independent 
 of the Metalliferous 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 tiie evidence is insuflBcient for us 
 to arrive at the conclusion that the plaintiff was of necessity com- 
 pelled 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 under 
 rule 18 of see. 25 of the Inspection of Metalliferous Mines Act, E. S. 
 B. C. 1897 ch. 134, which provides: "Each winze or mill-hole ex- 
 tending from one level or drift to another level or drift shall be pro- 
 tected 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 case 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 Btddeley v. Earl Qfarwille (1887), 19 Q. B. D. 433, that a breach 
 of a statutory duty gives a cause of* action to anyone injured by rea- 
 ■ SOB thereof ; I find, I might say, that that ease was followed in Oh- 
 
I.] STAMER V. HALL MINES CO. 3I9. 
 
 tario in McGloherty v. The- Gale Manufacturing Company (1893), 19 1S99. 
 A.^E. 117; see also Groves v. Lord Wimhorne (1898), 2 Q. B. 402; ^i^^- 
 Mayne on Damages, 5th ed., 73, note (r). FullCoort. 
 
 In the opening sentence of his charge to the jury (p. 165) the moColl, O.J. 
 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 
 plaintifE 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 
 (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 
 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 ab- 
 sence, 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 
 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 mean- 
 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 cprrect it, if it were incorrect. It is 
 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 wordfr 
 their plain meaning. We cannot go behind them. The appeal should 
 be allowed with costs. 
 
 McCoLLj C.J., concurred in allowing the appeal. 
 
 Appeal allowed. 
 
 Note. — For other cases under this act : see McDonald v. Can. Pac. Explora- 
 tion Co., post, p. 379 ; McEelvey v. Le Roi Mining Co., post, p. 477. And cf. 
 Grant v. Acadia Coal Co. (1902), 32 S. C. 427. 
 
 Negligence cases not based upon statutes relating to mines do not come 
 within the scope of this volume, but reference may be had to the following cases 
 airising out of accidents in mines: Davies v. Le Roi Mining dc, Co. (1899), 
 7 B. 0. 6; Pender v. War Eagle (1899), 7 B. C. 162; Warmington v. Palmer 
 (1902), 32 S. C. 126; 8 B. C. 344; Anderson v. Mikado Mining Co. (1902),. 
 3 O. L. R. 581; Aslestos and Aslesiic Co. v. Durand (1900), 30 S. C. 285. 
 
320 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1899. 
 June 5. 
 
 SUPKEME 
 CoCET OF 
 
 Canada. * 
 
 Statement. 
 
 Argument. 
 
 MoNeehanie V. Aechibald. 
 (29 S^ 0. 564; 6 B. 0. 260). 
 
 Mineral Claim — Sale — Proceeds of — Free Miner's Certificate — Lapse of — Part- 
 ner's Might in such Case — Trust — Statute of Frauds — Parol Agreement — 
 Mineral Act, 1896, sees. 9, S4, 50, 80-92. • 
 
 \\'liere 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 afiirmed (Gwtnnb and Sedgwick, J J., dissenting). 
 
 Appeal by defendant from a decision of the Full 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 pro- 
 ceeds of the sale thereof by his partner. 
 
 The defendant denied any partnership agreement, and set up as a 
 defence that the plaintiff ha,d 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 Ieving^ J., and a com- 
 mon 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 Ikving^ J., on the questions of law. 
 
 Macdonell and E. J. Deacon, for plaintiff. 
 
 . Davis, Q.C., and Harris, for defendant. 
 
 Cur. adv. vult. 
 
 Judgment 
 
 below, 
 Ibving, J. 
 
 April 26th, 1898. 
 
 Ieving^ J. : — In the summer of 1895J the defendant struck up an 
 acquaintanceship which resulted in the plaintiff inviting the defend- 
 ant and one Murchie to go up to Phillips Arm, where they lived 
 together for some months, and there they prospected for some min- 
 eral claims. After the plaintiff had shewn the defendant some ledges, 
 
 * Present : — Sir Henry Stkong, C. J., and Tasciiekeau, GwynNb, Sedge- 
 wick and GiROUAED, JJ. 
 
I.] 5tcNEliH4.XIE V. 4iRPj£ppA,LD. 321 
 
 it )vas agreed th^-t tlje thyee ahquld .^tajse out sopie mineral claims 1899. 
 for themselves, and the jplaii^tiff proposed that they should be inter- """ ^' 
 ested in everything that they stated, to -which tf^e defendajit ' and Scpbemk 
 Murchie agreed. The three tjhfsn stai:p4 a iiii?Rl;p,r oi claims, some for gi, canaua. 
 themselves in their several names. These they ^pld, and no dispute, 
 has arisen concerning those so staked; but in addition to those cleiims 
 they located 9, nuniber of claims for other persons — outsiders— m 
 particular the defendant Archibald (June 21st, 18,96) staked a claim, 
 known as the Dorothy Morton; he says it was staked on the under- 
 standing that he was to have a one-half non-assessable iiiterest 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 plainti|I, 
 McJTerhanie, claims that he, under the original agreement, ■vf,a;s eii- 
 titled to a one-third in the half coming to Archibald, and it was in 
 consequence of this dispute that this action was commenced on Octo- 
 ber 8th, 1897. It was tried before me at Vancouver, before a com- 
 mon jury, who found that the conversati,on relied upon by MclSTpf- 
 hanie as estp,blishing a partnership, actually took place, and that the 
 partnership agreement then arrived at applied to the Dorothy Mor- 
 ton. Oh April 10th, 1897, Chick, in whose name the Dorothy Mor- 
 ton was reporded, conveyed to Archibald a one-half interest in the 
 claim, and by a document, dated July 19th, 1897, Chick, Moody and Judgment 
 Arcbibald entered into an agreement with Messrs. Ryan & Lang for ikviiTg J 
 the sale to them of the Dorothy Mortop, for the sum of $20,000, pay- 
 able 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. MclSTerhanie, who was a free rainer at the time the origi- 
 nal agreement was formed, and at the time the Dorothy Morton was 
 staked, permitted his certificate to expire in July, 1897, and did nqt 
 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; (3) 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-six- 
 teenth part or share of the unpaid moneys in the hands of Messrs. 
 Ryan & Lang. The defendant in his defence, after denying that 
 t£ere was any partnership agreement, and further, that if there was, 
 the Dorothy Mortoji was not ptaked under it, set up as a defence that 
 the plaintiff had, on July 25th, 1897, permitted his certificate to 
 expire, and th^t under the Mineral Act, 1896 (the benefit of which 
 the defendant claimed), the plaintiff had lost |iis right, if any, in the 
 Dorothy Morton. After the jury had retired I gave th^ defend3,nt 
 leave to amend by pleading the Statute of Frauds, and the Mineral 
 
 M.M.O. 21 
 
322 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1899. 
 June 5. 
 
 Supreme 
 
 Court 
 
 OF Canada, 
 
 Judgment 
 
 below, 
 Irving, J. 
 
 Act (Williams v. Leonard (1898), 16 P. K. 544 and (1896), 17 P. K. 
 73,) on the terms that the defendant should, indemnify the plaintiff 
 against any additio^nal costs, which he had rendered necessary in con- 
 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 ease 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. 
 H^ 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 shall be recognized; that 
 means, I presume, recognized by everybody, including the Court, as 
 ha,ving any right or interest in, or to, any mineral claims, unless lie 
 shall have a free miner's certificate unexpired. That part of the sec- 
 tion 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 certi- 
 ficate is a limitation, or rather, a conditional limitation (see In re 
 Machu (1883), 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 abso- 
 lutely 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 statu- 
 tory declaration that, on July 26th, 1897, the plaintiff forfeited to 
 the Crown his right to the claim, and that thereupon the claim be- 
 came vested in the defendant, or, perhaps, in the purchaser Chick and 
 the di^feadant. 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 
 
I.] . . McNERHANIE v. AEC?HIBALD. 323 
 
 last hour of the day upo^ which the certificate expired the plaintifl ^18^99-^ 
 had executed a conveyance in favour of the defendant of all his in- — 
 terest in the mine, it could not he suggested that he would be entitled ^^^^^^ 
 to a portion of the proceeds arising from the sale of the claim. The of Canada. 
 plaintiff, hy letting his licence expire, put sec. 9 into operation, and 
 that section conveyed to the defendant all the plaintiff's interests. 
 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 Parliament, or enable the Court to give 
 in favonr 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 judg- 
 ment of non-suit. 
 
 Action dismissed with costs. 
 
 From this judgment the plaintiff appealed to the Full Court, and 
 the appeal was argued 8th November, 1898, before McColl^ C.J., and Full Court, 
 Walkem and Maetin^ JJ. 
 
 Appeal to 
 
 Martin, A.-G., for the appellant: The plaintiff's mining licence Argument, 
 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 iar 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, Blackstone 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. E. 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. Ed- 
 wards (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 all 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. 
 
824 
 
 MARTIN'S MINING CASES. 
 
 [vot. 
 
 1H99. 
 June 5. 
 
 SnPJlEMK 
 COIHIT 
 
 01' Canada. 
 
 As to the Statute of Frauds, the prospecting agreempnt entered 
 into between the parties, contains none of tlie elements of a partnej-- 
 ship agreement — at most it ^ 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. 
 Broivn (1897), 5 B. C. 380, ante p. 195; Wells v. Petty (1897), ibid. 
 353, ante p. 147; Pope. v. Cole (1898), 6 B. C. 305, ante p. 257. 
 
 It can only be a mining partnership under sees. 80-93 of the Act, 
 and unless there are other and written articles these sections apply. 
 
 See on the question of parol evidence: Forsier v. Hale (1800) ; 
 5 Ves. 309, 311; Dah v. Hamilton (1846), 5 Hare 381, 384; Caddick 
 V. SUdmore (1857), 3 DeG & J. 53. 
 
 As to what a partnership in lands means, see Kay^y. Johnston 
 (1866), 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. 
 
 ISTovember 10th, 1898. 
 
 The judgment of the Court was delivered by 
 
 .Tiidgrnent of MoCoLL, C.J. : — In July, 1895, the plaintiff, the defendant and 
 Full <;oukt. one Murehie agreed together tOjprospect, locate and deal with -mineral 
 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 
 Lament, but subsequently the parties decided to allow the location to 
 lapse, 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 defend- 
 ant, 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 $30,000 and the sale having been completed, 
 ihe plaintiff now seeks to recover his share of the purchase money in 
 respect 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 36th 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.j McXERHANIE v. ARCHIBALD. 326 
 
 At the trial the defendant was allowed to amend so as to raise the 1899. 
 further defences of the Statute of Frauds and sees. 50 and 51 of the !!^ 
 Mineral Act. "oooaT 
 
 i'or the plaihtifE it was cohtended that sec. 9 only applies to a of Canada. 
 legal estate held by a free miner in a claiin, or share of 9. 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 ap- 
 plies to all rights and interests, legal or equitable, of any kind. In 
 my opinion the section an question has no application to the pfefeent 
 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 pur- 
 chase money because he allowed his free miner's certificate to expire 
 before the money was paid. Then if not, for what reason would tae 
 plaintiff lose his right to enforce payment personally against the pur- judgment of 
 chaser in case of his failure to pay the purchase money ? Or why Foll Codkt. 
 must the plaintiff now forfeit his share of the purchase money, it 
 having been paid according to the terms bf 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 
 Jnoney, 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 the security, it does ndt, I think, follow that his share of the pur- 
 chase money is to be treated as also forfeited. 
 
 The money itself and the security fof its payment are two sepa- 
 rate things. All that the Enactment professes to do is to vest the 
 interest in the mineral claim in the co-owners. 
 
 What the plaintiff is seeking in the present action is merely the 
 paytiient of his shatfe of the purchase money received by the defendant, 
 ift respect of the intteriest held by him in frust for the plaintiff, and 
 saM by the defehdant for the plaintiff, while his free miner's d&t- 
 tificate was in force, and to this claitn seb. 9, giving the words their 
 ordinary meaning, affftrds, I think, no defence. 
 
 This view seems to me to be strengthened by considering what 
 the result W-ould have been if the entire claim had been vested in the 
 
326 MARTIN'S MINING CASES. [vol. 
 
 1899. plaintiff. Would it in such a case have been contended that the effect 
 
 June^s. ^^ ^^^ ^^^ ^^^ ^^ forfeit the claim to the Crown r Would not the 
 
 ■ SupREMB purchaser have been entitled to it under his purchase if himself the 
 
 OF Canada., holder of a free miner's certificate? Then could it be well contended 
 
 that the purchase money, if unpaid, would have become forfeited to 
 
 the Crown? 
 
 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 Stuart 
 V. Mot't (1894), 23 S. c! E. 384. 
 
 I think that the appeal should be allowed with costs. 
 
 Appeal allowed with costs. 
 
 Appeal to s.c. 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? 
 
 Argument." Christopher Robinson, Q.C., for the appellant. As to the want of 
 a certificate under the Mineral Act being a bar to this action, see 
 McOormick 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 N. S. Eep. 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; Lindley 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 with. 
 
 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 ; In re Duke 
 of Marlborough; Davis v. Whitehead (1894), 2 Ch. 133; Hewrd v. 
 PiUey, (1869) ; 4 Ch. App. ,548; Haigh v. Kaye (1872), 7 Ch. App. 
 469; Chester v. Dickerson (1873), 54; N. Y. 1. 
 
 Cur. adv. vult. 
 
I.] McNERHANIE v. ARCHIBALD. 327 
 
 June 5th, 1899. 1899. 
 Strong, C.J. : — In July, 1895, the appellant, the respondent and — ' 
 one Murchie, formed a partnership to deal in mining claims. That ^cou™'' 
 this partnership] existed was found by the jury, and it is recognized of Canada. 
 as having been so found by the learned Judge Mr. Justice Irving, smoi^cj. 
 before whom the action was tried, as appears from his judgment pro- 
 nounced on entering the verdict. " gment. 
 
 After having acquired and sold several claims, in June, 1896, 
 the partnership acquired a claim which was known as the Blanch 
 Lament. 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 consider- 
 ation 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 
 it* 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 ainount. 
 
 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 36th of July, but he allowed this certificate 
 to lapse on the 26th of July, 1897, not renewing it till the 8th August, 
 1897. The purchase money was not paid to the appellant 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 
 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 
 setting up the Statute of Frauds, and the fact of the lapse of the 
 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. 
 No question of. fact is in dispute; the jury found there was a part- 
 tnei-ehip agreement, and the appellant in his factum concedes this and 
 
3'28 MAT^TIl^'S MINING CiLS'ES. [vol. 
 
 1899. admits that tfife otily questions are tlie two questions of law as to 
 
 "^ ■ wlifetliet' the respondent is to be debarfed ffpin reedveriiig his share 
 
 SiJsuEME ol tie money by feafebh o'f th6 statutory defences set uj) by the amend- 
 
 o* Canada, ih^lit. The pd^safe in the factum referred to is the following: at 
 
 SiHo^G^C. J. P*^^ ^^ *^^ appellant says : 
 
 The feriding of (be jury settles all questions of fact leaving only two defences 
 open to the defendant, both of which are questiotis of law. 
 
 As regards tlie Mineral Act it ceased to have aiiy application when 
 the claim had been sold and nothing feih'ainwi but the nioiLey arising 
 from the sale made whilst the respondent had liis certificate; from 
 that time he had iio interest in the claim which had been alienated 
 and converted into a mere money demand by the sale, and the money 
 when it came into tlie hands of the appellant was therefore impressed 
 "wjith a trus't for the respondent to the amount of. one-third. To say 
 that the respondent has forfeited his right to this money represfentiiig 
 a mining claim in which he had ceased to have any ihlterest, and hot 
 even arisihg directly oilt of the sale, but being money had and re- 
 ceived to the use of the respondeht by the appellant, would be not 
 ohly enlargilig the words of the statute, but wcfuld be placing upon 
 it an arbitrary and uiireasonable construction, not warranted either 
 by its language or hj a consideration of the object which it ha^ 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 preseht parties 'vvhere iib inining right is in question. If 
 the resf/ondent had died affer the sale and before the pfiyifaent of the 
 nicttiey it might jiist as well be said ttiat his executors coUld not have 
 rec(iver^d because they had not miiing Certificates. Could it be said 
 that whet's a pkiinership di this kind had been dissolved for years, 
 and the jyarties had abandoned the pilrsuit of mining altogether and 
 hm left the mining country, that oie of the partners on discovering 
 that the other partner owed him mcmey npo'ii thfe fdoti'rig of thfe part- 
 nership aeeouiit&', could be precluded frdm recovering that money be- 
 cause he hdd not kept Tip his free miner's licence? SUch an appli- 
 cation of the statute woilld be absurd, but yet it would follow that the 
 cfertlfickt^ was in Such a case necessary to entitle the patty to sue, 
 if we should give effect to the objection in the present case. 
 
 As to the Statute, of Frauds,, that caii hate no application. It 
 
 never applies to e;xc|.ude parol evidiehce of a partnership for dealing in 
 
 land. This was d]etermlned as far back as the case of Forster v. Hdle, 
 
 * (180Q), 5 Ves. 308, for we find Loi:d Loiighborough in that case, 
 
 saying: 
 
 That was not the qjiestion ; it was whether there was a partnership. The 
 subject being an agreement for land, the question then is whether thete was 
 a rfesultiiig trust for fliat partnershij) by dijerdtioh of law. The quftstidn of 
 
I.] McNERHANIB v. ARCHIBALD. 329' 
 
 partnership must b^ tried as a fact, a,nd as if there was an issue upon it. iggg. 
 
 If by. facts and circumstances it is established as a fact that these persons were June 5. 
 
 partliers in the colliery in which land was necessary to carry on the trade, the 
 
 lease goes as an incident. The parthersliii) being establishfed by evidence upon p^^.g™"*^ 
 
 which a partnership may be found, the premises necessary for the purposes of ^^ Canada. 
 
 that partnership are, by operation of the law, held for the purposes of that 
 
 partnership. ' Stkokg, C.J> 
 
 In Dale v. Hamilton (1846), 5 Hare 369; in app. 2 Ph. 366, 
 Viee-Chancellor Wigrdiiii expressly decided that a partaership formed 
 for the sole purpose of dealing in land like that in question here might 
 be proved by parol^ and although Lord Cottenham on appeal de- 
 cided oh another ground, holding that there was written evidence, he 
 expressed no disapproval of this doctrine applied by the Vice-Chan- 
 cellor. In Gaddick Y.Scidmore (1857), 2 DeQ. & 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 be- 
 fore quoted to have established the law, for he says : 
 
 The first point raised upon that was whether it was necessary for such a 
 contract that there should be an acknowledgment in writing signed by the 
 party to be charged within the meaning of the Statute of Frauds? The author- 
 ities; 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. Bale (1800), 5 Ves. 308, 
 and in Dale v. Hamilton (1846) 5 Hare 369, Wigram, V.C., went a step fur- 
 ther, and said that the same rule would hold good where the partnership 
 wi's 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 con- 
 sidered 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 represen- 
 tative for whom a court of equity treats the heirs as a trustee. Darby 
 V. Darly (1856), 3 Drew 495; Wylie v. Wylie (1853), 4 Gr. 278. 
 
 I iind 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 partnership may be constituted by a mere parol agreement notwithstand- 
 ing that the partnership is to deal with land. 
 
330 MARTIN'S MINING CASES. [vol. 
 
 / 
 Jumfb ■*■ ^S^'ee entirely in the judgment of the learned Chief Justice, of 
 
 — British Columbia, and for the reasons before stated I am of opinion 
 ^CouBT^ that the appeal should be dismissed with posts. ' 
 OF Canada. 
 ■Taso^au,.! Taschekeau, J., concurred. 
 
 WYNNE, , GwYNNE, J. : — The only claim relied upon by the plaintiff in this 
 ■Skdgkwick, J. action is an agreement in the 5th paragraph of the statement of claim 
 •GiRouABD, J. alleged to hav6 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 ease remitted to a new trial. 
 
 Sedgewick^ J. : — I am of opinion that this appeal should be 
 allowed, and the original judgment restored. 
 
 GiEOUARD, J. : — I concur in the judgment of the Chief Justice. 
 
 Appeal dismissed with costs. 
 
 Note. — See McNaugM v. TanNorman, post, p. 516. And cf. Pope v. Cole, 
 ante, p. 257; and Sunshine, Ltd. v. Cunningham, ante, p. 286, and cases there 
 noted. 
 
1.] 
 
 DART V. St. KEVERXB MININ(i CO , LIMITED. 
 
 331 
 
 18il9. 
 June 7. 
 
 Dbake, J. 
 
 DaKT v. St. KEVIili.NE Ml.M.N'G Cl>., LlMlTKlJ. 
 
 (7 B. C. 5G). 
 
 Mineral Claim — Location — Intervening Location — "Unconnected Plots of 
 Ground "—Mineral Acts of 1891 and 1893. 
 
 Two plots of ground separated by an intervening valid location, cannot, although 
 within the statutory limit of 1,500 feet, be embraced in one location. 
 
 Action tried by way of special case before Drake, J., at Nelson, Statement, 
 •on 7th June, 1899. 
 
 Wilson, Q.C., for plaintiff. 
 John Elliot, for defendant. 
 
 Argument. 
 
 Drake, J. : — Tliis action is brought by way of special case to de- Judgment, 
 cide 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 limit 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 
 and a strip lying south-west of the Exeter claim but divided further 
 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 
 Act of 1891, as amended by ch. 39 of 1893, is where possible not to 
 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 pre- 
 viously 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. 
 
832 MARTIN'S MINING CASES. [vol. 
 
 ji899. The legal posts which' were required by the Act are two in num- 
 
 — ■ ber and the notice upon the initial post is to contain the number of 
 Drake, J. fggt lying to the right and left of the line. 
 
 The location notice, Form A, in schedule to Act of 1893, ch. 20, 
 sec. 14, defines the claim as so many feet in length by so many feet 
 . in breadth and is to shew how many feet lie to the right and left of 
 location line. This location notice shews that the party claiming un- 
 der it claims a clear tract of land on each side of the location line. 
 If any land on either side of the location line and within the area in- 
 dicated by the location notice is lawfully occupied mining ground the 
 locator has no right to enter on it and therefore no right to extend 
 his line across such grou,nd. The locator of the 0. B. H. claimed 
 1,500 feet to the left of the line but thfere 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 
 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 plain- 
 till will have judgment without costs. 
 
 Judgment for plairitiff. 
 
 Note. — See, for defects in location, list of cases in note to Manley v. Col- 
 tom, post, p. 487. 
 
I.] 
 
 ALEXANDER i-. HEATH, Ei At. 
 
 333 
 
 Alexander v. Heath et al. 
 (8 B. C. 05h 
 
 1890. 
 June 10. 
 
 Dbakk, J. 
 
 Transfer of Mineral Claim — Writing — Use hy B'ree Miner of Another's Same 
 in locating — I'uhlic Policy — Same Vein or Lode — Oo-otcncr — Partner — Min- 
 eral Acts, IHSG, sees. 29 and J-';; 1^01, sec. IJ,. 
 
 A transfer of acy interest in a mineral claim is not enforceable unless in 
 writing. 
 
 When one free miner locates a mineral claim and locates another claim on 
 the same vein in the name of another free miner, such a proceeding is con- 
 trary to public policy, and a violation of the Mineral. Act and Amendments, 
 and the free miner acquires no interest in the second location. 
 
 The owner of an interest in a mineral claim is not in the position of a part- 
 ner but of a co-owner. 
 
 Action tried at Kelson, before Deake^ J., on June 9tli, 1899. The Statement, 
 facts appear fully in the judgment. 
 
 McAnn, Q.C., and R. M. Macdonaldj for plaintiff. Argument. 
 
 Bodwell, Q.C., for defendants Heath and Heap. 
 
 If. A. Macdonald, Q.C., and Johnson, for the defendant company. 
 
 Gur. adv. vult. 
 
 June 10th, 1899. 
 
 Deake, J. : — The plaintiff's ease is that on the 5th day of June, 
 1897, he located and recorded the Tecumsie claim on Woodbury Creek. 
 He wished to take up the adjoining claim, and requested the defendant 
 Heap to allow his name to be used as the two claims were on the same 
 lode. This Heap agreed to, and at the same time furnished the plain- 
 tiff with some supplies and agreed to pay the record fees; and the 
 plaintiff agreed that a quarter of this claim shov^ld belong to Heap for 
 the use of his name and for the other considerations. This claim was 
 named the Pontiac. Heap requested the other defendant, Heath, to 
 go up and examine the claim. This he did, and in consequence of bis 
 report Heap completed the record. The plaintiff offered his interest 
 in the two claims 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 nego- 
 tiations as to the price for the optiop dragged on for several days, the 
 plaintiff wanting a larger sum than Heap was inclined to projaise. 
 At last Heap suggested that the plaintiff should go up and see the 
 claims and make up his rnind definitely as to the value. The plain- 
 tiff accordingly went up and examined the property, but alleges that 
 the defendant did not inform him that there was another lead dis- 
 ■covered on the Pontiac by Heath. This discovery of ore was in fact 
 
 Judgment. 
 
334 MARTIN'S MINING CASES. • [tol. 
 
 1899. only 300 feet away from the place where the mineral was found by the 
 " —— ' plaintiff which induced him to stake the claim. The plaintiff appar- 
 Dbakb, J. 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 on 
 the Pontiae and his reason was the country was rough and covered 
 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 examinar 
 tion 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 30th 
 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 statemenc 
 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. Tha matter is thus left a question of 
 veracity between the plaintiff and Heap. 
 
 The defendant Heath, after obtaining the option, did two months'' 
 M'ork 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 foi: $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- 
 
I.] ALEXANDER v. HEATH et al. 335, 
 
 plaintiff sold and transferred to Heath the Tecumsie mineral claim, isno. 
 and by another bill of sale of the same date he transferred all his in- "^""^ ^"- 
 terest in the Pontiae which he claimed to be three-quarters. Drake, j. 
 
 The defendants, after Scowden had thrown up the above option, 
 did the necessary assessment work on the claims and on the S9th of 
 November, 1898, Heath transferred the said claims to the defendants. 
 The JSTelson-Slocan Prbspecting and Mining Company, in considera- 
 tion of paid up shares, but no cash passed, and these ghares are only 
 of a nominal value to-day. ' 
 
 The plaintiff claims in his action that the bill of sale to Heath 
 be cancelled; that the bill of sale to the company be cancelled, and in 
 the alternative $40,000 damages and an attaching order on their 
 stock in the defendant company, and an injunction against the com- 
 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 Pontiae had a 
 duty cast upon him to disclose any information that might affect the' 
 valvte 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 repre- 
 sent 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 or in writing gave to the defendants any in- 
 timation that he considered he had been deceived, but left the country 
 and travelled about on the strength of the money he had received and 
 when he returned stiU kept silent. He kept the purchase money know- 
 ing as much of the facts then as he does now. If he wished to dis- 
 affirm the transaction he must proceed within a reasonable time and 
 while the parties remain in or can be restored to their original posi- 
 tion: Clough V. The London and North-Western Raihgay Company: 
 (1871), L. E. 7 Ex. 26. The defendants further rely on sees. 24 and 
 50 of the Mineral Act, and sec. 14 of the Mineral Act Amendment 
 Act. By sec. 34 of the Mineral Act the interest of a miner in his claim 
 is equivalent to a lease for a year, and thus is an interest in land, and 
 by sec. 50 no transfer of any mineral claim or of any interest therein 
 shall be enforceable unless in. writing signed by the transferrer, and 
 by sec. 14 of ch. 28, 1897, "no free miner shall be entitled to any 
 interest in any mineral claim which has been located and recorded by 
 
•336 MARTIN'S MINING CAgES. [v^l. 
 
 J ^^''"'i ^^^ Cither fiee miner unless such interest is specified and set iorth in 
 — ■ some writing signed by the party so locating siij^h claim." By sec. 29 
 I)k.4kk,j.^ 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 raineral 
 claim on the same vein or lode except by purchase." Tlje object of tbya 
 Mineral Act is that all,4ealings with claims should be in writing ai^d 
 recorded, and that no one should in any way lock up a large tract pf 
 land by locating in his own name, or in the names of others, more 
 than one claim on each vein or lode discovered. In this case it is in 
 evidence that the plaintifE requested the loan of defendant Heap's 
 name in direct violation of this Act. The effect of this transaction in 
 my opinion, is that the plaintiff never had any interest in the Pontile 
 claim. The whole transaction was an evasion of the Act and contrary 
 to public policy, and therefore the plaintiff has no right of action ia 
 regard to the Pontiac claim. See Pearce v. Brooks (1866), L. p. 1 
 Ex. 213;- and Scott v. Brown Doerwg, McNah & Go. (1892), 2 Q. B. 
 724, at p. 728, where Lindley, J., says : " No Court ought to enforce 
 9,n illegal contract or allow itself to be made the instrument of en- 
 forcing 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 hiinself ifliT 
 plicated in the illegality." In addition to tMs 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 regis- 
 tered 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 plain- 
 tiff. 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 
 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 Manfey v. Collom, post, 
 p. 487. 
 
 As tp co-partners and co-owners : see McNerhcmie v. Archibald, ante, p. 320 ; 
 Mentley v. Boisford, post, n. 454; Marino v. Sproat, post, p. 481; McNaught 
 v. VanNorman, post, p. 516 ; Fry v. Botsford, post, p. 520. 
 
I.] 
 
 BRYDEN V. UNION OOLLIERy CO. OF B. C. et ai. 
 
 337 
 
 Bbyden v. Union Collibky Co. of B. C. et al. jjfy^aa 
 
 The Attokney-Geneeal for Bbitish 'Columbia^ Inteevenant. council.* 
 
 (1890 A. C. 580). 
 
 Coal Mine — Chinese — Aliens — lH aturalination — Constitutional Law — British 
 North America Act, 1867, sec. 91, sub-aeo. 25, and sec. .92, sui-sees. 10, IS — 
 Coal Mines Regulation Act, 1890, sec. 4- 
 
 Held, that sec. 4 of tbe " Coal Mines Regulation Act, 1890," which prohibits 
 Chinamen of full age from employment in underground coal workings, is in 
 that respect ultra vires of the Provincial Legislature. 
 
 Regarded merely as a coal working regulation, it would come within sec. 92, 
 sub-sec. 10, or see. 92, sub-sec. 13, of the British North America Act. But ip 
 exclusive application to Chinamen who are aliens or naturalised subjects estab- 
 lishes a statutory prohibition which is within the exclusive authority of the 
 Dominion Parliament conferred by sec. 91, sub-see. 25, in regard to "natural- 
 isation and aliens." 
 
 Decision of the Full Court of British Columbia reversed. 
 
 Appeal Jjy the defendants from a decree ,of the Full Court of Statement. 
 British Coluijlbia (July 13, 1898), dismissing an appeal from a deeriee 
 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 Eegulation Act, 
 1890, now sec. 4 of the i^evised Statutes No. 138 of 1^97, was inti^a 
 vires of the Provincial .Legislature. The Courts below upheld its 
 validity, and granted the injunction prayed for against the appellants. 
 
 The appeal was argued on the 7th and 11th of July, 1899. 
 
 Blake, Q.C., and Cassidy, for the appellants, contended that the Argument, 
 enactment in question was not within the competence of the Provincial 
 Legislature. It dealt with the.sub.ject of "aliens" within the mean- 
 ing of British JSTorth America Act, 1867,. gee. 91, sub-sec. 35. It,dis- 
 ,^hi.e|d Chinamen. for the exercise ,of the ordinary right, preseryed to all 
 ,^^hers,> to earn their bread by their labour for no other reason than tljat 
 pf their origin. By sec. iftl, siib-sec. 35, the I|qminion Parliament 
 has e;sel}isive legislative. aiiithority over aliens;. and by sec. 133 it has all 
 po^pprs. necessary for performing the treaty obligations of Canada to 
 
 *Pre^nt : — ^jord Watson, Lord Hobhotjse, |Lpr,d Macnaghten, Sir 
 Richard Couch, Sir Edward Fkt. ' 
 
 M.M.C. 22 
 
COCNOIL. 
 
 335 MARTIN'S MINING CASES. [vol. 
 
 1899. foreign countries. By Art. 1 of the treaty between Her Majesty and 
 July_28. ^j^g Emperor of China, dated AugtjSt 29, 1842, confirmed by the treaty 
 ^Pbivy^ of 1858, and Art. 5 of the convention between! the 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._ Eeference 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, E. 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 re- 
 ferred 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 ParHa- 
 ment. 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 com- 
 pletely 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. Eeference was 
 made to Musgrove v. Chun Teeong Toy (1891), A. C. 272. 
 
 Haldane, Q.C., and C. Russell, Q.C., for the intervenant, contend- 
 ed that the enactment in question was intra vires of the provincial 
 legislative authority. The case 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 thu 
 former, that would be within the exclusive competence of Dominion 
 legislation. But Chinamen are not necessarily aliens. The term 
 Chinese or Chinamen is one which is perfectly well understood in 
 Canadian legislation, and means persons of Chinese habits and origin. 
 It may include aliens 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 defini- 
 tions of Chinese : (1) the Act of 1898, ch. 28^ sec. 4. (Sir E. Fry. The 
 
I.] BRYDEN V. UNION CXDLLIERY CO. OP B. C. et al. 339 
 
 date of that is after the enactment in question.) (3) Crown Lands j^,^^"g 
 Act, 1888, ch. 66, sec. 2 ; see Revised Statutes, 1897 ; (3) Alien Labour "Z_ ' 
 Act, 1897, eh. 2, sec. 4. Assuming the case of alien Chinese, there is q^^^^^^ 
 still the other aspect of the question. The restricting of employment '' — 
 generally in the manner enacted is a matter included in the class of ^"^^ Watson 
 subjects, " property and civil rights in the Province," within the mean- 
 ing of sec. 92, sub-sec. 13, of the Imperial Act of 1867. In that aspect 
 it is within the exclusive competence of the Provincial Legislatur.j-j. 
 Eeference was made to AUorney-General of Ontario v. Attornvj- 
 Oeneral for the Dominion (1894), A. C. 189; Attorney-General for 
 Ontario v. Attorney-General for the Dominion (1896), A. C. 348. 
 
 Taylor J Q.C., for the other respondent. 
 
 Blahe, Q.C., replied. 
 
 Cur. adv. vult. 
 
 July 28th, 1899. 
 The judgment of their Lordships was delivered by 
 
 Lord Watson : — The appellant company carries on the business judgment 
 of mining coal, by means of uhdergroimd mines in lands belonging 
 to the company, situated near to the town of Union in British 
 Columbia. The company have hitherto employed, and still continue 
 to employ. Chinamen in the working of these underground mines. 
 
 By sec. 4 of the " Coal Mines Eegulation Act, 1890, it is expressly 
 ' enacted that; no boy under the age of twelve years, and no woman or 
 girl of any age, and no Chiinamen, shall be employed in or allowed to ' 
 be for fhe 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 t& 
 the .4th section of the then existing Coal Mines Eegulation Act, whicli 
 was ch. 84 of the Consolidated Statutes of 1888, and now, as amended, 
 is ch. 138 of the Eevised Statutes of British Columbia, 1897. It is 
 sufficiently plain, and it is not matter of dispute, that the provisions of 
 che Act of 1890 were made to apply, and, so far as competently enact- 
 ed, 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 com- 
 pany, of which he is a shareholder. It concludes (1) for a declaration 
 that the company had and has no right to employ Chinamen in certain 
 positions of trust and responsibility, or as labourers in their mines 
 below ground, and that such employment was and is unlawful, aiirt 
 
39(0 MAIRITN'S MINING CASES. [vol. 
 
 Jul*^28 ^^^ ^'^^ ^^ injunction restraining the company from employing Ohina- 
 
 — men in ainy such position of trust and responsibility, or as labourers 
 CoimeiL belo* ground, and f rom using the funds of the company in paying the 
 
 — wages of the said Chinamen. The respondent averred in his -state- 
 ORD Watson ^qj^^ qJ claim that the employment of Chinamen in positions of trust 
 
 and responsibility, and as labourers underground, was a source of dan- 
 get and injury to other persons working in "the mines, which involved 
 the liability of the odm;pany for damages, and was also inJ!urious and 
 destructive to the mines. He also pleaded that the employment of 
 Chinamen, in these csipacities, 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 under- 
 ground miners. They pleaded that, in so far as they related to adult 
 Chinamen, the enactments of sec. 4 of the Coal Mines Eegulation 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 
 he has since, in the character of intervenant, been a party to the liti- 
 gation. It appeared frota the evidence that the appellant company, in 
 working some of their underground seams of coal, employed no work- 
 men except Chinamen who were of full agis, and that, in those parts of , 
 their workitigs where miners other than Chinamen were employed, no 
 Chinaman occupied a position of trust or responsibility, fiuch_as were 
 alleged in the statement of claim. The consequence was, that in the 
 subsequent conduct of the litigation, the Courts below, and their Lord- 
 ships in this a'ppeal, have only been invited to consider the conclusions 
 of the action, in so far as these bear upon the legality of employing 
 (Chinese liabcsur, in violation df the express enactments of see. 4 of the 
 Eevised Statute Fo. 138 of 1897. In other words, the controversy has 
 been limited to the single question, whether the enactments of sec. 4, 
 in regard to which the 'appellsWt company has stated the plea of ultra 
 vires, were within the competency of the British Columbian Legisla- 
 ture. 
 
 In considering the issue to Which the case has thus been narrowed, 
 the evidence led 'by the parties appears to their Lordships to be df no 
 relevancy. It is chidfly directed 'to the character, wheiher 'reasonable. 
 Or itnreasonable, of the legislation which >has been impugned by the 
 appellant company. But the question raised directly concerns the 
 legislative authority of the Legislature of British 'Columbia, Which de- 
 pends upon the construction of sees. 91 and 93 of the British North 
 
1.1 BRYDEN ,'. UNION OOIiLIERY GO. OW B. C. ET AL. 341 
 
 Aflierwa. A.ct, 1867. These cl^-wseg distribute all subjecte ^f legislation i8ti». 
 between, the ParUaai^exit oi tjie Uflnjainioii and the several Legi^a-tures "_^ 
 of tlije Provinces. Iri afisigfting Ijegji^latiYte ppw«- to the ojie ox tte ^^'^'''^ 
 oilier of these Parlifvjneatg, it is apt ma^fi a stSfitiTaipry conditioiQ, tb^ . — 
 tli«. exercise o| suGh power sliall be, in the opinion of a Co^nsTt, of law, ^"^^ Watssok 
 dispreet. In so far as they possess legislative jnrisdiction, the discre- 
 tion committed to the Parliaments, whether of the Dominion or of 
 the Provinces, is unfettered. It is the proper fuinction of a. Court of 
 law to determine, what are the limits of the Jurisdiction eonwaitted 
 to them ; but, wh.eri that point has been settled, Conrts of law have no 
 right wha-tever tp enqnire whether their JurisdictJOT-has been exercised 
 wisely or not. ' There are various considerations discnssed in the jmdg- 
 nients of the Courts below, which, in the opinion of thfiir 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. 93 of the Act of 1867 had stood 
 alone, and had not been qualified by the^ provisions of the clause which 
 precedes it, the Provincial liegislature of British Columbia would have 
 had ample jurisdiction to enact sec. 4 of the Goal Mines Regulation 
 Act. The subgeet-matter of that enactment would clearly have been 
 jjududed in sec. 92 (10) which extends to provincial undertakings such 
 as the coal mines of the appellant company. It would ajsp hayie been 
 included in see. 93 (13), which embraces " Property and Civil Rights 
 in the Province." 
 
 B-ut sec. 91 (25) extends the exclusive legislative authority of the 
 Parliament of Caniada to " naturajization and aliens." Sec. 91 con- 
 cludes with a proviso to the eilaet that " aay matter coming within any 
 of the classes of subjects ;enjj««rgied in this section shall not be djgem- 
 ed to come within the ©lass of niatters 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 fuU 
 age from, eniployment in underground coal-workings. Every alien, 
 ■vvihcsn naturalized in Canada becomes, ipso facto, a Canadian silbject 
 of tlie Queen; and his children are not aliens, requiring to bc; natural- 
 ized, but are natural-born Canadians. It can hardly have been in- 
 tended to give the Dominion Parliament the exclusive right to legislia;te 
 for the latter class of persons resident in Canada; bnt sec. 91 (26) 
 might possibly be construed as conferring that power in the case of 
 nj3,turaliz;ed a»liens after naturaUziation. The subject of " natnraliza- 
 tion " seems prima facie tp include the power of enacting what shall 
 be the con^eq,uenceg of naturalization, or, in other words, what shall 
 hq the rights and. privileges pertaining to residents in Canada, after 
 they have been naturalized. It do,es, not appear to their Lordships to 
 be necessary, in the present case, to consider the precise meaning which 
 
342 MARTIN'S MINING CASES. [vol. 
 
 1899. the term "naturalization" was intended to bear, as it occurs in see. 
 
 "JL ■ 91 (25). But it seems clear, that the expression " aliens," occurring 
 
 Pbivy in that clause, refers to, and at least includes, all aliens who have 
 
 — ■ not yet been naturalized; and the words, " no Chinaman," as they are 
 
 Lord Watson -^gg^ ^^ gg^ ^ gf ^j^g Provincial Act, were probably meant to denote, 
 
 and they certainly include every adult Chinaman who has not been 
 
 naturalized. 
 
 Mr. Justice Dkake, before whom the case was tried, and, on appeal, 
 the learned Judges of the Full Court, were of opinion that the enact- 
 ments of sec. 4 of the Mines Eegulation Act, so far as challenged,' were 
 within the legislative jurisdiction of the Parliament of the Province. 
 They accordingly gave the plaintiff a declaration to the effect that the 
 appellant company has no power to employ Chinamen, or to allow 
 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 unlawful, as being contrary to sec. 4 of the Coal Mines 
 Regulation Act. They also, in terms of that declaration, granted an 
 injunction restraining the appellant company, its contractors, servants, 
 worlcmen, and agents, from employing Chinamen, or allowing China- 
 men to be for the purpose of employment, in the coal mines of the 
 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. 93 of the British North 
 America Act, 1867, whilst, according to the other, they clearly belong 
 to the class of subjects exclusively assigned to the Ijegislature of the 
 Dominion by sec. 91 (25). They may be regarded as merely establish- 
 ing a regulation applicable to the working of under-ground coal mines; 
 and, if that were an exhaustive description of the substance of the 
 enactments, it would be difficult to dispute that they were within 'the 
 competency of the Provincial Legislature, by virtue either of sec. 9S 
 (10) or see. 92 (13). But the leading feature of the enactments con- 
 sists in this : that they have, and can have, no application, except to 
 Chinamen, who are aliens or naturalized subjects, and that they estab- 
 lish no rule or regulation, except that these aliens or naturalized sub- 
 jects shall not work, or be allowed 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 
 (25), the Legislature of the Dominion is invested with exclusive au- 
 thority in all riiatters which directly concern the rights, privileges and 
 disabilities of the class of Chinamen who are resident in the provinces 
 of Canada. They are also of opinion, that the whole pith and sub- 
 stance of the enactments of sec. 4 of the Coal Mines Eegulation Act, 
 
r.] BBYDBN V. UNION COLLIERY CO. OF B. C. et al. 343 
 
 in. so far as objected to by the appellant company, consists in estab- j-'^f^^gg 
 lishing a statutory prohibition which affects aliens or naturalized sub- In- 
 jects, and therefore trench upon the exclusive authority of the Parlia- Pbivx 
 ment of Canada. The learned Judges who delivered opinions in the — 
 Full Court noticed the fact, that the Dominion Legislature had passed Lobd Watson 
 a " Naturalization Act, No. 113 of the Eevised Statutes of Canada, 
 188G,"' by which a partial control was exercised over the rights of 
 aliens. Mr. Justice Walkem appears to regard that fact as favour- 
 able to the right of the Provincial Parliament to legislate for the ex- 
 elusion of aliens, being Chinamen, from underground coal mines. 
 The abstinence of the Dominion Parliament from legislating, to the 
 full limit of its powers, could not have the effect of transferring to any 
 Provincial Legisktufe, 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 pro- 
 visions of sec. 4 of the British Columbia Coal Mines Eegulation Act, 
 1890, which are now embodied in ch. 138, of the Eevised Statutes of 
 British Columbia, 1897, were, in so far as they relate to Chinamen, 
 ultra vires of the Provincial Legislature, and therefore illegal; 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 appellant 
 company 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 Begina v. Little, ante, p. 220. 
 
M4i 
 
 JiARTIN'S' MINING. GASES. 
 
 [vol. 
 
 ^^899. 
 Septfmber 15. 
 
 BtARTIN, J. 
 
 Statement. 
 Argument. 
 
 Judgment. 
 
 DuiiTLOi* T. HaNEY. 
 
 (7 B. G. 300). 
 
 Location — Overlapping — Adverse Action — Injunction Pending Appeal — Preser- 
 vditdn of Property in Dispute — Practice — Trial — Undert'dkiHg not to PHi- 
 oeed furi^e'r untH, Trial- — ProbVeding Vefore formal Ordisi- draiwn up, tmt 
 after J-udigment B^Wvered. 
 
 liocatidns which do not overlap do not conflict, at least in so far as boiindaries 
 dre coilcerned; 
 
 IW a ' case! df very special and exceptiomal circumstances, and- to preserv* the 
 prof)6rty in dispute, a party in an adverse action, who has obtained judf 
 meht at the trial, may, after appeal has been brought, be enjoined from 
 persisting in his application for, or from obtaining a certificate of improve- 
 ments pending such appeal. 
 
 An. undertaking not to proceed further until the trial of the action is observed 
 although proceedings are taken before the formar order or decree is drawn 
 ttp, but after judgment delivered. 
 
 Motion to dissolve an inj unction argaed be&re MaetiNj J. 
 
 Bodwell, Q.C., for plaintiff. 
 
 WiUon, Q.C, and A. B. McPhvllvps, for dbfendant. 
 
 September 15tli, 1899. 
 
 Martin^ J. : — The plaintiff moves to dissolve an injunction (in- 
 terim order) granted by me herein on the 39th of August, on the 
 aj^plicatioii of the def endairt; Haney, " resti^iining the' plaintiff from 
 applying for or obtainiiig a certificate of iiiiprovements or Crown grant 
 of the Pack Train mineral claim in the pleadings mentioned." This 
 interim order was obtained by the defendant Haney on two groimds, 
 which may be stated briefly as follows: (1) An alleged 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 Elliot's 
 affidavit as follow;s: 
 
 " 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 litigatioii, 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 . . ." 
 
I.] DUNIiOJP V. HANBI. 345 
 
 (.3) The preservation of the property ia disp.ute jiieading an appeal ^ isfl9. 
 by defendant from my jjidgment, -which apfeaC it is deponed, will be '^«P'«f*^'' i'^- 
 broug-ht oa, as eaffly as possible, and natiee whereof has been gLven. Maktin, J. 
 
 As to the first oi these groun-ds it is objeoted by the pkimtifi that 
 it is based upon a matter which has arisen subsequejnt to judgment, 
 and, that what I am askedito do is prajeticadly to' declare a neW' right 
 foundfld on the defeiadant's breach of faith; and the case of Davis v. 
 Bil&y) (1898), 1 Q: B. 3, is reliied on in support of this contention, lb 
 does, I think, fully support it,, and the view that I have no such power. 
 But iarrespective of this objectitoi I would point out, though it does not 
 become essential in view of my subsequent remarks, that a close 
 exaitiimation of said paragraph five shews the result of the agreement 
 therein was that " the Attorney-General amnoumced as a result no steps 
 should be taken or alllowed by the government oiEeers, &c. . . . 
 inl which a-H couaise'l engaged concurred . . ." All this amounts to 
 i»,. in strictness, that all counsel adopted the view tajken by the 
 Atttomey-General as to the course that should be pursued by the 
 govemiment officers, and there is no allegation that either party afgreed 
 to refrain from active steps on his own account. 
 
 But it is further urged that the plaintiff's counsel has pot observed 
 the undertaldng embodied in the order of June 13th, 1899, as follows: 
 " And the plaintiff by his counsel undertiaking 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 
 behatlf till after the trial before me at Vancouver, and my judgment 
 thereon suhseqiiently delivered, but the contention is that the " trial " 
 is not at an end till the formal order or decree is drawn up, and that 
 the undertaking binds until that is done. In my opinion, the under- 
 taking was substantially observed by taking no steps till after siich 
 trial and subsequent judgment. Whatever technical meaning the 
 ■fl^ord " trial " may have I do not regard it here as being wider than 
 the ordinary definition in Wharton as "the examination of a cause, 
 'civil or criminal, before a Judge who has jurisdiction over it, accord- 
 ing to the laws of the land." — 1 Inst. 124. Also, the word is defined 
 in &afh v. Rdwaiili (1884), W. N. 99, by Justice Field as follows: 
 " A trial is where the Judge (with the assistance of a jury) has to 
 decide which of two parties is Entitled to succeed." I might add that 
 Me d'efendant's solicitor in the third parargtaph of his affidaTit him- 
 self 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! Prom a perusal of the cases cited 
 it would aippear that uMtil 187^' it was doubftful T^hether an injunction 
 Would be continued after the plaiiitiri's bill had been dismissed so as 
 
546 MARTIN'S MINING OASES. [vol. 
 
 •September 15 *° P?"^^^^'*'® property pending appeal. But before that, in 1865; in the 
 — !"' ■ case' of Galloway v. The Mayor, &c., of London (1865), 13 L. T. N. 
 Martin, J. §_ 333^ ^^ ^^^ '^^^^^^ y^^ L^^.^ 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 (1831), 3 Myl. and Cr. 635, the power of the Court 
 over it is gone." Lord Justice Knight Bruce took a similar view, 
 but pointed out that, in the case then before them, " after all it was 
 only a question of money." Subsequently in roUni v. Gray (1879), 
 12 Ch. D. 438, it was laid down by Jessel, M.E., and Lords Justices 
 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 at 
 the conclusion that the appeal is bona fide, that she (the plaintiff) in- 
 tends to prosecute it with a view to determine her rights and to get a 
 finar decision on those rights ; and the Court . . . being satisfied 
 that there would be danger, if it were not to interfere for the interim 
 protection of the fund, of its not being f oi^theoming 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 where 
 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 re- 
 versed) 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 per- 
 sons, 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 
 "this jurisdiction ought, no doubt, to be very carefully exercised, 
 and so as not to encourage any one to present an appeal for 
 the mere purposes of delay," and also that " it is a thing to 
 
X.] , DUNLOr V. HANEY. 347 
 
 be done only under very special and exceptional circumetances." ]899. 
 In view of the important change in the investigation of mining ®'' em^e"^ 
 titles under litigation introduced by sec. 11 of the " Mineral Maktin, J. 
 Act Amendment Act, 1898," alluded to in my former judgment herein 
 {post, p. 370), the circumstances of this case certainly are "very 
 special and exceptional," as well as difficult to deal with, in fact they 
 never could have occurred before that Act, and in view of them I can- 
 not see that the case of Carter v. Fey (1894), 3 Ch. 541, is applicable. 
 
 The result is that I should be disposed to continue this injunction 
 till after the a|)peal, with leSve to apply to dismiss in case of delay in 
 prosecution, were it not for a point which arises out of the operation 
 ■of the section above referred to and which now confronts me. 
 
 It will be remembered that the plaintiff is the owner of the Pack 
 Train claim, and the defendant Haney of the Le'gle (sic) Tender. 
 In my judgment I gave effect to the objection taken by the defendant's 
 counsel that the plaintiff had not proved that this Pack Train over- 
 lapped the Legle Tender, and therefore the plaintiff was not, entitled 
 to succeed, because it follows that if these claims were not shewn to 
 overlap, the rights of their respective owners were not antagonistic; 
 i.e., to put it plainly and briefly, the owner of the 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 tha't I dismissed the plaintiff's action, and at the hearing of 
 this application it was not alleged that either party was appealing 
 ugainst 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 
 grOfUnd ? 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; 
 that 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 en- 
 croaches 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 successfully 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 y. Dunlop, post, 
 p. 408. 
 
346 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1899. 
 October 8. 
 
 SUPREHB 
 
 Couni' 
 OF Canada.* 
 
 Statement. 
 
 Callahan v. Coplen. 
 
 (30 S. C. 555; 6 B. C. 52S-; 7 B. C. 4220. 
 
 Miinerai Claim — Laeaiion, Invgiidity, of. — Irreg.ulair-ity — Title-— Post — Clo(»fl»»» 
 jtHearing — Misloadtifig — Certificate of Work— Mineral Act, sec. Id (g) , and 
 
 and Amendments. 
 
 of No. 2 post will in- 
 
 Faaliare to give tbie " approximate compass bearingr 
 
 validate a location. > 
 
 Such defect, if of a character calculated to mislead, cannot be cured by sec. 
 
 16 (»), nor by a certificate of work under sec. 28. 
 Baoision- of the Full Court aflrmed*. 
 Per the FulJ Cpjirti Section 28 only cures little irregularities after location 
 
 and record, which -do not go to the root of title. 
 If a claim is not pi-operly taken up and' recorded it never becomes a miaeraj 
 
 claim'. 
 
 Appbal by defendant from a decision of. the Full CoTwt of Britisli 
 CQliumbia, reyersing the judgment o,f Maejin, J., i» sja adverse action 
 tried by him at I{ossland on 14;th, 17th„ 18th and 20th February, 
 1899, 
 
 The defendant, in May, 1892, located the Cube Lode mineral 
 claim, but in so doijig gave, on No.. 1 post, the approximate beariiag 
 of No. 2 post, as south-easterly instead of east by north> as the fact 
 was. Certificates of "work were regularly recorded on. the elaim since- 
 location. In 1896 the plaintiff located and recorded the Cody Frac- 
 ticn and the Joker Fraction on suhstajntially the same ginauaid, aoxd 
 likewise regularly recorded certificates of work to date. The defend- 
 ant applied for a certificate of improvements to the Cube Lode, where- 
 upon the plaintiff brought an adverse action. 
 
 Argument. g^^ (j ^ Tupper, Q.C., for plaintiff. 
 
 Hamilton, for defendant. 
 
 Cur. adv. vult. 
 
 April li7th, I'SQfl. 
 
 Judfjmpnt Martin, J. :— On the 34th of May, 1892, the defendant located, 
 
 m*abtin' J *^d subseqiuently recorded, the Cube Lode mineral claim on the divide 
 
 between Cody and Sandon Creelcs, in the Slocan Mining District. 
 
 "Present : — Sir Henry Stkonq, C.J., .ind TASCiiEREAtr, Gwtnne, Sedgbwick 
 and Gieouakd, JJ. 
 
I.] 
 
 OALLAHAN v. COPLBN. 
 
 349 
 
 Jutltfnjeiit 
 
 at trial, 
 
 Mautin, .T. 
 
 Over fofur years afterwards the plaintifE loeatcd, on 3rd August, 18®6, iseo. 
 the Cody Fraction mineral claim, and on the 27th of September, 1896', "^ !L^ 
 the Joker TVaetion mineral claim, and duly recorded them. The Cube Suerhmb 
 Lode claim as now surveyed, would occupy most of the ground claimed oir Canada. 
 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 deliberately committed what is tanta- 
 mount 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 Sum- 
 mit claiiB, 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 plain- 
 tiff 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 loca- 
 tion of the Cube Lode is invalid, because upon jSTo. 1 post, the initial 
 post, the " approximate compass bearing " of IsTo. 2 post is not given 
 as required by the Act. On his cross-examination the defendant ad- 
 mitted that the compass bearing " south-easterly," which is written on 
 No. 1 post, does not give the true direction, and said that instead of 
 beiijg south-easterly the bearing should be a " little north of east." 
 While admitting that the compass bearing is misleading, he states that 
 it wpuld 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. Heyland, 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 IT. 74 
 degrees, 9 min. east. I have come to the conclusion that " south- 
 •easterly '' is not the " approximate compass bearing " within the con- 
 templation of the Act, and it is quite clear that the plaintiff in this 
 
350 
 
 MARTIN'S MINING OASES. 
 
 [VOL. 
 
 1899. 
 Octobers. 
 
 SUFRRUE 
 COUBT 
 
 OF Canada. 
 
 ease was misled by that description. Further, I do not think that 
 where an approximate compass bearing is not given this plain require- 
 ment of the Act can be cured by a reference in the record to another 
 claim. 
 
 But the defendant claims the benefit of sub-sec. (g) of sec. 16 as 
 amended by the Mineral Act Amendment Act, 1898. Assuming for 
 the moment that the defendant is otherwise entitled to the benefit of 
 this section, so as to cure his " non-observance of the formalities re- 
 quired," I am of opinion that in this particular case he does not come 
 within tlie scope of the section, because I find the non-observance was 
 " of a character calculated to mislead other persons desiring to locate 
 in the vicinity," and did in fact mislead them. 
 
 But he also claims the benefit of see. 28 as curing the irregularity. 
 This section is as follows: 
 
 " 28. Upon any dispute as to the title to a;ny mineral claim, no irregularity 
 happening previous to the date of the record o£ 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 
 upon fraud." 
 
 Judgment 
 
 at trial. 
 
 Martin, J. 
 
 It is shewn on the part of the defendant that for several years 
 before the plaintiflE located his claim he, the defendant, had recorded 
 certificates of work, and has eontinued 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. Sail 
 (1898), G B. C. 421, ante^ p. 238, the position is one of difficulty, and 
 I reserved judgment largely on this ground. On mature reflection I 
 have, with some difiidence, come to the conclusion that the defendant is 
 entitled to the benefit of the section. If effect is to be given to it at 
 all, the irregularity complained of was cured by his recording his last 
 certificate of work, for I am directed in positive terms by the statute to 
 "assume that up to that date the title to such claim was perfect;" 
 nothing could be stronger. The same remarks apply to the plaintiff's 
 case, but with this exception, that other things being equal the de- 
 fendant has the prior location (now cured of all irregularity) by over 
 four years. As Mr. Justice Drake said vn Fero v. Hall, under such 
 circumstances "the Court has to fall back upon prior location and. 
 record," and I feel this is the only safe rule to be guided by- It is 
 in accord with the legal maxim. Qui prior est tempore, potior est jure,. 
 which seems particularly applicable to mining titles. 
 The action will be dismissed with costs. 
 
 Action dismissed with costs^ 
 
I.] CALLAHAN v. COPLEN. 351 
 
 The plaintiff appealed, and the appeal was argued at Van- 1899. 
 couver, on, 20th, 21st and 22nd September, 1899, before Walkem, O"'^'-**- 
 Drake and Irving, J J. Slpbeme 
 
 Court 
 Sir G. H. Tupper, Q.C., and Peters, Q.C., for appellant. 
 
 Appeal to 
 
 Hamilton J lor respondent. 
 
 November 30th, 1899. 
 
 Drake, J. i-rThe defendant located the Cube Lode on 24th May, ;^"'^s^'*'J,'^?/ 
 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 
 bearing some 1,200 feet distant. On that post, according to the evi- 
 dence, was written " No. 2 post Cube mineral claim located 34th 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 
 had been erased and Cube instituted. 
 
 The Act, sec. 16, says all the particulars required to be put on No. 
 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 
 words " adjoining the Bridgett and Freddy Lee claims." In 'the first 
 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 
 adjoining these claims, or that the side line adjoins these claims ? The- 
 statute requires the approximate compass bearing of the side line and 
 does not require the locator to add the names of other claims. The- 
 approximate compass bearing is the governing indication. If this is 
 omitted, and the names of other claims in the neighbourhood inserted, 
 the location would not comply with the Act. If the compass direction 
 appears, but in addition other claims are mentioned as indicating the 
 line which do not agree with the compass bearing, the latter governs- 
 That is the ease here. The compass bearing is given as south-easterlj 
 and there is a post there, but the defendant says that this is the Sum- 
 mit post which has been tampered with and the name of the claim 
 altered. The evidence on this head is incomplete and unsatisfactory. 
 
352 
 
 MA'ETIN'S MINING 'OA-SES. 
 
 [VOL. 
 
 1899. 
 October 8. 
 
 Supreme 
 
 Court 
 
 ■OF Canada. 
 
 Judgment of 
 
 Full Court, 
 
 Drake, .J. 
 
 The defendant alleges his post is in an entirely di'ffierent direction, 
 norijh of east, a difference of over eighty degrees, and on irhat po^t 
 which was planted some 1,200 feet or more on ground belongingto the 
 Chicago elain^s the following writing appears : 
 
 " Original No. 2 Cube Lode, A. D. Coplen. JSTo. 1 post stands 
 north-westerly. Claim lies to left of line from No. s! to No. 1 ; May 
 34, 1893." 
 
 The defendant urges that there must be some occult reason for 
 this peculiar 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 suggests 
 that it arose from the fact that the defendant had discovered that if 
 the line ran as recorded from No. 1 to 3 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. 3 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 
 measurement, therefore, is taken from No. 1 to No. 3 and not vice 
 versa, and a compass bearing on No. 3 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. 3 post, but considered it was strong cir- 
 cumstantial evidence in support of the plaintiff's view. 
 
 While on this head it may not be improper to remark that. the de- 
 fendant preferred to rely on his suggestion that the No. 3 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 knowled.ge of it. In fact 
 witness W. A. Bauer at p. 30 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 33.40 east, nearly S. S. B., and both posts 1 and 3 are on the 
 top of the divide which is from 150 to 350 feet wide,; and there is, a 
 fairly blazed line between posts 1 and 3, and this tadlies with ,the 
 recjprd which describes the claim as situate on the top of the divide 
 between Sandan and Cody Creelcs. If the claim ran down ithe hiil as 
 c'laiiaed it would notihe described as on top of theidivide. 
 
 The defendafliit was a (prospector of some years standing, and one 
 who had taken wp numerous claims in the neighbourhood, and -be was 
 
I-] CALLAHAN v. COPLEN. 353 
 
 quite conversant with the statutory requirements. On. this branch oi 1899. 
 the case I have come to the conclusion that the No. 2 post on the top °' ^" ^" ^ ' 
 of the divide in' a south-easterly direction from No. 1 is the correct Supreme 
 post of the Cube Lode mineral claim; and the claim itself lies to the of Canada. 
 right, of that line. On the other ,branch of the subject it appears that 
 the defendant has obtained a certificate of work through the labour of 
 one I'ry, to whom W. E. Coplen sold part of the claim. 
 
 The plaintiflE.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 
 Cody and Joker fractions, therefore his title should be assumed to be 
 perfect, and the defendant relies on the same language to make his 
 claim good. This assumption of good title applies with equal force 
 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 per- 
 fect 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 work. *""'''■ 9^'"?'^' 
 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 
 all the world, and any neglect of statutory duties relating. to the 
 sialking and recording the claim can be cured. For instance, if a claim 
 has been located and recorded. in accordance with the location. posts 
 and compass bearings, and the locator does work on land not touched 
 by his record .he can get a title, but to what ground ? Can it be to 
 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 
 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 certifica,te 
 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 
 siieh neglect or slip. 
 
 Here the defendant has established his No. 1 post ani has defined 
 . the direction of his No. 2 post in a sou,th-easterly direction. This is 
 in accordance with sees. 14 and 15 of the Act, 1892, and those sections 
 M.M.d. 23 
 
354 MARTIN'S MINING CASES. [vol. 
 
 October 8 ^^^ Gompulsory in defining the mode of staking a claim, and any error 
 — as alleged here in the compass.' bearing is undoubtedly calculajted to 
 ^CouR™ mislead other prospectors. The defendant has to all intents a good 
 OF Canada, 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 overruling the com- 
 pass bearing. 
 
 The compass bearing must be g,pproximate. It is not necessajy to 
 decide what deviation would be considered approximate, but a differ- 
 ence 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 an3 
 clear which the law requires should be complied with, otherwise con- 
 fusion 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. 
 
 Judgment of Walkem, J. :— I concur. 
 
 FnLL COUBT, ' • 
 
 Walkem, J. 
 
 Irving J. Ieving, J. : — This is an adverse action brought by the plaiatiff, 
 
 who claims that the land in dispute is included within the boundaries 
 of the Cody and Joker mineral claims, located in 1896, to prevent de- 
 fendant from obtaining a Crown grant of the land claimed by him 
 as being within the boundaries of the Cube Lode mineral claiid, 
 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 w;ho saw the witnesses that the defendant staked, an"& 
 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 separa,ting Cody and Sandon Creeks, a 
 claim known as the Freddy Lee mineral claim. 
 
 The defendant and others on the 24th of r 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 initiaj 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 hive, already referred, calling it the Sunimit claim. 
 
 In describing the location ' liiie, i. e., line of direction' between 
 posts Nos. 1 and 2 of the Amega, they made a mistake, namely, they 
 
I.] CALLAHAN v. OOPLEN. 355 
 
 described in their loGation notice of the Amega the line of .direction 1899. 
 as being easterly^ whereas it ouglit toihave been north-easterly. — 
 
 In. describing in their location notice pi the Cube Lpde, they fell ^coobT 
 into the same error as to the compass bearings, and palled the location ov Canada. 
 line south-easterly, when in fact, it .was east by north. A similar prror 
 ,wfts 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 thai; the Summit claim is 
 a claim of 1,500 x 1,600 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 a,nd 2 posts ; and the Amega is a claim of 
 similar dimensions on the other side of the Freddy Lee. 
 
 The plaintiff alleges fraud. His evidenqe 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 p"ff "0"^°* 
 Lode, hut is in fact the true and original post of the Summit claim, Ikving, J. '' 
 find that he is not responsible for the writing which now appears on 
 this " A " post. If the contention of the plaintiff is right the defen- 
 ;,dant and his f rieiids would have located the Cube Lode over the Sum- 
 mit 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 Preddy Lee, and had been concerned with 
 the staking of the Budgett. 
 
 That question having been decided in favour of the defendant, the 
 ease then resolves itself into this : Does sec. 28 apply so as to cure the 
 .failure of the defendant to correctly state in his location notice the 
 approximate compass bearing of Ms No. 2 post? There cannot, I 
 tliink, be any doubt that if the error is trifling this question 
 must be answered in the aflSrmative, and then comes the next ques- 
 tiPn, and herein lies the whole point of the case; does sec. 38 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- 
 easterly? 
 
 In niy opinion both questions should be answered in the affirmative. 
 
 .Irregularity is a very general -v^ord. It means, in an act of thip 
 character, "not according to the regulations." Its nearest equivalent 
 
356 MARTIN'S MINING CASES. Lvox. 
 
 Oosober 8 '^^ '^^^ ^°^^' " informality," " not according to form," in' which connec- 
 
 — tion I would call attention to the language in sub-gee, 1. of sec. 16. 
 Supreme 
 CouBT So wide is sec. 38 that the Legislature -thought proper to limit the , 
 
 oi' Canaca'. application of its healing clauses by adding that fraud,, in a suit in- 
 stituted by the Crown, would be an exception. 
 
 Dealing with this particular informality 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 addi- 
 tion 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 Booh et al. v. 
 Justice Min. Co. (1893), 58 Fed.Eep. 106-115, where "northerly? 
 instead of " north-easterly " was used and the mistake was held oi no 
 ?||a>1^! moment. • ■ , • , 
 
 ' ' ■ ' Then it is argued that if a man makes a mistake in his conipass 
 bearings. he is. to. have no relief because the Legislature has already 
 treated him in this respect liberally. It strikes me jiist 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 reason- 
 a,bly expected. Then they added, if he does his assessment work, that 
 will cure air irregularities^ -' 
 
 The scheme of the Act is, plain. It aim^ at increasing the security 
 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- 
 ties, unless calculated to mislead, shall not violate his title. After 
 recording of his assessment work, all irregularities of title are cured. 
 In the case of Cullacott et al. r. Cash Cold and Silver Mining Com- 
 pany (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 actually 
 ■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 bad a wrong idea as to the points of the com- 
 pass, I cannot agree to th£|,t. Had he described the No. 2 post as lying ■ 
 easterly he would, I venture, to think, have been within the sweep of 
 
I.] CALLAHAN V. OOPLEN. 357 
 
 the words "approximate compass bearing." He instead said south-: ^^^^^.g 
 easterly, and this one mistake it is urged is fatal after six years', occu- ^ — .'' 
 
 J.-' SUPKEME 
 
 pation.. , Qj,pjj,^, 
 
 ' To learn the true meaning of sec. 34 it must be contrasted with op Canada. 
 sec. 16, sub-sec. {g) — sed. 24 goes a long way further than the sub- qwynne, 3. 
 section. If it does not receive that construction, it is useless ; there • 
 was no object gained by the' enacting it. ' Beadiiig it then as being 
 wider than sub-section {g) it would cover theS-case^of non-compliance' 
 with formalities 6f a character calculated to mislead. 
 ' The difficulty in deciding the question as to who shall have the 
 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 attaiches just as soon as the 
 subsequent locator puts his stakes into the ground. in respect of which' 
 the prior lpca,tor has recorded his work. If at that time, or, possibly,' 
 if at any time beforei the subsequent locator does his assessment work^' 
 the prior locator. has done his work and recordied it, b? is entitled to 
 invoke the aid of the section. His title is. then perfected'; there can-' 
 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., dissenlirig. 
 Ft ■ ' ' ■ • ', ' n ■ 
 
 The defendant appealed to the Supreme Court of Canada and Appeal to s.o. 
 the appeal was argued on May 31st and 33nd, 1899. 
 
 ■Aylesworth, Q.C., for the appellant. ^ Ai-siimeut. 
 
 Sir Charles Hihhert Tupper, Q.C., for the respondent. , 
 
 Our. adv. vult. ■ 
 
 October 8th," 1899. 
 
 The judgment of the Court was delivered by 
 
 GWTNNE, J.: — That the description of the Cube Lode claim as Judgment. 
 recorded by the appellant does not precisely conform to the provisions 
 of the statute of British Columbia in force in that behalf is not dis- 
 puted. The evidence indeed leaves no doubt in the matter, and it is in 
 fact admitted. The only question, therefore, which, as it appears to 
 me, 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 per- 
 sons whose title was duly transferred to him in his lifetime. The 
 
358 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 o tobe' 8' ^°^^ ^^^ Joker fractions claims as recorded cover portions of the 
 °—^ ' Cube Lode claim as claimed now by- the appellant, but' do not touch 
 ^Cciom'^ the Cube Lode claim according to the description as recorded. The; 
 OF CaIsada. whole contention of the appellant is that all objection to the defect in 
 GwTNNE J ^^® recorded' description o,.£ the Cube Lqde claim; is removed by his , 
 certificates of work doneby force of i sec. 38 of ch. 135, Eevised Statute^ 
 of British Columbia; but whatever effect that conte;ntion might be 
 entitled to in an. laction between the appellant and the Provincial 
 Government, it hag no application here where the contest is solely 
 between the appellant and the respondent, in which the sole question is 
 whether the owner of the Cody and Joker fract;ions, claims as recprdedj 
 have not, by reason of the error, in the Qube 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 claimr 
 ed by him, although such lahd isnot within the description of the 
 Cube, Lode claim as recorded, T^hat the error in the description of thai 
 Cube Lpde claim as recorded was calculated to mislead, and that in 
 point of fact, the Cody and Joker fractions, claims w,ere 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. — Ah ap*plicatiou 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 : Gelmas v. Clark, post, p. 428, and explained in Manley v. 
 Colloliri, post, p. 487; see also Lawr v. Parker, post, p. 45G; and Cleary v. 
 Hoscowitz, post, p. 506. 
 
 For list of cases on defects in location : see note to Manley y. Collom, supra. 
 
I.] OONNELL V. MADDEN. 359 
 
 1899 
 CoiiTNELL V. Madden. October 24. 
 
 (30 S. Cf. 109 ; 6 B. C. 76, 531) . ~ ^Court" 
 
 01? Canada.* 
 Mineral Vlaim — Invalid Location — Foreign Territory — Post — Mineral Act, 
 
 189i, sec. 4. 
 
 A location which has its No. 1 post on foreign territory is invalid. 
 Decision of the Full Court affirmed. 
 
 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 plaintifE. Argument. 
 
 W. J. Taylor, for defendant. 
 
 Cur. adv. vult. 
 
 January Srth, 189,8. 
 
 Walkem, J. : — The plaintiff located and recorded a mineral claim ''^(ff™™' 
 in the Kootenay Distribtas Boundary No. 3, in June, 1895. Prior, Walkem.'j. 
 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 
 Greek 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- 
 to test his right' to the ground in dispute. The^ evidence at the trial 
 shewed that the defendant had planted 'his Nb. 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 thtis planted* hi 
 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 nullity. Moreover, the requirements of sec. 4 of the Mineral 
 Amendment Act, 1894, to the effect that the," Provincial G.oyernjnent 
 surveyor shall," when siirveying a mineral claim, preparatory to the 
 issue , of the Crown grant, " he. guided entirely, by posts No. 1 and 2, 
 and the nptice on I^o, 1, the initial post, and thei records of the claim," 
 
 * I'reserit : — Sir Henry Strong, C.J., and Taschereau, Gwynne, Sepgewick, 
 and Krird, JJ. 
 
361) 
 
 MARTIN'S MINING CASKS. 
 
 [VOL. 
 
 1S9D. 
 October 24. 
 
 SUPREVIS 
 COJJRT 
 
 OP Canada. 
 
 could not, with respect to the initial post in question, be carried out 
 without that officer committing a palpable and most improper, act of 
 trespass on foreign soil. Such a survey could not be , sanctioned by 
 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, invalid for want of an initial post. It was argued that the plain- 
 tifE's title was defective, owing to one of his'^posts being on the Good 
 Enough location; but that location was n9t shewn to be a valid one. 
 The plaintiff is entitled as between him and the defendant to posses- 
 sion 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. 
 
 JudgmeM for the plaintiff. 
 
 Appeal to The defendant: a;ppealed to the EuU Court, and the appeal was 
 
 argued at Victoria on 1st and 2nd December, 1898J^ before McColl, 
 C.J., Irving and Martin, JJ. 
 
 Argument 
 below. 
 
 I W. J. Taylor, for appellant : The holder of a mineral claim is a 
 leaseholder, and his claim can only be attacked by the Cxown. The 
 difference between the Mining Acts of the United States, Australia 
 and British Columbia is, that in the United States and Australian 
 Statutes there is not only a clause declaring a claim vacant, but a 
 re-entry clause also.' Our Act does Hot say who shall have the right 
 to bring .an ad verse, action... He cited Anthoriy y. Jillson (1890.), 16' 
 Morr. 26 ; Delmonte v. Last Chance (1898), 18 U.S. Sup.. Ct. Kep. 895; 
 Armstrong's Gold Minings 62, 65; Bulmer v. The Queen (1893), 23. 
 S. C. E. 488; White v. Neaylon (1886), 11 .App. Cas. 171; Myers v. 
 Spobner (1880), 9 Morr. 520; Meydenbauer v. Stevens et al. (1897), 
 78 Fed. Rep. 787, at p. tn;Brainerd v. Arnold et al. (1858), 8 Morr. 
 478; The Golden Terra Mining Go. v. Mahler (1879), 4 Morr. 390; 
 Brhardt v. Boaro (1885), 15 Morr. 473. ' 
 
 \. 
 
 Bodwell, for respondent. 
 
 Cur. adv. vult. 
 
 Judgment of 
 Full Court. 
 
 January 9th, 1899. 
 
 The judgment of the Court was delivered by . . , 
 
 Martin, J. :— I agree with the learned trial Judge that the initial 
 post of the Sheep Creek Star claim having been planted in the United 
 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.] OONNELL V. MADDEN. ' 3gl 
 
 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 0'='^^ '^'^■ 
 
 in law such a claim as the Sheep Creek Star. Supremb 
 
 The appeal must be dismissed with costs. of Canapa. 
 
 Appeal dismissed with costs. 
 
 The defendant appealed to the Supreme Court of Canada, and the 
 appeal was argued on October ■24th, 1899. , 
 
 .Per,CuRiAK:— We are all, of opinion that it is impossible to get 
 over the fact that the initial post pn appellant's claim Vals south of '^he ' 
 boundary. Two courts in British Columbia have so decided, which 
 alone would be sufiBdient, 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' Martia 
 says, jn giving judgment for the Supreme Court of British Columbia, 
 the position is the same as if there had never been such a claijn. 
 
 The appeal must be dismissed with costs. 
 
 Appeal' dismissed with costs. 
 
 Note. — ^As to defects in location: see, list of cases in note to Manl,ey y. Gol- 
 lom, post, p. 487. 
 
 Aijpeal to 8.C. 
 
 Judgment. 
 
.362 MARTIN'S MINING CASES. [vol. 
 
 1899 
 November 2% IeON MaSK MINING CO. V. CENTRE StAK MINING Co. 
 
 ^°''^°"'''^'- (T B. C. 66). 
 
 Practice — Trial — Costs on Adjournment — Discretion — Judge — Order for In^ 
 spection and Experimental Work — Extralateral Rights — Apex. 
 
 Defendants got an order at the trial tot the inspection of a vein in the plain- 
 tiff^'' claim, which they alleged was a continnation of a vein, the apex of 
 which was within the limits' of their own claim ; whereupon plaintiffs alleg- 
 ing that such order necessitated inspection by them of other similar plaqes 
 on their property, with a view to furnish evidence to rebut that which might 
 be addiiced by reason of the plaintiffs' iiisjiedtion, and an adjdumiieat for 
 that purpose, obtaanedthe adjournment, but on the terms that all costs occa- 
 sioned thereby should be borne by them in any event. 
 
 Held, on appeal that such costs should abide the result of the Issues to which 
 the inspection related. 
 
 Order of Walkem, 3., varied. 
 
 Statement. APPEAL by plaintiff from an order of Walkem, J., pronounced at 
 
 Eossland, on 28th April, 1899, whereby the defendant company was 
 allow'ed to contintie 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 addi- 
 tion 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 ad- 
 journment be costs to the defendants in any event of the cause ; the intention 
 being that the plaintiffs shall reimburse the defendants for and indemnify them 
 against any and all loss that they may suffer by reason of the said adjourn- 
 ment." 
 
 The defendant applied for leave to inspect the mining workings 
 and premises in question and to do certain experimental work for 
 the purpose of obtaining full information and evidence requisite for 
 the trial, but the application was refused. The defendant appealed 
 to the Full Court, and the appeal was dismissed. For a full statement 
 of the facts see C'enire Star v. Iron Mask : Iron Mash v. Centre Star 
 (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 application. The plaintiff then 
 asked for an adjournment of the trial on the ground that it would 
 
I.] IRON MASK MINING CO. v. CENTRE STAR MINING CO. 
 
 363 
 
 be necessary for the plairitifE to do certain work in order to preclude ^^^^^^'^ 
 the evide^ee which the defendant expected Ijo derive from the inspec- <'^e™_'' 
 tion, from being evidence, or at all events tieing conclusive evidence of PoI'L Court. 
 the continuity of the vein. The application for the adjournment was 
 resisted by eounael for the defendant on tjxe; grounds, first, of the 
 great expense, stated to be over $40,000.00, that it would occasion, and 
 second, on the gronnd of the danger that the adjournment would pre- 
 vent the defendant having the benefit, of the attendfince of certa,iii 
 witnesses, eminent mining engineers, whose presence it was unlikely 
 •could be procured 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 plaintiif appealed 
 from both orders on the grounds (as to the order allowing the work 
 rto be done) : (1) That it was a variation of the order of the EuU 
 Court made herein on the 24th day of December, 1898, whereby the 
 .application of the defendant for the detention, preservation and in- 
 spection 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 
 allowing work on the ground of surprise to the plaintiff, the plain- 
 tiff ought not to hti\e been compelled to pay the costs of said adjourn- 
 ment ; and in any event, the pl^irttiff ought not to have been ordered' 
 to pay more than taxable costs; (3) That the said order of adjourh- 
 nient in so far as it directs the payment by the plaintiff of the dis- ; 
 bursements, expenses and outlays of the defendant beyond' the amount 
 ■of 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 allowing 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 eon- 
 sentfed 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 wlxich might then be made as to costs. 
 
 The appeal came on for argument on 18th and 19th September, Appsal: 
 1899, at Vaiaeouver, before the Full Court, consisting of McCotii, C. J., 
 Brake and' M-aEtin, J J. , i 
 
 Bodwell, Q.C., {MacNeill, Q-,C;, with him), for appellant. The Argument, 
 ■order allowing the work to be done is a variation of the Full Court 
 
364 - MARTIN'S MINING CASES. - - [vol. 
 
 vT ^^^' ho judgment, the effeci of which was that no such' order sTiould'be madfe- 
 
 November 22. ° ^ . -it, i jj j.i 
 
 — until the Court had debided that it was impossible to conclude -the ■ 
 FpiLCouRT. action on other issues. [The Chief Justice : The Full Court left it/ 
 MoCoLL, C.J. to fhe trial Judge to direct' inspection if he thought fit; so does it not' 
 conie down to the question, of whether of not the trial Judge exercised' 
 the discretion soundly? 'What remains for us to consider 'is the' 
 question if there were such special circumstancfes as would justify- the- 
 direction that the costs should be borne by the plaintifEs. Is it not 
 the point that. the adjournment, was made wholly consequent upon the' 
 order foir inspection and therefdre you should not have to bear the' 
 costs?] That is the point, atfd' 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. (ffa7f/with him), for respondent: The cousent wMch^ 
 was given that there shoiild be an appeal does not go to the length' 
 of saying that the Appeal Coiift should substitute its discretion for; 
 that of the trial JudgCi— only that" there might be an appeal where. 
 otherwise there would not" be. Seein re Gilbert (1885), 3^ Ch'. T). 
 550; Young v> Thomas (1892), gCh; 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 tbi inake an order airowifigexperiftiential'w'drk' 
 to be done. [The Chiei' Justice intiinated that it was not' necessaiy' 
 to pursue that point further. Drake., J. : — In 'giving the judgmerit'in' 
 the Full Court the view in" rdy iniiid 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 :^-Thaf was 'my view" 
 also.] The other side' had -no right to assurae that under the Full; 
 Court judgment there was no likelihood 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 ;adjournpient as an 
 indulgence, but as a matter of strict right, and, it would Jiaveobeeo: 
 a, denial of justice to force us caa. . ■ 
 
 Cur., adv. ,vuU. ; 
 
 ' November 23nd,- 1898. 
 
 The judgment of the Court was delivered by' ' ' ■ • 
 
 Juagment. McCoLL, .C. J. :— Before trial, application was made by. the de- 
 
 fendants to Mr. Justice "Walkem for inspection ■ of the. place where 
 a flat fault is alleged by the plaintiffs to existi The learned Judge 
 was of the opinion that he ou^ht to make the order if he had power to 
 do so, ijut refused on tte ground: of waW of jurisd'ieti'on to make such 
 an order' in any circumstances. • ; - ' ; . .- . ... . •: > 
 
J.] , IRON MASK MINING. 00. V. OBNTRB STAR MINING CO. 365 
 
 . ..On appeal the Full Court decided in favour of the now respond- ^^^^^1899.^ ^^ 
 ents . upon the' question of jurisdiction, but held that they had not ^ __ 
 jShewn good and sufficient reason for the insjpecti'on, arid left them to Full Court. 
 apply for' it at the trial if, and "whenever; th6y slibuld appeat entitled mcColl, c.j. 
 •to if 
 
 ■. - ..The. trial having, afteriw.ards been. begun before the same learned 
 -Judge, and it appearijng to his. satisfaction, after some evidence had 
 ieen taken, that the inspection previously asked for was proper, he 
 -made an , order acpordingly upon the defendants' application. Th.e 
 plaintiffs upon this application claimed that, although 'the inspec- 
 iion might disclose physical indications apparently supporting the de- 
 fendants' 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 preclud- 
 ing the evidence which the' defendants expected to derive from the 
 inspeption, 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 de- 
 fendants in any event. It is from this portion of the order that the 
 present appeal has been brought. 
 
 Notwithstahdiiig that' counsel for' the r^pondents had undertaken 
 upqn the application for the order that in the event of an appeal 
 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 sonie mistake of law or misapprehension of 
 fact. In thg view I have taken, the appellants are not estopped by 
 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 
 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 wa,y — Supreme Court Act, see. 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 
 
366 
 
 MARTIN'S MINING CASES. [vol. 
 
 1899. understanding that there should be a special appeal by consent, such 
 November 22. as happened in the case of Burgess v. Morton (1896), A. C. 136. 
 FuLL^uRT. See the remarks of the Lord Chancellor, page 138: " It has been 
 McGoLL, C..T. 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) jurisdic- 
 tion." . ■ 
 
 The next question which arises is upon what ground did the learn- 
 ed Judge proceed in disposing of the costs of the adjournment ? And, 
 froin 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 
 Appellants 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 hack, to 
 him to make such order as he would have made if he had not ques- 
 tioned 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 ease as the present the result may 
 bo very different. If evidence has already been given, the inspeqtion 
 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 
 an inspection will be likely to disclose, there can, of course. 
 
I.] IRON MASK MINING CO. v. CENTRE STAR MINING 00. 36T 
 
 ordinarilj: be no good reason why inspection should be had. There ^ 1899. 
 ought to be at least a probability that the inspection will establish " "^•'j;^'' ■- 
 the position of one of the parties regarding a material disputed fact. Full Oouht. 
 If this does appear, to refuse the inspection would be to decline to moCoil, c. J. 
 pei'mit the procuring of evidence not otherwise obtainable which might 
 be decisive of the controversy. But if a reasonable oase haTing been 
 made for an inspection, the fact appears at the same time that the 
 result of other inspections may not improbably be to negative infer- 
 ences 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, other- 
 wise 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' application 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 will 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 ease. I cannot agree with the 
 course taken by the learhed 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 
 proper. If the costs had been made dependent upon the result of the 
 issue upon which the inspection was ordered, the ease of Forster v. 
 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 be- 
 tween the parties. The result of the disposition complained of is 
 
ggS MARTIN'S MINING CASES. [vol. 
 
 1899- _ that, even ii the appellants should suqceed upon the issus and succeed 
 
 Noyem^r 22.^^^^ ^^ reason of the inspections for which the adjournment was un- 
 
 ruLL CoDRT. doubtedly necessary, yet the appella-nts will inevitably lose tlieir owii 
 
 McOoLiT C..J., costs which the respondents' application has caused to be thrown away, 
 
 and must also pay the.costs of the. respondents.' That ^uch a rcsiilt 
 
 was necessary cannot be pretended, and, if not riecessar|y, it cannot, 
 
 I think, be right. 
 
 If the adjoumment'was reasonable for the purpose of aifording the 
 
 test which the plaintifEs desired to make of the inspection asked, by 
 
 the defendants, the circumstance ;that either party would or might 
 
 -benefit by the adjournment for other reasons, cannot, it seems to me, 
 
 affect the right of either party. 
 
 ' For the respondents it was urged that the adjournment was merely 
 an indulgence. But it was not' asked for as.such. . If so intended, I 
 see no reason why it should have been allowed at all, and in such case, 
 if granted^ the terms imposed would have been a matter of course, and 
 could, neither have aflGr£l,ed rooin for the discussion- before the learned 
 . Judge or this Court, nor have pogsibly. created any of the embarrass- 
 ment, felt bj. him. . Itwa^ also contended 'that the inspection order 
 did not change the case which the; appellants have to meet, but only 
 affected thei-r evidence, and that they ought to have gone to trial pre- 
 pared with, any evidence necessary to their case. It niay be remarked 
 that if such a rifle is, to be applied, it is equally applicable to both 
 sieves and would have disentitled t|ie respondents to an inspection order 
 at the stage when it was made. 
 
 , But why should the appellants have foreseen what the Full Court 
 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 ordered, 
 except upon the footing that this was not their, right but a privilege to 
 be paid for,? How could the appellants have profitably made the. 
 iijspections desired by them without first knowing the precise condi- 
 tions which the inspection ordered would disclose? Or why should 
 they have, incurred tlie risk of the expense of their inspections beino; 
 .thrown, away if the respondei5.ts did, not ask for and obtain the in- 
 spection ? 
 
 I am of opinion that the order should be varied by leaving the 
 costs to be dpalt with by the trial Judge upon the principles discussed 
 in Forst&r v. Farquhar, and that the costs of the appeal should lie 
 costs in the; cause. 
 
 Order vaned, costs in cause. 
 
 , Note. — ^As to form of order and enforcement of: see Star Mining Co. x. 
 ' Byron W.' White Mining Co., post, pp. 468, 513. 
 
1.] 
 
 DUNLOP V. HANEY. 
 
 369 
 
 DUNLOP V. Haket. 
 (7 B. C. 1,305). 
 
 Adverse Action — 2'itle — Onus of Proof — Conflicting Locations — Overlapping — 
 Measurements — Aiandowment — ilotioe of in Affidavit — lie-location. 
 
 Per Mabtin, J.: — In an adverse action if the plaintiff wish to attack the de- 
 fendant's title he must do so at the time of makiiig out a prima facie case for 
 his own title. 
 
 Where boundaries of conflicting claims are in question, the overlapping must 
 be proved by measurements taken on the ground. 
 
 The expression " adverse proceedings," in sec. 11 of the Mineral Act Amend- 
 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 Oold Commissioner. 
 
 Schomierg v. Eolden, ante, p. 290, approved. 
 
 Appeal from decision of Maetin, J., before whom this adverse 
 action was tried at Vancouver on 38th and 39th of July, 1899. It was 
 alleged that the Legal Tender mineral claim was overlapped by the 
 Pack Train and Legle (sic.) Tender, or its re-loe^tion the Legal 
 Tender fraction. 
 
 1899. 
 November 24. 
 
 Full Court. 
 
 Statement. 
 
 Davis, Q.C., for plaintiff. 
 
 Wilson, Q.C., and John Elliott, for defendant. 
 
 Gur. adv. vult. 
 
 Argument. 
 
 August 11th, 1899. 
 
 Martin, J. : — In the presentation of his case the plaintiff's coun- 
 sel has followed the course laid down in Schomberg v. Solden (1899), 
 6 B. C. 419, ante^ p. 390. 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 replj; the plaintiff must, if he attacks the 
 
 M.M.C. 24 
 
 Judgment 
 
 bfilow, 
 Martin, J. 
 
370 MARTIN'S MINING OASES. [vot. 
 
 1899. defendant's title on his pleadings, make such attack at the uame time 
 November 24 ^.^^^ j^^ makes out his own prima facie title. Further, quite irrespec- 
 FonCooRT. 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 Schomherg v. E olden, 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 frac- 
 tion) in dispute overlap either wholly or partially. The only evidence 
 is that of the Mining Kecorder, Kirkup. He stated that they covered 
 practically 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 
 groimd, 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 state- 
 ments without exact knowledge are quite insufficient, and that there 
 Judgment should be positive evidence that the claims are co-incident or overlap 
 below, to 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 measure- 
 ments 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 
 433, ante, p. 289, in regard to the necessity of measurements being 
 taken. The learned Chief Justice had earlier expressed his -opinion to 
 the same effect in another mining case, Waterhouse v. Liftchild 
 (1897), 6 B. C. 424 at 425, ante, p. 153, where he rejected the evi- 
 dence of a witness as to distances because " it did not appear that he 
 measured them." " It is," says Eoscoe, 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 allegation 
 is specifically made and as specifically denied in pleadings it is not 
 probability but proof that a Judge must require. The objection must 
 be sustained, and it follows that the relief sought cannot be granted 
 
I.] DUNLOP V. HANBY. 371 
 
 and the plaintiff's action must be dismissed, for, so far as the evidence j^^^^^^^^; ^^ 
 goes, the owner of the other claim is not shewn to have encroached — 
 upon his ground or otherwise interfered with his rights. But further ^"ll Cocrt. 
 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. 
 
 Kow 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 
 broad sense of the term, these are " adverse proceedings '' as contem- 
 plated by the Mineral Act. 
 
 I alsq 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 litigant. . 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 sec- 
 tion will have a very beneficial effect in putting an end to fictitious 
 titles and preventing mineral claims from being practically appro- judgment 
 priated without colour of right, is evident from the briefest consider- ,.''^1''^' 
 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 adniitted 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 35th, 1896. 
 
 But supposing it was not staked too soon. On 33nd June, 1896,, 
 Haney re-located the claim as the Legal Tender Fraction, filing 
 an affidavit containing these words : " That to the best of my know- 
 ledge 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 de- 
 fence, but it is shewn by the Mining Eecorder that a written permis- 
 sion 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 
 
372 MARTIN'S MINING CASES. [vol- 
 
 jjJovember 24 ^^^^^^lished his title to the Legle [sic] Tender or Legal' Tender Frae- 
 
 — ■ tion mineral' claims. 
 Full Coukt. Tj^g action will be dismissed without costs to either party. 
 
 Action dismissed. 
 
 Appeal. The defendant appealed^ and the appeal was argued at Vancouver, 
 
 on 34th ISTovember, 1899, before Walkem;, Deakb 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: — 
 
 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 
 Hauey, by w.ay of appeal from the judgment of the Honourable Mr. Justice 
 Martin, pronounced herein on the 11th day of August, 1899, and upon bear- 
 ing counsel for the above named plaintiff, and by consent of respondent (plain- 
 tiff), and it appearing that formal judgment hath not been entered but panties 
 consenting to proceed with appeal notwithstanding, this Court doth order and 
 adjudge that the plaintiff's' said action be as against the defendant Bdmbnd 
 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 pladntiff to. the 
 Pack Train mineral claim and the defendant to the Legle Tender or IJegal 
 Tender Fraction mineral claim; and this Court doth further order that the 
 plaidtiff 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 Maetin, J., remain undisturbed. 
 
 See remarks on this judgment in Dunlop v. Haney, post, p. 390, and Gelinas 
 V. Clark, post, p. 428 at 432. 
 
 As to defects in location : see list of cases in note to Manley v. Collom, post,. 
 p. 487. 
 
 As to measurements : see Bleekir v. Chisholm, ante, p. 112. 
 
 As to abandonment: see WUiiams Creek, dc, Co. v. Synon, ante, p. 1. 
 
 As to sec. 11 of 1898; see, also, notes to Ryan v. MeQuillan, ante, p. 289. 
 
 As to re-location without permission : see sees. 32 and 108 of Mineral Act, 
 and Granger v. Fotheringhami, ante, p. 71 ; Creelman v. Clarh, ante, p. 228 ; and 
 Pellent v. Almoure, ante, p. 134. 
 
I.] 
 
 NOBLE V. JBLANCHAED. 
 
 373 
 
 FOBLE V. BLANCHAKD. ^^ 1899- „„ 
 
 November 30. 
 
 (7 B. C. 62). ■ FuLiTc^URT. 
 
 Adverse Claim — Extension of Time after Lapse thereof fixed ty a Previotis 
 Order — Mineral Acts, 1898, sec. 9; 1899, sec. 13. 
 
 The time for filing affidavit and plan, in an adverse action, under the Mineral 
 Act and Amendments, may be further extended on an application made after 
 the lapse of the time fixed by a previous order. 
 
 Decision of McColl, C.J., affirmed. 
 
 Appeal by tdefendants to the Full Court from an order of Mo Coll, Statement. 
 C.J., pronounced 31st August, 1899, ordering that the time within 
 which the plaintiff might file their afBdaid.ts setting forth the nature, 
 boiiiindairies and extent of the adverse claim (vthe 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 'Wil- 
 liams, 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 Avas not commenced 
 until the 5th of August, and that he (Williams) intended that the 
 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, Deake and 
 Irving, JJ., on 29th September, 1899. 
 
 Wilsofij Q.C., and /. H. Senhler, for appellants : Chapter 33, sec. Argument. 
 9 of .the Mineral Act of IS&S, does not provide for an extension of 
 time within which to file plajis, and although ch. 45, sec. 13 of tthe 
 Affliendment of 1899, gives the Court jurisdiction to extend the time, 
 still sec. 20 of the same. Act excepts any rights flcqjuired under previous 
 Acts. ' The order of the 10th of March is a nullity as there was no 
 
374 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1899. jurisdiction to extend the time; see Attorney-General v. Lord Hotham 
 
 November 30. (iggs), 24 E. E. 31 at p. 29. After the time had elapsed there was 
 
 Full Oodkt. qq jurisdiction to extend it, see Doyle v. Kaufman (1877), 3 Q. B. D. 
 
 DrI^, J. 7. 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 y. Harris 
 
 (1897), 5 B. C. 229 at p. 232, ante, p. 137, and Kilbourne v. Mc- 
 
 Ouigan (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. G. 496, 
 ante, p. 84; In re Golden Butterfly Fraction and Countess Mineral 
 Claims (1896), 5 B. C. 445, anie p. 125; and Gusack 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 
 
 Judgment. Dbake, 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 re- 
 ferred to in sec. 36 to commence an action in the Supreme Court un- 
 less 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 condi- 
 tion 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 eh. 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. 
 
■I.] NOBLE V. BLANOHARD. 375 
 
 On the 1st of August the affidavit and plans were not filed; _3.nd ^^^ m^9.^ ^ 
 on the 18th of August a summons was taken out to extend the time. — 
 This was not heard until the 31st day of August, on which day the Fpll ConRT. 
 time was further extended to the 1st of September. It is this latter draki, J. 
 order which is appealed against. 
 
 The defendants contend that the extended time having run out 
 on the 1st of August, there was not power to further extend it after 
 the time then given had expired. 
 
 A point of a similar character was raised in Banner v. Johnston 
 (1871), 5 E. & I. Appeals at p. 170. In that case, under the Com- 
 panies Act, 1862, sec. 134, appeals may be had from any order of the 
 Court, subject however, to the restriction that no appeal shall be heard 
 unless notice shall be given within three weeks after the order com- 
 plained of has been made in the manner in which notices of appeal are 
 ordinarily given, according to the practice of the C^urt, unless the 
 time is extended by the Court of Appeal. The Lord Chancellor con- 
 sidered 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 valid, 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 
 is shewn for a further extension, it should be granted. 
 
 The case of the Oood Friday, &c.. Mineral Claims (1896), 4 B. C. 
 496, ante, p. 84, was cited as a direct authority in support of the 
 plainti^s' contention, and it is an authority for the order of the lOih 
 of March. In re Golden Butterfly Fraction and Countess Mineral 
 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 
 cause. 
 
 Appeal dismissed with costs. 
 
 Note. — This case overruled, in so far as it is an authority , for the order 
 being made by a Judge in Chambers, by Mnrphy v. Star Exploring and Min- 
 ing Co., post, p. 450. 
 
376 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1899. 
 December 16. 
 
 Irving, J. 
 
 Statement. 
 
 Hand y. Waeebn. 
 
 (7 B. C. 42). 
 
 Action to set aside Certificate of Improvements- — Crown — Fraud-:— Adverse Ac-' 
 tion — A Bar — Waiver — Mineral Act and Amendments. 
 
 An adverse claimant who neglects to bring an adverse action under see. 37 
 of the Mineral Act, cannot sue to set aside a certificate of improvements ou 
 the ground of fraud. 
 
 Semile, that unde* such circumstances the Crown alone is entitled to sue. 
 
 Action by the recorded owner of two mineral claims to set asida 
 the certificate of improvements issued to the defendants in respect of 
 the same claims previously recorded by them under different namo?. 
 On behalf of the plaintiff it was alleged that the certificate of im- 
 provements was obtained by fraud. The evidence shewed that the de- 
 fendants had employed a man to do assessment work, who fraudu-: 
 lently represented to the Mining Eeeorder 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. 
 
 Argument. Martin, Q.C., and W. S. Deacon, for plaintiff. 
 
 J. A. Macdoncdd, for defendants. 
 
 December 16th, 1899. 
 
 Judgment. Ieving, J. : — The plaintiff is the recorded owner of the Tin Dipper 
 and Dominion mineral claims, located on the 9th and 36th of August, 
 1897, respectively. The defendants are the recorded owners of the 
 Vanderbilt and Hand Fraction mineral claims, located on the 5th 
 and 23rd 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- 
 ants to do the assessment work on their claims. 
 
 The evidence at the trial shewed that the defendants had employed 
 a man to do this work, but instead of doing it he merely cleared out 
 some old workings on an abandoned shaft, and then represented to 
 the Mining Eeeorder that the necessary work had been done, and in 
 this way obtained a certificate of work, which was issued to the de- 
 fendants on the 38th of June, 1897. The defendants themselves 
 
I.] HAND V. WARREN. 377 
 
 were ignorant of this fraudulent representation, and remained so 1.899. 
 until after they had obtained a certificate ,of improvements by the ^°^"' ^"^ ®' 
 payment of $1,000 in C9,sh on the 10th of February, 1898. Irvino, J. 
 
 The plaintiff failed 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 ground 
 that the same was obtained by fraud. 
 
 By sec. 37 it is provided (1) that a certificate of improvements 
 when issued shall not be impeached in any Court on any ground ex- 
 cept that of fraud; (3) in case any person shall claim an adverse 
 right of any kind ... he shall within sixty days . . . com- 
 mence 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 
 obtaining 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 pre- 
 scribed a particular form of action for persons claiming an adverse 
 right of any kind that form of action (with its time limitations) must 
 be followed, and no other ; or it may be put on the two grounds com- 
 bined. 
 
 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. 327, seems to me to support the view I took. I think that 
 the proper method of attack by any one interested is by adverse ac- 
 tion, 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 similar 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 plain- 
 tiff, draws attention to the difference between the language used in 
 sec. 28 and that in see. 37, sub-sec. 1. 
 
 It is possible to explain this. Section 38 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 
 
.378 MARTIN'S MINING CASES. [vol. 
 
 December 16. 
 Ibving, J 
 
 iS, i(! ^°*i°Ji ^i^st 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. Bradlawghv. Clarke (1881), 
 7 Q. B. D. 38, and (1883), 8 App. Cas. 354; In re Weir (1898), 31 
 N". Sc. Kep. 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 plaintiffs certificate of work 
 was improperly obtained. I am able to decide the case without re- 
 gard to that poirit, 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 plaintiif 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. 
 
 Action dismissed. 
 
 Note. — See notes to Nelson and Port Sheppard Ry. Co. v. Jerry, ante, p. 
 161, and particularly Attorney-General v. Danlop, post, p. 408; deary t. Bos- 
 coifiitu, post, p. 506. 
 
a.] 
 
 BIcDONALD v. THE C. P. EXPLORATION CO., LTD. 
 
 379 
 
 McDonald v. The Canadian Pacifio Exploration Co., Limited. i899.- 
 
 December 19. 
 
 (7B. C. 39). . . Ma^.J. 
 
 1 
 Mines — Inspection of Metalliferous Mimes Act, B. 8. B. C. 1891, ch. 134, «6C. 
 2J — ThiiOcring — protection — Accident by Falling Rock — Statutory Duty of 
 Mine Ownet — Xegligcnce. 
 
 ■Section 25 of the Inspection of Metalliferous Mines Act was not intended to 
 impose unreasonable burdens upon the mine owner, and therefore he is 
 only required to use " reasonably practical " precaution against accidents 
 to miners. 
 
 Action tried at Nelson on 2nd November, 1899, before Martin, Statement. 
 ■J., without a jury. The facts sufficiently appear in the judgment. 
 
 Macdonald, Q.C., and Johnson, for plaintiff. 
 MacNeill, Q.C., for defendant. 
 
 Argument. 
 
 Cur. adv. vult. 
 
 December 19th, 1899. 
 
 Maetin, J.: — In this case the plaintiff sues the defendant com- Judgment, 
 pany, 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 
 was not securely timbered, in consequence of which alleged negli- 
 gence 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 a-ceident except the plaintiff, 
 and his account of it is not so precise as one would desire, though 
 perhaps as full 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 
 his 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 Janu- 
 ary 38th, 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 
 am satisfied the superintendent did not know, and had no reason to 
 suspect, that the place was dangerous, or in any way insecurely 
 
380 MARTIN'S MINING OASES. [vol. 
 
 1899. timbered, and I do not credit the evidence of the witness. Marquis, 
 — ' to the contrary — he itapressed me very unfavourably. The evidence 
 Martin, J. ghews 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 shevy 
 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 Kico mine to 
 protect the workmen, and that the superintendent has conscientiously 
 done his duty to the employees in this regard. I cannot help thinMng 
 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 
 bcj .and if the fall of rock were not so caused, then it must be re- 
 garded, in my opinion, as one of those accidents which happen des,pite 
 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, ch. 13^, 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 ipateriail." ^^ 
 
 It is argued that the effect of this rule is that unless it is reason- 
 ably impossible to timber a mine, and a rock drops from any cause, 
 and injury results, the mine owner is liable. 
 
 The operative words of sec. 25 are as follows : " The foUowiug 
 general rules shall, so far as may be reasonably practicable, be ob- 
 served in every mine to which this Act applies." 
 
 For the defence it is urged that the words " so far as may be rea- 
 sonably praetieaMe " restrict the operation of the rules, and that to 
 extend rule (20) to cover such a case as the present would be, m 
 
I.] Mcdonald v. the o. p. exploration go., ltd. 381 
 
 efEect, to make the defendant an insurer against accidents, a result ^^^^j 
 not contemplated by the Act. If the rule stood alone, without the ^^^^ 
 said words, it is plain that a stricter liability would be imposed upon Martin, J. 
 the defendant; the exact value of the particular expressions is not 
 easy to determine. It seems to me that they do not require the ruk 
 to be construed in a manner which would in practice place an un- 
 reasonable 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 nece'ssary for me to con- 
 sider 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. 
 
 Note. — For other cases under this Act : see Stamer v. Hall Mines Co., ante, 
 p. 314, and note, and McKelvey v. LeBoi Mimng Co., post, p. 477. 
 
382 
 
 MARTIN'S MINING OASES. 
 
 [VOL... 
 
 1899. 
 December 21. 
 
 Ibvino, J. 
 
 Statement 
 
 Argument. 
 
 Judgment. 
 
 Gibson v. McAiiTHUii 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 W., as agent for the plaintiff, located a frac- 
 tion 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-Rossland, before Irving, J., on the 6th 
 day of December; 1899. The facts sufficiently appear in the judg- 
 ment. 
 
 J. A. Macdonald, for plaintiff. 
 
 Hamilton, for defendants. 
 
 Ieving, J. : — This is an action brought by the Maggie Fraction- 
 mineral claim (located 3nd Ifovember, 1897, recorded 13th Novem- 
 ber, 1897), to adverse the defendants' application for a certificate 
 of improvements in respect of the Big Pour mineral claim, located 
 32nd April, 1895, recorded 39th April, 1895, and the St. Luke Frac- 
 tional 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 plaintiif established by the evidence of Wells that the No. 
 1 of the Big Four was 370 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 plain-- 
 tiff was entitled to the Maggie or whether it was the property of the 
 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 
 
I.] GIBSON V. McARTHUR. et al. 333. 
 
 sale with the name of the purchaser in blank in the bank, to be de- 1899. 
 livered out on payment of the purchase price. The defendants December 21, 
 bought, paid the money, and the bills of sale with their names in- Ibvins, .J. 
 serted 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 pur- 
 chaser 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' fraudu- 
 lent 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 
 HoUs V. Norion (1682), 1 Vern. 135, and Savage v. Foster (1723), 
 9 Mod. 35. 
 
 That I am in a state of doubt about the lona fides of the plaintiff 
 in the matter is not sufficient. The defendants' case 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 
 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 Ko. 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. Bach party to pay their own costs. 
 
 Judgment accordingly. 
 
 Note. — This case is included in this volume only because it appears in the 
 Brit. Col. reports, as above noted; it turned on a question of fact on the 
 allegation of fraud. 
 
384 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1899. 
 December 22. 
 
 Ikving, J. 
 
 Statement. 
 
 Pavier v. Snow. 
 
 i 
 (7 B. C. 80). 
 
 Mineral Claim — Locations, Senior and Jzinior — Location, Invalidity of — Over- 
 , .lapping — Certificate of Work — Irregularity — Free Miner's Certificate^Ad- 
 missiiUify of Certified Documents — Mineral Act, sec. 2ti. 
 
 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 certificatts of work recorded 
 thereon. 
 
 Even 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 
 location ; the junior location in the life of the senior was " a mere irregu- 
 larity," cured by sec. 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 CBrtificate 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 remain-, 
 ing facts sufficiently appear in the judgment. 
 
 Argument. Nelson, for plaintiff. 
 
 W. 8. Deacon, for defendant. 
 
 Cur. adv. vult. 
 
 D^eranber 22nd, 1899. 
 
 Judgment. Irving, J. : — The plaintiff's case admittedly depends on his estab- 
 
 lishing that there was in existence, on or before the 13th of May, 
 
I.] PAVIER V. SNOW. 385 
 
 1895 (the date of the location of the Little Bess), a mineral claim 1899. 
 called the Tulair. December 22. 
 
 The evidence adduced on that point is that of Mr. Burnett, P.L.S., ^''^'™g, J. 
 who in 1899, when he was sent out to survey the plaintiff's claim, 
 found a post which he assumed at first to be the No. 1 of the Tulair, 
 and on which was legible the following words : 
 
 " located 750 & 750 Thomas Clark." 
 
 He then proceeded northerly, and found another post, on which he was 
 
 able to make out " Dul mineral claim located 
 
 25th April, 1895." 
 
 He was not quite certain whether it was Dul or Tul. His evi- 
 dence was sought as to whether or not the " D" or " T " was a capital 
 letter; but as the question was a leading one I disallowed it. , 
 
 He found another post at or about the place where one would 
 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. 
 
 I do not think any of the witnesses carry the matter further. 
 
 Mr. Burnett thought at one time that the first mentioned post 
 was the No. 1; but later, when confronted with the record of the 
 Tulair, which shewed that the No. 1 was at the south end of the 
 location line, he called the first mentioned post the No. 2. This is 
 not a very serious alteration, but it shews, I thinlc, that Mr. Burnett 
 was guided not so much by the posts, which he assumed belonged to 
 the claim he was seeking to establish, and the inscriptions thereon, as 
 he was by the record and the posts of the other claims placed on the 
 ground long after the date of the Tulair location. 
 
 The conclusion I arrive at is that he is unable to-day to put his 
 hand on a particular post and say " This I know is the No. 1 post of 
 the Tulair." 
 
 In my opinion, Mr. Burnett's evidence, like the evidence of all 
 ■experts, must be received with great caution, and as the whole case 
 turns on it I do not feel justified in deciding the case in the plain- 
 tiff's favour. That there was a Thomas Clark in Kootenay in 1895, -^ 
 holding a licence, a free miner's, dated 13th April, 1895, and num- 
 bered 57,147, I think was proved. 
 
 It was also proved that a Thomas Clark, No. 57,147, recorded a 
 mineral claim called Tulair, situate in or about the place in question. 
 
 But it was not established with reasonable certainty that (1) the 
 ground was properly staked; (2) that assuming the ground had 
 been properly staked it was identical with the ground mentioned in 
 the record. 
 
 M.M.O. 25 
 
386 MARTIN'S MINING CASES. [vol. 
 
 1899. The defendant, on the other hand, produces certified copies of 
 
 Deceniber22. j.gj,^,j.^g^ ^^j^^g of g^jg shewing the title to the Little Bess from 1895. 
 Irving, J. to thiS date; certificates of work issued to Mm or his predecesSfflrs in 
 1896, 1897, 1898, and the last on 20th April, 1899. This last certi- 
 ficate in itself is sufficient answer to the plaintifE^ 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 piaintiif. 
 
 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 par- 
 ticular 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 sec. 21 that a certificate of work in respect of a certain 
 claim was recorded on a certain day, and such certificate, can be ad- 
 mitted without ten days' notice under the Evidence Act. 
 
 That under sec. 119, copies of instruments recorded under sec. 
 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. Cldrk, post, p. 428, by Manley v. 
 Collom, post, p. 487. 
 
 The other rulings as to evidence have been followed at nisi prius. 
 
I.J CALDWELL ET AL. v. DAVYS. 387 
 
 Caldwell et al. v. Davys.* isoo. 
 
 February 22. 
 
 Advene Acilxin — Onus of Proof — Title — Junior Location — Duty of Counsel to Full Coubt. 
 press Objection at Trial — New Trial — Mineral Act and Amendments. 
 
 In adverse proceedings the onus of proof is on the adverse claimant, who has 
 
 to give affirmative evidence of his own title, and if he is the junior locator 
 
 establish his case in detail. 
 Counsel for adverse claimant in deference to a remark of the trial Judge, did 
 
 not complete the proof of his own title.' 
 Held, that he should have pressed to be allowed to complete it, but under the 
 
 circumstances there should be a. new trial. 
 
 Appeal fiom judgment of the Chief Justice in an adverse action Statement., 
 tried at Helson on 28th June, 1898. 
 
 Gur. adv. vult. 
 
 June 28th, 1898. 
 
 MoCOLL, C.J. : — At the trial, which was held at ISTelson on the Judgment 
 28th of June last, I came to the conclusion that I must find for the MoColl, C.J. 
 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 op- 
 portunity, 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 Eegistrar 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 re-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 validity of a certificate of work thougli 
 issued after the expiration of the statutory period, and the defendant'? 
 
 * Partly reported in 7 B. C. 156. 
 
388 
 
 MARTIN'S MINING OASES. 
 
 [VOL. 
 
 1900. 
 February 22. 
 
 Full Court. 
 
 Drake, J. 
 
 neglect to obtain a certificate of work in respect of the Eed Star 
 was the main ground relied upon by the plaintiffs. 
 
 I think, therefore, that for the reason that I am bound by that 
 authority, I must give judgment for the defendant. In the circum- 
 stances 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 Full 
 Court, which has been arranged to be held at Vancouver about the 
 middle of next month. 
 
 Appeal. From this judgment the plaintiff Caldwell appealed to the Full 
 
 Court and the appeal came on for argument at Vancouver on 24th 
 January, 1900, before Dhake^ Ieving and Martim, JJ. 
 
 Argument. MacNeill, Q.C., for appellant (also counsel in trial below). At 
 
 the trial I was proceeding to prove title, inscription on posts, &c., 
 and to do that produced the record. I then proposed to prove location 
 affidavit, when the Chief Justice remarked that I had proved suflBcient 
 for a prima facie case, and to leave it to the other side for cross- 
 examination, and that if anything turned upon the matter I could 
 xeturn 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 ap- 
 pellant must prove all things required by the Act to establish their 
 junior location: Schomberg v. Holden (1899), 6 B. C. 419, ante, p. 
 290; Mineral Acts, sees. 27 and 131, and sec. 11 of the Act of 1898; 
 we raised all the objections to location on the pleadings; there was 
 here no iona fide attempt to comply with the Act. 
 
 February 22nd, 1900. 
 
 .Judgment. Deakb^ J. : — This is an adverse action. The defendant Davys 
 
 was the original locator of the Eed Star mineral claim, and a con- 
 siderable sum of money had been expended in working the same for 
 lime used in the Hall smelter. 
 
 Davys recorded the claim on the 27th of January, 1897, but failed 
 to obtain a certificate of improvements until the 5th of February, 
 1898. In the meantime, one M. M. G-rothe recorded the same ground 
 on the 28th of January, 1897, under the name of the Fair Play. The 
 plaintiffs are now the assignees of Grothe. 
 
 The defendant by his defence alleged that this location of the 
 Fair Play was invalid; first, that it was not located on unoccupied 
 ■ground; second, that no legal stakes were posted thereon; third, the 
 
I.] CALDWELL et al. y. DAVTS. 389 
 
 inscriptions on the stakes were insufficient ; fourth, no blazed line ; isoo. 
 fifth, no mineral in place discovered. — 
 
 ^ The plaintiffs' claim being thus attacked, they have to establish ^"'■';;^ort. 
 their rights. Grothe says he put in posts, a No. 1, and No. 3, and Irvixc;, J. 
 put the usual inscription thereon, and put the discovery post by the jiARns, j. 
 wharf. This is all the evidence he gives of compliance with the Act 
 as regards location. 
 
 By sec. 131 the onus of proof is on the adverser and by sec. 11 
 of 1898, the adverser had further to give 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 learned 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, and 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 Justice, it appears that neither he 
 nor the stenographer had any note with reference to the plaintiff's alle- 
 gation, but the Chief Justice has no doubt but that some such remark 
 was made which might have affected the evidence adduced. Under 
 these circLTmstances we think there should be a new trial, but in doing 
 so we must not be taken as laying down a rule that where counsel 
 neglect to enforce their rights by pressing on the trial Judge their 
 objection to any ruling of his so that the objection is clearly raised, 
 he can obtain a new trial. It is laid down in numerous eases thai 
 a new trial will 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. Under 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. 
 
 Irving, J. : — I concur. 
 
 Maktin, J. : — I agree that there should be a new trial. 
 
 iVeu; trial ordered: 
 
 Note. — It should he borne in mind that the defendant was the senior locator, 
 otherwise this judgment might be deemed to be in conflict with Schomberg v. 
 Molden, supra, q. v., and notes thereto. Cf. Clarh v. Eaney, ante, p. 281. 
 
390 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1900. 
 April 28. 
 
 Dkake, .J. 
 
 Statement. 
 
 Argument. 
 
 DuNLOP V. Hanet. 
 
 (7 B. C. 307). 
 
 lies Judicata — Affirmative Evidence of Title — Estoppel — Sec. 11, Mineral Act, 
 
 1898. 
 
 Held, that the order of the Full Court reported ante, at p. 369, operated to pre- 
 vent 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 plaintifE. 
 
 Hunter, for defendant. 
 
 April 38th, 1900. 
 
 Judgment. DiiAKE, 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 I 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, 
 
 except this claim, was taken possession of by Mr. Pulton as Official 
 Administrator. The claim itself was taken charge of by the Gold 
 Commissioner. By sec. 131, Consolidated Statutes, eh. 82, such 
 claim was not open to occupation during the claim owna-'s last ill- 
 ness, or after his decease, and the Gold Commissioner might cause 
 the property to be duly represented, or dispense therewith at his op- 
 tion 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.] DUNI^OP V. HANEY. 39 J 
 
 and assessment work from 31st March, 1891, down to Slid July, 1895, 1900. 
 I need not now stop to discuss. The plaintiff from that time was ^^^ ' 
 paid $100 a year in lieu of doing assessment wort down to 1899. Vxak^, J. 
 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 Augnst, 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 plaintiffs claim, and in fact precludes him from liti- 
 gating it. 
 
 On the 6th of August, 1895, the defendant advertised his inten- 
 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 again^ the present defendant and one Enslow, who had 
 located the Olive^t 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 
 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 
 under sec. 37 of the Eevised Statutes, because it was an adverse action 
 by Dunlop against Haney. It has to be borne in mind that Haney 
 was at this time adversing the Pack Train, and his action was pend- 
 ing, yet he apparently was not satisfied with this, but made an ap- 
 plication on behalf of the Legle Tender so as to compel the present 
 plaintiff t6 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 
 rights. Then the defendant Haney, feeling doubtful about the Legle 
 Tender claim, staked, in 1897, the Legal Tender Fraction on the 
 same ground as the Legle Tender. 
 
 On the 19.th of June, 1897, an action numbered D. No. 7, weis 
 commenced by the plaintiff against the defendant Haney, W. Y. 
 Clark, Jerry Spelman, and Napoleon Fitzstubbs, as Gold Cojnmis- 
 sioner. This action was to adverse the claim of W. Y. Clark, y^^p 
 
392 MARTIN'S MINII^G CASES. [vol. 
 
 1900. was the assignee, of Enslow, with reference to the Olivett mineral 
 ?!!_ ■ claim, so far as it encroached on the Pack Train, and for a declaration 
 Dbake, J. of title as against all the defendants to the ground covered by the 
 Pack Train, aind 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 suiEciently 
 proven. At the same time he found that the defendant Haney had 
 not established his claim to the Legle Tender or Legal Tender Frac- 
 tion ; but no reference appears to have been made to the Olivett claim, 
 which was the main ground of action, and no reference was made lo 
 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 judg- 
 ment, 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 defen- 
 dant 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 posi- 
 tion as the other claims. 
 
 To establish res judicata there must be a decision on the subject 
 matter of the 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 
 adjudication. If there had been it would be a case of transit in rem 
 judicatam, and as such would act as an estoppel against all parties, 
 and prevent them impugning the accuracy of the decision in any subse- 
 quent proceedings. It is true the question of title was before Mr. 
 Justice Martin, and he decided that the plaintiff had not shewn his 
 boundaries, and that the defendant had not shewn any title. This 
 portion of the judgment was varied by the Full Court as above. 
 
I.] DUNLOP V. HANEY. 393 
 
 it ' 
 
 Mr. Hunter relies on In re May (1885), 28 Ch. D. 516. That im 
 case decided this, that when a petition had been heard and decided on ^p"' -^- 
 its merits a fresh petition could not be presented for the same object Dbake, J. 
 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 afiBrmative 
 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 judg- 
 ment shall ^be entered without costs. If the effect of this clause is to 
 debar the parties who have litigated the question of ownership of con- 
 flicting 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 ren- 
 dered in accordance with this section, as I think the point now in 
 issue can be dealt with on its legal effect. I consider that when the 
 !F*ull Court expressly excepted from Mr. Justice Martin's judgment 
 any declaration of title as to the ownership of the claims in question 
 they, by implication, 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. Almoure, ante, p. 134; 7'Vj/ v. Botsford, post, p. 520. • 
 
 As to sec. 11, 1898, see notes to Ryan v. McQuillan, ante, p. 289. 
 
394 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1900. 
 May 23. 
 
 Drake, J. 
 
 Statement. 
 
 Argument. 
 
 Cranston et al. v. The English Canadian Co. 
 (7 B. C. 266). 
 
 Mineral Claim — Locations, Senior and Junior — Invalidity — Re-location — Over- 
 lapping — 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 ex- 
 tent 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 abandomneint. 
 
 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. Macdonaldj for defendants. 
 
 May 33rd, 1900. 
 
 Judgment. DRAKE, J. : — This is an adverse action. The plaintiffs claim to be 
 
 entitled to the Union Maid, a claim in Trail Creek Mining Division 
 which was a re-location of the Chelsea claim. The parties admit 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 Union 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 with- 
 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 valid 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.] CRANSTON ET AL. V. THE ENGLISH CANADIAN CO. 395 
 
 evidence that no certificate of work was produced subsequent to ■ 1900. 
 13th March, 1897, but that is sufficient. On the other hand I do not ^^^23. 
 see how this fact helps the defendants as the time they located and Dkakk, j. 
 recorded the Sea Gull, the Chelsea was a valid claim. The certifi- 
 cate of work under sec. 38 of the Act of 1896, assumes the title up to 
 that date to be perfect and therefore the defendants' rights to 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 plaintifl:s 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 aban- 
 doned 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 made and a record void in part at that time cannot 
 be made valid at a subsequent period by the lands reverting to the 
 Crown. The land in question is therefore not part of the Sea Gull 
 claim, but was unoccupied land at the time the Union Maid was 
 located. 
 
 The defendants not having any rights to this piece of ground, I 
 do not see by what right they can contest the Union 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. 
 
 Note. — ^As to re-location of existing location : see Manley v. Collom, post, p. 
 487 ; in note to which will be found a list of cases on defects in location. 
 
 As to abandonment and reversion to Crown : see Willmms Creek, &c., Co. 
 V. Synon, ante, p. 1. 
 
396 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1900. Geutchfield v. Harbottle. 
 
 May 31. 
 Full Court. (7 B. C. 186, 34i) . 
 
 Mineral Claim — Transfer — Failure to Record — Notice — Parties — Bight of Sub- 
 sequent Locator — -Free Miner's Certificate — Waste Lands of the Crown — 
 Mineral Act, sees. 9, Ji9, 50. 
 
 Failure to record a conveyance under sec. 49 of the Mineral Act does not restilt 
 in the claim becoming waste lauds of the Crown open to location. 
 
 There is an apparent conflict between sees. 49 and 50, which can be reconciled 
 by construing sec. 50 as meaning merely that a Court should not afford re- 
 lief before record of conveyance. * 
 
 Decision of Maktin, J., reversed. 
 
 Statement. APPEAL by defendant from Judgment of Martin^ J., in an adverse 
 action tried at Nelson on 16th February, 1900. 
 
 Argument. GalWier and P. E. Wilson, for plaintiff. 
 
 8. S. Taylor, Q.C., for defendant. 
 
 Cur. adv. vult. 
 s 
 
 March 31st, 1900. 
 
 Martin^ J. : — In May, 1897, one Beadles located and duly record- 
 ed the May Day mineral claim, and six days after location, by bill of 
 sale conveyed a half -interest therein to the defendant. The bill of sale 
 was not recorded till the 29th day of April, 1898, and in the mean- 
 time' two things had happened, (1) Beadles' free miner's certificate 
 had lapsed (on July 33rd, 1897), and (3) the plaintiff, a free miner, 
 had on the 30th of October, 1897, relocated the May Day as the 
 Equalizer claim. 
 
 Section 9 of the Mineral Act declares that " on the expiration of a 
 
 free miner's certificate the owner thereof shall absolutely forfeit all his rights 
 
 and interests in or to any minei-al claim, &c., Provided, nevertheless, 
 
 should any co-owner fail to keep up his free miner's certificate, such failure 
 shall not cause a forfeiture or act as an abandonment of the claim, but the 
 interest of the co-owner who shall fail to keep up his free miner's eertificate 
 shall, ipso facto, be and become vested in his co-owners pro rata, according to 
 their former interests " 
 
 Applying this proviso to this case the result is that on the lapse of 
 Beadles' certificate his half-interest in the May Day became vested in 
 
 Judgment. 
 
 below. 
 Maktin, .T. 
 
I.] GEUTCHFIELD v. HARBOTTLE. 397 
 
 his former co-owner, the defendant. If the defendant had then re- 1900. 
 corded his bill of sale his position would have been unassailable, but jL- ' 
 he did not do so till some considerable time after the plaintiff had Foix Court. 
 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 
 record, and not from the date of such document." 
 
 Under this section as between the parties to the instrument there 
 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 Mc- 
 Creight in Athins 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 Judgment 
 the plaintiff located the claim must suffer the penalty prescribed by Martin,' J. 
 the statute, which is that he can only ask this Court to give effect to 
 such conveyance 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 
 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. 
 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. 
 It may be that the section has operated hardly on the defendant in this 
 case, but it is necessary for the protection of the public that it should 
 be maintained in its entirety.- 
 
 Taking the above view the question as to whether the plaintiff had 
 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 defendants counsel in support of his 
 case, but I cannot see that it applies to the circumstances to be dealt 
 with here. 
 
 Judgment for plaintiff. 
 
MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1900. 
 May 31. 
 
 Fdll Court. 
 
 Appeal. 
 
 Argument. 
 
 The defendant appealed and the appeal was argued at Vancouver 
 on 30th May, 1900, before McColl, C.J., Walkem and Irving, JJ. 
 
 ;S^. 8. 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 per- 
 sons 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 
 Eeeorder's office shall contain a real and complete record of all acts 
 affecting the title to a mineral claim. The intention is that any per- 
 son desiring to obtain a title to lands to be used for mineral purposes, 
 shall be aUe to ascertain by an examination of the ground and in- 
 spection 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 p'ersons acquiring title by location and per- 
 sons acquiring title by conveyance. In the first case the location must 
 be recorded within the time specified by the Act. In the second case 
 the conveyance must be recorded within the time specified by sec. 49. 
 Similar provisions exist in the case of certificates of work, and cer- 
 tificates 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 appellant'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 
 had conveyed to a purchaser who also relies upon the records, could it 
 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 
 
I.] GRUTOHFIBLD v. HABBOTTLE. 399, 
 
 records? But clearly the result of the appellant's contention would moo. 
 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 ^vh\. ConBi. 
 would be subject to the same attack which is made here. The general moColl, c. J.. 
 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 Legisla- 
 ture intended that it should operate) in such a way as to lend itself to 
 fraudulent devices to the prejudice of honest locators aiiid purchasers. 
 The construction brought forward by the appellant would subject (in 
 eases 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 appellant 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 
 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-compliance 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 pf our 
 Mineral Act, viz., to secure the benefits of the mineral lands to persons 
 holding and developing such lands in accordance with the provisions 
 of the Act. He referred to Belk v. Meagher (1881), 104 U. S. 279- 
 at p. 284. 
 
 Cur. adv. vult. 
 
 May 31st, 1900. 
 The judgment of the Court was delivered by 
 
 McCoLL, C. J. : — The facts are fully stated in the judgment of -Tudgmemi!. 
 Mr. Justice Martin. 
 
400 MARTIN'S MINING CASES. [vol. 
 
 May^si There is apparently a conflict between sees. 49 and 50 of the Act. 
 
 — ' The former provides that an assignment though not recorded. within 
 
 FullCohrt. ^j^g ^-jjjg limited shall be valid as between the parties, and the latter 
 
 MoCoLL, C.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. Go. v. Jerry, ante, pp. 161, 187 ; and Stiisei v. 
 Brown, ante, p. 195; Alexander v. 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. 
 
I.] 
 
 RAMMBLMEYEE et al. AND POWERS v. CURTIS et al. 
 
 401 
 
 Rammblmeyee et al. v. Curtis et al. 19oo. 
 
 June 1. 
 
 Powers v. Cdrtis et al. DbIke, j. 
 
 (8 B. C. 383). 
 
 Mineral Claim — Adverse Action — Locations — Senior and Junior — Invalidity — 
 Re-location — Overlapping — Grown — Reversion — Evidence — Certificate of 
 Work — Irregularity — Affirmative Evidence of Title — Mineral Act and Amend- 
 ments. 
 
 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. 
 
 Where the onus is on the defendant to prove valid location he cannot do so 
 simply by the production of a certificate of work issued the day before the 
 trial. 
 
 Neither party having established his claim, judgment was so entered without 
 costs under sec. 11 of the Mineral Act, 1898. 
 
 Adverse actions tried together at Rossland, before Drake, J., in statement. 
 May, 1900. In the first action the writ was issued on 23rd February, 
 1900, and in the second action on ST'th February, 1900. The plaintiffs 
 by their statement of claim asked for a declaration that the Townsite 
 and Latest Out claims were valid 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, delivered 
 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 n,ull 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 
 invalid and illegal location. In their reply the plaintiffs alleged 
 amongst other things that the Parrot and Defiance No. 1 Fraction 
 were not properly staked, and that no mineral in place was ^ound 
 on either of them. The remaining facts appear in the judgment. 
 
 MacNeillj Q.C., and W. S. Deacon, for plaintiffs. 
 Abbott, for defendants. 
 
 Arguinent. 
 
 Cur. adv. vult. 
 
 26 
 
402 MARTIN'S MINING CASES. [vol. 
 
 june'i. June 1st, 1900. 
 
 Drake, J. Dhake, J. : — These are adverse actions in consequence of the de- 
 
 Judgment, f endants having given notice of application for certificate of improve- 
 ments for the Defiance No. 1 Fraction, and were tried together. I 
 will deal with the Eammelmeyer 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 fade a properly 
 recorded claim, and the chain of title was in all 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. Under 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 pro- 
 perly located, and that no mineral was found in place. Stuzzi, a wit-. 
 ness called 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 de- 
 stroyed all the posts, but in my opinion the evidence offered is sufii- 
 cient 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 sur- 
 veyor, 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 re- 
 location, and K. L. Burnett on the 30th of April, 1890, located the 
 ground as Parrot No. 2, and abandoned the same on the 3nd 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. 3 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. 3, and 
 although Parrot No. 2 is not in existence as a claim yet it is pro- 
 bable that the posts or some of them remain, and they have been the 
 cause of some confusion. 
 
I.] RAMilELMEYER et al. AND POWERS v. CURTIS ET AL. 403 
 
 The Defiance No. 1 Fraction was recorded on the 19th of Decern- 1900. 
 ber, 1899j and the contention is that it was unoccupied ground, having ' ^^ 
 been part of the abandoned Parrot claim. On the other hand the Brake, J. 
 owners of Townsite claim consider that they are entitled to the area 
 of land in dispute, because it was covered by their original location, 
 and the fact that the Parrot claim lapsed placed the Townsite claim 
 in the same position as if it had never existed. I do not assent to 
 this proposition. The Townsite claim had no rights whatever over 
 the Parrot land at the date of their record, and the boundary of the 
 • Parrot must be treated as the boundary of the Townsite, and when the 
 Parrot claim lapsed the ground reverted to the Crown and not to the 
 Townsite. The plaintiffs then attack the validity of the location of 
 the Defiance No. 1 Fraction, putting the defendants to the proof of all 
 the statutory preliminaries. The defendants sought to put in evidence 
 a certificate of work issued the day previous to the trial. It was 
 obvious that they sought to set xip this certificate as a shield against 
 any irregularities in their proceedings. I refused to admit it under 
 the circumstances, and the defendants must therefore rely on their 
 location and record. 
 
 According to the record this claim was located by Kenneth L.. 
 Burnett, on the 17th of December, 1899, and described as follows : 
 "Bounded on the south by the Fool Hen and Golden Horn, and on 
 the east by the Golden Horn, Spitzee Fr. et al." Burnett was a free 
 miner. The evidence as regards the posting is that of E. E. Young, 
 who states that he lafd out Defiance No. 1 Fraction, not that he 
 placed the posts or notices; he says the posts were there and notices 
 visible. He further says he made the survey on 23rd November, and 
 finished it on the 4th of December. This survey therefore was made 
 before the claim was located, and it was on this survey that the cer- 
 tificate of work which was sought to be put in was applied for. I 
 fail to see how this evidence assists the defendants as to correctness 
 of the Defiance No. 1 Fraction posts. They were not put up till 
 the 17th of December, if at all. The defendants' attention was dir- 
 ectly challenged to the posting of this claim and the notices required 
 to be placed thereon by the plaintiflis' reply and defence to the counter- 
 claim. No evidence was produced as to the posting of the Defiance 
 No. 1 Fraction, aiid under sec. 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 in- 
 sufficient, there will be judgment accordingly, without costs. 
 
404 MARTIN'S MINING CASES. [vol. 
 
 1900. 
 June 1. 
 
 Dbake, J. 
 
 PowEKs V. Smith Cuktis et al. 
 
 In this case the plaintiff is owner through a chain of title of the 
 Latest Out mineral claim, which was located on the 7th of March, 
 1895, and recorded on the 19th of March, in the same month sub- 
 sequent to that of the Parrot claim. 
 
 This claim was located two days prior to the Townsite mineral 
 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 proved. 
 A portion of the ground overlapped the Pool Hen, but this is not in 
 question^ as the Pool Hen is a Crown granted claim. 
 
 A further portion of the ground overlapped the Parrot which was 
 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 beings 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 fails 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 tliis 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 defective location and re-location on valid location ; see 
 Manley v. Collom, post, p. 487, and list of cases in note thereto. 
 As to sec. 11 of 1898: see notes to Ryan v. McQuillan, ante, p. 289. 
 
I.] 
 
 BEAMISH V. WHITEWATEE MINES, LIMITED. 
 
 405 
 
 Beamish v. Whitewater Mines, Limited. .Tu^'e. 
 
 (7 B. C. 261). Deake, J. 
 
 County Uourt Mining Jurisdiction — Damages — Practice — Prohibition — Mineral 
 Act, sec. in, sub-sec. 2. 
 
 An action for damages for personal injuries received by an employee in a 
 metallifei'ous mine may be brought for any amount in the County Court. 
 
 Motion for prohibition. The plaintiff was a miner in the employ Statement. 
 of defendants and brought an action in the County Court (mining 
 Jurisdiction) for $3,190.00 damages for personal injuries. JDefend- 
 ants moved for prohibition on the grounds that the amount sued for 
 was beyond the jurisdiction of the County Court, and that no jurisdic- 
 tion is given the County Court in the action by reason of sub-sec. 2 of 
 sec. 117, ch. 135,- E. S. B. C. 1897. 
 
 Bodwell, Q.C., for the motion. Argument. 
 
 Gassidy, contra. 
 
 Drake, J. : — The action is properly brought in the County Court Judgment, 
 under see. 117 of the Mineral Act' and I dismiss the motion with costs, 
 but on defendants' application I make an order transferring the action 
 to the Supreme Court, costs of such transfer to be costs in the cause. 
 
 Note. — See Burk v. Tunstall, ante, p. 61, and note thereto. 
 
406 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 WOO. 
 June 26. 
 
 Drakb, J. 
 
 Statement. 
 
 Argument. 
 
 Judgment. 
 
 Ee St. Eugene Mining Co. and the Land Eegistey Act. 
 
 (7B. C. 288). 
 
 Precious Metals — Grant — Conveyance — Sale of Land. 
 
 Wbere the Crown has granted the precious metals in a parcel of land, a con- 
 veyance of such parcel of land by the grantee of the Crown to a third person 
 in the ordinary form, will pass the precious nletals although not specially 
 mentioned. 
 
 Eefeeence to a Judge in Chambers under sec. 83& of the Land 
 Eegistry Act, by S. Y. 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. Eep. 701; Moore v. Shaw (1861), 79 Am. Dec. 133; and The 
 Attorney-General of British Columbia v. The Attorney-General of 
 Canada (3 889), 14 A. C. 295 at p. 302, ante, p. 52.' 
 
 The Registrar-General in person. 
 
 June 26th, 1900. 
 
 Deake^ J. : — This is a qxiestion submitted to the Court under sec. 
 82b of the Land Eegistry Act as to the effect of certain deeds of con- 
 veyance. 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 claim, 
 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 surface 
 rights, subject, however, as aforesaid. 
 
 In the subsequent deeds of conveyance from the grantees to the 
 present applicants the land was conveyed without any general words. 
 
I.] Re ST. EUGENE MINING CO. AND LAND REGISTRY ACT. 407 
 
 and without any mention of mines and minerals, precious or base, and 1900. 
 the Eegistrar is doubtful as to the effect of these deeds. June26. 
 
 ' The use of the term " land " in a conveyance of freehold is suffi- Drakk, .7. 
 cient to pass mines or minerals. See Townley v. Gibson (1788), 2 
 Term Eep. 701. The precious metals are not considered as partes soli 
 in an ordinary freehold grant, and would not pass thereby because they 
 are not vested in the subject, but in the Crown. Here the Crown has 
 expressly parted with them to the grantee. The question now comes 
 whether (the conveyances not expressly mentioning the precious 
 metals) they will pass as well as mines and minerals. In my opinion 
 mines and minerals pass with the term " land." The precious metals 
 are part of the Eoyal prerogative, and the Crown having parted with 
 this prerogative to the subject, the ordinary deed of fee simple con- 
 veying the land will also convey all that the grantor then had vested in 
 him, including the precious metals. 
 
 Note. — See Attorney-Oeneral of British Columbia v. Attorney-Oeneral of 
 Canada, ante, p. 52; Bainiridgie y. Esquimau and Nanaimo Ry. Co., ante, p. 98. 
 
 As to reservation of minerals in contract to sell land, and mistake and agency, 
 see Hobbs v. Esquimau c& Nanaimo Railway Go. (1898) 29 S. 0. 5J1 ; 6 B. C. 228. 
 
408 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1900. 
 August 15. 
 
 Martin, <T. 
 
 Statement. 
 
 Argument. 
 
 AtTORNET-GeNEEAL V. DUNLOP. 
 
 (7 B. C. 312). 
 
 Vertificafe of Improvements — Crown Suit to Set Aside — Fraud — Application 
 for Certificate— Judgment — Delivery and Pronouncement of — Mineral Act, 
 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 com- 
 pliance 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 iona fide pursuing what they deem, however erroneously, 
 to be their rights do not come within the meaning of the word fraud in said 
 sections. 
 
 The application to the Minister of Mines under sec. 10 of the Mineral Act 
 Amendment Act, 1899, need not be in writing. 
 
 Semhle, 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 improva- 
 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 MaetiNj J., on 29th and 
 30th June, 1900. 
 
 Cassidy, for plaintiff. 
 
 Duff, for defendant. 
 
 Cur. adv. vult. 
 
 August 15ih, 1900. 
 
 Judgment. Maktin, 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. 
 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 
 15th, 1899 {ante, at p. 344), on the motion to dissolve the injunction. 
 
I.] ATTOUNEY-GENEKAL v. DUNLOP. 409- 
 
 except that the language in the case of Carroll et al. v. Provincial ifloo. 
 
 Natural Gas and Fuel Company of Ontario (1894), 16 P. K. 518, ^"Pistis. 
 
 now cited to me, differs widely from that used in the undertaking in Maktin, J. 
 question. 
 
 Then as 'to the question as to when my judgment (on the issues 
 raised at the trial in Dunlop v. Haney, ante, at p. 369), was pro- 
 nounced or delivered. After the case was heard at Vancouver, I re- 
 served judgment, and after further consideration arrived at my deci- 
 sion, which was finally reduced to writing, dated, and signed on the 
 afternoon of August 11th, 1899 (Friday). That same evening I en- 
 closed the said judgment in an envelope with a covering letter directed 
 to the District Eegistrar at Vancouver, and placed the said envelope 
 on a table in my room at the Law Courts, Victoria, whence my let- 
 ters are in due course taken to the post every evening. The letter 
 should have reached the District Eegistrar early the next morning, 
 according to the proper course of the then mails, but strange to say 
 the ofiiee receipt stamp of the Vancouver Registry, 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 believe, 
 from the absence of the letter, that it occurred in the Vancouver 
 Registry. On the one hand it is contended that judgment was not 
 pronounced or delivered till the 15th, and on the other it is urged that 
 the 11th is the date. There is no rule of Court defining what consti- 
 tutes pronouncing or delivering a judgment which is reserved after 
 trial. In the ease of a judgment of the full Court the matter is regu- 
 lated by statute — sec. 93 of the Supreme Court Act. The writ in 
 Dunlop V. Haney issued out of the Victoria Registry, but the case was 
 tried at Vancouver. Our present system of registries is peculiar 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 Registrars." The office of " Ee- 
 gistrar," under that specific term, exists now only in relation to the 
 Full Court — Supreme Court Act Amendment Act, 1899, sec. 14. If 
 a case be tried by a Judge on circuit in, say, Kamloops, and judg- 
 ment is reserved, it would be practically 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 delivering judgment in like manner. In such cases my 
 practice has been, after completing my judgment, to send it to the 
 District Registrar 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 
 
Martin, J. 
 
 410 MARTIN'S MINING CASES. .[vol. 
 
 August' 15 °^ ^^^ judgment just as much as the reading of the judgment in open 
 Court, and it has for many years been so considered. I do not say 
 that it may not also be pronounced in other ways, not necessary now to 
 consider. In the present case when I finally settled, signed, dated, 
 and posted (or its equivalent) my judgment on the 11th of August, 
 I had finally determined the matter so far as I was concerned — in 
 other words I had pronounced judgment on that day, and a party to 
 the action should not be prejudiced by any delay in the registry, the 
 post-ofBce or otherwise. Supposing that after putting that letter in 
 the mailing place in my rooin I had suddenly dropped dead, could 
 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 judgnient had already taken effect. As was said in Holtby v. 
 Hodgson (1889), 34 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 Encyclopsedia 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 writ- 
 ing. It is also frequently applied to the oral or written opinions of the 
 Judges pronounced when directing judgment to be entered in a par- 
 ticular way." 
 
 See, also, in Ontario, Kelly v. Wadeet 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. Sehkler, a member of the firm of Wil- 
 son ■ & Senkler, the agents for the defendant's solicitor, Mr. John 
 Elliot, in that action, and that affidavit contains the following para^ 
 graph : 
 
 "(3) That judgment was pronounced herein on the 11th day of 
 August, 1899." 
 
 In this present action it is sought to impeach a certificate of im- 
 provements, and it is founded upon sees. 37 (as amended) and 28 of 
 the Mineral Act. That portion of sec. 37 which is primarily relied 
 on is — 
 
 " (1) A certificate of improvements when issued as aforesaid shall not be 
 impeached in any Court on any ground except that of fraud." 
 
 Section 28 is : " 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 VFork 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 upon fraud." 
 
X] ATTORNBY-GEXECAL v. DUNLOP. 411 
 
 I 
 It is contended by the Crown that in case any fraud is shewn under 1900. 
 sec. 37 the curative properties of see. 28 vanish^ as against the Crown, " " ^"^* ' 
 and the question of antecedent irregularities is then at large. Perhaps Martik, J. 
 that ma}- be so, but before that stage is arrived at fraud must be 
 proved. It will not, I think, be disputed that parties strenuously 
 yet iona fide pursuing what they deem, however erroneously to be 
 their rights do not come within the meaning of the word " fraud " in 
 either section. Has the defendant herein done anything more ? If he 
 has, it is contained in the affidavit of his agent Harwell, sworn on the 
 10th of August, 1899. It is alleged that that aflBdavit is u.ntrue in 
 fact in that it states that the defendant (1) "is the recorded owner," 
 and {'2) " in undisputed possession " of the Pack Train mineral claim. 
 As to the first ground, counsel for the Crown practically admitted 
 what is evident, that Parwell was really swearing to a question of 
 law, and that, in effect, the statement was, in the result, accurate, for 
 the defendant is the recorded owner in his capacity as administrator of 
 his brother's estate. The point raised as to Garrison's recorded, 
 but overlooked, one quarter interest is satisfactorily explained hj the 
 evidence of the Gold Commissioner and the witness Taylor. 
 
 Then as to the second ground. When the affidavit was made in 
 Victoria on the 10th it was not the fact that Dunlop was then in 
 undisputed possession; my judgment in the then pending case of 
 Dunlop V. Ilaney was not delivered till the following day, but so far 
 as said judgment was concerned the statement was accurate when the 
 affidavit reached the Gold Commissioner some days later: the test 
 is not was it true at the time it was sworn to, but was it true when 
 it was communicated to the official to be acted on? But it is quite 
 clear that in any event the Gold Commissioner was not misled in the 
 present instance; his whole evidence goes to shew that he acted on 
 his own thorough and exceptional knowledge of the case, and that 
 Farwell made that affidavit at his suggestion as a formal compliance 
 with the Act : I am quite unable to say there was any deception. 
 The legal dispute so far as the Mineral Act was concerned (which is 
 what the Gold Commissioner alone took cognizance of, and then only 
 when the proceedings were on file in his office) had been adjudicated 
 upon, for the time at least, and Dunlop was in a position to demand 
 his certificate, and it was issued and forwarded to the Minister of 
 Mines under the circumstances detailed by the said official. I am 
 unable to fiud that there has been any fraud here, and assuming that 
 cither the Gold Commissioner or Parwell was mistaken in his view 
 of the state or result of the litigation, that is not surprising when it 
 is borne in mind how very complicated that litigation has become. 
 
 So far I have not alluded to the letter and telegram of the Minister 
 of Mines, dated the 11th and 14th of August, respectively. I need 
 only say that in view of the statement of the Gold Commissioner that 
 
412 MARTIN'S MINING CASES. [vol. 
 
 A ^^ 15 ^^ ^^ before got written instructions from the then Attprney-Gen- 
 — ■ eral not to issue the certificate, but that after getting the said later 
 Martin, J. communications he did so, I am of the opinion, that with the knowr 
 ledge the Crown had of the circumstances, this action cannot be main- 
 tained. 
 
 I have not overlooked the objection that the requirements of sec. 
 10 of the Mineral Act Amendment Act, 1899, in regard to the appli- 
 cation to the Minister of Mines, have not been complied with. It is 
 only necessary to say that there is nothing that requires such appli- 
 cation to be in writing, and I find that verba.1 application was re- 
 peatedly made, and that otherwise the objection is not supported by 
 evidence. 
 
 The action should be dismissed with costs. 
 
 Action dismissed with costs. 
 
 Note. — See note to Nelson and Fort Sheppard v. Jerry, ante, p. 161, and 
 deary v. Boscowita, post, p. 506. 
 
X] 
 
 WISE V. CHRISTOPHER et al. 
 
 413 
 
 Wise v. Cheistophee et al. 
 
 1900. 
 September 5. 
 
 Mineral Claim- 
 
 -Changing Location — Void Location- 
 Fraud — Sec. 28 — Title. 
 
 ■ Swinging " u Claim — Martin, J. 
 
 Where the location of a claim has been fraudulently changed from Its original 
 position it is void, sec. 28 of the Mineral Act has no application and cannot 
 be invoked in support of a so-called location which never existed. 
 
 Adverse action tried at the Assizes at Atlin before Maetin, J.j Statement. 
 on 6th September, 1900. 
 
 For the purposes of this report it is suiJBcient 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. Macdonellj for defendant Clay. 
 
 t 
 
 At the conclusion of the evidence the question of fact was deter- 
 mined in favour of the defendants, whereupon the plaintifE sought to 
 rely upon the plea that all defects in title were cured by sec. 38, he 
 having recorded certificates of work; which point walls reserved for 
 further argument which took place at Victoria on 7th February, 1901. 
 
 Jenns and Grant, for plaintifE. 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 establish not being that which he located he cannot suc- 
 cessfully invoke sec. 28. I declare that his location so, far as it con- 
 flicts 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, p. 487. 
 As to defects in location, see list of cases in note to Manley v. Collom. 
 See also Gleary v. Boscoivitz, post, p. 506. 
 
 Argument. 
 
 Judgment. 
 
414 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1900. 
 October 31. 
 
 Irving, J. 
 
 Statement. 
 
 Argument. 
 
 Nelson and Fokx Sheppaed Ey. Co. v. Dunlop. 
 
 (7 B. C. ill). 
 
 Certificate of Improvements — Adverse Claim — Bar — Crown Grant — Injunction 
 — Waiver — Mineral Act and Amendments — Policy of Mining Acts. 
 
 A Crown grantee of land, qua land, cannot obtain an injunction to prevent tlie 
 owner of a mineral claim who has obtained a certificate of improvements from 
 obtaining a Crown grant thereunder, even though the objection is only to 
 the form of the Crown grant. 
 
 The policy of the Mineral Acts is to compel persons claiming adversely to an 
 applicant for a Crown grant to begin action before the certificate of improve- 
 ments is obtained. 
 
 Motion for injunction argued before Ieving^ J., on 30th October, 
 1900. The facts appear in the Judgment. 
 
 Martin, Q.C., for the motion. 
 
 Bodwell, Q.C., contra. 
 
 Cur. adv. vuU. 
 
 Judgment. 
 
 October 31st, 1900. 
 
 Irving^ J. : — The defendant is the holder of a certiiicate of im- 
 provements dated 14th August, 1899, in respect of a mineral claim 
 located the 21st of August, 1890, recorded the 25th of August, 1890. 
 
 The plaintifEs, who hold a Crown grant dated 8th March, 1895, 
 issued ujider the provisions of the Nelson and Fort Sheppard Railway 
 Subsidy Act, 1892, of certain lands in Kootenay described in the 
 schedule to the said grant, but from which said grant there is excepted 
 "lands held prior to the 23rd of March, 1893, as mineral claims" — 
 obtained ex parte from the learned Chief Justice an injunction re- 
 straining the defendant Dunlop from applying for a Crown grant to 
 the Pack Train mineral claim and from receiving the same until the 
 23rd of October, and until the motion then to be made to continue 
 the injunction shall have been heard and determined. 
 
 The plaintiif now by consent moves to continue the injunction to 
 the hearing. At the argument it was conceded that the defendant was 
 entitled to a Crown grant of some 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 receive 
 
I.] NELSON & FT. SHEPPARD RY. CO. v. DUNLOP. 4X5^ 
 
 whatever surface right is properly attachable or incident to a Crown 1900. 
 grant issuing under the circumstances of this case. October 31. 
 
 The application must be refused because the plaintifis have not i»ving,j. 
 been prompt. The policy* of the Mineral Acts is to compel persons 
 claiming adversely to an applicant for a Crown grant, to come into 
 Court before the certificate of improvements is obtained, which certi- 
 ficate is to shew on its face what the applicant shall in the opinion of 
 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, 
 Gqmberwell (1883), 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 
 improvements was issued. 
 
 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 application is refused with costs. 
 
 Application refused with costs. 
 
 * See Atkins v. Coy, ante, p. 88, and notes thereto. 
 
 .Note. — See Attorney-General v. Dunlop, ante, p. 408; Hand v. Warrcii,. 
 ante, p 376 ; Cleary v. Boscowitz, post, p. 506. 
 
416 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1900. 
 December 19. 
 
 Full Court. 
 
 Statement. 
 
 Andeeson et al. v. Godsal. 
 (7 B. C. 404). 
 
 Mechanics' Lien — Mineral Claim — Bequest or Instance of Owner - 
 Option — Cook — Practice — Affidavit. 
 
 ■Bond — 
 
 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 those 
 " at the request " of the owner in sec. 4. 
 
 A cook cannot have a lien. 
 
 Observations upon improper aflSdavits. 
 
 Decision of Foein, Co.J., reversed, Irving, J., dissenting. 
 
 Appeal by defendant from the following judgment of Porin, 
 Co.J., in an action (tried Sth January, 1900) to enforce mechanics' 
 
 liens. 
 
 Judgmt-nt 
 
 below, 
 
 FOKIN, Co.J. 
 
 February 2nd, 1900. 
 
 This is an action brought to enforce mechanics' liens for work 
 done on the Little Phil mineral claim. 
 
 One Thomas A. Coleman, took what is called a working bond on 
 tlie 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 $35,000.00 from the net 
 proceeds as the purchase price of the mine. Coleman was to mail 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 
 the Mechanics' Lien Act, R. 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 
 residenqe of the claimant and owner was not sufficiently stated. The 
 claimants are w.orking men, who after leaving the mine, came to Nel- 
 son and through their solicitors filed the liens. I am of opinion that 
 
 *It was also provided by the agreement that Coleman might include as part 
 of the expenses of working the claim, $100.00 a month for his services as super- 
 intendent, and either party was at liberty at any time to employ a mining 
 engineer to report and advise regarding the working of the claim, the expenses 
 thereof to be reckoned as part of the expenses of the mine.. 
 
I] 
 
 ANDERSOJSf ET AL. V. GODSAL. 
 
 417 
 
 in a small town like Nelson that the reeidejiee is sufficiently stated 1900. 
 as residing in Nelson. These men had no place of regiaejice in tl^e ^^"^'^ ^^■ 
 town, living at hotels and restaurants from day to day. The owner Foll Couet. 
 is stated as of Pincher Creek, N.W.T. It is, I am sure, a much jjccJ^ C j_ 
 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 un- 
 paid 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, tbe word owner is 
 defined. 
 
 In Holdm v. Bright Prospects Gold Mining and Development Co. 
 (1899), 6 B. C. 439, ante, p. 393, the Full Court has decided that a 
 lien for mining work dope can be claimed. 
 
 Section 4 provides for work in a mine and sec. 7 enacts that the 
 owner of lands having knowledge is deemed to have authorized tlie 
 improvement (as to meaning of improvement see sub-sec. 4, sec. 3). 
 
 Coleman say^ 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 miij- 
 eral claim. I accordingly gave judgment for the plaintiffs with costs. 
 
 The appeal came on and was partly argued at Vancouver before Appeal. 
 McCoLL, C.J., Walkem, Irving and Maetin, JJ., on 38th and 39th 
 May, 1900. The Court requiring further argument on some points, 
 the appeal was re-argued at Vancouver, on 83rd November, 1900, be- 
 fore McCoLL, C.J., Drake, Irving and Martin, JJ. 
 
 Davis, Q,C., and Whealler, for appellant. Argument. 
 
 Duff, for respondents. 
 
 Cur. ad/v. vuU. 
 
 December 19th, 1900. 
 
 McColl, C.J. : — The defendant, a mine owner, gave to one Cole- judgment. 
 man an option to buy it for $36,000. 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 
 «mployed. No other prpvision was made for the wwkipg of the mine. 
 
 M.M.C. 27 
 
418 MARTIN'S MINING CASES. [vol. 
 
 1900. The plaintiffs are labourers, and claim liens for work done in the 
 
 December 19. ^jj^^^ while employed by Coleman in working it under the agreement. 
 Full Court. He did not exercise his option. 
 
 McCoLL^ C..T. It is not clear upon the notes of the evidence whether the work 
 was stopiQg 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 none 
 of them worked at the express request of the owner, and that no re- 
 quest by him can be implied in the circumstances. Section 4 there- 
 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 
 case of work actually done at the instance of the owner and so wiping 
 out the provision in sec. 4. But this would be to make the benefit 
 of the Act wholly illusory, for the owner in order to escape altogether 
 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 
 intended to include, work done at the instance of the owner already 
 provided for by sec. 4. I know of no principle upon which an enact- 
 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 having 
 worked at the request of a supposed owner, should be in a better posi- 
 tion than if the work had been done at the instance of the owner him- 
 self. 
 
 It seems to me plain that sec. 7 only applies where the owner has 
 not authorized the construction of the building or other improvement, 
 and was intended to provide for the case of work done under an agree- 
 ment with a supposed owner, and to place persons engaged in such 
 work in the like position as regards a lien as if the supposed owner 
 was the actual owner whenever the latter, knowing that an improve- 
 ment was being made upon his land, not under any agreement with 
 himself but at the instance of some person assuming to act as owner, 
 stands by saying nothing. 
 
 I have not thought it necessary to discuss the case of the cook, who, 
 admittedly, cannot recover. 
 
 I must remark upon the circumstance that a form of affidavit com- 
 mon to all the cases in appeal was apparently adopted for the purpose 
 of bringing the claimants within the Act without regard to the facts. 
 It seems to me that the trial Judge in such a case might properly 
 require some explanation at the trial, and, failing a satisfactory ex- 
 planation, deal further with the matter. 
 
1] ANDERSON et al. v. GODSAL. 419 
 
 Deake, J. : — The defendant is the owner of a mining claim known ifloo. 
 as the Little Phil mineral claim. On the 1st of June, 1899, he entered °«<=«^'' ^^ 
 into an agreement with Thomas W. Coleman to sell the claim on cer- ^^^^ Coukt. 
 tain conditions. Coleman had leave to enter and extract ore, and keep drakk, J. 
 at least ten men constantly employed, and the net value of the ore 
 was to he 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 
 liens against the mine. The question is whether under the construc- 
 tion of the Mechanics' Lien Act Godsal's property is liable for the 
 liens. 
 
 First I will 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 mine 
 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 
 occupigd 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 request 
 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 God- 
 sal 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 mort- 
 gagee 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, liable for liens 
 unless he gives notice of non-responsibility. To construe this sec- 
 tion as meaning that any ownei* could avoid the Act altogether by 
 giving notice, would render the Act void. To construe it so that 
 
420 MARTIN'S MINING CASES. [vol. 
 
 19Q0. un^er am circumstances the work will be held to be done at the 
 
 ___ ■ instance of the owner, whether he requested it or not, conflicts with 
 
 FuLLqonKT. gee. 4. I think the meaning of the section is limited to thos,e cases 
 
 Ikving, j. where when improvements are done upon land by mistake the owner 
 
 Mart" t ®^^^*^^ ^J ™ 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 t^i^ 
 owner and the person claiming any interest in the land is in the di§-: 
 junptive, 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 defead- 
 ant. 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. 
 
 Ieving^ 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, exteniJ 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 landMn 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 in- 
 spection of Godsal's engineer, with power to Godsal to take possession 
 if he was dissatisfied with the work. How can it be said that this 
 work was not done for Godsal's direct benefit? 
 
 Maetin^ J., concurred with the Chief Justice. 
 
 Appeal allowed with costs. 
 
 Note. — As to when obtaining pf a, certificate tijat work has been performed 
 is a condition precedent, see Leroy v. Smith (1901), 8 B. C. 292. 
 
 In Davis v. The Crown Point Mining Go. (1902), 3 O. L. R. 69, the 
 Divisional Court came to. the same de;cisjon respecting a cook's lien. 
 
I.] CENTRE STAR MIN. CO. ET al. v. BRIT. COL. SOUTHERN RY. CO. 
 
 42i 
 
 1901. 
 January 19. 
 
 Co. — 
 
 Martin, J. 
 
 In ke Water Clauses Consolidation Act. 
 Centre Stab Mining Co. et al. v. Beit. Col. Southern Ey. 
 
 (8B. c. 17). 
 
 Practice — Water Uccord-— Appeal — Time — 'Notice — Bight of Parties ' Affected 
 to Intervene — Water Clauses Act. 
 
 Anyone affected by a decision appealed from under sec. 36 of the Water Clauses 
 Consolidation Act; may be let in on the hearing of the appeal even though 
 the month for giving notice of appeal has expired. 
 
 Such person may make his application on the hearing of appellant's motion for 
 directions. 
 
 Motion for directions as to hearing of petition, under see. 36 Statement. 
 of the Water Clauses Confeolidation Act, to set aside a water record 
 granted by the Gold Commissioner at Nelson to the B. C. Southern 
 Eail*ay Company. The record was subject to thfe rights of the city 
 of Eossland, the holder of a prior record. 
 
 Oalt, for the Ceitre Star and War Eagle Mining Companies, for Argument, 
 the motion. 
 
 Daly, Q.C., for the Le Eoi, a mining company, not served with 
 the petition, but affected by the decision appealed from, asked for 
 Mve to Appear and be heard on the appeal under sub-sec. (f) of see. 
 36, ^hen 
 
 MacNtill, Q.C., for the B. C. Southern, objected that the applica- 
 tion was premature and if made at all should be made on the hearing 
 of the appeal. 
 
 The objection was overruled. 
 
 Daily then read material shewing Le Eoi Company was affected. 
 
 MacNeill : The month allowed for appeal has expired and anyone 
 not Mving given a notice of appeal within the month should n6t now 
 be let in. As ho 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 
 will result, or if a plaintiff is barred by a statute, parties will iiot be 
 joined. See Annual iPractiee 143, and The Germanic (1896), !P. 84. 
 
 Barnard, for the city of Eossland. 
 
 Per Curiam: — Let the appeal be heard at Eossland on 18th Judgment. 
 J'ebruary — on oral evidence. The Le Eoi Company is entitled to be 
 heard on the appeal as the limitation of one month does not extend 
 to it. 
 
 Order accordingly. 
 
422 MARTIN'S MINING CASES. [vol. 
 
 1901. In re Water Clauses Consolidation Act, 1897. 
 
 February 22. 
 
 MoCoLL, C.J. War Eagle Oonsol. Mining and Dev. Co., Ltd. et al. v. Brit. 
 
 Col. Southern Ex. Co. et al. 
 
 (SB. C. 374). 
 
 Water Record — Application for (a) ty Mining Company to Gold Commis- 
 sioner, (6) hy Industrial Company to Land Commissioner — Pending Applica- 
 tion — Jurisdiction — Notice of later Application to prior Applicant — Water 
 Notice — Posting " in office " — Evidence and Procedure on Water Application 
 — Water Clauses Consolidation Act, 1897. 
 
 ft'here an application for a record of water for mining purposes is pending 
 before a Gold Commissioner, an application 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 usually used for such notices, in a hall leading 
 to the rooms occupied by the 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 take evidence, 
 but where it is contested he should have the evidence taken in shorthand. 
 
 Statement 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 Grold Commissioner at Eossland written permis- 
 sion to apply for record of water from Murphy Creek and Eoek Creek, 
 and they thereupon made application for the same by posting the 
 requisite notices of their application returnable before the said Gold 
 Commissioner, on 10th September, 1900. Before the return of the 
 ■application the petitioners learned that the Corporation of the city 
 of Eossland (holders of a prior record) and the British America 
 Corporation were interested therein, and at their request the applica- 
 tions were adjourned until 13th September, when a further adjourn^ 
 ment took place until 10th October. On 26th September, the solicitors 
 for the railway company, the city of Eossland, the War Eagle and 
 
I.] WAR EAGLE MINING CO., LTD. v. B. C. SOUTHERN R. W. 00. 423 
 
 Centre Star Companies and others held a conference, when the sub- 1901. 
 jeet of pending applications for water records was discussed, and all "°'''^^^^" 
 parties expressed the view that some equitable arrangement should MoOoll, C.J. 
 be come to whereby each party interested could secure its reasonable 
 requirements. For statement of proceedings at this meeting see post, 
 p. 424. All parties met again on 10th October, before the Gold Com- 
 missioner, when the petitioners' applications were adjourned until 
 the 16th of November. On 8th October, the railway company ob- 
 tained from the Assistant Commissioner of Lands and Works at Nel- 
 son, 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 
 notice posted "in the ofiBce" of the Assistant Commissioner at Nelson 
 was posted on a notice board in the hall leading to the room or rooms 
 occupied by himself and his staff. On 13th November, pursuant to 
 the notices, the railway company applied to the Assistant Commis- 
 sioner, and the grant appealed against was made. The record stated 
 that the water was to be used for domestic, mechanical and industrial 
 purposes, in connection with the smelter and other plant and ap- 
 pliances belonging to the company at the town of Trail, and for pur- 
 poses incidental thereto. At the same time the railway company ap- 
 plied for and obtained records of 400 inches of water out of Stoney 
 Creek and Trail Creek. 
 
 Paragraphs 16 and 17 of the appellants' petition were as follows : 
 
 " (16) Your petitioners allege, and the fact is, that on the hearing 
 of the said application at Nelson no evidence was furnished by or 
 on behalf of the respondent railway company; (1) As to the volume 
 of unrecorded water in said Murphy Creek available 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 
 and corporation parties interested in the said application, had notice 
 of the terms of such application or of the date thereof, or of the time 
 on which it was made. 
 
 " (17) The points of law relied upon by the appellants were as 
 follows: (1) The furnishing of evidence upon each of the matters 
 mentioned in paragraph . No. 16 hereof was required by the Water 
 Clauses Consolidation Act, 1897, sees. 13, 14 and 18, and was as 
 regards each matter a condition precedent to be observed by the re- 
 spondents before the said record could lawfully be granted; (2) that 
 by reason of the absence of such evidence the respondent Commisr 
 si oner had no jurisdiction to grant the record; (3) that it was the 
 duty of the respondent company to adduce such evidence, and having 
 
424 MAtil'IN'S MINING CASfcS. [Vol. 
 
 ,19<!1- failed to do so, the record otigM to be cancelled; (4) that the pto- 
 e r^^ . ggg^^gg j^efore the respondent Commissiofier failed to shew the 
 MdCoiiL, C.J. ainount of water required by the respondent compa.py, and yet they 
 have obtained grants Of an enoflnotis amount of water comprising* 
 all, and more thaia a,ll, the availa.ble water in or hear Ebsslaiid, 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 Mthotit notice to 
 your petitioners was, under the cif CTiinStances, a gross breach of faith, 
 and for this reason also, the record, upon equitable grounds, Should 
 be cancelled." 
 
 The appeal was argued at Rossland, on 33nd February, 1901, 
 before McColl, C.J. 
 
 ObU, for the War Eagle and Centre Star Companies (appellants) . 
 
 Davis, K.C., and MacNeilt, K.C., for the Railway Company- (re- 
 spondents) . 
 
 Abbott, for the city of Eossland (respondents). 
 
 Daly, K.C., for the Le Eoi Company.* 
 
 At the conclusion of the argument His Lordship delivered judg- 
 ment 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 J. 
 understand it, to the parties, that a final determination of their 
 rights should be had, as soon as possible, I shall 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 com- 
 plained of and now appealed against. And further, that Mr. Gait's 
 
 Note. — The statement made by Mr. Qalt was as follows : : 
 " In referencis 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. Aiioft and dated the 24th day of September, 1901. This 
 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. Alhott will corrpct 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 
 Bagle and Centre Star Companies, and assisted in posting two of the notices 
 fifteen miles froii here. I was satisfied from looking ovet the streams them- 
 selves that there was ample water for everyone. I made that statement to the 
 g&nemen present at that meeting, and thonght that if we could only arrite 
 
 *Let in as subsequent applicants by order of Maktin, J. — see ante, p. 421. 
 
I.]— War eagle mining CO., ltI). v. b. c. Southern r. w. go. 425 
 
 statement as to the facts taken down by the stenographer, with refer- . ^^''^- o, 
 erice to this matter, is correct. For the appellants, Mr. Gait forcibly ^ ^i!f_ 
 utged that the notice posted up on the ilotice board in the hall lead- MoColi,, C.J. 
 iirg to the room, or one of the rooms, occupied by the Assistant Com- 
 missioner and his statt, was not jJbsted in accordance with the require- 
 ment of the Act, not having been posted up in the room or one of 
 the rooms. The word " office " as used in the Act in its ordinary 
 sense, simply means a place where the public business devolving upon 
 the Assistant Cotaimissioner, is transacted. It eanndt, therefore, be 
 cOiifined to any one particular room or rooms ih which the Assistant 
 Commissioner himself or his staff may be found during the office 
 hours of the day. Assuming that he himself had been accustomed 
 to use a portion of the hall for the reception bf the public at stated 
 tittes for the transaction of some kind of business, there can be no 
 dbtibt that such use would make that portion of the hallway, a part 
 of his "office" within the meaning of the Act. It appears to me 
 perfectly clear that all 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 meaiiiiig of the Act. 
 ifdw, what has happened here? The board in question has always 
 bteli publicly recognized and used for the purpose of posting up the 
 notices in question and is the only place, and the Assistant Commis- 
 sittner himself Would necessarily use such portion of the building, and 
 uSe this board for the purpose of perusing these notices when it wottld 
 be necessary to do so, and this being the case, it seems to me perfectly 
 clear that I cannot give effect to this objection. 
 
 at some equitable arrangement instead of fighting over the water, it would be 
 better for all parties concerned and for the City of Rossland, that there was 
 nothing for us to have a fight over if we could arrive at an understanding. Of 
 course that statement can be verified. It was the opinion of every one of us , 
 
 wlio were there then at that meeting, and the only reason that we did not 
 adopt some line of action by which we could equitably arrange for a distribu- 
 tion of the water was that Mr. Daly, who represented the Le Roi Company, was 
 unable to be present and therefore it was suggested that the meeting should be 
 adjourned over until Mr. Daly was able to coiie, and this was agreed to. 
 
 " Mr. Davis : Who represented the British Columbia Southern Railway Com- 
 pany? Mr. Qalt: Mr. J. A. Macdonald. 
 
 "Mr. Davis: Do you state that he made such an agreement as that? Mr. 
 Qalt: I do not state that jthere was any absolute agreement, it seemed to be 
 sa'ti'sfactory to everybody. 
 
 " Mr. Davis: Did Mr. Macdonald do anything binding the British Columbia 
 Southern Company? Mr. Gait: Only to appear in the same friendly attitude 
 that all parties assumed on that occasion. Then in two or three weeks someone 
 undertook to go over to Nelson and make an application there, without notify- 
 xhg Any of us. We did not take any further steps because we had the pri*r 
 application and we thought the matter would stand simpler as it was. 
 
 " Mr. Davis: Did the British Columbia Southern apply for any adjournment? 
 Mr. GoH.- Not that I am sVir6 of." 
 
426 MARTIN'S MINING CASES. [vol. 
 
 1901. ^ Mr. Gait further urges that he should have been specifically noti- 
 
 e ruary -. g^^ ^^ ^^^ ^^^^ ^^^ place when the proceedings before the Commis- 
 MoCoiL, O.J. sioner at Nelson were to be carried on. This is a question of some 
 difficulty, but in my opinion, the Act does make this necessary. Sec- 
 tion 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 applica- 
 tions." 'Now, Mr. Davis very forcibly contended that sec. 18, sub- 
 sec. 2, which does in terms, provide for notice to parties jn interest, 
 cannot possibly have reference to the record in question, the proceed- 
 ings 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 
 more consideration, I think that this affords no reason for the Com- 
 missioner deciding the matter behind their backs. The diificulty. has 
 arisen, of course, from the circumstance that these two Commissioners 
 have conflicting power, and that there is no provision made in the 
 Act for them to keep each other informed as to applications pending 
 before them. There is no doubt in this case that tlie applicants knew 
 of the pending application of the appellants when they continued 
 the proceedings for their record, and I think it is a fair inference 
 from the evidence that the Commissioner at Nelson was ignorant of 
 such application, but whether so or not it does not materially affect 
 the matter as I view it. 
 
 I think I ought to refer the matter of the records back again to 
 the Commissioner at Nelson for the purpose of enabling 'him to con- 
 sider the alleged rights and interests of aU other persons, parties 
 now before the Court on the present appeal, upon due notice to them 
 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 
 made in any way necessary to meet the equities as they may appear 
 upon a fresh consideration of the case, as justice may require it. 
 
 With reference to the point urged by Mr. Gait that the Commis- 
 sioner should have taken evidence, I do not think that this is neces- 
 
I.]— WAR EAGLE MINING CO., LTD. v. B. C, SOUTHERN R. W. CO. 427 
 
 &ary where the application is not contested, as for all that appears i90i. 
 the Commissioner, by personal examination of the place or other ^ ''I^ ' 
 means, may have satisfied himself as to the propriety of granting the MoOoll, C.J. 
 record applied for. 
 
 I may add that I think in a contested matter the Commissioner 
 ought to have the evidence ever before him, taken in shorthand, 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 inci- 
 dental 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 Com- 
 missioner, or Commissioner, will stand over to be brought before any 
 Judge who is competent to deal with it, as soon as possible. 
 
 Judgment accordingly. 
 
 Note. — See Colvmhia River Lumber Go v. Yuill, ante, p. 64, and note 
 thereto; also post, pp. 46(^ 465. 
 
428 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1901. 
 March 5. 
 
 Full ConRT. 
 
 Statement. 
 
 Gelinas et al. V. Clark. 
 
 (8 B. C. 42.) 
 
 Mineral Claim — Locations, Junior and Sen^r — Re-Locatiori — Invalidity — Over- 
 lapping — Grown^— Reversion — Lease from Groicn — Interest of Free Miner — 
 (Certificate of Work — Irregulariiy — Mineral Act, Sees. 24, 28, Si and 37; 
 J&ineral Act, 1898, sec, ll^Vomty Court Jurisdiotiofi — OtjecfiOn not 
 liaised Below — Appeal — Waivers-Mineral Act, sec. lit — County Courts Ad, 
 sec. 25 — Pleading in County Court. 
 
 A location made upon an existing valid location becomes a valid location on the- 
 
 lapse Of the senior location upon a certificate df work being recorded for the 
 
 junior location. 
 Unless objection is taken to the jurisdiction of a County Court at the trial, it 
 
 will Cot be considered in appeal. 
 Ill milling cases in the County Court, though there are no pleadings, yet special 
 
 defences must be raised by notice before trial. 
 Per Martin, 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 o& initio, to the extent at least of the overlapping, 
 
 acquires ho liitle 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, 18&8, 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- 
 
 Supreme Court. 
 Schomierg v. Holden, ante, p. 290, and Dwnlop v. Haney, ante, p. 369, followed,. 
 
 and Aldous v. Hall Mines, ante, p. 213, considered. 
 Decision of Spinks, Co.J., affirmed (Mabtix, J., dissenting). 
 
 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 com- 
 mon to the Trilby and Herald Fraction claims was an invalid loca- 
 tion, 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 lan^s 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 re- 
 spect of the Old Jim claim and other certificates of work were re- 
 corded in respect of it on April 12th, 1898, and April 15th, 1899. 
 
I.] 
 
 GELINAS ET AL. V. CLARK. 
 
 429 
 
 On 17th May, 1898, Robert Clsjrk by bill (ft sale recorded 34th 
 March, 1899, transferred the Old Jim claim to the defendant Ella 
 Olark. 
 
 On 3nd February, 1899, the plaintiffs located the Herald Fraction 
 claim covering most of the ground originally covered by the Trilby. 
 The defendant in her dispute note set up that the Old Jim was located 
 on unoccupied and vacant waste lands of the Crown, that at the 
 time of the location of the Herald Fraction the ground covered 
 thereby was not open to location, and that certifleates of work had 
 been issued and duly recorded in respect of the Old Jim, and she 
 )claimed the benefit of sec. 38 of the Mineral Act. 
 
 The action was tried before Spines, Co. J., who held that the 
 County Oourt had jurisdiction and that sec. 38 cured all defects in 
 the defendant's 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., Walkbm, 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 
 should have been received. 
 
 1901. 
 March 5- 
 
 Full Court. 
 
 Appeal. 
 
 Davis, Q.C., for appellants: The denial in paragraph 1 of the Argument. 
 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. 313 ; and The Nelson & Fort Sheppard Railway Company v. Jerry 
 et al. (1897), 5 B. C. 396, ante, p. 161. This is not an adverse pro- 
 ceeding — 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. R. 109, ante, p. 359; Belk v. Meagher (1881), 104 U. S. 379; 
 Del Monte Mining and Milling Company v. Last Chance Mining and 
 Milling Company (1898), 171 U. S. 55. 
 
 L. 0. McPhillips, Q.C., for respondent: The plaintiffs have not 
 proved a case of ejectment as on their own evidence they are in pos- 
 session, 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; Robertson's Local and County Courts Acts, 
 31; Aldous v. Eall Mines (1897), 6 B. C. 394, ante, p. 213; Rogers 
 
430 MARTIN'S MINING OASES. [vol. 
 
 nlrchs ^- ^^^^ (1900), t B. C. 142; Hand v. Warren (1899), 7 B. C. 44, 
 — ■ anie, p. 376. The only remedy the plaintiffs have is by an action in 
 Full Court, ti^g Supreme Court as provided for by sec. 37. The plaintiffs must 
 MoCoLL, C.J. wait" till defendant applies for a certificate of improvements — unless 
 the defendant herself applies. 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; Beal's Car- 
 dinal Eules, " Precedent," article on in the Encyclopaedia of the Laws 
 of England; Taylor v. Corporation of Oldham (1876), 4 Ch. D. 395; 
 NutJi V. Tamplin (1881), 8 Q. B. D. 247, at p. 253; Callahan v. Cop- 
 len (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 U. 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 Rules 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. 
 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 en- 
 titled to a declaration of title, we are entitled to an order that defend- 
 ant be put off and for nominal damages. 
 
 Cur. adv. vult. 
 
 March 5th, 1901. 
 
 Judgment McCoLL, C.J. : — On July 1st, 1895, one Stephens located a mineral 
 
 claim and duly recorded it under the name Trilby. The claim lapsed 
 on July 10th, 1896, for want of a certificate of work. Meanwhile, 
 
I.] GELINAS ET AL. V. CLARK. 43I 
 
 on April 1st, 1896, one Clark assumed to locate upon the lands covered i90i, 
 by the Trilby a mineral claim and to record it under the name of March 5. 
 Old Jim. After the lands in question had become waste lands of FullCouht. 
 the Crown, Clark, on April 13th, 1897, recorded a certificate of work ihvhJg, J. 
 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, 
 respectively. 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 en- 
 titled 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 
 claim, 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 Trilby 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), T 
 B. C. 422; (1900), 30 S. C. E. 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 
 in, I do not think the appellants can ask us to consider it now. The 
 appeal should be dismissed with costs. 
 
 lEviNG, J. : — I concur. 
 
 Maktin, 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 min- 
 ing jurisdidtion of the County Court, and so the plaintiff can get no 
 
432 MARTIN'S MINING CASES. [vol. 
 
 M^^h 5 ^^^^^^ because the evidence shews that he is in possession himsejf, 
 — ' ?in4 that, if there has been a trespass there is no evidence to connect 
 FcLL Court. ,^}^g defendant with it. So far as trespass is concerned, th^e Ijrst 
 Martin, J. answer to this contention is that it is, in effect, admitted on the pleafl- 
 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, prpj^- 
 ably in view of the operation of sec. 11 of the Mineral Act Amend- 
 ment Act, 1898, the effect of which section was considered by me in 
 Schomierg v. Holden et al. (1899), 6 B. C. 419, ante, p. 290; a&d 
 Dunlop V. lianey, 7 B. C. 3 and 4, anie, p. 369.* I may here remark 
 that though my said judgment was varied by the Full Court, ante, p. 
 369, yet the conclusions I arrived at on the case as then presented ip 
 me are in no way affected by the action of the said Court, as it simply 
 made a certain order by consent of the parties and omitted the de- 
 claration as to establishment of title required by said sec. 11 ; there is 
 no report of the case, but simply a note of an order made, as I under- 
 stand, at the request of the parties to meet a certain state of affairs 
 which they had overlooked when the matter was before me. 
 
 The mining jurisdiction of the County Court is contained ii; sec. 
 117 of the Mineral Act, and in connection therewith sec. 25 of the 
 County Courts Act must be considered. It is as follows : 
 
 " Every County Court shall, as regards all causes of action within its Juris- 
 diction for the time being, have power to grant and shall grant in any proceed- 
 ing before such Court such relief, redress, or remedy, or combination o£ 
 remedies, either absolute or conditional, and shall to every such procjeeding gjiye 
 such and the like effect to every ground of defence or counterclaim, equitable 
 or legal (subject to the provision next hereinafter contained), in as full and 
 ample a manner as might and ought to be done in the like case by the Supreme 
 Court of British Columbia." 
 
 It has already been twice decided, in Schomherg 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 
 are, in default of a better term, loosely styled " adverse actions " 
 under the old sec. 37, and amendments, but also " to all cases which 
 come before the Court for trial," i.e., mining eases wherein there arc 
 mineral claims in conflict (under the Mineral Acts). 
 
 And 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. 
 Haney, at p. 369. I see nothing in the judgment of Mr. Justice Mc- 
 Creight in Aldous v. Hall Mines (1897), ante pp. 213, 217, which con- 
 ,flicts with the above view, because the learned Judge expressly sayis 
 that he -tad not "any intention of giving a decided opinion upon" 
 
 * See ^.Iso Ryan v. McQuillan, ante, p. 289. 
 
I] GBLINAS ET AL. V. CLARK. 433 
 
 the present point amorig others; and it sho'nld further be borne in lOOi. 
 nlind that his jud^ent was pronounced bfefbre see. 11 was enacted. ^^^ ' 
 It follows from' the view I have taken that the trial Judge in eithet Full Cowit. 
 Court must " find " whether or not an af&rmative title to each claim martin, J. 
 has been established, so far as the ground in controversy is concerned. 
 This is merely another way of saying that the Court shall make a 
 declaration as to title (in regard to which see Odgers on- Pleading, 
 4th ed., 24, 204-5, 263), and in my opinion the Court below had 
 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 
 of the defendant. The objection is taken that this material ques- 
 tion 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 Rule of Court (sec. 205), and, apart 
 from the requirements of sec. 91, the County Court Eule of August 
 6th, 1892, requires the defendant to give notice in writing " stating 
 shortly and distinctly the ground's 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. Oodsal (1900), 7 B. C. 404; ante, p. 416, 
 and it carries oUt the spirit of the decisions in Aldous v. Hall Mines 
 supfaj SchombeTg v.' Holderi, supra, and Dunlop v. Hdney, supra, that 
 litigants in niining cases particularly should know beforehand exactly 
 what ease they have to meet, and that anything in the nature of a 
 surpl'ise should be discountenanced.* No application for leave to 
 raise such a ground of defence was niade 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 case, it appears that dui-ing 
 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 
 the Herald Fraction claim, which also covers most of the old Trilby 
 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 tp any part of the senior 
 loeation.f The learned County Court Judge held that though the 
 
 ♦See Hogg v. Farrell, ante, t^. 79, and note thereto. 
 
 fWodiHury V. tiudnui, ante, p. 31; Granger v. Fbth'eringham, ante, p. 71 ; 
 Atkins V. Coy, ante, p. 88; Btbekir v. Chisholm, ante, p.' 112; Pettent v. 
 Almoure, ante, p. 134; Aldous v. Hall Mines Co., ante, p. 213; Pppe v. Cole, 
 ante. p. 257: Cfransfon v. English Canadian Co.'y, ante, p. 394; Rammelmeyer 
 V. Curtis, anie, p.' 401. 
 
 m'.m:c. 28" 
 
434 MAETIN'S MINING CASES. [vol. 
 
 1901. plaintiff had established a prima facie case to the Herald Fraction, 
 ^ ^' yet all defects in the defendant's title were cured under sec. 28 by 
 Full Coubt. her having recorded certificates of work for the Old Jim claim. The 
 Mabtin, j. 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 U. S. 379, where the subject is con- 
 sidered 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 hold that, before the former location has expired, an entry may be made 
 and the sevferal 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 Belh v. Meagher was approved by Gwillim v. Donnellan, 
 115 U.. S. 45, 49, and again in 1898 by Del Monte Mining and Mill- 
 ing Company v. Last Chance Mining and Milling Company, 171 U. 
 S. 55, Mr. Justice Brewer stating, " Of the correctness of these decis- 
 ions 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 recogiiized in Connell v. Madden, supra, affirmed 
 on appeal (1899), 30 S. C. E. 109. 
 
 What, then, is the effect of sec. 28 ? This question has been dis- 
 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 
 with Peters v. Sampson, and consequently not a binding decision on 
 us, it being pointed "out that in Peters v. Sampson the Court (com- 
 posed of Walkem, Ieving and Maetin, JJ.), was unanimous, while 
 in Callahan v. Coplen, the Court (Walkem^ Drake and Irving, JJ.), 
 was divided, Mr. Justice Irving dissenting. And a peculiar circum- 
 stance in that case should be noted, which is that the judgment of the 
 Full Court (delivered by Mr. Justice Drake) contains no reference 
 whatever to Peters v. Sampson, though my brother Walkem wrote a 
 judgment in that case with which I concurred, wherein the effect of 
 sec. 28 was considered at length. I agree with counsel that Callahan 
 
I.] GEDINAS ET AL. V. CLARK. 435 
 
 V. Copkn and Peters v. Sampson are inconsistent and conflicting, and, i90i. 
 in view of what I have pointed out, were it not for the judgment of ^ !^ ' 
 the Supreme Court of Canada above mentioned, I am of the opinion i^vu. Cockt. 
 that the latter is the .decision which should be followed, as I en- jjarxin, J. 
 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. 38 to establish their title to part of another op- 
 posing location which is not embraced within any part of their loca- 
 tion 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. 38 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 shall be assumed that up to that 
 date the title to such claim was perfect" must be largely restricted 
 in their operation. 
 
 Assuming for the moment that the defendant herein is entitled 
 to invoke sec. 38 despite the fact that the Crown is not a' party to 
 the action, I shall consider what is the effect of the judgments in 
 Callahan v. Coplen on the .question now before us. Mr. Justice 
 Drake in that case states, "In my opinion it (sec. 38) 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 
 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 
 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 
 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 
 slip." 
 
 In the absence of any consideration by Mr. Justice Gwynne, who 
 wrote the judgment of the Supreme Court in Callahan v. Coplen, of 
 
436 MAKTIN'S MINING CASES. [vol. 
 
 ^Sf"!- the general effect of sec. 38 (and I may be permitted to say that such 
 — ' consideration by so learned a Judge would have been of gfeat assist- 
 riLLCouBT. a,nce to 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 Gwynne stated that the only question to be decided was 
 as to whether the location did mislead other locators; but neverthe- 
 less 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 difficult to 
 apply them satisfactorily 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 Province, 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 
 " prop 3ily taken up and recorded" in so far as it overlaps the Trilby 
 ground. In my opinion that part of the location must be deemed toi 
 be absolutely void, because to that extent the Old Jim claim simply 
 never had any existenee, and to that same extent there is nothing forr 
 sec. 38. 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 ]»ad the benefit of perusing the judgment of the learned 
 Chief Justice upon the combined operation of sees. 34 and 34 of the 
 Mineral Actj and appreciating as I do very highly the value of vocy 
 learned brother's opinion on this important point, his views have 
 received commensurate considieration. 
 
 After some hesita-tion I have come to the conclusion that, viewed' 
 in the light of the dfeeisions 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. 34 impose" the 
 limitation that the claim must first have been " duly located and' 
 recorded," yet this is exactly what' has not been done here, if ' the 
 cases cited are authoritative, as I think they are. Though! am 
 unable, in trying to give a consistent and logical effect to Callahan: t. 
 Coplew-f to come to ahy other conclusion than this, at' the same time 
 T thiatoit much to b^ regretted.' that the exact interpretation otseev 
 
I.] GELINAS ET AL. V. CLARK. 437 
 
 28 is in doubt, and the sooner that said section is either fully inter- 1901. 
 preted by the Supreme Court of Canada, or explained by the Legis- ^^ ^■ 
 lature, the better it will be for owners of mining property in this FullCoukt. 
 Province. Mam^, J. 
 
 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 wMeh 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 (same 
 in Tavier 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 proee^ings that were the foundation of its 
 alleged existence. This view was very far reaching jn its result, and the deci- 
 .sion being adhered to by the Full Court in Manley V. CoUom, post, p. 487, an 
 aDpeal was taken to the Supreme Court of Canada, with the result that both 
 that case and 'Gelmas v. Clark were overruled, and the dissenting judgment of 
 Martin, J., in Oelinaa v. Clark foillowed in that respect, for which, reason his 
 views are stated in the headnote hereto. 
 
438 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1901. 
 March 9. 
 
 Full Court. 
 
 Statement. 
 
 Victor et al. v. Butler. 
 (8 B. C. 100.) 
 
 Yukon Placer Claim — Location — Overlapping — Re-location — " Jumping " — 
 Representation Work — Conflicting Crown Grants — Rights of Different Grown 
 Grantees to same Claim — Jus Tertii — Possession — Close Season — Gold Com- 
 missioner — Practice 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 mineral 
 
 claim. 
 Decision of Dugas, J., affirmed. 
 
 Appeal to the Full Court* of British Columbia from the judg- 
 ment of the Territorial Court of the Yukon Territory, per DugaSj 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 defen- 
 dant 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 aban- 
 doned 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 
 apart for the performance of that work. 
 
 The question at the trial was which of these two grants was en- 
 titled to priority, and the learned Judge delivered judgment on 25th 
 
 *This appellate jurisdiction conferred upon the Supreme Court of British 
 Columbia by 62-3 Vict. ch. 11, sec. 7 (1899) was abolished by 2 Ed. VII. ch. 
 35, sec. 3 (1902). 
 
I.] VICTOR ET AL. V. BUTLER. 439 
 
 June, 1900, dismissing the plaintiff's action and deciding in favour ^^I^OL 
 of the defendant's grant. 
 
 March 9. 
 Full Court. 
 
 The appeal was argued at Vancouver on 30th and 31st November, 
 1900, before McColl, C.J., Drake, Irving and Martin, JJ. 
 
 Peters, Q.C., and A. 0. Smith (of the Yukon bar), for the appeal. Argument. 
 The defendants re-located on ground not open for location and before 
 it 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- 
 formal 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 
 close season, therefore Mensing had up to twelve o'clock on night of 
 37th October, and seventy-two hours after before his claim was open 
 to re-location. 
 
 Supposing there are two grants wrongly issued, ours is the earlier 
 and entitled to the preference. The defendant is a trespasser: see 
 Sedgwick on Trial of Title to Land, 549-50; 4s^er v. WMtlock (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), 13 Morr. 303; Atwood et al v. Fricott et al. (1860), 3 Morr. 
 305. No close season was fixed by the Gold Commissioner within the 
 meaning of the interpretation clause of the Yukon Placer Mining 
 Eegulations of 31st May, 1897: see Orders-in-Council of 31st May, 
 1897* (p. Ixxii., of 60 Vict.), and 18th January, 1898t (p. xxxix., of 
 61 Vict.). 
 
 [Martin, J., referred to Woodbury v. Hu&nut (1884), 1 B. C. 
 pt. ii., 39, ante, p. 31.] 
 
 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 sea- 
 son such as meets the spirit of the Act. What the Gold Commis- 
 sioner 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 shcT? three months' work — ^not continuous, but 
 
 *" Close season " shall mean the period of the year during which plaO'jr 
 mining is generally suspended. The period to be fixed by the Gold Commissioner. 
 
 t" Close season " shall mean the period of the year during which placer 
 mining is generally suspended. The period to be fixed by the Mining Recorder 
 in whose district the claim is situated. 
 
4^ MjAiRTIN'S MlfNINJi : OASES. [vol. 
 
 1901. three months in all. The close season of nine montiis less.thje three 
 !!!!. ■ days had gone by and the man could not by aay pQsgibiUty'hasejdene 
 gpLL CoPAT. thg three months' work ; the three days form part of the nine months 
 McCoLL, C.J. nf^t,pf .thethfjCe pjf}n^J:}s. 
 
 Victor's grant of land alreajdy l^fised is .not xalid : see The ^Q^p/m 
 V. Demers (1893), 22 S. C. E. 482; Lindley on Mines, 363, 3.n& Belh 
 V. Meflgker (1^81), 10.4 U. S. 379. Victor purported to Ipqate ^ ,n|ew 
 cl^iin, but defjead^ipt applied in a differeiit ;syay invokioag i jijije (procpss 
 applicable to losjeited ground. Tl\e , Gold Cpmjfli^^oner .m\i&t ,liftve 
 cancelled Mensing's Iqqse befpjre Ijp deci^|d to give .t^ ne;r •.0]p,e tp 
 Mrs. ^jj:t}gr. rifje, cited Coffp&r v. TM MqotX^ of MQSi}ss fwrflii^ ')^ 
 W^rih Vi^i.mt (1863), ,14 C. B. N. ,^. 180 ; QskomfiY. ,Mor,gwn .(;§§ 
 J3 App. Qas.,at kz^^S; Smii§i v. The Quee-n (1878), ,3 App. Cl|i,s. 614, 
 HJid Paven,port v. The Queen (,li87j7), 3 App. ,Ca^. 11,5. 
 
 Peters, in reply : There is no evidence of cancellation. 
 
 Gur. adrV. .vuU. 
 
 Maiph 9th, 190,1. 
 Judgment. McCoLL, C.J. : — I think the appeal should be dismissed. 
 
 Drake, J. : — In this case one Mensing located^the ground in ques- 
 tion in 1898, and obtained the ordinary grant from -the Gold Cpm- 
 Qiissioner. Victor .took up a claim on vacant .land and incliawied in 
 ^t a portion .of the ground held under Mensing's grant : this he did 
 in August, ^18]98. If Mensing was lawfully entitled .U> the posses- 
 ision 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, .:wiiether vested 
 in the Crown or otherwise. Under the regulations the Gold Commis- 
 sioner is entitled to fix a close time with regard to claims. Accord- 
 ing to the evidence, instead of making a close time applicable to all 
 claims, he allowed each claim holder to work for three months in the 
 year following the record and -the other nine montiis were treated as 
 close time. Whether this was a good practice or not is not in ques- 
 tion 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, itherefore, 
 
 *8. Every free miner shall, during the continuance of his certificated but not 
 longer, $ave".thje right to enter, locate, prospect and mine for gold and other 
 minerals upon any lands' in the Yukon District, whether vested in the. Crown or 
 otherwise, exc^t upxm Govejinment TBSfiTvaitiions iov itown sites, land whicb is 
 occupied by any building, and any Jand falling wijthiij tjie ouitUa^e of any 
 dwelling house, and any land lawfully occupied for placer mining pufcposes, and 
 also Indian reservations. 
 
I.] VICTOR jsT AL. V. iBUriyJ&R. 441 
 
 )^3d,a jear's leafe, (^etwmioable qn hifi -upglectiog to perform three looi. 
 months' work within the year. Whether he had. abandoned his claim M^«_^- 
 could not be ascertained until the nine months after his record had Full Oourt. 
 been ,ni,a4e had expired, nnless he obtained, a cancellation before that dbakk, j. 
 tjjfje.flf his grfl-nt hy the (Jold Commissioner. Qf thisithere is no 
 evijle^ce, .therrfore Victqr^e claim was not valid as fax as regards 
 the piece of iland overlapping Mensing's. It was contended that 
 when twoigrq,nts,of ,the same land had beenjnadeithatithe latter grant 
 ^Qitiild jprevail. J do not ^accede to this view. iThe fact -of a grant 
 having feeen made ,to jyEenping precluded the isspe of another grant 
 over the same J^pd until the fia-st grant was canoelledbyithe .(xuld 
 Co;inijiissioner for some of the reasojis which ga,ve him jurisdiction 
 to cancel, or had expired by effi]ixion of time. ,When Victor naade 
 his application, the pl^n ]ie .filed with the Gold Commissioner, w}j.ich 
 jFas mafJe on July 23nd, 1898, as appears by the exhibit, do^s not 
 .shew Mensing's claim at all, and does ,not a.gree with exhibit " E." 
 The Gold Commissioner seeing a plan which made no mention of the 
 Iilensing 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 
 Tip 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 can- 
 Celled after Victor's grjant, 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 
 agE^nst the Crown on the ground thai a grantor cannot (ierogate from 
 his grant. But as, in my opinion, Mensing's claim was in existence 
 when Victor's grant was made, it canmot be.said.thj^t Victor had a 
 reversionary interest in this land depepdent on Mensing'i claim 
 expiring or heing cancelled, for this is 'what the plaintiffs' conten- 
 tion aiho^mts 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 
 iC^aim, and the la,nd thereby became open to re-location, and Mrs. 
 Jlntler is a re-locator unaffected by Victor's grant. 
 
 It :was conten^d that Mrs. Butler cou,ld i^ot .tajfe up the fila^W^ 
 until jiine months plus .seyenty-two hours, and therefore her grant 
 va,s inyali^ as against the plaintiff Victor, biit the plaintiffs cannot 
 set jjtp 3. jus i^riii to b.ol#;er up ,tlieir case. This objection }^ one 
 Mensing qr ,his s^sign Juight have Bet up, and without deciding the 
 
44<2 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1901. 
 March 9. 
 
 PcLL Court: 
 
 Ikving, J. 
 
 effect and bearing of rule 39*. 
 dismissed with costs. 
 
 In my opinion the appeal should be 
 
 Ibving, J. : — ^In my opinion both parties to this action jumped 
 the claim before it was open for re-location, unless it can be estab- 
 lished that the Gold Commissioner in pursuance of the powers con- 
 ferred 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 done: 
 
 At page 180 of the appeal book there are two plans, one is identi- 
 fied 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. 
 
 Maetin, J. : — It is argued that no close season was fixed by the 
 Gold Commissioner within the meaning of the interpretation clause 
 of the Yukon Placer Mining Regulations of May 21st, 1897. 
 
 It appears from the evidence of the Mining Recorder 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 undoubt- 
 edly correct, but from another it may be looked at differently. The 
 period of suspension was gei^ral in that it affected all alike, and 
 though the Gold 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 be abandoned and open to occupation and 
 entry by any person when the same Shall have remained unworked on working 
 days, excepting during the close season, by the grantee thereof or by some per- 
 son on his behalf for the space of seventy-two hours, unless sickness or other 
 reasonable cause be shewn to the satisfaction of the Mining Recorder, or 
 unless the grantee is absent on leave given by the Mining Recorder, and the 
 Mining Recorder, upon obtaining evidence satisfactory to himself, that this 
 provision is not being complied with, may cancel the entry given for a claim. 
 
 Note. — 72 hours means three consecutive days of 24 hours each. 
 
^ 
 
 I.] VICTOR ET AL. V. BUTLER. 443 
 
 Mensing recorded his claim on the 26th of January, 1898, and on 1901. 
 the succeeding a7th of October, a few minutes after midnight of *^^;^^- 
 26th, the defendant, for the admitted reason that the claim had not Full Coort. 
 been properly represented, re-located it as ground abandoned and martim, J. 
 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 becoine 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 per- 
 formed 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 
 secured to Mensing, and the alleged location, before that time, by 
 the defendant was, to further quote Woodhury v. Hudnut, supra, "a, 
 onerelv unauthorized trespass," and an unsuccessful attempt to 
 " jump " the claim. 
 
 Before Mensing's claim had run out, the plaintifE Victor, on the 
 6th 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 
 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 
 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? 
 
 *19. A claim shall be deemed to be abandoned and open to occupation and 
 entry by any person 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 to the 
 satisfaction of the Gold Commissioner, or unless the grantee is absent on leave 
 given by the Commissioner and the Gold Commissioner upon obtaining evidence 
 satisfactory to himself, that this provision is not being complied with may 
 cancel the entry given for a claim. 
 
iM MA»RTIN!S MINING OASES. [vol. 
 
 1901. It is not surprising that no authority u-pon the exact point has 
 
 t!!L ■ been cited, the circumstances ibeing so unusual. In the regrettable 
 
 FullCodht. absence, in a case of this importance and, difficiJlty, of any reasons 
 
 Mabtin, .J. 'for judgment, we are deprived ■ of the benefit of -the views lof the 
 
 learned trial Judge, which would, doubtless, in view of his familiarity 
 
 with the mining regulations, have been of assistance to us in deciding 
 
 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 must 
 be presumed in her favour that the Gold Commissioner had cancelled, 
 the entry thereto "upon obtaining evidence satisfaetory to himself" 
 under regulation 19, and in pursuance of her application for aigrant, 
 dated October 37th, 1898, made while Mensing's claim was still in 
 force. 
 
 Assuming that we are justified in so presuming as regards the^ 
 defendant's grant, then the same presumption arises, but with greater 
 ■■foree, in regard to the plaintiff's prior grant. There is no evidence 
 of any intention to cancel the entry of Victor's claim, and he was 
 working it at the time of the defendant's re-location. 
 
 As I understand the contention of the plaintiff's counsel, it is that 
 they, having obtained a grant from the Grown on the 23rd of July, 
 which by metes and bounds conveys to them that part df Mensing^s 
 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 
 th,at the defendant in no way Claims under Mensing's title, but on 
 the contrary relies on that title being destroyed. And it is further 
 contended that even if both grants were wrongly or inadvertently 
 issued, the earlier should prevail. 
 
 TJnd^r the existing circumstances, at least, it is difficult to see 
 upon what ground the defendant's later grant should prevail against 
 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 
 plaintiffs'. Then, as between the grants themselves, her counsel, on 
 the argument, took the stand that in the grant to the plaintiff Victor, 
 the disputed corner of Mensing's ground, as counsel expressed it, 
 " slipped in unnoticed." Supposing it did, does that give the defen- 
 dant, who did not obtain a similar grant for months afterw^rfls, a 
 right to complain when she herself, strictly speaking, " jumped " 
 Mensing's claim, and "jumped" it too soon? I confess I cannot 
 see any reason, either at law or in equity, why the prior gra/nt to the 
 plaintiff should be di&regaa-ded. If the defendant's contention is 
 that she i« at liberty to stake first, and then apply for capcdlation, 
 then that exactly fii^ Victor's case, except that Victor is in a better 
 position than the defendant for three reasons: (1) he is the prior 
 
I] VICTOR ET AL. V. BUTLER. 445 
 
 locator; (3) he is the i prior grantee, and his. grant defines his claim 1901. 
 by metes and bounds; (3) he was in possession when the defendant !;L_ ' 
 made her premature attempt to "jump." Fdll Couiit. 
 
 It is opportune, here, to make some remarks on the possession of a Mabitn, J. 
 mineral claim. Much attention has been giyen this subject by Courts 
 in the United States under laws bearing a general similarity 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), 18 Morr. 217, at p. 223, approving 
 Coryell et al. v. Cain (1860), 16 Cal. 567, and English et al. v. John- 
 son 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 . . . 'We think 
 when a claim is distinctly defined by physical marks, that possession 
 taken for mining purposes embraces the whole claim thus character- 
 ized, 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 cohstructive possession of a mining 
 claim under a deed is discussed at pp. 224-6 of the same case, and the 
 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. 805; North Noonday Mining Go. v. 
 Orient 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; Lind- 
 ley on Mines, p. 649 et seq. Applying the principle of the above 
 decisions to the present case, I am satisfied that the plaintiff Victor 
 distinctly defined the boimdaries of his claim, and also was in posses- 
 sion 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 appellants' counsel as a strong element in their fdvour, and 
 I am of opinion that it is so. 
 
 During the argument something was said about }us tertii, 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. 
 
446 MARTIN'S MINING OASES. Lvol. 
 
 1901. The position of the matter, then, is this. The plaintiff Victor re- 
 
 March^o. geiyes a specific grant froni the Crown of a certain mineral claim de- 
 j'"'nLL (touET. scribed by metes and bounds, and under and by virtue thereof occupies, 
 Maktin, J. defines, and works his claim. Some months afterwards, the defendant 
 obtains a similar grant to a portion of the land already included 
 within the metes and bounds of the former grant, and asks, in effect, 
 that the former gtant be set aside so far as the conflicting portion is 
 concerned. And this request is made despite the fact that the ap- 
 plicant is the junior locator and the junior grantee. Conceding that 
 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 proyisions, to favour the title of the 
 senior locator and senior grantee. And surely, as a matter of com- 
 mon sense and natural justice, that is the only broad rule to follow, 
 unless it is proposed to foster litigation, and encourage " jumpers. ' 
 
 If the defendant were relying on Mensing's grant, the result 
 would be very different, because the plaintiffs, as against Mensing, 
 would be in the same position that the defendant herein is as against 
 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 
 them for the term mentioned the exclusive right for mining purposes 
 to the land in dispute, before the defendant made her premature loca- 
 tion, should prevail against the defendant's later grant, so far as 
 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, between the members of the 
 Court on the point that the prior grant should prevail; the difficulty was to 
 determine on the facts Which was the prior grant. 
 
 As to Yukon Mining Regulations in general, and the levy of a royalty in 
 particular, and Crown grants, see ChapeUe v. The King (1902'), 7 Ex. 414, 
 32 S. C. R. 586. 
 
 As to " jumping " and policy of Mineral Acts, see unie pp. 78 88, 139, 146. 
 187, 194, 236, 304, 333, 336, 414. 
 
I.] 
 
 COOK ET AL. V. DENHOLM et al. 
 
 44T 
 
 Cook et al. v. Denholm et al. ^r^^*)^- ^ 
 
 March 13. 
 (8 B. C. 39.) Walkem, J., 
 
 Mineral Claim — Transfer to Joint Tenants — Repudiation ly One of — Adverse. 
 Action — Affirmative Evidence of Title — Mineral Act, 1898. 
 
 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 affirma- 
 tive 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 claim 
 and other documents. 
 
 Adverse claim tried at Kelson on 38th October, 1897, before statement. 
 WalkeMj J. Written arguments were put in in December, 1899. 
 
 Daly, Q.C., for plaintiffs. 
 Bodwell and Gait, for defendants. 
 
 Argupient. 
 
 Cur. adv. vult. 
 
 March 13th, 1901. 
 
 Walkem^ J. : ->— These are adverse proceedings brought for the Judgment.. 
 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 com- 
 pleted his own location, first teUing 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 what- 
 ever to support the statement in the plaintiffs' pleadings that the 
 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 
 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 
 statute intended to be invoked. Probably reference was intended to' 
 
448 MARTIN'S MINING CASES. Ivdi,'. 
 
 » 
 
 IS"! i)e made to the 7th section of the Statute of Frauds, which is directly 
 
 ' applicable. However, as 1 have said, there was no such understand- 
 
 Walkem, .T. ing on the part of any of the three men ; and, judging from what 
 subsequently took place, all that Harrington was expected to do was 
 to fulfil his promise to the other two men by transferring a third to 
 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 transferrer 
 (sec. 50, Act of 1896). As evidehce of'this expectation, Harrington 
 handed the following bill of sale to Stillman: 
 
 " Trail, B.C., Oct. 5, 1894. 
 
 " 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 aUd to the Maripbsa mineral claim situate in Trail Creek 
 Division of West Kootenay District, B. Cf. ' 
 
 " Charles Harrington." 
 E. S. Topping; 
 " Recorded at Rossland, B.C., Oct. 15, 1897." 
 
 This document speaks for itself, and as Mahoney refused to ac- 
 cept it, or have anything to do with it, it was not recorded at the 
 time, as required by the Act, nor for three years aftertvferds^-a' cir- 
 cumstance 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 Ms third interest transferred 
 to himself alone by a separate bill of sale; and this latter, he subset 
 iquently 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: 
 
 " Mariposa. 
 
 " For ajid in consideration of the sum of five dollars, of which this shall 
 be a rec^ijit thereof, I hereiby deed and quit claim unto James Mahoney an 
 undivided cne-third interest in and to the ' Mariposa mineral claim, situate in' 
 Ihf Trail Creek Division of West Kootenay. 
 
 "Dated at Trail, February 14, 1895. 
 
 " Witness, E. S. Topping: Chartes Harrington." 
 
 Furthermore, Harrington sta;tes that he never gftve Stillman a 
 separate bill of sale for atiy interest in the claim, and as Stillman' 
 does not appear to have asked' for one; Harrington no doubt thotight 
 that he did not want one, and consequently considered thkt he was at' 
 liberty to personally deal' with the interest that he had pr6mis6d' 
 Stillman, as the pr&misewas a gratuitous one; Now; aS ■ Stiliin'aA '■ 
 
I.] OOOK ET AL. V. DENHOLM et al. 449 
 
 acquired no title from Harrington, or from any one else, his bill of 1901. 
 sale of the 30th of October, 1896, purporting to transfer a third Maroh^is. 
 interest in the claim to one Jerry amounts to nothing. Harrington Walkem, J. 
 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 sheiyn, 
 had nothing to convey. This fact is apparent on the face of the 
 Mining Eeeorder's books. 
 
 All the transfers made by Harrington, except the rejected, or dis- 
 carded one, as well as those made by the transferees Washolm, 
 Mahoney and Jackson to Denholm, were recorded within the proper 
 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 force, I am not 
 called upon to report specially on the defendants' title to the claim; 
 but I have no hesitation in stating for the information of the proper 
 officer that it seems to me to be unimpeachable. I might also observe 
 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 
 which it depends. 
 
 Action dismissed with costs. 
 
 Note. — ^As to sec. 11, 1898, the learned judge's attention was not called 
 to the prior case ■ot Schomherg v. H olden, ante, p. 290. And see, also, Ryan 
 *. McQuillan, ante, p. 289. 
 
 29 
 
450 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 1901. 
 March 22. 
 
 MuKPHY V. Star Exploeing and Mining Co*. 
 
 Fdll Court. Mineral Act — Adverse Claim — Time, Extension of for Filing Affidavit and 
 Plan — Court: — Judge in Chambers — Practice — Mineral Act, sec. 37. 
 
 An order to extend the time for filing the aflSdavit 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. 
 NoVle V. Blancliard (1899), ante, p. 373, not followed on this point. 
 Decision of Dbake, J., reversed, McOoll,- C.J., dissenting. 
 
 Statement. 
 
 Argument. 
 
 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 3nd, 1899, to which the defendants duly appeared. 
 ITo 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 application to 
 IevinGj J., obtained on order, dated February 31st, 1900, extending 
 the time until May 15th, 1900. This order not having been com- 
 plied 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 Ifovember 14th, 1900. 
 
 On the return of the summons, Drake, J., refused to dismiss the 
 action and made an order further extending the time for filing the 
 affidavit and plan until 14th May, 1901. 
 
 The defendant company appealed to the Full 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 McColl, 
 C.J., Walkem, Irving and Martin, JJ. 
 
 Hunter, Q.C., for appellant: Under the statute the time can 
 only be extended by special order of the Court and so cannot be 
 extended by an order of a Judge in Chambers: see Baker v. Oalces 
 (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 dis- 
 missed; the Judge must be set in motion in the proper way. He 
 cited In re Gape Breton Company (1881), 19 Ch. D. 77; Salter v. 
 Salter (1896), P. 393, and the Yearly Practice (1901), 504. 
 
 * Partly reported in 8 B. C. 421. 
 
I.] MURPHY V. STAR MINING 00. 451 
 
 . The Court called on ^,^^°}-^ 
 
 March 22. 
 
 Alexis Martin, for respondent: I rely on the decision of this j-dji^uet 
 
 Court in Noble v. Blanchard (1899), 7 B. C. &2, ante, p. 373. ' — 
 
 MoCoLi,, C.J. 
 
 Cur. adv. vult. 
 
 March 33nd, 1901. 
 
 McCoLL, C.J. (dissenting) : — This appeal is from an order extend- Judgment, 
 ing the time for filing the plan under sec. 37 of the Mineral Act made 
 on a summons to dismiss for want of prosecution. 
 
 The ground of appeal taken is that such an order could not pro- 
 perly be made in Chambers. 
 
 The aflSdavits used upon the application were directed solely to 
 the 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. 
 
 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. 
 
 In this Province a Judge sits at the same time and place in hear- 
 ing applications in Chambers and in Court, and with great deference 
 to my learned brothers, I cannot think it was necessary that he should 
 have gone through the form of adjourning the application before 
 himself in Court before announcing his decision. 
 
 Walkbm^ J. : — This is an adverse action brought by the plaintiff 
 under the provisions of the Mineral Act, E. S. ch. 135 (1897), as 
 amended in 1898 and 1899. By sec. 37 of the Act the plaintiff in 
 such an action must file a personal affidavit of the particulars of his 
 claim and a Provincial Surveyor's plan of the ground claimed, and 
 a copy of the writ in the action, within 30 days after the commence- 
 ment of the action, " unless such time shall be extended by a special 
 order of the Court upon cause being shevm.'' In tne present case 
 the plaintiff being unable to comply with these requirements within 
 20 days obtained an Order-in-Chambers from Mr. Justice Irving in 
 February, 1900, extending the time until the 15th May following. 
 Both before and after that date the plaintiff Endeavoured to get a 
 surveyor to visit the ground in question and make the requisite plan 
 of it, but without success; whereupon the defendant company took 
 out a summons dated the 13th September, 1900, to have the action 
 dismissed for want of prosecution. This summons was heard in 
 Chambers on the 14th November following by Mr. Justice Drake, 
 who made an order further extending the plaintiff's time to the l-tth 
 
452 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1901. 
 March 22. 
 
 Full Court. 
 
 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 to 
 Walkkm, J. 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 
 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 latu 
 Chief Justice In re The Good Friday Mineral Claims (1896), 4 
 B. C. E. 496, ante, p. 84, and by Mr. Justice Drake in KiJbourne v. 
 McGuigan (1897), 5 B. C. E. 233, ante, p. 143, and by myself Re 
 The Golden Butterfly Claim (1897), 5 B. C. E. 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 Cham- 
 bers." Moreover, the order which I made was, as I find from the 
 records in the Eegistry, an order under the seal of the Court. On 
 tho other hand, in the later case of Nohle 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 plaintiffs time 
 for bringing his action and filing his plans had been illegally ex- 
 tended 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 E. E. 21, 29, and some 
 cases in the Annual Practice had been cited in support of that con- 
 tention. The Full Court that heard the appeal consisted of my 
 brothers Drake and Irving and myself, and we are all agreed that 
 this part of the report is incorrect, as no such objection was made 
 or brought to our notice, and a^ none of the above cases was cited. 
 The judgment of the Court which was delivered by Mr. Justice Drake 
 tends to confirm this, for it does not even refer to the point. Further- 
 more, the report shews that the counsel for the respondents never 
 referred to it. The case is, therefore, no authority on the point. 
 
 A clear distinction has been recognized by the Court of Appeal 
 in England between the words Court and Judge, which occur in the 
 phrase " the Court or a Judge " that is used in the judicature rule, 
 
 for instance, it has been held in Baker v. Oahes and In re B , a 
 
 lunatic (1892), 1 Ch. 463 (C. A.), that "Court" means a Court in 
 Bane, or a Judge in open Court, and Judge means a Judge sitting in 
 Chambers. This distinction is also referred to by Brett, M.E., in 
 Dallow V. Garrold (1884), 54 L. J. Q. B. 78, when construing the 
 phrase " Court or Judge " which occurs in sec. 28 of 23 & 24 Vict, 
 ch. 127 — a section that relates to solicitors' costs. 
 
I.] MUUPHY V. STAR MINING GO. 45S 
 
 March 22. 
 FullCourt. 
 
 Such being the views of the Court of Appeal, we are bound, as ^^ 1901- 
 a matter of duty, to follow them: Trimble v. Hill (1897), 5 A. C. at 
 p. 344. 
 
 The appeal must, therefore, be allowed, but, in my opinion, with- Ikving, J. 
 out costs, as the respondents' counsel must have been misled by the jj^i^^ j 
 inaccurate report in Noble v. Blanchard. 
 
 I ' 
 Ikving, J. : — I concur with the conclusion reached by my brother ■ 
 Walkem. 
 
 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 statenient 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, 
 and not by the Court. 
 
 On 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. 
 
 Note. — See In re the Horsefly Mttiing Co. (1895), 4 B. C. 165; Gibson v. 
 Cbok (1897), 5 B. C. 534; Wakefield v. Turner (1898), 6 B. C. 216. 
 
454 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1901. 
 July 30. 
 
 Maktin, J. 
 
 Statement, 
 
 Argument. 
 
 Bbntley ET AL. T. Botsfoed ET AL. 
 (8 B. C. 128.) 
 
 Mineral Claim, Interest in — Certificate of Improvements — Application for, 6y 
 Co-owner — Mineral Act. 
 
 A part owner of a mineral claim may apply for a certificate of improvements 
 under sec. 36 of the Mineral Act. 
 
 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 Maetin, J., on 19th 
 July, 1901. 
 
 Martin, K.C., and E. J. Deacon, for plaintiffs. 
 
 Sir C. II. Tupper, K.C., and Peters, K.C., for defendant Botsford. 
 
 Duncan, for defendant Macquillan. 
 
 Cur. adv. vult. 
 
 July 30th, 1901. 
 
 Judgment. Maetin, 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 com- 
 plied 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 applica- 
 tion. The best way to arrive at what is contemplated by the statute 
 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 
 been and may properly be taken to be equivalent to " owner," or 
 " owners," the singular including the plural. 
 
I.] BENTLEY et al. v. BOTSFOKD et al. 455 
 
 " A mineral claim," it is declared by sec. 2, " shall mean the per- 1901. 
 eonal right of property or interest in any mine ;" and " ' mine ' shall ZZ. ' 
 mean any land in which any vein or lode or rock in place shall be Mahtin, J. 
 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, &e., &e." 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! have not lost sight of the difficulties 
 which may arise as suggested by plaintiffs' counsel, but the apprehen- 
 sion of difficulties does not justify my preventing the defendants from 
 resorting to the exercise of statutory rights. 
 
 Holding this view it becomes unnecessary for me to consider the 
 objection raised by defendants' counsel to this action iy)t being main- 
 tainable as an adverse action under sec. 37. 
 
 Judgment will be entered in favour of the defendants with costs. 
 
 Judgment for defendants. 
 
 Note. — ^See notes to Aleseander v. Heath, ante, p. 333. 
 
 This decision followed by Ikving, J., in Fry v. Botsford, post, p. 520. 
 
456 
 
 MABTIN'S MINING CASES. 
 
 [vol. 
 
 1901. 
 November 7. 
 
 Full Court. 
 
 Statement. 
 
 Argument. 
 
 Judgment 
 
 below, 
 Walkem, J. 
 
 Lawr V. Paeker. 
 (7 B. C. 417; 8 B. C. 223). 
 
 Mineral Claim — Assessment Work — Certificate of Work — Crown — Adjoining 
 Claims — Irregularity — Affidavit — Notice — Mistake of OfficjM—Time — Exten- 
 sion — Mineral Act, sees. 24, 2S, 53; Mineral Act, 1898, sec. 5. 
 
 if a free miner by mistake performs his assessment work outside the bouit- 
 flaries of his claim that is an irregularity which is cured by recording a 
 feertifieate 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 exten- 
 sion 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. 
 
 8. 8. TaylQ,r, Q.C., for plaintiff. 
 
 Galliher, for defendant. 
 
 Cur. adv. vult. 
 
 November 6tli, 1900. 
 
 Walkem, J. : — The plaintiff located and recorded a mineral claim, 
 near Nelson, named the Eebecca, 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 
 title were such as to call for a dismissal of the action. 
 
 These defects, which are of an exceptional character, occurred 
 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. 34 of the 
 Mineral Act. 
 
 The ground in dispute is on the slope of Morning mountain which 
 overlooks the city of Nelson, and was located by the plaintiff on the 
 18th of August, 1898, as the Eebecca and as an extension of the Ida 
 in which he had an interest. The due location of the Eebecca is not 
 contested. Under the circumstances mentioned, the plaintiff, who is 
 illiterate, asked the Gold Commissioner, Mr. Turner, if his assessment 
 work on the Ida would be regarded by him as assessment work im- 
 pliedly done on the Eebecca, and that officer, as he states, said it would : 
 see sec. 24 of the Act. This has not been denied, although Mr. Turner 
 was, at the time of the trial, within call at the instance of the defen- 
 dant if his counsel doubted the fact. I must, therefore, assume that it 
 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 
 
1.] LAWR V. PARKER. 45T 
 
 benefit of any work done on the Ida should extend to, and protect the woi. 
 Rebecca, amounted to nothing as it was the duty of the plaintiff if he i — 
 wished to acquire such a benefit, to file, as required by sec. 24, a notice "^^^^ Court. 
 of his intention to do his assessment work on one or other of his ad- 
 joining claims ; and that as no such notice had been filed, the Eebecca 
 had not been protected, by any work alleged to have been done on the 
 Ida, and must, consequently, be deemed to have been abandoned : see 
 sec. 34. There are two answers to this contention. The first is that 
 as the plaintiff was misled, no doubt unintentionally by the Gold Com- 
 missioner, he is not to be prejudiced by that circumstance, for sec. 
 53 says that 
 
 " No free miner shall suffer from any act of omission, or commission . . 
 . on the part of any Government official, if such can be proved;" 
 
 and to my mind an act of commission as it were, has been proved. 
 The second answer is that, as what was done was a mere " irregularity," 
 it was cured by the certificate of work which the plaintiff subsequently 
 received from the Eeeorder for the Rebecca, viz., in August, 1899, and 
 which he duly recorded ; for by sec. 28 
 
 " 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 effect the title thereto, and it shall be assumed that up to that date the j„Hg,v,eni- 
 title to such claim was perfect, except upon suit by the Attorney-General below 
 based upon fraud." Walkem', J^ 
 
 The next objection is that the aflSdavit made by the plaintiff for the 
 purpose of obtaining the above mentioned certificate of work on the 
 Rebecca, is untrue, inasmuch as it states that the work was done, con- 
 trary to the fact, on the Eebecca. This affidavit was made in the office 
 of the Eeeorder at Nelson, and on his advice ; for, before the plaintiff 
 made it, he told the Eeeorder that the work had not been done on the 
 Rebecca 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 Eeeorder 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 Eebecca, 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 
 fully confirms the plaintiff's evidence in this respect. The plaintiff 
 was thus misled by the Eeeorder, and such being the case, sec. 53 which 
 I have above quoted, protects him. Moreover, in view of the facts 
 stated, I regard the incorrect filling up of the affidavit, as a mere 
 irregularity. What the plaintiff ought to have stated, and the Eeeorder 
 should have so informed him, was, in effect, that the work was done 
 on the Ida as assessment work for the Ida and Eebecca, by permission 
 of the Gold Commissioner. I would also observe that I wholly absolve 
 
458 
 
 MARTIN'S MINING CASES. 
 
 [vol; 
 
 1901. 
 November 7. 
 
 FcjLL OorsT. 
 
 Judgment 
 
 below, 
 
 AValkem, J. 
 
 the plaintiflE from any intention to misstate the facts in his affidavf?! 
 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 pn 
 the Ida, which was the sinking of a shaft, ten feet deep in solid rock, 
 was not done on thajt 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 plain- 
 tiff 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 be- 
 tween 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 harsh 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. 347, 
 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, 
 manifestly, in substance, a charge that he obtained his certificate of 
 work by fraud, or in other words, by means of a false affidavit. Now, 
 even if this were true, the certificate could not, according to sec. 28, 
 be set aside, except fraud in obtaining it was proved in a suit brought 
 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 
 and that thie Mining Recorder was responsible for it, and that this last 
 circumstance would, under the Act, of itself absolve the plaintiff from 
 blame. I have no hesitation in saying that perjury could not be 
 assigned as against the plaintiff on the affidavit mentioned, as there 
 was an absence of a mens rea on his part when making it ; and perjury 
 would be the test of whether the affidavit was fraudulent or not. 
 
1 
 
 I] LAWR V. PARKER. 459 
 
 The plaintiff is, in my opinion, entitled to iudement in his favour, I90i. 
 
 with costs. Nov^err. 
 
 Full Oohrt. 
 Ikving, J 
 
 The defendant appealed and the matter was argued at Vancouver Martin, J. 
 on 29th June, 1901, before McColl, C.J., Irving and Maktin, JJ. ^ ^^^j 
 
 Davis, K.C., for appellant: The question is, does sec. 28 cure the Argument, 
 defect of the work not being done on the claim at all ? He referred to 
 B. C. Statute 1898, ch. 33, sec. 6. 
 
 Judgment for plaintiff with costs. 
 
 S. 8. Taylor, K.C., for respondent. 
 
 Cur. adv. vult. 
 
 November 7th, 1901. 
 Per CuHTAM : — The appeal is dismissed with costs. 
 
 Later the following judgments were handed down : Judgment. 
 
 Irving, J. : — I am of the opinion that it was not open to the plain- 
 tiff to challenge in this action the correctness of the method by which 
 the defendant obtained his certificate of work ; I am inclined to think 
 that error in this matter should be taken advantage of within a reason- 
 able time by application to the Attorney-General. 
 
 Having disposed of the question of work being performed outside of 
 the claim, the case comes to this : The plaintiff had a properly located 
 claim, duly recorded and had obtained and recorded a certificate of 
 work, the defendant or his predecessor in title comes on the ground 
 and jumps it. The conclusion of the learned Judge appealed from was 
 right. The appeal should be dismissed with costs. 
 
 Martin, J. : — So far as the effect of sec. 28 is concerned this case 
 cannot he distinguished in principle from Qelinas et al. v. Clark 
 (1901), 8 B. C. 42, ante, p. 428. Our attention was drawn to sec. 5, 
 ch. 33 of the Mineral Act Amendment Act, 1898, but I share the 
 opinion expressed during the argument that its effect is merely to 
 provide for an extension of the time within which the certificate can be 
 obtained, and once it is obtained either within the original or the ex- 
 tended period, see. 28 operates as best it may on either of such periods. 
 It being admitted that if the respondent succeeds on this point he 
 can on the other under sec. 53 it remains only to dismiss the appeal 
 with costs. 
 
 Appeal dismissed. 
 
 Note. — Affirmed by Cleary v.. Boscowitz, post p. 506. , 
 
 See Payme Consolidated Co. v. Wilson, ante, p. 485. 
 
460 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1901. In re Watbk Clauses Consolidation Act, 1897.. 
 
 November 20- 
 
 FullCouet. Centre Star Mining Co. et al. v. Brit. Col. Southern Ey. Co. 
 
 ET AL. 
 
 Statement. 
 
 Argument. 
 
 Judgment 
 
 below, 
 Martin, J. 
 
 (8 B. C. 214.) 
 
 Water Record — Priority — Joint Application for Record — Jurisdiction — Joint 
 Ownership — Co-owner — Purposes for which Water required, "Mining, Domes- 
 tic, Fire, cC-o. — Duty of Gold Commissioner — Notice, Validity of — tiurplusage 
 — 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. 
 Semhle, — '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 Maktin, J., affirmed. 
 
 Appeal by the British Columbia Southern Ey. Co. from a decision 
 of Martin, J., reversing the decision of the Gold Commissioner re- 
 fusing appellants' application for water records. 
 
 The original appeal from the Gold Commissioner was argued at 
 Eossland before Martin, J., on 38th May, 1901. For the purposes of 
 this report the facts are sufficiently stated in the judgfnent. 
 
 Gait, for the appellants, the Centre Star Mining Co.. 
 
 DaviSj K.C. {W. 8. Beacon, with him),- for respondeiits. 
 
 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 pro- 
 vision in favour of " every owner of a mine." By sec. 10, sub-sec. 13 
 of the Interpretation Act " words importing the singular number . . 
 only shall include more persons ... of the same kind than one,"' 
 and by sub-sec. 14 the word " person " includes any body corporate. 
 
I.] CENTRE STAR MINING CO. v. B. C. SOUTHERN RT. CO. 461 
 
 It is admitted that in the case of two corowners of one mine there jf^^g-^j^^g^go. 
 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, FdllCoubt. 
 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 eases 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 appli^ 
 cation. 
 
 Seeing that the statute does not prohibit the acquisition of such an 
 interest there is nothing at common law which is opposed to water 
 records being held jointly like any other form of property ; the objec- 
 tion is therefore overruled. 
 
 It is further objected that the notice given under said Part II., was 
 invalidated 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 " agricul- 
 tural, domestic, . . . mechanical or industrial purposes " must 
 be made under sec. 8 to the Commissioner of Lands and Works or his JufigKis-nt 
 
 T , . below, 
 
 assistant or representative m the district. Maktin, j. 
 
 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 Com- 
 missioner. The statute certainly contemplates distinct applications to 
 two distinct officials of limited jurisdiction. But does the fact that an 
 applicant, 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 applica- 
 tion 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. For the applicant it is 
 on the other hand contended that the unauthorized request should be 
 treated as mere surplusage and that the Gold Commissioner sjiould 
 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 requfest and dismissed the application. Of course 
 neither under sec. 13 nor 18 can the Gold Commissioner do more than 
 
462 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1901. grant a record for that amount of water which in his discretion shall 
 November. 20. ^^ u reasonably necessary for the purposes specified in the application," 
 Full Coort. 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 " 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, hona fide^ to obtain 
 the, in many instances, all important benefits of the Act. In the case 
 of such an applicant 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 public or private interests are likely 
 to suffer by allowing an applicant to abandon any part of the claim in- 
 cluded in his notice. 
 
 In the present case, apart from the admitted " mining purposes," 
 it might on investigation appear that under the particular circum- 
 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 deter- 
 mine on the facts of each case — it might be proper to grant it for such 
 purposes to one applicant and not to another. 
 
 My decision herein is not that it was necessary that there should 
 have been any amendment of the notice but that the Gold Commis- 
 sioner was not justified in refusing to exercise the powers he had be- 
 cause the applicant asked him to exercise those he had not. When 
 the applicant declared his readiness to abandon what the Gold Commis- 
 sioner 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 re- 
 versed 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 Eailway Company. 
 
 Appeal allowed with costs. 
 
 Judgment 
 
 below, 
 Martin, J. 
 
 Appeal. 
 
 Argument. 
 
 From this Judgment the railway company appealed to the Full 
 Court and the appeal was argued at Vancouver on 7th November, 1901, 
 before McColl, C.J., Walkem, Drake and Ieving. JJ. 
 
 Davis, K.C., and MacNeill, K.C., for the appeal. 
 Gait, contra. 
 
 Cur. adv. vult. 
 
Judgment.. 
 
 I,] CENTRE STAR MINING CO. v. B. 0. SOUTHERN RY. CO. 46a 
 
 November 30th, 1901. ^oveX ao. 
 The judgment of the Court was delivered by j^.^^^ Court. 
 
 Drake, J. : — This cause depends entirely on the construction to be p^" j 
 placed on the Water Clauses Consolidation Act, ch. 190, K. S. B. 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 
 forks of Murphy Creek; the water was purposed to be used for 
 operating machinery for doraestic and fire purposes, and for general 
 purposes of mining and milling ore, and generating power, and to be 
 jised on or in the vicinity of the War Eagle and Centre Star mines 
 aikiate on Eed Mountain. The British Columbia Southern Eailway 
 Company made an application for water, subsequent in date to that of 
 the mining companies, and opposed their application on the grounds 
 that the Act did not contemplate a joint application by two indepen- 
 dent companies having no connection one with the other, and not 
 even adjoining each other, and further that the application for water 
 for domestic purposes could not be made under the sections of the 
 Act ■ relating, to applications for water for mining purposes ; they also 
 objected on the grounds that the locality where the water was to be- 
 used was too indefinite and not in accordance with the Act. 
 
 The learned Judge who heard the appeal from the refusal of Mr.. 
 Kirkup to grant the rights asked for, referred the matter back to Mr.. 
 Kirkup. 
 
 Sec. 11 of the Water Clauses Consolidation Act directs where the 
 .notices of intention to apply for a record shall be posted up, and what 
 the notice shall contain. 
 
 It is not disputed that the necessary notices were duly given, but it 
 is argued that the notice is void and the application also void because 
 of the objections already stated. 
 
 The only absolute pre-requisite for the record of water is, that 
 notice shall be given as required by the statute containing the parti- 
 culars mentioned. 
 
 An applicant may ask for more than the law* will allow him, he 
 may specify things in his notice which are not mentioned in the Act,, 
 these things will not render his application void. Sec. 13 shews that 
 the Commissioner is acting as a judicial officer — in dealing with water 
 applications he has to consider the unrecorded water open for diver- 
 sion — ^the amount available — pending applications, and generally all 
 the surrounding circumstances; he has to exercise his discretion on 
 all these matters before he allows the record. 
 
 If more persons join in an application than the law contemplates,, 
 or if some of the uses for which the water is to be put are not in his 
 opinion correct, he has power to make the record, omitting those 
 matters which are in his opinion incorrect, just as much as he has- 
 
464 MARTIN'S MINING -CASES. [vol. 
 
 1901. power to limit the amount of water to be used, or define the particular 
 November 20. pj^^^ ^^ ^-^^ mining property on which it is to be used. In my opinion 
 Fdll Couht. in this case the petitioners ought to be called upon to elect for whom 
 Drake, J. they will apply. The intention of the Act 'it appea:rs/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 contem- 
 plation 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 be 
 absorbed for scattered miners under one application, Therefore, the 
 rfippeal 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. 
 
 Note. — See the next case, and Columbia River Lumber Co. v. Ynill, ante, 
 p. 64, and note thereto; and also ante, p. 422. 
 
I.] WAR EAGLE CON. MIN. & DBV. CO. v. B. C. SOUTHERN RY. CO. 
 
 465 
 
 In eb Watee Clauses Consolidation Act, 1897. 
 
 War Eagle Consolidated Mining and Development Co. Ltd., 
 ET AL. V. British Columbia Southern Ey. Co. et al. 
 
 1901. 
 November 20. 
 
 Full Court. 
 
 (8 B. C. 381.) 
 
 Water Record — Priority — Pending Applications — Conflicting Jurisdictions — 
 Gold Commissioner — Assistant Commissioner of Lands and Works — Water 
 Clauses Consolidation Act. 
 
 Where two difEerent ofiBcials are called upon to exercise their functions in 
 regard to applications for water rights in respect of the same water, tho 
 official who is determining the later application should stay his hand until 
 the final result of the prior application before the other official is known. 
 
 Decision of Mabtin, J., affirmed. 
 
 Appeal from a decision of Martin, J., reversing a decision of the 
 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. For a full statement 
 of the facts and proceedings : see ante, p. 432. 
 
 The original appeal was argued before Martin, J., on 28th May, 
 1901, and on 1st June he delivered judgment as follows : 
 
 Statement. 
 
 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 been 
 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 
 at all, so consequently the Assistant Commissioner proceeded under 
 see. 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 pro- 
 cedure on an application for a grant of recorded water shall be the 
 same as that on an application for unrecorded water under sec. 13, 
 yet I see nothings in the language of that sub-section which would 
 prevent the adoption of the course herein taken were it not otherwise 
 objectionable. 
 
 M.M.C. 30 
 
 Judgment 
 
 below, 
 Maetin, J. 
 
466 
 
 MARTIN'S MINING GASES. 
 
 [tol. 
 
 1901. But sec. 13 requires the adjudicating official under either section 
 
 November 20. j.^ j^^^^ regard to " pending applications/' and at the hearing before- 
 PvLL Court, the Assistant Commissioner now complained of the appellants appeared 
 and objected to his disposing of the application of the respondent 
 Company until the application of the appellants under sec. 11 then 
 pending before another independent ofBcial, the Gold Commissioner,, 
 had been finally disposed of on the appeal fr'oin his deci^oil set down 
 for hearing before this Court. As a reason for the postponement of 
 the matter pending skid appeal it was provfed that the priot applica- 
 tion of the 'pfesfent appellants for 175 inches embraced nearly all 
 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 contem- 
 plates such a course, and it would appear to be most seemly where two- 
 d'iffereSttt officials are exercising their distiiict functions in regard to 
 water riglits, tliat the official who is determining the junior applica- 
 tion should stay his hand till the final result of the senior application 
 before another official in regard to the same water be known, except 
 of course when it clearly appears that the volume of water is sufficient 
 to satisfy all applicants. 
 
 It follows from the judgment I have just delivered in the ease of 
 the Centre Star Mining Co. v. B. C. Southern Railway Co.* to whieh> 
 I refer, that the rights of the appellants have been prejudicially 
 affected by the adjudication or decision complained of, and that ad- 
 judication 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 Commis- 
 sioner for re-hearing and re-adjudication. 
 
 The respondent e6tilf)any will pay the costs of this appeal. 
 
 JddgmeUt 
 
 below, 
 Mahtin, J, 
 
 Appeal. 
 
 Argument. 
 
 The railway coiiipahy appealed to the Full Court, and the appeal 
 was kl'gued at "Vandotiver, on 29th Juile, 1901, before McColl, C.J.,. 
 WAiKElii and iJaviNG, J J. 
 
 Da^is, K:.C., fOr ap|)6llaht. 
 
 Gait, for respondeilt. 
 
 Cur. adv. villi. 
 
 *Since reported, ante, p. 400. 
 
I.] War eagle con. min. & dbv. Co. v. b. c. southern ry. co. 
 
 467 
 
 November 20th, 1901. 
 Per Curiam : — The appeal is dismissed with costs. 
 
 Later the following judgment was handed down by 
 
 Ikving, J. : — This is an appeal from Mr. Justice Martin, who can- 
 celled the certificate issued by Mr. Commissioner Turner, under the 
 Water Clauses Consolidation Act on the let day of June. 
 
 In my opinion the decision of the lentaei Judge appealed from is 
 correct. I do not think that the framers of the Act ever contem- 
 plated that the officer applied to, be he Gold Commissioner or Land 
 Commissioner, for a record of water ufldet sec. 13, should Shut his 
 eyes to the fact that applications were bMng made to the official re- 
 presenting the other department. Both sees. 13 and 14 point to this 
 conclusion, and I see no way of giving the full effect to sec. 16 if the 
 contention of the appellants is acceded to. 
 
 Appeal dismissed with costs. 
 
 1901. 
 November 20 
 
 Full Couet. 
 
 Irving, J. 
 
 Judgment. 
 
 Note. — See preceding case and note thereto. 
 
468 MARTIN'S MINING CASES. [vol. 
 
 'Jamfary 10 ^^""^^ MINING AND MILLING Co. LtD. LbY. V. BtKON N. WhITE Co. 
 
 — ' (Foreign). 
 
 Full Co.uht. 
 
 (9 B. O. 9.) 
 
 Mineral Claim — Inspection and Experimental Work ■ — • Plans — Extralateral 
 Rights — Apex — Form of Order ■ — Undertaking as to Damages — Costs^ 
 Appeal. 
 
 Au Older for inspection and survey of a mine and for making copies of plans 
 thereof in an action -concerning extralateral riglits should contain an under- 
 taking for damages, but not a direction that security be given. 
 
 Form of order settled. 
 
 Costs of an interlocutory appeal are payable forthwith. 
 
 Statement. 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 Eabbit 
 , Paw mineral claims in Group One, "West Kootenay District, and the 
 d.efemdants were the owners of the adjoining mineral claims, the 
 Slocan Star and the Silversmith, both of which were located and re- 
 corded in October, 1891. The defendants alleged that in carrying 
 on mining operations upon their claims they discovered a vein which 
 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 the 
 vertical side lines of the surface locations of their claims and entered 
 into and under the ground comprised within the surface locations 
 of the Heber Fraction and Eabbit Paw claims, and that in following 
 this vein upon its dip and pursuing lawful mining operations thereou 
 they had entered underneath the plaintiffs' claims which they sai'l 
 they had a lawful right to do, and that was the alleged trespass com- 
 plained of. In paragraph 5 of the statement of claim it was alleged 
 that defendants were allowing some of their workings to cave in or 
 filling them with waste raaterial and were concealing different work- 
 ings to the damage of the plaintiffs. On plaintiffs' application, Mc- 
 OoLL, C.J., on 11th December, 1901, made an inspection order wh'oh 
 was in part as follows : 
 
 " And the plaintiffs by their counsel undertaking to abide by any 
 
 order this Court may make as to damages in case this Court should be of the 
 opinion that the defendants have sustained any by reason of this order or 
 anything done thereunder by the plaintiff -which the plaintiff ought to pay, 
 and the plaintiff, by counsel aforesaid further undertaking that any inform- 
 ation obtained by them in the course of the inspection hereinafter referred to 
 shall be used by them for the purposes of this action only, and shall not be 
 ■otherwise disclosed by the plaintiffs. 
 
*.] 
 
 STAR MINING &. MILLING CX>. v. BYRON N. WHITE 00. 
 
 '4-69 
 
 " It is ordered that the plaintiffs, by tlieir officers or any of tliem, their 1902. 
 
 solicitors, agents, surveyors, engineers, or representatives not exceeding ten January 10. 
 
 (10) in number at any one time, may be at liberty at all reasonable times 
 
 upon giving twenty-four hours notice by delivering the same to the manager Full Court. 
 or superintendent, or any other person in charge of the defendants' works at 
 Sandon, B.C., to enter into and upon the Slocan Star, Jennie, Windsor and 
 Silversmith mineral claims, and inspect, examine, and make surveys and plans 
 of any and all tunnels, drifts, shafts, winzes, stopes, raises or other workings or 
 mining operations whatsoever of the defendants, whether abandoned or in use 
 upon or in any of such mineral claims above named, so far as may be necessary 
 to ascertain whether the defendants have worked or are working into or under 
 the surface of the Heber Fraction and Rabbit Paw mineral claims, and the' 
 nature and extent thereof and the quantity of mineral or ore (if any), re- 
 moved 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 said Heber Fraction and Rabbit Paw mineral claims ; and for 
 any and all of said purposes to enter into and upon and inspect, examine, make 
 surveys and plans of the extensions of all of such workings or mining opeT- 
 ations which may be into or under the surface of the Heber Fraction and 
 Rabbit Paw mineral claims ; and for any or all of said purposes to inspect 
 and make copies of the workings 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 any 
 or all of the said above named mineral claims; and to take samples, make 
 observations and try experiments as may be necessary to accomplish the 
 purposes aforesaid or obtain full information or evidence of the matters 
 aforesaid, or any of them, and for all or any of the purposes aforesaid, and in 
 order to ascend and descend to use the defendants' machinery, plant, and 
 appliances." 
 
 The defendants appealed, and the appeal was argued at Victoria, 
 on 9th January, 1902, before Walkbm^ Irving and Martin, JJ. 
 
 Appeal. 
 
 Bodwell, K.C., for appellants, stated the facts, and said a form Argument, 
 of inspection order should be settled so that it could be used as a pre- 
 cedent in cases of extralateral rights. The plaintiffs are only put on 
 an undertaking as to damages — ^they should give security as a party 
 should not be left to put in force an undertaking which is a difficult 
 thing to enforce, and besides an undertaking might prove a very 
 poor security. The order should not allow the other side to make 
 ■ copies of our plans, charts, &e. ; it has never been done here before. 
 The American practice is that the parties mating the inspection make 
 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 JE. & N. Railway Go. 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 
 application 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 
 
470 MARTIN'S MINING CASES. [voj,. 
 
 1902. and the Court is not bound by precedents^ as there are no cases 
 
 January 10. , 
 
 — analogous. 
 
 FlIIL COUBT. 
 
 Davis, K.C. (8. S. Taylar, K.C., with him), for respondents: 
 There is an allegation that defendants are filling up some workings 
 so we Ta.\\si see the plans. It is sot 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 Mash (1898), 6 B. C. 
 3.55, ante, p. 367, we don't mean that, afld are willing to let the order 
 so read. The order follows the wording of Eule 514, and therefore 
 there is no question as to the necessity of security — the form always is 
 an undertaking. He ref edited to Daniell's Ch- Fornw, 786; Pratt v. 
 PraU (1882), 47 L. T. N. S. M9i; Boawn v. WeU (1901), 3 Ck 74, 
 and Bennett v. Gri§ths (1861), 30 L. J., Q.B. 98. 
 
 Bodwell, K.C., in reply. 
 
 January 11th, 1902. 
 
 Judgment. The judgment of the Court was pronounced by Walkem, J., as 
 
 follows : 
 
 Per CuEjAM : — The appeal by the defendant copipany 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 pre- 
 sence of the phrase in the order was not one of the grounds of appeal, 
 we consider that the above amendment should not affect the ques- 
 tion of costs. 
 
 Appeal dismissed with costs. 
 
 Boidwell, 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 reseirved uniil the next day when the 
 Court announced that they were all agreed that in interloeiltfiiify 
 appeals the successful party when allowed costs should get them forth- 
 with, and not have to wait until the end of the litigatLo®, 
 
 Nqxe. — See as to the enfoaxement of this order, pcfst, p. 513. 
 
1.] 
 
 PAULSON V. BEAMAN et al. 
 
 471 
 
 Paulson v. Beaman et al. 
 
 1902. 
 April 17. 
 
 A^yi^rsfi Action — Map or Plan— Survey — Affidavit — QQpMtion Preced^mt to ^^^i- Cohbt. 
 Right of Action — Provincial Land Surveyor — Oaths Act — Mineral Act, 
 sec. 37, and Amendments. 
 
 It is a c<?ndition precedeint to righp of adverse action that an affidavit and 
 plan should be filed as required by Mineral Act, sec. 37, and Amendments. 
 
 Such plan must not only be made and signed by a provincial l^nd purveyor, 
 but the survey on which it is based must be made by him. 
 
 JMaktin, J,., reversed on these, points, Hunteb, C.J., dissenting. 
 
 Per Maktin, J. : — ^The provisions of the Oaths Act, sec. 16, apply to aflBdavits 
 filed under said sec. 37. 
 
 Appeal from a d^ej,^Qii of Martin^ J., given during the trM of 
 «n adverse a,ction at Nelson, pn the 19th and 20th of February, 1903. 
 
 McCann, K.C., and B. M. Macdonald, for defendants : We object 
 to the admissibility and validity of the affidavit purported to be filed 
 under sec. 37 as amended by sec. 9 of the Mineral Act Amendment 
 Act, 189,8, because there is no date at all given in the ]ura,t; it is a 
 nullity: In r& Robertson (1869), 5 P. E. 133; Archibald v. llubley 
 (1890), 18 S. C. 116; 8chultz v. Archibald (1893), 8 Man. 284; 
 The Duke of Brunswick v. Harmer (1850), 19 L. J. Q. B. 456; In 
 re Lloyd, Ih., p. 457. 
 
 8. 8. Taylor, K.C. {O'Shea, with him), for plaintifE: The defect 
 is cured by the Oaths Act, ch. 3, E. S. B. C. sec. 16, which Act first 
 appealed in this Province in 1892, eh. 1, sec. 15; see also Eddoives 
 Y. Thfi Argentine Loan & Agency Go. (1890), 59 L. J. Ch. 393; the 
 •exhibit marked on the plan accompanying the affidavit shews tiat 
 there is no doubt the affidavit was sworn in August, 1900, and the 
 'Court may well "think proper to receive it," under the discretion 
 ■conferred by see. 16. 
 
 Per Curiam: — (After referring to the cases of Nesbit v. Cock 
 (1879), 4 A. E. 3>00; Ford v. Kettle (1882), 9 Q. B. D. 139; Inman 
 V. Rae (1895), 10 Man. 411; Be Marquette Election (1896), 11 Man. 
 38:1.) Section 16. cures tha defect as. to adniissibility, and und^Qr the 
 eiroiimstances the affidavit should not be rejected. It is in eSect 
 tendered in evideaaoe as propf of compliance wiith the adverse sections, 
 whacla is disputed : it is receivable in evideiaee for what it is 'wCffth. 
 
 *Partly reported in 9 B. C. 184. 
 
 Statement. 
 
 Argument. 
 
 Judgment. 
 
472 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1902. Macdonald. Then we object to the plan produced by the plain- 
 
 April^i7. j-jg j^g j^Q^ complying with the same section of the Act. The fact 
 
 Full Court, that it is directed to be made and signed by a surveyor shews it must 
 
 Argument, ^e 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 caoanot 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 hav- 
 ing " 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. 
 
 Judgment. 
 
 Per Curiam : — The, sole objection really is that the plan is not 
 accurate because the surveyor did not himsdf make a. personal survey 
 before drawing the plan. How can it be said at this stage of the case 
 whether it' is accurate or not ? If I were to dismiss this action on 
 the groimd that this plan wias not accurate, and it should turn out 
 during the course of the trial to be so, what position would the Court 
 be placed in ? I cannot dispose of the action on this preliininary ques- 
 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 
 be called a map or plan, then the objection would prevail without 
 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 
 present objection) it appears to " set forth the nature, boundaries 
 and extent" of the "such adverse claim," so that the defendant has full 
 notice of the plaintiff's claims, and if it does, then the statute is for 
 the present satisfied, and I would not be justified in dismissing the 
 action. I do not determine the question of sufficiency merely by the 
 title of the map. It was admitted that the plan was "made and 
 signed " by a provincial land surveyor, and the mere fact that it does 
 not appear on the face of the map that he surveyed the adverse claim 
 before he made ^;he map or plan does not warrant me in rejecting it. 
 
 The adjudication of the plan as sufficient now does not say that it 
 may not yet be shewn that it is not a " map or plan '' within the mean- 
 ing of the Act. 
 
 Objections overruled. 
 
 The case was then proceeded with, but after some evidence was 
 taken the plaintiff applied for a postponement of the trial, to prove 
 his free miner's certificate, and also the survey, which postponement 
 was granted, largely on the ground of some uncertainty' having been 
 created by a certain consent order made on the 4th of December, 
 
I.] 
 
 PAULSON V. BBAMAN et al. 
 
 ,473 
 
 1901, by which leave had been given to the plaintiff to apply at the 1902. 
 
 trial to put in evidence of measurements. ^— 
 
 Fdll Couht. 
 
 The defendants appealed and the appeal was argued at Vancouver, huntek, O.J. 
 on 17th April, 1902, before Huntee^ C.J., Walkem and Irving, JJ. ^ ^ 
 
 Davis, K.C., for appellants: The plan must be based on an actual 
 survey made by a provincial land surveyor ; the af&davit is defective. 
 
 8. 8. Taylor, K.C., for respondent : The plan and affidavit fulfil Argument, 
 the statutory requirements : the filing of them is not a condition pre- 
 cedent to a right of action ; they do not go on the records of the Court, 
 but are filed in the Mining Eecorder's office, for the benefit of the 
 public, quite distinct from proceedings in Court. 
 
 Per Curiam. (Hunter, C.J., dissenting) : — The plan must be Judgment. 
 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 dis- 
 missed 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 ad- 
 missibility and validity of the affidavit and plan which the plaintifE 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 plai'ntiff, 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 provineia,l land surveyor, and makes the filing of such affi- 
 davit 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. 
 
474 MARTIN'S MINING CASES. , [VQjt. 
 
 1902. but which I do not think it necessary to stop to discuss, I am of opinr 
 
 Apni^iT. -^j^ ^.j^^^ -^ -g j^Q^ correct to say either that the plan must be based 
 
 ruLLCouiiT. on a survey by a provincial land surveyor, or that the filing of the 
 
 HuNTKB^ C.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 ainended by 
 1898, ch. 33, sec. 9, and 1899, ch. 45, see. 13, the latter amendment 
 being iijiniaterial fpr the present purposes. 
 
 The revised statute required the. plaintiff to compjence his action 
 within the sixty days, to file the copy of the writ with the Mining 
 Eecoirder within twenty days after the issue thereof, and to prosecute 
 the action with reasonable diligence, and failure to so comipence 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 Becorder and the public that thp litigation is going on. So 
 likewise at the termination of the litigation, the successful pfijty 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 re- 
 quiring the plaintiff to also file an affidavit setting forth the naiure, 
 boundari€s and extent of his claim, together with a plan made and 
 signed' by a provincial land surveyor, and obviously this is an im- 
 provement 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 public. 
 
 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 require- 
 ments to my mind implies that they are all for the same purpose, 
 and, as I have already said, it is plain that the filing of the copy of 
 the writ cannot be required for the purposes of the litigation. 
 
 The statute, moreover, makes a failure to commence or prosecute 
 the action in the required manner a waiver of the plaintiffs claim, 
 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 ^le 
 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 delivered to the opposite party? 
 It is, moreover, clear that the filing of these documents cannot be a 
 
I.] PAULSON V. BEAMAN bt al. 475 
 
 -condition precedent to tke right to commesEce the litigation, ag they ^ ^"Pj^- 
 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 Fuu- Court. 
 to continue the litigation, although I see no reason to doubt that the irving, J. 
 defendant may invoke the general jurisdiction to stay proceedings ,m 
 khe event of nonrcomplianco. The tjuth of the niatter is, that we find 
 an enactment relating to ancillq,ry proceedings in the ofiice of thp 
 Mining Eecorder set in the middle of an enetctment relating to legal 
 proceedings like a boulder in a bed of congioinerate, -vyhich will not 
 •surprise anyone who is aware that any nienjber of the IJouse niay 
 initiate legislation of thig sort without its haying undergone any pre- 
 vious supervision by some law officer of the CrQwn. 
 
 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 
 •actual survey. All that is required is that the plan should be, in the 
 words of the section, " made aufl signed by a provincial land surveyor." 
 Now, it seems to me, that as Mr. Taylor pointed out, the word " made " 
 is interpreted for us in sub-sec. (c) of the previous section, and it is 
 ■evident that tliere it is not used in the sense contended for by Mjr. 
 Davis, and it is a rule that a given word shall be assigned the sajne 
 meaning, as far as possible, throughout the statute as regards the same 
 -subject matter: sec Uai-dcastle, p. 186; Courtauld v. Legh (1869), L. 
 E. 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. jST. S. at p. 813. 
 
 If it had been the intention of the Legislatui-e to require the 
 survey tlien nothing would have been easier tl^an to have said so, 
 but it seenjs to me that this was advisedly not, required, as the adverse 
 'Claimant roigjit thereby ha,ve 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 wifch costs. 
 
 Irving, J. : — Within the last few years the Legislature has in- 
 sisted upon the person claiming an Sjdverse right filing in the Ee- 
 corder's office, an affidavit setting forth the nature, boundaries and 
 'ej^tent of his adverse clajija; together ■vv;ith a map or plan thereof made 
 apd signed by a. provincial land sraveyor. 
 
 The affidavit and plan must be filed within twenty days after the 
 issue of the writ. Whether the object of the Legislature in requiring 
 "this to be filed was to pin the claimant down to a statement of his 
 ■claim at an early date, and so prevent fraud, or to eaable the defend- 
 ant to elect whether he would abandon the part claimed, or merely for 
 the information of the department, or as a notice to the public, or 
 for accelerating the trial, it is unnecessary to discuss. 
 
476 MARTIN'S MINING OASES. I vol. 
 
 1902. The affidavit and plan must be filed within that time, or within 
 
 AijriU?. g^j.]-^ extended time as may be allowed by the Court. We have had 
 f ULL Court, numerous applications, under this section, for an extension of time, 
 Irving J. "which has been granted in many cases, and in other cases the exten- 
 sion refused; and in all cases where the time was not extended the 
 action was supposed to be at an end. The usual ground put forward 
 on an application for an extension, is that the snow on the ground 
 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 
 surveyor ftom^data supplied to him by one of the parties to the action. 
 The filing of such document is not, in my opinion, within the spirit 
 or letter of the Act. . At the trial of the action, it was made to appear 
 that the map filed had been drawn by a provincial land surveyor from 
 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 apply to 
 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, I 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 plain- 
 tiff might complete his evidence. This adjournment was quite un- 
 necessary. It delayed the defendant in getting his certificate. It pre- 
 vented him from giving affirmative evidence of his title, if such 
 evidence was necessary. I think we should now make the order that 
 the learned Judge ought to have made, namely, dismiss the action on 
 the ground above stated. The appeal will be allowed, and the action 
 dismissed. 
 
 Appeal allowed. Hunter, C.J., disseniing. 
 
 NOTE.^ — ^As to conditrons precedent, see KUTjourne v. MoOuigan, ante, p. 142. 
 As to affidavit made by husband of owner: see Aldous v. Hall Mines Co., 
 ante, p. 213. 
 
I.] McKELVEY v. LE ROI MINING CO., LTD. 477 
 
 1902. 
 
 McKelvey v. Le Eoi Mining Company, Limited. April 22. 
 
 (9 B. C. 62.) 
 
 Mines (Metalliferous) Inspection Act — Accident to Miner caused ty Falling 
 Cage — "Falling Material" — Bulkhead — Pentica — Statutory Duty of Owner 
 to Maintain — Practice — li. S. B. 0. 1897, ch. IS.'i, sec. 25, rule 20, and 
 Amendment of 1899, sec. 12. 
 
 A cage used for lowering and hoisting men is not " falling material" within 
 the meaning of that term as used in rule 20 of sec. 25 of the Metalliferous 
 Mines Inspection Act, and the amendment of 1899 (ch. 49, sec. 12), does 
 not impose any duty on the mine owner to provide protection from a fall- 
 ing cage. 
 
 Decision of MoColl, 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 bulk- 
 head, 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 re- 
 turned 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 ip. their action and, therefore, allowed the cage to fall. 
 
 (3) 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 iit to enter any judgment;,, 
 l)ut left the parties to move the Full Court as they might be advised. 
 The Pull Court referred the case back, and on motion for judgment 
 the Chief Justice, 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. 
 
 Full Cohet. 
 
 Statement. 
 
478 
 
 lllAlRtlN'S MINING CASES. 
 
 [VOL.. 
 
 1902. 
 April 23. 
 
 Fdll Court. 
 
 The following are extracts from his remarks, made during thu- 
 course of the trial: 
 
 " There is only one point in this case ; the result shews plainly 
 that whatever bulkhead there was was not strong enough, otherwise the- 
 accident could not have occurred. 
 
 " Ifow these words (referring to falling material) in their ordin- 
 ary sense and meaning do not apply to or include the cage of the 
 hoist. Then; coming to the ainendtnent, it ptovides tha.t 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 
 defining 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 (6) 
 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 Ahy Legislature would, in giving protection to the man below the 
 cagie, leave any person Who might be in the cage itself unprotected. 
 That being so, there is flothiilg for the juty on this branch of the 
 case, and as to the question of the bulkhead, it is conceded that the 
 bulkhead was insufificient as against the eage^ and there is nothing, 
 therefore, to go to the jury on that point. Now, coming to the negli- 
 g&bce of the engineer, which was the primary cause of the accident, I 
 do not understand that you eoittend that you have any claim for the 
 negligence of a fellow-servant, such as this man was. 
 
 " Now, if there is anjfthing left in the case at all, it is this, that 
 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." 
 
 Appeal. The plaintiff appealed, and the appeal came on for argument at 
 
 Victoria, on 7th January, 1903, before Walkem, Ieving and Mak- 
 TIN, JJ. 
 
 Argument. Hamilton, for respondent, took the preliminary objecitidn that the 
 
 order of McCoU, C.J., referring the motions for judgment to the 
 full Court, is still in existence, and plaintiff should have appealed from 
 it, but the time for appealing has nOw expired. The 'Court has no 
 
I.] 
 
 McKELVEX V. LE KOI MINING CO., LTD. 
 
 479' 
 
 jurisdiction to alter a JTidgment whick accurately expresses the opin- ^^?A„ 
 ion of the Court, and that judgment did. The Full Court has de- ^ 
 clared it had no jurisdiction to hear the motion, and therefore it had ^^^^ Coubt. 
 no jurisdiction to give the parties leave to move the Chief Justice for 
 jwdgmi^lrt: see Preston Banking Company v. William Al'lsup & Sons 
 (1895), 1 Oh. 141. 
 
 objection. 
 
 Per Curiam : — We are bound by our prior order and the objec- J"<3gment on. 
 tion must be overruled. 
 
 Objection overruled. 
 
 IlacNeill, K.C., for appellant: We don't rely upon Employers' Argument. 
 Liability Act, but on defeiidanit's statutory duty to maintain a bulk- 
 head suflBcient to stop the falling cage: see Inspection of Metalliferous 
 Mines Act, sec. ,25, sub-sec. 30, and the amendment of 1899, sec. 13. 
 In the amendment tlie words " falling material " do not occur, so we 
 do not have to shew that a cage is falling material. But to shew they 
 do include a cage, I refer to sub-seic. 17, and say they must i!nclude 
 something more than the material of the mine. The Legislature must 
 have intended something more than natuxal strata, so " falling mater- 
 ial " being wide enough to cover cage, why should it be held not to 
 include it ? For similar rules he referred to MaeSwinney on Mines, 
 675, r. 30; 719, r. 8; Coal Mines Regulation Act, r. 16 (p. 1509, E. S. 
 B. C.) Similar rules in England a,re given a wide interpretation: 
 Scott V. Midland Railway Co. (1901), 1 Q. B. 317 ; Foster v. North 
 H'e^ndre Mining Co. (1891), 1 Q. B. 71; James v. Grand Tru*nh Bail- 
 way Co. (1901), 1 0. L. R. 127; Wales v. Thothas (1885), 16 Q. B. D. 
 340, and Beal's Cardinal Rules of Legal Interpretation, 133-3. Tt*h& 
 Act provides, inspection, &c., as protection fol- the man in the cage. 
 
 Hamilton, for respondent : Section 30 has no reference to cages 
 which are dealt with under separate heading, and headings must be 
 referred to in determining the seiise : see Hammersmith, &c., Pailwdy 
 Co. V. Brand (1868), L. R. 4 H. L. 171; Lang v. Kerr, Anderson & 
 Co. (1878), 3 App. Cas. 539^ Timbering, when used in a mining 
 sense, defers to the tiniibets used to keep the sides from coming in and 
 aot to bulkheads, and it must be given its professional meaning. The 
 Act is in derogation of private rights and should be construed strictly : 
 Barringer and Adams, 784. The "pentice" is not known or used 
 in modern mining. 
 
 Cur. adv. vult. 
 
 Per Curiam: 
 
 April 23nd, 1903. 
 -The appeal is dismissed with costs. 
 
 ,Tu(%ment. 
 
480 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Martin, J., at the time delivered a written judgment which fol- 
 lows, and subsequently Ieving, J., handed down the following judg- 
 FuLL CouBT. ment : — 
 
 1902. 
 April 22. 
 
 Martin, J. 
 Irving, J. 
 
 Irving, J. : — I am unable to say that the decision arrived at is 
 wrong. The section is most unfortunately worded. I do not feel any 
 great degree of confidence in the correctness of the construction 
 placed upon it by the learned Chief Justice, but on the other hand, 
 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 this 
 appeal should be dismissed with costs. 
 
 Appeal dismissed with costs. 
 
 * Judgment delivered on November 21st, 1901, and reponed in 8 B. C. 268. 
 The material part of it is as follows : — 
 
 Martin, J. : — I agree with the opinion expressed by the learned trial 
 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 Inspection 
 of Metalliferous Mines Act. And so far as the amendment of 1809, sec. 12, is 
 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 of sec. 25 instruct us 
 are to be observed " so far as may be reasonably practical,") I am of the 
 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 
 to state where the bulkhead is to be placed or the fifteen feet of solid ground 
 retained, and I find myself unable to say that the precautions adopted by the 
 defendant company, in the shape of lateral screens, are not a sufficient com- 
 pliance with the Act. The fact that a leaving of a " pentice " of fifteen feet 
 of solid ground in the shaft appears from the evidence before us, to be some- 
 thing so very contrary to the ordinary conduct of approved mining operations 
 in this Province, throws some light on the intention of the Legislature and 
 renders it improbable that such was what the Act required, and further, by 
 leaving the pentice, the mine owner would be absolved from obligations, whereas . 
 he became an insurer of the sufficiency of the alternative protection. — a bulk- 
 head. It also, as pointed out by the learned trial Judge, seems inconceivable 
 that the Legislature would seek to give protection to the men below the cage, 
 and lea,ve unprotected those who are in the cage itself. To establish the lia- 
 bility contended for the statute must be amended. 
 
 For other cases under this Act : see Stamer v. Hall Mines Co., ante, p. 
 and note ; and McDonald v. Can. Pac. Exploration Co., ante, p. 379. 
 
 314, 
 
I.] MARINO V. SPROAT Et al. 481 
 
 Making v. Speoat et al. i^*'^ 
 
 May 1. 
 
 Mineral Claim — Development Work, Expense of — Co-owners — Partners^Ad- nJ"ui>L Court. 
 vances ly one of, to Others — Loan — Repayment out of Proceeds of Ore — 
 Agreement. 
 
 Partners and Co-owners in a mineral claim entered into an agreement by which 
 one of the partners and co-owners was to advance to his co-partners in cash 
 the amount of their respective shares of the expenses of certain development 
 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. 
 
 Held, that taken as a whole the agreement could not, in the absence of express 
 stipulation, be construed to exclude the lender from his ordinary right to 
 compel the borrowing partners to ultimately account to him for his advances 
 of their share of the expenses. 
 
 Appeal by defendants Sproat and Mclnnis from a judgment of 
 Irving^ J., in favour of the plaintiff in an action tried by him at 
 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 
 entered into between the plaintiff and each of the defendants Sproat 
 and Mclnnis: 
 
 " Agreement made this 17th day of Beceiliber, A.D. 1898, between O. J. 
 Marino, of New Denver, B.C. (hereinafter called the party of the first part), 
 and Alexander Sproat, also of New Denver, B.C. (hereinafter called the party 
 of the second part). Whereas the party of the first part is desirous of develop- 
 ing in a miner-like way the Marion mineral claim, and whereas the party of the 
 second is the owner of an undivided one quarter interest in the lot of land 
 numbered 2,287, known as the Marion mineral claim and hereafter referred 
 to as such. Now therefore these presents witnesseth, the party of the second 
 part shall be responsible to an amount of $500, as his share of the expenses 
 incurred by the party of the first part in such development, but, according to 
 the terms and conditions herein set forth. The party of the first part agrees 
 to advance, and has advanced to the party of the second part, the sum of $500, 
 bearing intei^est at the rate of ten per cent, per annum until paid, the said 
 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. Making. 
 
 Alex. Speoat. 
 Witness : 
 
 Angus McInnis. 
 
 M.M.O. 31 
 
 Statement. 
 
482 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1902. 
 May 1. 
 
 Full Court. 
 
 Argument. 
 
 Judgment 
 
 below, 
 Irving, J. 
 
 A precisely similar agreement was entered into between the plain- 
 tiif and the defendant Melnnis. 
 
 John Elliott and Lenme, for plaintiff. 
 
 8. S. Taylor, K.C., for defendant Sproat. 
 
 McCann, K.C.j and Christie, for defendant McInnis. 
 
 W. A. Macdonald, K.C., and A. M. Johnson, for defendant 
 Alexander. 
 
 Cur. adv. vult. 
 
 May 6th, 1901. 
 
 Ikving^ 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. Potion (1875), L. K. 
 20 Bq. 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 be- 
 tween '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 re- 
 spectively, that of debtor and creditor. . . . 
 
 . . . As to the meaning of this document — Plaintiff says it gave 
 him a charge on the ore, and secured him interest at ten per cent., and 
 thart 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. Baric (1870"), L. E. 5 Ex. 65, where a subse- 
 quent 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 al. 
 
 48S 
 
 The defendants Sproat and Mclnnis appealed and the argument ^902.^ 
 
 was heard at Vancouver on April 24tli, 25tli, 26th, 38th, 39th, 30th, 11- ' 
 by Hunter, C.J., Walkem and Martin, J J. FullCocm. 
 
 On May 6th, 1902, judgment was delivered dismissing the ap- Martin, J. 
 
 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 alone 
 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 Elliott with him, for plaintiffs, respondents. 
 
 May 1st, 1902. 
 
 Maetin, J. : — It was admitted by the appellants' counsel that on 
 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 
 the execution thereof. It was further submitted that if this course 
 is adopted there will be no escape from the conclusion that the plain- 
 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 suc- 
 cess 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 
 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 
 that where there is room for two constructions, one of which would 
 tend to support a reasonable and probable business arrangement as 
 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 tTie evidence to shew that the ex- 
 planation for the plaintiff's apparently hazardous bargain was to be 
 found in his then mental state of unbounded self-confidence and over- 
 weening, 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. 
 
 Argument. 
 
 Judgment. 
 
484 MARTIN'S MINING CASES. ' [vol. 
 
 1902. but it cannot.be that, when we are asked to close the door against the 
 
 _!!L ■ plaintiff in regard to the antecedent and concurrent circumstances 
 
 Fdll Court, above alluded to, we should open it for the defendants' explanation 
 
 Martin, J. of the same document. The strict construction, if applied to one 
 
 party, must be applied to aU parties. 
 
 Confining the attention strictly to the document the result would 
 be, if the defendants' contention prevail, that in ease 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 a,dvances 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 all 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 part- 
 ners ? If, as contended, the borrowers had been freed from aU per- 
 sonal liability no possible danger could be apprehended of their in- 
 terests in the mine being charged because a charge could not be anti- 
 cipated 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 
 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 
 •enforcing liability for payment of the loan. » 
 
 In my opinion the real meaning of that document is that the 
 plaintiff was to look primarily to the ore for repayment and forego 
 •any claim for security, and in the meantime should have no charge 
 upon the other interests in the mine, but in case of failure to realize 
 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 con- 
 sider 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. 
 
 Appeal dismissed with costs. 
 
 Note. — As to co-partners and co-owners : see note to Alexander v. Heath, 
 ■ante, p. 333. 
 
 For cases re sale of mineral claim : see note to Weii v. Montgomery, ante, 
 p. 129. 
 
I.] 
 
 PAYNE CONSOL. MINING CO. v. WILSON. 
 
 485 
 
 Payne C'oxsolidated Mining Co. Ltd. Ley. v. Wilson. 
 
 1902. 
 May 13. 
 
 Certificate of Work — Irregularity — Time — Extension — Holiday — Mineral Act Martin, J. 
 Amendment Act, 1898, sec. 6. 
 
 A certificate of work is not irregular because it contains more tlian tlie Act 
 requires, nor because it does not shew on its face a statutory extension of 
 time. 
 
 Adveksb action tried at Nelson, B.C., by Maetin, J., on 12th 
 and 13th May, 1902. 
 
 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 Eeturn, as follows : 
 
 MINERAL ACT. 
 
 Form E. 
 
 Certifi,cate of Worh. 
 
 " Return " Mineral Claim. 
 
 This is to certify that an afiBdavit setting out a detailed statement of the 
 work done on the above claim since the 28th day of June, A.D. 1893, made by 
 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 do now issue this certificate of work in respect of the above claim to the 
 recorded holders. Documents and money deposited in this oflice 27th day of 
 July, 1901. 
 
 Statement. 
 
 ANGUS McINNES, 
 
 Dated this 29th day of July, 1901. 
 
 Mining Recorder. 
 
 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 Argument. 
 itself" within the meaning of deary 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 the 28th of June, 1893. 
 
486 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1902. 
 May 13. 
 
 Martin, J. 
 
 Thompson, for the plaintiffs. Since the extended time fell on 
 Sunday, the 28th, then, by operation of sub-sec. 30 of sec. 10 of the 
 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 oflBee on the 27th, and if any mis- 
 take has been made by the official we are entitled to be relieved under 
 sec. 5B. As to the inclusion of the work from 1893, that is not objec- 
 tionable, 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. Pg,- CuiiiAar ;— 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 
 an affidavit setting out a detailed statement of work has been filed "to 
 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 
 certificate was recorded, and, therefore, it is "regular in itself" 
 within the meaning of that expression, as employed by me in Chary 
 V. Boscoivitz. The fact that it contains more than is necessary does 
 not make it any the less valid for what is necessary. 
 
 The certificate, then, being held to be regular, judgment will, fol- 
 lowing Cleary v. Boscoivitz and Lawr v. Parker (1901), 8 B. C. 223, 
 ante, p. 456, be entered in favour of the plaintiff upon his filing an 
 affidavit of the Mining Eeeorder proving that the certificate was duly 
 recorded, unless that fact, about which there seems to be no doubt, 
 is admitted by the defendant. 
 
 Judgment accordingly. 
 
1.] 
 
 MANLEY V. COLLOM. 
 
 487 
 
 Manlioy v. ColLOM. 
 (32 S. C. 371; 8 B. C. 158.) 
 
 1902. 
 May 15. 
 
 Supreme 
 Court 
 
 Mineral Claim — Location, Invalidity of — Fractional Claim — Irregularity — Title ^ 
 
 —Compass Bearing — Misleading — Certificate of W orh^-Mineral in Place— °^ Canada. 
 Proof of--Float — Free Miner's Certificate— Using that of Another — Re-loca- 
 tion — Junior and Senior Locations — 'Crown — Lease-^Heversion — Mineral Act, 
 sees. 16 (g),2T, 28 and Amendments. 
 
 The provisions of the Mineral Act as to location are imperative and failure 
 to observe them invalidates a location unless cured by the remedial sees. 
 16 (g), and 28. 
 
 Section 28 does not include within its purview any area not duly located; and 
 the irregularities cured by that section are only such as occur in the interval 
 between location and record and the recording of the last certificate of 
 work. 
 
 Where a location is purported to be made on ground already occupied 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. 
 
 Performance of the annual assessment work (or the equivalent money pay- 
 ment), is the annual rental payable to the Crown, and therefore in the case 
 of a valid location whenever a dispute arises in which payment of rent is 
 concerned the production of the certificate of work (i.e., payment) is con- 
 clusive against all the world, except the Crown itself, in a suit to set it 
 aside for fraud. 
 
 Failure to give the '" approximate compass bearing " of No. 2 post will invalidate 
 a location. 
 
 Such defect if of a character calculated to mislead cannot be cured by sec. 
 
 16 (g), nor by a certificate of work under sec. 28. 
 Accuracy is as essential in the case of fractional claims as in full sized 
 
 claims. 
 
 Failure to discover " mineral in place " invalidates a location, and such "lis- 
 covery must be established as a fact when the onus of proving it is upon 
 the locator — belief is insuflBcient. 
 
 Callahan v. Coplen, (ante, p. 348), explained and affirmed. 
 
 Oelimas v. Clark, (ante, p. 428), overruled. 
 
 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. 
 
 On 6th August, 1897, one Cooper located the Arlington Fraction 
 for one Haller in Haller's name. Cooper having already located an- 
 other 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 dis- 
 covered that it did not, so Haller by arrangement with Cooper, filed 
 an abandonment and on the same day, 29th November, 1897, Cooper 
 located all the ground as the Native Silver Fraction in the name of 
 
 ^Present : — Sedgewick, Giroltabd, Davies, and Mills, JJ. 
 
488 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1902. 
 May 15. 
 
 SCFBEME 
 OODRT 
 
 OF Canada. 
 
 Argument. 
 
 one Halpin. Cooper recorded the claim the next day, and on 3nd 
 December, 1897, got a bill of sale from Halpin of one-half for himself 
 and the other one-half for Haller. No agreement was ever made 
 between Cooper and Haller, but Cooper considered himself entitled 
 to a half-interest in the Arlington Fraction, and after the Native 
 Silver Fraction was located he obtained from Halpin a bill of sale 
 of one-half for Haller. In the recorded description of the Native 
 Silver Fraction's location line there was a deviation of eighty-four 
 degrees from the true compass bearing. 
 
 nailer's mining licences da,ted 9th August, 1898, and 5th August, 
 1899, were issued and signed at Sandon by E. M. Sandilands, who, 
 acting on instructions from the Government Agent at Nelson, re- 
 ceived the blank forms from the Mining Eecorder at New Denver, 
 and accounted to the Government for moneys received for mining 
 licences. 
 
 On 35th April, 1900, the defendant located the same ground as 
 the Arlington Fraction No. 1, having previously tried to purchase 
 the interests of both Haller and Cooper, and knowing that they had 
 recorded certificates of work in respect of it, and subsequently he did 
 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- 
 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, 
 who knew that defendant was applying for a certificate of improve- 
 jnents. 
 
 Certificates of work in respect of the Native Silver Fraction claim 
 w€re recorded on 7th October, 1898, 15th November, 1899, and 31st 
 August, 1900. Tile defendant after purchasing began work at once, 
 and obtained five certificates of work in respect of the Arlington No. 
 1 Fraction, the first being recorded 1st August, 1900, and the other 
 four 10th October, 1900, and applied for a Crown grant, whereupon 
 the plaintiff brought an action of adverse claim. 
 
 The trial took place at Nelson on 31st October, and 1st, 3nd, 6th 
 and 7th November, 1900, before Walkem, J. 
 
 GalUher and P. E. Wilson, for plaintiff. 
 
 W. A. Macdonald, Q.C., for defendant. 
 
 On 23nd December, 1900, his Lordship gave judgment in favour 
 of the plaintiff. 
 Appeal to The defendant appealed to the Full Court on the grounds amongst 
 
 Poll Codrt. others (1) that in the recorded description of the Native Silver Frac- 
 
I.] 
 
 MANLEY V. OOLLOM. 
 
 489 
 
 1902. 
 May 15. 
 
 Supreme 
 
 COUET 
 
 OF Canada. 
 
 tion's location line there was a deviation of eighty-four degrees from 
 the true compass bearing; (3) that Haller's mining licences of 9th 
 August, 1898, and 5th August, 1899, were bad; (3) that the locator 
 of the Native Silver Fraction did not find mineral in place, and (4) 
 that the location of the Native Silver Fraction was a location over 
 an abandoned claim by the same people, and was illegal under sec. 
 33 of the Act. 
 
 The appeal was argued at Victoria on 10th, 11th, 13th and 14tb 
 June, 1901, before Drake, Ieving and Maetin^ JJ. 
 
 Davis, K.C. (W. A. Macdomld, E.G., with him), for the appel- ^""^Xr* 
 lant. There was a contravention of sees. 39 and 33 of the Act be- 
 cause Cooper must be considered as locating either in his own name 
 or Haller's; a miner's licence is personal to himself and is marked 
 "not transferable." There is a statutory procedure of location by 
 an agent for a free miner, but here there was a location in the name 
 of a person who has not, and never expected to get an interest iu 
 the claim. Cooper had already located the Arlington and Haller 
 the Arlington Fraction, so their rights on that particular vein or lode 
 were exhausted. The original location being void cannot be made 
 good by any subsequent transaction, see Alsxander v. Heath ei al. 
 (1899), 8 B. C. 95, ante, p. 333. See also Connell v. Madden (1899), 
 
 6 B. C. 531, ante, ^.359; Dunlop v. Haney et al (1899), 7 B. C. at p. 
 
 5, ante, p. 369; and Hooper V. Coomte (1888), 5 Man. 65. The sta- 
 tute says that mineral in place must be found, but here the evidence 
 is that 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 siich an error is not calculated to mislead. The 
 provisions of the Act are imperative, with three sections containing 
 curative provisions — sees. 16, sub-sec. (^r), 38 and 34. 
 
 The effect of sec. 34 in Gelinas et al. v. Clark (1901), 8 B, C. 43. 
 ante, p. 438, 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. 88; Cranston et ak v. The English Canadian Co. (1900), 
 
 7 B. C. 366, ante, p. 394; Dunlop v. Haney et al. (1899), 7 B. C. 1, 
 ante, p. 369; Clarh v. Haney (1899), 8 B. C. 130, ante, p. 381; and 
 Pavier v. Snow (1899), 7 B. C. 80, ante, p. 384. 
 
 Callahan v. Coplen (1899), 7 B. C. 433, ante, p. 348, is an au- 
 thority that sec. 38 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. 
 Clarlc is inconsistent with Callahan v. Coplen, and should not be fol- 
 lowed. [Duff, objected, that in Jordan v. McMillan (1901), 8 B. 
 C. 27, the Court had allowed a preliminary objection to an argument 
 
490 MARTIN'S MINING CASES. [vol. 
 
 1902 based on Privy Council decisions on the ground that the point was 
 fZ_ ■ covered by a previous decision of this Court.] 
 SuPKEME The objection was overruled^ Martin, J., observing, that the judg- 
 
 ■01' Canada, ment of the Chief Justice in Jordan v. McMillan proceeded on the 
 ground that the previous decision of this Court was given by a ma- 
 jority of the Judges composing the Court. 
 
 The provisions of the Act are imperative, see Feters v. Sampson 
 (1898), 6 B. C. 405, ante, p. 347, and Bleekir v. Chisholm (189(3), 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;^. 243, 
 Haller's certificate issued by Sandilands was bad as there is no 
 provision in the Act for such a procedure. 
 
 Buff, K.C. {J. H. Lawson, Jr., with him), for respondent. The 
 defendant was not misled by the error of Cooper, who had no fraudu- 
 lent object, for when he located, all 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. Ooplen, supra, Mr. Justice 
 Grwynne 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 see. 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 afiBrmed 
 the reasons of the Full Court is erroneous — the decision was aflSrmed 
 on different grounds, thus shewing the Supreme Court did not agree 
 wdth the reasons of the Full Court, see Each v. London Provident 
 Building Society (1883), 33 Ch. D. Ill, and Encyclopsedia of the 
 Laws of England, vol. 10, p. 203. 
 
 Gelinas v. Clark is a binding decision as to the meaning of Cal- 
 lahan y. Coplen, and that the latter decision is not applicable to the 
 question in this case, and it and Peters v. Sampson, supra, should be 
 followed. See Osborne v. Morgan (1888), 13 App. Cas. 327; Lavy 
 V. London County Council (1895), 3 Q. B. 577; The London Street 
 Tramways Company, Limited v. The London County Council (1898), 
 A. C. 380; Casson v. Churchley (1884), 53 L. J., Q. B. 336; The 
 Queen v. De Grey ri900), 1 Q. B. 534, and Pledge v. Carr (1895), 1 
 Ch. 58. 
 
 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 be- 
 cause he found float he did not find mineral. 
 
 As to compass bearing; any defect was cured by sec. 16, sub-sec. 
 {(l), as there was a bona fide attempt to comply with the Act, and taking 
 the record and afiidavit together, no one could have been misled, and 
 Collom admits he was not misled. 
 
I.] 
 
 MANI/EY V. OOLLOM. 
 
 491 
 
 1902. 
 
 May ]5. 
 
 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. Supekmb 
 See Barton v. Muir (1874), L. E. 6 P. C. 134; and Davis v. Stephen- „j, 0°^^^^ 
 son (1899), 24 Q. B. D. 629. 
 
 As to re-location without permission, Granger v. F other ingham 
 et al. (1894), 3 B. C. 590, ante, p. 71, is an authority, allowing what 
 was donp here, and it has received legislative sanction and should be 
 followed : see C'asgrain. v. Atlantic and North-West Railway Company 
 (1895), A. C. 282; Pugh v. Golden Valley Railway Company (1880), 
 15 Ch. D. 334, and cases there cited in Jardine v. Bullen (1898), 7 
 B. C. 471; Foskett v. Kaufman (1885), 16 Q. B. D. 270; Jay v. 
 Johnston (1895),' 1 Q. B. 25; Danford v. McAnulty (1883), 8 App. 
 Cas. 456; Ex parte Weir (1871), 6 Chy. App. 875; £'a; parte Campbell 
 (1870), 5 Chy. App. 703; Greaves v. Toiield (1880), 14 Ch. D. 563, 
 and CUrh v. Wallond (1883), 52 L. J., Q. B. 323. 
 
 The licences were issued under the direction of a Government 
 ofHeial and any defects are cured by see. 53. 
 
 Davis, replied. 
 
 Cur. adv. vult. 
 
 October 16th, 1901. 
 
 Dkake, J. : — This is an appeal by the defendant against a judg- 
 ment in the plaintiff's favour. The ground in dispute was ground 
 lying between the Arlington Ko. 3 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 Frac- 
 tion 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. 8 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 Eevised Statutes, either in his 
 own name or in the name of any other person. Haller having aban- 
 doned 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 Arlington Fraction on the terms that 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 Haller both being 
 aware of these sections in the Mineral Act, in preference to applying 
 
 Judgment 
 
 below, 
 Dhake, .T. 
 
492 
 
 MARTIN'S MINING CASES. 
 
 1902. 
 May 15. 
 
 SOPREME 
 COCBT 
 
 OF Canada. 
 
 Judgment 
 
 below, 
 Drake, .T. 
 
 to the Commissioner for leave to re-record, thought it more advisable 
 to abandon the claim and file the notice of abandonment; and the 
 evidence is sufficiently clear to shew that this was done at Cooper'& 
 suggestion. Cooper then obtained the miner's license of Halpin and 
 located the Fraction in his name as the Native Silver Fraction. Hal- 
 ler 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 plaintiff's 
 stakes, and on comparing them with the record of the claim found 
 that the compass bearings did not include the land between the Arling- 
 ton and Burlington claims. The plan. Exhibit A3, shews the Bur- 
 lington 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 
 vacant ground, and on the west by vacant ground. The land, in face, 
 described by the plaintiff in his record can not be made out on the 
 ground from his description. The term "approximate compass bear- 
 ing " will not cover an error as great as this. The evidence of Her- 
 bert C. Twigg, a P.L.S., a witness called by the plaintiff, shews that 
 the record was in accordance with the notice on the initial post, which 
 stated that No. 2 post was 700 feet in an easterly direction; and of 
 the ground claimed 750 feet lay to the right, and 750 to the left of the 
 location line. The initial post is on the north boundary of the Ar- 
 lington, and 560 feet from the north-east corner of the Arlington 
 No. 2; and the No. 2 post, if placed in accordance with the notice 
 on the initial post would be found very near the north-east corner of 
 Arlington No. 2 ; whereas, in fact, it is due north on the ground. In 
 other words, it is placed almost at a right angle to the place where 
 it ought to be if it followed the written description. 
 
 On examining the ground the defendant saw that no vacant 
 ground between the two claims had been properly staked. He, there- 
 fore, on the 25th of April, 1900, staked this ground as the Arlington 
 Fraction No. 1, and obtained five certificates of work. The first wai 
 dated 1st August, 1900; the second was dated 19th October, 1900, 
 to apply for the year ending 9th May, 1902 ; the third of same date 
 applied for the year ending 9th May, 1904; and the fourth for the 
 year ending 9th May, 1905. Under the Act, for every $100 of work 
 done on a mineral claim the party is entitled to a certificate for twelve 
 
I.] 
 
 MANLE3C V. OOLLOM. 
 
 493 
 
 months, and can do the equivalent of three or four years' work at once, 
 and obtain the certificates for the number of years the work repre- 
 sents. 
 
 One Henry Brown, on the 7th of October, 1898, obtained a- certi- 
 ficate 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, 
 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 3nd 
 December, 1897, assigned to Haller a half-interest in the Native 
 Silver Fraction; and Haller on 19th July, 1900, purported to assign 
 to Manley the same half-interest for an alleged consideration of 
 $5,000.00. The evidence discloses that only $3,000.00 was paid, and 
 the other $3,000.00 was to be paid when the plaintiff sold the pro- 
 perty ; and it was further clear' that the plaintiff at the time he made 
 purchase knew that the defendants were working on the claim, and 
 applying for a certificate of improvements. The plaintiff never ex- 
 amined 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 defend- 
 ants 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 mis- 
 lead," not whether "they did mislead." That they were calculated 
 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 
 bona 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 eatspaw of Cooper, and that no mineral in place was discovered, 
 and his name was used to enable Cooper to evade the stringent pro- 
 visions of the Act. 
 
 1902. 
 May 15. 
 
 SUPKEME 
 
 Court' 
 OF Cakada. 
 
 Judgment 
 
 below, 
 Drake, J. 
 
494 
 
 MARTIN'S MINING OASES. 
 
 [VOL. 
 
 1902. 
 May 15. 
 
 SUPBKME 
 
 Court 
 OF Canada. 
 
 Judgment 
 
 below, 
 Dbaek, J. 
 
 Cooper says he discovered float, and that satisfied him it was 
 mineral in place. Now by sec. 2 of the Mineral Act, E. S. B. C. 1897 
 ch. 135, rock in place is defined to mean and include mineral, not 
 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. Ploat as it is technically called is very frequently 
 discovered in the water courses and loose gravel of the mining dis- 
 tricts. 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 insufiieient 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- 
 pin discovered anything but float. Therefore Halpin is not within 
 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 re- 
 corded; 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. 
 
 Qooper 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 ]Sf o. 3 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 con- 
 tends that the fact of the record of work having been issued to the 
 plaintiff is sufficient to cure all 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 stipula- 
 tions, is great. 
 
I.] 
 
 MANLBX V. (X)LLOM. 
 
 4^5 
 
 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 allowing 
 it to be done in the name of any other person. Can a certificate of 
 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 
 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 efEeeted their object. 
 
 The case of Callahan v. Cophn, supra, has been greatly discussed, 
 and the facts in that case were not greatly dissimilar to the present 
 one. There the defendant had located and recorded a claim with 
 compass bearings nearly as incorrect as the present one, and the plain- 
 tiff had also taken up a claim, and both parties had obtained certi- 
 cates of work. It was held that sec. 28 did not cure the defect. We 
 next have the case of Qelinas et al. v,. Clark, supra, decided by the 
 Full 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 clain) 
 jumping, it will also have the effect of enabling anyone to bolster up 
 a mining claim by certificates of work, and thus induce others to 
 invest their money in worthless chances. The stipulation which the 
 Legislature thought necessarj^ for the protection of the Crown lands,, 
 the miner and the public will be rendered nugatory. 
 
 In my opinion the appellant is entitled to succeed, and the judg- 
 ment entered for the respondent should be reversed, and judgment 
 entered for the defendant with costs here and below. 
 
 1902. 
 May 15. 
 
 ScPEEME 
 COUKT 
 
 or Canada. 
 
 JuHgment 
 
 below, 
 Irving, J. 
 
 Irving, J. : — The frame work of this case is very simple. On the 
 29th of November, 1897, the Kative Silver claim was located by one 
 
496 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1902. 
 May 15. 
 
 Supreme 
 
 Court 
 
 or Canada. 
 
 Judgment 
 
 below, 
 Irving, J. 
 
 Cooper for and in the name of one Halpin, who at once, 2nd Decem- 
 ber, 1897, conveyed one moiety to Cooper, and the other moiety to 
 one Haller. 
 
 The plaintiff, 19th July, 1900, purchased Haller's half-interest, 
 and on the 31st August, 1900, obtained and recorded a certificate of 
 work in respect of the said claim. Two certificates in respect of the 
 said claim had been obtained by Haller prior to the sale to the plain- 
 tiff. These certificates were recorded on the 7th of October, 1898, 
 and 15th November, 1899. 
 
 On the 35th of April, 1900, the defendant, knowing fully the 
 position of affairs, decided to and did jump the claim, re-locating it 
 as the Arlington ISTo. 1 Fraction. The defendant began work at 
 once, and obtained five certificates of work, the ^ate of the earliest 
 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. 38, 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 cer- 
 tificates of work are equally entitled to claim against the other the 
 benefit of the section. That of course makes the section nonsensical. 
 
 Then the first question is to determine which of the two is the per- 
 son whose certificate is to prevail. 
 
 To answer that one must look at the facts and ask oneself, how 
 did the dispute arise? There can only be one answer. The dispute 
 arose, or was brought into existence, by the defendant planting his 
 stakes in the land occupied by the plaintiff. The plaintiff then it 
 is whose title is to be deemed perfect if sec. 28 covers the irregu- 
 larities which the defendant alleges made the Native Silver an illegal 
 claim. 
 
 The irregularities complained of arS: (1) That the plaintiff in 
 locating and recording the Native Silver described his location line 
 between No. 1 and No. 2 as running in an easterly direction, whereas 
 in truth and in fact it was very nearly due north. I do not think it 
 can be denied that this is a very serious omission to comply with the 
 statute, which requires the locator to state the approximate compass 
 bearing. 
 
I.] 
 
 MANLBY V. OOLLOM. 
 
 497 
 
 (2) The second point is that one or more of the free miners 
 licences under which the plaintiff derived his title was issued by a 
 person without proper authority. 
 
 (3) That the locator of the MtiVe Silver did not in fact find 
 mineral in place, and ' 
 
 (4) That the Native Silver location was a location over an aban- 
 doned claim, by the same pedple, and was illegal under sec. 33. 
 
 Another ground was taken and discussed at the hearing of the 
 appeal, but as it was not raisfed on the pleadings at the trial, or in 
 the notice of appeal, I think we cannot deal with it. ' Browne v. Dunn 
 (1894), 6 E. 67; TheTasmania (1890), 15 App. Cas. 223 at pp. 230, 
 236, and 238. 
 
 We understood at the hearing of the appeal the learned counsel 
 acquiesced in the justice of Mr. Duff's objection to our dealing with 
 the case on this ground, but whether I am correct or not on that point, 
 the authorities justify the course I propose to take, viz.,, to ignore 
 this ground. 
 
 It was argued by Mr. Davis that the decision of the Full Court in 
 Callahan v. O&plen had practically wiped out sec. 28, or if not that 
 fiection had received its stroke in the decision of the Supreme Court 
 of Canada. 
 
 I venture to submit that the decision of the Supreme Court of 
 Canada has been misread in that case. It is true the appellants (the 
 Cube Lode) went to that Court relying on sec. 28 ; but Mr. Justice 
 <Twynne points out that there was only one question to* deal with — 
 and that question was not the question raised by the appellant 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 appellants, were estopped 
 by their own negligence or fault from taking advantage of sec. 28 — 
 a view of the case suggested by Mr. Justice Walkem in the argument 
 ■of CallaMn v. CopZere ' before the Full Court. That I thinl? is the 
 plain reading of Mr. Justice Gwynne's reasons. If not, how can he 
 say, as he does undoubtedly say, there is only one point ? 
 
 Mr. Justice Gwynne, it is also said, has laid down that sec. 28 
 does not apply in a contest between two rival claimants; that if it 
 has any application it is in a dispute between the Crown and a 
 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 
 
 M . M . . .S2 
 
 1902. 
 May 15. 
 
 SCPRKMB 
 OcURT 
 
 OF Canada. 
 
 Judgment 
 
 below, 
 Ieving, J. 
 
MARTIN'S MINING CASES. 
 
 [vol. 
 
 1902. have this extraordinary result, that whereas against the Crown, the 
 
 !Z_. ■ allodial owner, the locatoij's title would be perfect, yet as against a 
 
 SopBEMB licensee of the Crown, one who has done nothing except place his 
 
 OF Canada, stakes in the ground already occupied by another man, the prior 
 
 locator would not be able to avail himself of the curative powers of 
 
 sec. 28. 
 
 What Mr. Jusj;ice 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 record 
 did not include it, or the defendants, who, being thus misled had 
 located and correctly recorded the claim. 
 
 Eead in this way Mr. Justice Gwynne's judgment is not a deci- 
 sion on the conflicting construction put by the members of this Court 
 on sec. 28. 
 
 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 location 
 affidavit, and the description of the ground as a " re-location of 
 Martin, J. Arlington Fractional claim lying between the Arlington and Burling- 
 ton," from which, and not from the posis — the defendant got his 
 information, I think it was not calculated to mislead; at any rate 
 sec. 28 would cure that irregularity. 
 
 (2) The contention as to the free miners' certificate being irregu- 
 larly issued is set at rest by sec. 53. 
 
 (3) The positive evidence of the finding mineral in place is sufB- 
 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 
 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. 
 
 Juijgment 
 below, 
 
 Martin, J. : — It is necessary to decide first the question whether 
 or not we are bound by the decision of this Full Court in Gelinas 
 V. Clarh (1901), 8 B. C. 42, ante p. 428. After a consideration of 
 cases, inter alia, of Hack v. London Provident Building Society 
 (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; Lavy v. 
 London County Council (1895), 2 Q. B. .577 at p. 581; The London 
 
I.] 
 
 MANLEY V. COLLOM. 
 
 49» 
 
 Street Tramways Company, Limited v. London County Pouncil 
 (1898), A. C. 374; North v. Watthamstow Ui%an Council (1898), 67 
 L. J., Q. B. 972-4, and Jordan v. McMillan (1901), 8 B. C. 27, I am 
 of opinion that we are, the Court as then constituted comprising a 
 majority of the Bench, and the point decided having been for the 
 first time passed upon by the Court. 
 
 Such being my view it is not necessary that I should add to my 
 discussion of the case of Callaghan v. Coplen in Gelinas v. Clark, other 
 than to say that the argument of the appellant's counsel fortifies me 
 in the conclusion I therein arrived at, but of course I bow to the 
 opinion of the majority of the Court. 
 
 To clear up a possible misunderstanding of my remark in Gelinas 
 V. Clark, that "from .the fact that the judgment is affirmed they (the 
 reasons of the Court below) must be considered as more or less ratified," 
 I wish to draw attention to the remarks of the Master of the Bolls in 
 the case of Hack v. London Provident Society, supra, at p. 112, cited 
 by Mr. Duff: 
 
 " As regards the judgment of the Court of Appeal in that case, I 
 must say this, that the decision of the Court of Appeal was affirmed, 
 but not the judgment, and that is a very important distinction. When 
 the House of Lords afBrm a decision on different grounds from those 
 of the Court below, it is evidence, in fact proof, to those who know 
 the practice of the House of Lords, that they do not agree with those 
 grounds. Therefore a judgment so affirmed, so far from leaving the 
 judgment of the Court of Appeal intact, shews the contrary, and that 
 you are no longer bound by it. The mere afiBrmanee of the decision 
 is quite a different thing. You are bound by the decision but not 
 by the reasons given for it." 
 
 In attempting to apply these expressions to Callahan v. Coplen a 
 difficulty arises from the fact that the Supreme Court upheld this 
 Full Court on the question of the error in the compass bearing, and 
 the result of that error — 7 B. C. at page 426 — thus partially giving 
 effect to the reasons. This is something more than the " mere affirm- 
 ance " referred to by the Master of the Eolls, and in view of the some- 
 what contrardictory expressions in the judgment of the Supreme 
 Court regarding sec. 28, I confess I am at a loss to know how to 
 satisfactorily apply the said rule of construction to that case. How- 
 ever, seeing that, in my opinion, we are bound by Gelinas v. Clarh, it 
 is not really necessary to try to do so. 
 
 In the case at bar the situation simply is that on the 29th of 
 November, 1897, the Native Silver Fractional mineral claim was 
 located, and later recorded, and on October 7th, 1898, and JSTovember 
 15th, 1899, two certificates of work had been recorded. Long after this, 
 on the 25th of April, 1900, the opposing claim the Arlington No. 1 
 
 1902. 
 May 15. 
 
 SuPRKViE 
 OOTJKT 
 
 OF Canada. 
 
 Judgment 
 
 below, 
 Maktin, J. 
 
500 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 1902. 
 May 15. 
 
 .Supreme 
 
 Court 
 
 01' Canada. 
 
 Judgment 
 
 below, 
 Martin, J. 
 
 Fractional was located, and later xecorded, and on August 1st of tll£^t 
 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- 
 sult of Gelinas v. Garh is that when there is a claim definitely, lpc^te4 
 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 th^ 
 same sections, also got what is equivalent to a lease from the Crov^; 
 Now, Vicfor v. Butler, (1900),, 8 B. C. 100, ante, p. 438, decides that 
 in such cases the prior lease pf the senior locator shall prevail, . 
 
 It is possible, doubtless, to fritter away tbe decision in Oelinas v. 
 Clarh by subtle distinctions and refinements, but, speaking as a mem- 
 ber of the Court which heard the case, the foregoing is my under- 
 standing of the substance and effect of the judgment. So much con- 
 fusion has resulted, from the decisions of this Court and the Supreme 
 Court on sec. 28 that it is desirable we should, if possible, conie to a 
 decision which shall be cer^tajn and definite. 
 
 In view of the foregoing opinion that in principle this case is 
 not distinguishable from Gelinas v. Carh, the other points raised are 
 consequently not open to argument. 
 
 The appeal should be dismissed with costs. 
 
 Appeal dismissed with costs. ' 
 
 Drake, J., dissenting. 
 
 Appeal to s.c The defendant appealed to the Supreme Court of Canada and 
 the appeal was argued on 5th, 6th and 7th of March, 1902. 
 
 Argument. Davis, K.C., and W. A. Macdonald, K.C., for the appellant, cited 
 
 Coplen V. Callahan, supra; Gallanan v. George, supra;. Atkins v. Coy,, 
 supra; Cranston' Y.i The English Canadian Co., supra; Dunlop v. 
 Eaney, supra; Cl^rk , v. Haney, supra; Pavier v. Snow, supra; 
 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. Connell, 
 supra; Peters v. Sampson, supra; Lawr v. Parker (1901), 8 B. C. 42, 
 ante, p. 456. 
 
 Galliher, for the respondent, cited Gelinas v. Clark, supra; Water- 
 house V. LiftcUld (1897), 6 B. C. 424, ante, p. 153; CaldwelVi. 
 Davys (1900), 7 B, C. 156, ante, p. 387; Peters v. Sampson, supra; 
 Cranston v. English Canadian Co., supra; Granger v. FotheringMm, 
 supra. 
 
I-] MANLEY V. COLLOM. 531 
 
 The judgment of the Court was delivered by , 1902, 
 
 May 15. 
 
 Sedgewick^ J. : — In the case of Coplen v. Callahan, supra, in con- supeemb 
 sidering the effect that should be given to the following sections of Court 
 the British Columbia Mineral Act, viz., sees. 16 (g), 27, and 28, we^ °^' ^ana"^*- 
 lield that every direction of sec. 16 was iimperative, that any devia- Skdgkwick, J. 
 tions from or irregularity in respect to such directions were fatal to 
 the location unless they came within the curative provisions of sub- 
 sec, (g) ; that these were the only statutory provisions that could be 
 invoked ia favour of an otherwise invalid location; that sec. 38 did 
 not include within its purview any area that had not been duly 
 loca,ted, but only those that had, and in consequence had beconl'e 
 "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 
 certificate of work; and that, notwithstanding the certificate of work 
 produced in that ease, an inquiry might be had as to whether the 
 provisions of sec. 16 had been so disregarded by the locator as to 
 make his location invalid. 
 
 Nor did it appear to us that our interpretation of the section 
 deprived it of its proper effect. It had not, so far as I know, ever 
 been contended that sec. 28 in effect had repealed sec. 27. A prior 
 duly located claim 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 pf 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, noi- 
 ■vs^ithstanding these limitations upon its alleged universality and to 
 the efficiency of its certificate as well, did fulfil a useful purpose, and 
 particularly in the foUovring way. 
 
 Assume a valid mineral claim. Its owner before a Crown grant 
 issues is a tenant of the Crown. He must pay rent to the Crown. 
 The Legislature has permitted him to pay this rent either in money 
 or work and to receive from a duly appointed agent of the Crbwn a 
 certificate of work or payment. This really amounts to a receipt from 
 the Crown of the tenant's annual rental. Whether the work was 
 done or not, the money paid or not, was the business of no one except 
 the Crown. And so it was, I think, reasonably enacted that when- 
 ever a dispute arose in which the payment of rent was concerned, the 
 certificate of the Crown's officer as to the payment of the rent was to 
 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 fol- 
 lowed by Mr. Justice Martin in his dissenting judgment in Gelinas \. 
 
502 MARTIN'S MINING CASES. [vol. 
 
 1902. Clark, supra, and again by Mr. Justice Drake in his dissenting opin- 
 ^I__ ' ion in the Court below in this case. 
 SupRBMK It may be that our late lamented brother Gwynne did not, as fully 
 
 OF Canada, as he might, elaborate the propositions I have herein set out, but they 
 gij -, are the conclusions to which we all eventually came when our judgfnesat 
 
 was pronounced. This being the case, I do not consider it proper to dis- 
 cuss further as to whether we were right or wrong in Coplen v. Calla- 
 han, supra. 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 alleged mineral 
 claim, a question to be considered altogether independently of sec. 38. 
 The grounds upon which it was contended that the locatiofl in 
 dispute was illegal are stated by Mr. Justice Irving in giving the 
 judgment of the Court below, as follows: 
 
 The irregularities complained of are, — 
 
 (1) That the plaintifE in locating and recording the "Native Silver" de- 
 scribed his location line between No. 1 and No. 2 (posts) as running in an 
 easterly direction, whereas in truth and in fact it was very nearly due north. 
 I do not think it can be denied that this is a very serious omission to comply 
 with the statute, which requires the locator to stake the approximate compass 
 bearing. 
 
 (2) The second point is that one or more of the Free Miner's licences under 
 which the plaintiff derived his title was issued by a person without proper auth- 
 ority. 
 
 (3) That the locator of the "Native Silver" did not in fact find mineral 
 in place, and 
 
 (4) That the " Native Silver " location was a location over an abandoned 
 claim, by the same people, and was illegal under sec. 32. 
 
 For the purposes of this appeal it is necessary to consider the 
 first and third of these grounds only. 
 
 Now, as to the first, I must again refer to Coplen v. Callahan, 
 supra. In that case the requirements of the statute, sec. 16, were 
 not complied with inasmuch as the approximate compass bearings 
 were not correctly marked upon the initial post and that the depart- 
 ure from the true bearing was so great that it was 
 
 calculated to mislead other persons desiring to locate claims in the vicinity. 
 Section IG (g) . 
 
 We therefore held the location void. The violation of the statutory 
 requirements is greater in the present case. Even the learned Judge 
 whose statements of the points in dispute I have just now set out, 
 says,— 
 
 the plaintiff in locating and recording . . his location line between Nos. 1 
 and 2 as running in a,n easterly direction, whereas in truth and in fact it is 
 vary nearly due north . . (was guilty of) a very serious omission to comply 
 with the statute,, which requires the locator to stake the approximate compass 
 bearing. 
 
 So that we must hold the location invalid unless there is a dif ■ 
 fprence in fact between this case and Coplen v. Callahan, supra^ 
 
I.] MANLEY V. OOIiLOM. 503 
 
 The only difference contended for is that, this being a fractional 1902. 
 
 mineral claim, inaccuracies in the markings and setting up of the "'^ ' 
 
 initial post are not so necessary as in ordinary cases. I am unable Supbkmk 
 
 Court 
 to see the difference. The particular rule as to the staking of the of Canada. 
 
 approximate bearings was intended for the benefit not of the locator — 
 who had already staked his claim, but of the prospector searching for 
 precious metals in the wild lands of the Crown. He finds a post, it 
 appears to be a post connected with a, fractional claim. He knows 
 nothing of the boundaries of the regular claims in the vicinity. He 
 has found mineral in place and he wants to place his stakes in a place 
 ■where haply he may find vacant land. True, he may search the 
 mountains for the stakes of the unbroken 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 rely. He acts accord- 
 ingly — plants his stakes, locates his claim in what he thinks is vacant 
 land, and in the end finds that he has been the victim of His pre- 
 ceding prospector. 
 
 The rules as to staking apply as well to fractional as to other 
 •claims; unless these are observed strictly, in the case of fractional 
 claims, the confusion is still worse confounded and the persons for 
 whom the rules were made lose the benefit of them and that benefit 
 accrues to those who violate them. I am therefore of opinion that, 
 on this ground, the disputed location is invalid. 
 
 Then as to the third ground : — The Mineral Act requires that no 
 one can locate a claim unless he has actually discovered mineral in 
 place on the claim; sees. 16 (c) and 16 (g). The curative provision 
 «xpressly excludes from its operation a locator who has not made 
 that discovery. The evidence satisfies me that he did not. It is 
 true in his application to the mining officer he swore he did, but 
 subsequently upon examination the question being put to him : 
 Did you discover mineral in place? 
 
 lie refused to answer it categorically. The answer was, 
 I found mineral in places, I found float, lots of float ia place, 
 
 and eventually the furthest he would go was 
 I am satisfied it was mineral in place. 
 
 That is in effect " I saw mineral in places, I saw float and that satis- 
 tied me it was mineral in place." The statute requires much more 
 than the belief — ^fiie " satisfaction." of the locator ; it requires a dis- 
 covery in fact. The evidence fails to establish that. On this point 
 ■as well as on the other I adopt the dissenting judgment of Mr. Justice 
 Drake in the Court below. 
 
504, MARTIN'S MINING CASES. [vol. 
 
 1902. I am of opinion that the appeal should be allowed with costs and 
 
 tZL. ■ that judgment should be entered in the. Supreme Court as prajed for 
 
 SupKEM? jn the defendant's .statement of defence, with all costs in the Court 
 
 OP Canada, below. 
 
 SECeEWIOK, J. 
 
 Appeal allowed with costs. 
 
 NoTES.^ — The efEect of this, the most important decision for many yeai's, 
 is referred to in the note to Oelimas v. Clark, ante, p. 437. 
 
 As to conclusiveness of certificate of improvements regarding' performance 
 of assessment work: see Lawr v. Parker, post, p. 456, uni, Cleary y. Boscqwitz,. 
 post, p. 506. 
 
 As to future determination of title where each party has recorded a cer- 
 tificate 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; Pellent v. 
 Almoure' (1897), ante, p. 134; Waterhouse v. Lif.tchUd (1897)', ante, p. 153, 
 Richards v. Price (1897), ante, p. 156; CreeVman v. Clarke (1898), ante, p. 
 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; Aldous- 
 Hall Mines Co. (1897), ante, p. 213; Callanan v. George (1898), ante, p. 
 242; Clark v. Haney (1899), ante, p. 281. 
 
 Incorrect date — Boie v. Sautter (1899), ante, p. 240. 
 
 Intervening location— Dort v. St. Keverne Miking Co. (1899), ante, p. 331. 
 
 Initial post in foreign territory — Connell v. Madden (1899), ante, p. 359. 
 , Non-performance , of assessment work — Peters -v. Sampson (1898), ante, p. 
 247; Laior v. Parker (1901), ante, p. 456; Cleary v. Boscowitg (1902), ante, 
 p. 506. ' ' ■ 
 
 On same vein without permission — Alexander v. Heath (1899), ante, p. 333; 
 " Dwnlop V. Haney ( 1899 ) , ante, p. 869 ; Manley v. Collom, supra. 
 
 Changing or "Swinging" location — Wise v. Christopher (1900), ante, p. 
 413. 
 
 Non-record — Francoeur v. English (1897), ante, p. 203. 
 
 Misleading compass hearing — Francoeur y. English (1897). ante, p. 203 r 
 Callahan v. Coplen (1899), ante, p. 348; Manley, y. CoUom (1901), ante, p. 
 487. 
 
 No "mineral in place" — Cranston v. English Can. Co. (1900), ante, p. 394 r 
 Manley v. Collom (1902), ante, p. 487. 
 
 On "occupied giomiA"— Waterhouse v. Liftchild (1897),' ant^, p. 158; 
 Sunshine, Ltd. v. Cutmmgham (1899), ante, p. 286. 
 
 Re-location on valid -location — Woodhury v. Hudnut, ante, p. 81 ; Granger 
 V. Fotheringham, ante, p. 71 ; Atkins v. Coy, ante, p. 88 ; Bleekir v. Chisholm, 
 ante, p. 112 ; Pellent v. Almoure, ante, p. 134 ; Aldous v. Hall Mines Co., ante, 
 p. 213; Popev. Cole (1898), ante, p. 257; Cranston v. English Canadian Co., 
 ante, p. 394 ; Rammelrmeyer v. Curtis, ante, p. 401 ; Manley v. Collom, supra. 
 
 As to misleading location and curative sections: see Waterhouse y. Lift- 
 child, supra; Richards \. Price, supra;- Creelman v. Clarke, supra; Boie v. 
 Saulter, supra; Callanan v. George, Mpra; Callahan v. Coplen, supra; Attor- 
 ney-General V. Dunlop, ante, p. 408; and Manley v. Collom, supra. 
 
OF Canada. 
 
 I.] MANLEY V, OOLLOM. 505- 
 
 1902 
 SUPREME COURT OF CANADA MINING OASES. May 15. 
 
 It seems proper to insert here for the purposes of reference a list •of cases Supbemb 
 decided by this Court, more or less relating to mining : — Cocet^ 
 
 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 wcfrk and lien on a mine. 
 
 Palmer v. Walllridge (1888), 15 S. C. 560. 
 
 On lease of mine, and rent, and quantity of ore mined. 
 
 J'upper V. Annand (1888), 16 S. C. 718 (Note). 
 
 On agreement to purchase a mine and secret sale thereof in fraud of 
 co-owner. 
 
 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 (phosphate) with option to 
 purchase right to mine others. 
 
 Queen v. Canadian Agricultural Coal, dc. (1895), 24 S. C. 718 (Note). 
 
 On Crown grant and right of grantee to coal and other base minerals 
 unless reserved. 
 
 Warner v. Don (1896), 26 S. C. 389. 
 
 On fixtures in a mine ; horizontal engine. 
 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. 
 
 Bolls V. Esquimau and Nanaimo Ry. Co. (1898), 29 S. C. 451; (1898) 6 B. 
 O. 228. 
 On contract for sale of land without reserving minerals, and mistake, 
 and agency. 
 
506 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 1902. 
 May 15. 
 
 Supreme 
 
 ■OODRT 01' 
 
 •Canada. * 
 
 Cleaey ET AL. V. BOSCOWITZ. 
 
 (32 S. C. 417; 8 B. C. 225.J 
 
 Mineral Claim — Location — Re-location^Gertifioate Of Work — Evidence — Fraild 
 — Irregularity — Assessment Work — Pleading — Title — Affirmative Evidence of 
 — Mineral Act, sec. 28; Act of 1898, sec. 11. 
 
 A certificate of work can only be impeached by the Crown, and for fraud; so 
 in action between subjects it is conclusive evidence of the performance of 
 assessment work. 
 
 Where the defendant is the senior locator an admission by the plaintiff, the 
 junior locator, that the defendant has duly recorded certificates of work is 
 of itself aflSrmative evidence of the defendant's title under the Mineral Act, 
 1898. 
 
 Manley v. Collom (ante p. 487), followed. 
 
 Decision of the Full Court of British Columbia affirmed. 
 
 ■Statement. 
 
 Appeal. 
 
 Argument 
 below. 
 
 Appeal by plaintiff from a judgment of the Full Court of British 
 Columbia affirming a judgment of McCqill, C.J., delivered 21st June, 
 1901, dismissing the plaintiffs' action for a declaration of right to 
 the Eoyal, Eoyal Extension and Eegina 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 defend- 
 ant should be restrained from obtaining a certificate of improvements 
 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 holding 
 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 
 on 13th November, 1901, before Irving, Drake, Walkem and 
 Martin, J J. 
 
 S. 8. Taylor, K.C, for appellants: We attack the defendant's 
 certificates of work. This case differs from Lawr v. Parfcer (1901), 
 8 B. C. 233, ante, p. 456, because there there was the intention to do 
 the work, but by mistake it was done outside of the claim ; here no 
 
 *Present ■ — Sir Henry Strong, C.J., and Sedgewick, Girouard, Davies, and 
 ilills, JJ. 
 
I-] 
 
 CLEARy ET AL. V. BOSOOWITZ. 
 
 507 
 
 1902. 
 May 15. 
 
 SnPEEMK 
 COUBT 
 
 OF Canada. 
 
 Judgment 
 below. 
 
 work was done at all, and the certificates were obtained as the result 
 of a fraudulent scheme. 
 
 Davis, K.C., for respondent, was not called on. 
 
 Per Curiam : — The intention makes no difference. If a certificate 
 of work is to be set aside the Attorney-General must be a party, and 
 until set aside all things are presumed in favour of its holder. This 
 case is governed by Oelinas v. Clarh (1901), 8 B. C. 43, ante, p. 438; 
 Manhy v. Collom (1901), 8 B. C. 153, ante, p. 487; and Lawr v. 
 Parker, supra. 
 
 The appeal must be dismissed with costs. 
 
 Appeal dismissed with costs. 
 
 Subsequently the following judgments were handed down by 
 
 Drake, J. : — This action was dismissed with costs at the hearing, Drake, J. 
 and the chief ground relied on was that the learned Chief Justice had 
 held that the plaintiffs were not allowed to attack the defendant's 
 title on the ground that the certificate of work obtained by the de- 
 fendant was improperly issued by the mining recorder, and that the 
 same had been wrongfully and fraudulently obtained. Section 38 
 ■of the Mining Act tays that it shall be assumed that up to the date 
 of the last certificate of work the title to the claim was perfect except 
 upon a suit by the Attorney-General based upon fraud. One of the 
 objects of this section is to prevent claimants from questioning the 
 ■correctness or validity of the certificates of work issued by the proper 
 otneer. If, as alleged here, the defendant was guilty of fraud in 
 obtaining this certificate, the Attorney-General is to bring the suit. 
 There is no regulation in the Act how the party claiming that a fra.ud 
 has been committed can put, the Attorney-General in motion — 
 whether as a relator, or by inf ormatio-n, or merely as a Urown officer 
 — when satisfied that a fraud has been committed. If the Attorney- 
 General declines to move there is no power in the Act to compel him. 
 We think the Chief Justice was correct in the view he took of this 
 section. 
 
 The plaintiffs, however, further contended that the Chief Justice 
 was wrong in dismissing the action without requiring the defendant, 
 to give affirmative evidence of title to the ground in controversy. 
 I think that when it is shewn that the action is wrongly conceived, 
 as this is, and the certificates of work by the defendant have been 
 produced, that the time has not arrived to call upon the defendants 
 to prove any further title. The plaintiffs have to shew a prima facie 
 titk: having done so, the defendant is then called upon to shew his 
 title. The plaintiff not having done this, his action has failed at an 
 initial step, and I think was rightly dismissed. 
 
508 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 1902. 
 May 15. 
 
 SOPKKME 
 OOURT 
 
 OF Canada. 
 
 Judgment 
 
 below, 
 Irving, .T. 
 
 Irving^ J.-; — This ease is provided for by section 38. By that 
 section the certificate of work establishes thci title of the holder 
 thereof, except in the case of fraud. An action to set. aside the cer- 
 tificate should be brought by the Attorney-General. 
 
 As to thei other objection that the learned Chief Justice neglected 
 to examine the defendant's, title, I fail to see how that objection can 
 be .substantiated, as the plaintiff iu 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. 
 
 MartiNj J. :- — This case cannot be distinguished from Lawr v. 
 Pafker in which the Court delivered judgment on the saventh in- 
 stant. 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. Gollom, supra, and Laivr v. Parher, 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. 38 should be sub- 
 mitted 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. 390; 
 Dunlop V. Haney et al. (1899), 7 B. C. 3 and 4, ante, p. 369; Gelinas 
 V. Clarh, supra. But in any event ample afiirmative 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, wha;t better afBrniative evidence of title can there be? 
 Even if it were necessary (alid 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 noE open because, as the plaintiffs' coun- 
 sel 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. , 
 
 Appeal to S.C. rjij^g plaintiff appealed to the Supreme Court of Canada and the 
 argument was heard on March 11th, 1903. 
 
I.] , OLBARY ET Al. v. BOSOOWITZ. 509 
 
 J. A. Bussell, for the i appellants. The appellants adopted the pro- 1902. 
 ceedings provided by sec. 37 of the Mineral Act for asserting their ayji-^- 
 adverse right and. contend that sec. 28 does not override sees. 36 alid Supreme 
 
 Court 
 
 37. Section 37 provides the only remedy open to an adverse claim- of OANAbA. 
 ant : Hand v. Warren, 7 B. C. Eep. 42, anfe, p. 376 ; Gelinas v. Clarh, Argument 
 8 B. C. Eep. 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. E. 555, per Gwynne, J., at page 
 557, ante, p. 348. 
 
 The appellants also contend that work, as well as the certificate 
 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- 
 ficates of work, not previo'usly thereto. This section is imperative 
 that work on the claim itself shall be done. It is not sufficient thait 
 the Mining Eecorder shall be made to believe by a f als6 or insufficient 
 affidavit that work has been done where, as a matter of fact, no work 
 has been done. The certificate of work granted and recorded under 
 such circumstances is merely evidence that the affidavit mentioned in 
 this section has been produced to the Mining Eecorder. He is not 
 given any option to accept or to reject the affidavit. The section 
 requires that the f ree-ininer shall satisfy the Mining Eecorder that 
 such work has been done by an affidavit of himself or his agent. 
 The Mining Eecorder cannot require corroborative evidence or other- 
 wise question the affidavit produced. He must accept it, true or 
 false. It is not intended that the mere paper certificate shall take 
 the place of actual work on the claim itself, work done and certificate 
 recorded are essential to a proper compliance with sec. 24.; Failure 
 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 challenging 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. Sfee 
 also Manley v. Collem, 8 B. C. Eep. 153, pei: Drake, J., at page 162, 
 ante, p. 487. 
 
 Further, inasmuch as the respondent failed to give affirmative 
 evidence of his title 'to the ground in question, judgment should not 
 
I 
 
 510 MARTIN'S MINING OASES. [vol. 
 
 1902. have been given in his favour. See section 11 of the Mineral Amend- 
 ^ ' ment Act, 1898 ; also Schomberg v. Holden, 6 B. C. Rep. 419, ante, p. 
 Sdpbkme 290^ and Dunlop v. Eaney, 7 B. C. Eep. 2, ante, p. 369. 
 OP Canada. The plaintifEs proved at the trial that they had complied with all 
 SiBDGBwiGK, J. ''■''i® requirements of title, viz.: (1) free-miner's licences; (2) a pro- 
 per location; (3) recording claims; (4) doing and recording neces- 
 sary 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 ah initio, but that, given a 
 good and valid mineral claim originally, the title to such mineral 
 claim is conclusively assumed to be perfect up 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 5egina, Eoyal, and Eoyal Extension. The section certainly 
 cures everything in the shape of an irregularity, and the iona 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 amov.nt, deliber- 
 ately and mala fide, that would amount to fraud and, under the sec- 
 tion, it would certainly be necessary for the Attorney-G-eneral to be 
 made a party to the suit. The British Columbia authorities on the 
 isjxbject are mentioned in the judgment of Mr. Justice Martin. The 
 same question to a certain extent, arose, but was not settled, an the 
 ease of Goplen v. Callahan, 30 Can. S. C. E., p. 555, ante, p. 348. 
 
 Cur. adv. vult. 
 
 May 15th, 1902. 
 The judgment of the Court was delivered by 
 
 Judgment. Sedgewiok, J. — ^The mineral claims Empress, Victoria, and Queen 
 
 were located and recorded by the defendant, in September, 1898. 
 The plaintiffs, in the year 1900, located and recorded, over the same 
 ground, the alleged mineral claims Eoyal, Eoyal Extension, and 
 Regina. 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 improve- 
 ments in respect of the three claims he owned, under sec. 36 of the 
 Mineral Act as amended by chapter 33 of the Acts of 1898, sees. 
 7 and 8. 
 
■ Sedgewick, J^ 
 
 I.] CLEARY ET AL. V. BOSOOWITZ. 511 
 
 The (plaintiffs) appellantSj claiming an adverse right and to be 1902. 
 in possession of the ground or claims referred to in this application, ^ayjio. 
 commenced this action in the Supreme Court of British Columbia, Suprbmk 
 ■pnder the provisions of said sec. 37, as amended by see. 9 of the op Canada. 
 Minerals Acts Amendment Act, 1898, to determine the question of , 
 the right of possession to said claims, and otherwise enforce their ' 
 adverse right. 
 
 The (plaintiffs) appellants, pleaded in their statement of claim 
 that the locations made by them vrere on vacant and unoccupied land 
 of the Crown. 
 
 The (defendant) respondent, iu his statement of defence denied 
 this fact and set up that he had obtained and recorded two certifi- 
 cates of work, each, on the Empress, Victoria, and Queen mineral 
 claims, dated respectively, the 26th of September, 1899, and the 34th 
 of July, 1900. 
 
 In reply, the appellants pleaded that these certificates of work 
 were wrongfully and fraudulently obtained, for the reason that the 
 work required by sec. 34 of said Mineral Act, as a condition prece- 
 dent to such certificates of work being obtained, had not been done 
 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 
 that, at the time of the location by the defendant, the Empress, 
 Victoria, and Queen were valid existing mineral claims. The At- 
 torney-General was not a party to the action, and the Chief Justice 
 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 
 judgment. 
 
 The decision on this appeal depends upon the construction to be 
 placed upon sec. 38 of the Mineral Act, which is 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 upon 
 fraud. 
 
 In Coplen v. Callahan, 30 Can. S. C. E. 555, ante^ p. 348, we dealt 
 with this section and, in the case of Oollom v. Mardey, 33 Can. S. C. E. 
 371, ante, p. 487, argued in the February term of this Court, we 
 
512 MARTIN'S MINING CASES. [vol. 
 
 1902. endeaTOTired to' place a more definite constructioa upon it. If we are 
 
 ^^ ■ light, then this appeal must fail, the late learned Chief Justice being 
 
 Sdphkme right in refusing to receive evidence tending to shew that the cer- 
 
 OF Canada, tificates of work held by the defendant 'did not truly represent the 
 
 ^j,^ facts, but were fraudulently proc^ired and void. 
 
 ' ' This case, it seems to me, affords an interesting illustration of 
 what the legislature was aiming at when they passed it. la the 
 present ease, on the day when the plaintiffs made their attempt to 
 "Jump" (the word used in the Courts below), the claims, the de- 
 fendant 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 full 
 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 plaintifEs, 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 transac- 
 tion 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 ease 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 witli 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 
 ■hitherto unreported on sec. 28; and as to invocation of by stranger, Boie v. 
 Saulter, ante, p. 240. 
 
 Up to the end of the period covered bj' this volume (Sept. 30, 1902), this 
 is tEe latest decision on sec. 28. For the future, where both parties have obtain- 
 ed certificates of work for the "whole or portion of the same claim" (v?hat- 
 ever 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-C6uncil of 1900 and 1902 respecting the interpretatien 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. 
 
I.] STAR MINING AND MILDING 00. v. BYRON N. WHITE GO. 
 
 513 
 
 Stae Mining and Milling Co. v. Bteon N. White Co. M^y^si. 
 
 Practice — Ewtralateral Bights — Apeic — Order for Inspection — Plan — Privilege ^I-artin, .J. 
 — Discovery — Court Motion, — Affidavit of Documents — Rule 514- 
 
 Proceedings for inspection of a mine under Rule 514 are distinct from ordinary 
 proceedings in discovery, and a claim of privilege set up in an affidavit in 
 answer to a motion to compel inspection is not conclusive. 
 
 It is a proper and convenient practice to apply to the Court to enforce the order 
 for inspection. 
 
 Motion to compel the defendant company to produce for inspec- Statement. 
 tion certain working plans and drawings which the plaintifE com- 
 pany 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) reinoved therefrom, and also so far as may be necessary to ascer- 
 tain 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 (1903), 9 B. C. 9, anie, 
 p. 468. 
 
 Davis, K.C. (S. 8. Taylor, K.C., with him), in support of the Argument, 
 motion. 
 
 Bodwell, K.C, contra. 
 
 The motion was heard by Maetin, J., at Vancouver on 1st May, 
 1902, and in addition to the matter of law raised and stated in the 
 judgment, material was filed by both parties on the question of fact, 
 as to the expediency of granting the application. 
 
 Cur. adv. vult. 
 
 M.M.C. 33 
 
514 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1902. 
 May 31. 
 
 Maktin, J. 
 
 Judgment. 
 
 May 31st; 1902. 
 
 Maetin^ J. : — In support of the application are filed affidavits of 
 ,two surveyors and of the manager of the plaintiffs' mines. The re- 
 sult of 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 in- 
 spection asked for unless the defendant's contention in regard to the 
 construction to be placed on Rule 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 privilege, 
 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 maps 
 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 dp 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, 1903, pp. 319- 
 20. I find myself unable to take this view of Rule 514, and have 
 come to the conclusion that said Rule 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 sur- 
 veyors from making surveys and plans of the mine, as authorized by 
 said order, and would have justiiied its action by simply filing an affi- 
 davit in terms almost precisely similar to that here relied 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 
 follows that Rule 514 does differ from the rules relating to discovery 
 
 ♦Rule 514. It shall be lawful for the Court or a Judge, on the application 
 of any party to a cause or matter, and upon such terms as may be just, to make 
 ^fly order for the detention, preservation or inspection of any property or thing 
 bieing the subject of such cause or matter, or as to which any , question may 
 arise therein, and for all or any of the purposes aforesaid to authorize any 
 persons to enter upon or into any land or building in the possession of any party 
 to such cause or matter, an^ for all or any of the purposes aforesaid to authorize 
 any, samples to be taken, or any observation to be made or experiment to be 
 tried, which may seem necessary or expedient for the purpose of obtaining fuir 
 information or evidence. 
 
I.] STAR MINING AND MILLING 00. v. BYRON N. WHITE GO. 515 
 
 in this essential particular, and if the principle relied on doeo not 1902. 
 apply to a survey it cannot apply to an inspection directed by the f!l_ 
 same rule. The cases of Esquimalt and Nanaimo By. Co. v. New' Martin, J. 
 Vancouver Coal Co. (1898), 6 B. C. 194, ante, p. 323; Centre Star v. 
 Iron Mask (1898), 6 B. C. 355, ante, p. 267; and Iron Mash v. Centre 
 Star (1899), 7 B. C. 66, ante, p. 362, sustain this view. 
 
 Eule 514 provides a most useful and beneficial procedure, par- 
 ticularly in mining cases, but if the contention of the defendants' 
 counsel is correct, it is liable to be defeated by the simple statement 
 of the mere belief of the immateriality of documents. ' I am of the 
 opinion that such is not the practice, and that the application should 
 be resisted by submitting such facts as will enable the Court to de- 
 cide the question as one of fact in each particular ease. 
 
 Though I have dealt with the matter as one of substance as re- 
 gards all the plans, yet I point out that technically the plaintifE would 
 in one respect be entitled to succeed in any event, because the original 
 of one admittedly relevant plan has, by an oversight, as explained, 
 not been produced, but merely a copy. 
 
 I might add, that as a matter of practice the course that has been 
 adopted of moving in the present way seems a. proper and convenient 
 manner of enforcing the order, there being no question of contumaci- 
 ous resistance on the part of the defendant company. 
 
 The application is granted; costs to the plaintiff in any event. 
 
 Motion allowed.. 
 
516 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 1902. 
 June a5. 
 
 Full Court. 
 
 Statement. 
 
 -Argument. 
 
 McFaught V. Van Noeman et al. 
 (9 B. O. 131.) 
 
 Mineral Claim-^Interest of a Go-owner — Free Miner's Certificate, Lapse of — 
 Right to Renew — Sheriff — Execution — Judgment — Mineral Act, sec. 9 and 
 Amendment of 1899, sec. Jf. 
 
 A sheriSE in possession of a free miner's interest in a mineral claim has 
 no power on behalf of a judgment creditor to take out a special free miner's 
 certificate under sec. 4 of the Mineral Act Amendment Act of 1899, in the 
 name of the owner of the interest under seizure ; neither has the sheriff power 
 to renew a certificate before' lapse. 
 
 Where one of the co-owners of a mineral claim allows his free miner's certifi- 
 cate to lapse, his interest at once vests pro rata in the remaining co-owners. 
 
 Decision of iKVlifG, J., affirmed. 
 
 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' in- 
 terest in the claims. On 31st May, 1901, before sale by the Sheriff of 
 the interest seized, McKinnon allowed his free miner's certificate to ex- 
 pire, without renewing it. With the purpose of reviving the interest of' 
 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^ certificate, under the authority of 
 sec. 4 of the Mineral Act Amendment Act, 1899. This special certi- 
 ficate was issued on the 5th of June, 1901. Prior to the expiry of 
 McKinnon's free miner's certificate, the plaintiff was a co-owner with 
 McKinnon in the mineral claims in question and claimed the interest 
 seized, under sec. 9 of the Mineral Act, and an interpleader issue wis 
 tried at Nelson, on 18th October, 1901, before Irving, J. 
 
 S. 8. Taylor, K.C., for plaintiff : The special free miner's certifi- 
 cate obtained by the execution creditors was issued without authority, 
 and is of no effect. See. 4 of the Act of 1899, gives no privileges or 
 rights to any one, other than the person whose certificate has elapsed. 
 Even if the special certificate was properly issued, it has no effect in 
 reviving the lapsed interest, as a third party, viz., the plaintiff has, 
 by virtue of sec. 9 of the Mineral Act, acquired an intervening title. 
 
 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 pur- 
 pose 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. 
 
I.] 
 
 McNAUGHT v. VAN NORMAN. 
 
 517 
 
 [Irving, J . : — It seems to me that neither the Sheriff nor any one 1902. _ 
 else, other than McKinnon, had a right to take out the special certi- J"^!?-^- 
 ficate. Sec. 4 of the Act of 1899 confers a merely personal privilege.] Full Court. 
 
 In any event the case is not covered by the sections of the Mineral huntkr^ C.J, 
 Act under discussion at all. Upon the delivery of the writ of execu- 
 tion to the Sheriif, or at least upon seizure, the chattel interest of Mc- 
 Kinnon in these mineral claims became charged with the execution 
 debt : E. S. B. C. 1897, eh. 56, sec. 16, sub-sec. 16. Execution is an 
 entire thing, and whenever consummated, is regarded as executed from 
 the time when the charge attaches: Cleric v. Withers (1704), 1 Salk. 
 323; Osborne v. Kerr (1859), 17 U. C. Q. B. 144. Upon seizure the 
 interest is in custod/ia legis, and cannot be ailected by any voluntary 
 act of the debtor, whether of omission or commission : Giles v. Grover 
 (1832), 9 Bing. 128; Woodland v. Fuller, (1840), 11 A. & E. 859. 
 
 Taylor, in reply : The Sheriff on seizure obtains no property in the 
 matter seized, bu^ only the right to sell: Woodland v. Puller (1840), 
 11 A. & E. 859 at p. 866; Giles v. Grover (1832), 9 Bing. 128 at 
 pp. 137, 138, 139 and 141. A mineral claim cannot be in custodia 
 legis, as it is a chattel real: Play fair v. Musgrove (1845), 15 L. J. 
 Ex. 26. 
 
 Ieving, J.: — While the Sheriff could have sold McKinnon's in- 
 terest as long as it remained alive, the moment he allowed his licence 
 to expire his interest disappeared. There will be judgment in favour 
 of the plaintiff. 
 
 Judgment for plaintiff. 
 
 The defendants appealed, and the appeal was argued at Vancouver 
 on 1st May, 1902, before Hunter, C. J., Walkem and Martin, JJ. 
 
 Sir 0..H. Tupper, K.C., and John Elliot, for appellants. 
 
 8. 8. Taylor, K.C., for respondent. 
 
 Cur. adv. vult. 
 
 Judgment 
 
 below, 
 Irving, J. 
 
 Appeal. 
 
 Argument. 
 
 June 25th, 1902. 
 
 Hunter, C.J. : — Interpleader issue to try the question whether an Judgment, 
 undivided one-quarter interest in certain mineral claims belongs to the 
 claimant, or to the execution creditors of one McKinnon. McKinnon 
 being the recorded owner of the interest, allowed his free miner's 
 certificate to expire on May 31st, 1901, without renewing it, and the 
 Sheriff, who had seized on the 29th of March, took out a special free 
 miner's certificate in McKinnon's name on the 5th of June on behalf 
 of the creditors. 
 
 There can be no doubt, I think, that on the lapse of McKinnon's 
 certificatCj his interest vested ipso facto in McNaught by virtue of sec. 
 9 of the Mineral Act, unless the effect of that section is cut down l)y 
 
518 MARTIN'S MINING GASES. [vol. 
 
 1902, _ see. 4 of the Mineral Act, 1899. This latter section provides, in effect, 
 
 une^o. ^^^ j£ ^^^ person allows his eertiiicate to, expire, hes may obtain £f 
 
 Fpll Coukt. special certificate which shall revive his title to all claims owned^ by 
 
 Walkem, J. him, either wholly or in part, at the time of the lapse, except siich as 
 
 had previously passed to some one else. 
 
 There appears to be no real difficulty in reconciling the seetiojis, 
 as the words " or in part " may be satisfied by supposing that the 
 Liegislature had in view the possible case of two or more co-owners 
 allowing their certificates to lapse simultaneously, which could easily 
 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 " have 
 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 thinlcing 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 other- 
 wise, and by sec. 3 of the principal Act the certificate is not transfer- 
 able. 
 
 Moreover, the Sheriff acquires no title to the interest of the execu- 
 tion debtor : he is in possession, actual or constructive, as the ease 
 may be, and is merely the instrument of the law by which the title 
 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 SherDf is necessary: Giles v. Grover (1833), 1 CI. & 
 P., per Patterson, J., at pp. 76-7; per Taunton, J., at p. 114; per 
 Vaughan, B., at p. 143; per Tindall, C.J., at pp. 304-5; per Lojd 
 Tenterden at p. 318 ; Play fair v. Musgrove (1845), 15 L. J., Ex. 36. 
 
 I think the judgment should be affirmed with costs. 
 
 Walkem^ J. : — I agree with the learned Chief Justice that the 
 appeal should be dismissed with costs. 
 
 No person, except he is specially authorized to do so, has the right 
 to take out a free miner's licence in any other person's name. The 
 same rule applies to the special licence taken out by the execution 
 creditor in McKinnon's name, as there is no evidence that McKinjioa 
 gave him authority to iise his name. 
 
 Under the Mineral Act, a miner's licence is not transferable, yet 
 the execution creditor by his unauthorized act, has, in effect, 
 endeavoured to defeat this regulation of the statute by securing the 
 licence for his own purpose, and in McKinnon's name. The f q.et that 
 McKinnon did not take out the special licence makes that licence, as 
 it seems to me, nugatory. According to a well-known principle of law, 
 
I.] McNAUGHT v. VAN NORMAN. 519 
 
 the creditor mentioned can obtain no advantage from the licence, as 1902. 
 his act, in obtaining it, was illegal. June^5. 
 
 The phrase " wholly or in part " in sec. 9 of the Mineral Act of Full Court. 
 1899, means, as I read the context, the whole or any part of or in- Martin, J. 
 terest in, a mineral claim which a miner may happen to own. 
 
 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 for the respondent that the 
 effect of the proper construction of sec. 4 of the Mineral Act Amend- 
 ment Act, 1899, is to confirm in him the interest of McKinnon in 
 the mineral claims set out in the interpleader issue. When Mc- 
 Kinnon's certificate expired, he, by virtue of sec. 9 of the Mineral Act, 
 absolutely forfeited all his interest in said claims, and that interest, 
 ipso facto, became vested in his co-owner, the respondent, who at and 
 from the moment Of expiration of the said certificate became the sole 
 and absolute owner of the claims, unless it is possible to revive as 
 against him the interest of his former co-owner, McKinnon. Accord- 
 ing to said sec. 4, a special certificate may be obtained under certain 
 coiiditions, 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 hi? 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. . . ." !N"ow, as 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 relied upon was obtained, so I see no escape from the 
 conclusion that the exception in section 4 is, on the facts of this case, 
 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 McFaught should 
 in ^y way be regarded as trustee for McKinnon. The appeal should 
 be dismissed with costs. 
 
 Appeal dismissed with costs. 
 
 Note. — See as to partners' interest in proceeds of sale of claim, McNerhanie 
 V. Archibald, ante, p. 320. 
 
520 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 T^?''^- Fey et al. v. Botsfoed et al. 
 
 July 29. 
 
 „ "Zr (Two actions.) ' 
 
 Fci.t Court. 
 
 MacQuillan v. Fet. 
 
 Adverse Action — Certificate of Improvements — Co-owner — Estoppel — Notice — 
 Res judicata — Judgment in rem — Mineral Act, seas. 36-7, and Amend- 
 ments. 
 
 A judgment in an adverse action under sec. 37 of the Mineral Act is not a. 
 
 judgment in rem. 
 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 improvements. 
 Per Maetin, J : — Sec. 37 does not apply to co-owners of the same claim, but 
 
 to owners of conflicting claims. x 
 
 Decision of Irving, J., affirmed. 
 Bentley v. Botsford, ante, p. 454, followed. 
 
 Statement. APPEAL from a judgment of Ieving, J., on a point of law directed 
 
 to be heard and disposed of by an order of that Judge in Chambers, 
 dated March 28th, 1901. Later, the sole question agreed to be argued 
 (as recited in order of Court of March 7th, 1902) was — "Does the 
 decision of the adverse action of Callahan v. Coplen {ante, p. 34S), 
 prevent this action being maintained?" 
 
 The argument was heard on the 3nd day of August, 1901, and Slst 
 of February, 1902. The facts appear from the judgment. 
 
 Argument. Joseph Martin, K.C. {E. J. Deacon, with him), for plaintiffs A. C. 
 
 and F. L. Fry. 
 
 Sir Charles H. Tupper, K.C, and Peters, K.C, for defendant 
 Botsford. , 
 
 ; Duncan, for defendant MaeQuillan. 
 
 Cur. adv. vult. 
 
 Judgment 
 
 below, 
 Irving, J. 
 
 March 7th, 1902. 
 
 IevinGj J. : — These three actions are connected with the claims 
 which formed the subject-matter of the adverse action of Callahan 
 V. Coplen. In that action Callahan as owner of the Cody and Joker 
 fractional mineral claims, hereinafter called the fractions, successfully 
 opposed an application by Coplen for a certificate of improvements in 
 respect of the Cube Lode mineral claim. 
 
 The trial of the case, Callahan v. Coplen, ante, p. 348, took place 
 before Mr. Justice Maetin, who dismissed the adverse action (1899) 
 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 plead- 
 ings is invalid and illegal in so far as the same embraces or includes the Joker 
 
I.] FRY ET AL. V. BOTSFOKD et al. 521 
 
 and Cody Fractional mineral claims; that the defendant has no right, title or 1902. 
 
 interest in or to any portion of the ground comprised within the boundaries of July 29. 
 
 the Cody Fractional mineral claim and the Joker Fractional mineral claim, or — — 
 
 either of them, or to the minerals contained therein ; also, that the defendant is Full Court. 
 not entitled to a certificate of improvements to the said alleged Cube Lode 
 mineral claim in so far as the same overlaps or conflicts with the said Joker 
 and Cody Fractional mineral 'claims." 
 
 In the first of these three actions (MacQuillan v. Fry) Mac- 
 Qnillan as one of the owners of the fractions sues for damages for 
 trespass which he alleges the Frys have committed. The Frys, in addi- 
 tion to denying the trespass, allege in their statement of defence, para- 
 graph 8, that the ground upon which the plaintiffs say they are tres- 
 passing is really a portion of the Cube Lode mineral claim. 
 
 The plaintiff in his reply says that the defendant ought not to 
 be allowed 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 improve- 
 ments in respect of the Cube Lode mineral claim, and at the time of 
 the application 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 com- 
 menced. 
 
 The reply then sets out the steps taken and the judgment obtained b^w"' 
 in the adverse action, as I have already mentioned, and the plaintiff, Irving, J. 
 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 application's of different date by Botsford and Mac- 
 Quillan 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 
 ground in respect of which Botsford and MacQuillan 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- 
 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 
 plaintiffs in these actions by estoppel. 
 
 By paragraph 41 they say that as a matter of law this present 
 action of the Frys is practically an action between the same parties 
 for the same cause and cannot be now maintained. 
 
.522 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1902. 
 July 29. 
 
 Fvuj Cooht. 
 
 •Judgment 
 
 below, 
 Irving, J. 
 
 On the 38th of March, an order was made directing that the points 
 of law so raised by the reply in the first cause and paragraphs 40 and 
 41 of tlie second and third causes should be set down for argument 
 before the trial of the issue of fact, and the three were argued before 
 me at one time. 
 
 Some correspondence took place between the solicitors, by which 
 it was agreed that the question to be determined was — Does the deci- 
 sion of the adverse action in Callahan v. Coplen prevent these actions 
 being maintained ? 
 
 The case for the owners of the fractions was put in two ways — 
 either because the Callahan v. Coplen judgment when read with sec. 37 
 was a judgment in rem, or because it was a judgment inter parteSj and 
 the parties were the same. 
 
 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 of 
 improvements. By sec. 37 it is provided that a certificate of improve- 
 ments, when issued, shall not be impeached, except for fraud. By 
 sub-sec. 3 of sec. 37 a code of procedure for adversing applications is 
 laid down. 
 
 It provides (a) that any person claiming adversely to the applicant 
 shall bring his action within 60 days; (6) tliat failure to commence or 
 prosecute with due diligence shall be deemed to be a waiver of the 
 plaintiff's claim; {c\ that (1) after filing the final judgment and (3) 
 upon complying with the requirements of sec. 36, the person or any 
 one of the persons entitled (according to the judgment) to the posses- 
 sion of the claims shall 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 judg- 
 ment in favour of the applicant might be said to be one affecting the 
 status of the property and bind all the world, as by sees. 36 and 37 ajl 
 persons were required to come in and contest his claim, and it mig^t be 
 said to be a judgnient in rem. But is the result the same if he fail ? 
 The adversing plaintiff in the adverse action does not necessarily suc- 
 ceed if the applicant fails — ^this judgment -vyould not affect the status 
 of the property. 
 
 Again, if we take the case where both parties fail, the judgment 
 under sec. 11 of ch. 33 of 1898 would not be a judgment affecting the 
 status of the property. 
 
 Those are three judgnients which might be given in an adverse 
 action in one of which there would be a judgment which decided that 
 one of the parties was not entitled to the possession of a certain piece 
 of ground, or to a certificate of improvements in respect thereof. That 
 
I.] FRY ET AL. V. BOTSFORD ET AT.. 523 
 
 seems to me to establish that judgments under sec. 37 are not in the 19,02. 
 -nature of judgments in rem. , "_Z_ ' 
 
 In many cases (of which the adverse action of Callahan v. Coplen Flgl Court. 
 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 
 give aflBrmative evidence of his own title up to a certain point, i.e., -to 
 -the trial, yet he may not be entitled to a certificate of improvements — 
 in such a case the judgment would not be in the nature of a judgment 
 in rem — as it would affect the status of the property. At the utjnost 
 ■ .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 in favour of the applicant's right to a certificate 
 ■of improvements after advertisement duly made, and a judgment in 
 favoiir 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 
 fthe peculiar features of an action in rem — there has been no prelim- 
 inary notice to the world — it was contended that the filing of a writ judgment 
 (as re.quired by sec. 37), was a notice of this character, I always below, 
 thought it was more in the nature of a certificate of lis pendens, part 
 ■of 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 com- 
 menced with the so-called notice required by sec. 37, it wiU 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 institu- 
 tion 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 
 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 pro- 
 ceeding. 
 
524 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 1902. Then it is said that if the decision in Callahan v. Coplen was not 
 
 ■ tJ_ ■ a judgment in rem then it was a case inter partes, and that the same 
 Full Couet. parties are now again seeking to litigate the matter. 
 
 In the first place, I would point out that nowhere in the Act is 
 it said that all co-owners must join in the application for a certificate 
 of improvements. My brother, Martin, has decided {Beniley v. Bots- 
 ford, (1901), 8 B. C. 138, ante, p. 454), that it is not necessary that 
 all co-owners should join in the application. 
 
 Having regard to the peculiar nature of the relationship existing 
 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 application 
 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 Bailway 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 privies, 
 nor are they parties. 
 
 Sir Charles Tupper relies on Young v. Ilalloway (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 ap- 
 plication of this sort, as the facts are in dispute. The question sub- 
 mitted must be answered in favour of the Prys. The costs of this 
 application will be their costs in any event. 
 
 Appeal. 
 
 Argument. 
 
 The defendants Botsford and MacQuillan appealed, and the appeal 
 was argued at Victoria on 13th June, 1902, before Hunter, C.J., 
 Martin and Deake, 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 stand- 
 ing by and being willing 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, supra; the plaintiffs had constructive 
 notice of adverse proceedings, and not having come in are bound; 
 under the section it is not merely notice to those who have an adverse 
 interest, but notice to all the world, to anyone who has any interest; 
 according to Bentley v. Botsford, supra, it is an adverse suit if the 
 party claims too much; as to res judicata see cases collected in Free- 
 man on Judgments (4th ed.), 105, and Chand on Ees Judicata, 195; 
 as to judgments in rem see Houstoun v. Marquis of Sligo (1885), 29 
 C. D. 448, 454; Gastrique v. Imrie (1870), L. E. 4 H. L. 427-9; 
 
I.] FEY ET AL. V. BOTSFORD ET al. 525 
 
 Duchess of Kingston's Case (1776), 2 Sm. L. C. 734, 753; Wicherley 1902. 
 V. Andrews (18 ), 2 P. & M. 337; Birch v. Birch (1903), P. D. 72; ^"^29. 
 Bonnemoit v. Gill (1897), 45 Nor. East. Eep. 768. Full Court. 
 
 Joseph Martin, K.C., for the respondents: The case set up is ucntee, c.j 
 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 vre were not in the position of an adverse 
 claimant or an opposing interest, quite the reverse ; in any event plain- 
 tiffs cannot rely on our title if defective, because by sec. 11 both 
 parties are on the same footing and must prove their title. 
 
 Per CuEiAM : — 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' Pre- 
 cedents (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 
 case 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 sec. 37 bears the construction contended for ; the whole 
 procedure of the sections is directed towards procuring a certificate 
 of improvements, and they apply to owners of conflicting claims ; the 
 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, 
 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. 
 
 July 29th, 1902. 
 
 HuNTBE, C.J. : — In my opinion, this case comes in too unsatisfae- Judgment, 
 tory a way before the Court to enable us to deal with it properly. 
 We are asked to decide several important questions as to the construc- 
 tion of an Act which is more frequently before the Court than any 
 other, and which affects a large section of the community, in almost 
 complete ignorance of the facts. , 
 
 An order was made under Rule 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 
 
 u_y- • disposed of before trial. The matter came up for argument oh Slay 
 
 Full Coubt. gnd, 1901^ and was re-argued, it being agreed that the question for 
 
 Hdnter^ C.J. decision should be, " Does the decision of the adverse action of Calla- 
 
 lian V. Goplen 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. Goplen, 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 Eule 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 adnlitted, 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 mislea3ing, 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 ' 
 38th of March, 1901, and the judgment of the 7th of March, 1903, 
 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 to. be argued, the costs of the other proceedings should be • 
 costs in the cause. ' 
 
I.] FRY ET Ai. V. BOTSFORD et al. ' 527 
 
 lieference to Yale Hotel Co. v. V. 7. & E. By. Co. (1902), 9 1002. 
 B, C. 66, will shew that the Court very recently felt similar diffi- Juiy^fl- 
 
 culty in the way of determining important questions of law which Full Court.. 
 
 were raised before trial. Drake, j. 
 
 Deake^ J. : — This is an action by the plaintiffs as co-owners or 
 co-partners with one A. D. Coplen in a claim called the Cube Lode. 
 In 1897, William Callahan brought an action against Coplen with 
 reference to tlae same ground, in which action the then plaintiff re- 
 covered judgment, and that judgment was that the Cube Lode mineral 
 claim was an invalid claim in so far as it embraces or includes any 
 part of the Cody and Joker Fractions. It appears the Frys were 
 part owners of the Cube Lode mineral claim with Coplen, and were 
 witnesses on behalf of Coplen in the action above referred to. The 
 question we have to determine is whether they are bound by the judg- 
 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, 
 heirs and assigns. The Frys as co-owners do not fall within any of 
 these designations. It is true their title rests on the same founda- 
 tion as that of Coplen. A co-owner of a mineral claim is entitled 
 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 appar- 
 ently 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 judg- 
 ment. Ees 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 case, that with certain exceptions, a trans- 
 action 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 claim- 
 ing 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 
 of the claims as they were at the commencement of the several ac- 
 tions, and not as they were when the action of Callahan v. Coplen 
 was commenced. The state of affairs may be entirely altered by neg- 
 lect of statutory duties, and this reason alone is sufficient to prevent 
 
528 MARTIN'S MINING CASES. [vol. 
 
 1902. the appeal from succeeding. I therefore think the appeal should be 
 July^9. dismissed with costs, but I also think the actions should be con- 
 FuLL CoDRT. solidated. 
 
 Mahtin, J. 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 Gallahan v. CopJen prevent this action being maiQ- 
 tained ?" 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 application 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 ob- 
 jfect 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 Eecorder's office must contain " the name 
 of the lawful holder thereof;" and sub-sec. {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-sees. 10 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. 
 Haney, ante, p. 390. 
 
 As to co-partners and co-owners, see notes to Aleieander v. Heath,, ante, p. 
 333. 
 
 See sees. 2 and 3 of the Mineral Act Amendment Act, 1902 (June 21. 1902) , 
 for 'the future determination of adverse actions under sec. 37 of the Mineral 
 Act and Amendments. 
 
 [End of Eeports.] 
 
APPENDIX. 
 
 34 
 
J s s 
 
 ¥'. 
 
APPENDIX A. 
 
 Table (a) of Peoclamations, Okdinances and Statutes oe the Colonies, of 
 Vancouvek Island and Beitish Columbia and or the Pkovince of 
 British Columbia relating to Mining. 
 
 {Exclusive of Private Acts.) 
 
 *l853. 26tb March (V.I.) Proclamation respecting Gold Mining in 
 
 ,^ . Queen Charlotte's Island. 
 
 *icKr. oJ**^ April (V.I.) Provisional Regulations regarding the same. 
 
 *lb5(. 28th December.. (V.I.) Proclamation respecting Gold Mining in the 
 
 Districts of Eraser's River and ' Thompson's 
 River, commonly knovFU as the " Quaatlan," 
 ; " Couteau," and " Shuswap " countries. 
 
 * I 29th December.. (V.I.) Provisional Regulations regarding the same. 
 
 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 thg persons 
 
 digging for gold or otherwise employed at the 
 Gold Fields," with accompanying Form of Min- 
 ing Licence. 
 
 1st July (V.I.) Instructions to Assistant Gold Commissioners. 
 
 " 13th July (V.I.) General Regulations for Gold District. 
 
 " 19th November . . . Colony of British Columbia established (c) . 
 
 1859. 8th February .. (B.C.) Proclamation confirming Proclamation of 
 28th December, 1857, and Regulations of 30th 
 December, 1857, iind 13th July, 1858, and fixing 
 amount of mining and other licences. 
 
 " 14th February . . (B.C.) Proclamation respecting the alienation and 
 possession of Crown Lands j and Mines and Gold 
 Claims — sees. 6. 7, and 9. 
 
 " 10th August (B.C.) Proclamation. The "Licences Act, 1859." 
 
 * ■' 31st August (B.C.) Proclamation. The " Gold Fields Act, 1859." 
 
 ( Consolidation. ) 
 
 * '■ 7th September. . (B.C.) Rules and Regulations for the Working of 
 
 Gold Mines under foregoing Act. 
 
 (o)' Those proclamations, &e., which are hereinafter printed, are marked 
 in this Tstble by an asterisk. 
 
 ' (5) No date is appended to these Regulations which were issued in con- 
 nection with mining licences, concerning which Governor Douglas says in his 
 despatch of June 19th, 1858. " We have commenced levying the duty on mining 
 licences, all parties entering the river (Fraser's) by the licenced steam vessels 
 being required to pay one month's licence in advance." Papers relative to the 
 affairs of B. C. 1859, Pt. I., pp. 18, 19-22, 30-3. 
 
 (c) Though the union of the two Colonies did not occur till 18fi6, in Van- 
 couver Island, so far as is known, no law specifically relating to mining was en- 
 acted after 1SS8, though references to mining rights are to be found in the var- 
 ious proclamations respecting Crown lands, e.g., that of 19th Feb., 1S61, sees 
 12, IG, 17 and 18 ; and that of 0th Sept., 1862, sees. 15, IG 22, 32 34. 
 
532 MARTIN'S MINING OASliJS. [vol. 
 
 1860. 6th January . . . (B.C.) Further Rules and Regulations for the- Work- 
 ing of Gold Mines under said Act. (Bench Dig- 
 gings. ) 
 
 1862. 29th September. . (B.C.) Further Rules and Regulations under said Act. 
 
 ' (Respecting crossing of mining ditches by roads, 
 
 &c.) 
 
 1863. 24th February.. (B.C.) Further Rules and Regulations under said 
 
 Act. 
 " 25 th March .... (B.C.) Proclamation (No. 4) amending the "Gold 
 
 Fields Act, 1859." 
 ■" 27th May (B.C.) Proclamation (No. 7) "The Mining District 
 
 Act, 1863." 
 
 1864. 1st February .. (B.C.) Ordinance (No. 1) "The Mining Drains 
 
 Act, 1864." 
 " 26th February .. (B.C.) Ordinance ,( No. 4) The "Gold Fields Act, 
 1864." 
 
 1865. 28th March (B.C.) Ordinance (No. 14) The "Gold Mining Ordi- 
 
 nance, 1865." (Consolidation.) 
 
 1866. 29th March (B.C.) Ordinance (No. 10) "The Williams Creek 
 
 Flume Ordinance, 18G6." 
 (B.C.) Ordinance (No. 12) "The Gold Export Re- 
 peal Ordinance, 1866." 
 
 " 17th November. . . Cnion of the two Colonies under the Name of British 
 Columbia. 
 
 *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 than 
 
 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." 
 
 (No. 14) " The County Courts Extension Act, 1873." 
 
 (Giving County Court Judges jurisdiction over 
 
 the Mining Court.) 
 
 1874. 2nd March (No. 3) " Gold Mining Amendment Act, 1874." 
 
 1875. 22nd April (Chap. 12) "Williams Creek Plume Ordinance Ex- 
 
 tension Act, 1875." 
 
 187C. 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.) / ' 
 
I.] APPENDIX A.— TABLE OF JIINING PROCLAMATIONS. 533. 
 
 1878. 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 1 "Mineral Act Amendment Act, 1878." 
 
 1881. 25th March (Chap. 15) "Mineral Act, 1881." 
 
 1882. 21st April (Chap. 8) "Mineral Act, 1882." (Consolidation.) 
 
 1883. 12th May (Chap. 2) "Coal Mines Regulation Amendment 
 
 Act, 1883." 
 
 (Chap. 3) "Coal Prospecting Act, 1883." 
 
 " (Chap. 19) "Mineral Amendment Act, 1883." 
 
 *1884. 18th February .. (Chap. 10 1 "Mineral Act, 1884." (Consolidation.) 
 
 *1886. 6th April (Chap. 14) "Mineral Amendment Act, 1886." 
 
 *1887. 7th April (Chap. 22) "An Act to amend the 'Mineral Act, 
 
 1884,' and Amending Aet«." 
 
 " " " (Chap. 24) "An Act to. aid the Development of 
 
 Quartz Mines." (Government guarantee of ad- 
 vances to extent of $60,000.) 
 
 1888. 28th April (Chap. 12) " Foreign Mining Companies Registration 
 
 Act." 
 
 " (Chap. 21) "Coal Mines Regulation Act, 1888?-" 
 
 " (Chap. 22) "An Act to aid in the further De- 
 velopment of Quartz Mines." 
 
 * " " " (Chap. 34) "An Act to amend certain Statutes." 
 
 * " 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 
 
 *1889. 6th April (Chap. 16) "An Act to amend the 'Mineral Act.' "" 
 
 " " " (Chap. 17) "Quartz Mines Development Act, 1869." 
 
 *1890. 26th April (Chap. 31) "Mineral Act Amendment Act, 1890." 
 
 " " " (Chap. 32) "An Act to alter and amend the 'Coal 
 
 Mines Act.' " 
 
 " " " (Chap. 33) "Coal Mines Regulation Amendment 
 
 Act, 1890." 
 *1891. 20th April (Chap. 25) "Mineral Act, 1891." 
 
 * ''^ ;; ;■ (Chap. 26) " Placer Mining Act, 1891.'- 
 
 (Chap. 27) " An' Act to reeomijense the members of 
 
 the Mining Commission." 
 1892. 23rd April (Chap. 31) "Coal Mines Amendment Act, 1892." 
 
 * " " " (Chap. 32) "Mineral Act (1891) Amendment Act,. 
 
 1892:" 
 
 *1893. 12th Api-il (Chap. 28) "Mineral Claim Confirmation Act,. 
 
 1893 " 
 
 * " " " (Chap. 29) "Mineral Act. (1891) Amendment Act, 
 
 1893." 
 
 1894. 11th April (Chap. 5) "Coal Mines Regulation Amendment Act,. 
 
 1894." 
 
 * " " " (Chap. 32) " Mineral Act Amendment Act, 1894." 
 
 * " "■ " (Chap. 33) " Placer Mining Amendment Act, 1894." 
 
 1895. 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." 
 
 1896. 17th April (Chap. 5) "Bureau of Mines Amendment Act, 
 
 1896." 
 
 * " " " .;... (Chap. .34) "Mineral Act, 1896." (Con.solidation.) 
 
534 MARTIN'S MINING CASES. [vol. 
 
 *1896. 17th April (Chap. 35) "Placer Mining Act Amendment Act, 
 
 1896." 
 
 " " " (Chap. 36) "An Act to repeal ' An Act to aid the 
 
 Development of Quartz Mines,'- and Amending 
 Act." 
 
 1897. 8th May (Chap. 27) "Inspection of Metalliferous Mines Act, 
 
 1897." 
 
 * " " " (Chap. 28) "Mineral Act Amendment Act, 1897." 
 
 * " " " (Chap. 29) "Placer Mining Act (1891) Amend- 
 
 ment Act, 1897." 
 1897. Revised Stats. .. (Chap. 36) "Bureau of Mines Act." 
 
 * " " " . . (Chap. 134) " Inspection of Metalliferous Mines 
 
 Act." 
 
 * " " " .. (Chap. 135) "Mineral Act." 
 
 * " " " .. (Chap. 136) "Placer Mining Act." 
 
 .. fChap. 137) "Coal Mines Act." 
 
 . . (Chap. 138) " Coal Mines Regulation Act." 
 
 *1898. 16th March (Chap. 32) " Mineral Claim Advertisement Act, 
 
 1898." 
 
 * " 20th May (Chap. 33) "Mineral Act Amendment Act, 1898." 
 
 * " " " (Chap. 34) " Placer Mining Act (1891) Amendment 
 
 Act, 1898." 
 " 10th September .. Order in Council prohibiting Gold Commissioners, 
 Mining Recorders, and others connected with the 
 -, administration of mineral claims from holding 
 mining interests. 
 
 1899. 18th January .. (Chap. 50) "Placer Mining Act Amendment Act, 
 
 1899." 
 
 * " 27th February ... (Chap. 11) "Bureau of Mines Amendment Act, 
 
 1898." 
 " " " " .. (Chap. 45) "Mineral Act Amendment Act, 1899." 
 
 . . (Chap. 46) " An Act to amend the ' Coal Mines 
 Regulation Act.' " 
 " " " .. (Chap. 47) "An Act to further amend the 'Coal 
 
 Mines Regulation Act.' " 
 . . (Chap. 48)' " Department of Mines Act, 1899." 
 
 * " " " ..<Chap. 49) "Inspection of Metalliferous Mines Act 
 
 Amendment Act, 1899." 
 
 * " " " .. (Chap. 51) "Placer Mining Act further Amendment 
 
 Act, 1899." 
 " " " .. (Chap. 52) "Bennett- Atlin Commission Act, 1899." 
 
 * " " " .. (Chap. 58) "An Act to extend the rights of the 
 
 Crown to Prospect for Minerals on Railway 
 Lands to all Free Miners." 
 
 1900. 18th January ... Regulation respecting cancellation of certificates of 
 
 improvements. 
 " 25th " ... Notice withdrawing same. 
 
 * " 5th March .... Order in Council respecting assessment work. 
 
 " 21st August .... (Chap. 30.) "Porcupine District Commission Act, 
 
 1900." 
 " 31st " .... (Chap. 3) "Canadian Contingent Exemption Act, 
 
 1900." 
 
 * ■■ '" " (Chap. 21) "Mineral Act Amendment Act, 1900." 
 
 * " " " .... (Chap. 29) "Pine Creek Discovery Confirmation 
 
 Act, 1900." 
 (Chap. 37) "Coal Tax Act. 1900." 
 
 1901. 11th May (Chap. 8) "Canadian Contingent Exemption Act, 
 
 Amendment Act, 1901." 
 
 * " " " (Chap. 35) "Mineral Act Amendment Act, 1901;" 
 
 (Chap. 30) "Coal Mines Regulation Act Amend- 
 ment Act, 1901." 
 
I] 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, 1900, respecting assessment work. 
 
 * " 15th " Order in Council respecting assessment work. 
 
 1902. 21st June (Chp,?. 7) "Canadian Contingent Exemption Act, 
 
 1902." 
 
 * (Chap; 46) " An Act to amend the " Mineral Act." 
 
 " " (Chap. 47) "Coal Mines Regulation Act Amend- 
 ment Act, 1902.^'. 
 
 (Chap. 48) "Coal Mines Regulation Act, Further 
 
 Amendment Act, 1902." [Disallowed, 5th Dec, 
 1902.1 
 
 * (Chap. 49) "Iron Placer Act, 1902." 
 
 * (Chap. 50) "Iron Placer Act, 1902, Amendment 
 
 Act, 1902.f' 
 
 * " 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 Apt Amendment Act, 1900. 64 Yio. 
 
 chap. 38. 
 
 1901. May 11 : Assessment Act Amendment Act, 1901. 1 Edw. 
 
 VII. chap. 56. 
 
 1902. June 21 Assessment Act Ainendment Act, 1902. 2 Edw. 
 
 VII. chap. 64. 
 
 REPRINT OF CERTAIN 'PROCLAMATIONS, ORDERS-IN-OOUNOIL, 
 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 im- 
 portant 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, 
 PeekW. Beginam, decided in 1884, there being no reported decision on the Acts 
 relating to coal, and practically no litigation thereon, none of such Acts is re- 
 printed here; to do so would add greatly to the bulk and cost to the practi- 
 tioner without any compensating practical benefit. 
 
636 MARTIN'S MINING CASES. [vpL. 
 
 , Jn regard to the 'origin of our mining laws, it may be stated that in his 
 despatch of September 27th, 185?, to Governor Douglas, containing instructions 
 negarding gold mining, the Secretary of State for the Colojiies says : " I there- 
 fore »nd you copies of two papers, which have been lately presented by command 
 of Her Majesty to Parliament, relating to the recent discovery of gold jn 
 Australia, from which you will derive very valuable information as tx) the course 
 of procedure adopted by the respective Governors in that country for granting 
 Jicences to persons to prosecute the search for gold. You will find the 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 Par- 
 liamentary " Papers Relative to the Affairs of British Columbia," 1859-00 ; Part 
 i.. p. 67 ; Part ii., p. 51 ; Part iii., pp. 10, 17.) Subsequently several provislions 
 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 differ- 
 ences will be found in the preceding pages of the Reports wherein they occur. 
 
 Proc. 1853. PROCLAMATION.* 
 
 March 26. 
 
 (26th March, 1853.) 
 
 By his Excellency James Douglas, Esq., Oovernor of Vancouver's Island, and 
 
 Lieutenant-Governor of Queen Charlotte's Island and its 
 
 Dependencies, &c., dc, &c. 
 
 Whereas by law all mines of gold, and all gold in its natural place of de- 
 posit 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 gold 
 exists upon and in the soil of the colony, and that certain persons have com- 
 menced, or are about to commence, searching and digging for the same for 
 tjieir own use, without leave or other authority from Her Majesty : 'Now I, 
 James Douglas, Esquire, the Governor aforesaid, on behalf of Her Majesty, do 
 hereby publicly notify and declare that all persons who shall take from any 
 lands within the said colony any gold, metal, or ore containing gold, or who 
 shall dig for and disturb the soil in search of such gold, metal, or ore, without 
 haviiig been duly authorised in that behalf by Her Majesty's Colonial Govern- 
 ment, will 'be prosecuted both criminally and civilly, as the law allows. And I 
 further notify and declare, that such regulations as may be found expedient 
 will be prepared and published, setting forth the terms on which licences will 
 be issued for this purpose, on the payment of a reasonable fee. 
 
 Given under my hand and seal at the Goverpm,ent Office, Victoria, this 26th 
 day of March, in the year of our Lord One thousand !Bight hundred and Fifty- 
 three, and in the seventeenth year of Her Majesty's reign. 
 
 By his Excellency's command. 
 
 James Douglas, Secretary. 
 God Save the Queen ! 
 
 ♦Parliamentary Return of 9th Aug., 1853, to address for " Copies or Extracts 
 pi Cprrespondence relative to the Discovery of Gold af Queen Charlotte's 
 Island." 
 
I.] APPENDIX A.— MINING PROCLAMATIONS. 53T 
 
 ^"" ^ PROVISIONAL REGULATIONS. March 26^' 
 
 GOVEBNMENT HOUSE, ViCTOBIA, 
 
 7th April, 1853. 
 
 With reference to the proclamation issued on the 26th March, declaring the 
 rights of the Crown in respect to gold found in its natural state of deposit 
 within the Islands of Queen Charlotte, his Excellency the Lieutenant-Governor 
 has been pleased to establish the following provisional regulations, under which 
 licences may be obtained to dig, search for, and remove the same : — 
 
 1. From and after the first day of April 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. 
 
 2. For the present, and pending further proof of the extent and productive- 
 ness of the gold deposits, the licence fee has been fixed at JOs. 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. 
 
 3. The licences can be obtained at Victoria, Vancouver's Island, until a com- 
 missioner is appointed by his Excellency the Lieutenant-Governor to carry those 
 r^ulations into effect, and who will be authorised to receive the fee payable 
 thereon. , 
 
 4. 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. 
 
 jA:iLES DOtlGLAS, 
 
 By his Excellency's command. 
 
 ^ ^ RiCHAED GOLLEDGE. 
 
 PROCLAMATION* 
 
 (28th December, 185T.) 
 
 By his E-rcdlcncy James Douglas, Governor of yancouvet's Island and its 
 Dependencies, <fc., <ic. 
 
 Whereas by law all mines of gold, and all gold in its natural place of 
 deposit, within the districts of Fraser's River and of Thompson's River, com- 
 monly known as the " QuaMlau," " Couteau," and " Shuswap " countries, 
 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 gold 
 exists upon and in the soil of the said districts, and that certain persons have 
 commenced, or are about to commence, searching and digging for the same for 
 their own use, without leave »r other authority from Her JIajesty. 
 
 Now I, James Douglas, the Oovernor aforesaid, on behalf of Her Majesty, 
 do hereby publicly notify and declare that all persons who shall take from any 
 lands within the said districts any gold, metal, or ore containing gold, or who 
 shall dig for and disturb the soil in search of gold, metal, or ore without having 
 been duly authorised in that behalf by Her Majesty's Colonial Government, will 
 be prosecuted, both criminally and civilly, as the law allows. 
 
 And I further notify and declare that such regulations as may be found ex- 
 pedient will he prepared and published, setting forth the terms on which licences 
 will be issued for this purpose on the payment of a reasonable fee. 
 
 ♦Parliamentary Return of July 2, 1858, for " Copies or Extracts of Corre- 
 spondence relative to the Discovery of Gold in the Eraser's River District in 
 British North America," p. 9. 
 
 Proc. 1857. 
 December 2(*> 
 
538 MARTIN'S MINING CASES. [vol. 
 
 Proo. 1857. Given under my band and seal at Government Office, Victoria, this 28t:h 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 Dotjglas, Governor. 
 
 By His Excellency's command. 
 
 RiOHABD GoiLEDGE, Secretary: ■ 
 God Save the Queen ! 
 
 PROVISIONAL REGULATIONS. 
 
 Government House, Victoria, 
 ,, , December 29, 1857. 
 
 With reference to the proclamation issued on the 28th of December, de- 
 claring the rights of the Crown in respect to gold found in its natural state of 
 deposit within the distrifcts of Fraser's River and of Thompson's River, com- 
 monly known as the QuaStlan, Oouteau, and Shuswap countries, his Excellency 
 the Governor, has been pleased to establish the following provisional regula- 
 tions, under which licences may be obtained to dig, search for, and remove the 
 same. 
 
 1st. Prom and after the first day of February next, no person will be per- 
 mitted 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 produc- 
 tiveness 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 regula- 
 tions 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 paid Commissioner. 
 
 I (Signed) James Douglas, Governor. 
 
 By his Excellency's command, 
 
 (Signed) Richard Golledge, Secretary. 
 
 Gold Fields PROCLAMATION.* 
 
 Act, 1859. 
 
 (7th September, 1859.) 
 
 By his Excellency James Donglas, Companion of the Most HonoraUe Order of, 
 
 the Bath, Governor and Commander-in-Chief of British Columbia and 
 
 its Dependencies, Vice-Admiral of the same, dc, &c. 
 
 Proclamation having the force of law in Her Majesty's Colony of British 
 Columbia. 
 
 Whereas, under and by virtue of an Act of Parliament made and passed 
 in the Session of Parliament .held in thy 21st and 22nd years of the reign of 
 Her Majesty Queen Victoria, intituled an Act to provide for the " Government 
 
 Note. — In his despatch of September 13, 1859, to the Secretary of State for 
 the Colonies, Governor Douglas says : " The ' Gold Fields Act,' with the an- 
 nexed rules and regulations embraces the whole subject of gold mining, and pro- 
 vides very fully for contingent questions. Miners' rights are guarded with 
 special care. As a class they are free from any direct taxes beyond the annual 
 charge of £1 for the free miner's certificate." Parlt. Papers, Relative to B. C, 
 1800, Part iii., p. 51. 
 
I.] APPENDIX A.— MINING PROCLAMATIONS. 539 
 
 of British Columbia," and by a Commission under the Great Seal of the United Gold Fields 
 Kingdom of Great Britain and Ireland, I, James Douglas, have been appointed Act, 1859. 
 Goyernor of the said Colony and have been authorised by Proclamation under 
 the Public Seal of the said Colony, to make laws, institutions, and ordinances, 
 for the peace, order, and good government of the same. 
 
 And whereas, by the " Licences' Act. 1859," it was declared ttat. from and 
 after the 31st day of August, 1859, the Proclamation of the 8th day of February 
 last past, and the regulations and instructions therein mentioned and referred 
 to, and bearing date resiDectively, the 1.3th July, 1858, the 28th December, 1857, 
 and the 30th December, 1857, should cease and be of no effect. 
 
 And whereas it is expedient to make provision for regulating the law of 
 gold mines in British Columbia in lieu of the provisions so repealed, and for the 
 administration of justice therein. 
 
 Now, therefore, I, James Douglas, do hereby declare, proclaim, and enact as 
 follows, viz. : — 
 
 In the construction of this Proclamation the following expressions shall TnterDreta- 
 have. the following interpretations respectively, unless there be something incon- (.jj,,. Clause 
 sistent or repugnant thereto in the context, (viz.) — "The Governor" shall in- "Governor" 
 elude any person or persons for the time being lawfully exercising the authority 
 of u Governor of British Columbia. 
 
 The expression " Gold Commissionei- " shall include Assistant Gold Com- <'n.„j£| nf,m- 
 missioners and Justices of the Peace, acting as Gold Commissioners either under missioner " 
 special authority, or the authority of this Proclamation, or any other pterson 
 lawfully exercising the jurisdiction of a Gold Commissioner for the locality 
 referred to. 
 
 The word " mine " shall mean any bar or separate locality in which any ,,^,. „ 
 vein, stratum or natural bed of auriferous earth or rock shall be mined. 
 
 The verb " to mine " shall include any mode or method of working whatso- ,, rp „ 
 
 ever, whereby the soil, or earth, or any rock may be disturbed, removed, washed, mine, 
 
 sifted, smelted, refined, crushed, or otherwise dealt with for the purpose of 
 obtaining gold, and whether the same may have been previously disturbed or not. 
 
 " Claim " shall mean in speaking of individual jiersons, so much of any "Claim " 
 mine as by law may belong or be alleged to belong to the individual spoken of, 
 and in speaking of any partnership so much of any mine as may by law belong 
 or be alleged to belong to the persons of whom the partnership shall exist, but 
 shall not extend to a lease of auriferous land as mentioned in Clause XI. 
 
 " Free Miner " shall mean a person named in and lawfully possessed of an ,,.p . ,,■ „ 
 existing valid free miner's certificate. 
 
 " Registered Free Miner " shall mean a free miner registered as entitled in ., Roistered 
 his own right to any claim, lease, of auriferous earth, ditch, or water privilege. Free^Miner " 
 
 And words in the singular number shall include the plural, and the mas- 
 culine gender shall include the feminine gender. 
 
 II. It shall be lawful for His Excellency the Governor, by any document Qq\^ Commis- 
 under his hand and the Public Seal of the Colony, from time to time to appoint gioners to be 
 such persons as he shall think proper to be Chief Gold Commissioner or Gold apnointed by 
 Commissioners, or Assistant Gold Commissioners in British Columbia, either for the Goveriior 
 the whole Colony or for any particular district or districts therein, and from under the Pub- 
 time to time in like manner to fix and vary the limits of such districts, and "" Seal, 
 iirnit new districts, and to revoke any such appointments and mate new 
 appointments and vary such limits and sub-divide any such districts into 
 separate and independent districts. 
 
540 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Gold Fields 
 Act, 1859. 
 
 Free Miner's 
 Certifioatn. 
 
 III. It shall be the duty of every Gold Oommlssioner upon payment of $1, 
 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. 
 
 BRITISH COLUMBIA, 
 
 Free - Miner's Certificate. 
 Date. JHot Transferable. 
 
 Valid for One Year. 
 
 No. 
 
 This is to certify that A. B., of , lias 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 Commissioner, or Assistant Gold Commissioner, or Justice of the 
 Peace, as the case may be. 
 
 To continue in 
 force for one 
 year. 
 
 iV. The free miner's certificate shall continue in force for twelve calendar 
 months from the date thereof, including the day of issuing the same, and no 
 Jonger, 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 eoun- Such certificate must be countersigned by the free miner therein named before 
 tersipned by being produced by him for any purpose. And where such certificate shall be 
 theFreeMiner issued to the free miner therein named in person, the Gold Commissioner or 
 
 the person issuing the same shall cause the same to be countersigned by the 
 
 applicant before himself signing or delivering the same. 
 
 Riglit til enter ^- Every free miner shall, during the continuance of his certificate, have 
 and mine. the right to enter without let or hinderance upon any of the waste lands of the 
 
 Crown, not for the time being lawfully occupied by any other person, and to 
 
 mine in the land so entered upon. 
 
 Registration 
 of claim an- 
 nually. 
 
 Free Miners 
 alone recog- 
 nized as hav- 
 ing any right 
 in claims, etc. 
 
 VI. All persons who shall at the date of this Proclamation coming into 
 force or previous to the 27th of October, 1859, hold any claim, ditch, or water 
 privilege, must on or before the 1st of November, now next, and all persons 
 who shall at any time after the 26th of October, now next, hold any claim, 
 lease, ditch, or water privilege, must within such space of time after first 
 taking possession thereof, as shall be fixed by the rules, regulations, or by-laws 
 for the time being in force in the place or district in which such claim, lease, 
 ditch, or water privilege shall be situated, register the same at the office of the 
 Gold Commissioner who shall record in a tabular form in a book or books to 
 be kept by him, the name of the holder, the dates of his certificate, of his taking 
 possession, and of his recording the claim, the name of the mine and the dis- 
 tinguishing number of the claim ; and all such further particulars as shall from 
 time to time be required by any valid by-law for the place or district. And 
 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 
 Majesty, Her Heirs and Successors, upon every registration or re-registration of 
 any claim. And no person, not being a free miner, shall be entitled to record a 
 claim or any interest therein. 
 
 VII. Every free miner shall have during the continuance of his certificiite 
 the exclusive right to the soil and gold in any claim for the time being duly 
 registered and worked by him according to the regulations and by-laws hereby 
 authorized to be issued, and for the time being In force, in relation to the 
 locality or district where such claim is situated. 
 
I.] APPENBIX A.— MININO PBOOLAMATIONS. 541 
 
 No person shall be recognized as having any right or interest in, or to an^ Golci Fields 
 claim or any of the gold therein unless he shall be, or in case of any disputed Act, lSfi9. 
 ownership, unless he shall have been, at the time of the dispute arising, a free 
 miner. 
 
 VIII. In case of any dispute, the title to claims, leases of auriferous earth priority i.f 
 or rock, ditches and water privileges, will be recognized according to the priority right shall' be 
 of registration subject only to any question which may be raised as to the recognized ac- 
 validity of any particular act of registration. cording to pri- 
 ority of regis- 
 
 IX. Bviery Gold Commissioner at the time of issuing any free miner's certi- tration. 
 ficate shall record the paper by date, number, and name of the free miner Records to be 
 named therein, and whether such certificate was issued to such miner in person kept of the 
 
 or on the application of another person, and the applicant's name, and shall on F.M.C.issued. 
 
 the 1st of January, 1st of April, 1st of July, and 1st of October in every year 
 
 cause to be made out a revised list of all the free miners holding certificates 
 
 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 
 
 place on each mine in his district, a list of the free miners for the time being 
 
 as holding registered claims in such mine. 
 
 The Chief Gold Commissioner shall in lifce manner, on the 1st of January 
 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 time 
 to time ordain. 
 
 X. In case any free miner's certificate shall be accidentally destroyed or lost, j t n fe, 
 the same may, upon evidence of such loss or destruction, be replaced by a new ~'°* '^6'"°- 
 certificate to bear the same date and to be issued and signed by the Gold Com^ 
 missioner for the same district as such lost or destroyed certificate. Every such 
 
 new certificate shall be marked " substitute for original of same date, this day 
 of ." And until some material irregularity or impropriety be shewn 
 
 in respect thereof, every original or substituted free miner's certificate shall be 
 evidence of all the matters stated therein or clearly implied the^■eb3^ 
 
 XI. Leases of any portions of the waste lands of the Crown may be Si'^^'^tsd Leases of au- 
 for mining purposes, for such term of years, and upon such conditions as to riferous lands, 
 rent, and the mode of working, and as to any water privileges connected there- 
 with, and otherwise in each case, as shall be deemed expedient by His Excel- 
 lency the Governor. 
 
 XII. In respect of any place or district wherein there shall for the time tj , j 
 being be no Mining Board as hereinafter described, or any separate mine within gui^tions to be 
 such place or district, it shall be lawful for His Excellency the Governor, by issued under 
 writing 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 matters re- 
 lating to claims and ditch and water privileges, and leases of the auriferous 
 
 lands in the Colony in larger quantities than the claims herein mentioned or 
 referred to, and for the registration thereof so far as sucli matters are not here 
 defined and set forth. 
 
 And also, from time to time to like manner to annul, repeal, or alter any 
 existing rule, regulation or by-law ; and to make new rules, regulations, and 
 by-laws in reference to all or any of such matters. And all such rules, regula- 
 tions, and by-laws shall continue in force until repealed by the Governor, by 
 some writing under the public seal of the Colony, or by some valid by-law 
 established by the Gold Commissioner and Mining Board of some district under 
 the provisions hereinafter contained. 
 
 XIII. It shall be lawful for His Excellency the Governor by a notification „ , , 
 under the public seal of the Colony to make provisions for the custody and l^jfi dglT.^t 
 carriage of gold at and from and between such points as may be thought proper, 
 
 and to establish such rates of charge for the carriage and custody of gold as 
 
542 MARTIN'S MINING CASES. [vol. 
 
 Gold Fields shall be deemed expedient, and in like manner to change and alter any or all of 
 Act, 1859. such provisions and charges. 
 
 o" th"''' '° ^^ •^^^' ^^® custody and care of all deposits, whether for custody or trans- 
 fo('tii^asDost- ^<°^^ ^° undertaken by or on behalf of the government, shall be under the like 
 office fcttOTs. 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- 
 erly in the same may in any proceedings, or suits, or actions at law, be stated 
 as being in the colonial treasury for the time being. And all clerks and persons 
 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 niisfeas- 
 ance, be liable in the same manner as if they had been clerks or acting as clerks 
 in the post office, mutatis mutandis. 
 
 Jurisdiction of XV. And as to the power and jurisdiction of and proceedings before a Gold 
 Gold Commis- Commissioner, I do hereby enact, proclaim and declare as follows, (viz) : — 
 sioner. 
 
 Every Gold Commissioner shall have and exercise during his term of office, 
 all the authority and jurisdiction of a Justice of the Peace for British Columbia, 
 in addition to his proper authority as Gold Commissioner. Any claim, mine, 
 ditch, or water privilege situate as to part thereof within the express limits 
 of same Gold Commissioner's jurisdiction, and as to other part thereof not within 
 the express limits of any Gold Commissioner's jurisdiction, shall be deemed to 
 be wholly within the jurisdiction within which any part of such claim, mine, 
 ditch, or water privilege, shall be situated. In the case of any claim, mine, ditch, 
 or water privilege, situate at more than a distance of ten miles from the office 
 of any Gold Commissioner, any Justice of the Peace for British Columbia, 
 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- 
 ized or required to be done by a Gold Commissioner. 
 
 And wherever the ditch or other property in respect whereof any question 
 may arise, shall be situated partly in one district and partly in another, or when 
 it shall be doubtful within whose jurisdiction the same or any part thereof 
 shall be totally situated, any Gold Commissionejr in the neighbourhood before 
 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. 
 
 Allmininffdia- XVI. All disputes relating to the title to any mine or claim, or to any part 
 putee may be °^ the proceeds thereof, or relating to any ditch or watfir privilege, or to any 
 dedded 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 m value . j^ tjjg gpgt instance, before the Gold Commissioner, having jurisdiction as afore- 
 said, without any limit to the value of the property or subject matter involved 
 in such dispute. 
 
 Except in cases XVII. Provided always that no Gold Oomnfissioner shall have jurisdiction in 
 
 of partnership, civil disputes between partners, unless it shall, in the first place, be shewn to 
 
 his satisfaction thkt the joint stock of the partnership is under the value of £200. 
 
 Appeal to the XVIII. Any person convicted under this Proclamation of any oifence against 
 SupremeCimrt the same, or any by-law, rule, or regulation, hereby authorized, and sentenced 
 in B.C. in to any term of imprisonment beyond thirty days, or to pay any fine beyond £20, 
 criminal and gygp aji(j above the costs of summary conviction, may appeal to the next assizes 
 summary cases j.^ j,g hoijen for the district or place wherein the cause of complaint shall have 
 arisen, provided that such person, at the time of such conviction, or within forty- 
 eight hours thereafter, enter into recognizance with two sufficient sureties, con- 
 ditioned personally to appear at the said assizes to try such appeal, and to abide 
 
I.] APPENDIX A.— MINING PROCLAMATIONS. 54a 
 
 the further judgment of thte Court at such assizes, and to pay such costs as shall Gold Fields 
 
 be by such last-mentioned Court awarded. And the convicting Odd Commis- Act, 1859. 
 
 sioner 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 allov^ed and paid by the colonial treasurer in 
 
 the first instance, and, if such appeal be dismissed, shall be repaid to the 
 
 colonial treasurer by the appellant. 
 
 XIX. On any such appeal, no objection shall be allovfed to the conviction No merely 
 bn any matter of form or insufficiency of statement, provided it shall appear to forn.al 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 matter in dispute Appeal in civil 
 is more than £20, shall bft dissatisfied with the determination, he may appeal cases over £20. 
 from the same to the Supreme Court of Civil Justice in British Columbia, pro- 
 vided that the appealing party shall, within four days of the determination 
 
 appealed from, give notice of such appeal to the other party, and also give secu- 
 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 
 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 
 appeal as such Court shall think proper, and such appeal may be in the form 
 o^ a, case settled and signed by the parties or tljeir attorneys, and if they cannot 
 agree, the said Gold Commissioner may settle and gign the same upQn being 
 applied to by the parties or their attorneys. , 
 
 XXI. In any case of any cause relating to a mine, claim, or ditch, being Cases under 
 brought in the first instance before the Supreme Court of Civil Justice of British £50 may be re- 
 Columbia, wherein the sum of damages sought to be recovered shall be less than J^'jj p is' 
 f50, it shall be lawful for the Court after issue jqined to direct the cause to be Joner 
 
 tried before any Gold Commissioner whom the Court shall name, and upon such 
 terms as the Court shall think fit. 
 
 XXIIi The Gold Commissioner alone without a jury shall be the sgle judge Gold Comuiis- 
 of law and fact. sioner to be 
 
 judge of law 
 
 XXIII. The Gold Commissioner shall have the power to cause such parties 5, 
 
 and witnesses as he shall think proper to attend on any proceedings before Power to sum- 
 him, and to compel the production of documents on any siich proceedings. """i^n."' 
 
 XXIV. The Judgp of the Supreme Court of Civil Justice shall, with the Forms of pro- 
 advice and consent of the Chief Gold Commissioner, or of any two. Gold Com- oeedme;s, costs,. 
 iuissioners, have the power, from time to time, to make, repeal, and alter such ®"'°- 
 
 rules and regulation^ for the conduct of the business before the Gold Commis- 
 sions for the times of proceeding, a,nd also such lists of costs of proceedings 
 as he shall think fit. Provided always that all such rules, i-egulations, and lists 
 of costs shall, within one calendar month from the making thereof, be laid before 
 His Excellency the Governor. 
 
 And it shall not be necessary for the Gold Commissioner, in any proceedings 
 before him to follow any set forms, provided that the substance of the things 
 done and to be done be therein expressed ; nor shall any procee(Jlings before any 
 Gold Commissioner be liaJble to be set aside for any want of form, so long as 
 matters of substance have not been omitted. 
 
 XXV. It shall be lawful for a Gold Commissioner in case of any dispute Jurisdiction .« 
 between partners in any claim, ditch, mine, or water privilege, where the joint to mining par"*' 
 or partnership stock shall be shewn not to exceed the value of £200, but not nerships 
 in other cases to decree a dissolution of partnership and a, sale or valuation 
 
 as- 
 
544 MARTIN'S MINING CASES. [vot. 
 
 Gold Fields or division of the partnership stock, and to direct the partnership account to be 
 Act, 1859. taken before himself and declare what amount, if any, is due on the 
 
 whole account by one partner to a'nother and geflterally to make such' 
 
 order, and give such directions therein as he shall think fit, and to take 
 such steps (if any), as he may deem expedient in the way of taking security or 
 appointing a receiver, or otherwise for securing the partnership property in the 
 meantime. 
 
 Summary XXVI. It shall be lawful for any Gold Commissioner, upon complaint made 
 
 encroach* "^ ^^^ wrongful encroachment on a claim, mine, ditch, or water privilege, and 
 ments etc. 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, arfd 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 
 ■Costs. the nature of the case shall seem to require. And if each party shall have de- 
 
 posited 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 in 
 dispute, and to adjourn the final decision of the case until such time as he shall 
 think proper. 
 
 Gardens, etc. XXVII. It shall be lawful for the Gold Commissioner to mark out for the 
 for Free Min- use of any registered free miner in his district, a space of land not exceeding 
 ■ers not more five acres to be occupied as garden ground or for a residence. The right coh- 
 than five acres ferred 'by such occupation shall only endure so long as the occupier shall be a 
 
 registered free miner of the district, and for such further period as shall be 
 
 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 
 
 Commissioner shall be entitled to demand the sum of ten shillings :^or the use of 
 
 Her Majesty, Her Heirs and Successors. 
 
 Plots for trad- XXVIII. It shall be lawful for the Gold Commissioner to mark out for the 
 «r3 not more use of any person intending to carry on temporarily any trade on or near a 
 than one acre, mine, a plot, or plots of waste Crown land convenient for that purpose, and also 
 for garden purposes, not being larger than one acre. There shall be thereby 
 conferred enjoyment for so long as such trader shall pay all licence duties in re- 
 spect thereof, and also the right to any crop standing thereon at the last payment 
 of licence duties. 
 
 Provided always, that the land on or near any mine so marked out for any 
 
 of the purposes mentioned in this or the last section, shall always be resumable 
 
 by the Crown and applicable to general mining purposes on six months' notice 
 
 thereof given by the Gold Commissioner to any occupier thereof. 
 
 jjjnjng As to Mining Boards I do enact, proclaim, and declare as follows: — (viz:) 
 
 Boards. 
 
 ■Constitution XXIX. Upon petition signed by not less than one hundred and one regis- 
 
 of tered free miners in any district, having been on the register of such district for 
 
 at least three months previous to signing such petition, and holding lona fide 
 claims not abandoned nor forfeited, and upon a certificate from the Gold Com- 
 missioner of such district testifying to the number and good faith of the peti- 
 tioners, it shall be lawful for His Excellency the Governor by a notification 
 
I.] APPENDIX A.— JXINING PROCLAMATIONS. 545 
 
 under his hand and seal to direct the Gold Commissioner acting in and for such Gold Fields 
 district to constitute therein a local board to be called the Mining Board, in Act,' 1839. 
 the manner and with the powers hereinafter fexpressed. 
 
 XXX. The Mining Board shall consist of not less than six nor more than gjx to twelve 
 twelve of the general body of the voters of such district, according to the follow- members 
 ing scale, viz. : — If there shall be not more than one hundred and fifty voters, according to 
 then the Mining Board shall consist of six members. And for every complete the numbers 
 number of fifty voters beyond the»first one hundred and one, the Mining Board 2^ Registered 
 :shall comprise one additional member, but not so as to consist of more than "^^^ Mmers. 
 twelve members. 
 
 The members shall be elected by the votes of the registered free miners of Voters' quali- 
 the district who shall have been on the register during three months at least, fications. 
 previous to the election, each voter to have as many votes and no more, as there 
 are 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 by word of mouth and in Gold Commis- 
 person by the voter. The Gold Commissioner of the district shall be the receiver sioner to be 
 and examiner of votes, and the returning officer. And the first election shall take '■^turning 
 place on such day as His Excellency the Governor may appoint. otticer, e o. 
 
 The Mining Board shall meet together at such intervals as shall be appointed 
 by the Gold Commissioner, and it shall be competent for three or more members 
 meeting together to proceed to the dispatch of business. 
 
 XXXII. If any member shall cease to be a registered free miner in the dis- Vacancy of 
 trict or shall be convicted of any misdemeanor or felotiy or of any assault, being membership, 
 armed with a lethal weapon, or of any wilful and malicious contravention of 
 
 this Act, 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 save that a member vacating, his seat 
 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. 
 
 Three members of the Board, or so many members as together with vacancies Three to retire 
 caused as aforesaid shall make up three members, shall retire annually, by lot, annually, 
 or agreement, or seniority. Retiring members shall be immediately re-eligible. 
 
 XXXIII. All vacancies in the Board shall be supplied and the full number Elections to 
 of members for the time being, due to the district accordipg to the tariff afore- take place in 
 said, shall be made up at a general election to take place on such day in the January, 
 month of January in each year, as His Excellency the Governor shall from time 
 
 to time by notice under the public seal of the Colony direct, 
 
 XXXIV. The Mining Board shall, subject to the provisions hereof, have Power to make 
 power by resolution, to make by-laws, and also from time to time to alter and by-laws, etc., 
 repeal any existing by-laws for regulating the size of claims and sluices, the which mus' be 
 mode in which claims may be registered, worked, held and forfeited, and all *PP™^™ °y 
 •other matters relating to mining matters in their district; Provided that no such nor^"^^"^ 
 new by-law, repeal, or alteration shall be of any force unless and until it shall 
 
 have been approved of by His Excellency the Governor. 
 
 Provided further that every such by-law, repeal, or alteration, being duly Evidence, 
 made and approved, and not being contrary to the statute or common law, and 
 not being contrary to natural equity, shall be admitted in all Courts of British 
 •Columbia as a good local law, and a copy thereof extracted from the by-laws and 
 purporting to be signed by the Gold Commissioner of the district shall be good 
 ■evidence thereof, and that the same have been lawfully made and were in full 
 force at the time in such copy or extract in that behalf specified. 
 
 ir.M.c. 35 
 
546 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 Gold Fields 
 Act, 1859. 
 
 Majorities. 
 
 XXXV. Any resolution of such Mining Board and Gold Commissioner may 
 be passed by a bare majority of the members of such Board if the Gold Com- 
 missioner 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 be- 
 fore His Excellency the Governor, mate and send to His Excellency a fair copy 
 thereof signed by such Gold Conjmissioner with his opinion thereon. 
 
 Mode of XXXVI. The votes of all resolutions of the Mining Board shall be given. 
 
 conducting the by the members personally, and by word of mouth. 
 
 proceed mgs. 
 
 All questions of order and of the time and manner of conducting the business 
 at such Mining Board, and of the times and places of meeting after the first 
 meeting thereof, and of the propriety of elections and qualifications and disquali- 
 fications 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 
 orders as may be thought advisable, and which such Gold Commissioner is hereby 
 authorized to make by writing under his hand and seal. 
 
 Power to the XXXVII. It shall be lawful for His Excellency the Governor by an order- 
 
 governor to under the public seal of the Colony, at any time to declare the Mining Board 
 minine^Wrd '° ^"'^ district dissolved, as from a day to be named in such order, and if no 
 ■ day be therein named in that behalf, then as from the date of such order. And 
 from and immediately after such dissolution, the power to make and repeal by- 
 laws and regulations shall immediately be vested in the Governor in the same 
 manner as if such Mining Board had never been constituted. 
 
 Interim acts Provided always, that notwithstanding any such dissolution, all by-laws and 
 
 to continue working rules and regulations (if any), and all other acts (if any), made, done, 
 notwithstand; and established in the meantime, under the authority of this Proclamation, shall 
 ing disso- ^e valid until the same be altered or repealed by the Governor by some order 
 
 lution. under the public seal of the Colony. 
 
 Irregularities XXXVIII. The acts of any Mining Board, previous to such dissolution, if 
 not to affect sanctioned as aforesaid, shall be valid notwithstanding any informality or 
 such acts. irregularity in the mode of election, or of meeting of such Blining Board, or in 
 
 the passing of any of such Acts. 
 
 Certain 
 offences . 
 
 Felony. 
 
 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 pur- 
 porting to be a free miner's certificate, or vfho' 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 
 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 more 
 than ten years. 
 
 Summary ^^- -^^y Person wilfully or unlawfully acting in contravention of this Act, 
 
 power in cases or of any by-law, rule, or regulation to be established by virtue of this Act, or 
 of dis- refusing to obey any lawful order of the Gold Commissioner, shall, on being 
 
 obedience. summarily convicted, before any Justice of the Peace or Gold Commissioner, be 
 
 liable to a fine not exceeding £50, or to an imprisonment not exceeding three 
 
 months. 
 
 Short title XLI. This Proclamation may in any proceedings be referred to as the " Gold' 
 
 Fields Act, 1859." 
 
 Commence- XLII. This Proclamation shall come into force as to Queen Charlotte's 
 
 mentof act. Island on the 1st of January, 1860, and as to the rest of British Columbia on 
 the 1st of September, 1859. 
 
I.] APPENDIX A.— MINING. PROCLAMATIONS. 547 
 
 Rules. 
 
 Issued under the Public Seal of the Colony of British Columbia, at Gold Fields 
 Victoria, Vancouver Island, this thirty-first day of August, in the year Act, 1859. 
 of our Lord one thousand eight hundred and fifty-nine, in the twenty- 
 third year of Her Majesty's reign, by me, 
 
 James Douglas. (L.S.) 
 
 By command of His Excellency, 
 William A. G. Young, 
 
 Acting Colonial Secretary. 
 
 God Save the Queen ! 
 
 RULES AND REGULATIONS 
 
 FOE THE 
 
 WORKING OF GOLD MINES. 
 
 Issued in conformity with the Oold Fields Act, 1H59. 
 
 Whereas, it is provided by the Gold Fields Act, 1859, that the Governor, for 
 the time being, of British Columbia, may, by writing under his hand and the 
 public seal of the Colony, make rules and regulations in the nature of by-laws, 
 for all matters relating to mining. Now, therefore, I, James Douglas, 
 Governor, &c., do hereby make the following rules and regulationi, accordingly : — 
 
 I. In the construction of the following rules and regulations, unless there be 
 some contrariety, or repugnancy thereto in the context, the words " Governor," 
 " Gold Commissioner," " mine," " to mine," shall have the same meanings as in 
 the Gold Fields Act, 1859. The expression " bar diggings " shall mean every 
 mine over which a river extends when in its most flooded state. " Dry diggings " 
 shall mean any mine over which a river never extends. " Ravines " shall include 
 water cou^rses whether usually containing water or usually dry. " Ditch " shall 
 include a flume or race, or other artificial means for conducting water by its 
 own weight into or upon, a mine. " Ditch head " shall mean the point in a 
 natural water course or lake where water is first taken into a ditch. And 
 words in the singular number shall include the plural, and the masculine gender 
 shall include the feminine. 
 
 II. All claims are to be as nearly as may be, in rectangnlar forms, and 
 marked by four pegs at the least, each peg to be four inches square at the least, 
 and one foot above the surface, and firmly fixed in the ground. No boundary 
 peg shall be concealed or moved, or injured, without the previous permission of 
 the Gold Commissioner. 
 
 III. The size of a claim, when not otherwise established by a by-law, shall 
 be, for bar diggings, a strip of land, twenty-five feet wide at the mark to which 
 the river rises when flooded, and thence extending; down direct into the river 
 indefinitely. For dry diggings, a space of twenty-five feet wide by thirty feet. 
 For ravine diggings a space of twenty-five feet along the bank of the 
 ravine and extending up to the top of each bank. In quartz claims, the size, 
 when not otherwise established by a by-law, shall be one hundred feet in length, 
 measured along the vein or seam, with power to the miner to follow the vein or 
 seam and its spurs, dips, and angles, anywhere on or below the surface included 
 between the two extremities of such length of one hundred feet, but not to ad- 
 vance upon or beneath the surface of the earth more than one hundred feet in a 
 lateral direction from the main vein or seam, along which the claim is to be 
 measured. All measurements of area are to be made on the surface of the earth, 
 neglecting inequalities. Every claim is to have a distinguishing number marked 
 on its boundary pegs. 
 
548 MARTIN'S MINING CASES. [vou 
 
 Gold Fields IV. If any free miner, or party of free miners, shall discover a new mine, 
 
 Act, 185'J. and sucli discovery shall be established to the satisfaction of the Gold Conamis- 
 B, I = sioner, the first discoverer or party of discoverers, if not more than two in num- 
 iiuies. f,gj._ gjjgjj jjg entitle,! 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 auri- 
 ferous 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 previous- 
 ly 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 esti- 
 mating the character of the application, the name of every applicant, the pro- 
 posed 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 
 
 , think fit. of a jury. 
 
 IX. If any person shall refuse or neglect to take within the time mentioned 
 in his application, or within such further time (if any), as the Gold Commis- 
 sioner may, in his discretion, think fit to grant for the completion of the ditch, 
 the whole of the water applied for, he shall at the end of the time mentioned 
 in 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 tak^n by him. And it 
 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 per- 
 sisted in, to declare all rights to the water forfeited. 
 
 XI. It shall be lawful for the owner of any ditch or watev 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. 
 
!■] 
 
 APPENDIX A.— MINING PROCLAMATIONS. 
 
 549 
 
 XII. A claiin on any mine shall, until otherwise ordered by some valid by- 
 law, be deemed to be abandonBdj and open to the occupation of any free miner, 
 when the same shall have remained unworked by some registered holder thereof 
 for the space of seventy-two hours, unless in case of sickness, or unless before 
 the expiry of such seventy-two hours, a further extension of time be granted 
 by the Gold Commissioner, who may grant further time for enabling parties to 
 go prospecting, or for such other reasonable cause as he may think proper. Sun- 
 days, and such holidays as the Gold Commissioner may think fit to proclaim, 
 are to be omitted in reckoning the time for non-working. 
 
 XIII. Whenever it shall be intended, in forming or upholding a ditch, to enter 
 upon or occupy any part of a registered claim, or to dig or loosen any earth of 
 rock within (4) feet of any ditch not belonging solely to the registered owner 
 of such claim, three days' notice, in writing, of such intention, shall be given, 
 before entering or approaching within four feet of such other property. 
 
 XIV. If the owner of the property about to be so entered upon or approached 
 shall consider three days' notice insufficient for taking proper measures of pre- 
 caution, or if any dispute shall arise betvsneen the parties as to the proper pre- 
 cautionary measures to be taken, or in any other respect, the whole matter shall 
 be immediately referred to the Gold Commissioner acting in the district, who 
 shall order such interval of time to be observed before entry, or make such other 
 order as he may deem proper. 
 
 XV. In quartz claims and reefs each successive claimant shall leave three 
 feet unworked to form a boundary wall between his claim and that of the last 
 previous claimant, and shall stake off his claim accordingly, not commencing at 
 the boundary peg of the last previous claim, but three feet further on ; and if any 
 pterson shall stake out his claim, disregarding this rule, the Gold Commissioner 
 shall have power to come and remove the first boundary peg of sxich wrong-doer 
 three feet further on, notwithstanding that other claims may then be properly 
 staked out beyond him : so that such wrong-doer shall then have but ninety-seven 
 feet. And if such wrong-doer shall have commenced work immediately at the 
 boundary peg of the last previous claim, the Gold Commissioner may remove his 
 boundary six feet further on than the open work of such wrong-doer ; and all such 
 open work, and also the next three feet of such space of six feet shall belong to 
 and form part of the last previous claim, and the residue of such space of six 
 feet shall be left as a boundary wall. 
 
 XVI. Every such boundary wall slhall be deemed the joint property of the 
 owners of the two claims between which it stands, and may not be worked or 
 injured, save by the consent of both such owners. 
 
 XVII. In staking out plots of land for free miners and traders for garden- 
 ing and residential purposes, under the powers of the said Gold Fields Act, 1859, 
 contained, the Gold Conimissioner is to keep in view the general interests of all 
 the miners in that locality, the general principle being that every garden benefits 
 indirectly the whole locality, and also that the earlier application is to be pre- 
 ferred ; but where the eligible spots of land are few, or of scant.y dimensions, and 
 especially where they are themselves auriferous, it may be injudicious that the 
 whole of the greater part should fall into the hands of one or two persons ; and, 
 therefore, in such cases, the Gold Commissioner may, in the exercise of his dis- 
 cretion, allot small plots only to each applicant. 
 
 XVIII. Any person desiring to acquire any water privilege shall be bound 
 to respect the rights of parties using the same water, at a point below the place 
 where the person desiring such new privilege intends to use it. 
 
 XIX. Any person desiring to bridge across any stream or claim or other 
 place for any purpose, or to mine under or through any ditch or flume, or to 
 carry water through or over any land already occupied by any other person may 
 be enabled to do so in proper cases, with the sanction of the Gold Commissioner. 
 In all such cases the right of the party first in possession whether of the mine 
 or of the water privilege is to prevail, so as to entitle him to full compensation 
 and indemnity. But wherever due compensation by indemnit.y can be given, 
 and is required, the Gold Commissioner may sanction the execution 9f such 
 new work on such terms as he shall think reasonable. 
 
 Gold Fields 
 Act, 1859. 
 
 Rules . 
 
550 MARTIN'S MINING CASES. [vol. 
 
 Gold Fields. As to Leases in Lakger Peopoetions than Claims. 
 
 J ' ■ XX. Applications for leases are to be sent in triplicate to the Gold Corn- 
 
 Rules, missioner having jurisdiction for the locality where the land desired to be taken 
 is situated. Every application shall contain the name and additions of the 
 applicant at full length, and the names and addresses of two persons residing in 
 the Colony of British Columbia, or Vancouver Island, to whom the applicant is 
 personally known. Also, a description accompanied by a map of the land pro- 
 posed to be taken. 
 
 XXI. Leases will not be granted in general for a longer term than ten years, 
 or for a larger space than ten acres of alluvial soil (dry diggings), or half a^ 
 mile in length of unworked quartz reef, or a mile and a half in length of quartz, 
 that shall have been attempted and abandoned by individual claim workers, with 
 liberty to follow the spurs, dips, and angles, on and within the surface, for two 
 hundred feet on each side of the main lead or seam, or in bar diggings, half a 
 mile in length (if unworked) along the high water mark, or a mile and a. half 
 in length along the ihighwater mark, where the same shall have been attempted 
 and abandoned by individual claim workers. 
 
 XXII. Leases as above will not in general be granted of any land, alluvium, 
 or quartz, which shall be considered to be immediately available for being worked 
 by free miners, as holders of individual claims. Nor will such a lease in any 
 case be granted where individual free miners are in previous actual occupation 
 of any part of the premises, unless by their consent. 
 
 XXIII. Every such lease shall contain all reasonable provisions for securing 
 to the public rights of way and water, save in so far as shall be necessary for 
 the miner-like working of the premises thereby demised, and also for preventing 
 damage to the persons or property of other parties than the lessee. And the 
 premises thereby demised shall be granted for mining purposes only, and it shall 
 not be competent for the lessee to assign or sub-let the same, or any part or 
 parts thereof, without the previous licence in writing of the Gold Commissioner. 
 And every such lease shall contain a covenant by the lessee to mine 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 also a clause 
 by virtue whereof the said lease and the demise therein contained may be 
 avoided in case the lessee shall refuse or neglect to observe and perform all or 
 any of the covenants therein contained. 
 
 XXIV. Every applicant for a lease, shall at the time of sending in his 
 application, mark out the ground comprised in the application, by square posts 
 firmly fixed in the boundaries of the land, and four feet above the surface, 
 with a notice thereon that such land has been applied for, stating when and 
 by whom, and shall also fix upon a similar post at each of the nearest places 
 on which miners are at work, a copy of such notice. 
 
 XXV. Objections to the granting ■ot any such lease shall be made in writ- 
 ing, addressed to His Excellency the Governor, under cover to the Gold Com- 
 missioner, who shall forward all such objections, together with his Report 
 thereon. 
 
 XXVI. Every application for a lease shall be accompanied by a deposit ot 
 twenty-five pounds sterling, which shall be refunded in case the application 
 shall be refused by the Government, and if the application shall be entertained, 
 then such sum of twenty-five pounds shall be retained for the use of Her 
 Majesty, Her heirs and successors, whether the application be afterwards 
 abandoned or not. 
 
 Issued under the Public Seal of the Colony ©f British Columbia, at Vic- 
 toria, Vancouver Island, this seventh day of September, in the year of our 
 Lord one thousand eight hundred and fifty-nine, and in the twenty-third year 
 of Her Majesty's reign, by me, 
 
 James Douglas. (L.S.) 
 By command of His Excellency, 
 William A. G. Young, 
 
 Acting Colonial Secretary. 
 
I.] APPENDIX A.— MINING STATUTES. 551 
 
 MINING STATUTES. 
 
 30 Victoria : No. 34. Gold Mining 
 
 Ord., 1867. 
 An Ordinance to amend the Laws relating to Gold Mining. . 
 
 (2nd April, 1867.) 
 
 Whebeas it is expedient to amend and assimilate the laws relating to Preamble, 
 gold mining in the Colony : 
 
 Be it enacted by the Governor of British Columbia, with the advice and 
 ■consent of the Legislative Council thereof, as follows : — 
 
 1. From and after the passing of this Ordinance, " The Gold Mining Kepeals pre- 
 Ordinanee, 1865," and the proclamations, rules, and regulations and ordinances vious Acts, 
 repealed thereby, are hereby repealed ; provided, however, that such repeal 
 
 ^all not in any manner affect any rights acquired, or any liabilities or penal- 
 -ties incurred thereunder, or any remedies or punishments prescribed thereby, 
 but such remedies and punishments may still for the purposes of such enforce- 
 ment, but not further or otherwise, be available and capable of imposition. 
 
 2. In the construction of this Ordinance the following expressions shall have Interpretation 
 the following interpretations respectively, unless there be something incon- Clause, 
 sistent or repugnant thereto In the context : 
 
 The words " Her Majesty " or " the Crown " shall mean Her Majesty, Her Majesty, 
 Her heirs and successors ; the Crown. 
 
 The word " Governor " shall mean and include any person administer- Governor, 
 ing the Government of this Colony ; 
 
 " Gold Commissioner " shall include Chief Gold Commissioner, Assis- (Jold Com- 
 taut Gold Commissioners and others lawfully acting as Gold Commissioners, missioner. 
 either under special authority or the authority of this Ordinance ; 
 
 The word " Mine " shall mean any locality in which any vein, stratum, Mine, 
 or natural bed of auriferous earth or rock shall be mined ; and the verb 
 " to mine " shall include any mode or method whatsoe^'sr 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 tierm " Mining Property " shall be included every 
 claim, ditch, or water privilege used for mining purposes, and all other mat- Mining 
 ters and things thereto belonging or used in the working thereof; Property. 
 
 " Bar Diggings " shall mean every mine over which a river extends ^^^ diggings, 
 when in its flooded state; 
 
 "Dry Diggings" shall mean any mine over which a river never extends; Dry diggings. 
 
 The mines on benches shall be known as " Bench Diggings," and shall Bench 
 for the purpose of ascertaining the' size of claims therein be excepted out of Diggings, 
 the class of "Dry Diggings;" 
 
 " Streams and Ravines " shall include water-courses, whether usually g^^^^^jg j^„j 
 containing water or not, and all rivers, creeks and gulches ; Ravines. 
 
 " Hill Claims " shall include all claims located on the surface of any ^..jj (-j[g^j^g 
 hill ; 
 
 " Ditch " shall include a flume or race, or other artificial means for con- jjjjgjj 
 ducting water by its own weight, to be used for mining purposes ; 
 
 " Ditch 'Head " shall mean the point in a natural water-course or lake Ditch Head, 
 where water is first taken into a ditch; 
 
552 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Gold Mining 
 Ord., 1867. 
 
 Free Miner. 
 
 Record, etc. 
 
 Ordinance 
 divided into 
 twelve parts. 
 
 " Free Miner " shall mean a person named in, and lawfully possessed of a 
 valid existing free miner's certificate, and no other. And vcords in the- 
 singular number shall include the plural, and the masculine gender shall 
 include the feminine gender ; 
 
 The words " Record," 
 used shall be synonymous. 
 
 ' Register," and " Registration," as hereinafter 
 
 3. This Ordinance shall be divided into twelve parts : 
 
 The first part relating to the appointment of Gold Commissioners and 
 their jurisdiction ; 
 
 The second part to free miners and their privileges ; 
 
 The third part to the registration of claims and free miner's general 
 rights ; 
 
 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 liability ; 
 
 The . eighth part to administration ; 
 
 The ninth part to leases ; 
 
 The tenth part to ditches ; 
 
 The eleventh part to mining boards and their constitution ; 
 
 The twelfth part to the penal and saving clauses : 
 
 PART I. 
 
 Appointment of Gold Commissioners and their jurisdiction. 
 
 Gold Com- ^- "^^^ Governor may from time to time appoint, such persons as he shall 
 
 missioner to be think proper to be Chief Gold Commissioner and Gold Commissioners either 
 appointed by for the whole Colony, or for any pai^ticular districts therein, and from time 
 the Governor, to time in like manner fix and vary the limits of and sub-divide such districts, 
 and make and revoke all such appointments. 
 
 Mining Court 5. Within every such district or districts there shall be a Court to be called 
 in each the " Minitig Court," in which the Gold Commissioner of the district shall pre- 
 
 District. side as Judge thereof. 
 
 Jurisdiction 
 of Gold Com- 
 missioner. 
 
 Same T^'weis 
 as Judge of 
 the Supreme 
 Ccrart' in en- 
 forcing deci- 
 
 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 
 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 judg- 
 ment, or make such order or decree as he shall deem just, and for the pur- 
 poses thereof and for enforcing the same he shall have and exercise, save as 
 hereinafter excepted, the same powers and authority, legal- and equitable, as 
 are now exercised in the Supreme Court of Civil Justice of British Columbia, 
 by any Judge thereof. Provided, however, that the Gold Commissioner shall, if 
 desired by both parties to a cause, , in cases of liquidated damages, or if desired 
 b^ either party to a cause in case of unliquidated damages, or if desired by 
 either party to a cause in case of unliquidated damages, summon a jury of from 
 three to five free miners to assess the amount of such damages. 
 
 Prescribed '^- No prescribed forms shall be necessary, provided that the substance of 
 
 forms unneoes-'the matter complained of be properly expressed in writing an(^ epabodied in a 
 
 sary, summons to be issued from the Court, , and served on th^ op{)osite party, or 
 
 as may be directed, and such summons may by leave of the Gold Commissioner 
 
I.] APPENDIX A.— MINING STATUTES. 553. 
 
 be amended, if requisite, by eitlier . party upon such terms as he may impose, Gold Mining 
 and the sum of ten dollars shall be charged for every summons so issued. Ord., 1867. 
 
 8. Where disputes arise concerning mining property, jjortions whereof are Jurisdiction 
 situated ifl adjoining or different districts, the Gold Commissioners of either beyond ois- 
 of such districts before whom the dispute is first brought shall determine it. triot in certain 
 
 9. The Gold Commissioner may, in cases of disputed boundaries or measure- Mining 
 ments, employ a surveyor to mark and define the same, and cause the reason- Surveyor. 
 able expense thereof to be paid by either or both of the parties interested 
 therein. 
 
 10. He shall also have the power to lay over any or all claims within his Laying over 
 district, for such period and under such circumstances as he may think proper, claims. 
 
 11. He shall have power to order any mining works to be so carried on as Protection 
 
 ■ to ensure the safety of the public, or protect the interests of claim holders or against dan- 
 bed-rock drains ; and any abandoned works may by his order be either filled gerous works. 
 up or guarded to his satisfaction, at the cost of the parties who may have con- 
 structed the same, or in their absence then upon such terms as he shall deem 
 expedient. 
 
 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 raining 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 work- 
 ing their claims iona fide. 
 
 13. It shall be lawful for him, upon being so requested, to mark out for Compensation 
 business purposes or gardens, on or near any mining ground not previously —how allotted 
 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 fire dollars shall in every such case be payable by the Rent for same, 
 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 pro- 
 may, with the advice and consent of the Gold Commissioner of any particular ceeding, costs,, 
 district, from time to time make, rftpeil, and alter any rules and regulations etc. 
 
 for the conduct of the business before such Gold Commissioner, and for the 
 costs incident thereto. 
 
 15. Where any mining cause, wherein the sum of damages sought to be Causes under 
 recovered shall be less than two hundred and fifty dollars, is brought in the $250. 
 
 first instancy before the Supreme Court of Ciyil Justice of British Columbia, it 
 shaljl 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'fees. 
 such compensation as the Court may direct. 
 
554 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Gold Mini 
 Ord., 186; 
 
 Appeal in 
 civil cases 
 over S 
 
 ng 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 here- 
 inafter excepted, lie frpm the decision, ruling, judgment, order, ;or decree of 
 the Gold Commissioner, to the Supreme Court of Civil Justice of British Colum- 
 bia ; provided, hovrever, that the decision of the Gold Commissioner, or ■ot 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 notice 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 judg- 
 ment ; 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. 
 
 Who may be a 18- Every person over, but not under sixteen years shall be entitled to hold a 
 i'ree Miner, claim. Miners, who shall become free miners, shall, as regards their mining 
 
 property and liabilities, contracted in connection therewith, be treated as 
 
 adults. 
 
 Free Miners 
 under age to 
 be treated as 
 adults. 
 Miners' 
 certificates. 
 
 19. Every Gold Commissioner, upon payment of the sums hereinafter men- 
 tioned, shall 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 : — 
 
 BRITISH COLUMBIA. 
 Free Miner's Certificate. 
 
 Date 
 
 Not Transferable. • 
 Valid for years. 
 
 No. 
 
 This is to certify that A. B., of , has paid me this day the sum of 
 
 , and is entitled to all the rights and privileges of a free miner, 
 for , year from the date hereof. 
 
 (Signed) 6. B. 
 Chief Oold Commissioner, or Gold Commissioner, 
 (as the case may be.) 
 
 Certificate for ^- Such free miner's certificate shall, at the request of the applicant, be 
 one, or three granted and continue in force for a period of one year, or three years, from 
 years. the date thereof, upou payment by such applicant, to the use of Her Majesty, 
 
 of the sum of five dollars for one year, and fifteen dollars for three years. 
 
 ■Such certificate shall not be transferable, and only one person shall be named 
 
 Three days 
 
 therein. And every holder of a certificate shall have three clear days after 
 
 grace to renew' ■ ^. ^^ t ■, ^ ^ ^i 
 
 certificate. ™'^ expiration thereof, and no longer, to renew the same. 
 
 Loit certifi- 21. If any free miner's certificate shall be accidentally destroyed or lost, the 
 
 cate. same may, upon evidence thereof and upon payment by the applicant of two 
 
 dollars and fifty cents, be replaced by a true copy thereof, signed by the Gold 
 Commissioner of the district wherein the original certificate was issued. Every 
 such new certificate shall be marked " Substituted Certificate." And unless 
 some material irregularity be shewn in respect thereof every original or sub- 
 stituted free miner's certificate shall be evidence of all the matters therein 
 maintained. 
 
I.] APPENDIX A.— MINING STATUTES. 5p5 
 
 22. Every free miner shall during the continuance of his certificate, and Gold Mining 
 no longer, ha\Te the right to enter and mine upon any of the waste lands of the Ord., 1867. 
 Ci-own, not for the time being occupied by any other person. 
 
 Riefht to enter 
 
 23. In the event of such entry being made upon lands already lawfully ^^'^ ™'"®' . 
 occupied for other than mining purposes, previously to entry full compensa- Compensation 
 tion shall be made to the occupant or owner for any loss or damages he may '^y"^""^ tg 
 sustain by reason of any such entry; such compensation to be determined by ° '^*" 
 
 the nearest stipendiary magistrate or Gold Commissioner, with or without a 
 jury of not less than five. 
 
 24:. No person shall be recognized as having any right or interest in or to Must be a 
 any mining claim or ditch, or any of the gold therein, unless he shall be, or in Free Miner in 
 case of disputed ownership unless he shall have been at the time of the dispute oertain cases, 
 arising, a free miner. 
 
 PART III. 
 
 Registration of Claims, and Free Miner's general rights. 
 
 25. Every free miner locating a claim must record the same at the oflSce of Registration 
 the Gold Commissioner of the district within which the same is situated, within of claim, 
 three days after the location thereof, if located within ten miles of the said 
 
 office. 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 and things as may be deemed re- 
 quisite by the Gold d -mmissioner. 
 
 26. All claims shall be re-recorded annually ; but any free miner shall, upon Re-registra- 
 applicatiou, be entitled to record his claim for a period of two or more years, tion. 
 upon payment of the sum of two dollars and fifty cents for each and every 
 
 year included in such record ; and such record shall, without renewal, and for 
 and during the time therein mentioned, but for no further period, have the 
 same force and effect as if the same had been recorded annually. 
 
 27. It shall be lawful for the Gold Commissioner to demand from any miner. Production of 
 applying to record a claim, the production of his certificate, and upon his neglect certificate 
 
 or refu.sal to produce the same, to refuse to record such claim or interest prior to regis- 
 tliereln. t.vs.\.mn. 
 
 28. In case of any dispute, the title to claims will be recognized according Piiority of 
 to the priority of registration, subject to any question wliich may be raised rights recog- 
 as to the validity of the record itself, and, subject further, to the terms, condi- nized aocord- 
 tions, and privileges contained in clause 25. '°S to priority 
 
 29. No transfer of any claim, or of any interest therein, shall be enforceable Transfers 
 unless the same or some memorandum thereof shall be in writing, signed by the must be in 
 transferrer, or by his legally authorized agent, and registered with the Gold writing and 
 Commissioner. registered. 
 
 30. For every record made, and leave of absence granted, or any other mat- General fee on 
 ter or thing whatever, relating to mining, for which a special fee shall not recording min- 
 JiavB been provided, the Gold Commissioner shall charge a registration fee of '"g matter , 
 two dollars and fifty cents, as herein defined. 
 
 31. The books of record shall, during reasonable hours, be open to public Fee for search, 
 inspection, and the sum of one dollar, and no more, shall be charged for every 
 
 search made therein. 
 
556 MARTIN'S MINING OAStlg. [vol. 
 
 Gold Milling 32. Eviery copy of, or extract from, any record or" register kejit under tliis 
 Ord., 1867. Ordinance, and certified to be a true copy or extract, under the hand of the 
 p y7~T Gold Commissioner, or other person entrusted to take and keep such record or 
 
 of anv recOTd^ register, shall, in the absence of the original register, be receivable in any judi- 
 to be evidence '^'^^ proceeding as evidence of the matters and things therein contained ; and 
 _, ,, ' the sum of one dollar and twenty-five cents shall be charged for each copy 
 
 Charge there- ^j ^ ^g^.^^^ ^^ certified. 
 
 mav^hoi'd anv ^^' ^^'^'"5' ^'"^^ miner shall be allowed to hold, at the same time, any num- 
 nuinber of ^'^ °* claims acquired by purchase, but only two claims by pre-emption in the 
 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, irlortgjlge, 
 tioii, and more or dispose of the same. He shall also be entitled, in addition to the above, 
 than two by (.g j^qj^ ^ pre-emption claim on each (but not on the same) hill, creek, ravine, 
 pre-emptioinn ^ ^ 
 certain cases. 
 
 Miners' inter- 34 lJ'^^g interest which a free miner has in a claim shall be deemed and 
 Bronertv a'"^ taken to be a chattel interest, equivalent to a lease, for such period as the 
 chattel same may have been recorded, renewable at the end thereof, and subject to the 
 
 conditions as to forfeiture, working, representation, registration, and other- 
 wise, 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, have 
 Miner's right n^e exclusive right of entry upon his own claim, for the miner-like working 
 in a claim. thereof, and the construction of a residence thereon, and shall be entitled ex- 
 clusively 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 
 toadjaoent him, allow adjacent claim-holders such right of entry thereon as may be abso- 
 claira-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- 
 
 coversnotonly titled to the use of so much of the water naturally flowing through or past 
 a fair* hare of '^'^ dai™, and not already lawfully appropriated as shall, in the opinion of the 
 the ueceesary ^fold Commissioner, be necessary for the due working thereof, 
 water to work 
 
 it. 37. No claim located and recorded in any district, within fourteen days 
 
 Claims re- before, or at any time after the claims therein shall have been laid over to the 
 corded in close ensuing season, or other specific date, shall be deemed to be so laid over, unless 
 season when so much work shall have been bona fide expended thereon by the holder thereof 
 laid over. as shall, in the opinion of the Gold Commissioner, fairly entitle him to have 
 
 such claim laid over. 
 
 Claims when 33 ^ claim shall be deemed to be abandoned and open to the occupation of 
 
 abandoned ^"^ ^"^^^ miner, when the same shall have remained unworked by the registered 
 holder thereof for the space of seventy-two hours, unless sickness or other 
 reasonable cause be shewn ; Sundays, and such holidays as the Gold Commis- 
 sioner may think fit to proclaim, are to be omitted in reckoning the time of 
 non-working. 
 
 claim iiiuat be ^^' E^^ry full sized claim, as defined in this Ordinance, shall be represented 
 worked. s-^d iona fide worked by the owner thereof, or by some person on his behalf. 
 
 leavegranted ^^- '^'^^ ^°^^ Commissioner shall have the power to regulate the number of 
 
 to work with miners who shall be required to work in prospecting a claim, or set of claims, 
 
 less than full until gold in paying quantities is found. 
 
 complement. 
 
 Forfeiture 41. Every forfeiture of a claim shall bs absolute, any rule of law or equity 
 
 absolute. to the contrary notwithstanding. 
 
I.] APPENDIX A.— MINING STATUTES. 557 
 
 42. Where any undivided mining interest in a company shall be claimed Gold Mininj? 
 by any free miner, by reason of any defect in the title or representation thereof, Ord,, 1867. 
 which defect shall be first established to the satisfaction of the Gold Commls- ,."^7", 
 sioner, the company shall be bound. Undivided 
 
 interest in a 
 Either to admit the claimant as a member of the company to the extent of company 
 such defective interest. when not 
 
 represented . 
 Or, to stake off, to the separate use of the claimant, any portion of ground co,„„„n„ 
 in the joiijt ground of the company, equal in extent to such defective interest, must either 
 In such latter event, the claimant shall not be entitled to any in,terest what- sdmit claim- 
 ever in the remaining ground of the company, or be considered a member thereof, ant as a mem- 
 by reason of such appropriation. ber,or stake off 
 
 . claim for him. 
 
 in either case, the company shall ijay all costs and expenses incurred by nnmnanv to 
 reason of allowing the non-representation aforesaid. The Gold Cpmmissioner ^^^ Miats ex- 
 may make such order as to costs as he may deem just. cept otherwise 
 
 ordered . 
 PART IV. 
 
 Nature and sisc of Claims, 
 
 43. Prom and after the date hereof, the size of claims shall be as follows : — Size of claim. 
 
 For " Bar Diggings," a strip of land 100 feet wide at high water mark. Bar diggings, 
 and thence extending into the river to its lowest water level. 
 
 44. For " Dry Diggings," 100 feet square. Dry diggings. 
 
 45. " Creek Claims " shall be one hundred feet long, measured in the direc- Cj-eek claims, 
 tion of the general course of the stream, and extending in width from base to 
 
 base of the hill on each side. Where the bed of the stream or valley is more 
 than 800 feet in width, each claim shall be only 50 feet in length, extending 
 600 feet in width. Where the valley is not 100 feet wide, the claims shall be 
 100 feet square. 
 
 46. " Bench Claims " shall be 100 feet square. pench 
 
 diggings. 
 
 47. The Gold Commissioner shall havB authority, in cases where benches 
 are narrow, to mark the claims in such manner as he shall think fit, so as to 
 include an adequate claim. 
 
 48. Every claim situated on the face of any hill, and fronting on any natural Hill claims, 
 stream or ravine, shall have a base line or frontage of 106 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 consti- 
 tute the side lines thereof. Posts of the legal size shall be planted, 100 fept 
 apart, on both the base line and the side lines. The whole area included within 
 such boundary lines shall form a " Hill Claim." 
 
 49. In tunnelling under hills, on the frontage of which angles occur, or Xunnellin? 
 which may be of an oblong or elliptical form, no party shall be allowed to tun- under hills, 
 nel , from any of the said angles, nor from either end of such hills, so as to 
 interfere with parties tunnelling from the main frontage. 
 
 50. The Gold Commissioner shall have power to refuse to record any hill Gold Commis- 
 or tunnel claim on any creek, which claim or any part thereof shall include sioner may 
 
 or come within 100 feet of any gulch or tributary of such creek. - - refuse to 
 
 record certain 
 
 51. Tunnels and shafts shall be considered as appurtenant to the claim ■n- t ,. ^™'" 
 to which they are anpexed, and, be abandoned or forfeited by the abandonpient clai^m involv 
 ■or forfeiture of the claim itself. tunnel, etc.*^ 
 
558 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Gold Mining 52. For the more convenient working of back claims on benches or slopes, 
 Ord., 1867. the Gold Commissioner may, upon application made to him, permit the owners 
 
 thereof to drive a tunnel through the claims fronting on any creek, ravine, or 
 
 watercourse, and impose such terms and conditions upon all parties as shall 
 seem to him expedient. 
 
 Quartz claims. 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 such 
 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, along 
 which the claim is to be measured. 
 
 Regulation for 54. In quartz claims and reefs, each successive claimant shall leave 3 feet un- 
 working. worked, to form a boundary wall between his claim and that of the last pre- 
 
 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 Commissioner 
 shall have power to remove the first boundary peg of such wrong-doer, 3 feet 
 further on, notwithstanding that other claims may then be staked out beyou.1 
 him ; so that such wrong-doer shall then have but 147 feet. And if such wrong- 
 doer 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 property 
 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. 
 
 Discoverer's 55. If any free miner, or party of free miners, shall discover a new mine, 
 
 claim. 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 diggings). 
 If such party consist of three men, they shall collectively he 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, in addition to 
 any other claims legally held by pre-emption or otherwise. A new stratum 
 of auriferous earth or rock, situated in a locality where the claims are aban- 
 doned, shall, for this purpose, be deemed a new mine, although the same locality 
 shall have been previously worked at a different level. And dry diggings dis- 
 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. 
 
 Claims, how 56. All claims shall be as nearly as possible in rectangular forms, and 
 
 marked. 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, pro- 
 vided that it be cut down to at least the legal height, and the stump squared 
 as above. 
 
 Measurement. 57. In defining the size of claims, the same shall be measured horizontally, 
 irrespective of inequalities on the surface of the ground. 
 
 Deposit of 58. The Gold Commissioner may. where deemed desirable, mark out a space 
 
 leavings. in the vicinity for deposits of leavings and deads from any tunnel, claim, or 
 
 mining ground whatsoever, upon such terms and conditions as he may impose. 
 
I.] APPENDIX A— MINING STATUTES. 559 
 
 PART V ^°1^ Mining^ 
 
 ^-^-"-^ ^- Ord., 1867. 
 
 Bed-Book Flumes. 
 
 59. It shall be lawful for the Gold Oommissioner, upon the application here- Grant for not 
 inafter mentioned, to grant to any Bed-Roek Flume company, for any term not more than 5 
 exceeding five years, exclusive rights of way through and entry upon any min- years. 
 
 ing ground in his district, for the purpose of constructing, laying, and main- 
 taining Bed-Rock Plumes. 
 
 60. Three or more free miners may constitute themselves into a Bed-Rock Three or more 
 PJume company, and every application by them for such grant shall be in writ- constitute a 
 ing, and shall state the names of the applicants, and the nature and extent of company. 
 
 the privileges sought to be acquired. Ten clear days' notice thereof shall be Notice of 10 
 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 
 the 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- |Mr„;,j ];-,„ „f 
 tion, the ground included therein shall be marked out by posts of the legal fjy^e to be 
 size, placed at intervals of 150 feet along the proposed main line or course of staked off . 
 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 Protest, 
 free miner to protest before the Gold Commissioner within such times as afore- 
 said, but not afterwards, against such application oeing granted. Every applica- p^g of si2o 
 tion for a grant shall be accompanied by a deposit of one hundred and twenty- payable. 
 five dollars, which shall be refunded if the application be refused, and if the 
 application shall be entertained then such sum of one hundred and twenty-five 
 dollars shall be retained and paid into the Colonial Treasury for the use of 
 Her Majesty, whether the application be afterwards abandoned or not. 
 
 61. Every such grant shall be in writing, signed by the Gold Commissioner. Grant to be in 
 
 writing. 
 
 62. Bed-rock Flume companies shall, upon obtaining such grant, be en- Rights of way 
 titled to the following rights and privileges, that is to say : — and privileges. 
 
 (o) The rights of way through and entry upon any new and unworked Upon new 
 river, creek, gulch, or ravine, and the exclusive right to locate and work a creeks, 
 strip of ground one hundred feet wide and two hundred feet long in the 
 bed thereof to each individual of the company ; 
 
 (J) The rights of way through and entry upon any river, creek, gulch, Upon' creeks 
 or ravine, worked by miners for any period longer than two years prior to worked for 2 
 such entry, and already wholly or partially abandoned, and the exclusive years and over, 
 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 heretofore or hereafter locating unworked or aban- On abandoned 
 doned ground within the limits of the said company's ground, after the ground, 
 notice hereinbefore mentioned has been given, shall be held to have or to 
 
 have had any right or title as against such company to any ground so taken 
 up by them ; 
 
 (d) The words " abandoned ground " shall be construed to mean all Interpretation 
 new and unworked ground, and ground not legally held and represented of abandoned 
 within the meaning of this Ordinance: ground. 
 
 (e) Such rights of way through and entry upon any rivers, creeks. Upon creeks 
 and ravines, discovered within the two years next preceding the date of their discovert d 
 application before mentioned, and upon any portions of which four or more within two 
 free miners are legally holding and bona fide working claims, as to the years. 
 Gold Commissioner may seem advisable ; 
 
560 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Gold Mining 
 Ord., 1867. 
 
 Righti? oi way 
 throughiclaiins 
 legally held 
 and worked. 
 
 Right to use 
 unappropriat- 
 ed water. 
 
 Gold in the 
 flume . 
 
 •Claim-holderK 
 upon giving 
 ten days' 
 notice may 
 ■oonatruet 
 their own 
 flume. 
 
 (f) The rights of way through and entry upon all claims which are 
 at the time of the notice of application hereinbefore mentioned bona fide, 
 and not colourably worked by any free miner or 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 found in the cut or channel so made, 
 but where any advantage equivalent to the cost of making the cut may 
 accrue to the individual claimholder by reason of such flume being laid 
 through the claim, the Bed-r'ock Flume company shall be entitled to the 
 actual cost of making such cut to the bed-rock ; 
 
 (g) The use and enjoyment of so much of the unoccupied and unappro- 
 priated water of the stream on which they may be located, and of oth^r 
 adjacent streams, as may be necessary for the use of their flumes, hydraulic 
 power, and machinei-y to carry on their mining operations, and they shall 
 have their fight of way for ditches and flumes to convey the necessary 
 water to their works, they being liable to other parties for any damage which 
 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 flume of 
 such company runs, may, upon giving at least ten days' notice in writing 
 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 shall 
 maintaiii the like grade, and build their flume as thoroughly, and of as strong 
 materials, as are used by such company. 
 
 Wheie so con- 64. Claim-holders so constructing their own flumes at their own expense, 
 struoted and through their respective claims, shall also keep their flume clear of obstruction, 
 -abandoned. and they shall be entitled to all the gold found therein, but they shall be sub- 
 ject 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 have 
 the right at any time before the abandonment of their claim or claims to be- 
 come 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 pro- 
 portionate to that which they shall cede to the company, or sliould 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. 
 
 Number of 65. Every Bed-rock Flume company shall, for each of the men constituting 
 
 feet to be com- j-jm same, construct and lay at least fifty feet of flume during the first year, 
 pleted withm ^^ hundred feet annually thereafter, 
 
 certain times. 
 
 Free miners 66. Any free miner or miners lawfully working any claims where a Bed- 
 
 •CTititled to use rock Flume may be constructed, shall be entitled to tail their sluices, hydraulifis, 
 flume for tail- ^nd grounds sluices into such flume, but so as not to obstruct the free working 
 '"^^' of such flume by rocks, stones, boulders, or otherwise. 
 
 Registration 67. All Bed-rock Flume companies shall register their grant when obtained, 
 
 of giant. 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 wiay legally held by such company. No re-registration 
 
 of a grant shall be necessary. 
 
 Bed-rock 68. Bed-rock Flumes and any interest or interests therein, and all fixtures 
 
 flumes chat- ^re hereby declared to be personal property, aijd may be sold, mortgaged, trans- 
 ferred, or otherwise dealt with as such. 
 
I.] APPENDIX A.— MINING STATUTES. 561 
 
 PART VI. Gold Mining 
 
 Ord., 1867. 
 Drainage of Mines. 
 
 69. It shall be lawful for the Gold Commissioner to grant to any free Gold Commis- 
 miner, company of free njiners, or joint stoc^ companies, for ajjy term not sioner may 
 exceeding ten years, e?;clj}slve rights of way through and entry upon any grant nghtsof 
 mining ground in his district, for the purpose of constructing a drain or drains ZS^i^°^ 
 for the drainage thereof. ground for 
 
 draius. 
 
 70. Every application for such grant shall be in writing, and shall state the Application to 
 names of the applicants, the nature and extent of the proposed drain or drains, be in writing, 
 the amount of toll (if any), to be charged, and privileges sought to be acquired. 
 
 71. Upon such application a notice similar to that required upon applica- Ten oloar'days' 
 tion for the right of way for bed-rock flumes shall be given. notice to be 
 
 given. 
 
 72. Every application for such grant shall be accompanied by a deposit of Deposit of 
 one hundred and twenty-five dollars, which shall be refunded in case the appli- $125. 
 cation shall be refused by the Governmfent, and if the application shall be enter- 
 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. 
 
 73. Such grants shall be made upon such conditions as the Gold Commis- Grants to be 
 sioner shall deem reasonable, and shall be embodiad in writing. in writing . 
 
 74. The rights of way and entry above mentioned, the power to assess. Covenants, 
 levy, and collect tolls (not exceeding in amount that mentioned in the applica- 
 tion) from all free miners using such drain or benefited thereby, shall be given 
 
 to the grantees. The grantees shall also covenant therein as follows : — 
 
 (o) That they will construct such drain or drains of sufficient size to 
 meet all requirements within a time (if any) therein named; 
 
 (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 for the time being may order all necessary alterations or repairs to 
 be made by any free miners, other than the grantees, at the cost and ex- 
 pense 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 ; 
 
 (e) That they will 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; 
 
 (d) That they will not in the construction and maintenance of such 
 drains and tap drains in any way injure or damage the property of adjacent 
 claim-holders, and in the event thereof that they will make good any damage 
 so sustained. , 
 
 75. In the construction of drains to be used as tap drains only, three days' Tap drains, 
 notice given as above shall only be necessary. 
 
 76. The Gold Commissioner alone, or if desired by either party with the Damages, 
 assistance of a jury of five free miners, which he is hereby authorized to sum- 
 mon for that purpose, may ascertain whether any and what compensation 
 
 shall be paid for any damage which may be caused by any such entry or con- 
 struction as aforesaid. 
 
 M . M . C . •'" 
 
562 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Gold Mining 
 Ord., 1867. 
 
 Kegistration. 
 
 77. Such grant shall be duly registered as hereinbefore provided, and the 
 sum of five dollars shall be charged therefor, save vrhen such grant gives the 
 grantees the power and right of collecting tolls, in which case the sum of 
 twenty-five dollars shall instead of five dollars be paid as a registration fee. 
 No re-registration of any such grant shall be necessary. An annual rent of 
 twenty-five dollars for each quarter mile, and fraction thereof, shall be paid by 
 drain companies collecting tolls, to the Gold Commissioner, such rent to com- 
 mence from the date of their grant. 
 
 PART VII. 
 Mining Partnerships. 
 
 Co-partner- 78. All mining companies shall be governed by the provisions hereof, unless 
 
 ship rules if they shall have other and written articles of co-partnership properly signed, 
 no articles attested, and recorded, 
 are drawn up. 
 
 Partnership to 79. No mining co-partnership shall continue for a longer time than one 
 continue for ytear, unless otherwise specified in writing by the parties ; but such co-partner- 
 one year. gjiip may be renewed at the expiration of each year. 
 
 80. The business of co-partners herein referred to shall be mining and 
 such other matters as pertain solely thereto. 
 
 Co-partner- 
 ship business 
 to be mining. 
 
 Majority of 
 the partners 
 govern. 
 
 Foreman . 
 
 81. A majority of the co-partners, or their legally authorized agents, may 
 decide the manner 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 de- 
 fray the expenses incurred by the company. Such majority may also choose a 
 foreman or local manager, who shall represent the company, and sue and be sued 
 in the name of the company, for assessments and otherwise ; and he shall have 
 power, with the consent of a majority of the company, to bind them by his 
 contracts ; and the partnership or company name must be inserted in the record 
 of the company's claims. Any co-partner, or his duly authorized agent, shall be 
 entitled to represent his interest in the co-paitnership property to the extent 
 thereof, by work and labour, and so long as such work and labour shall be done 
 and performed to the .satisfaction of the foreman. In the event of such 
 workman being discharged by the foreman, the Gold Commissioner upon appli- 
 cation to him may summon the foreman before him, and upon hearing the facts 
 may make such order as he shall deem just. 
 
 Assessments 82. During the time of working all assessments when levied shall be payable 
 
 when leviable, within five days thereafter. 
 
 Penalty for 83. In default of payment within such time, the debtor after having received 
 
 default. any. notice specifying the amount due by him, shall upon such amount being 
 
 ascertained by the Gold Commissioner to be correct, be personally liable to the 
 company therefor, and his interest in the company, if so ordered, shall be sold 
 by the SherifE in the usual way, for the payment of the debt and costs, and 
 should the amount realized be insufficient to meet the same, the Gold Commis- 
 sioner shall have power to issue an order, directed to the Sheriff, to sell such 
 other personal property (if any) belonging to the debtor as may be sufficient 
 therefor. 
 
 d*'"^ 5^ ^f^^ ^^' Notices of sale of such debtor's mining or other property, or such paj-t 
 sale " thereof as shall suffice to pay the debt and costs, shall be conspicuously posted up . 
 
 ten clear days prior to the day of sale, in the vicinity of such mining or other 
 property, and at the Court House nearest thereto. Such sale shall be by public 
 auction, and the bidder offering to pay the amount due for the smallest portion 
 of the mining or other property, shall be entitled to such portion. The pur- 
 chaser on payment of the purchase money shall acquire therein all the right and 
 title of the debtor, and shall be entitled to the immediate possession thereof. 
 A bill of sale of the mining property so sold, signed by the Gold Commissioner 
 and duly recorded shall confer a good legal title thereto upon the purchaser. 
 
I.] APPENDIX A.— MINING STATUTES. 563 
 
 85. After a notice of abandonment in writing shall have been served on the Gold Mining 
 foreman of the company, by any member thereof, such abandonment shall be Ord., 1867. 
 considered absolute, and operate as a discharge against all debts contracted by . — 7 
 the company after such notice has been given, and no such member shall be ^"''^^ ■ 
 deemed to have abandoned such interest without having served such notice as ff'to ,^^,!!lf " 
 aforesaid. '° "^ ^''^™- 
 
 Limited Liability. 
 
 86. Any mining company, composed of two or more free miners, may limit 
 the liabilities of its members, upon complying with the requirements following, 
 that is to say : — 
 
 Upon filing with the Gold Commissioner of the district a declaratory state- Require- 
 ment, containing the name of the company, the area of the ground claimed, merits, 
 the location 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', exceeding an amount 
 proportioned .to his interest in the company. 
 
 87. No person shall locate, purchase, hold, or enjoy less than one-fourth of Not less than 
 one full interest of 100 feet in any company so constituted. This section shall J of full inter- 
 not apply to gold quartz mining claims. est may be 
 
 held. 
 
 88. All mining companies so constituted shall keep a correct account of its Accounts of 
 assets and liabilities, together with the names of the shareholders, and the in- Companies,, 
 terest held by each, and shall make out a monthly balance sheet shewing the how to be 
 names of the creditors, and the amounts due to each, and file the same among the kept. 
 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. 
 
 89. No member of such company shall, after a bill of sale conveying his Cessation of 
 interest, or some portion thereof, has been duly recorded or after notices of aban- individual 
 donment, in writing, of his interest shall have been left with the foreman of liability, 
 the company and the Gold Commissioner, be liable for any indebtedness of the 
 company accruing thereafter. 
 
 90. No such company shall declare any dividend until all liabilities due shall When divi- 
 have been paid. dend declared 
 
 91. No such company shall be liable for any indebtedness contracted by any Foreman only 
 member thereof, other than its foreman or agent duly authorized. liable for debts 
 
 92. If any such company fail to comply with any of the foregoing provi- Penalty for 
 sions, such company shall be liable to a fine of not less than twenty-five dollars, non-oompli- 
 nor more than one hundred and twenty-five dollars. anoeheiein. 
 
 93. The Gold Commissioner in each mining district shall keep a book ex- Declaratory 
 clusively for the purpose, in which he shall record all declaratory statements f'*'®?)^'?''' 
 filed in his office, and another book in which he shall record all notices of °°^'' " '°' 
 abandonment. 
 
 94. There shall be paid to the Gold Commissioner, for the use of Her Majesty, Fee for filing, 
 upon the filing of each declaratory statement, the sum of two dollars and fifty 
 
 cents ; and upon the filing of each notice of abandonment, the sum of one dollar, 
 and no more. 
 
 95. All other matters not herein provided for shall, as far as is practicable, When in foreo 
 be governed by the provisions of the " Mining Joint Stock Companies' Act, 
 
 1864," but, nothing in the nine preceding sections contained shall be construed 
 so as to repeal or vary any of the prior or subsequent sections of this Ordinance. 
 
564 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Gold Mining 96. In the case of any mining joint stock company, duly registered in this 
 Ord., 1X67. Colony under the provisions of the "Mining Joint Stock Companies' Act, 1864," 
 yr, and not xmder this Ordinance, every shareholder of such company, though not a 
 
 iiot l"ree^''™* ^'"®® P^*^""' sl^all 'be entitled to buy, sell, hold, or dispose of any mining shares 
 Miners may ^'>®''ein> 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 
 person, for non-working or non-representation, either after his decease, or dur- 
 ing the illness which shall have terminated in his decease. 
 
 .est 
 
 Power of Gold 98. The Gold Commissioner shall in all such cases take possession of the 
 
 ■Coramis- mining property of the deceased, and may cause such mining property to be duly 
 
 .sioner. represented or dispense with the same at his option, and he shall sell and dispose 
 
 of the same by private sale, or upon giving ten days' notice thereof by public 
 
 auction, upon such terms as he shall deem just, and out of the proceeds pay all 
 
 costs and charges incurred therein. 
 
 Custody o£ 
 property of 
 deceased 
 miner. 
 
 99. The Gold Commissioner shall take into his custody and safe keeping, or 
 order some person so to do, all the property of deceased miners until proper 
 letters of administration be obtained. 
 
 PART IX. 
 
 Leases. 
 
 All o-rants to -^^^ ■^'' grants under this Ordinance for any mining ground, ditch privileges, 
 
 be in writing, o"^ otherwise, shall be in writing, in the form of a lease to be signed by the Gold 
 Commissioner, and by the grantees or lessees. 
 
 .Except other- 
 wise express- 
 ed in this Or- 
 dinance . 
 
 Applications 
 must be in 
 duplicate. 
 
 Ground must 
 be marked out 
 and notices 
 posted up. 
 
 101. Save where the contrary is expressed in this Ordinance, the following 
 clauses shall apply : — 
 
 Applications for leases, accompanied by a plan of the proposed under- 
 taking, are to be sent in duplicate to the Gold Commissioner of the district 
 wherein the ground desired to be taken is situated, who shall immediately 
 forward it, with his report, to the 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 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 appli- 
 cant, 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. 
 
 Deposit of 102. Every application for a lease shall be accompanied by a deposit of one 
 
 $125. hundred and twenty-five dollars, which shall be refunded if the application be 
 
 refused ; and if it be entertained such sum of one hundred and twenty-five dollars 
 
 shall be retained and paid into the treasury of the Colony, for the use of Her 
 
 Majesty, whether the application be afterwards abandoned or not. 
 
 Leases for 10 j()3 Leases will not in general be granted for a longer term than ten years, 
 years. ^^ ^^^ ^ quantity of ground greater than that herein, prescribed, that is to say : — 
 
 Dry diggings In dry diggings, ten acres. 
 
 Bar diggings. lu bar diggings, unworked, half a mile in length along the high water 
 
 mark. 
 
 In bar diggings, worked and abandoned, one mile and a half in length 
 along the high water mark. » 
 
I.J APPENDIX A.— MINING STATUTES. 565 
 
 In quartz reefs, unworked, half a mile in length. Guld Mining 
 
 In quartz reefs, worked and abandoned, one mile and a half in length. ^ 
 
 With liberty in the two last cases to follow the spurs, dips, and angles on Quartz reefs 
 and within the surface for two hundred feet on each side of the main lead or «" worked • 
 seam. Quartz reefs 
 
 abandoned. 
 
 104. Leases as above will not in general be granted of any land, alluvium or 
 quartz, which will be considered to be immediately available for being worked 
 by free miners as holders of individual claims. Nor will such a ease be granted 
 in any ease whene individual free miners are In previous actual occupation of 
 any part of the premises unless by their consent. 
 
 105. Every such lease shall, without expressing the same, be understood to Reservation of 
 contain a reservation of all rights of the Crown, and all reasonable provisions rights of the 
 for securing to the public, rights of way and water, save in so far as shall be Orown under- 
 necessary for the miner-like working of the premises thereby demised. The stood, also 
 premises demised shall be granted for mining purposes only, and it shall not be ^^}' ^^^' 
 competent to the lessee to assign or sub-let the same or any part thereof, with- ^ ' 
 
 out the previous licence in writing of the Gold Commissioner. Every such lease rL'*" ™'"® 
 
 shall comtain a covenant by the lessee to mine the said premises in a miner- 
 
 like way, and also, if it shall be thought fit, to perform the works therein defined {^"J,®"^"*"^ ^^ 
 
 withiia a time therein limited. And it shall also contain a clause by virtue 
 
 whereof the said lease may be avoided, provided that the lessee shall refuse or 
 
 neglect to observe and perform all or any of the covenants therein contained. 
 
 PART X. 
 
 Ditches. 
 
 106. It shall be lawful for the Gold Commissioner, upon the application here- q .^ Commis- 
 inafter mentioned, to grant to any person for any term not exceeding five years, gionermay 
 the right to divert and use the water from any creek, stream, or lake, at any grant ditch 
 particular pent thereof, and the rights of way though and entry upon any priisileges for 
 mining ground in his district, for the purpose of constructing ditches and flumes 1 years . 
 
 to convey such water. 
 
 107. Ten days' notice thereof shall be given, by affixing the same to some Notice to be 
 conspicuous part of the ground, and a copy thereof upon the walls of the Gold given. 
 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 
 dollars shall be retained and paid into the colonial treasury, for the use of Her 
 Majesty, whether the application be afterwards abandoned or not. 
 
 109. Every application for such rights shall be in writing, and shall state . .. . 
 the names of the applicants, the name of the stream or lake to be diverted, the to'be'iTwri't- 
 point of diversion or ditch head, the quantity of water to be taken, the locality ;„„, 
 
 for its distribution, and the price (if any) to be charged to free miners or 
 others for the use of such water, and the time necessary for the completion of 
 the ditch. 
 
 110. The Gold Commissioner, upon protest being entered, or for reasonable Gold Commis- 
 cause, shall have power to refuse or modify such application or grant. sioner may re- 
 fuse or modify 
 grant. 
 
566 MARTIN'S MINING CASES. [vol. 
 
 Gold Milling HI- Every grant of a ditch or water privilege in occupied creeks, shall be 
 t)rd., 1867. subject to the right of such registered free miners as shall at the time of such 
 
 grant be working on the stream above or below the ditch head, and of any other 
 
 Grants to Vie person or persons whatsoever who are then in any way lawfully using such 
 subject toFree ^ater, for any purpose whatsoever. 
 Miners rights 
 
 Damages, 112. If, after the grant aforesaid has been made, any free miner locate and 
 
 when to be bona fide work any mining claim below the ditch head, on any stream so diverted, 
 paid. he shall, upon paying to the owner of the ditch, and all other persons, compensa- 
 
 (tion equal to the amount of damage sustained, be entitled to such quantity of 
 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. 
 
 certain cases 
 
 Grants not to 113 j^q person shall be entitled to any grant of the water of any stream 
 ™!^f„ t™, mined for the purpose of selling the; water to present or future claim^holders on 
 any part of such stream. The Gold Commissioner may, however, in his discre- 
 tion grant such privileges as 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 miners then using the water so applied for be in all such cases protected. 
 
 Gold Commis- 114. The Gold Commissioner shall have power, whenever he may deem it 
 sioner may re- advisable, to order the enlargement or alteration of any ditch or ditches, and 
 ^t f^J^f'h ^° ^^ what (if any) compensation shall be paid by the parties to be benefited by 
 etc.,01 aitchis g^^^ alteration or enlargement. 
 
 Waste of 115. Every owner of a ditch or water privilege shall be bound to take all 
 
 water not per- reasonaible means for utilizing the water granted and taken by him. And if any 
 mitted. 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 forfleited. 
 
 Water, hovif to 116. It shall be lawful for the owner of any ditch or water privilege to dis- 
 be distributed tribute for use the water conveyed by him to such persons and on such terms 
 by grantee. as he 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 another, except where the difficulty 
 of supply is enhanced. 
 
 Rent of $5 per ^^'^- Unless otherwise specially arranged, an annual rent of five dollars shall 
 annum on 50 be paid for every fifty inches of water used for mining purposes when not sold, 
 inches of and when sold the rent to be paid for any water privilege shall be in each month 
 
 water. one average day's receipts from the sale thereof, to be estimated by the Gold 
 
 Commissioner, with the assistance, if he shall so think fit, of a jury. 
 
 V neral t' ^^^' ^^^ person desiring to bridge across any stream, or claim, or other 
 
 lations ™°" place, for any purpose, or to mine under or through any ditch or flume, or to 
 carry water through or over any land already occupied by any other person, may 
 in proper cases do so with the sanction of the Gold Commissioner. In all such 
 cases the right of the party first in possession whether of the mine or of the 
 water privilege is to prevail, so as to entitle him to compensation and indemnity 
 if the same be just. 
 
 Rules for 119. In measuring water in any ditch or sluice, the following rules shall be 
 
 measurinsr observed: — The water taken into a ditch shall be measured at the ditch head 
 water. ^jjjj ^ pressure of seven inches. No water' shall be taken into a ditch except in 
 
 a trough placed horizontally at the place at which the water enters it. The 
 aperture through which the water passes shall not be more than ten inches high. 
 The same mode of measurement shall be applied to ascertain the quantity of 
 water running out of any ditch into any other ditch or flume. 
 
r.] APPENDIX A.— MINING STATUTES. 567 
 
 120. Whenever it shall be intended, in forming or upholding any ditch, to Gold Mining 
 enter upon and occupy any part of a registered claim, or to dig or loosen any Ord., 1867. 
 earth or rock, within four feet of any ditch not belonging solely to the regis- — ; 
 tered owner of such claim, three days' notice in writing of such intention shall ^°ijj"®jg' ™' 
 be given before entering or approax;hing within four feet of such other property, tered claim to 
 
 be given. 
 
 121. Any person heretofore or hereafter engaged in the construction of any s.ulea for 
 road or work may, with the sanction of the Gold Commissioner, cross, divert, or diverting or 
 otherwise interfere with any ditch, water privilege, or other mining rights crossing 
 whatsoever, for such period as the said Commissioner shall direct. ditches, 
 
 122. The Gold Commissioner shall order what (if any) compensation for Gold Commis- 
 every such damage or interference shall be paid, and when, and to whom, and sioner to 
 whether any and what works damaged or affected by such interference as afore- settle compen- 
 said, shall be replaced by flumes or otherwise repaired, and in what manner, by nation there- 
 the person or persons inflicting any such damage. '"^' 
 
 123. Upon compliance with the requirements aforesaid, the Gold Commis- And to give 
 sioner shall certify in writing under his hand that the person or persons named certificate of 
 therein were duly authorized to create the damage or interference aforesaid, and authority, 
 have duly fulfilled the requirements herein mentioned, and have also duly satis- 
 fied and discharged all damages by him or them occasioned to any persons 
 whatsoever, in respect of the damage or interference referred to. 
 
 124. Every such certificate shall be recorded by the said Gold Commissioner, To be recorded 
 in a book to be kept by him for that purpose at his office, and shall be at all 
 
 times open to inspection upon payment of a fee of one dollar for every inspec- 
 tion. 
 
 125. Every such certificate so recorded shall be sufficient evidence in any And to be 
 Court of Judicature in the Colony of all matters and things therein contained sufficient in 
 or referred to, and shall discharge the person or persons to or for whom the 1^*^ Courts, 
 same is granted from all liability with respect to the damage or interference 
 
 therein mentioned. 
 
 126. The Gold Commissioner shall, upon the application of any party in- Gold Commis- 
 terested therein, and after notice as hereinafter' mentioned to all whom it may sioner to de- 
 concern, enquire into and decide all matters arising out of or connected with any °^^^ disputes, 
 such damage or interference as aforesaid, and such decision or judgment shall 
 
 be final and without appeal, and in all cases where such decision or judgment 
 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. 
 
 127. In cases where such amount or value shall exceed five hundred dollars, , , 
 
 any party aggrieved by such decision may appeal against the same to the be^made iS*^ 
 Supreme Court of Civil Justice, upon giving written notice of such intention to cases over $500 
 the Gold Commissioner, within four days of such decision, and upon giving, to the Su- 
 within such four days to the Gold Commissioner whose opinion is appealed preme Court, 
 against, a good and sufficient bond or mortgage, the amount of which shall be 
 fixed by the Commissioner, from the party or parties appellant, for the prosecu- 
 tion of the appeal, and for the payment of all such costs as may be awarded 
 by the said Supreme Court. 
 
 128. The owners of any ditch, water privilege, or mining right, shall, at their geouritv of 
 own expense, construct, secure, and maintain all culverts necessary for the waste water in 
 passage of waste and superfluous water flowing through or over any such ditdh, ditches to be 
 water privilege, or right, except in cases where a natural stream or river appli- at expense of 
 cable or sufficient for the purpose exists in the Immediate vicinity. owners. 
 
568 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Gold Mining 129. The owners for the time being, not being the Government, of any ditch 
 Ord., 1867. or water privilege, shall conBtriict and secure the same in a proper and substan- 
 -"*■ tial manner, and maintain the same in good repair to the satisfaction of the Gold 
 
 Ditches to be Commiissioner, and so that no damage shall occur, during their ownership 
 constructed in (;]jg],gof j-j, g^y j-gg^j q,, ^grt jn jts vicinity, from any part of the works of such 
 . a secure man- -,., .j...t ■ ^ j. • • i. ^ j. \. • j; 
 
 jjgj, ditch, water privilege, or right, giving way by reason of not being so as afore- 
 
 said constructed, secured, or maintained. 
 
 Damages to be 130. The owners of any ditch, water privilege, or right, shall be liable and 
 made good by shall 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 
 
 iiecovered before a Magistrate in a summary manner. 
 
 Notice to be 
 given in 
 Government 
 Gazette. 
 
 131. The publication of any written notice to the party intended to be 
 affected thereby, in tWo consecutive numbers of the' Government Gazette, Or any 
 newspaper circulating in the Colony, or by affixing the same for ten days on 
 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. 
 
 Saves public 132. Nothing herein contained shall be construed to limit the right of the 
 
 rights. Chief Commissioner of Lands and Works to lay out from time to time the 
 
 public roads of the Colony across, through, along, of under -any ditch, water 
 privilege, or mining right, in any unsurveyed Crown land, without compensa- 
 tion, doing as little damage as conveniently may be in laying out the same. 
 
 PART XI. 
 
 Mining Boards and their Constitution. 
 
 Constitution 133. Upon petition, signed by not less than one hundred and one free miners 
 
 of Mining in any district, it shall be lawful for the Gold Commissioner, acting for such 
 Boards. district, to constitute therein a local board, to be called " The Mining Board." 
 
 Their number 134. The Mining Board shall consist of nine members, who shall retire 
 artd election, annually, and shall be elected by the votes of the inhabitants of the district, 
 who are free miners at the time of the election. 
 
 Me b r's "'■^^' ^° ^"^^ miner or other person shall be eligible as a candidate, unless 
 
 qualification ^® shall have been a registered owner of a. mining interest in the district, for at 
 least three months previous to the election. 
 
 Voter's 
 qualification. 
 
 136. Each voter shall have nine votes, but shall not be allowed to give more 
 than one vote to each candidate. 
 
 Gold Commia- l^'^- ^'^^ votes of the electors shall be givBn in- person by the voter, and 
 sioner to be the Gold Commissioner of the district shall act as the Returning Officer, and 
 Returning shall decide all questions as to qualification and disqualification of the members 
 Officer. elect. The first election shall take place on such day as the Gold Commissioner 
 
 may appoint. 
 
 Vacancy of 138. If any member shall cease to be a registered free miner in the district, 
 
 membership, qj. gjjall 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 faoto vacate his seat in each case, and not be re-eligible, 
 save that a member vacating his seat, only by reason of ceasing to be a registered 
 free miner, shall be again eligible at any time upon his becoming a registered 
 fr^e miner. 
 
I.J APPENDIX A.— MINING STATUTES. 56& 
 
 139. Whenever any member shall absent himself from three or more consecu- Gold Mining 
 
 tive meetings of the Board, whether regular or adjourned meetings, he shall, Ord., 1867. 
 
 upon a resolution passed by the Board to that effect, be considered to have 
 
 vacated his seat therein. Absence from 
 
 meetmg. 
 
 140. The Gold Commissioner shall fill by appointment all vacancies which Vacancies in 
 may arise in the said Board, when the same may occur, and such appointees ^^^ Board, 
 shall hold oflSce until the next general election. 
 
 141. The Mining Board shall, subject to the provisions hereof, have power -^°^*^*°, 
 
 by resolution to make By-laws, which shall be submitted for the approval of the m^^e by-laws. 
 Gold Commissioner, (any By-laws so approved by the Gold Commissi'oner, shall mus't^e^'ap- 
 be immediately posted in the Gold Commissioner's oflSce) , and also from time proved 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. 
 
 142. Any resolution of such Mining Board may be passed by a bare majority "laJO"'ies. 
 of the members of such Board. The Gold Commissioner shall, within sevBu 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. 
 
 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 con- meetings, 
 stitute a quorum. Provided, nevertheless, that it shall be lawful for the Gold 
 Commissioner, and so often as in his opinion occasion shall require, to call 
 
 together such iSining Board. , 
 
 144. The votes on all resolutions of the Mining Board shall be given by Votes, oral, 
 the members personally and by word of mouth. 
 
 145. All questions of order and of the time and manner of conducting the Mode of con- 
 business at such Mining Board, and of the times and places of meeting after ducting the 
 the first meeting thereof, may be decided by the majority of the said Mining proceedmgs. 
 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 l^o^er to the 
 the Colony, at any time to declare the Mining Board in any district dis- digJoi^"^ ° 
 solved, at a day to be named in such order, and if no day be therein named in Mining Board 
 that behalf, then as from the date of such order. 
 
 PART XII. 
 
 Penal Glauses and Clauses of Indemnity. 
 
 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 Power m oases 
 this Ordinance or refusing to obey any lawful order of the Gold Commissioner, " disobedi- 
 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 OASES. 
 
 [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 
 _ ,"7~ , allowed, by distress and sale of any mining or other personal property of the 
 Penalties, how offender, 
 xecovered . 
 
 All fines and 149, ^\\ fingg and fees whatsoever payable under this Ordinance except 
 
 iees to be paid otherwise expressly appropriated, shall be paid into the treasury of the Tjolony 
 treaaurv ^^ portion of the revenue thereof, to the use of Her Majesty, Her heirs and 
 
 successors. 
 
 Appeal to the 150. Any person convicted and sentenced to any term of imprisonment 
 SuprenieCourt beyond thirty days, or to pay any fine beyond one hundred dollars over and 
 inorimmal gjbove the costs of conviction, may appeal to the Supreme Court of Civil 
 •cases^"™'"*''^ Justice ; provided that such person do, within forty-eight hours after such con- 
 viction, enter into recognizance with two sufficient sureties, conditioned person- 
 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 heariiig of such 
 appeal. 
 
 No merely l^l' Oi^ ^^y such appeal no objection shall be allowed to the conviction on 
 
 formal objeo- any matter of form or insufficiency of statement, provided it shall appiear to the 
 tion 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 
 
 the case. 
 
 •Certain 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 rEcor(is 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 1^3. 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. 
 
 Defraudins ^^^' •^"^ person who 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 
 
 f)rincipal, sold found in such claim he shall be guilty of felony, and upon conviction thereof 
 
 felimy. 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; an(J 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 
 Ordinance, 1867." 
 
!l.] APPENDIX A.— MINING STATUTES. 571 
 
 47 Victoria, Chap. 10. Mineral Act, 
 
 1884. 
 
 An Act to Consolidate and Amend the Laws relating to Gold and other 
 Minerals excepting Coal. 
 
 H 
 
 USth Feirnary, 188Ji.'\ 
 
 ER MAJESTY, by and with the advice and consent o£ the Legislative 
 Assembly of the Province of British Columbia, enacts as follows : — 
 
 1. In the construction of this Act the following expressions shall have the Interpretation 
 'following meanings respectively, unless inconsistent with the context r — 
 
 The word " mine " shall mean any land in which any vein, stratum, or Mine. 
 natural bed of earth or rock shall be mined for gold or other minerals 
 except coal ; 
 
 The word " claim " shall mean the personal right of property or interest in Claim, 
 any mine, and may include a mineral claim ; and in the term " mining 
 property " shall be included every claim, ditch, or water privilege used Mining pro- 
 for mining purposes, and all other things belonging thereto or used in P^"y- 
 the workings thereof ; 
 
 " Bar diggings " shall mean any mine over which a river extends when in its Bar diggings, 
 flooded state ; 
 
 ■" Dry diggings " shall mean any mine over which a river never extend?; Dry diggings. 
 
 The mines on benches shall be known as " bench diggings," and shall for the Bench dig- 
 purpose of defining the size of such claims be excepted from " dry gings. 
 diggings ;" 
 
 '" Streams and ravines " shall include water-courses, whether usually con- streams and 
 taining water or not, and all rivers, creeks, and gulches ; ravines . 
 
 " Ditch " shall include a. flume or race, or other artificial means for conduct- Ditch, 
 ing water by its own weight, to be used for mining purposes ; 
 
 *' Ditch head " shall mean the point in a natural water-course or lake where Ditch head, 
 water is first taken into a ditch ; 
 
 " Free miner " shall mean a person named in, and lawfully possessed of, a Free Miner, 
 valid existing free miner's certificate, and no other ; 
 
 The words " record," " register," and " registration," shall have the same Record, etc. 
 meaning ; 
 
 " Full interest " shall mean any mining claim or mineral claim of the full YaW interest, 
 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 claims are close season. 
 in general laid over; 
 
 " Cause " shall include any suit or action ; Cause. 
 
 " Judgment " shall include " order " or " decree ;'' Judgnietit,etc: 
 
 "Act" shall include "Ordinance;" Act. 
 
 The word " mineral " shall include all minerals, precious or base (other than Mineral, 
 coal) , found in veins or lodes, or rock in place, and whether such minerals 
 are found separately or in combination with each other ; 
 
 The term " real estate " as used in this Act shall mean any mineral land Real estate, 
 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 Joint Stock 
 mining purposes. Company. 
 
572 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Mineral Act, 
 1884. 
 
 List of Acts 
 repealed and 
 the extent of 
 such repeal. 
 
 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 
 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 : — 
 
 The " Gold Mining Ordinance, 1867," save and except sees. 4, 5, 6, 7, 8, 9, 
 13, 14 and 15; 
 
 The " Mineral Ordinance, 1869 " ; 
 
 No. 14, 1872— An Act to amend the " Gold Mining Ordinance, 1867;" 
 
 Sections 21 and 22 of No. 3, 1878, 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 con- 
 stituted 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 miadng, 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 ;" 
 
 No. 14, 1877 — ^An Act relating to Minerals other than Coal ; 
 
 No. 35, 1877— An Act to amend the " Gold Mining Amendment Act, 1872;" 
 
 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." 
 
 Division of 
 Act into parts. 
 
 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. 
 
 Powers of Qold Commissioners and County Court Jurisdiction in Mining 
 Cases and 4^ppeals. 
 
 The hearing of 4. The hearing of any summons, plaint, or other process in any Mining Court 
 summonses, shall not be deferred beyond the shortest reasonable time necessary in the in- 
 eto., in Mmmg terests of all parties concerned therein. 
 Court not to 
 be deferred . 
 
I.] APPENDIX A.— MINING STATUTES. 573 
 
 5. The Gold Commissioner may lay over any or all claims for such period Mineral Act, 
 and neasons as he may think proper. •'■^*- 
 
 And any company, a free miner, or party of free miners, who shall discover Laying over 
 a new lode or vein containing minerals as defined by this Act shall, upon such claims, 
 discovery being established to the satisfaction of a Gold Commissioner, be en- Leave of ab- 
 tifled to a leave of absence therefrom for six months. senoe to dis- 
 
 coverera of 
 
 6. Where the supply of water is insufficient to work hydraulic or other new claims, 
 claims requiring water to enable them to be worked, such claims shall be laid Claims laid 
 over by virtue of this section during such insufficiency, but no longer, except gZ^jgUy"^^ 
 by leave of the Gold Commissioner. water. 
 
 7. Every free miner or company of free miners, shall be entitled to a leave Leave of ab- 
 
 RPTlfA TOT OTIG 
 
 of absence for one year from his or their claim or set of claims : — ^^ certain 
 
 (a) Upon proving to the Gold Commissioner that he or they has or have oases, 
 expended on such claim or on any portion of the set of claims, in cash, 
 labour, or machinery, an amount equal to $1,000 on each full interest, with- 
 out any return of gold or other minerals in reasonable quantities from such 
 expenditure : 
 
 (6) Upon the application for such leave being signed by all the owners 
 of the claim or set of claims. 
 
 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 miners' 
 licences, and record of the claims above mentioned ; nor shall this section be 
 deemed to affect the discretionary power of the Gold Commissioner with re- 
 spect to granting a leave of absence under other conditions. 
 
 8. He shall have the power to summarily order any mining works to be Protection 
 so carried on as not to interfere with or endanger the safety of the public, against dan- 
 any public work or highway, or any mining property, mineral claims, mining gerous works, 
 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. 
 
 9. Every County Court shall exclusively have and exercise within the limits Mining juris- 
 of its district all the jurisdiction, rights, powers and privileges of a Mining diction given 
 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 '^""'^'■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. AH proceedings in mining causes brought before a County p^^jj^g g,„j 
 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 
 thereon. The Judge of any County Court may, notwithstanding anything jujge to 
 contained in this section, from time to time make, vary, or repeal any rules make rules, 
 for regulating the forms or proceedings or costs in mining causes within the 
 jurisdiction of his Court. 
 
 10. The provisions of the preceding s'ection shall not have effect in such Section 9 to 
 portions of the Province as may be defined by order of the Lieutenant-Governor apply only to 
 in Council, and such order may from time to time be varied or revoked. such parts of 
 
 the province 
 
 11. The attendance of jurors and witnesses in any mining cause in the as the Lieuten- 
 Oounty Court or in the Mining Court may be obtained and enforced according ^' (j'ireot""^ 
 to the practice of the Coimty Court, and such jurors and witnesses shall be j ,' 
 entitled for their atendance to receive such compensation as the Court may w'itnesses 
 direct. 
 
574 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Mineral Act, 
 
 1884. 
 
 Provisions as 
 to appeals 
 from mining 
 courts. 
 
 New trial. 
 
 Case stated . 
 
 Appeals in 
 Cariboo 
 District . 
 
 12. An appeal shall lie from any judgment of a Mining Oourt or of a County 
 Court, in a mining cause to the Supreme Court of British Columbia at Vic- 
 toria, sitting as a Full Court. The appellant shall, within ten days from the date 
 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 prtws,, 
 and if either party be dissatisfied -with his decision he may appeal therefrom 
 to the Supreme Court at Victoria, sitting as a Pull Court, upon giving, 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 allovred by the Appellate Court, furnish- 
 ing such security in the matter of the appeal as the Judge of Assize may direct. 
 
 Appeals from 13. Appeals from the decisions on mining questions of any Judge of the 
 OountyOourts. 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. 
 
 Questions to 
 be decided 
 upon the 
 
 f round in 
 ispute , 
 
 14. In all mining actions or suits, the Judge of the Court having jurisdictionj 
 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. 
 
 PART II. 
 
 Who may 6e Free Miners, and their privileges. 
 
 Who may be 
 free miner . 
 Free miners 
 under agfe to 
 be treated as 
 adults. 
 Miner's 
 certificate. 
 
 15. Every person over but not under sixteen years of age shall be entitled 
 to hold a claim. Miners, who shall become free miners, shall, as regards their 
 mining property and liabilities contracted in connection therewith, be treated 
 as adults. 
 
 16. Upon payment of the sums hereinafter mentioned any such perscm 
 sliall be entitled to a free miner's certificate signed by a Gold Commissioner 
 or Mining Recorder in the following form : — 
 
 Form of 
 certificate. 
 
 BRITISH COLUMBIA. 
 
 Free Miner's Oertificate. 
 Not Transferable. 
 
 Date, 
 
 No. 
 
 Valid for 
 
 year only. 
 
 This is to certify that of has paid me this day the sum of 
 
 , and is entitled to all the rights and privileges of a free miner, 
 for year from the date hereof. 
 
 (Signatwe of Gold Gommissioner, Assistant Bold Commissioner, or' 
 Mining Recorder, as the case may 6e.) 
 
I.] APPENDIX A.— MINING STATUTES. 575, 
 
 17. Any company incorporated under the "Companies Act, 1878," or Mineral Act, 
 under any law in force in this Province relating to joint stock companies, 1884. 
 
 shall be entitled to all the rights and privileges of a free miner upon taking 
 
 out a free miner's certificate. Incorporated 
 
 companies may 
 
 18. The free miner's certificate to be granted to a company shall be '^f ^^^ ™iners. 
 issued in its corporate name, and every leave of absence or record of mining (--ertiticate to 
 interests, or other mining property held by the company, and every tra,nsfer rloords made 
 and record thereof, shall be given or made in the corporate name of the ;„ thg corpor- 
 compariy. ate name. 
 
 19. The Lieutenant-Governor in Council may appoint any person to be a Mining 
 Mining Eecorder in and for any part of the Province, for the purpose of Recorder, 
 issuing free miners' certificates and entering mining records ; and the certifi- 
 cates and records issued and made by such recorder shall be as valid as if 
 
 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 Recorder, as soon as prac- 
 ticably may be after the making of the same. 
 
 20 A free miner's certificate may be granted for one year, or three years. Certificate 
 from the date thereof, upon the payment therefor of five dollars for one year, maybe Krautedi 
 and fifteen dollars for three years. A certificate sliall not be transferable, for one or 
 and only one person shall be named therein. ^r'''® years. 
 
 Not transfer- 
 
 21. If any such certificate shall be accidentally destroyed or lost, the ^ ^' 
 owner thereof may, on payment of two dollars and fifty cents, have a true Lost 
 copy of it, signed by a Gold Commissioner or, Mining Recorder. Every such certificate, 
 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. 
 
 . 22. Every free miner shall, during the continuance of his certificate, but Right to enter 
 not longer, have the right to enter and mine upon any waste lands of the and mine 
 Crown, not for the time being lawfully occupied by any other person. Crown Lands. 
 
 23. In the event of such entry being made upon lands already lawfully Compensation 
 occupied for other than mining purposes previously to entry, full compensation to prior 
 shall be made to the occupant or owner, for any loss or damages he may occupants, 
 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. 
 
 24. No person shall be recognized as having any right or interest in. or to Mining in^er- 
 any mining claim, mineral claim, or any minerals therein, or in or to any ests, etc., only 
 mining ditch, unless he shall be, or in case of disputed ownership unless he acquired by 
 shall have been at the time of the dispute arising, a free miner. ^^^ ™™ ''''■ 
 
 2i. No person shall be entitled to recover any wages tor labour performed Miners, etc.,, 
 as a miner in any mining claim or mineral claini, or on any Ijcd-iock linmc, without certi- 
 bed-rock drain, or ditch, unless he has had a free miner's certificate at the ficates cannot 
 lime of the performance of such labour. Every person engaged in mini ug recover wages. 
 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 Production of 
 his agent, demand from any person engaged or employed in mining the produc- free miner's 
 tion of his free miner's certificate, and in case of the neglect or refusal of such ?p''^p„'^^'*%"'?^ 
 person to immediately produce such certificate when demanded, or to pay for °^ collector of 
 a certificate, the' assessor or collector inay, by himself or his agent, levy the j^^^g_ ^^^ jj 
 sum payable for a certificate, with costs, by distress of any goods and chattels not produced, 
 of the person who ought to pay the same, or of any goods or chattels on the the fee ton 
 
576 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Mineral Act, 
 1884. 
 
 same may be 
 levied by 
 
 distress. 
 
 piiemises occupied by kim, whether the goods or chattels be his property or be 
 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 
 tenant. 
 
 PART III. 
 
 ■ Registration of Claims, and Free Miner's General Bights. 
 
 Recording 27. Ever free miner locating a mining claim or a mineral claim must 
 
 clainjs. record the same with the Gold Commissioner or Mining Recorder of the dis- 
 
 trict witiin which the same is situated, within three days after the location 
 thereof, if located within ten miles of the ofiBce of the said Gold Commissioner 
 or Mining Recorder. Oue 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. 
 
 Under certain 28. Where auriferous land is discovered in a part of the Province so situ- 
 ciroumstances ated that the provisions of this Act as to free miner's certificates and re- 
 miners may cords 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 suoh times 
 and places as may be agreed upon, and at such meetings, by a two-thirds 
 ' 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. 
 
 Re-recording. 29. All claims, not being real estate, must be re-recorded annually; but 
 any. free miner may record his claim for a period of two or more years, upon 
 payment of two dollars and fifty cents for each year included in such record. 
 
 make rules 
 ^,nd appoint 
 a recorder. 
 
 30. The Gold Commissioner or Mining Recorder may require any miner 
 applying to record a claim to produce his certificate, and upon non-produc- 
 tion 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 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. 
 
 38. The transfer of any .real estate acquired under the provisions of 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 authorized in writing, and need not be by deed or under seal. 
 
 34. Every free miner or company of free miners may record his or their 
 claim or set of claims in one record on payment of two dollars and fifty cents ; 
 and every " leave of absence " may contain all the interests exempted from 
 representation. Two dollars and fifty cents shall be charged for such " leave of 
 absence," and for any bill of sale or other document or matter, recorded. 
 
 Books open 35. The books of record shall, during reasonable hours, be open to public 
 
 to inspection, inspection free of charge. 
 
 Certificate to 
 be produced 
 before record 
 made. 
 
 Priority of 
 rights recog- 
 nized accord- 
 ing to priority 
 of registration. 
 
 Transfers of 
 claims to be 
 enforced must 
 be in writing 
 ^nd registered. 
 
 Transfers of 
 real estate 
 acquired under 
 the Gold 
 Mining Acts. 
 
 Provisions as 
 to records. 
 
I.] APPENDIX A.— MINING STATUTES. 577 
 
 30. Every copy of, or extract from, any record in the said books, certified Mineral Aet, 
 to be a true copy or extract by the Gold Commissioner or Mining Recorder, 1884. 
 
 shall be received in any Court as evidence of the matters therein contained, . 
 
 and the sum of fifty cents shall be charged for each copy or extract bo Certified 
 certified. extraotB there- 
 
 from to be 
 TPfifiiVfld. in 
 
 37. Every bill of sale of a mining interest, or of any fraction thereof, shall evidence. 
 be recorded within the time prescribed for recording pre-emption claims; and Recording 
 if any owner of such bill of sale shall wilfully neglect or refuse so to do, he buia of sale . 
 shall be liable to such fine, not exceeding fifty dollars, as any Gold Commis- 
 sioner may order. 
 
 38. Every free miner shall be allowed to hold, at the same time, any num- ^ free miner 
 ber of claims acquired by purchase, but only two claims by pre-emption in may hold any 
 the same locality, feave as hereafter provided, viz. : — One mineral claim, and number of 
 one other claim ; subject, however, as to the laws as to record, occupation, claims by 
 and otherwise, for the time being in force. And every free miner may sell, purchase, but 
 mortgage, or dispose of the same. He shall also be entitled, in ad- ^^ t n 
 dition to the above, to hold a pre-emption claim on each (but not on the except in 
 same) hill, creek, ravine, or bench. certain cases. 
 
 39. The interest of a free miner in his claim, shall, save as to claims held Miner's 
 in fee simple, be deemed to be a chattel interest, equivalent to the lease, for interest in 
 such period as the same may have been recorded, renewable at the end thereof, claim a chattel 
 and subject to the conditions as to forfeiture, working, representation, registra- interest, 
 tion, and other wise, for the time being in force with respect to claims. 
 
 40. Every free miner shall, during the continuance of his certificate, have Definition of 
 the exclusive right of entry upon his own claim, for the miner-like working miner's rights 
 thereof, and the construction of a residence thereon, and shall be entitled ex- ™ ^ claim, 
 clusively to all the proceeds realized therefrom ; provided, that his claim be jj^ surface 
 duly registered, and faithfully and not colourably worked ; but he shall have rights 
 
 no surface rights therein. Provided, also, that the Gold Commissioner may, 
 upon application made to him, allow adjacent claim-holders such right of ^ight of entry 
 entry thereon as may be absolutely necessary for the working of their claims, reserved to 
 and upon such terms as may to him seem reasonable. ol imTolders 
 
 41. In addition to the above rights, every registered free miner shall be Right to a fair 
 entitled to the use of so much of the water naturally flowing through or past share of water 
 his claim, and not already lawfully appropriated, as shall in the opinion of necessaiy to 
 the Court having jurisdiction in mining disputes be necessary for the due work claim, 
 working thereof. 
 
 42. No claim located and recorded in any district within fourteen days be- Laying over 
 fore, or at any time after the claims therein shall have been laid over, to the claims 
 ensuing season, or other specific date, shall be deemed to be so laid over, recorded in 
 unless so much work shall have been iona flde expended thereon by the holder "ose season, 
 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 to the occupation of when claim 
 any free miner when the same shall have remained unworked on working days shall be deem- 
 by the registered holder thereof for the space of seventy-two hours, unless sick- ed abandoned, 
 ness or other reasonable cause be shewn. 
 
 44. Every full-sized claim or full interest as defined in this Act shall be pyji gj^gij 
 represented and bona fide worked by the owner thereof, or by some person on olaiinsmust 
 his behalf. be worked. 
 
 45. The Gold Commissioner may prescribe the number of miners who shall Working pros- 
 be required to work in prospecting a set of claims until gold in paying quan- peeting claims, 
 titles is found. 
 
 M.M.O. 37 
 
578 MARTIN'S MINING CASES. [vol. 
 
 Mineral Act, 46. Every forfeiture of a claim shall be absolute, any rule of law or equity 
 1884, to the contrary notwithstanding. 
 
 forfeiture of ^^ Where any undivided mining interest in a company shall be claimed' 
 
 aim a so ue. j^y ^^^ ^^^^ miner by reason of any defect in the title or representation there- 
 Undmded in- ^^^ which defect shall be first established to the satisfaction of the Court 
 ComDaniT having jurisdiction in mining disputes, the company shall be bound either to 
 when not re- admit the claimant as a member of the company to the extent of such defective- 
 presented, the interest or to stake off to the separate use of the claimant any portion of 
 Company ground in the joint ground of the company equal in extent to such defective 
 
 must : 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 
 bar or stalce off shall pay all costs and expenses incurred by reason of allowing the non- 
 claim for him. lepresentation aforesaid. The Court may malje such order as to costs as 
 
 wSex-''«--y^--^-t- 
 oept otherwise 
 
 ordered . 48. Notwithstanding anything contained in the " Gold Mining Amendment 
 
 Ordiliaryclaim ■^^t, 1873," or in any Crown grant issued under the said Act, or under this 
 owners have Act, it shall be lawful for the Court having jurisdiction in mining disputes, 
 same privi- in its discretion, and with or without any terms or conditions, to allow to 
 leges over the owners of claims not held in fee simple all such rights or privileges in 
 claims held in jmj o^er mineral or other claims held in fee simple as may be allowed in and 
 sueh^OT? ^^' **^®'^ ordinary claims ; and owners of mineral or other claims held in fee- 
 fee have over 8™P'6 shall be entitled to the same rights and privileges as owners of ordin- 
 ordinary ary claims, 
 
 claims. 
 
 Powers of 49. Every Court having jurisdiction in mining disputes, shall, with refer- 
 
 Mining Courts ence to real estate held under the "Gold Mining Amendment Act, 1873," or 
 in deciding under this Act, and notwithstanding any law to the contrary, having the same 
 mining dis- powers and authorities to decide all matters or disputes arising between the 
 putes. 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. 
 
 PART IV. 
 
 Nature and Sine of Claims. 
 
 Size of claims. 50. The size of claims shall be as follows : 
 
 Bar diggings. For "bar diggings," a strip of land 100 feet wide at high water mark, and" 
 thence extending into the river to its lowest water level. 
 
 Dry diggings. For " dry diggings," 100 feet square. 
 
 Creek claims. " Creek claims " shall be 100 feet long, measured in the direction of the 
 general course of the stream, and shall extend in wiath 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 be 100 feet square. 
 
 Bench claims. " Bench claims " shall be 100 feet square. 
 
 Mineralclaims " Mineral claims," that is, claims containing, or supposed to contain min- 
 erals, precious or base (other than coal), in lodes or veins, or rock in 
 place — shall be 1,500 feet long by 600 feet wide, as hereinafter pro- 
 vided. 
 
 Narrow: 51_ rjij^g QqH Commissioner shall have authority, in cases where benches are 
 
 benches. narrow, to define adequate claims in such manner as he shall think fit. 
 
1.] APPENDIX A.— MINING STATUTES. 57 Qi 
 
 52. Any claim on the face of any hill, and fronting ©n any natural stream "Mineral Act, 
 or ravine, shall have a base line or frontage of 100 feet, drawn parallel to the 1S«4. ' 
 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 Hill claims. 
 the side lines thereof. Posts of the legal size shall be planted, 100 feet apart, 
 on both the base and side lines. The whole area included within such boundary 
 lines shall form a " hill claim." 
 
 53. In tunnelling under hills, on the frontage of which angles occur, or Tunnelling 
 which may be of an oblong or elliptical form, no party shall be allowed to under hills, 
 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. 
 
 54. The Gold Commissioner shall have power to refuse to record any hill Gold Commis- 
 claim on any creek, which claim or any part thereof shall include or come sioner may re- 
 within 100 feet of any gulch or tributary of such creek. fuse to record 
 
 certain hill 
 
 55. Tunnels or shafts shall be considered as belonging to the claim for the claims. 
 
 use of which they are constructed, and as abandoned or forfeited by the aban- l*'orfeiture of 
 donment or forfeiture of the claim itself. claim includes 
 
 tunnels, etc. 
 
 56. For the more convenient working of the back claims on benches or Tunnels may 
 slopes, the Gold Commissioner may permit the owners thereof to drive a tunnel be driven 
 
 . through the claims fronting on any creek, ravine, or watercoursev upon such through ad- 
 terms as shall seem expedient. jacent claims.. 
 
 57. If any free miner, or party of free miners, shall discover a new mine, Discoverers' 
 and such discovery shall be established to the satisfaction of a Gold Commis- claims. 
 sioner, 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 new stratum of auriferous earth or gravel situated in a locality where what shall be 
 the claims are abandoned, shall, for this purpose, be deemed a new mine, deemed a new 
 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. 
 
 (o) Creek discovery claims shall extend 1,000 feet on each side of the Creek claims, 
 centre of the creek or as far as the summit ; 
 
 (6) Any discovery claim heretofore granted and duly recorded and held Declares dis- 
 under terms or conditions similar to those herein provided for discovery coverers' 
 claims, shall be deemed to have been lawfully granted and held ; claims hereio- 
 
 . . fore granted 
 
 (o) Notwithstanding anything on the contrary, the provision as to and duly re- 
 mining claims being increased in size by reason of their being discovery c<jrded to be 
 claims, shall not extend or apply to quartz claims or minerals found in valid, 
 lodes 'or veins. The provisions 
 
 as to size not 
 68. All claims shall be as nearly as possible rectangular in form and to extend to 
 marked by, four pegs, at least four inches square, standing not less than four quartz claims, 
 feet above the surface and firmly fixed in the ground. No boundary peg shall etc 
 be concealed or moved without the previous permission of the Gold Commis- Marking 
 sioner. Any tree may be used as a stake, provided that it be cut down to at claims, 
 least the legal height and the stump squared as above. 
 
 59. In defining the size of claims they shall be measured horizontally, Measurement. 
 irrespective of inequalities on the surface of the ground. 
 
5S() 
 
 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. 
 Deposit of 
 leavings. 
 
 Mineral Claims. 
 
 Meaning of 
 mineral. 
 
 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, or rock 
 in place, and whether such minerals are found separately or in combination 
 one with the other. 
 
 i:|rovides as to g2. Any free miner desiring to acquire a right to mine any lands for 
 looating'of '^" minerals as above defined shall, subject to the provisions of this Act with 
 Mineralclaims I'^spect 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. 
 
 Marking out 63. Such mineral claim shall, notwithstanding any provisions of this Act, 
 
 claim. jjg 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 
 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. 
 
 entiUeclto aU ^' '^'^^ lawful holders of mineral claims shall have the exclusive right and 
 
 veins etc possession of all the surface included within the lines of their locations, and 
 
 within the of all veins, lodes, and ledges throughout their entire depth the top or apex of 
 
 boundary lines which lies inside of such surface lines extended downward vertically, although 
 
 of the claim, such veins, lodes, or ledges may so far depart from a perpendicular in their 
 
 course downwards 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 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 
 
 ovraed or possessed by another. 
 
 Rights of 65. Where two or more veins intersect or cross each' other priority of title 
 
 parties where gj^^ii govern, and such prior location shall be entitled to all ore or mineral 
 veins intersect contained within the space of intersection : Provided, however, that the subse- 
 other°in their 1"^°* location shall have the right of way through said space of intersection 
 j;p for the purpose of the convenient working of the said mine ; and provided, also, 
 
 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. 
 
 As to tunnels 
 run for de- 
 velopment of 
 vein or lode. 
 
 66. 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 by him, have 
 the right to all veins or lodes discovered in such tunnel : Provided that the 
 ground containing such veins or lodes be marked out to him as a mineral claim 
 within three days after such discovery, and be duly recorded; and provided 
 further, that such lodes or veins are not included in any existing mineral claim. 
 Any money or labour expended in constructing a tunnel to develop a lode or 
 vein shall be deemed to have been expended on such lode or vein. 
 
I-] APPENDIX A.— MINING STATUTES. 581 
 
 67. No free mineir or incorporated company shall be entitled to hold, directly Mineral Act, 
 or in the name of any other person, more than one mineral claim on the same 1884. 
 lode or vein except by purchase, but such free miner or company may hold by ^ — — 
 pre-emption a mineral claim upon each separate ledge, lode, or vein. I'""'® miners 
 
 not to hold 
 
 68. Any lawful holder of a mineral claim may obtain a Crown grant therefor ™^hn onThe"^ 
 in the following manner :— ,a,„g vein.etc, 
 
 (o) Upon filing in the Land Office of the district wherein the land is except by 
 situate an application for such grant, shewing, under oath, that a vein or P"™ ^^' 
 lode has been found or exists within the limits of the claim, that the appli- L-rown grants, 
 cant is holder and in undisturbed possession of such claim, together with a °owoDcamea. 
 plat and field notes of the claim, made by a surveyor acting under instruc- 
 tions from the Chief Commissioner of Lands and Works, and giving accur- 
 ately the boundaries of the claim, which shall be distinctly marked by 
 monuments or by posts placed at the angles or corners thereof ; 
 
 (i) Upon posting a copy of such plat, together with notice of such 
 application for a grant, on a conspicuous place on the land embraced in 
 such plat, previous to the filing of the application for a Crown grant ; 
 
 (o) Upon filing, in the District Land Office, an affidavit of at least two 
 persons that such notice has been duly posted, together with a copy of the 
 notice ; 
 
 (d) The Government Agent of the district shall thereupon cause to be 
 published, at the cost of the applicant, a notice of the application for sixty 
 days in the Official Gazette, and in any newspaper, if any, circulating in 
 the district, and he shall also post such notice in his office for the same 
 period. The applicant at the time of filing his application, or at any time 
 within the sixty days of publication, shall also file with the said Government 
 Agent a certificate of the Gold Commissioner of the district, or of an 
 Assistant Gold Commissioner, or, if there be none, a certificate of a Judge 
 of a Court having jurisdiction in mining disputes (who may require such 
 evidence thereof as he may think fit), that a sum of one thousand dollars 
 has been bona fide expended in money or labour upon the claim by the 
 applicant, or by others under whom he lawfully claims, and that the plat 
 is correct, with such reference to natural objects or permanent monuments 
 as will identify the claim and accurately describe the land to be included in 
 the Crown grant. At the expiration of the sixty days the applicant shall 
 file with the Government Agent his affidavit, shewing that the plat and notice 
 have been posted in a conspicuous place on the claim during such period. 
 If no adverse claim shall have been filed with the said Government Agent 
 at the expiration of the sixty days, it shall be ^issumed that the applicant 
 is entitled to a Crown grant, and thereafter no objection from third partiea 
 to the issue of a Crown grant shall be heard, except it be shewn that the 
 applicant has failed to comply with the provisions of this Act. 
 
 69. Such Crown grant will be deemed to transfer and pass the right to all What passes 
 minerals, precious or base (excepting coal), which may be in, upon, or under under the 
 the laud in the said Crown grant mentioned, including the rights set forth in Crown grant, 
 sec. 64 of this Act, and may be, in the following form : — 
 
 (Royal Arms.) Form of 
 
 " MINERAL ACT, 1884." "'"" " S™"'- 
 
 Province of British Columbia. 
 
 No. 
 
 ViOTOKiA, 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, in 
 consideration of (tAle fulfilment of the conditions of the laws providing for the 
 
582 MARTIN'S MINING CASES. [vol. 
 
 MinRral Act, ttcquiaition of minerals other than coal) give and grant unto 1) 
 
 1884. heirs and assigns, All that parcel or lot of land situate 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, unto the said h heirs and assigns for ever : 
 
 Provided that it shall at all times be lawful for Us, Our heirs and succes- 
 sors, 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 utility or convenience, but no such resumption 
 shall be made of laud 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 
 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 hereditaments hereby granted, as may be reasonably required for agri- 
 cultural or other purposes in the vicinity of the said land, upon paying there- 
 for 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 Keign. 
 
 By command. 
 
 Mode of 70. When an adverse claim is filed during the period of publication, it shall 
 
 proceeding be upon oath of the person making the same, and shall shew the nature, 
 where adverse boundaries, and extent of such adverse claim ; and all proceedings, except the 
 claim to publication of notice and making and filing of the affidavit thereof, shall be 
 
 P"™?"" grant stayed until the controversy shall have been settled or decided according to law, 
 IS nled . p^. ^jjg adverse claim waived. The adverse claimant shall, within thirty days 
 
 after filing his claim, commence proceedings in a Court of competent jurisdic- 
 tion, 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 
 and the judgment roll shall be sent by the Government Agent to the Chief 
 Commissioner of Lands and Works, and a Crown grant shall issue thereon for 
 the claim, or such jjortion thereof as the applicant shall appear, from the 
 decision of the Court, to rightly possess. If it appears from the decision of 
 the Court that several parties are entitled to separate and different portions 
 of the claim, each or 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. 
 
 Quartz olaimR 71. Quartz claims heretofore pre-empted shall be deemed to be mineral 
 
 previously claims, and shall be subject to the provisions of this Act. 
 
 pre-empted. 
 
I.] APPENDIX A.— MINING STATUTES. 583 
 
 72. It shall be a sufficient compliance with this Act in respect of the repre- Mineral Act, 
 mentation of a " mineral " claim if the sum of two hundred dollars, in money, 1884. 
 
 labour, or improvements, be expended annually upon the claim, to the satisfac- 
 
 tion of a Gold Commissioner, and that the owner shall have obtained a certifi- Annual ex- 
 cate from the Gold Commissioner to that effect, within a year from the location SSno '""^1 
 
 of the claim, and thereafter annually, and shall have recorded the certificate * sufficient™ 
 immediately after its issue. representation 
 
 73. There shall be levied and collected from the owner or occupier of every Crown grant 
 mineral claim of which a Crown grant has issued, an annual tax of one dollar mineral claims 
 for every acre and fractional part of an acre of land conveyed by the grant, ^ P^y^i"""*^ 
 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 P^""^"™- 
 existing Assessment Act, or any Collector appointed under the " Provincial Oollection 
 Revenue Tax Act, 1881," is hereby authorized, as to the mineral claims of tax. 
 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 Xn default 
 may cause the claim upon which the tax is charged to be offered for sale by of payment 
 public auction, of which twenty days' notice shall be posted upon the principal claim may 
 Court House of the district in which the claim is situate, and in one newspaper, be sold, 
 if any, published in such district, and may sell such claim, receive the pur- Notice of sale- 
 chase money, and execute a conveyance thereof to the purchaser. The purchase Application of 
 money shall be applied in payment of the expenses of advertising and the pay- purchase 
 ment of the tax, and any surplus shall be paid into the treasury in trust for money, 
 the owner of the claim. In the event of there being no purchaser, or if the jf „o pur- 
 price offered shall not be sufficient to pay the tax and expenses of advertising, chaser land to 
 the land shall absolutely revert to the Province, and the Crown grant thereof revert to the 
 shall be deemed void. The Assessor or Collector may, before offering the claim Crown, 
 for sale, sue the owner or occupier for the tax, in a summary manner, before The assessor 
 any Justice of the Peace, who may adjudge the same to be paid ; and in default may sue the 
 of payment, the amount due, together with costs, may be recovered by distress owner of the 
 of the goods and chattels of the person against whom the tax may be recovered : J''^'™ ^°^ *™ 
 Provided, that if the owner of any such mineral claim shall establish, to the Tf'„„„„ 
 satisfaction of the Gold Commissioner of the district in which the claim lies, " Sp^Wu ex- 
 that the sum of $200 has )>een expended thereon in labour or improvements in o£inf in°anv 
 any one year, then the tax shall not be levied in respect of such claim for one year tax 
 such year. nottobelevied 
 
 for such year. 
 
 74. Any lawful holder of a mineral shall be entitled to a Crown grant Claim holder 
 thereof on payment to the Government of British Columbia of the sum of $50 may get Crown 
 per acre in lieu of representation and expenditure on the claim. The applicant grant by pay- 
 for a Crown grant under this section shall, in all other respects save represeuta- ^"? S^" 
 
 tion and expenditure, comply with the provisions of this Act, with respect to P®'' ^'"^^' 
 the acquisition of Crown grants. 
 
 PART V. 
 
 Bed-rock Flumes. 
 
 75. It shall be lawful for the Gold Commissioner, upon the application here- claim holder's 
 inafter mentioned, to grant to any Bed-rock Flume Company, for any term not grant for not 
 exceeding five years, exclusive rights of way through and entry upon any more than five 
 mining ground in his district, for the purpose of constructing, laying, and years. 
 maintaining bed-rock flumes. 
 
 76. Three or more free miners may constitute themselves in a bed-rock Bed-rock flume 
 flume company, and every application by them for such grant shall be in writ- companies, 
 ing, and shall state the names of the applicants and the nature and extent of 
 
 the privileges sought to be acquired. Ten clear days' notice thereof shall be r^^^ j , 
 given between the months of June and November, and between the months of notice to 
 November and June one month's notice shall be given, by affixing the same to be given. 
 
584 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 some conspicuous part of the ground, and a copy thereof upon the walls of the 
 Court House or of the Gold Commissioner's oflSce 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 pro- 
 posed 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 application 
 being granted : Every application for a grant shall be accompanied by a 
 4eposit of $125, which shall be refunded if the application be refused, but not 
 otherwise. 
 
 77. Every such grant shall be in writing, signed by the Gold Commissioner. 
 
 78. The holders of such grant shall be entitled to the following rights and 
 privileges, that is to say : — 
 
 (o) The rights of way through and entry upon any new and un worked 
 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 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 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 tona ftde 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 . bono 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 re- 
 pairing 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 neces- 
 sary 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 paymtnt of any 
 damage which may be done to other parties by running such ditch or flume 
 through or over their ground; 
 
 Gold in flumes. W Tbs right to all the gold or other minerals in their flumes. 
 
 Claim holders '^^- '^^ holders of claims through which the line of the conqmny's flumes 
 upon giving is to run may put in a bed-rock flume in their claims to connect with the com- 
 tendays'notiee pany's flume, upon giving the company ten days' notice in writing to that efEect; 
 may construct but they shall maintain the like grade, and build their flume as thoroughly, 
 their own flume and of as strong materials as are used by such company. 
 
 Mineral Act, 
 1884. 
 
 Main line of 
 flume to be 
 staked oS. 
 Protests. 
 
 Fee of 
 
 |125 payable. 
 
 Grant to be 
 in writing . 
 Rights and 
 privileges 
 of holders. 
 Right of way 
 upon new 
 creeks, etc. 
 
 Upon creeks, 
 etc., worked 
 for two years 
 and over. 
 
 On abandoned 
 ground . 
 
 Interpretation 
 of "abandoned 
 ground." 
 Upon creeks 
 discovered 
 within two 
 years. 
 
 Rights of way 
 through claims 
 ligally held 
 and worked. 
 
 Right to use 
 unappropiiat- 
 ed water. 
 
!•] 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 6*™oted and 
 claimholders shall have the right at any time before the abandonment of their i*'>™°on™-' 
 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. 
 
 81. Every bed-rock flume company shall lay at least fifty feet of flume Length of 
 during the first year, and one hundred feet annually thereafter, until completion flumea to be 
 of the flume. built annually. 
 
 82. Any free miners lawfully working any claims where a bed-rock flume Free miners 
 exists shall be entitled to tail their sluices, hydraulics, and ground-sluices into entitled to use 
 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. Registration 
 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 , , to 
 gaged, or otherwise dealt with as such. be personal 
 
 property. • 
 
 PART VI. 
 
 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 Comrais- 
 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 grant rights ot 
 ground in his district, for the purpose of constructing a drain or drains for the ^^{^J 
 drainage thereof. grounds 
 
 87. Every application for such grant shall be in writing, and shall state 
 
 the names of the applicants, the nature and extent of the proposed drain or Application to 
 drains, the amount of toll (if any), to be charged, and the privileges sought to oem writing. 
 be acquired. 
 
 88. A notice of application similar to that required for the right of way Notice to be 
 for bed-rock flumes shall be given. given. 
 
 89. Every application for such grant shall be accompanied by a deposit Deposit of $25. 
 of $25, which shall be refunded in case the application shall be refused. 
 
 90. Such grants shall be in writing, and upon such conditions as the Gold Grants to be 
 Commissioner shall deem reasonable. in writing. 
 
■586 
 
 MARTIN'S MINING CASES. 
 
 [vol'. 
 
 Mineral Act, 
 1884. 
 
 What rights 
 and powers 
 Are.given by 
 the grant. 
 Covenants and 
 conditions. 
 
 Tap drains . 
 
 91. The rights of way and entry above mentioned, the power to assess, levy, 
 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 
 the grantees. The following covenants and conditions on the part of the 
 grantees and their assigns shall be deemed to be part of every grant, whether 
 expressed therein or not: — 
 
 (o) That they will construct such drain or drains of sufiicient size to 
 meet all requirements within the time (if any) therein named; 
 
 (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 condi- 
 tions of the graiitj of all or any part ot 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 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 Com- 
 missioner may direct; 
 
 (<J) 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 construction of drains to be used as tap drains only, three days' 
 notice given as above shall be necessary. 
 
 DamagRs, how 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 
 construction as aforesaid. 
 
 Grants to be 94. Such grant shall be recorded and a fee of $5 paid therefor, save where 
 
 recorded. 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 
 Fees and grant shall be necessary. An annual rent of $25 for each quarter of a mile, 
 
 Tcntal. 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. 
 
 Mining Partnerships. 
 
 95. All mining companies shall be governed by the provisions hereof, unless 
 they shall have other and written articles of co-partnership properly signed, 
 
 Co-partner- 
 ship rules 
 
 renTrtideT^'- attested, and recorded. 
 
 96. A mining partnership shall, unless otherwise agreed upon, be deemed 
 to be a yearly partnership renewable from year to year by tacit consent. 
 
 Duration nf 
 partnership. 
 
 Busiuesfs to be 97. The business of co-partners herein referred to shall be mining and such 
 mining. other matters as pertain solely thereto. 
 
 Majority of 
 
 partners 
 
 •govern. 
 
 Foreman. 
 
 98. A majority of the co-partners, or their legally authorized agents, may 
 decide the manner 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 
 
!■] APPENDIX A.— MINING STATUTES. 587 
 
 sue and be sued iu the name of the company for assessments and otherwise ; and Minnral Act, 
 he shall have power, with the consent of a majority of the company, to bind them 1884. 
 
 by his contracts. The partnership name of a company shall be inserted in the 
 
 record of their claims. Every co-partner, or his duly authorized agent, shall Representa- 
 be entitled to represent his interest in the co-partnership property to the extent tion of interest 
 thereof, by work and labour, and so long as such work and labour be satis- by work, etc. 
 factory to the foreman. In the event of such workman being discharged by 
 the foreman, the Court having jurisdiction in mining disputes may, if requested, 
 summon the foreman before it, and upon hearing the facts make such order as 
 it shall deem just. 
 
 99. A co-partner in any mining company shall, at any meeting thereof, be Co-partner 
 entitled to vote upon any interest or fraction of an interest which he may ho^d ^^Y, "^o'e "fon 
 therein ; but the result of the votes given shall be determined by the number "'^ mterest. 
 of the full interests voted upon and not by the number of co-partners voting at 
 
 such meeting, notwithstanding anything contained in the preceding section. 
 
 100. During the close season no free miner shall be bound to work his claim ; Two-thirds of 
 provided, hov\-ever, that any mining company shall have the right to work their interest may 
 fuine if the co-partners representing two-thirds or more of the full interests decide to work 
 thereof shall so decide, and, in such event, all the members of the company during close 
 shall, as in ordinary cases, be responsible for the expenses of such working. season. 
 
 101. During the time of working all assessments when levied shall be pay- Assessments 
 able within five days thereafter. when payable . 
 
 102. In default of payment within such time, the debtor, after receiving Penalty for 
 notice specifying the amount due by him, shall, if such amount be correct, be default, 
 personally , liable therefor to the company, and his interest in the claims may 
 
 be sold by the cou-]/ai y for the payment of the debt, and any further assessment 
 which may have accrued due 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 jurisdic- 
 tion in mining disputes upon being applied to, shall issue an order directed to 
 the Sheriff to seize a!nd sell any other personal property of the debtor ; notices Notice of sale, 
 of sale shall in either of the above cases, be conspicuously posted up, ten clear 
 days prior to the day of sale, in the vicinity of such mining or other property, 
 and at the Court House nearest thereto. But if such debtor be absent from 
 the district, such notices shall be given as aforesaid fourteen clear days before 
 the day of sale, and if any newspaper be published in the district wherein such , 
 mining or other property is situated, a copy of such notice shall be inserted 
 therein ; such sale shall be by public auction, and the bidder offering to pay o , , . ,■ 
 and paying the full amount due for the smallest portion of the said property ^^^^^^^ ''" '" 
 shall be entitled to possession thereof, and to a bill of sate therefor signed 
 by the auctioneer ; such bill of sale shall confer such title upon the purchaser 
 as the owner had. 
 
 103. After a notice of abandonment in writing shall have been served on the Effect of 
 foreman of a company, by any member thereof, such abandonment shall operate notice of 
 
 as a discharge against all debts contracted by the company after service of abandonment, 
 such notice, and no member shall be deemed to have abandoned an interest 
 without service of such notice. 
 
 104. The last six preceding sections shall apply to every mining claim and Applies sec- 
 mineral claim held iu fee simple or otherwise. tions 98, 99, 
 
 100, 101, 102, 
 Limited Lialility. and 103 to all 
 
 mming claims. 
 
 105. Any mining company, composed of two or more free miners, may jj^^ liability 
 limit the liabilities of its members, upon complying with the requirements f-A- ^f co-partner 
 lowing, that is to say : — • " maybe limited 
 
 Upon filing with the Gold Commissioner or Mining Recorder of the dis- 
 trict a declaratory statement, containing the name of the company, the loca- 
 
588 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 tioB 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. 
 
 106. No person shall locate, purchase, or hold less than one-fourth of one 
 'full interest in any company so constituted. This section shall not apply to 
 
 mineral claims. 
 
 107. Every such mining company shall keep a cori-ect account of its assets 
 and liabilities, together with the names of the shareholderB, and the interest 
 held by each, and shall make out a monthly balance sheet shewing the names 
 of the creditors, and the amounts dTie to each, and file the same among the 
 papers of the company ; and such balance sheet and all the books of the com- 
 pany, shall be open to the inspection of creditors of the company at all reason- 
 able hours. 
 
 108. No member of such company shall, after a bill of sale conveying his 
 interest, or some portion thereof, has been duly reporded, 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 indebted- 
 ness of the company accruing thereafter. 
 
 109. No such company shall declare any dividend until all their liabilities 
 have been paid. 
 
 110. No such company shall be liable for any other indebtedness than that 
 contracted by their foreman, or by their agent duly authorized in writing. 
 
 111. If such company fail to comply with any of the foregoing provisions, 
 they shall be liable to a fine of not less than $25, and not more than $125. 
 
 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. 
 
 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. 
 
 114. Every shareholder of a company duly incorporated, though not a free 
 miner, shall be entitled to buy, sell, hold, or dispose of any mining shares 
 therein. 
 
 PART VIII. 
 
 Administration. 
 
 Deoeaaed min- 115. In case of the death of any free miner, while registered as the holder 
 er's interest, of 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 of t^g deceased, and may cause such mining property to be duly represented, 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 
 shall deem just, and out of the proceeds pay all costs and charges incurred 
 thereby. 
 
 Custody of 117. The Gold Commissioner, or any person authorized by him, shall take 
 
 P'''°P"'y?f'^6- charge of all the property of deceased miners until the issue of letters of ad- 
 ceased mmer. ministration or probate of the will, if any. 
 
 Mineral Act, 
 1884. 
 
 Not less than 
 one-fourtli oi a 
 full interest 
 may be held. 
 
 Accounts to 
 be kept. 
 
 Inspection of 
 same. 
 
 Cessation of 
 
 individual 
 
 liability. 
 
 When divid- 
 end may be 
 declared. 
 What debts 
 the company 
 is liable for. 
 Penalty for 
 non-com- 
 pliance. 
 Declaratory 
 statements 
 and notices to 
 be recorded. 
 Fees for filing. 
 
 Shareholder 
 need not be a 
 free miner. 
 
 to deal with 
 same 
 
1-3 APPENDIX A.— MINING STATUTES. 589 
 
 PART IX Mineral Act, 
 
 1884. 
 
 Leates. 
 
 118. AH grants under this Act for any mining ground, ditch privileges, or Grants by 
 other object, shall be in writing, in the form of a lease to be signed by the lease to be in 
 Gold Commissioner, and by the grantees or lessees. writing. 
 
 119. Save vchere the contrary is expressed in this Act, the foUovping clauses Except other- 
 shall apply : — ^ ^jgg expressed 
 
 Applications for leases, accompanied by a plan of the proposed under- application's 
 taking, are to be sent in duplicate to the Gold Commissioner of the district must 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 appli- 
 cation, 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. 
 
 120: Leases will not in general be granted for a longer term than ten years, Leases for ten 
 or foi: a quantity of ground greater than that herein prescribed, that is to years, 
 say: — 
 
 In dry diggings, ten acres ; Quantity of 
 
 In bar diggings unworked, half-a-mile in length along the high water S^""Ili*° 
 mark : granted. 
 
 In bar diggings worked and abandoned, one mile and a half in length 
 along the high water mark. 
 
 121. Leases as above will not be granted of any land or alluvium which will Leases not to 
 be considered to be immediately available for being worked by free miners as be granted of 
 holders of individual claims, nor will such a lease be granted in any case where land occupied 
 individual free miners are in previous actual occupation of any part of the or available fur 
 premises, unless by their consent. Leases may be renewed, if deemed advisable, {'"'i}^ worked 
 by the Lieutenant-Governor in Council. byFiee Miners 
 
 122. Every such lease shall, without expressing the same, be understood to Reservation of 
 contain a reservation of all rights of the Crown, and all reasonable provisions rights of the 
 for securing to the public rights of way and water, save in so far as shall be Crown under- 
 necessary for the miner-like working of the prMuises demised. The premises stood, alsopub- 
 shall be granted for mining purposes only, and it shall not be competent to the '^° ways, etc. 
 lessee to assign or sub-let them without the previous licence in writing of the Not to assign 
 Gold Commissioner. Every lease shall contain a covenant by the lessee to without 
 mine the said premises in a miner-like way, and also if it shall be thought fit, "o^nc^- 
 
 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 Covenants by 
 lessee refuse or neglect to observe and perform all or any of the covenants lessee. 
 therein contained. 
 
 PART X. 
 Ditches. 
 
 123. The Gold Commissioner may, upon the application hereinafter men- Gold Oommia- 
 tioned, grant to any person, for any term not exceeding ten years, the right sioner may 
 
 to divert and use the water from any stream or lake at any particular part grant ditch 
 thereof, and the rights of way thi-ough and entry upon any mining ground privileges for 
 in his district, for the purpose of constructing ditches and flumes to convey ''^^ years. 
 
590 
 
 MARTIN'S MINING CASES. 
 
 LVOL.. 
 
 Mineral Act, 
 1884. 
 
 Twenty days' 
 notice of appli- 
 cation to be 
 given; 
 
 and a deposit 
 of $25. 
 
 Form and con- 
 tents of appli- 
 cation. 
 
 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 the- 
 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 continuaiice of the grant, apd 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 
 same to some conspicuous part of the ground, and a copy thereof upon the walls- 
 of the Gold Commissioner's office ; and any free miner may protest vvithin 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. 
 
 126. Every such application shall be in writing, and shall state the names 
 of the applicants, the name of the stream- or lake to be diverted, the point of 
 diversion or ditch-h^d, the quantity of water to be taken, the locality for its 
 distribution, and the price (if any) to be charged for the use of such water, and 
 the time necessary for the completion of the ditch. 
 
 Application 127. The Gold Commissioner, for reasonable cause, shall have power to. 
 
 may be refused refuse or modify such application or grant, 
 or modified. 
 
 Grants to be 128. Every grant of water privilege on occupied creeks shall be subject to 
 
 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. 
 
 (Jertain pro- 
 portion of 
 water allowed 
 to miners free. 
 
 Compensation 
 for extra 
 water. 
 
 129. If, after the grant has been made, any free miner or miners locate- 
 and 6ono fide work any mining 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 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 ditch, 
 the loss sustained by any claims using water therefrom and all other reasonable- 
 losses, shall be considered. 
 
 Grants of 
 water for 
 speculative 
 purposes 
 prohibited . 
 
 130. No person shall" be entitled to a grant of water of any stream for the- 
 purpose of selling the water to present or future claimholders on any part of 
 such stream. The Gold Commissioner may, however, grant such privileges as 
 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 miners then 
 using the water so applied for be protected. 
 
 Construction 131. Within sixty days after the grant is made, the grantee shall commence 
 
 of the works to the excavation or construction of the works in which he intends to divert and 
 be prosecuted gonyey tjjg water, and shall prosecute the work diligently and uninterruptedly 
 erant°forfe'ited *<> completion, except in so far as the Gold Commissioner may allow cessation- 
 , of the work. If any grantee shall not comply with this section his grant shall' 
 
 cease and be determined. 
 
 Grants already -^32 Persons who have heretofore obtained grants of water and who have- 
 feftld^unlesr °o' constructed works in which to divert and convey it, and who have not 
 grantees com- diverted or applied it to some useful purposes, must after this Act takes effect,, 
 ply with and within six months thereafter, proceed as in the last preceding section is 
 
 section 131 . provided, or their right ceases. 
 
I.] APPENDIX A.— MINING STATUTES. 59j 
 
 133. Every owner of a ditch or water privilege shall take all reasonable Mineral Act, 
 meana for utilizing the water granted to him ; and if he wilfully take and waste 1884. 
 
 any unreasonable quantity of water, the Gold Commissioner, if such offence be 
 
 persisted in, may declare all rights to the water forfeited. Waste of 
 
 water nut 
 
 184. The owner of any ditch or water privilege may distribute the water to P^™"*'^^. 
 such persons and on such terms as he may deem advisable, within the limits uT "d'^^'h'^t'rt 
 mentioned in his application : Provided always, that such owner shall be bound ^^ gvlntee 
 to supply water to all applicants, being free miners, in a fair proportion, and 
 shall not demand more from one person than another, except where the difficulty 
 of supply is enhanced. 
 
 135. Any person desiring to bridge any stream, claim, or other place, for Bridging niin- 
 any purpose, or to mine under or through any ditch or flume, or to carry water ing through 
 through or over any land already occupied, may, in proper cases, do so with ditches and 
 the written sanction of the Gold Commissioner. In all such cases, the right of carrying water 
 the party first in possession, whether of the mine or of the water privilege, is over occupied 
 to prevail, so as to entitle him to compensation if the same be just. ^^ s, e e , 
 
 136. In measuring water in any ditch or sluice, the following rules shall be Rules for 
 observed : — The water taken into a ditch or sluice shall be measured at the measuring 
 ditch or sluice head. No water shall be taken into a ditch or sluice except in water. 
 
 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 Before enter- 
 enter upon and occupy any part of a registered claim, or to dig or loosen any ing on a regis- 
 earth or rock, within four feet of any ditch not belonging solely to the regis- tered claim 
 tered owner of such claim, three days' notice in writing of such intention shall notice must be 
 be given before entering or approaching within four feet of such other property, g'^™- 
 
 138. Any person heretofore or hereafter engaged in the construction of any Diverting or 
 road or work may, with the sanction of the Gold Commissioner, cross, divert, or crossing 
 otherwise interfere with any ditch, water privilege, or other mining rights ditches, 
 whatsoever, for such period as the said Commissioner shall direct. 
 
 139. The Court having jurisdiction in mining disputes shall order what xhe court to 
 compensation for every such damage or interference shall be paid, and when, settle ocmpen- 
 and to whom, and whether any and what works damaged or affected by such sation therefor 
 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- QqI^ Commis- 
 sioner shall certify in writing that the persons named therein were duly author- sioner to give 
 ized to create the damage or interference aforesaid, and have duly fulfilled the certificate of 
 requirements herein mentioned, and have also duly satisfied and discharged all authority. 
 claims in respect of the damage or interference referred to. 
 
 141. Every such certificate shall be recorded by the Mining Recorder in a Certificate to 
 book to be kept by him for that purpose, which shall be at all times open to be recorded, 
 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 to be 
 of Judicature of all matters and things therein contained or referred to, and suificient in, 
 shall discharge the person or persons to or for whom the same is granted from law courts. 
 all liability with respect to the damage or interference therein mentioned. 
 
 148. The Court having jurisdiction in mining disputes shall, upon the appli- Mining court 
 cation of any party interested therein, and after notice to all whom it may to decide min- 
 concern, enquire into and decide all matters arising out of or connected with ing disputes. 
 
592 MARTIN'S MINING CASES. [voL 
 
 Mineral Act, any such damage or interference as aforesaid, and such decision shall be final 
 1S84. 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. 
 
 Appeal in all j^ Where such amount or value shall exceed five hundred dollars, any 
 
 $500^ °^"^ party aggrieved by such decision may appeal against the same in the manner 
 provided in Part I. of this Act. 
 
 Works for the j^^g ijijjg owners of any ditch, water privilege, or mining right, shall, at 
 ditch to b their own expense, construct, secure, and maintain all culverts necessary for 
 at the owner's '^^ passage of waste and superfluous water flowing through or over any such 
 expense. ditch, water privilege, or right. 
 
 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. 
 
 I 
 
 Damages to be 147. The owners of any ditch, water privilege, or right, shall be liable and 
 made good 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. 
 
 Notices, how 148. If any written notice to the party intended to be affected thereby be 
 
 ^ven. 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. 
 
 Saves public 149. Nothing herein contained shall be construed to limit the right of the 
 
 rights. 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 GlcMses and Clauses of Indemnity. 
 
 Summary 150. Any person wilfully acting in contravention of this Act, or refusing 
 
 power in oases to obey any lawful order of the Gold Commissioner or of any Judge presiding in 
 of disobedience 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 
 Penalties, how ^ fine not exceeding two hundred and fifty dollars, or to imprisonment for any 
 recovered. j.gj,jjj jjqj. exceeding three "months. 
 
 Application of 151. All fines and penalties imposed or payable under this Act may be 
 fines, etc. recovered by distress and sale of any mining or other personal property of the 
 
 offender. 
 
 152. All fines, fees, and penalties collected under this Act shall be paid into 
 the Provincial treasury. 
 
 Saves existing 153. Nothing herein contained shall, save where such intention is expressly 
 mining rights, stated, be so construed as to affect prejudicially any mining rights and inter- 
 ests 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. 
 
 Short title. 154. This Act may be cited for all purposes as the " Mineral Act, 1884." 
 
^•] APPENDIX A.— MINING STATUTES. 593 
 
 49 Vict. Chap. 14. Mineral Am- 
 
 endment Act, 
 
 An Act to amend the " Mineral Act, X88i." ^f^' 
 
 I6th April, 1886.] 
 
 HER MAJESTY, by and with the advice and consent of the Legislative 
 Assembly of the Province of British Columbia, enacts as follows : — 
 
 1. In any mining cause or suit either party may require that the issue of Either party 
 fact shall be tried by a jury of five persons. may require 
 
 jury. 
 
 2. The costs of the jury shall in the first instance be borne by the party costs of jury 
 requiring the same. 
 
 3. And for the avoidance of any doubt it is hereby declared that the Gold Qqi^ Cbmmis- 
 Commissioner, or any Judge having jurisdiction in mining causes, may direct sioner may 
 the issuing of writs of capias ad respondendum, ne exeat refino, and capias ad issue ca. re. 
 satisfacienOum in all cases in which by law he has jurisdiction over the sub- and other like 
 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 
 
 nature. 
 
 4. The Court having jurisdiction in mining causes shall also have juris- Minine Court 
 diction to entertain and adjudicate upon any and all personal claims or dig- Jo try all min- 
 putes arising within the jurisdiction of such Court between i)ersons engaged ing disputes. 
 in mining, and in respect of supplies furnished to persons engaged in mining. 
 
 5. Sections 42, 43 and 44 of the " Mineral Act, 1884," shall not apply to Mineral claims 
 mineral claims. 
 
 6. Section 62 of the said Act is hereby amended, so as to read as follows : — 
 
 " Any free miner desiring to acquire a right to mine any lands for minerals, gj^g fop^, and 
 as above defined, shall, subject to the provisions of this Act with respect to locating of 
 land 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, 
 and all the provisions of the ' Mineral Act, 1884,' relating to ordinary mining 
 claims shall, when the same are applicable, apply to mineral claims." 
 
 7. Section 68 of the said Act is hereby amended by striking out in sub- 
 section (d) the words " one thousand " and substituting in lieu thereof the 5™^Ka ^^° 
 words " five hundred." ""° *"*■ 
 
 8. Section 72 of the said Act is hereby repealed, and instead thereof the 
 following is enacted : — 
 
 " Any free miner having duly recorded and located a mineral claim shall j^nn^al expen- 
 be entitled to hold the same for the period of one year from the recording of diture of $100 
 the same, provided that within the first three months from such recording in money or 
 he shall have expended upon the claim itself money or labour to the amount or labour, 
 value of one hundred dollars, and shall have satisfied the Gold Commissioner 
 of such expenditure, and obtained from him and recorded within such three 
 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 Certificate 
 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 three months from such re-recording money 
 
 M.M.O. 38 
 
"694 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Mineral Am- or labour upou the claim to the amount or value of one hundred dollars, to the 
 en(ta!«tt Aet, satisfaction of the Gold Commissioner, and shall have obtained and recorded. 
 1886. within such three months a certificate of such expenditure." 
 
 which Gold ^' '^^^ Gold Commissioner, for the purpose of granting any such certificate. 
 
 Commissioner or the laying over of any claim, may act upon declarations made before any- 
 may grant oer- Justice of the Peace, Notary Public or Mining Recorder, or before himself, 
 tificate. 
 
 Amends sec- 
 tion 74. 
 
 10. Section 74 of the said Act is hereby amended by striking out the figures 
 150 " and inserting in lieu thereof the figures " $25." 
 
 Holders of 11. In cases where the holders of two or more mineral claims upon the same- 
 
 claim on same lode desire to unite for the purpose of prospecting one of such claims, the Gold 
 lode ntay unite tJommissioner may, in his discretion, lay over the other mineral claims for 
 to prospect gygjj jjjjjg g^jjj upon such conditions as he may think fit, but the work or money 
 culms *"'' *" ^^ done or expended on the one claim shall not be applicable in any manner 
 to tlie claims laid over. 
 
 Short title 
 
 12. This Act may be cited as' the " Mineral Amendment Act, 1886." 
 
 Miii^ralAm- 50 ViCT. Chap. 22. 
 ertawieht Act, 
 1887. 
 An Act to amend the " Mineral Act, 188Ji," and amending Acts. 
 
 [7tA April, 1S8T.'\ 
 
 HER MAJESTY, by and with the advice and consent of the Legislative- 
 Assembly of the Province of British Columbia, enacts as follows : — 
 
 Leases of creik i. Section 120 of the "Mineral Act, 1884," is hereby amended by adding, 
 claims,. ^j. ;|.j,g gjjj ^f ^]jg gJ^J^ section, the following words : — 
 
 " In creek claims on abandoned creeks, one mile and a half in length." 
 
 Section 19 2. Section 19 of the said Act is hereby amended by striking out the words 
 
 amended. " Provided always that," on the sixth line thereof. 
 
 Representa- 3. The section substituted by the " Mineral Amendment Act, 1886," for sec 
 
 tion of claim. 72 of the " Mineral Act, 1884," is hereby amended by striking out the word 
 "three," wliei?ever the same occurs in the said section, and substituting there- 
 for the word " six." 
 
 Free miner to ^ Every free miner, on application to the Gold Commissioner of the district, 
 m1riit.g°Aott shall' be entitled to a printed copy of the Mining Act. 
 free. 
 
 Proof of expen- 5. Section 8 of the "Mineral Amendment Act, 1886," is hereby amended by 
 diture on claim jQgerting the words " or Jlining Recorder " after the words " Gold Commis- 
 sioner " on the sixth line. 
 
I.] APPENDIX A.— 'MINING STATyTES. 59'5 
 
 Consolidated Statutes (1888) Cjiap. 83- Consol. Stat. 
 
 Min. Act, 1888 
 An Act relaPtng to Gold and other Minerals emvepting Gftal. 
 
 HER MAJESTY, by and 'with the advice and consent of the Legislative 
 AesBmbly of the Province of British Columbia, enacts as follows : — 
 
 Short Title. 
 
 1. This Act may be cited as the " Mineral Act," 1884, ch. 10, aec. 154. Short Title. 
 
 Interpretation. 
 
 2. In the construction of this Act the following expressions shall have the Interpretation. 
 foJtowing meanings respectively, unless inconsistent with the context : — 
 
 " Mine," shall mean any land in which any vein, stratum, or natural bed Mme.. 
 of earth or rock shall be mined for gold or other minerals except coal ; 
 
 " Claim " shall mean the personal right of property or interest in any mine, ^'*"" - 
 and may include a mineral claim, and in the term, " mining property " shall 
 be included every claim, ditch, or water privilege used for mining purposes, and 
 all other things belonging thereto or used in the working thereof ; 
 
 ■"Bar diggings" shall mean any mine over which a river extends when Bar diggings, 
 in its flooded state ; 
 
 " Dry diggings " shall mean any mine over which a river never extends ; Dry diggings. 
 
 The mines on benches shall be known as " bench diggings," and shall for Bench dig- 
 the purpose of defining the size of such claims be excepted from " dry dig- gings. 
 gings ;■" 
 
 " Streams and ravines " shall include water-courses, whether usually contain- Streams and 
 ing water or not, and all rivers, creeks and gulches; ravines. 
 
 "Ditch " shall include a flume or race, or other artificial means for con- Ditch, 
 ducting water by its own weight, to be used" for mining purposes ; 
 
 " Ditch head " shall mean the point in a natural water-course or lake where Ditoh head, 
 water is first taken into a ditch ; 
 
 " Free miner " shall mean a person named in, and lawfully possessed of, l*'™^ niintr. 
 a valid existing free miner's certificate, and no other ; 
 
 " Record," "register," and "registration," shall have the same meaning; Record, etc. 
 
 " Full interest " shall mean any mining claim or mineral claim of the full Full interest. 
 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 claims are Close season. 
 in general laid over ; 
 
 " Cause " shall include any suit or action ; Cause. 
 
 " Judgment " shall Include " order " or " decree ;" Judgment, etc.. 
 
 "Mineral" shall include all minerals, precious or base (other than coal). Mineral, 
 found in veins or lodes, or rock in place, and whether such minerals are found 
 separately or in combination with each other ; 
 
 "'Real estate" shall mean any mineral land held in fee simple under this Real estate. 
 or any Act relating to Gold Jlines, or to minerals other than coal ; 
 
 " Joint "Stock Company" .shall mean any company, duly incorporated for Joint Stock 
 niining, purposes. 1884, ch. 10, sees. 1 and 61. Company. 
 
596 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Consol. Stat. 
 Min. Act, 1888 
 
 Division of 
 Act into parts. 
 
 Gold Commis 
 sioner to be 
 appointed by 
 the Lieuten- 
 ant-Governor. 
 
 Division, into Parti. 
 
 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. 
 
 1884, ch. 10, sec. 3. 
 
 PART I. 
 
 Powers of Gold Gommissionere and County Court Jurisdiction tn Mining Cases 
 
 and Appeals. 
 
 4. The Lieutenant-Governor in Council may from time to time appoint such 
 persons as he shall think proper to be respectively Chief Gold Commissioner 
 and Gold Commissioners, either for the whole Province or for any particular 
 districts therein, and from time to time in like manner fix and vary the limits 
 of and 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 
 shall 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 
 sioner. 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, 
 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- 
 vided, however, that the Gold Commissioner shall, if desired by both parties 
 to a cause in cases 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. 
 
 Mining juris- 
 diction given 
 to County 
 ■Courts. 
 
 7. Every County Court shall exclusively have and exercise within the limits 
 of its district all the jurisdiction, rights, powers, and privileges of a Mining 
 Court, and such jurisdiction may be distinguished as the mining juris^tion, 
 of the said County Court; and every Judge authorized to preside in such 
 County Court shall, in the exercise of such mining jurisdiction, 
 have the like powers and authorities as may be exercised by any Gold Com- 
 missioner 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, writs, 
 or other process, and all papers or other documents in the mining cause insti- 
 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 
 
I-] APPENDIX A.— MINING STATUTES. 597 
 
 County Court may, notwithstanding anything contained in this section, from Consol. Stat, 
 time to time, make, vary, or repeal any rules for regulating the forms or Min. Act, 1888 
 
 proceedings or costs in mining causes within the jurisdiction of his Court. 
 
 1884, ch. 10, sec. 9. 
 
 8. The provisions of the last preceding section shall not have effect Section 7 to 
 in such portions of the Province as may be defined by order of the Lieutenant- apply only to 
 Governor in Gouncil, and such order may from time to time be varied or ^"'='' P*'''^ °f 
 revoked. 1884, ch. 10, sec. 10. '"» Provmce 
 
 as the Lieuten- 
 
 9. Notwithstanding anything contained in the " Gold Mining Amendment "*"' Governor 
 Act, 1873," or in any Crown grant issued under the said Act, or under this ""^^ ^"^''^■ 
 Act, it shall be lawful for the Court having Jurisdiction in mining disputes, Ordinary 
 
 in its discretion, and with or without any terms or conditions, to allow to the ?'*"" o™"'^''^ 
 owners of claims not held in fee simple all such rights or privileges in and nrivlleaseover 
 over mineral or other claims held in fee simple as may be allowed in and over claims held in 
 ordinary claims ; and owners of mineral or other claims held in fee simple fee simple as 
 shall be entitled to the same rights and privileges as owners of ordinary claims, such owners in 
 1884, ch. 10, sec. 48. fee have over 
 
 ordinary 
 
 10. Every Court having jurisdiction in mining disputes shall, with refer- claims, 
 euce to real estate held under the " Gold Mining Amendment Act, 1873," or Powers of 
 under this Act, and notwithstanding any law to the contrary, have the same Mining Courts 
 powers and authorities to decide all matters or disputes arising between the '".deciding 
 owners thereof, or between the owners thereof and any third person, or between pu^e's"^ 
 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 action, 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. 1884, ch. 
 10, sec. 49. 
 
 11. The Court having jurisdiction in mining causes shall also have jurisdiction Mining Court 
 to entertain and adjudicate upon any and all personal claims or disputes aris- to try all 
 ing within the jurisdiction of such Court between persons engaged in mining, minmg dis- 
 and in respect of supplies furnished to persons engaged in mining. 1886, ch, P"'^^- 
 
 14, sec. 4. 
 
 12. The Gold Commissioner, or any Judge having jurisdiction in mining Gold Commis- 
 causes, may direct the issuing of writs ot capias ad respondendum, ne exeat sioner may 
 regno, and capias ad satisfaciendum, in all cases in which by law he has juris- issue oa.re. 
 dktion over the subject-matter of the suit, but under and subject to such condi- ""? other hke 
 tions as a Judge of the Supreme Court might usually require in application of a ^'^" ^' 
 similar nature. 1886, ch. 14, sec. 3. 
 
 13. The Gold Commissioner may, in cases of disputed boundaries or meas- Mining 
 urements, employ a surveyor to mark and define the same, and cause the Surveyor. 
 reasonable expense thereof to be paid by either or both of the parties inter- 
 ested therein. R. L. No. 90, sec. 9. 
 
 14. The Gold Commissioner may lay over any or all claims for such period Laying over 
 and reasons as he may think proper. 1884, ch. 10, sec. 5, part. claims. 
 
 15. The Gold Commissioner may prescribe the number of miners who Working pros- 
 shall be required to work in prospecting a set of claims until gold in paying pecting claims, 
 quantities is found. 1884, ch. 10, sec. 45. 
 
 16. For the more convenient working on back claims on benches or slopes, Tunnels may 
 the Gold Commissioner may permit the owners thereof to drive a tunnel through be driven 
 the claims fronting on any creek, ravine, or watercourse, upon such terms as through ad- 
 shall seem expedient. 1884, ch. 10, sec. 56. J*°*"' <'l*'"'^- 
 
 17. The Gold Commissioner may mark out a space of ground for deposits of Deposit ot 
 leavings and deads from any tunnel, claim, or mining ground, upon such terms leavings, 
 as he may think just. 1884, ch. 10, sec 60. 
 
598 MAETlN'S MINING CASES. [vofc. 
 
 Consol. Stat. 18. The Gold Commissioner shall ba\»e the power to summarily ordeir atty 
 
 Min. Act-, 1888 mining wori£s to be so carried on' as not to interfere with or endtoger the 
 
 T safety bf^ the public, any public work or highway, or any mining property, mih- 
 
 J^otection ei-a^j daims, mining claims, bed-rock drains, or bed-rock flumes ; arid' any- 
 
 gerou^ works, abandoned works may by his order be either filled up or guarded to his satis- 
 
 ■ faction, at the cost of the parties who may have constructed the same, or, in, 
 
 their absence, upon such terms as he shall think fit. 1884, ch. 10, sec. 8. 
 
 'C6mpen^^titJn, 19. It shall be lawful for the Gojd Commissioner upon being so requested, 
 how allotted, jg mark out for business purposes or gardens, on or near any mining, grolmd 
 not previously pre-empted, a plot of land of such size as he shall deem ad* 
 visable, to be held subject to all the rights of free miners to enter upon and' 
 use such lands for miniilg' purposes, upon reasonable notice to quit being given 
 f to the occupied, such notice to be subject- to the approval of ths lioki Com- 
 
 missioner ; 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 grantees of such plot, or their assigpees, 
 of the Gold Commissioner. E. L. No. 90, sec. 13. 
 
 Jurisdiction 20. Where disputes arise concerning mining property, portions whereof are 
 
 beyond dis- situated in adjoining or different districts, the Gold Commissioner of either of 
 triot in certain such districts before whom the dispute is first brought shall determine it. R. 
 oases. -^ jjo_ gO^ sec. 8. 
 
 The hearing of 21. The hearing of any summons, plaint, or other, process in any Mining 
 summouses. Court shall not be deferred beyond the shortest reasonable time necessary in 
 etc., in Min- the interests of all parties concerned therein. 1884, ch. 10, sec. 4. 
 ing Court not 
 tube deferrtid. 
 
 Prescribed 22. No prescribed form shall be necessary, provided that the substance of 
 
 forms unnece,s- 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 ; andsuch summons may, by leave of the Gold' Gommissioner, 
 be amended, if requisite, by either party upon such terms as he may -impose, 
 aud the sum- of ten dollars shall be charged for every summons so issued. E. 
 L. No. 90, sec. 7. 
 
 Questions to 23. In all 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 ha\'e the same virtue and effect as if rendered in Court. 1884, ch. 
 10, sec. 14. 
 
 Either party 24. In- any mining cause or suit, either party may, require that, the issues- 
 
 may require of fact shall be tried by a jury of five persons. 1886, ch. 14, sec. 1. 
 jury. 
 
 Costs of jury. 25. The costs of the jury shall in the first instance be borne by the party 
 
 requiring the same. 1886, ch; 14, sec. 2. 
 
 Jurors and 26. The attendance of jui:ors and witnesses in any mining cause in the 
 
 witnesses. County Court, or in the Mining Court, may be obtained and enforced' accotding 
 to the practice of the County Court, and such jurors and witnesses shall be en- 
 titled, for their attendance to receive such compensation as the Court may di- 
 rect. 1884, ch. 10, sec. 11. 
 
 p. , 27. Any Judge of the Supreme Court may, with the advice and consent of 
 
 prmSed'ing the Gold Commissioner of any particular district, from time to tinife,jhake, 
 costs, eto; ' repeal, aud> alter any rules and; regulations for the conduct of the business be- 
 fore, suohi Gold Commissioner, and for the costs incident thereto. R. L. 
 No. 90, sec. 14. 
 
!•] APPENDIX A.— MINING SXATOTES. 5.99^ 
 
 28. Whiere any mining, cause, wliergin tlie sum of damages souglit to be C6nspl. Stat, 
 recovereii, sftftH be less. than two hundred and fifty dollars, is' brought in. tV Mitt.' Act, 1888 
 first instance, before the, Supjeme Court, it sha,n be lawful for tlie Court,' " — — 
 .after issue joined, to direct the cause to be tried' before any particular Gold Causes under 
 Commissioner, upon such terms as the Court shall think fit. R. t. No. 90; *2S0: 
 sec. 15. 
 
 29., An appeal shall lie from any judgment of a Mining Court or of a Provisions as 
 ■County Court, in a mining cause to the Supreme Court at Victoria, sitting as to appaalj^, 
 a Full Court. The appellant shall, within tten daiys from the date of such from:Mming, 
 judgment, give notice of the appeal to the other party, and also give security, Courts, 
 to be, appi,-pYed , of bjf the Judge of the Court appealed from, for the costs, of 
 appeal, and for fulfilling any orders which may be made in tte course of such 
 appeal by the Suprem,e Courf; and the said Supreme Court may either 
 order a new trial on such terms as it shajl, think fit or order Judgment to be 
 •entered for either party, or try the case de novo, and make such order as to 
 costs a? may be, deemed proper. The appeal may be in the foi^ of a case 
 settled. and signed by thei parties or their solicitors; and if they cannot agree, 
 the judge of. the Court, appealed fron^ may settle and sign the same upon 
 being, applied to by, the parties or either of them : Provided, that in the elec- 
 toral djBtrict of Cariboo the appeal shall lie to a Judge of Assize and Nisi Apjaeals in 
 Prius, and if either^ party be dissatisfied with his decision he may appeal thepe- Cariboo 
 from to the Supreme Court at Victoria, sitting as a Full Court, upon giving, IJistnot. 
 within fowr days from thCj, decision of , the Judge of Assize, notice of appeal to 
 the opposit:^ party, and, within ten days from such decision,, or within such 
 delay as such Judge may allow or as may be allayed by the Appellatp Court, 
 furnishing such security, in th,^ matter of th^ appeal as the Judge of Assize 
 may direct. 1884, ch. IQ, sec. 12.' 
 
 30. Appeals from the decision on mining questions of any Judge of the Appeals from 
 Suprem,^ Court, when presiding in a County Court, shall be allowed as in County 
 ordinary cases of appeals from' County Courts, or as may be provided by Courts, 
 ruies. for regulating the practice and l)rocedure of the Supreme Court. 1884, 
 
 c. 10, B. 13. ' 
 
 PART II. 
 
 Free Mmers, and their Privileges. 
 
 31. Every person over, but not under, sixteen years of age shall be entitled Who my be a 
 tq hold.aiClajm. Miflorg, who shall become. free miners, shall, as regards their free miner, 
 mining property and liabilities conti:acted in connection therewith, be treated ^^1®^.™'"*^^ 
 as of full age. 1884, ch. 10, sec. 15. betrea^ldii 
 
 adults. 
 
 32. Upon payment of the sums hereinafter mmtioned any such person djall jyjj^jg^g. ^g^. 
 be entitled to a free miner's certificate signed; by a Gold. ComDiissi<Wer ^jg^g^tg 
 
 or Mining Recorder, and in the following form : — 
 
 BRITISH COLUMBIA. 
 
 Free MiMer's Certificate. 
 
 Not Transferable. 
 Date, No. 
 
 Valid for year only. 
 
 This is to certify that of, has paid me thi?, day the sum ,jroj.„ of 
 
 of , and is entitled' to alj the, rigjits . apd privileges of a free,,miper, certificate 
 
 for year from the date hereof. 
 
 {Siffnature of. Gold Vqim^saioner, Assistant &old Commissioner, or Mining 
 Recorder, as the ca^c may 6e.) 
 
600 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 33. Any company incorporated under 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 out a free miner's certificate. 1884, ch. 10, sec. 17. 
 c. 10, s. 18. 
 
 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 bp giyen or made in the corporate name of the company. 1884, 
 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 matexial irregularity be shewn in 
 
 \ respect thereof, every original or substituted free miner's certificate shall be 
 
 evidence of all matters therein contained. 1884, ch. 10, sec. 21. 
 
 Right to enter 37. Every free miner shall, during the continuance of his certificate, but 
 and mme not longer, have the right to enter and mine upon any waste lands of the Crown, 
 
 Crown lands, jjqj. j^j. ^j^g j.jjjjg j,eing lawfully occupied by any other person. And may also, 
 during the continuance of his certificate, enter upon any Crown lands, or lands 
 covered by timber leases, to cut timber for mining purposes. 1884; ch. 10, sec. 
 22 ; 1888, ch. 34, sec. 13. 
 
 Consol. Stat. 
 Min. Act, 1888 
 
 Incorporated 
 companies 
 may be free 
 miners. 
 Certificate to 
 be granted 
 and records 
 made to be in 
 corporate 
 name. 
 Certificate 
 granted may 
 be for one or 
 three years. 
 Not trans- 
 ferable. 
 
 Lost 
 certificate. 
 
 Cutting 
 timber for 
 mining 
 purposes. 
 
 Compensation • 38. In the event of such entry being made upon lands already occupied for 
 to prior other than mining purposes previously to ^ntry, full compensation shall be made 
 
 occupants. f^ jjjg 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 juris- 
 diction 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 or to 
 
 terests, etc., any mining claim, minerar claim, or any minerals therein, or in or to any 
 only acquired mining ditch, unless he shall be, or in case of disputed ownership unless he 
 by free miners, shall have been at the time of the dispute arising, a free miner. 1884, ch. 10, 
 sec. 24. 
 
 Miners, etc., 40. No person shall be entitled to recover any wages for labour performed 
 
 without oerti- as a miner in any mining claim or mineral claim, or on any bed-rock flume, 
 ficate cannot bed-rock drain, or ditch, unless he has had a free miner's certificate at the time 
 recover wage?. ^^ j.jjg performance of such labour. Every person engaged in mining for 
 
 minerals (other than coal) shall take out a free miner's certificate. 1884, ch. 
 
 10, sec. 25. 
 
 Recording 
 claims. 
 
 Form and 
 contents of 
 record book. 
 
 PART III. 
 
 Begisiration of Claims, and Free Miner's Qeneral Rights. 
 
 41. Every free miner locating a mining claim or mineral claim must record 
 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 ofBce of the said Gold Commissioner or Mining 
 Recorder. One additional day shall be allowed for such record for every addi- 
 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, the 
 
I-] APPENDIX A.— MINING STATUTES. 601 
 
 name of each locator, the number of his certificate, the locality of the mine, Consol. 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 ofBce 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, see. 12. 
 
 42. The Lieutenant-Governor in Council may appoint any person to be a Mining 
 Mining Recorder in and for any part of the Province, for the purpose of issuing Recorder, 
 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 Under certain 
 that the provisions of this Act as to free miners' certificates and records of cireurastanees 
 mining property cannot be justly applied or enforced by reason of there being miners may 
 no Gold Commissioner or Mining Recorder in the locality, it shall be lawful for "nd annotnt a 
 the miners of such locality to hold meetings at such times and places as may Kecorder. 
 
 be agreed upon, and at such meetings, by a two-thirds vote, to make rules 
 consistent with this Act for their good^^overnment, 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 Commissioner or Mining Recorder may require any miner Certificate to 
 applying to record a claim to produce his certificate, and upon non-production be produced 
 thereof to refuse to record such claim or any interest therein. 1884, ch. 10, before record 
 sec. 30. made. 
 
 45. Every free miner or company of free miners may record his or their provision as t& 
 claim or set of claims in one record on payment of two dollars and fifty cents ; records. 
 
 and every " leave of absence " may contain all the interests exempted from 
 representation. Two dollars and fifty cents shall be charged for such " leave 
 of absence " and for any bill of sale or other document or matter recorded. 
 1884, ch. 10, sec. 34. 
 
 46. All claims, not being real estate, must be recorded annually ; but any Re-recording. 
 free miner may record his claim for a period of two or more years, upon pay- 
 ment of two dollars and fifty cents for each year included in such record. 1884, 
 
 ch. 10, sec. 29. 
 
 47. The books of record shall, during reasonable hours, be open to public Books open to 
 inspection free of charge. 1884, ch. 10, sec. 35. inspection. 
 
 48. Every copy of, or extract from, any record in the said books, certified Certified ex- 
 to be a true copy or extract by the Gold Commissioner or Mining Recorder, tracts there- 
 shall be received in any Court as evidence of the matters therein contained, from to be re- 
 and the sum of fifty cents shall be charged for each copy or extract so certified. ^"^ '" ®^'" 
 1884, ch. 10, sec. 36. 
 
 49. Every bill of sale of a mining interest, or of any fraction thereof, shall Recording 
 be recorded within the time prescribed for recording pre-emption claims ; and bills of sale. 
 
•602 MARTIN'S WN-ING CASKS., [vol. 
 
 Qpwsol. Stat, if any owner of, suchi bill oEsale shalL wilfully nfigleet, or refuse so to do^ bei 
 Mm. Act, 1888'slaall be liable to such fine not exceeding fifty dollars, as any Gold Commissioner 
 may order. 1884, ch. IQi see. 37. 
 
 x^t»^ ^' ■"■^ "^^^ "^ ^^^ dispute, the title to clainjs will be recognized, according 
 
 nizedi aoeofd- *° *^* priority of their registration, subject to. any question as to the validity 
 ing to priority ^^ ^^^ record itself, and subject f ujf ther to the terms, condliiions, and privileges 
 of registration, coatained in see. 41 of this Act. 1884, ch. 10,, sec. 31. 
 
 Transfers of 51. No transfer of any mineral or other claim, or of any interest therein, 
 
 claimsto.be shall be enforceable unless the same or some memorandum thereof shall be in 
 entoroed, inuat/.,^i(.;„g^ gj^j^^^, j^y ^.j^g transferrer, or by his agent authorized in writing, and 
 andregStered registered with the Gold Commissioner or Mining Recorder. 1884, ch. 10,' 
 ■ see. 82. 
 
 Transfers of ^2. The transfer of any real estate acquired under the provisions of the 
 
 real estate ao- "Gold Mining Amendment Act, 1873," or under this or any Act- relating to 
 quired under minerals other than coal, shall be in- writing, signed' by the transferrer or his 
 Mhiin A^'ts ' ^^ent in writing, and need not be by deed or under seal. 1884, ch. 10, sec. 33. 
 
 A free miner 53. Every free miner shall be allowed to hold at the same time, any number 
 
 may hold any of, clqims acquired by purchase, but only two claii^s.bypre-etnptioii in the same 
 number of locality, save as hereafter provided, viz.: — One. hill claim and one o,th,er claiin,; 
 cha^'^bu^onlv^*'''-'®'^*'' ^^y^^'^'^^t t** the laws as to record, occupation, and othecwise, foj;, the 
 two by pre- *™* being in force. And every free miner may sell, mortgage, or dispose o|, 
 emption, ex- the same- He shall also< be entitled, in addition to the above, to hold a pre- 
 cept in certain emption claim on each (but not on the, same) hill, creek, ravine, or bench, 
 cases. 1884, ch. 10, sec. 38 ; 1888, ch. 34, sec. 14. 
 
 Miner's inter- 54. The interest of a free rniner in his claim shall, save as to claims held 
 nVint.tel i^'i"r''^ ™ '^® Simple, be deemed to be a chattel interest, eq,u,ivalent , to a lease, for, s.ijch| 
 period as the same may have been recorded, renewable at the end thereof, and 
 subject to the conditions as to forfeiture, working, representation, registration, 
 and otherwise, for the time being in force with respect to claims. 1884, ch. 10, 
 sec^ 39. 
 
 chattel inter, 
 est 
 
 Definition of a ^^- Every free miner shall, during the continuance of his certificate, have 
 
 miner's rights the exclusive right of entry upon his own claim, for the miner-like working 
 
 to 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 
 
 No surface duly registered and faithfully and not colourably worked ; but he shall have no 
 
 rights. surface rights therein: Provided also, th^t 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, andi 
 
 upon such terms as may to him seem reasonable. 1884, ch. 10, sec. 40. 
 
 Right to a fair 50. In addition to the above rigjits, every regjstered free miner shall be 
 share of water entitled to the use of so much. of the water naturally flowing through or past 
 necessary to his cla,im, and not already lawfully appropriated, as shall in the opinion of the 
 ■work claim. Court having jurisdiction in mining disputes be necessary for the due working 
 thereof. 1884, ch. 10, sec. 41. 
 
 Lavine over ^'^- ^° claim located and recofde^ in any district within fourteen days 
 
 claims record- before, or at any time after the claims therein shall have been laid over to the 
 ed inclose ensuing season, or, other specific date, shall be deemed to be so laid over, unless 
 season. so mucti Work shall have been iona fifle expended thereon as shall,- in the 
 
 opinion of the Gpld Commissioner, fairly entitle him to have such claim laid' 
 
 over. 1884, ch. 10, sec. 42: 
 
 When olaiiiie 58. A claim shall be deemed to be abandoned and open to ^ the, occupation of 1 
 
 shall be deem- any free miner when the same shall have remained unworked on working days 
 
 ed abandoned. b|y, the registered holder, . thereof for th? space, of seventyrt^O hqurs, unless 
 
 sickness, or other reasonable cause be.-sljewn. 18§4i, ch. 10,rsec. 43. 
 
!•] APPENDIX A.— MINING STATUTES. g03; 
 
 59. Every full sized claim or full interest, as defined in this Act, shall be Consol Stat 
 
 represented and hona ftOe workeA by the owner thereof, or by some person on his Mm. aAk iss« 
 behalf. 1884, ch. 10. sec. 44. 
 
 Full sized 
 
 GO. The three last preceding sections . shall not apply to mineral claims. be'^^rkedT 
 1884, ch. 14, sec. 5. -^. , ' 
 
 Mineral 
 
 01. Where the supply of water is insufficient to work hydraulic or other claims mavhp 
 claims requiring water to enable them to be worked, such claims shall be laid laid over dur- 
 over by virtue of this section during such insufficiency, but no longer, except ing scarcity of 
 by leave of the Gold Commissioner. 1884, cji. 10, sec. 6. water. 
 
 62. Every free miner, or company of free miners, shall be entitled to a leave Leave of 
 of absence for one year from his or their claim or set of claims, — absence for 
 
 (o) Upon proving to the Gold Commissioner that he or they has or have one year m 
 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 quan- 
 tities from such expenditure ; 
 
 (6) Upon the application for such leave being signed by> all the owners 
 of the claim or set of claims. 
 
 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 miners' licences 
 and records of the claims above mentioned ; nor shall this section b& deemed to 
 affect the discretionary power of the Gold Commissioner with respect to granting 
 a- leave of absence under other conditions. 1884, ch. 10, sec. 7. 
 
 63. Tunnels and shafts shall be considered as belonging to the claim for the Forfeiture of 
 use of which they are cou&iiucted, and as abandoned or forfeited by the abandon- claim includes 
 ment or forfeiture of the claim itself. 1884, ch. 10. sec. 55. tunnels, etc. 
 
 04. Every forfeiture of a claim shall be absolute, any rule of law or equity Forfeiture of 
 to the contrary notwithstanding. 1884, ch. 10, sec. 46. claim absolute. 
 
 65. Where any undivided mining interest in a company shall be claiined by Undivided 
 any free miner by reason of any defect in the title or representation thereof, interest in a 
 which defect shall be first established to the satisfaction of- the Court haviflg' company 
 jurisdiction in mining disputes, the company shall be bound either to admit when not re^- 
 the claimant as a member of the company to the extent of such defective ?,^f^p"ny'^ must 
 interest or to stake off to the separate use of the claimant any portion of ground admit claim- 
 in the joint ground of the company equal in extent to such defective interest, ant as a 
 In such latter event the claimant shall not be entitled to any interest whatever member or 
 in the remaining ground of the company or be considered a member thereof by stake off claim 
 reason of such appropriation. In either case the company shall pay all costs f'jr him. 
 and' expenses incurred by reason of r allowing the non-representation, aforesaid. Company to 
 The Court may make such order as to costs as he may deem just. 1884, ch. 10,i pay costs ex; 
 ggp ^/j- cept otherwise 
 
 ordered. 
 
 06. Every free miner, on application to the Gold Commissioner of the. Free miner to 
 district, shall be entitled to a printed copy of this Act. 1887, ch.. 22, sec. 4. have copy of 
 
 this Act-free. 
 
 PART IV. 
 
 Xature and.Sisc of Clainis. 
 tit. The size of claims shall be as follows : — Size of claims. 
 
 Fbr "bar diggings" a strip of land one hundred feet wide at high water gar diggings, 
 mark, and thence extending into the river to its lowest water, level. 
 
 For " dry diggings " one hundred feet square. • I^fy diggings. 
 
604 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Consol. Stat. 
 Min. Act, 1888 
 
 Creek claims. 
 Bench claims. 
 Mineral claims 
 
 Narrow 
 benches . 
 
 Hill claims. 
 
 Tunnelling 
 under hills. 
 
 " Creek claims " shall be one hundred feet long, measured in the direction 
 of the general course of the stream, and shall extend in width ftom base to 
 base of the hill or bench on each side, but when the hills or benches are less- 
 than one hundred feet apart the claim shall be one hundred feet square. 
 
 " Bench claims " shall be one hundred 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 in 
 place — shall be one thousand five hundred feet long by six hundred feet wide, 
 as hereinafter provided. 1884, ch. 10, sec. 50. 
 
 68. The Gold Commissioner shall have authority, in cases where benches are 
 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 runnitig to the summit of the hill, shall con- 
 stitute 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. 10, 
 sec. 52. 
 
 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 interfere 
 with parties tunnelling from the main frontage. 1884, ch. 10, sec. 53. 
 
 71. The Gold Commissioner shall have power to refuse to record any hill 
 
 Gold Commis- 
 
 fuse to record claim on any creek, which claim or any part thereof shall include or come 
 certain hill within one hundred feet of any gulch or tributary of such creek. 1884, ch. 10, 
 claims. sec. 54. 
 
 Discoverers' 72. If any free miner, or party of free miners, shall discover a new mine, 
 
 claims. gn^i such discovery shall be established to the satisfaction of a Gold Commis- 
 
 sioner, 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. 
 
 What shall be A new stratum ot auriferous earth or gravel situated in a locality where the 
 
 deemed a new claims are abandoned, shall, for this purpose, be deemed a new mine,, although 
 
 "line. tiie same locality shall have been previously worked at a different level ; and dry 
 
 diggings discovered in the vicinity of bar diggings shall be deemed a new mine, 
 
 and viae versa. A discoverer's claim shall be reckoned as one ordinary claim. 
 
 Creek claims. (a) Creek discovery claims shall extend 1,000 feet on each side of the 
 
 Declares die- centre of the creek or as far as the summit ; 
 
 claims hereto- W -^^7 discovery claim heretofore granted and duly recorded and held 
 
 fore gra,nted under terms or conditions similar to those herein provided for discovery 
 
 and duly re- claims, shall be deemed to have been lawfully granted and held ; 
 
 yg^ljj (c) Notwithstanding anything to the contrary, the provisions as to 
 
 The provisions mining claims being increased in size by reason of their being discovery 
 
 as to size not claims, shall not extend or apply to quartz claims or minerals found in lodes 
 
 to extend to or veins. 1884, ch. 10, see. 57. 
 quartz claims, 
 etc. 
 
I-] APPENDIX A.— MINING Sa?ATUTES. 
 
 ,605 
 
 73. All claims, except as hereinafter provided, shall be as nearly as possible Consol Stat 
 rectangular in form and marked by four pegs, at least four inches square, Min. Ait 1888 
 standing not less than four feet above the surface and firmly fixed in the ground. ' 
 
 No boundary peg shall be concealed or moved without the previous permission Marking 
 of the Gold Commissioner. Any tree may be used as a stake, provided that it claims, 
 be cut down to at least the legal height and the stump squared as above. 1884, 
 ch. 10, sec. 58 ; 1888, ch. 34, sec. 15. 
 
 74. In defining the size of claims they shall be measured horizontally, Measurement, 
 irrespective of inequalities on the surface of the ground. 1884, ch. 10, sec. 59. 
 
 ilineral Claims. 
 
 75. Any free miner desiring to acquire a right to mine any lands for minerals. Size, form and 
 aa hereinbefore defined, shall, subject to the provisions of this Act with respect locating of 
 
 to, land which may be used for mining, enter upon the same and locate a plot mineral claims 
 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; 
 1888, 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. 68. 
 
 77. The lawful holders of mineral claims shall have the exclusive right and Olaim-liolder 
 possession of all the surface included within the lines of their locations, and of entitled to all 
 all veins, lodes, and ledges throughout their entire depth the top or apex of veins, etc., 
 which lies inside of such surface lines extended downward vertically, although JJ''''''? ^^% ■ 
 such veins, lodes, or ledges may so far depart from a perpendicular in their boundary lines 
 course downwards as to extend outside the vertical lines of such surface loca- ° ^ ^""' 
 tions ; 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 con- 
 tinued 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 esich 
 for the purpose of the convenient working of the said mine ; and provided, also, '^T'^ ™ 
 
 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 As to tunnels 
 of such tunnel shall, in addition to any mineral claim legally held bv him, have ™? °^ ®," , 
 the right to all veins or lodes discovered in such tunnel : Provided that the vein^orlode 
 ground containing such veins or lodes be marked out by him as a mineral claim 
 
 within three days after such discovery, and be duly recorded ; and provided 
 further, that such lodes or veins are not included in any existing mineral claim. 
 
i606 MARTIN'S MrNI-NG OA'SElS. [vdi,. 
 
 Gonsol. Stat. Any money or labour fexpended' in constructing a tunnel to develop a lode or 
 -Min. Act; I'SSS vein .shall be deemed to' have been expended on such lode or vein. 1884, ch. 10 
 sec. 66. 
 
 not tohrfd^ ^^' ^° f "^66 miner or incorporated company shall be entitled to hold,^ directly 
 
 more than one™" ™ ^^^ name of any other person, more than one' mineral claim , on the same 
 claim on the '""^^ °'^ ^^in except by purchase, but such free miner or company may hold by 
 samei'yei'nietc., pre-emption a mineral claim upon each separate ledge, lode or vein. 1884, ch. 
 except by pur- 10, sec. 67. 
 chase . ' 
 
 Crown grants, gi. Any lawful holder of a mineral claim may obtain a Crown grant thereof 
 howobtamed. ;„ ji^ following manner:— 
 
 (a) Upon 'jling in the Land Office of the district wherein the land is 
 situateau application, for such grant, shewing, under oath, that a Vein or 
 lode has been found or exists within the limits of the claim, that the' appli- 
 cant is holder and in undisturbed possession of such' claim, together with 
 a plat and field-notes of the claim, made by a surveyor acting under instruc- 
 tions from the Chief Oommissixjner of Lands and Works, and giving accur- 
 ately the boundaries of the claim, which shall be distinctly marked by 
 monuments or by posts placed at the angles or corners thereof ; 
 
 (6) Upon posting a copy of such plat, together with notice of such 
 application for a grant, on a conspicuous place on the land embraced in such 
 plat, previous to the filing of the application for a Crown grant ; 
 
 (c) Upon filing, in the District Land Oflice, an affidavit of at least two 
 persons that such notice had been duly posted, together with a copy of the 
 notice j 
 
 (d) The Government Agent of the district shall thereupon cause to be 
 published, at the cost of the applicant, a notice of the application for sixty 
 days in the British Columbia Gazette, and' in any newspaper, if any, 
 circulating in the district, and he shall also post such notice in his office for 
 the same period. The applicant, at the time of filing his application, or at 
 any time within the sixty days of publication, shall also file with the said 
 Government Agent a certificate of the Gold Commissioner of the district, or 
 of an Assistant Gold Commissioner, or, if there be none, a certificate of a 
 Judge of a Court having jurisdiction in mining disputes (who may require 
 such evidence thereof as he may think fit) , that a sum of five hundred dollars 
 has been bona fUe expended in money or labour upon the claims by the 
 applicant, or by others under whom he lawfully claims, and that the plat is 
 correct, with such reference to natural objects or permanent monuments as 
 will identify the claim and accurately describe the laud to be included in the 
 Crown grant. At the expiration of the sixty days the applicant shall file 
 with the Government Agent his affidavit, shewing that the plat and notice 
 have been posted in a conspicuous 'place on the claim during such period. 
 If no adverse claim shall have been filed with the said Government Agent 
 at the expiration of the sixty days, it shall be assumed that the applicant is 
 entitled to a Crown grant, and thereafter no objection from third parties 
 to the issue of a Crown grant shall be heard, except it be shewn that the 
 applicant has failed to comply with the provisions of this Act. 1884, ch. 10, 
 sec. 68 ; 1886, ch. 14, sec^ 7. 
 
 What passes 82. Such Crown grant shall be deemed to transfer and pass the right to all 
 
 under the minerals, precious or- base (excepting coal), which may be in, upon, or under 
 Crown grant, the land in the said Crown grant mentioned, including the rights set forth in 
 sec. 77 of this Act, and may be in the following form : — 
 
I-] APPENDIX A.— MINING STATUTES. QQJ 
 
 (Royal Arms.) Oonsol. Stat. 
 
 Mitt. Act, 1888- 
 
 " ^^^'■"^ ^''*-" Fomrrf" 
 
 "Province of British Columbia. ^""^^ ^*"*' 
 
 No. 
 
 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, 
 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 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 mineirals, precious and base 
 (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 successors, 
 or for any person by' Our authority, to resume any portion (not exceeding one- 
 twentieth pai:t) of the said lands for making roads, canals, bridges, towing- 
 paths, or other works of public utitlity or convenience, but no such resumption 
 ishair be made on land on which any permanent buildings may have been erected r 
 
 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 
 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 part* 
 of the hereditaments hereby granted as may be reasonably required for agricul- 
 tural 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 here- 
 unto affixed. Witnesses 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, 1884 ch. 10, sec. 69. 
 
 83. When an adverse claim is filed during the period of publication, it shall j^g^jj, (,f ,_,„. 
 be made upon oath of the person making the same, and shall shew the nature, eeeding wlier* 
 boundaries, and extent of such adverse claim ; and all proceedings, except the adverse claim 
 publication of notice and making and filing of *the affidavit thereof, shall be toCidHngrant 
 stayed until the controversy shall have been settled or decided according to law, is filed. 
 Or the aldverse claim waived. The adverse claimant shall, within thirty days 
 after filing his claim, commence proceedings in a Court of competent jurisdic- 
 tion, 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 Jtidge of a' Court having jurisdiction in mining 
 disptites, that the requisite amount of expenditure has been made, and the 
 description of the land as herein required, whereupon the whole proceedings 
 
608 MARTIN'S MINING CASES. [vot. 
 
 Oonsol. Stat, and the judgment roll shall be sent by the Government Agent to the Chief Oom- 
 Min. Act, 1888 missioner of Lands and Works, and a Crown grant shall issue thereon for the 
 
 claim, or such portion thereof as the applicant shall appear, from the decision 
 
 of the Court, to rightly possess. If it appears from the decision of the Court 
 that several parties are entitled to separate and different portions of the claim, 
 each or 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 Lfands 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. 
 
 Qnartz claims 34 Quartz claims heretofore pre-empted shall be deemed to be mineral 
 empted^ claims, and shall be subject to the provisions of this Act. 1884, ch. 10, sec. 71. 
 
 Annual ex- 85. Any free miner having duly recorded and located a mineral claim shall 
 
 penditure of be entitled to hold the same for the period of. one year from the recording of 
 $100 in money the same, provided that within the first six months from such recording he shall 
 or labour. have expended upon the claim jtself money or labour to the amount of value of 
 one hundred dollars, and shall have satisfied the Gold Commissioner or Mining 
 Recorder of such exi)enditure by a detailed and attested description (>i the work 
 Detailed state- performed (but in case continuous work is being prosecuted upon any claim, 
 ment of annual it shall not be necessary to obtain a certificate of expenditure), and obtained 
 expenditure f i-om him, and , recorded within such six months, a certificate of such expenditure, 
 on mineral jf tj^g certificate shall not be so obtained and recorded the claim shall be deemed 
 claims to be vacant and abandoned; and in like manner as to each succeeding year the 
 ■corder ° ^ 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 
 
 th%eof *to be jf^om such re-recording money or labour upon the claim to the amount or value 
 recorded. °^ °^^ hundred dollars, to the satisfaction of the Gold Commissioner, and shall 
 
 have obtained and recorded within such six months a certificate of such expendi- 
 ture. 1886, ch. 14, sec. 8 ; 1887, eh. 22, sees. 3 and 5 ; 1888, ch. 34, sec. 18. 
 
 Evidence on 86. The Gold Commissioner or Mining Recorder, for the purpose of granting 
 
 which Gold any such certificate, or the laying over of any claim, may act upon declarations 
 Commissioner made before any Justice of the Peace, Notary Public, or Mining Recorder, or 
 may grant cer- before himself. 1886, ch. 14, sec. 9. 
 tificate. 
 
 Crown grant 87. There shall be levied and collected from the owner or occupier of every 
 
 mineral claims mineral claim of which a Crown grant has issued, an annual tax of one dollar 
 to pay annual for every acre and fractional part of an acre of land conveyed by the grant, 
 tax of $1 per payable on the 31st day of December in each year. Such tax shall form a 
 ^'O^'i- charge upon the claim. The Assessor appointed under or by virtue of any 
 
 . existing Assessment Act, or any Collector appointed under the " Provincial 
 
 Oolleotion ot jjgygjmg 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 
 
 In default of gygnt of the tax not being paid to the Assessor or Collector, he may cause the 
 ^^^""m'^'v be claim upon which the tax is charged to be offered for sale by public auction, of 
 som" which twenty days' notice shall be posted upon the principal Cqurt House of 
 
 -T ' , , the district in which the claim is situate, and in one newspaper, if any, pub- 
 is oticeot s^'ie. j.gj^g^ jj^ g^gjj district, and may sell such claim, receive the purchase , money, 
 ADclication of ^'^^ execute a conveyance thereof to the purchaser. The purchase money shall 
 purchase be applied in payment of the expenses of advertising and the payment of the 
 
 money. tax, and any surplus shall be paid into the treasury in trust for the owner of 
 
 If no Durchas '^^ claim. In the event of there being no purchaser, or if the price offered shall 
 er land to re- "ot be sufficient to pay the tax and expenses of advertising, the land shall 
 vert to the absolutely revert to the Province, and the Crown grant thereof shall be deemed 
 Crown. void. The Assessor or Collector may, before offering the claim for sale, sue 
 
 The Assessor the owner or occupier for the tax, in. a summary manner, before any Justice of 
 may sue the the Peace, who may adjudge the same to be paid ; and in default of pay- 
 owner of the ment, the amount due, together with costs, may be recovered by distress of the 
 claim for the goods and chattels of the person against whom the tax may be recovered : 
 
, !•] APPENDIX A.— MINING STATUTES. 609 
 
 Ptovidpd, that if the owner of any such mineral claim shall establish, to the Consol. Stat, 
 satisfaction of the Gold Commissioner, Mining Recorder, or Assessor and Col- Min. Act, 1888 
 
 lector 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, ¥ f^"" ®*P^°" 
 then the tax shall not be levied in respect of such claim for such year. 1884, ?ed on claim 
 ch. 10, sec. 73; 1888, ch. 34, sec. 17. ye^rftaxnot 
 
 to be levied 
 
 88. Any lawful holder of a mineral claim shall be entitled to a Crown grant for such year, 
 thereof on payment to the Government of British tJolumbia of the sum of Claim holder 
 twenty-five dollars per acre in lieu of representation and expenditure on the may get Crown 
 claim. The applicant for a Crown grant under this section shall in all other prant by pay- 
 resjiects save representation and expenditure, comply with the provisions of this ""g ^25 per 
 Act with respect to the acquisition of Crown grants. 1884, ch. 10, sec. 74; *'"''^' 
 
 1886, ch. 14, sec. 10. 
 
 89. In cases where the holders of two or more mineral claims upon the Holders of 
 same lode desire to unite for the purpose of prosecuting one of such claims, the claim on same 
 Gold Commissioner may in his discretion lay over the other mineral claims for lode may unite 
 such time and upon such conditions as he may think fit, but the work or money toprospect one 
 to be done or expended on the one claim shall be applicable in any manner to ® **"" " aims, 
 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 sence to dis- 
 discovery being established to the satisfaction of a Gold Commissioner, be coverers of 
 entitled to a leave of absence therefrom for six months. 1884, ch. 10, sec. 5, new claims. 
 part. 
 
 PART V. 
 
 Bed-rock Flumes. 
 
 91. It shall be lawful for the Gold Commissioner, upon the application here- Grant not for 
 iuafter 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. rock flumes. 
 
 92. Three or more free miners may constitute themselves into a bed-rock Bed-rock 
 flume company, and every application by them for such grant shall be in flume corn- 
 writing, and shall state the names of the applicants and the nature and extent panics. 
 
 of the privileges sought to be acquired. Ten clear days' notice thereof shall Ten days' 
 be given between the months of June and November, and between the months notice to be 
 of November and June one month's notice shall be given by affixing the same given. 
 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 Main hneof 
 to such application, the ground included therein shall be marked out by posts ^^^^}°B^ 
 of the legal size, placed at intervals of one hundred and fifty feet along the staKea on. 
 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 Protests, 
 it shall be competent to any free miner to protest before the Gold Commissioner 
 within such times as aforesaid, but not afterwards, against such application ^ee of $125 
 being granted. Every application for a grant shall be accompanied by a deposit payable, 
 s of one hundred and twenty-five dollars, which shall be refunded if the applica- 
 tion be refused but not otherwise. 1884, ch. 10, sec. 76. 
 
 93 Every such grant shall be in writing, signed by the Gold Commissioner. Grant to be in 
 1884, ch. 10, sec. 77. , ^"'"^- 
 
610 
 
 MARTIN'S MINING OASES. 
 
 [VOL. 
 
 (^onsol. Stat. 94. The holders of such grants shall be entitled to the following rights and 
 Mitt. Act, 1888 privileges, that is to say : — 
 
 Rif;hts and 
 prLviteges of 
 holders. 
 Eight bf way 
 upon new 
 crSisks, etc. 
 Upon dreeks, 
 etc., worked 
 f dr 2 years and 
 over. 
 
 On abandoned 
 ground. 
 
 Interpretation 
 of abandoned 
 ground. 
 Upon creeks 
 discovered 
 within 2 years. 
 
 Rights of way 
 through claims 
 legally held 
 and worked. 
 
 Right to use 
 unappropri- 
 ated water. 
 
 Gold in the 
 flutties. 
 
 (a) The rights of way through and entry upon any new and unworked 
 river, preek, 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, 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 individual of the company ; 
 
 (c) And no person locating unworked or abandoned ground within the 
 liiliits of the company's ground, after the notifce 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 appli- 
 cation before mentioned, and upon any portion of which four or more 
 free miners are legally holding hona 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, main- 
 taining, 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 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. 1884, ch. 
 10, sec. 78. 
 
 Claim-holders 95 rj^g holder of claiins through which the line of the company's flume 
 upon giving j^ ^.^ ^.^^ ^^^^ p^j. jjj g^ bed-rock flume in their claims to connect with the 
 tfra maV e"on company's flume, upon giving the company ten days' notice in writing to that 
 struct their " effect ; but they shall maintain the like grade, and build their flume as thor- 
 own flume. oughly and of as Strong materials as are used by such company. 1884, ch. 10,. 
 sec. 79. 
 
 Where so con- 
 structed and 
 abandoned. 
 
 96. Olaimholders constructing such flumes through their claims shall keep 
 their flumes free from obstruction, and they shall be entitled to all the gold or 
 other minerals found therein, biit they shall be subject to the same regulations 
 with regard to cleaning up the flume, repairs, and other matters in whiih both 
 parties are interested, as may be adopted by such flume company; and such 
 claimholders shall have the right at any time before the abandonment of their 
 
I.] APPENDIX A.— MINING STATUTES. 811 
 
 claims to become members of the bed-i'ock flume company, by uniting theli' claims Consol. Stat. 
 and' flvirile witH the ground and flume of the company, and taking an interest Min. Act, 1888 
 
 prdportibnate to that which they shall cede to the company ; or they may aban- 
 
 don their claims and flume, and such abandonment shall enure to the use and 
 benefit of the flume company. 1884, ch. 10, sec. 80. 
 
 97. Every bed-rock flume company shall lay at least fifty feet of flume Length of 
 during the first year, and one hundred feet annually thereafter, until comple- P"™® '° ^ 
 tion of the flume. 1884, ch. 10, sec. 81. ''"'l' annually. 
 
 98. Any free miners lawfully working any claims where a bed-rock flume Free miners 
 exists shall be entitled to tail their sluices, hydraulics, and ground-sluibes into entitled to use 
 such flume, but so as not to obstruct the free working of such flume by rocks, n"™® for tail- 
 stones, boulders, or otherwise. 1884, ch. 10, sec. 82. '°^*' 
 
 99. All bed-rock flume companies shall register their grant when obtained. Registration 
 and pay for such registration a fee of twenty-five dollars ; and they shall also pay " grant. 
 
 an atmual rent of twelve dollars and fifty cents for each quarter of u, mile of „ ^ i 
 right of way legally held by such company. No re-registration of a grant shall ^" * ' 
 bft necessary. 1884, ch. 10, sec. 83. 
 
 100. 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- ™mes, etc., to 
 gaged, or otherwise dealt with as such. 1884, ch. 10, sec. 84. property" 
 
 PART VI. 
 
 I 
 
 Drainage of Mines. 
 
 101'. Any free miner, or company of free miners, shall be entitled to run a Tunnel for 
 drain or timnel. for drainage purposes, through lany occupied mining land, upon drainage pur- 
 compensating the owners of such land for any damage they may sustain by the poses. 
 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 
 cdnstructed ; 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 hsLTe been run or constructed. 
 1884, ch. 10, sec. 85. 
 
 102. It shall be lawful foi' the Gold Commissioner to grant to any free miner, ^oJigr^^™™'^" 
 company of free miners, or joint-stock company, for any term not exceeding ten gj^nt rights of 
 years, exclusive rights of way through and entry upon any mining ground in his y,g,y through 
 district, for the purpose of constructiiig a drain or drains, for the drainage mining 
 thereof. 1884, ch. 10, sec. 86. grounds for 
 
 drains. 
 
 103. Every application for such grant shall be in writing, and shall state ^^Pj'wHt'ing''* 
 the names of the applicants, the nature and extent of the proposed drain ^ "' 
 
 or drains, the amouht of toll (if any) to be charged, and the privileges sought 
 iv De acquired. 1884, ch. 10, sec. 87. 
 
 104. A notice of application similar to that required for the right of way Notice to be 
 for bed-rock flumes shall be given. 1884, ,ch. 10, sec. 83. S""=^- 
 
 . 105. Every application for such grant shall be accompanied by a deposit of Deposit of $25. 
 twenty-flve dollars, which shall be refunded in case the application shall be 
 refused. 1884, ch. 10, sec. 89. 
 
 lt)6. Such ^t-ahts shall be in writing, and upon suCh conditions as tha Gold -"^^iltitinff ^ 
 Commissioner shall deeili reaSbnabte. 1884, ch. 10, ^ec. 90. wnuug. 
 
612 
 
 MARTIN'S MINING CASES. 
 
 [toi,. 
 
 Cousol. Stat. 
 Min. Act, 1888 
 
 What rights 
 and powers are 
 given by the 
 grant. 
 
 Covenants and 
 conditions. 
 
 Tap-drains. 
 
 107. The rights ■ of way and entry above-mentioned, the power to assess, 
 levy, and collect tolls (not exceeding in amount that mentioned in the applica- 
 tion) , from all free miners using such drain or benefited thereby, shall be given 
 to the grantees. The followiog covenants on the part of the grantees and their 
 assigns shall be deemed to be part of every grant, whether expressed therein 
 01' not : — 
 
 (a) That they will construct such drain or drains of sufficient size to meet 
 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 Commis- 
 sioner 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 costs and expense to be levied by sale (subject, however, to the condi- 
 tions 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 th? owners 
 thereof, and in default thereof permit such parties to make them them- 
 selves, 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. 1884, ch. 10, 
 sec. 91. 
 
 108. In the construction of drains to be used as tap-drains only three days' 
 notice given as above shall be necessary. 1884, en. 10, sec. 92. 
 
 109. The Court having jurisdiction in mining disputes, or, if desired by either 
 Damans, how party, with the assistance of a jury of five free miners, may assess the damages 
 assessed. ^jj any) for any injury which may be caused by any such entry or construction 
 
 as aforesaid. 1884, ch. 10, sec. 93. 
 
 p 1 1 b ■'■•'■*'• ^^'^^ grant shall be recorded and a fee of five dollars paid therefor, save 
 
 corded "^^ where such grant gives the grantees the right to collect tolls, in which case 
 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 twenty- 
 Fees and rent- gyg dollars for each quarter of a mile, and fraction thereof, shall be paid by 
 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. 
 
 ■Co-partner- 
 ship rules 
 where no 
 written arti- 
 cles exist. 
 Duration of 
 partnership. 
 
 Mining Partnerships. 
 
 111. All mining companies shall be governed by the i^rovisious hereof, unless 
 they shall have other and written articles of co-partnership properly signed, 
 attested, and recorded. 1884, ch. 10, sec. 95. 
 
 112. A mining partnership shall, unless otherwise agreed upon, be deemed 
 to be a yearly partnership renewable from year to year by tacit consent. 1884, 
 c. 10, s. 96. 
 
 T, . (.V, 113. The business of co-partners herein referred to shall be mining and such 
 
 mi'ning; "ther matters as pertain solely thereto. 1884, ch. 10, sec. 97. 
 
 Majority of 114. A majority of the co-partners, or their legally authorized agents, may 
 
 partners gov- decide the manner of working the claims of the co-partners, the number of men 
 
 em. to be employed, and the extent and manner of levying the assessments to defray 
 
I.] APPENDIX A.— MINING STATUTES. 613 
 
 ilie expenses incurred by the company. Such majority may also choose a fore- Consol. Stat. 
 man or local manager, who shall represent the company, and sue and be sued Min. Act, 188& 
 
 in the name of the company for assessments and otherwise; and he shall have 
 
 power, with the consent of a majority of the company, to bind them by his con- Foreman, 
 tracts. The partnership name of a company shall be inserted in the record of 
 their claims. Every co-partner, or his duly authorized agent, shall be entitled Representa- 
 to represent his interest in the co-partnership property to the extent thereof, by tion of interest 
 work and labour, and so long as such work and labour be satisfactory to the by work, etc. 
 foreman. In the event of such workman being discharged by the foreman, the 
 Court having jurisdiction in mining disputes may, if requested, summon the fore- 
 man before it, and upon hearing the facts make such order as it shall deem just. 
 1884, eh. 10, sec. 98. 
 
 115. A co-partner in any mining company shall, at any meeting thereof, be Co-partner 
 entitled to vote upon any interest or fraction of an interest which he may hold ™^? y"*^ upon 
 therein ; but the result of the votes given shall be determined by the number of interest, 
 the full interests voted upon and not by the number of co-partners voting at such 
 
 meeting, notwithstanding anything contained in the preceding section. 1884, ch. 
 10, sec. 99. 
 
 116. During the close season no free miner shall be bound to work his Two-thirds of 
 claim : Provided, however, that any mining company shall have the right to interest may 
 work their claims if the co-partners representing two-thirds or more of the full decide to work 
 interests thereof shall so decide, and, in such event, all the members of the com- during cldse 
 pany shall, as in ordinary cases, be responsible for the expenses of such working, season. 
 1884, ch. 10, sec. 100. 
 
 117. During the time of working all assessments when levied shall be payable Assessments, 
 within iivB days thereafter. 1884, ch. 10, sec. 101. when payable. 
 
 118. In default of paymetit within such time, the debtor, after receiving a Penalty for 
 notice specifying the amount due by him, shall, if such amount be correct, be defanlt- 
 personally liable therefor to the company, and his interest in the claims may be 
 
 sold by the company for the payment of the debt, and any further assessment 
 
 which may have accrued due 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 Notice of sale. 
 
 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 up, ten clear 
 
 days prior' to the day of sale, in the vicinity of such mining or other property, 
 
 and at the Court House nearest thereto. But if such debtor be absent from the 
 
 district, such notices shall be given as aforesaid fourteen clear days before the 
 
 day of sale, and if any newspaper be published in the district wherein such 
 
 mining or other property is situated, a copy of such notice shall be inserted 
 
 therein ; such sale shall be by public auction, and the bidder offering to pay and Sale to be by 
 
 paying the full amount due for the smallest portion of the said property shall be public auction. 
 
 entitled to possession thereof, 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. 1684, ch. 10, sec. 102. 
 
 119. After a notice of abandonment in writing shall have been served on Effect of notice 
 the foreman of a company by any member thereof, such abandonment shall of abandon- 
 operate as a discharge against all debts contracted by the company after service munt. 
 
 of such notice, and no member shall be deemed to have abandoned an interest 
 without service of such notice. 1884, ch. 10, sec. 10.3. 
 
 120. The six last preceding sections shall apply to every mining claim and Applies Sees. 
 mineral claim held in fee simple or otherwise. 1884, ch. 10, sec. 104. }}*• }l^> H^, 
 
 117, 118 and 
 119 to all min- 
 ing claims. 
 
614 
 
 MARTIN'S MINING CASES. 
 
 [vqt. 
 
 Oonsol. Stat. Limited lAniility. 
 
 Min. Act, 1888 101 a ■ ■ j «^ « • i- -,. 
 121. A,ny nuking company, composed of two or moi-e free miners, may umit 
 
 How liability t^® liability of its members, upon complying with the requirements following, 
 of co-partners that is to say : — 
 
 maybe limited „ ... 
 
 Upon filing with the Gold Commissioner' or Mining Recorder of the district 
 
 a declaratory statement, containing the name of the company, the loca- 
 tion and size of the claim, and the particular interest of each membei- 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. 1884, ch. 10, sec. 
 105. 
 
 Not less than 122. No person shall locate, purchase, or hold less than one-fourth of one 
 one-fuurtli of a full interest in any company so constituted. This section shall not apply to 
 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 assets 
 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 ^^I'siiitors, and the amounts due to each, and file the same among the papers of 
 same ^"^^ company ; and such balance shpet and all books of the company shall be 
 
 open to the inspection of creditors of the company at all reasonable hours. 
 
 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. 
 
 When divid- 
 end may bt. 
 declared. 
 What debts 
 thfc company 
 is liable fur. 
 
 Penalty for 
 non-com- 
 pliance. 
 
 125. No such company shall declare any dividend until all their liabilities 
 have been paid. 1884, ch. 10, sec. 109. 
 
 126. No such company shall be liable for any other indebtedness than that 
 contracted by their foreman, or by their agent, duly authorized in writing. 
 1884, ch. 10, sec. 110. 
 
 127. If such company fail to comply with any of the foregoing provisions, 
 they shall be liable to a fine of not less than twenty-five dollars and not more 
 than one hundred and twenty-five dollars. 1884, ch. 10, *c. 111. 
 
 „ . . 128. The Gold Commissioner or Mining Recorder in each district shall 
 
 statementsand ^^^P ^ '"'"'^ exclusively for recording all declaratory statements filed in his 
 notices to be office, and another book in which he shall record all notices of abandonment, 
 recorded. 1884, ch. 10, sec. 112. 
 
 129. Upon the filing of each declaratory statement a fee of two dollars and 
 Fees for filing, gfj-y cents shall be paid ; and upon the filing of each notice of abandonment the 
 
 sum of one dollar. 1884, ch. 10, sec. 113. 
 
 130. Every shareholder of a company duly incorporated, though not a free 
 miner, shall be entitled to buy, sell, hold,, or dispose of any mining shares 
 therein. 1884, ch. 10, sec. 114. 
 
 PART VIII. 
 Administration. 
 
 131. In case of the death of any free miner, while registered as the holder 
 of 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. 1884, ch. 10, sec. 115. 
 
 Shareholder 
 need not be a 
 free miner . 
 
 Deceased 
 
 miner's 
 
 interest. 
 
I-] APPENDIX A.— MINING STATUTES. 615 
 
 132. The Gold Commissioner shall take possession of the mining property Consul. Stat, 
 of the deceased, and may cause such mining property to be duly reprwseuted, Min. 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 
 shftll deem just, and out of the proceeds pay all costs and charges incurred CommisBJoner 
 thereby. 1884, ch. 10, sec. 116. . . » ^ deal with 
 
 same. 
 
 133. The Gold Commissionei', or any person authorized by him, shall take Custody of 
 charge of all the property of deceased miners until the issue of letters of ad- property of 
 ministratiou or probate o£ the will, if any. 1884, ch. 10, sec. 117. deceased 
 
 miner. 
 
 PART IX. 
 
 Leases. 
 
 134. All grants under this Act for any mining ground, ditch privileges, or Grants by 
 other grants, shall be in writing, in the form of a Igase to b? signed, by the lease to be in 
 •Gold Commissioner, and by the grantees or lessees. 1884, ch. 10, sec. 118. writing. 
 
 135. Save where the contrary is expressed in this Act, the following clauses Except other- 
 shall apply : — wise expressed 
 
 Applicati'ons for leases, accompanied by a plan of the proposed undertak- '" '}?"' 4'''' 
 ing, are to be sent in duplicate to the Gold Commissioner of the district ^t be in * 
 wherein the ground desired to be taken is situated, who shall immediately duplicate, 
 forward it. with his report, to the Lieutenant-Govel:nor 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 aflSxed to any post nearest to 
 mining clajims then being worked. A copy of such notice shall also be put up 
 at the Gold Commissioner's oflSce. 1884, ch. 10, sec. 119. 
 
 136. Leases will not in general be granted for a longer term than ten years. Leases for ten 
 or for a quantity of ground greater than that herein prescribed, that is to years. 
 
 say : — ■ 
 
 In dry diggings, ten acres ; Quantity of 
 
 In bar diggings unworked, half-a-mile in length along the high water ground to be 
 mark; granted. 
 
 In bar diggings worked and albandoned, one mile and a half in length 
 along the high watsr mark ; 
 
 In creek claims on abandoned creeks, one mile and a half in length. 1884, 
 ch. 10, sec. 120; 1887, ch. 22, sec. 1. 
 
 187. Leases as above will not be granted of any land or alluvium which Leases not to 
 -will be considered to be immediately available for being worked by free be granted of 
 miners as holders of individual claims, nor will such a lease be granted in any land occupied, 
 ease where individual free miners are in previous actual occupation of any or available for 
 part of the premises, unless by their consent. Leases may be renewed, if deemed being worked, 
 advisable, by the Lieutenant-Governor in Council. 1884, ch. 10, sec. 121. by f ree miuers. 
 
 138. Every such lease shall, without expressing the same, be understood to Reservation of 
 contain a reservation of all rights of the Crown, and all reasonable provisions rjghts of the 
 for securing to the public rights of way and water, save in so far as shall Crown under- 
 be necessary for the miner-like working of the premises demised. The prem- st<iod,alsopub- 
 ises 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 previous licence in writing 
 of the Gold Commissioner. Every lease shall contain a covenant by the lessee Not to assign 
 to mine the said premises in a miner-like way, and also, if it shall be thought fit, withouthoence 
 to perform the works therein defined within a time therein limited. And it rj„„enants bv 
 shall also contain a clause providing that the said lease shall be voidable if the jesiee 
 lessee refuse or neglect to observe and perform all or any of the covenants 
 therein contained. 1884, ch. 10, sec. 122. 
 
616 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 CoDBol. Stat. 
 Min. Act, 1888 
 
 Gold Cominis- 
 sioner may 
 grant ditch 
 privileges for 
 ten years. 
 
 PART X. 
 
 Ditchfis. 
 
 139. The Gold Commissioner may, upon the application hereinafter men- 
 tioned, grant to any person, for any term not exceeding ten years, the right to 
 divert and use the water from any stream or lake at any particular part 
 thereof, and the rights of way through and entry upon any mining ground m 
 his district, for the purpose of constructing ditches and flumes to convey such 
 water : Provided always, that every such grant shall be deemed as appurtenant 
 to the mining claim in respect of which it has been obtained, and whenever 
 the claim shall have been worked out or abandoned, or whenever the 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. 1884, ch. 10, sec. 123. 
 
 Twenty days' 140. Twenty days' notice of the application shall be given, by affixing the 
 
 notice of applir game to some conspicuous part of the ground, and a copy thereof upon the walls 
 cation to be ^j jj^g Gold Commissioner's office; and any free miner may protest within such 
 given, , twenty days against such application being wholly or partially, granted. 1884, 
 
 ch. 10, sec. 124. 
 
 *?«0R '^^^°'"* ^'^^' ^^^'^y application for a grant of water j exceeding three hundred inches, 
 
 * shall be accompanied by a deposit of twenty-five dollars, which shall be refunded 
 
 in case the application shall be refused by the Government. 1884, ch. 10, 
 sec. 125. 
 
 Form and con- 142. Every such application shall be in writing, and shall state the names 
 
 tents of ap- of- the applicants, the name of the stream or lake to be diverted, the point of 
 
 plication. diversion or ditch head ; the quantity of water to be taken, the locality for its 
 
 distribution, and the price (if any) to be charged for the use of such water, and 
 
 the time necessary for the completion of the ditch. 1884, ch. 10, sec. 126. 
 
 Application 143. The Gold Commissioner, for reasona.ble cause, shall have power to 
 
 may be refused refuse or modify such application or grant. 1884, ch. 10, sec. 127. 
 or modified. 
 
 Grants to be 144. Every grant of water privilege on occupied creeks shall be subject 
 
 subject to free to the right of such registered free miners as shall, at the lime of such grant 
 miners' rights, be vsforkjing on the stream above or below the ditch headj and of any other 
 
 person lawfully using such water for any purpose whatsoever. 1884. ch. 10, 
 
 sec. 128. 
 
 Certain pro- 145, if^ after the grant has been made, any free miner or miners locate and 
 
 portion or Jjona fide work any mining claim below the ditch head, on any stream so diverted, 
 water allowed j^^ ^^ ^j^^y ^^jj collectively be entitled to forty inches of water if two hundred 
 to miners ree. ^^^^^^^ ^^ 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 damage sustitined by 
 the diversion of such extra quantity of water as may be required; and, in corn- 
 Compensation PUting such damages, the expense of the construction of the ditch, the loss sus- 
 for extra water tained by any claims using water therefrom, and all other reasonable losses, 
 shall be considered. 1884, ch. 10, sec. 129. 
 
 Grants of , 146. No person shall be entitled to a grant of the water of any stream 
 
 water for spec- for the purpose of selling the water to present or future claim-holders, on any 
 ulative P"";- , part of such stream. The Gold Commissioner may, however, grant such privl- 
 poses prohibi- [gggg gg ]jg ^^y deem just, when such ditch is intended to work bench or hill 
 claims fronting on any such stream ; provided; that the rights of free miners 
 then using the water so applied for be protected. 1884, ch. 10, sec. 130. 
 
I-J APPENDIX A.— MINING STATUTES. 617 
 
 147. Within sixty days after the grant is made, the grantee shall commence Consol. Stat, 
 the excavation or construction of the works in which he intends to divert Min. Act, 188S 
 
 and convey the water, and shall prosecute the work diligently and uninter- . 
 
 ruptedly to completion, except in so far as the Gold Commissioner may allow Ccnstruction 
 cessation of the work. If any grantee shall not comply with this section his o' the works to 
 grant shall cease and be determined. 1884, ch. 10, sec. 131. vfgCroutly 
 
 ■1 yi o T71 'Or grant f or- 
 
 148. iiivery owner of a ditch or water privilege shall take all reasonable feited. 
 means for utilizing the water granted to him; and if he wilfully take and -vnrasteof water 
 waste any unreasonable quantity of water the Gold Commissioner, if such not permitted; 
 offence be persisted in, may declare all rights to the water forfeited. 1884, ch. 
 
 10, sec. 133. 
 
 149. The owner of any ditch or water privilege may distribute the water Hqw water to. 
 to such persons and on such terms as he may deem advisable, within tha limits be distributed 
 mentioned in his application : Provided, always, that such owner shall be bound by grantee. 
 
 to supply water to all applicants, being free miners, in a fair proportion, and 
 shall not demand more from one person than another, except where the diffi- 
 culty of supply is enhanced. 1884, ch. 10, sec. 134. 
 
 150. Any person desiring to bridge any stream, claim, or other place, for any Bridging, min- 
 purposB, or to mine under or through any ditch or flume, or to carry water ing througli 
 through or over any land already occupied, may, in proper cases, do so with ditches, and 
 the written sanction of the Gold Commissioner. In all such cases the right carrynig waler 
 of the party first in possession, whether of the mine or of the water privilege, Unds^etc^ 
 
 is to prevail, so as to entitle him to compensation if the same be just. 1884, ' 
 
 ch. 10, sec. 135. 
 
 151. In measuring water in any ditch or sluice, the following rules shall Rules for 
 be observed : — The water taken into a ditch or sluice shall be measured at the measuring 
 ditch or sluice, head. No water shall be taken into a ditch or sluice except water. 
 
 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; 1884, ch. 10, sec. 136. 
 
 152. Whenever it shall be intended, in forming or upholding any ditch, to Before enter- ' 
 enter upon and occupy any part of a registered claim, or to dig or loosen any ing on a regis- 
 earth or rock within four feet of any ditch not belonging solely to the regis- tered claim 
 tered owner of such claim, three days' notice in writing of such intention shall notice must 
 
 be given before entering or approaching within four feet of sucli other prop- °® given, 
 erty. 1884, ch. 10, sec. 137. 
 
 153. Any person heretofore or hereafter engaged in the construction of any Diverting or 
 road or work may, with the sanction of the Gold Commissioner, cross, divert, crossing 
 
 or otherwise interfere with any ditch, water privilege, or other mining rights ditches, 
 whatsoever, for such peri'od as the said Commissioner shall direct. 1884, ch. 
 10, sec. 138. 
 
 154. The Court having jurisdiction in mining disputes shall order what com- rj^^ie. Court to 
 pensation for every such damage or interference, shall be paid, and when, and settle onmpen- 
 to whom, and whether any and what works damaged or affected by such inter- sation therefor 
 ference as aforesaid, shall be replaced by flumes or otherwise repaired by the 
 
 person or persons inflicting any such damage. 1884, ch. 10, sec. 3.39. 
 
 155. Upon compliance with the requirements aforesaid, the Gold Comtais- Gold Commis- 
 sioner shall certify in writing that the persons named therein were duly auth- sioner to have- 
 orized to create the damage or interference aforesaid, and have duly fulfilled the certificate of 
 requirements herein mentioned, and have also duly satisfied and discharged all ^ntnonty. 
 claims in respect of the damage or interference referred to. 1884, ch. 10, sec. 
 
 140. 
 
€18 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Consol. Stat. 156. Every such certificate shall be recorded by the Mining ReooirdBr in a 
 Min. Act, 1888 book to be kept by him for that purpose, which shall be at all times open to 
 _, .~ — inspection upon payment of a fee of one dollar for each inspection; 1884, 
 
 'Certincate to ch. 10 sec. 141. 
 -be recorded. ' ' ^ ■ 
 
 Act to be 
 auiiicient in 
 Law Courts, 
 
 Mining Court 
 ■to decide 
 -mining 
 disputes. 
 
 157. Every certificate so recorded shall be sufficient evidence in any Court 
 of Judicature of all matters and things therein contained or referred to, and 
 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. 
 
 158. The Court having jurisdiction in mining disputes shall, upon the appli- 
 cation of any party interested therein, and after notice to all whom it may 
 concern, enquire into and decide all matters arising out of or connected with 
 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. 1884, ch. 10, sec. 
 143. 
 
 ■case^over 8500 "'■^^" ^^'^^^ 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 1 of this Act. 1884, ch. 10, sec. 144. 
 
 Works for the igo. The owners of any ditch, water privilege, or mining right, shall, at 
 j^°"^''y ? their own expense, construct, secure, and maintain all culverts necessary for 
 
 -owner's ex-* '''^ passage of waste and superfluous water flowing through or over any such 
 pense. ditch, water privilege, or right. 1884, ch. 10, sec. 145. 
 
 ■Construction 161. 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 jn 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. 1884, ch. 10, sec. ]46. 
 
 Damages to be 162. The owners of any ditch, water privilege, or right, shall be liable 
 made good by and shall make good, in such manner as the Gold Commissioner shall deter- 
 owners. mine, 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, see. 147. 
 
 Notices, how 163. If any written notice to the party intended to be affected thereby be 
 
 given. 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. 1884, ch. 10, sec. 148. 
 
 Saves public 164. Nothing hjerein contained shall 'be construed to limit the right of the 
 
 .rights. 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. 1884, ch. 10, sec. 
 149. 
 
 PART XI. 
 
 Penal and Miscellaneous. 
 
 Summary 165. Any person wilfully agting in contravention of this Act, or refusing 
 
 power in oases to obey any lawful orcler of the Gold Commissioner, or of any .Judge presiding 
 ■of dis- in the Court having jurisdiction in mining disputes, shall on conviction thereof 
 
 ■obedience. before him be liable, in the discretion of such Gold Commissioner or .Tudge, to a 
 fine not exceeding two hundred and fifty dollars, or to imprisonment for any 
 term not exceeding three months. 1884, ch. 10, sec. 150. 
 
3.J APPENDIX A.— MINING STA'fUTES. filQ 
 
 166. All fines and penalties imposefl or payable under this Act may be Copsol. Stf^fc. 
 recovered by distress and sale of any mining or other personal property o£ thti M.in. Act, 1888 
 offender. 1884, eh. 10, sec. 151. — 
 
 Penalties, bow 
 
 16T. All fines, fees, and penalties collected under this Act shall be paid ''eoovered. 
 .into the Provincial Treasury. 1884, ch. 10, sec. 152. Application 
 
 ' of nnea, etc. 
 
 168. Nothing herein contained shall, save wher? such intention is expressly Saves existing 
 stated, be so construed as to affect prejudicially any mining riglits and interests nghte. 
 acquired prior to the passing of this Act ; and all mining rights and privileges 
 heretofore and hereundeir acquired shall, without the same being evpressly 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. 1884, ch. 10, sec. 
 153. 
 
 169. The assessor and collpctor of any Provincial taxes may, by himself Production of 
 or his agent, demand from any person engaged or employed in mining the free miner's 
 production of his free miner's certificate, and in case of the neglect or refusal ^^ ^^^?'j^ 
 of such person to immediately produce such certificate when demanded, or to j^ ooSeotor of 
 pay for a certifiqate, the assessor or collector may, by himself or his agent, t^xes and if 
 levy the sum payable for a certificate, with costs, by distress of any goods and not produced 
 chattels of tt« person who ought to pay the same, or of any goods or chattels thefee. for 
 
 on the premises occupied by him, whether the goods and chattels be his prop- sauae may be 
 -erty or be the property of, or be in possession of, any other occupant of the loyiefi by 
 premises ; and the costs chargeable shall be those payable as between landlord distress . 
 -and tenant. 1884, ch. 10, sec. 26. 
 
 51 VICT. Chap. 34. Stat. Amend- 
 ment Act, 1888 
 An Act to amend certain Statutes. 
 
 [,28th April, 1S8S.] 
 
 HER MAJESTY, by and with the advice and consent of the Legislative 
 Assembly -oi the Province of British Columbia, enacts as follows : — 
 
 (Note. — ^Sections 1 to 11 inclusive, relate to the Interpretation Act, 1872, 
 Power of Attorney Act, 1875, and other statutes. Sections 12 to 19 inclusive, 
 relate to mining, as follows : ) 
 
 12. Section 27 of the " Mineral Act, 1884," is hereby amended by adding 
 thereto the following as sub-sec. 2 : 
 
 " (2) If a free miner, or any person applying for a free miner's licence. Free miner's 
 makes application at the Recorder's office during his absence and leaves licences ap- 
 the fee required by the Mineral Acts with the officer in charge of said office, Pjied for m 
 he shall be entitled to have licence or record from that date." oorder.* 
 
 13. Section 22 of the "Mineral Act, 1884," is hereby amended by adding 
 thereto the following: 
 
 " And mav also, during the continuance of his certificate, enter upon Cutting tim- 
 any Crown lands, or lands covered by timber leases, to cut timber for min- J'®^™^ """'"^ 
 eral purposes. 
 
 14 Section 38 of the " Mineral Act, 1884," is hereby amended by striking Amends sec. 
 out the word " mineral " in the 4th line of the said section, and substituting ^^J*^^^'"" 
 therefor the word " hill." 1884." ' 
 
620 MARTIN'S MINING CASES. [vol. 
 
 Stat. Amend- 15. Section 58 of the " Mineral Act, 1884," is hereby amended by inserting 
 ment Act, 1888 after the words " all claims " in the first line of the said section, the words 
 
 "except as provided for in sec. 62 as amended." 
 
 Amends sec. 
 58 of same Act 
 
 16. Section 62 of the " Mineral Act, 1884," as amended by sec. 6 of th& 
 62"of'saine^ot " ^'"^ral Amendment Act, 1886," is hereby amended by striking out the words 
 ",as nearly as. possible Jh rectangular form," and substituting therefor ," in 
 the form of a rectangular parallelogram." 
 
 Amends sec. , , 17. Section 73 of the "Mineral Act, 1884," is hereby amended by inserting 
 73 of same Act after the words "Gold Commissioner" in the 4th line from the end thereof 
 the words " Mining Recorder, or assessor and collector." 
 
 Detailed state- 18. The section substituted by sec. 8 of the " Mineral Amendment Act, 
 mentof annual 1886," for sec. 72 of the "Mineral Act, 1884," is hereby amended by inserting 
 mi^^S'la^"" ^^^^^ ^^^ """^^ " e^Pen<iiture " in the 6th line the words " by a detailed and 
 to'be'given'to^ attested description of the work performed, but in case continuous work is being 
 Recorder. prosecuted upon any claim, it shall not be necessyy to obtain a certificate of 
 
 expenditure." ' 
 
 Renewal of 19. Section 75 of the " Mineral Act, 1884," is hereby amended by adding 
 
 grants for bed- thereto the following : 
 rock flunies . • 
 
 " The grant of such right may be renewed for any further term not 
 exceeding five years, subject to such conditions as the Gold Commissioner 
 may see fit." 
 
 Min. Amend- 52 ViCT. Chap. 16. 
 
 ment Act, 1889 
 
 An Act to amend the "Mineral Act." 
 
 I6th AprU, 1S89.] 
 
 H 
 
 ER MAJESTY, by and with the advice and consent of the Legislative 
 Assembly of the Pi:ovince of British Columbia, enacts as follows: — 
 
 Meaning of 1. The definition of " close season," as givfen in sec. 2 of the " Mineral Act," 
 
 "close sea- is hereby amended by inserting the words "other than mineral claims" after 
 son." the word "claims," in the second linie of the said definition. 
 
 Penalty for • 2. Section 40 of the " Mineral Act " is hereby 'repealed, and the following 
 
 mining with- substituted therefor: — "Every person engaged in mining for minerals (other 
 out having than coal) shall take out a free miner's certificate, and any person whp mines or 
 " f""?® mmer s -^^rorks for wages as a miner in any mining cla!im or mineral claim, or on any bed- 
 certificate, j.^^^ flume, bed-rock drain or ditch, without having taken out and obtained such 
 licence, shall, on conviction thereof in a summary way, forfeit and pay a pen- 
 alty not exceeding twenty-five dollars, besides costs." 
 
 Size, form, 3. Section 75 of the " Mineral Act " is hereby amended by striking out, on 
 
 and location, , the 5th line thereof, all the words between the words " wide " and " such," and 
 
 etc., of min- inserting in lieu therieof "as nearly as possible in rectangular form," and by 
 
 eral claims. adding thereto the following su'b-section : — 
 
I.] APPENDIX A.— MINING STATUTES. 62} 
 
 " (2) It is hereby declared that the sections of the " Mineral Act " men- Min. Amend- 
 tioned in the first column of the Schedule to this Act are, to the extent set ment Aot,1889 
 forth in the second column of the said Schedule, inapplicable to mineral -; — 
 
 claims." Certain sec- 
 
 tions of the 
 . Act not to 
 
 4. Sub-section (c) of sec. 81 of the "Mineral A^t " is hereby amended by apply to min- 
 inserting after the words " Land Office," in the first line of the said sub- eral claims, 
 section, the following words : " a certificate of a Mining Recorder, or." Amends 
 
 section 81. 
 
 5. Section 85 of the " Mineral Act " is hereby amended by inserting the words Amende 
 
 " or Mining Recorder " after the word " Commissioner," in the seventeenth section 85. 
 line of the said section. 
 
 6. Section 85 of the " Mineral Act " is hereby further amended by adding 
 thereto the following sub-section : — 
 
 " (2) The Gold Commissioner or Mining Recorder shall have power, Extension of 
 in his discretion, to extend the period within which the expenditure required time liniited 
 by this section shall be made, for a further term of not exceeding three for making 
 months, upon being satisfied upon evidence, taken under oath, that there expenditure 
 are good and sufficient reasons for granting such extension." "^ " *""' 
 
 7. Section 86 of the " Mineral Act " is hereby amended by striking out the Amends sec- 
 words " the laying over of any claim," and by inserting the words " such ex- tion 86. 
 tension " in lieu thereof. 
 
 8. Section 88 of the " Mineral Act " is hereby amended by striking out the Amends 
 words " representation and," where they occur in the third and fourth, and in section 88. 
 the fifth and sixth lines of the said section. 
 
 9. Section 90 of the " Mineral Act " is hereby repealed, and the following Repeals 
 substituted therefor : — ' section 90. 
 
 " 90. Any company, free miner, or party of free miner's, who shall dis- Laying over 
 cover a new lode or vein containing minerals, as defined by this Act, shall, claims, 
 upon such discovery being established to the satisfaction of a Gold Com- 
 missioner or 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 How time to 
 as any part of, the six months within which the expenditure of one hundred "* counted, 
 dollars, as required by this Act, shall be performed." 
 
 10. Section 132 of the " Mineral Act " is hereby amended by inserting be- Power of Gold 
 tweeu the words " and " and " he," in the third line of the said section, the (Jommissioner 
 words "if the free miner died intestate," and the said section is hereby further to sell pro- 
 amended by striking out the words "by private sale or." peity of 
 
 miners. 
 
 11. Section 133 of the " Mineral Act " is hereby amended by adding thereto 
 the following : — 
 
 " Provided, however, that where any free miner shall die intestate, and the Gold Commis- 
 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 estates of 
 Commissioner may administer and wind up the, personal estate of the de- piners dymg 
 ceased, and do all things necessary and proper therefor, and act in all m'^^^'e. 
 respects as if letters of administration to the personal estate of such de- 
 ceased free miner had been granted to such Gold Commissioner, and the 
 Gold Commissioner shall produce and pass his accounts, in each estate of Accounts to be 
 which he shall undertake the administration, before two residents of the P*^^™> <"•'• 
 district." 
 
622 
 
 SUn. Amfelicl- 
 SneiitAct, 1S89 
 
 MARTiN'fe Mining oases. 
 
 SCHEDULE. 
 
 [Tdt. 
 
 Sections of the "Mineral Act" 
 
 which are ihtipplicable fo 
 
 mineral claims. 
 
 To what extent. 
 
 Section 14 . 
 
 The whole. 
 
 15 . 
 
 The whole. 
 
 " 34 . 
 
 So far as "leave of absence" is concerned. 
 
 45.. . 
 
 The whole, except that portion which declares that- 
 the sum of »2.50 shall be charged for recording 
 any claim, bill of sale or other instrument. 
 
 The whole, except that portion which declares that. 
 a free miner may sell, mortgage, or dispose of 
 his claim. 
 
 The whole. 
 
 " 53 
 
 54 
 
 " 55 
 
 So much thereof as declares that a free miner shall 
 
 57, 58, 59 
 
 have no surface rights in his claim. 
 The whole. 
 
 62 . 
 
 The whole. 
 
 " 65 . 
 
 The whole. 
 
 " 72 
 
 The whole. 
 
 " 73 . 
 
 The whole. 
 
 Ill and 112 
 
 
 122 
 
 The whole. 
 
 132 
 
 So much thereof as authorizes the Gold Commis- 
 
 134 to 138 
 
 sioner to sell a mineral claim. 
 
 
 
 Min. Amend - 
 ment Act, l!s9C 
 
 , 53 ViOT. Chap. 31. 
 An Act to amend the " Mineral Act.' 
 
 [26th April, 1890.] 
 
 H 
 
 Deposit by 
 claimant- for 
 grant of free- 
 hold from 
 Dominion 
 Governnienr.. 
 
 Time fftr mak- 
 ing deposit. 
 
 ER MAJESTY, by and with the advice and consent of the Legislative 
 Assembly of the Province of British Columbia, enacts as follows : — 
 
 1. If any claim located or applied for under sec. 75 of the " Mineral Act " 
 ts situated within that portion of the Province through which the Canadian 
 Pacific Railway runs, and which has been granted to the Dominion Governmfent, 
 and hereinafter referred to as the Railway Belt, the claimant must, at the 
 time hereinafter specified and hefore the issue of the Crown grant, deposit the 
 suin of one hundred and five dollars, whiph sum will be applied by the Provincial 
 Govei^nment in obtaining a grant of the freehold from the Dominion Government, 
 but will not entitle the claim-holder to such freehold, unless he completes his title 
 thereto whilst he is the lawful holder of the claim: 
 
 " (a) Where the application is made after the passage of this .\ct, the 
 said deposit shall be made at the time the claim is recorded, and in such 
 case the payment of the said sum shall be regarded as the expenditure re- 
 quired, by the 86th sectiott of this Act, to be made upoto the claim itself 
 within the first six months from the rtcording of the said claim; 
 
I] APPENDIX A.— MINING STATUTES. 623. 
 
 " (6) Where the application has been made before the passage of this Min. Amend- 
 Act, the said deposit shall be made within ten months from the passage ment Act, 1890 
 of this Act; — 
 
 (c) Where the applicant desires to acquire the claim under the provi- 
 sions of see. 88 of this Act, the said sum of one hundred and five dollars 
 shall, when paid, be allowed to him in the aoeounting for the purchase 
 money." 
 
 2. Section 85 of the said Act is hereby repealed, and in lieu thereof be it 
 enacted : — 
 
 " 85. Any free miner, having lawfully acquired a mineral claim within the Mineral claim, 
 railway belt, as provided in sec. 75 and its sub-section, shall be entitled to within railway 
 hold such claim for the period of one year from his record, although no lAbour belt can be 
 or expenditure may have been bestowed thereon, and any free miner having law- ^^^^ for one 
 fully acquired a mineral claim anywhere else in the Province shall be entitled ''*'*'' ^l''"'"' 
 to hold the same for a. like period of one year from the date of his record, ''"P^" ' "'®- 
 if he shall, within the first six months from such record, expend upon the Annual e.x- 
 claim itself, or in connection with its development, money or labour to the penditure to 
 amount or value of one hundred dollars ; shall satisfy the Gold Commissioner or hold claim 
 Mining Recorder of such expenditure by a detailed and attested description elsewhere 
 of the work performed; and shall also, within such six months, obtain from necessary, 
 such Gold Commissioner or Mining Recorder a certificate of such expenditure, t-v ^ i j 
 and record the same with such Gold Commissioner or Mining Recorder. And gjatement of 
 so, from year to year, the holder of a mineral claim shall be entitled to hold annual expen- 
 the same for one year from the expiration of his previous year of holding, if he diture to be 
 shall, within the first six months of each new year, expend money or labour upon given 
 the claim, or in connection with its development, to the amount or value of one Heoorder. 
 hundred dollars, to the satisfaction of the Gold Commissioner or Mining Re- 
 corder, and shall, within such six months, have obtained a certificate of such Certificate 
 expenditure, and have recorded the same with the Gold Commissioner or Min- thereof to be 
 ing Recorder." recorded. 
 
 " (2) The Gold Commissioner or Mining Recorder shall have power in his Evidence on 
 discretion to extend the period within which the expenditure required by this ^hich Gold 
 section shall be made for a further period of three months, upon being satisfied, Commissioner^ 
 upon evidence taken under oath, that there are good and sufficient reasons for may extend 
 granting such extension." time for 
 
 making 
 expenditure. 
 Leases. 
 
 3. Section 136 of the " Mineral Act " is hereby amended by adding thereto Amends 
 the following : " In bench lands adjoining unworked or abandoned rivers or sec. 1S6. 
 creeks, an area for hydraulic workings not exceeding one hundred and sixty 
 
 acres of land, and for a period not exceeding twenty years." 
 
 Registration of Claims. 
 
 4. It shall be lawful for the Lieutenant-Governor in Council to divide any Mining di- 
 tDistrict into Mining Divisions, or to portion off any part of a District as a visions and' 
 
 Mining Division, and to establish in such Mining Division an office for record- recordmg 
 ing and registering certificates, records, documents, or other instruments affect- omces. 
 ing mines, claims, or mining property situate within such Mining Division, and 
 to appoint a fit arid proper person to perform the duties of Mining Recorder 
 in such office. 
 
 5. Upon the establishment of a Mining Division, and the opening of a re- 
 cording office therein under the authority of the last preceding section : — 
 
 (a) Such office, and none other, shall be the proper office for register- Office for 
 ing and recording all claims, records, certificates, documents, or other instru- recording 
 meats affecting mines, claims, or mining property situate within such Min- claims, etc.. 
 ing Division, and whenever, by the " Mineral Act," or any Act alnending 
 
624 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 Min. Amend- 
 ment Act, 1,890 
 
 Transcript of 
 records, etc., 
 to be sent to 
 and kept by 
 Recorder. 
 
 Transcripts 
 admissible in 
 evidence in 
 Courts. 
 
 Recorder need 
 not forward 
 transcripts to 
 Gold Commis- 
 
 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 any claim, mine, 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 mine, claim, or other mineral property is situate ; 
 
 (6) A transcript of all records, certificates, documents, or other instru- 
 ments affecting mines, claims, or mining property situate in such Mining 
 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 trans- 
 cripts of such records, certificates, documents, or other instruments shall 
 prima facie be deemed to be triie 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 Commis- 
 sioner 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 Judicature 
 in this Province ; 
 
 (c) It shall not be necessary for the Mining Recorder of a Mining Divi- 
 sion to fol-ward to the Gold Commissioner transcripts of the records made 
 by such Mining Recorder affecting mines, claims, or mining property situate 
 in such Mining Division. 
 
 Lease of un- 
 occupied 
 Grown land 
 for mill sites. 
 
 Applications 
 for leases, how 
 made. 
 
 Short title. 
 
 MUl Sites. 
 
 6. The Lieutenant-Governor in Coimcil may, upon the application of a 
 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 shall 
 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 vrorking of the applicant's Claim. 
 
 (a) Applications for leases of laud under this section; accompanied by a 
 plan of the proposed site, are to be sent in duplicate to the Gold Commis- 
 sioner of the district wherein the area desired to be taken is situate, who 
 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 affixeid to any of the said posts, and thereupon the 
 land shall be secured to the applicant until the Lieutenant-Governor's deci- 
 sion shall be made known. A copy of such notice shall be put. up at the 
 office of the Gold Commissioner. 
 
 7. This Act may be cited as the " Mineral Act Amendment Act, 1890." 
 
 Mineral Act, 
 1891. 
 
 Short title. 
 
 54 Vict. Chap. 25. 
 An Act relating to Gold and other Minerals excepting Coal. 
 
 [20th Apnl, 1891.] 
 
 HiER MAJESTY, by and with the advice and consent of the Legislative 
 Assembly of the Province of British Columbia, enacts as follows : — ' 
 
 Short Title. 
 
 1. This Act may be cited as the " Mineral Act, 1891." 
 
*-J ■ APPENDIX A.-JMINING S^ATtTTES. 625 
 
 Interpretation. Mineral Adi/; 
 
 1891/ 
 
 2. In the construction > of this Act .the ^following expressjons shall' have the 
 
 following meanings respectively, unless inconsistent with the context: — Interpretation 
 
 "Mine" Shall mean any land in which any ' vein or lode, or pock in place, '''Mine," j." 
 shall be mined for gold or other iiine^als, pirecipus or ba«e except coal; 
 
 "Rock in place " shall mean all rock • in place bearing valuable deposits of "Reck in 
 gol^, silver, cinnabar, le^ad, copper, iron, or other minerals usually mined, place." 
 except coal; , 
 
 " Vein " or " lode ;" Whenever either of these terms is used in this Act, "rock " ^ei"," "'^ 
 in place " shall be deemed to be included : " lode." 
 
 . "Mineral claim" shall mean the personal right of property or interest in "Mineral 
 any. mipe ; . , / elaim. 
 
 '" Mining property " shall include ever j* mineral ckim, ditch, mill-site, or "Mining^ 
 water right used for mining purposes, and all other things belonging to a property." 
 mine or used in the working thereof ; 
 
 "Legal post" shall mean a stake standing not less than four feet aJbove "Legal- post.'' 
 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 fatSe so far as squared or faced, and any stump or tree 
 cut ofE 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 " Mill .site. '' 
 the purpose of erecting thereon any machinery or other works for trans- 
 porting, crushing, reducing, or sampling' ores, or for the transmission of 
 power for working mines ; 
 
 " Streams" shall include all natural water-courses, whether usually contain- "Streams." 
 ing water or not, and all rivers, creeks, and gulches ; 
 
 "Ditch" shall include a flume, or race, or other artificial means for"Dit;ch." 
 conducting water by its own weight, to be used for mining purposes ; 
 
 " Ditch head " shall mean the point in a natural water-course, or lake or " Ditch 
 other source where water is first taken into a ditch; head." 
 
 " Free miner" shall mean a person, or joint stock company, or foreign com- "Free miner.' 
 pany named in, and lawfully possessed of, a valid existing free miner's 
 certificate, and no other; 
 
 " Record," " register," and " registration " shall have the same meaning, and " Record," 
 shall mean an entry in some official book kept for that purpose; "register." 
 
 "registra- 
 " Full interest " shall mean any mineral claim of the full size, or one of tion." 
 several shares into which a mineral claim shall be equally divided; "Full 
 
 interest." 
 "Cause" shall include any suit or action; "Cause." 
 
 " Judgment " shall include " order " or " decree " ; " Judgment." 
 
 "Mineral" shall include all minerals, precious or base (other than coal) "Mineral." 
 found in veins, lodes, or rock in place, and whether such minerals are 
 found separately or in combination with each other ; 
 
 "Real estate" shall mean any mineral land held in fee simple under this or "Real estate." 
 any Act relating to Gold Mines, or to minerals other than coal ; 
 
 "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 pur- 
 poses under the "Companies Act, 1862" (Imperial), and shall include 
 all companies falling under the definition of a foreign company in the 
 "Companies Act." 
 
m 
 
 MARTIN'S WINING CASES. 
 
 [voi.^ 
 
 *^"^' 
 
 Past I. 
 Free Miners and their Privilegeg. 
 
 Who Biay ]je a 3. Every person over, but not under, eighteen years of age, and every joint 
 free mirier. ' stpck cpmpany, shall be entitled to jjli t^e rights and privileges pf ft ^ee miner,, 
 and shall be considered a free miner, upon taking out a free miner's certificfite. 
 A minor who shall become a free miner shall, as regards his mining prpperty 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 cor- 
 porate name. A free milter's c^rtigcate shall not b<e transferable. 
 
 Duration of 
 
 it.e. 
 
 Form of 
 
 4. A free miner's certificate may be granted for one or more years,, 
 to run from the date thereof, or from the expiration of the applicant's then 
 existing certificate, upon the payment therefor of the fees set out in the Sehedule- 
 Ojf F^s to this i^pt. Only one person or one joint stock company shall be- 
 named therein. • 
 
 5. A free miner's certificate shall be in the following form : — 
 
 British Columbia. 
 Free Miner's Certificate. 
 
 NOT TBANSFEKABLB. 
 
 Date, 
 
 No. 
 
 Valid for 
 
 year only. 
 
 This is to certify that of has paid me this day the- 
 
 sunx of , and is entitled tP all the rights and privileges pf a free 
 
 miner for year frorn the day of ,18 . 
 
 {Signature of Oold Commissioner or Mining Recorder,, 
 as the case may be.) 
 
 Application at 6. If any person or joint stock company shall apply for a free miner's certi- 
 Kecorder's ' ficate at the Mining Recorder's office during his absence, and shall leave the f^- 
 u&ce 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 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 ^' ^^ ^"^ ^^^^ 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 " sub- 
 stituted 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 
 mining with- 
 out certificate. 
 
 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 
 jpint 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 sum- 
 mary 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 rendei-ed himself liable to the above penalty. 
 
!•] APPENDIX A.— IHININ6. STATUTES. 627 
 
 9. No person or joint stock company shall be recognized as having any right Mineral Act, 
 or interest in or to any mineral claim, or any minerals therein, or in or to any 1891. 
 water right, mining ditch, drain, tunnel, or flume, unless he or it shall have a — ~ 
 free miner's certificate unexpired. And on tire expiration of a free miner's certi- Uncertificated 
 acate the owner thereof shall absolutely forfeit all his rights and interests in ^^ledtoliite?- 
 or to any mineral claim, and all and any minerals therein, and in or to any and est in mining 
 every water right, mining ditch, drain, tunnel, or flume, which may be held or property, 
 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, that a shareholder in a' Proviso. 
 
 joint stock company need not be a free miner, and though not a free miner, «hall 
 
 be entitled to buy, sell, hold, or dispose of any shares therein : And provided, 
 
 also, that this section shall not apply to mineral claims for which a certificate 
 
 of improvement or Crown grant has been issued. 
 
 10. Every free miner shall, during the continuance of his certificate, but Where a free 
 not longer, have the right to enter, locate, prospect, and mine upon any waste miner may 
 lands of the Crown for all minerals other than coal, and upon all lands the, right prospect and 
 whereon to so enter upon, prospect, and mine all minerals other than coal shall n""^- 
 
 have been, or hereafter shall be, reserved to the Crown and its licencees, and also 
 tp 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, Grown s^iA its licencees. Excepting out of all the above descrip- 
 tion of lands any land occupied by any building, 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: Ptoyided that Proviso, 
 in the event of such entry being made upon lands already lawfully occupied 
 for other than mining purposes, such free miner previously to such entry shall 
 give adequate security to the satisfaction of the Gold Commissioner for any 
 loss or damages which may be caused by such entry ; and provided, that after 
 such entry he shall make full compensation to the occupant or ownei 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. 
 
 11. Any free miner may enter upon any Crown lands, or lands covered by Right to cut 
 timber leases, or any lands the timber whereon has been reserved by the Crown, timber for 
 to cut timber for mining purposes. rammg. 
 
 12. Any free miner Shall be at liberty at any period of the year, while Right to kill 
 actually prospecting or engaged in mining, to kill game for his own use. game. 
 
 13. A free miner shall have all the rights and privileges granted to free " Placer Min- 
 miners by the " Placer Mining Act." ing Act." 
 
 Part II. 
 
 MiNEBAL Claims and Mines. 
 
 Locating, Recording, Working, and Crown Grants. 
 
 14. Any free miner desiring to locate a mineral claim shall, subject to the Free miner's 
 provisions of this Act with respect to land which may be used for mining; enter claim, 
 upon the same and locate a plot of ground, where possible, 1,500 feet long by 600 
 
 feet wide, and, where possible, in rectangular form : Provided, however, that the 
 end lines of every mineral claim shall be parallel. 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 three legal posts placed, as near as How staked 
 possible, at equal distances from each other along the centre line. The posts out. 
 
 shall be numbered 1, 2, 3. The centre post shall always be numbered 2, and in 
 
628 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Mineral Act," detei'mining the centre line and length of the claiin a line shall be run from 1 
 
 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 shall 
 
 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 
 
 shallhave been previously abandoned or forfeited. 
 
 Location made 16. Any location made upon Sunday or any public holiday shall not for that 
 on Sunday, reason be invalid, any law or statute to the contrary notwithstanding. 
 
 Where staking 17. In eases where, from the nature. or shape of the ground, it is impossible to 
 
 out cannot be mark the centre line of the claim, as provided by this Act, then the claim may, 
 
 prpperly done, 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. 
 
 Priority of 
 location in 
 disputes. 
 
 Record of 
 claim. 
 
 . 18. In case of any djspute 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 with 
 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, in 
 which shall be inserted the name of the claim, the name of each locator, the num- 
 ber 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 
 miner is en- 
 titled to 
 record . 
 Mining Re 
 
 20. A free miner shall not be entitled to a record of a mineral claim until he 
 shall have furnished the said Mining Recorder with all the above particulars. 
 
 21. Upon the establishment of a mining division and the opening of a Mining 
 Recorder's office therein, under the authority of this Act, such office and none 
 corder's office, other shall be the proper office for recording all mineral claims within such 
 mining division, and making all records in respect thereof. 
 
 Recording 22. If through ignorance any free miner shall record a mineral claim in a 
 
 claim in wrong diSEerent district or mining division to that in which such claim is situate, such 
 district. 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 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. 
 
 Application ^^- ^^ ^ ^^^^ miner applies at the Mining Recorder's office during his absence 
 
 at Keoordei's t« record a mineral claim, or any document or other matter required by this Act 
 office in his to be recorded, and leaves the fee required by this Act, and the particulars and 
 absence. 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. 
 
 Duration of 24. Any free miner having duly located and recorded a mineral claim sh»ll 
 
 claim and be entitled to hold the same for the period of one year from the recording of t^^ 
 
 duties of same, and thence from year to year : Provided, however, that during each yeap 
 
 claim holder, ^jjj gj^^jj succeeding year, such free miner shall do, or cause to be done, work on 
 
I-J APPENDIX A.— MINING STATUTES. 629 
 
 the claim itself to the value of one hundred dollars, and shall satisfy the Gold Mineral Act, 
 Commissioner or Mining Recorder that such work has been done, by an affidavit 1891. 
 
 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. 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. 
 
 25. Upon any dispute as to the title to any mineral claim, no irregularity Certain irregu- 
 made previous to the date of the record of the certificate of work next preceding laities not to 
 the then last recorded 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. '^ *'™' 
 
 26. No free miner shall be entitled to hold, in his own name or in the name of What claims 
 any other person, more than one mineral claim on the same vein or lode, except *■ free mmer 
 by purchase, but such free miner may hold by location a claim vipon each ™*y hold, 
 separate vein or lode. 
 
 27. A free miner may at any time abandon any mineral claim by giving Abandonment 
 notice in writing of such intention to abandon to the Mining Recorder, and from "f claim. 
 
 the date of such notice all interest of such free miner in such claim shall cease. 
 
 28. When a free miner abandons a mineral claim he shall have the right to Machinery on 
 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 olaim. 
 within such time as shall be fixed by the Gold Commissioner or Mining Recorder. 
 
 29. No free miner shall be entitled to re-locate any mineral claim, or any Re-looation o* 
 portion thereof, which he shall have abandoned or forfeited, unless he shall have abandoned 
 obtained the written permission of the Gold Commissioner to make such re- claim, 
 location ; and he shall hold no interest in any portion of such mineral claim, by 
 
 location, without such permission. 
 
 30. Should any iree miner locate and record more than one mineral claim on Locating more 
 the same vein or lode, all such locations and records, excepting the location and than one claim 
 record of his first claim on such vein or lode, shall be void, unless such first on the same 
 claim shall have been abandoned or forfeited. lode. 
 
 31. The lawful holder of a mineral claim shall have the exclusive right and Amount^of 
 possession of all the surface included within the lines of his location, and of all Jocle coiltained 
 veins or lodes, throughout their entire depth, the top or apex of which lies in- '" * claim, 
 side of such surface lines extending downward vertically, although such veins 
 
 or lodes may so far depart from a perpendicular in their course downwards as to 
 extend outside the vertical side lines of such surface location; but his right 
 of possession to such outside parts of such veins or lodes shall be confined to such 
 portions thereof as lie between vertical planes drawn downwards, as above de- 
 scribed, through the end lines of his location so continued in their own direction 
 that such planes will intersect such exterior parts of such veins or lodes ; 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 claim to 
 enter upon the surface of a claim owned or possessed by another : Provided, 
 always, that a prior location on the dip of a vein or lode shall have priority over 
 a subsequent location on the same vein or lode, though such subsequent location 
 may be upon the apex of the vein or lode ; and provided, always, that in cases 
 where the land in which such claim is situate is lawfully owned or occupied 
 for other than mining purposes, the above section shall be read subject to the 
 rights and interests of such owner or occupier. And it is hereby expressly de- 
 clared that a location laid crosswise of a, vein or lode, so that its centre line 
 crosses the same instead of following the course thereof, will secure only so much 
 of the vein or lode as it actually crosses at the surface, and the side lines of the 
 location will become the end lines thereof, for the purpose of defining the rights 
 
63D MARTIN'S MINING CASES. [vol. 
 
 Mineral Act, of the owners. A location shall be deemed, to have been laid crosswise when the 
 1891. smallest angle made by the centre line falling on the general course of the vein 
 or lode is greater than (45°) forty-five degrees. 
 
 Where lodes 32, Where two or more veins or lodes intersect or cross each other on their 
 
 oritv^of tSle downward dip, priority of title shall govern, and the prior location shall be en- 
 shall prevail titled to all pre or mineral contained within the space of intersection : Provided, . 
 however, that the subsequent location shall have the right of way through the 
 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 space of intersection. 
 
 Right to lodes 33. Where a tunnel is run for the development of a vein or lode the owner 
 discovered in of such tunnel shall, in addition to any mineral claim legally held by him, have 
 a tunnel. the right to all veins or lodes discovered in such tunnel : Provided that the 
 
 ground containing such veins or lodes be marked out by him as a mineral claim, 
 ^nd 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 tvmnel to develop a vein or 
 lode shall be deemed to have been exiiended on such vein or lode. 
 
 Interest in 34. Xhe interest of a free miner in his minei'al claim shall, save as to 
 
 claima chattel pjg^jmg ]ie]d as real estate, be deemed to be a chattel interest, equivalent to a 
 interest. lease, for one year, and thence from year to year subject to the perfonnance 
 
 and observance of all the terms and conditions of this Act. 
 
 Purchase of 35. Any lawful holder of a mineral claim shall be entitled to a Crown grant 
 
 mineral claim thereof on payment to the Government of British Ooumbia 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 
 Columbia Gazette, and in one newspaper circulating in the district in which tlie 
 claim is situate, for sixty days prior to the issuance of the Crown grant. 
 
 Certificate of 30. Whenever the lawful holder of a mineral claim shalUiave complied with 
 
 improvements i]ie following requirements, he shall be entitled to receive from the Gold Com- 
 missioner a certificate of improvements in respect of such claim : — 
 
 (o) Done or caused to be done work on the claim itself in developing a min« 
 to the value of five hundred dollars, exclusive of all houses, buildings, 
 and other like improvements ; 
 (6) Pound a vein or lode within the limits of such claim ; 
 
 (c) Had the claim surveyed by an authorized Provincial Land Surveyor, 
 who shall have made three plats of the claim, and placed one such plat on 
 the No. 2 or centre post of the claim, or on a post as near thereto as 
 possible, and who shall have accurately defined the boundaries of such 
 claim by placing monuments or legal posts at the angles or corners of 
 such claim, and who shall have also examined the work done on the mini 
 itself for the development thereof, and made an affidavit setting out fully 
 the particulars of such work, exclusive of houses, buildings, and other 
 like improvements, and to the best of his belief the value of such work, 
 and that a vein or lode has been found to exist on the claim; 
 
 (d) Shall have posted on the same post as the said plat, and also on the out- 
 side of the oflSce of the Mining Recorder, a legible notice in writing of his 
 intention to apply for a certificate of improvements, 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 a certificate of improvements at the end 
 of sixty days, for the purpose of obtaining n Crown grant ; 
 
 5. The date of the notice : 
 
I.] APPENDIX A.— MINING STATUTES. 631 
 
 (e) Inserted a copy of such notice in tbe British Columbia Gazette, and in Mineral Act, 
 one newspaper circulating in the district in which the claim is situate, for 1891. 
 
 at least sixty days prior to such application, which insertions can be made 
 
 at any time after the posting of the notice on the claim ; 
 
 (/) F'iled with the Mining Recorder — 
 
 1. Affidavit of the holder of the claim, or his agent, in form " H " in 
 Schedule of this Act; 
 
 2. Affidavit of the said surveyor in form " G " in Schedule of this Act ; 
 
 3. Two copies of the plat of such claim ; 
 
 4. The surveyor's original field-notes. 
 
 37. Provided, nevertheless, that no certificate of improvements shall be Cei tifioate not 
 granted in respect of a mineral claim the title to which is in litigation, and a granted when 
 certificate of improvements granted in respect of any such claim shall be null claim is in 
 and void. litigation. 
 
 38. After the issuing and recording of such certificate of improvements, and Effect of cer- 
 wille such certificate shall be in force, the claim shall not be deemed abandoned t'fieate of im- 
 or forfeited on account of the holder thereof failing to take out a free miner's P™^ements. 
 certificate, and it shall not be necessary to do any work thereon. 
 
 39. On the granting and recording of such certificate of improvements in re- Record of cer- 
 spect of a mineral claim situate outside of the railway belt, the holder thereof tifioate of im- 
 shall be entitled to a Crown grant of such claim without the payment of the proyements 
 twenty-five dollars per acre required by section 35. And on the granting and entitles owner 
 recording of such certificate of improvements in' respect of a mineral claim situate l^rown 
 inside the railway belt, the holder thereof shall be entitled to a Crown grant of ^"^ ° ' 
 
 such claim on the payment of one hundred and five dollars to the Mining Railway Belt. 
 Recorder. 
 
 40. The holder of a mineral claim for which a certificate of improvements Application 
 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 appli- 
 cation 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 Transfer 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 
 eioner, tbe new holder of the claim shall be entitled to a certificate of improve- certificate, 
 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 "N^'orks, the Crown grant shall issue to the new 
 holder of the claim. 
 
 42. The issuance of a Crowu grant shall not invalidate any lien which may q^^^^ grant 
 have attached to any mineral claim previous to the issuance of such Crown joes not in- 
 trant, validate a lieii. 
 
 43. A Crown grant of a mineral claim located on any waste lands of the ^[j^j passes 
 ■Crown shall be deemed to transfer and pass the right to all minerals, precious j^y crown 
 
 or base (excepting coal), found in veins, lodes, or rock in place, and whether grant on waste 
 such minerals are found separately or in combination with each other,, in, upon, lands. 
 
68? 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Mineral Aot, Of under the land in the said Crown grant mentioned, including the rights set 
 1891. forth in section 31 of this Act, and may be in the following form : — . 
 
 {Royal Arms.) 
 " Mineral Act." 
 
 Peovince or \ 
 
 Bbitish Columbia. I 
 
 No. ) 
 
 Form. ViCTOELA., 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, ili 
 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 oflScial 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 successors, 
 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 sjiall 
 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 tee 
 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 hereditaments hereby granted, as may be reasonably required for agri- 
 cultural or other purposes in the vicinity of the said land, upon paying there- 
 for 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 , IJeutenant-Governor of 
 
 Our said Province, at Our Government House, in Our City of AHctoria, 
 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 ^^- Crown grants of mineral claims located on lawfully occupied lands the 
 
 by Crown 'ight whereon to enter, prospect and mine all minerals (other than coal) has 
 
 grant when all been reserved to the Crown and its licericees, 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 place, and whether such minerals are found separately or in combination with 
 
 reserved. ig^ch 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 
 
 elaims 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 : — 
 
!•] APPENDIX A.— MINING STATUTES. 
 
 63S 
 
 (Royal Arms.) Mineral Act, 
 
 " Mineral Act." -"^ 
 
 Pkovince or •\ 
 
 British Columbia, l 
 No. ] 
 
 Victoria, by the Grace of God, of the United Kingdom of Great Britain and Form. 
 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 piovialng for the 
 acquisition of minerals other than coal) , give and grant unto h heirs 
 
 and assigns, all minerals, precious and base (save coal), which may be 
 found in veins, lodes, or rock in place, and whether such minerals are found 
 separately or in combination with each other, under 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 minerals unto the 
 
 said h heirs and assigns forever, excepting nevertheless [set 
 
 out any exceptions.} 
 
 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 imder any parts 
 of the said land as may be reasonably required for agricultural or other pur- 
 poses in the vicinity of the said land, upon paying therefor a reasonable compen- 
 sation 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. 
 
 (Where the mineral claim is located on land lawfully occupied under a tim- Claims on 
 ber lease, the Crown grant shall convey the surface and minerals, precious and timber lands, 
 base (save coal) found in veins, or lodes, or rock in place, but shall reserve the 
 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 
 and 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 been re- 
 holders of mineral claims so located in section 31 of this Act ; but such Crown served, 
 grant shall expressly reserve the rights of such prior occupant, and may be in 
 the following form : — 
 
 (Royal Arms.) 
 " Mineral Act." 
 
 Province or ] 
 
 British Columbia, r 
 No. ) 
 
 Victoria, by the Grace of God, of the United Kingdom of Great Britain and Form. 
 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 cofiditions of the laws providing for the 
 
•634 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Mineral Act, acquisition of minerals other than coal) , give and grant unto h heirs 
 
 1891. and assigns, all gold, and silver which may be found in veins, or lodes, or rock 
 
 in place, under all that parcel or lot of land situated and 
 
 numbered on the oflSclal plan or survey of the said To 
 
 have and to hold the said minerals unto the said h heirs 
 
 and assigns forever, excepting nevertheless, [set out any exceptions.] 
 
 Provided also, that the grant hereby made of the said minerals shall be 
 subject to the lavi^s 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 Keign. 
 
 By Command. 
 
 Particulars 
 required to be 
 furnished by 
 adverse 
 .claimant, 
 
 How adverse 4G. Should there be an adverse claimant for a mineral claim, or any part 
 
 •claiinant thereof, such claimant shall, at some time prior to the granting and recording 
 
 prc>secutes his ^f ^^^ certificate of improvements, commence proceedings in some Court of 
 ^ *'""■ competent jurisdiction with a view to determine the matters in dispute, 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. And such claimant shall 
 also give notice in writing to the Gold Commissioner or Mining Recorder of such 
 ^ adverse claim before the granting and recording of such certificate of improve- 
 
 ments. After the granting of such certificate of improvements, no action shall 
 be brought with respect to the title to such claim except on the groimd of fraud. 
 
 47. On notice being given of any adverse claim and proceedings brought, the 
 applicant for the certificate of improvements may apply to the Judge of the 
 Court in which such proceedings are brought for an order requiring the adverse 
 claimant to file full particulars of his adverse claim, and, if such Judge shall 
 think fit, a plat made by an authorized Provincial Land Surveyor of any dis- 
 puted ground, which particulars and plat shall be filed with the Registrar of the 
 Court within a time to be fixed by such order. If such particulars and plat shall 
 not be so filed within such time as aforesaid, such adverse claim'shall lapse, and 
 judgment in such proceedings with costs shall be entered for the applicant for tW 
 certificate of improvements : Provided, always, that it shall be competent for such 
 Judge, by order, to extend the time for the filing of such particulars and plat, 
 upon cause being shewn. And any order for particulars or for extension of time 
 made under this section may be made es; parte. 
 
 Adverse claim 48. If an adverse claim shall only affect a portion of the ground for which 
 Jiffecting only a certificate of improvements is applied, the boundaries of such portion shall be 
 shewn by a plat of the entire adverse claim, and the applicant may relinciuish 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. 
 
 portion of 
 •claim. 
 
 After judg- 
 ment is given 
 
 49. When judgment in such case is rendered by the Court, a memorandum of 
 such judgment shall be entei-ed in the " Record Book;" and if by any judgment 
 the original boundaries of any claim shall be changed, a plat made by a Pro- 
 vincial Land Surveyor, and signed by the Judge by whom the judgment has been 
 given, shall be filed in the oflSce of the Mining Recorder. 
 
■I-] APPENDIX A.— MINING STATUTES. 
 
 635 
 
 50. Every conveyance, bill of sale, mortgage. Or other document of title Mineral Act, 
 relating to any mineral claim, rnine held as real estate, or mining interest, shall 1891. 
 
 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 Records of 
 same as between the parties thereto, but such documents as to third parties shall documents of 
 take effect from the date of such document. *'"*• 
 
 51. No transfer of any mineral claim, or of any interest therein, shall be Valid transfer 
 enforceable unless the same shall be in writing, signed by the transferrer or by of mineral 
 his agent authorized in writing, and recorded by the Mining Recorder ; and if claim, 
 signed by an agent, the authority of such agent shall be recorded before the 
 
 record of such transfer. 
 
 52. The transfer of any real estate acquired under the provisions of the Transfer of 
 " Gold Mining Amendment Act, 1873," or under this or any Act relating to real estate 
 minerals other than coal, shall be in writing, signed by the transferrer or lis under "Gold 
 agent authorized in writing, and must be by deed and recorded by the Mining Mining 
 -Recorder. Amendment 
 
 Act 1873." 
 
 53. In case of the death of any free miner, his mineral claim shall not be Death of 
 open to location by any other person, either during his last illness or for the free miner, 
 period of twelve months after his decease. 
 
 54. No free miner shall suffer from any acts of omission, or commission, j-j-yUg „f Q(,v. 
 ■or delays on the part of any Government official, if such can be proven. ernraent 
 
 officials. 
 Mill Sites. 
 
 55. A free mirev may locate any unoccupied and unreserved Crown land not Location of 
 known to contain mineiai, and not exceeding five acres, as a mill site. No jj,;ii gites. 
 free miner shall hold at any one time more than one mill site obtained by hiin 
 
 under this section. Such mill site shall be as nearly as possible in the, fo'-in 
 of a square. On locating a mill site, the free miqer shall comply with the 
 following requirements : — . 
 
 (a) Mark out the land by placing a legal post at each corner; 
 
 (6) Post a notice on each post, stating — 
 
 1. The name of such free miner ; 
 
 2. The number of his free miner's certificate ; 
 
 3. His intention, at the expiration of sixty days from the date of 
 the notice, to apply for the land as a mill site ; 
 
 4. The date of the notice. 
 
 (c) Post a copy of such notice on the office of the Mining Recorder. 
 
 56. On the expiration of sixty days after the fulfilment of the above jj^gg^rder may 
 requirements, the free miner shall deposit, in duplicate, a plat of the said land grant lease for 
 with the Mining Recorder, and prove by affidavit that he has complied with the one year, 
 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 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 mill site upon payment of five dollars per acre for such 
 land. Any free miner 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 entitled to a Crown grant of such mill site. 
 
636 
 
 MARTIN'S MINING CASES. 
 
 [VOL- 
 
 Mineral Act, 
 1891. 
 
 Application 
 for mill site. 
 
 What passes 
 by Crown 
 grant of mill 
 site. 
 
 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 Recoi^djer; 
 
 (2) Beposit 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 or constructed oui 
 the mill site to the value of at least five hundred dollars ; 
 
 (e) Application for the Crown grant; 
 
 if) Affidavit that the applicant holds no other mill site obtained by- 
 him under this Act. 
 
 58. Crown grants of mill sites shall pass to the grantee all the surface of the- 
 land in the said Crown grant mentioned, but all such Crown grants shall ex- 
 pressly reserve all minerals under the said land, and the right to the Crown 
 and its licencees to enter and mine the said minerals, and .nay be in the- 
 following form : — 
 
 [L.S.] (Royal Arms.) 
 
 Province or ] 
 
 Bbitish Columbia, j- 
 
 NO. ) 
 
 Form. 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 shalj 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 aud 
 
 numibened 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 appurten- 
 ances, unto the said h heiis 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 oi- 
 their authority, to resume any part of the said lands which it may be deemed 
 necessary to resume for making roads, canals, bridges, towiug 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 occu- 
 pation 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 there- 
 out 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 privi- 
 leges, and to have and enjoy such rights of carrying water over, through, or 
 
it.] APPENDIX A.— MINING STATUTES. 637 
 
 under any parts of the hereditaments hereby granted, as may be reasonably re- Mineral Act ' 
 •quired for mining or agricultural purposes in the vicinity of the said heredita- 1891. ' 
 
 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 auth- 
 orized in that behalf by Us, Our heirs and successors, to take from or upon 
 a,ny 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 works. 
 
 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 , in the year of Our 
 
 Reign. 
 
 By Command. 
 
 Tunnels and Drains. 
 
 59. Any free miner, being the holder of a minteral claim or rdine held as License to run 
 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 drains . 
 
 the development or working of such claim or mine, through any occupied or un- 
 occupied lands, whether mineral or otherwise, upon security being first de- 
 posited 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 Rights. 
 
 60. A tree miner who is the holder of a mineral claim or mine held as real Grant of 
 estate, or of any mill site, may, at the discretion of the Gold Commissioner, water right, 
 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 terms 
 and conditions as such Gold Commissioner shall think fit. 
 
 61. Before applying for any such grant, the free miner shall — ■ What must be 
 <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 ^PP'y'nff '<"■ * 
 of such notice on the office of the Mining Recorder for at least sixty ^™" ' 
 days, which notice shall contain the following particulars : — 
 
 (a) The name of each applicant; 
 
 ( 5 ) The number of each applicant's free miner's certificate ; 
 
 (c) The name, or if unnamed, a sufficient description of the stream, 
 lake, or other source from which such water is intended to be 
 taken ; ' 
 
 (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 the notice. 
 
 1(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. 
 
 62. The grant of such -water right shall be recorded in the office of the Record of 
 ilining Recorder within the time limited for the recording of mineral claims, grant. 
 "Which time can be extended by the Gold Commissioner in his discretion. 
 
638 
 
 MARTIN'S MINING OASES. 
 
 [vot.. 
 
 Mdneral Act, 
 
 Priority of 
 notice. 
 
 63. No grant shall take effect until recorded. 
 
 64. On any dispute prior to such grant, priority of notice shall constitute- 
 priority of right. 
 
 Date of grant. 65. A grant duly recorded shall speak from the date of the grant, and not 
 from the date of the record. 
 
 Rights of 
 miners work- 
 ing on the 
 stream. 
 
 66. Every such grant shall be subject to the rights of such free miners as 
 shall, at the date of such grant, be working on the stream above or below the 
 ditch, head, and of any other persons lawfully using such water fpc any pur- 
 pose whatsoever ; and such grant shall be deemed as appurtenant to the min- 
 eral claim, mine held as real estate, or mill site iii respect of which it has 
 been obtained, and wienfiv^r the claim or mine, shall have hepn worked- out or 
 abandoned, or whenever the occasion for the use of the water upon the claim, 
 mine or mill site shall have permanenty qeased, the grant shall be at an end 
 and determined. 
 
 Water not to ' 67. No person shall be entitled to any such grant of water for the purpose 
 be sold. of selling such water, or of using the same otherwise than for the purpose for 
 
 which the water was recorded. 
 
 (Jqinmeuce- 
 men't of con- 
 struction of 
 works. 
 
 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 con- 
 vey the water, and shall prosecute the same diligently and uninterruptedly to 
 completion, unless interrupted by the severity of the weather: Providedi alw.ays, 
 that the Gold Commissioner may, in his discretion, allow such work, to cease ■ 
 for any time, upon cause being shewn. Upon the non-fulfilmenti of "any of the - 
 conditions of this section the grant shall be forfeited. 
 
 Change of gg. xhe Gold Commissioner shall, in his discretion, have power to allow 
 
 !?;*«^ diver- g grantee of any water right to change the place of diversion, on giving such 
 notices and complying with such terms as the Gold Commissioner may require. . 
 
 iiion. 
 
 Wilful waste 70. Every such grantee shall take all reasonable means for utilizing ths 
 
 of water. water granted to him ; and if he wilfully waste any water, or take a quantity 
 
 of water in excess of his requirements, the Gold Commissioner may declare 
 
 his grant to be forfeited. 
 
 Power to 71. Any person desiring to bridge any stream, claim, or other place, for 
 
 bridge stream, any purpose, or to mine under or through any ditch or flume, or to carry water 
 **"■ through or over any land already occupied, may do so with the written sanc- 
 
 tion 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. 
 
 Kules for mea- 
 surement of 
 water. 
 
 72. In measuring water in any ditch or sluice, the following rules shall be 
 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. 
 
 Notice to be 73. Whenever it shall be intended, in forming or upholding any ditch, to 
 
 given on ap- enter upon and occupy any part of a registered claim, or mine held as real 
 proaching any estate, 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 or mine, three days' 
 notice in writing of such intention shall be given before entering or approaching 
 within twenty feet of such other property. 
 
 ditch. 
 
I.] APPENDIX A.— MINING STATUXES. 639, 
 
 li. Any person heretofore or hereafter engage^ in the construction of any Mineral Act, 
 Kipftd or worl^ may, with the sanction of the (iold Commissioner, cross, ijiyert, 1891. 
 
 or otherwise interfere with any ditch, water right, or other mining rigj^ts what- 
 
 soever, for such pelod as the said Commissioner shall direct. Right todiverb. 
 
 aditeh. 
 
 75. The owner of any ditch, flume, or pipe ^all, at his own expense, con- Ownsr to pro- 
 s^ruct, secure, and mantaiu all culverts necessary for the passage of waste and vide for waste 
 sujwrfluous water flowing through or over any such ditch, flume, or pipe. water. • 
 
 76. The owner of any ditch, flume, or pipe shall construct and secure the Owner to keep, 
 s:^^ in a proper and substantial manner, and maintain the same in good ditch in repair, 
 repair to the satisfaction of the Gold Commissioner, so that no dan^age shall 
 
 Qgcur to any road or work in its vicinity, from any part of the worksi of such 
 ditch, flume, or pip?. 
 
 77. The owner of any ditch, flume, or pipe shall he liable and shall make Owner liable 
 jjopd, in such manner as the Gold Commissioner shall determine, all damages for damages, 
 which may^be occasioned by or through any parts of the works of such ditch, 
 
 ^ume, or pipe breaking or being imperfect. 
 
 78. If any written notice to the party intended to be affected thereby be What eonsti- 
 ppsted for ten days on some conspicuous part of any premises . referred to in tutes sufficient 
 siich notice, and also in the office of the Mining Kecordier, such notice shall be notice, 
 deemed good and sufficient. 
 
 79. When the term for which any water right has been granted shall have Renewal of 
 ^jraired, the grantee thereof may, at the discretion of the Gold Comwissiftper, term for water 
 q^taip a renewal of the same for' a reasonable term, not to exceed ten years, right, 
 jpovided the necessity for the use of said water for the purpose for which it 
 
 \jras originally granted continues to exist. 
 
 80. Nothing herein contained shall be construed to limit the right of the Chief Comniis- 
 Chief Commissioner of Lands and Works to lay out, from time to time, the aioner may lay 
 public roads of the Province, across, through, along, or under any ditch, water o"* •'oao^' <*'<'■ 
 light, or mining right, in any Crown laud, without compensation, provided that 
 
 as little damage as possible shall be done in so doing. 
 
 Part III. 
 ^ Mining Partnerships. 
 
 81. All mining partnerships shall be governed by the provisions hereof, unless Application, 
 they shall have other and written articles of partnership. 
 
 82. A mining partnership shall, unless otherwise agreed upon, be deemed partnerships 
 to be a yearly partnership, renewable from year to year by tacit consent. ^ ^^ annual. 
 
 83. The business of the partnership shall be mining and such other matters Scopeof part- 
 as pertain solely thereto. nership. 
 
 84. Mining partnerships can locate and record in the partnership name a Kecord of iniu- 
 mineral claim for each partner, but the name of every partner, and the num- i,ig partner- 
 her of every partner's free miner's certificate shall be on the record of every such shiiis. 
 
 claim The partnership name must appear on every such record, and all the 
 claims' so taken up shall be the property of the partnership : I'royided, always, 
 that no free miner who is the member of a mining partnership, holding by right 
 of location a mineral claim, shall be entitled to hold by right of location m his 
 own name or in the name of any other partnership any interest m any other 
 mineral claim on the same vein or lode on which the partnership claim is situate. 
 
 85 Should any partner fail to keep up his free miner's certificate, such fail- Pailure to kfep. 
 ure sliall not cause a forfeiture, or act as an abandonment of the partnership up certificate. 
 
■640 MARTIN'S MINING OASES. [vol. 
 
 Mineral Act, claim, but the share of the partner who shall so fail to keep up his free miner's 
 
 1891. certificate shall become vested in his partners, pro rata, according to their 
 
 former interests. ' 
 
 to vcrte""^'^ ^^' ■^ partner in any mining partnership or his agent authorized in writing 
 
 . ■ ■ shall, at any meeting thereof, be entitled to vcjte 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. 
 
 Majority to 87. A majority of such votes may decide when,, how long, and in what man- 
 
 make assess- ner to work the partnership claim, the number of men to be employed, and the 
 ments. 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 assessmehtrs 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 arid 
 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 miniiig dispiites may, if requested, 
 summon the foreman or manager before it, and upon hearing the facts make 
 such order as it shall deem just. 
 
 Asgessmentsto 88. All assessments shall be payable within thirty days after being made., 
 be paid within .... 
 
 dftdays. gg ^jjy partner making default in payment after receiving a notice specif y- 
 
 Default in ing the amount due by him, shall, if such amount be correct, be personally liahlB 
 payment of therefor to the partnership, and his interest in the partnership property may be 
 assessment by gold by the partnership for the payment of the debt, and any further assess- 
 partner. ment 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 insufiBcieat to pay ofE the several sums mentioned, the Court having jurisdic- 
 tion in mining disputes nporl being applied to, sliall 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 pub- 
 lished 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. 
 
 Effect of notice 90. After a notice of abandonment in writing shall have been served on 
 of abandon- the foreman or manager of a partnership by any member thereof, and duly 
 vtent. recorded, such member shall not be liable for any debts or other liabilities of 
 
 the partnership incurred after service and record of such notice, and no mem- 
 ber shall be deemed to have abandoned an interest until service and record of 
 such notice. 
 
 Title to aban ^1- Upon the abandonment of any share in a mining partnership, the title 
 
 doned share to' the abandoned share shall vest in the continuing partners pro rata according 
 
 vests in con- to their former interests. 
 
 tinning 
 
 partners. 92. Any partner shall be entitled to sell, or contract for the sale of, his 
 
 Partner may interest in the partnership property, but such interest shall continue liable for 
 
 sell his mterest j^,j ^.j^g jgj,ts of the partnership. 
 
 After sale, 
 
 partner not gg jj^ partner shall after a bill of sale conveying his interest has been re- 
 
 of partnership' corded be liable for any indebtedness of the partnership incurred thereafter. 
 
I] APPENDIX A.— MINING STATUTES. 641 
 
 Limited Liability. Mineral Act, 
 
 1891. 
 
 94. Any mining partnership composed of two or more free miners may limit 
 
 the liability of its members, up'on complying with the requirements following, Limited 
 that is to say: — liability. 
 
 Upon filing with the Mining Recorder a declaratory statement, containing 
 the name of the partnership, the location and size of erery 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." 
 
 95. The words " Limited Liability " shall thereupon become part of the Addition of 
 partnership name. limited liabi- 
 lity to com- 
 
 96. After such conditions shall have been complied with, no member of such ^^"^ * rmrne. 
 partnership shall be liable for any indebtedness incurred thereafter, beyond ^*?.®'=' ?/ J™''" 
 an amount proportioned to his interest in the partnership. ed liability. 
 
 97. Every such partnership shall keep a correct account of its assets and Accounts to 
 liabilities, together with the names of the partners, and the interest held by be 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. 
 
 98. Every partner In such partnership shall be at liberty to sell or dispose Partner may 
 of his interest therein, or of any part thereof, to any other free miner. sell. 
 
 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 bable for debts 
 be liable for any Indebtedness of the partnership incurred thereafter. ot partnership 
 
 100. No such partnership shall declare any dividend until all its liabilities Dividends, 
 have been paid. 
 
 101. Every such partnership shall appoint a foreman or manager, who Appointment 
 shall represent the partnership, who shall sue and be sued in the name of the of foreman . 
 partnership, and his contracts in relation to the business of the partnership 
 
 shall be deemed to be the contracts of the partnership. 
 
 102. No such partnership shall be liable for any other indebtedness than that To what part- 
 contracted by its foreman or manager, or by its agent duly authorized In nership is 
 writing. liable. 
 
 103. Should any such partnership fail to comply with any of the provisions failure to 
 of this Act relating exclusively to " limited liability " partnerships, such partner- comply with 
 ships shall, from the date of such failure, cease to be a " limited liability " provisions, 
 partnership. 
 
 Pabt IV. 
 Mining Recorders — Appointment, Duties, Powers. 
 
 104. The Lieutenant-Governor in Council may appoint any person to be a ^ppoj^t^gnj 
 Mining Recorder in and for any part of the Province. of Mining 
 
 Recorder. 
 
 105. Where mineral land is discovered in a part of the Province so situate jjiegtjon ^f 
 that the provisions of this Act as to free miners' certificates and records of Recorder by 
 mining property cannot be justly applied or enforced by reason of there being no miners. 
 Gold Commissioner or Mining Recorder in the locality, it shall be lawful for 
 
 Tw M n 41 
 
642 
 
 MARTIN'S MINING CASES. 
 
 [vor,.. 
 
 Mineral Act, the miners of sucli 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 (?f mining 
 
 property ; and such certificates and records shall be valid, notwithstanding any 
 informality tlierein : 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. 
 
 Rfloorder to 106. Every Mining Recorder shall issue free miners' certificates and " sub- 
 
 issue certifi- stituted certificates " ,to all persons and companies entitled thereto, 
 cates. 
 
 Book of forms. 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. 
 
 Books to be 
 kept by Min- 
 ing Recorder. 
 
 Record of 
 claim. 
 
 108. Every Mining Recorder shall keep the following books :— 
 (a.) A book to be known as the " Record Book " ; 
 (i.) A book to be known as the " Record of Abandonments " ; 
 (e.) A book to be known as the " Record of Aflidavits " ; 
 ((J.) A book to be known as the " Record of Conveyances." 
 
 109. Upon the application of or on behalf of any free miner, and upon 
 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 until 
 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 sec. 24, the Mining Recorder shall issue a certificate of work in 
 
 the Form B in the Schedule to this Act. 
 
 111. Upon issuing such certificate of work, the Mining Recorder shall file- 
 such affidavit and record the same in the Record of Affidavits, and also record 
 such certificate of work in the' Record Book. 
 
 112. Upon receiving a certificate of improvements, the Mining Recorder shall 
 record the same verbatim in the Record Book. 
 
 113. The Mining Recorder shall record all extensions of time, lioencees, per- 
 mits, grants of water rights, and other privileges granted by the Gold Commis- 
 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. 
 
 Re;:ord of 114. Upon the receipt of a notice of abandonment, the Mining Recorder shall 
 
 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 
 
 word " Abandoned," and the date of the receipt by him of the notice. If only 
 
 Filing and 
 record of affi- 
 davit and cer- 
 tificate. 
 Record of cer- 
 tificate of im- 
 provements. 
 
 What Recor- 
 der must re- 
 cord. 
 
'•J APPENDIX A.— MINING STATUTES. 543 
 
 an intei-ffit in a mineral claim is abandoned, and not the entire claim the m- 1 a ^ 
 memorandum in the record shall shew which interest is abandoned ' -^"T^'i^"'' 
 
 o^/i^',^"^! Mining Recorder shall record, by copying out verbatim all affidavits Howards 
 lS™rH o^AffiH ^tf^'"^"*^ brought to him in connection with his office, in the SeTobemSe. 
 
 Ditto. 
 
 Record of Affidavits. 
 
 D ■^"^^' V^^ 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 author- 
 ities, to execute all or any of the above description of documents when brought 
 to him for that purpose. 
 
 117. The Mining Recorder shall record in the Record Book all other docu- Record of 
 ments relating to mining property which may be brought to him for record, and documents, 
 shall file all such documents which may be brought to him to be filed. 
 
 118. Every entry made in any of the above books shall shew the date on Date of entry 
 which such entry was made. 
 
 119. All books of record and documents filed shall, during office hours, be Book to be 
 open to public inspection free of charge. open for in- 
 spection. 
 
 120. Every copy of, or extract from, any entry in any of the said books, or Office copies to- 
 of any document filed in the Mining Recorder's Office, certified to be a true copy be Kvidence. 
 or extract by the Mining Recorder, shall be received in any Court as evidence 
 
 of the matters therein contained. 
 
 121. Upon receipt from the holder of a certificate of improvements of an Duty of Re- 
 application for a Crown grant, in the proper form, and all jnoneys payable in corder on 
 respect of the claim for which a Crown grant is applied, the Mining Recorder receiving- 
 shall send such moneys, together with the under-mentioned papers, to the Gold application for 
 CominisBioner : — Crown grant. 
 
 ( 1. ) The certificate of improvements ; 
 
 (2.) Affidavit of the holder of the mineral claim or his agent; 
 
 (3.) Affidavit of the Provincial Land Surveyor; 
 
 (4.) A copy of the plat of the mineral claim; 
 
 (5.) The Surveyor's original field-notes; 
 
 (6.) An application for the Crown grant. 
 
 122. Upon receipt from the lessee of a mill site of all the moneys and docu- Duties with 
 ments mentioned in sec. 57, the Mining Recorder shall send the same to the Gold reference to 
 Commissioner. • mill sites. 
 
 123. Before issuing any free miner's certificate, or substituted certificate, or Recorder to 
 certificate of work, or making any entry in any book of record, or filing any collect fees, 
 document, or making any copy or extract therefrom, the Mining Recorder shall 
 
 collect the fees payable in respect thereof. 
 
 124. On being satisfied that at least two hundred dollars' worth of work has Certificate nf 
 been done in any year on any mine held as real estate, by an affidavit setting -work done, 
 out fully the particulars of the work done, the Mining Recorder shall issue to 
 
 the owner of such mine a certificate of work, shewing that such work has been 
 done. The year in this section shall be deemed to commence on the first of 
 January of each year. 
 
 125. It shall be lawful for the Lieutenant-Governor in Council to divide and Minirg 
 subdivide any district into mining divisions, and to establish in each mining divisions- 
 division a Mining Recorder's office. 
 
644 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Mineral Act, 
 1891. 
 
 Effect of 
 establishment 
 of Recorder's 
 office in min- 
 ing district. 
 
 126. Upon the establishment of a mining division, and tie' opening of a 
 Mining Recorder's office therein, under the authority of the last preceding 
 section — 
 
 (o.) Such office, and none other, shall be the proper office for recording all 
 claims, records, certificates, documents, or other instruments affecting 
 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 
 Commissioner or Mining Recorder of the district, it shall, if the same 
 affects or concerns any claim, 'mine held as real estate, dr 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 see. 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 primd 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 of 
 Judicature in this Province. 
 
 Gold 'Gommra- T-27. When there shall be no Mining Recorder for a district or division, the 
 sioner lia» all duties of the Mining Recorder shall devolve upon the Gold Commissioner, and it 
 powers of Mi n shall at all times be lawful for the Gold Commissioner to perform the duties 
 ing Recordpr. of the Mining Recorder, and the Gold Commissioner shall have all the powers of 
 a Minin'g Recorder. 
 
 'Office hours. 
 
 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 fail- 
 ing 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 
 ihoiirs of Such office. 
 
 Pakt V. 
 
 Commissioner 
 may grant 
 licence for 
 tunnels . 
 
 Gold Commissioner's Ministerial Powers. 
 
 Tunnels and Drains. 
 
 129. It shall be lawful for, but not incumbent upon, the Gold Commissioner 
 to grant a licence to any free miner, being the lawful holder of a mineral claim 
 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. 
 
 Water. 
 
 ^ . f ^ 130. It shall be lawful for, but not incumbent upon, the Gold Commissioner 
 
 Grant ol water ^^ 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 
 
 right. 
 
I-] APPENDIX A.— MINING STATUTES. 645 
 
 upon such terms and conditions as the Gold Commissioner shall think fit, upon Mineral Act, 
 being satisfied that all the conditions of see. 61 have been complied vHtb. And 1891. 
 
 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 Kenewal of 
 lawful for, but not incumbent upon, the Gold Commissioner .to renew such grant grant of water 
 for a further period not exceeding ten years, on being satisfied that the necessity right. 
 
 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 Forfeiture of 
 conditions upon which grants of water rights are held, the Gold Commissioner gf^nt. 
 
 may declare the grant to be forfeited. 
 
 133. When such grant shall have been declared forfeited, the Gold Commis- Record of for- 
 sioner shall cause such forfeiture to be recorded by the Mining Recorder in the feiture. 
 Record Book. 
 
 134. The Gold Commissioner may permit the grantee of any water right to (^hang>- of 
 change the place of diversion, on being satisfied that others are not injured by P'ace nf diver- 
 such change. s'""- 
 
 135. The Gold Commissioner may, in all proper cases, grant an authority (jrant of au- 
 in writing to any person desiring to bridge any stream, claim, or other place, thority to 
 
 for any purpose, or to mine under or through any ditch or flume, or to carry make a bridge 
 water through or over any land already occupied, and to any person heretofore over ditch, etc. 
 or hereafter engaged in the construction of any road or work, to cross, divert, 
 or 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 the owner of any ditch, flume, or Owner of ditch 
 pipe to make good, in such manner as such Gold Commissioner shall think fit, liable for 
 
 all damages which may be occasioned by or through any parts of the works of damage, 
 such ditch, flume, or pipe breaking or being imperfect. 
 
 Working of Mines or Claims, and other Poioers. 
 
 137. The Gold Commissioner shall issue to the lawful holder of a mineral igf,ue of cer- 
 claim a certificate of improvements in respect of such claim upon being satisfied tificate of im- 
 that such holder has complied with all the requirements of sec. 36 of this Act, provements. 
 and that such claim is not in litigation. 
 
 138. The Gold Commissioner shall have power to allow a free miner holding ^jj ^^^^^ ^^^^^ 
 adjoining mineral claims. to perform upon any one of such claims all the work be done on 
 required to entitle him to a certificate of work for each such claim, and upon one claim, 
 being satisfied by an affidavit setting out fully the particulars of such work, he 
 
 shall direct the Mining Recorder to issue a certificate of work for each such 
 claim. 
 
 139. 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 
 prejudice or interfere with the rights or interests of others. 
 
 140. The Gold Commissioner may mark out a space of ground for deposits Marking out 
 of leavings and deads from any tunnel, claim, or mining ground, upon such terms space for de- 
 as he may think just. PO^i*^- 
 
 141. The Gold Commissioner shall have the power to summarily order any commissioner 
 mining works to be so carried on as not to Interfere with or endanger the safety ^„ provide for 
 of the public, any public work or highway, or any mining property, mineral public safety. 
 
646 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Mineral Act, claims, mining claims, bed-rock drains, or bed-ro<?k flumes ; and any abandoned 
 1891. works may by his order be either filed up or guarded to bis 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. 
 
 Crown grants 
 under "Gold 
 Mining Am- 
 endment Act, 
 1873." 
 
 142. Notwithstanding anything contained in the " Gold Mining Amendment 
 Act, 1873," or in any. Crown grant issued under the said Act, or under this or 
 any other Act, it shall be lawful for the Gold Commissioner, in his discretion, and 
 with or without any terms or conditions, to allow to the owners of mineral 
 claims all such rights or privileges in and over mineral or other clainis 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. 
 
 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 afiBdavit 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 has put or constructed 
 
 ■work on mill thereon works or machinery or mining or milling purposes to an amount of not 
 ^'*^' less than five hundred dollars, the Gold Commissioner shall issue his certificate 
 
 to that effect. 
 
 Issue of lease 
 of mill site. 
 
 Commissioner 14.">. Upon receipt from the Mining Recorder of the moneys and documents 
 to forward mentioned or referred to in sees. 121 and 122, the Gold Commissioner shall 
 documents, satisfy himself that the same are in order, and then forward the same to the 
 etc., to(Jhief chjef Commissioner of Lands and Works. 
 Commissioner 
 
 of Lands and 
 Works . 
 Power to carry 
 out Act. 
 
 Commissioner 
 to take estate 
 to intestate 
 deceased 
 miners. 
 
 Commissioner 
 to administer 
 estate of intes 
 tate deceased 
 miner. 
 
 146. The Gold Commissioner shall have power to do all things necessary or 
 expedient for the carrying out of the provisions of this Act. 
 
 Administration. 
 
 147. The Gold Commissioner shall take possession of the mining property 
 of any deceased free miner, and may cause such mining property to be duly 
 worked, or dispense therewith at his option. 
 
 148. The Gold Commissioner, or any person authorized by him, ^all take 
 charge of all the property of any deceased free miner until the issue of letters 
 of administration or probate of the will, if any : Provided, however, that where 
 any free miner shall die intestate, and the value of the personal estate of such 
 deceased free miner is less than three hundred dollars, it shall not be necessary 
 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 per- 
 sona,l estate of the deceased, and do all thitigs 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 ■vyhich 
 he sJiaU undertake the- administration, before a Judge of the County Court of 
 the district. 
 
 Pakt VI. 
 
 County Courts. 
 
 Jurisdiction, Procedure, Forms, and Costs. 
 
 Jurisdiction of 149. In addition to the jurisdiction ai>4 powers given to County Courts by 
 County Cf-Hrte the " County Courts Jurisdiction Act," and other Acts, every County Court shal} 
 in mining hs^v^ and exercise, within the limits of its district, all the jurisdiction and 
 mattprp. powers of a Court of Law and Equity— 
 
^•] APPENDIX A.— MINING STATUTES. 
 
 647 
 
 (1.) In all personal actions, where the debt or damages claimed arise Mineral \ct 
 directly out of the business of mining (other than coal mining), or from 1891. ' 
 
 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 con- 
 sumption 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) ; 
 
 i5.) 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 
 claim, mine, or other mining property ; • 
 
 <(8.) In all suits for the dissolution or winding up of any mining partner- 
 ship, 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 Act relating to mining (other than coal mining) ; 
 
 .(10.) In all proceedings for orders in the nature of injunctions, where the 
 same are reqiiisite for the granting of relief in any matter in which 
 jurisdiction is given to the County Court by this Act. 
 
 150. The jurisdiction given to County Courts by this Act shall be known as " Mining juris- 
 the ■' mining jurisdiction " of the County Court, and the words " mining juris- diction." 
 ■diction " shall be written or printed on all summonses, writs, and other process, 
 
 and all other documents in every action or cause brought under the mining 
 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 Courts 
 all actions and suits, and other proceedings brought under the mining jurisdic- and officers, 
 tiou of the County Court, as they now have, or at any time hereafter may have, 
 
 in actions and suits and other proceedings brought under the ordinary jurisdic- 
 tion 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 practice and 
 procedure in County Courts, and all Rules and Orders for the time being 
 
648 
 
 MAKTIN'S MINING CASES. 
 
 [VOL. 
 
 Mineral Act, applicable to the ordinary jurisdiction of the County Court, shall, so far as 
 1891, practicable and not inconsistent with this Act, apply to the mining jurisdiction 
 of the County Court. 
 
 Adjoining 152. Where disputes arise concerning mining property, portions whereof are 
 
 districts. situated in adjoining or different districts, the County Court of either of such 
 
 districts before which the dispute is first brought shall determine it. 
 
 Summonses 153. The hearing of any summons, plaint, or other process in any County 
 
 returnable Court shall not be deferred beyond the shortest reasonable time necessary in 
 forthwith. the interests of all parties concerned, and it shall be lawful for the Registrar to 
 
 make summonses or other proceedings returnable forthwith, or at any other 
 
 time. 
 
 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. in any 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 or under this Act, and notwithstanding any law to the contrary, have the same 
 
 in certam 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 
 
 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, may 
 ad responden- direct the issuing of writs of oapias ad respondendum, ne exeat regno, and capias 
 dum, ne exeat od satisfaciendum in all cases in which by law he has jurisdiction over the 
 regno and subject-matter of the suit, but under and subject to such conditions as a Judge 
 capias ad ^j j.jjg Supreme Court might usually require in applications of a similar nature. 
 
 Paet VII. 
 Penal and Miscellaneous. , 
 
 Penalty for 159. Any person wilfully acting in contravention of this Act, or refusing to 
 
 contravention sbey any lawful order of the Gold Commissioner or of any Judge presiding in a 
 
 of Act. 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. 
 
 Reooverv of 160, All fines and penalties imposed or payable under this Act may be 
 
 penalties recovered by distress and sale of any mining or other personal property of the 
 
 offender ; and in default of suflBcient distress by imprisonment, with or without 
 
 hard labour, not exceeding three months. 
 
I-] APPENDIX A.— MINING STATUTES. (54j) 
 
 161. All fines, fees, and penalties collected under this Act shall be paid into Mineral Act, 
 the Consolidated Revenue Fund of British Columbia. 1891. 
 
 162. Nothing herein contained shall, save where such intention is expressly I''nes, etc., to 
 stated, be so construed as to affect prejudicially any mining rights and interests p ^* i-i"t°rl 
 acquired prior to the passing of this Act ; and all mining rights and privileges K^venue 
 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 eSLTefore 
 and successors, and to the public rights of way and- water. the passing of 
 
 this Act. 
 
 163. Every free miner, on application to the Mining Recorder of the district. Copies of Act- 
 shall be entitled to a printed copy of this Act. 
 
 164. Affidavits and declarations made under the provisions of this Act shall Before whom 
 be made before some Judge or Registrar of a Court of Record, or before some afiBdavits must 
 Gold Commissioner, Mining Recorder, Stipendiary Magistrate, Justice of the be made. 
 Peace, Notary Public, or Commissioner for taking affidavits. 
 
 Pakt VIII. 
 Repealing Clause. 
 
 165. The Acts and parts of Acts mentioned in this section shall stand re- Repealing 
 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 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 in- 
 curred, 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." 
 
 The "Mineral Act," save and except sees. 4, 5, 6, 13, 19, 20, 22, 27, 28, 
 and 29. 
 
 " An Act to amend the ' Mineral Act, 1889.' " 
 The " Mineral Amendment Act, 1890." 
 Paragraph (i) in Schedule A of the " Licences Act." 
 Section 79 of the " Companies Act." 
 
 SCHEDULES. 
 
 POKM A. 
 
 Location Notice. 
 
 Mineral Claim. 
 
 I^ , have this day located this ground as a mimeral claim, 
 
 to be known as the Mineral Claim, 
 
 ■ feet in length. The direction of the centre line is 
 
 Dated this day of - . 189 
 
 fee care to number the posts 
 making the centre post 2. 
 
 Take care to number the posts 1, 2, 3, ) 
 
«650 MARTIN'S MINING CASES. [vol. 
 
 Mineral Act, Foem B. 
 
 1891. 
 
 Record of Mineral Claim. 
 
 Mineral Claim. 
 No. of Certificate, 
 Located by — 
 
 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 ,189 . 
 
 Recorded this day of , 189 . 
 
 Mining Recorder. 
 ^If the stakes are not on the centre line, comply with sec. 11.'\ 
 
 Foem C. 
 
 Record of Partnership Mineral Claim. 
 
 Mineral Claim. 
 Located in the partnership name of 
 The members of the partnership, and the Nos. of their respective- free miner's 
 
 certificates are — 
 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 , 189 . 
 
 Recorded this day of , 189 . 
 
 Mining R-ecorder. 
 [If the stakes are not on the centre line, comply loith see. 17.] 
 
 Foem D. 
 Application for Certificate of Worh. 
 
 m 
 
 Affidavit. 
 
 I, , of , in the District of , 
 
 free miner, make oath and say : — 
 
 I have d^ne, or caused to be done, work on the 
 Mineral Claim, situate at , in the District of , to the 
 
 value of at least one hundred dollars, since the day of , 189 . 
 
 The following is a detailed statement of such work : — 
 
 [Set out full particulars of the work done in the six months in icliich such 
 work is required to le done hy sec. 2^.] 
 
 Sworn, &c. 
 
 [This affidavit may he made iy an agent, and can te altered to suit circam- 
 siances.'] , 
 
^•] APPENDIX A.— MINING STATUTES. 
 
 651 
 
 FOKM E. Mineral Act, 
 
 1891. 
 Certificate of Work. 
 
 (Name of claim.) Mineral Claim. 
 
 This is. to certify that an affidavit setting out a detailed statement of tlie 
 work done on the above claim since the day of , 189 , made 
 
 'by . tas this day been filed and recorded in my office, and in pur- 
 
 suance of the provisions of the Act in that behalf, I do now issue this certi- 
 ficate of wol-k in respect of the above claim to 
 
 Dated 
 
 Gold Commissioner or Mining Recorder. 
 
 FOEJi F. 
 
 Certificate of Improvements. 
 
 Notice. 
 
 Jlineral Claim. 
 
 Take notice that I, , free miner's certificate No. , intend, 
 
 sixty days from the date hereof, to apply to the Gold Commissioner for a cer- 
 tificate of improvements, for the purpose of obtaining a Crown grant of the 
 tbove claim. 
 
 And further tnkp rolirp, that adverse claims must be sent to the Gold Com- 
 missioner and action commenced before the issuance of such certificate of im- 
 Xtrovemeuts. 
 
 Dated this day of , 1S9 . 
 
 FOKM G. 
 
 Certificate of Improvements. ' 
 
 SuEVEYOB's Affidavit. 
 
 1, , of , make oath and say : — 
 
 1. I am an authorized Provincial Land Surveyor. 
 
 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 mouii- 
 ments or legal posts at the angles or corners thereof. 
 
 5. I hf^ve examined the work done on the mine itself for the development 
 thereof, and the particulars of such work are as follows : — 
 
 [Set out fully particulars of work, excluding houses, buildings, and other 
 like improvements.'] 
 
 G. 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 esist on the claim. 
 
 Sworn, &c. 
 
 [If more convenient, tlm particulars of work may Tie made an eieJiiiit to the 
 affidavit, .iny mere verbal alteration ivill not affect the affidavit.'] 
 
652 MARTIN'S MINING CASES. [vol> 
 
 Mineral' Act, FoEM H. 
 1891. .W^l.^^^ 
 i.pplioation for Certificate of Improvements. 
 
 Appijcant's Affidavit. 
 
 I, , of ., in the District of , free 
 
 miner, make oath and say : — - 
 
 1. I am the holder and am in undisputed possession of the 
 
 Mineral Claim, situate at , in the District (or Divi- 
 
 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 6e exclusive of all houses and other like improvements.] 
 
 3. I have found a rein or lode within the limits of the said claim. 
 
 4. I have had the claim surveyed by , who is an authorized 
 Prvavincial 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 
 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 Mining 
 Recorder's oflSce at , which said notice and plat have been posted 
 for at least sixty days prior to the da,te of this affidavit. 
 
 7. I have inserted a copy of the said notice in the British Columbia Gazette, 
 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 ic made by an. agent, and can he altered to suit clrcum- 
 ' stances.] 
 
 POBM I. 
 
 Certificate of Improvements. 
 
 Mineral Claim. 
 This is to certify that . , of , in the District of 
 
 , free miner's certificate No. , has proved to my 
 
 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 
 
 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 Com,missioner. 
 
 This certificate will become void unless a Crown grant is applied for within 
 three months. from its date. 
 
 [Form may he altered to suit circumstances. ] 
 
 Form J. 
 Application for Grown Grant of Mineral Claims. 
 
 Mineral Claim. 
 To the Mining I^ecorder of : 
 
 Sib, — I herewith enclose the sum of dollars and the following 
 
 documents, relating to the above claim :^ 
 Certificate of improvements. 
 
«•] APPENDIX A.— MINING STATUTES. g53 
 
 Affidavit of (surveyor's affidavit) . Mineral Act 
 
 Affidavit of 1891. 
 
 Copy of plat of claim. 
 
 Copy of surveyor's field-notes. 
 
 And I do hereby apply for a Crown grant for the above mineral claim. 
 
 Yours re^ectfully, 
 Dated 189 . 
 
 FOBM K. 
 
 MUl Site. . 
 
 Notice. 
 
 Take notice that I, , of , in the District of 
 
 , free miner's certificate No. , intend, sixty days from 
 
 the date hereof, to apply for • acres of land for a mill site, situate 
 
 at , in the district of , as a mill site. 
 
 Dated 
 
 FOEM L. 
 
 Mill Site. 
 
 Affidavit of Applicant prior to IjEase. 
 
 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 site, by placing 
 a legal post at Sach corner. 
 
 2. I have posted a notice on each such post, and on the Mining Recorder's 
 office at , a copy of which notice is hereunto annered. 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. 
 
 4. I hold no other mill site obtained by me under the provisions of sec. 
 53 of the "Mineral Act." 
 
 Form M. 
 
 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 
 " Mineral Act," he, the said lessor, doth hereby demise unto the said lessee, 
 bis executors, administrators, and assigns, all that 
 [Describe tKe mill site.'] 
 
 for the term of one year from the date hereof, subject to the provisions and 
 conditions of the " Mineral Act " relating to mill sites. 
 
 In witness whereof, the said parties have hereunto set their hands and seals. 
 Signed, sealed, and delivered 
 
654 MARTIN'S MINING CASES. [vol. 
 
 MiniBr»l Act, FORM N. 
 
 l^^- Mill Site. 
 
 Affidavit or Applicant peiob to Ckown Grant. 
 
 I, , of , in the District of , 
 
 free miner, make oath and say : — 
 
 1. I am the lawful holder of the mill site mentioned in indenture of lease 
 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, &e. 
 
 Form O. 
 
 Mill Site. . 
 
 Ceetificatb 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 dollars, 
 on the mill site described in and demised by indenture dated the day of 
 
 , 189 , and made between 
 during the existence of such lease. 
 
 I Gold Commissioner. 
 
 Form P. 
 Tunnel or Drain Licence. 
 To all whom it may concern r — 
 
 Take notice that , 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 from me to run 
 a tunnel (or drain) from 
 to'ihis said claim (or mine). 
 
 The said licence is granted on these express conditions: — 
 
 [Set out conditions, if any.} 
 Dated 
 
 Gold Commissioner 
 
 Form Q. 
 
 Mill Site. 
 
 Application for Crown Grant. 
 
 To the Mining Recorder at 
 
 Sir, — I enclose herewith the sum of dollars and the under- 
 
 fflentioned 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 Crown grant of the mill site demised by the above- 
 
 meatiohed lease. 
 
 YoUrs respectfully, 
 
I.] APPENDIX A.— MINING STATUTES. 655, 
 
 Form R. Mineral Act, 
 
 1891. 
 Water Notice. 
 
 Take notice that we [Set out name of each applicant and number of each 
 applicant's free miner's certificate} sliall, sixty days from the date of this 
 notice, apply to the Gold Commissioner for a grant of a water right over water 
 in [_Set out the name, or, if unnamed, a sufficient description of the stream, lake, 
 or other source from which water is to ie 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 
 
 FOBM S. 
 
 Water. 
 
 Gkant of Water Right. 
 
 Granted this day of ,189 , to [/Set out every 
 
 grantee's name, and the number of every grantee's certificate'] inches of water 
 out of Isource 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 water is 
 to be MSted], and is to be diverted from its source at a point Ipoint of diversion.] 
 
 Dated 
 
 Gold Commissioner. 
 
 Scale of Fees to be Charged. 
 
 For every free miner's certificate (for each year) $5 00 
 
 Every substituted certificate 1 f'O 
 
 Recording any claim 2 50' 
 
 Recording every certificate of work / 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 . ^50 
 
 For recording every afiidavit, 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." , , , j 
 
 For all records made in the " Record of Conveyances," where the same do 
 
 not exceed three folios • • •. ^ ^" 
 
 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'op extracts exceed three folios, 30 cents per folio for 
 every folio over three. 
 
 For filing any document _ " 
 
 For a Crown grant 
 
«56 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Placer Act, 
 1891. 
 
 H 
 
 54 Vict. Chap. 26. 
 
 An Act relating to Placer Mines. 
 
 iWtn April, ISUJ] 
 
 ER MAJESTY, by and with the advice and consent of the Legislative 
 Assembly of the Province of 'British Columbia, enacts as follows: — 
 
 Short title. 
 
 Interpretation 
 
 "Mine," "pla- 
 •cer mine, " 
 "diggings. " 
 
 "Placer 
 
 ■claim," 
 
 "mining 
 
 property." 
 
 "Creek 
 diggings." 
 
 "Bar 
 
 ■diggings. '' 
 
 "Dry 
 
 diggmgs." 
 " Bench 
 diggings. " 
 
 " Hill 
 diggings. " 
 
 " Streams and 
 ravines." 
 
 " Ditch." 
 "Ditch head." 
 "Free miner." 
 
 ■" Legal post." 
 
 "Record," 
 "register," 
 '"registration." 
 
 Short Title. 
 
 1. This Act may be cited as the "Placer Mining Act, 1891." 
 
 Interpretation. 
 
 2. In the construction of this Act the following expressions shall have the 
 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 
 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 pur- 
 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 ; 
 
 " Creek diggings " shall mean any mine in the bed of any river, stream, 
 or ravine, excepting bar diggings : 
 
 " Bar diggings " shall mean any mine over which a river extends when in 
 its flooded state ; * 
 
 " Dry diggings " shall mean any mine over which a river never extends ; 
 
 "Bench diggings " shall mean any mine on a bench, and shall, for the pur- 
 pose of defining the size of a claim in bench diggings, be excepted from 
 " dry diggings ;" 
 
 "Hill diggings " shall mean any mine on the surface of a hill, and fronting 
 on any natural stream or ravine ; 
 
 " Streams and ravines " shall include all natural watercourses whether usu- 
 ally containing water or not, and all rivers, creeks, and gulches ; 
 
 " 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 
 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 ; 
 
I-] APPENDIX A.— MINING STATUTES. 657 
 
 " Record," when used without qualifying words shewing that a different Placer Act, 
 matter is referred to, shall be taken to refer to the record of the loca- 1891. 
 tion of a placer claim ; 
 
 ■" Full interest " shall mean any placer claim of the full size, or one of « -p^n 
 several shares into which a mine may be equally divided; interest." 
 
 " 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 season." 
 district ; 
 
 ■" Cause " shall include any suit or action ; " Cause." 
 
 "Judgment" shall include "order" or "decree;" "Judgment." 
 
 " Real estate " shall mean any placer mineral land held in fee simple; "Real estate." 
 
 " 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 pur- 
 poses under the "Companies Act, 1862" (Imperial), and shall include 
 all companies falling under the definition of a foreign company in the 
 " Companies Act." ' 
 
 Paet I. 
 
 Free Miners, and their Privileges. 
 
 8. Every person over, but not under, eighteen years of age, and every joint Free miner's 
 Btock company, shall be entitled to all the rights and privileges of a free miner, certificate. 
 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. 
 
 4. A free miner's certificate may be granted for one or more years, to run Duratiou of 
 from the date thereof, or from the expiration of the applicant's then existing certificate, 
 certificate, 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 p'^es. 
 therein. 
 
 5. A free miner's certificate shall be in the following form : — 
 
 BKITISH COLtTMBIA. „ 
 
 Form. 
 Free Miner's Certificate. 
 
 NOT TBANSFEEABLB. 
 
 Date, No. 
 
 Valid for year only. 
 
 This is to certify that of has paid me this day the sum 
 
 of , and is entitled to all rights and privileges of a free miner, for 
 
 year from the day of , 18 . 
 
 (Signature of Gold Commissioner or Mining Recordbr, 
 as the case may ie.) 
 
 6. If any person or joint stock company shall apply for a free miner's cer- ^^^ ^f ^g. 
 tlfieate at the Mining Recorder's office during his absence, and shall leave the ^g^j,,! of cer- 
 fee required by this Act with the officer or other person in charge of the said tificate 
 office, he or it shall be tntitled to have such certificate from the date of such 
 application; and any free miner shall at any time be entitled to obtain a free 
 
 42 
 
658 
 
 MAETIN'S MINING CASES. 
 
 [vou 
 
 Placer Act, 
 1891. 
 
 Substitatsd 
 certificate. 
 
 miner's, certificate cpmmencing 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 
 wi,tli the officer or other person in cha.j"ge of the Mining Recorder's o.^ce, such 
 existing certificate. 
 
 7. If any free, miner's certificate be accidentally destroyed or lost, the owner 
 thereof may, on p.ayment of the fe«s 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 ^uch 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 placer mining shall 
 
 mining with- t^ke out a free miner's certificate, and any person or joint stock company who, 
 out certitoate. j^jngg qj. ^orks as a miner in any placer claim, or on any bed-rock fiume, 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 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. 
 
 Proviso. 
 
 Unless a per- ^- ^'^ person or joint stock company shall be recognized as having any 
 
 son holds oer- right or interest in or to any placer, claim, mining lease, bed-rock flume grant, 
 tificate be shall or any minei'als 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'i 
 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 
 
 plg,cer claim, mining lease, bed-rook 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 
 issued. 
 
 Right of cer ^^- E^^i"? ^^^^ miner shall, during the continuance of his certificate but 
 
 tificate-holder not 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 i-eservations 
 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 occu- 
 pied for placer mining purposes, and also Indian reservations. 
 
 Pree miner to H- 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. g„gji 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. 
 
 Riffht to cut 12. Any free miner may enter upon any Crown lands, or lands covered by 
 
 timberfoismin- timber leases, or any lands the timber whereon has been reserved by the Crown,- 
 ing purposes, to cut timber for mining purposes. 
 
I-] APPENDIX A.— MINING STATUTES. 659 
 
 13. Any free miner shall be at liberty at any period of the year, while Placer Act, 
 actually prospecting or engaged in mining, to kill game for his own use. 1891. 
 
 14. A free miner shall have all the rights and privileges granted to free Rigbt to kill 
 miners by the " Mineral Act, 1891." f'*"'*- 
 
 "Mineral Act, 
 
 PART 11. 1««1-" 
 
 Size and Natube or Placer Claims. 
 Locating, Recording, Be-recording, Working and Lay-overt. 
 
 15. Eyery 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 in free miner may 
 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 ^'''.® °^ placer 
 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 be 100 feet square; 
 
 In " bar diggings " a claim shall be a strip of laud 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, 
 drawn parallel to the main direction of the stream or ravine on which 
 it fronts. Parallel lines dravfn 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. 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 gi^e of claim 
 discovery is established to the satisfaction of the Gold Commissioner, placer on discovery 
 claims of the following sizes, in dry, bar, bench, creek, or hill diggings shall of new mine, 
 be allowed, viz. : — 
 
 To one discoverer, one claim 300 feet in length ; 
 
 To a party of two discoverers, two claims amounting to- 
 gether to 600 do 
 
 To a party of three discoverers, three claims, amounting 
 
 together to 800 do 
 
 To a party of four discoverers, four claims, amounting 
 
 together to 1>000 do 
 
 And to each member of a pa^'ty beyond four in number, a claim of the 
 ordinary size only. 
 
 A creek discovery claim shall extend on each side of the centre of the creek 
 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 New stratum 
 locality where all placer claims are abandoned, shall be deemed a new mine, where all 
 although mines in the same locality shall have been previously worked; and ^^*^°^^ ^'^™" 
 
660 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Placer Act, dry diggings discovered in the vicinity of bar diggings shall be deemed a new 
 189L mine, and vice versa. A discoverer's claim shall be considered as one ordinary 
 
 claim, in respect to recording, working and representing. 
 
 Measurement 19. In defining the size of placer claims they shall be measured horizontally, 
 ot claims. irrespective of inequalities on the surface of the ground. 
 
 Locating, Recording, Re-recording, Working and Lay-overs. 
 
 Shape of claim 20. Every placer claim shall be as nearly as possible rectangular in form, 
 and how and marked by four legal posts at the corners thereof, firmly fixed in the 
 
 ground. One of such posts shall be marked as the " initial post," and on 
 that post shall be placed a legible notice in writing, stating the name of the 
 claim, its length in feet and general direction, with the date of the notice 
 and name of each locator. If any side line of any claim shall exceed 100 feet 
 in length, legal posts shall be placed along such side line, at distances not ex- 
 ceeding 100 feet. 
 
 marked. 
 
 Location made 21. Any location made upon Sunday or any public holiday shall not for 
 on Sunday. that reason be invalid, any law or statute to the contrary notwithstanding. 
 
 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 Act. 
 
 Record of 
 claim. 
 
 "Record 
 Book." 
 
 Proviso. 
 
 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 Re- 
 corder with a written statement of the above particulars. 
 
 Terfeiture by 
 removal of 
 
 24. After the recording of a placer claim, the removal of any post by the 
 holder thereof, or by any person acting in his behalf, made for the purpose 
 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. 
 
 Jififectof record 
 in wrong dis- 
 trict. 
 
 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 min- 
 ing 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. 
 
 Duration of 27. A free miner having duly located a placer claim, shall be entitled to re- 
 
 record, cord the same for one or more years, upon payment of the tees set out in the 
 
 Schedule to this Act. 
 
 Re-record of a 28. A free miner shall, at any time during the existence of his record or 
 cl.iim. re-record, be entitled to extend the term of his interest in his placer claim 
 
I.] APPENDIX A.— MINING STATUTES. 661 
 
 for one or more years, upon payment of the fees set out in the Schedule to this l^laoer Act, 
 Act, by re-recording sufh claim. Such re-record shall be made in the Record 1891. 
 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. 
 
 29. If a free miner shall apply for a record, and shall make such application Application to 
 at the Mining Recorder's office during office hours, but during his absence, and record in Re- 
 shall leave the fee required by this Act, and the particulars and information oorder's ab- 
 required by sec. 23, with the officer or other person in charge of the said office, sence . 
 
 he shall be entitled to have a record dated on the date of such application. 
 
 30. If a free miner shall apply for a re-record, and shall make such appli- game as to re- 
 cation at the Mining Recorder's office during office hours, but during his record, 
 absence, and shall leave the fee required by this Act, and the particulars and 
 information required by see. 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 said existing 
 record or re-record. 
 
 31. A free miner, having duly located and recorded a placer claim, shall fgrms on 
 be entitled to hold the same during the existence of his record or re-recoid of -n-hioh miner 
 such claim upon complying with all the terms and conditions of this Act. may hold a 
 
 claim. 
 
 32. Every free miner shall have the exclusive right of entry upon his placer Right of miner 
 claim, for the miner-like working thereof, and the construction of a residence to his claim, 
 thereon, and shall be entitled exclusively to all the proceeds realized therefrom : 
 
 Provided that the Gold Commissioner may, upon application made to him, pi.oyigo_ 
 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 reason- 
 able. 
 
 33. Upon any dispute as to the title to a placer claim, no irregularity made irregularity 
 prior to the date of the then current record or re-record of such claim shall p^or to record 
 affect the title thereto, and it shall be assumed that up to the date of such „ot tn affect 
 record or re-record the title to such claim was perfect : Provided always, that title to claim, 
 it shall at all times be open to prove that the ground was improperly or in- pf^yigo 
 sufficiently staked, or that the stakes have been illegally moved. 
 
 34. Tunnels, shafts and ditches shall be considered as belonging to the ^^^.^^ ;„ (,o„. 
 placer claim for the use of which they are constructed, and as abandoned or nection with 
 forfeited by the abandonment or forfeiture of the claim itself. claim deemed 
 
 as part thereof 
 
 35. In tunnelling under hills, on the frontage of which angles occur, or j^ tunnelling 
 which may be of an oblong or elliptical form, no party shall be -allowed to in hills rights 
 tunnel from any of the said angles, nor from either end of such hills, so as to of others to be 
 interfere with parties tunnelling from the main frontage. respected . 
 
 36. The interest of a free miner in his placer claim shall, save as to placer interest in 
 mines held as real estate, be deemed to be a chattel interest, equivalent to a claim deemed 
 lease, for such period as the same may have been recorded, renewable at the a chattel in- 
 end thereof by re-recording, and subject to the conditions as to foi'feiture, work- terest. 
 
 ing, representation, re-recording, and otherwise, for the time being in force 
 with respect to placer claims. 
 
662 MARTIN'S Mining cases. [vol. 
 
 Placer Act, 37. The h6lder of a placer claim shall have no right to any Vein or lode, 
 
 1891. 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; 
 riacer'^claiir ^^ ""'^^ ^® ^^^^^ ^° locate and record such ground, the same shall bfe open 
 has no right' to *° ^°^ ^^^ miner to locate and record as a mineral claim, 
 vein or lode. 
 
 Duties of °' ■^'8'^y placer claim as defined by this Act shall be represented and lona 
 
 placer claim- ^^^ worked by the holder thereof, or by some person on his behalf, continuously, 
 holders. as nearly as practicable, during working hours, and shall be deemed to be 
 
 abandoned and absolutely forfeited when the same shall have remained un- 
 worked 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 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 CoinmiSsioner. 
 
 Leave of ab- 39. Every free miner, or Company of free miners, shall be entitled to a leave 
 
 sence. of absence for one year from his or thMr placer claim or set of claims, — 
 
 (o) 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 thousaffld dollars on each 
 full interest, without any return of gold or other minerals in reasonable 
 quantities from such expenditure : and 
 
 (6) Upon the application for such leave being signed by all the holders of 
 the claim or set of claims. 
 
 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. Every forfeiture of a placer claim stall be absolute, any rule of law 
 solute. or equity to the contrary notwithstanding. 
 
 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 bfe deemed to be 
 fore close sea- laid over, unless so much work shall have been bona fide done thereon by th6 
 son not en- holder thereof as shall, in the opinion of the Gold Commissioner, fairly entitle 
 titled to lay ^^^ ^ )^ y^ ^.j^^j^^ j^^jj ^^g^ 
 
 over. 
 
 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 sectioii 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 cessation of work. 
 
 Record of 43. Every bill of sale, conveyance, or mortgage of a placer claim, or of 
 
 charges on any fraction thereof, shall be recorded within the time prescribed for recording 
 claims. placer claims. 
 
 Transfersmust 44. No transfer of any placer claim, or of any interest therein, shall be en- 
 be in writing forceable unless the same or some memorandum theredf shall be in writing, 
 and recorded, signed by the transferrer, or by his agent authorized in writing, and recorded 
 in the Record of Conveyances. 
 
 'Gold Minintr '*^- '^^^ transfer of any real estate acquired under the provisions of the 
 Amendment " Gold' Mining Amendment Act, 1873," shall be in writing, signed, by the 
 Act, 1873." transferrer or his agent authorized in writing, and attested by a subscribing 
 witness. 
 
1-] APPENDIX A.— MINING STATUTES. 
 
 663 
 
 Past III. Placer Act, 
 
 1891. 
 Tunnels and Drains. 
 
 46. Any free miner requiring to run or construct a tunnel or drkin in con- Licence to 
 nection witli his claim through any occupied br unoccupied lands, whether make tunnels 
 mineral or not, shall obtain a licence from the Gold Commissioner for that or drains 
 purpose, which licence shall be granted or Withheld in the absolute discretion thrOiigh other 
 ■of such Gold Commissioiler ; and shall also give such security to the Gold Com- '*"<'• 
 missiOner for any damage that may be caused by such tunnel or drain as such 
 
 Gold Comtaissiorier may require. Such licence shall be subject to such terms 
 and conditions as the Gold Commissioner shall thirik fit, and shall be recorded 
 In the Record Book. 
 
 47. A tunnel or drain shall be considered as part of the placer claim, or To belong to 
 mine held as real estate, for which the same was constructed. claim. 
 
 48. Any free miner may apply to the Gold Commissioner for a grant of Right of way 
 iright of way and entry through and upon any mining ground in his district, for making 
 for the purpose of constructing a drain for public drainage of mines. tunnels. 
 
 49. The application for every such grant shall be in writing, and shall set I"orm of appli- 
 ■out the name of each applicant, the nature and extent of the proposed drain, cation. 
 
 the amount of toll to be charged, the term of years for which such grant is to 
 be made, and all other privileges sought to be acquired. The application shall 
 be left at the Mining Recorder's office addressed to the Gold Commissioner, A 
 notice of such application setting out the above particulars, shall be posted on Notice, 
 the office of the Mining Recorder and on the ground for thirty clear days before 
 such grant shall be made. 
 
 50. The applicant for every such grant shafl deposit with the Mining Re- Deposit of $25 
 corder, at the time of the leaving of his application as aforesaid, twenty-five 
 
 dollars, which shall be refunded in case the application shall be refused. 
 
 51. Such grants shall be in writing and signed by the Gold Commissioner, Grants of right 
 and shall not be given for a longer period than twenty years, and shall give ^^^' " "' 
 such rights of way and entry and such powers to assess, levy, and collect tolls 
 
 from all persons using such drain, or benefited thereby, as the Gold Commis- 
 sioner shall think fit, but not in any case to exceed the term, rights, or powers 
 set out in the application. 
 
 52. The following covenants and conditions on the part of the grantee and Covenants on 
 his assigns shall be deemed to be part of every grant, whether expressed therein part of grantee 
 or not :^ 
 
 (a) That he shall construct a drain or drains of sufficient size to meet all 
 requirements within the time therein named ; 
 
 O) 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 made 
 by any free miners, other than the grantee or his assigns, at the cdst 
 and expense of the latter ; such cost and expense to be levied by 
 sale (subject, however, to the conditions of the graiit) of all or any 
 part of the drainage works, materials, and tolls, or any of them ; 
 
 <e) 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 thei-eof 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 
 rlquest, or after making such commencement shall for three days fail 
 to proceed with such construction, he shall permit such holders to con- 
 struct such tap-drains, in which case such holders shall only be chargeable 
 
664 
 
 MARTIN'S MINING CASES. 
 
 I VOL. 
 
 Placer Act, 
 1891. 
 
 Record of 
 grant. 
 
 with one-half of the specified rates of toll, or such other proportion as the 
 Gold Commissioner may direct; 
 
 (d) That he will not, in the construction and maintenance of such drains 
 and tap-drains, in any way injure the property of others, and that he 
 shall make good any damage done by him. 
 
 53. Every such grant shall be recprded in the Record Book, and the 
 deposited sum of twenty-five dollars shall be retained as a recording fee. A 
 rent of twenty-five dollars for each quarter of a mile and each fraction thereof 
 shall be paid annually to the Mining Recorder by the grantee ; such rent to 
 commence from the date of the grant. 
 
 Pabt IV. 
 
 Water Rights. 
 
 Water rights. 54. Every free miner shall be entitled to the use of so much of the water 
 naturally flowing through or past his placer claim, and not already lawfully 
 appropriated, as shall, in the opinion of the Gold Commissioner, be necessary 
 for the due working thereof. 
 
 Water right in "'^- (J*"-*. oJi. 33, sec. Z.) A free miner may, at the discretion of the Gold 
 unappropri- Commissioner, obtain a. grant to a water right in any unappropriated water, 
 ated water. for any placer mining purpose, for any term not exceeding ten years, upon 
 such terms and conditions as such Gold Commissioner shall think fit. 
 
 How water 
 right obtained 
 
 Record of 
 grant. 
 
 Must be re- 
 corded . 
 
 Grant not 
 made for sell- 
 ing water to 
 mmere on the 
 stream. 
 
 56. Before applying for any such grant, the free miner shall^ 
 
 (1) Post a notice in writing on a legal post upon some conspicuous part 
 of the ground on which such water is intended to be used, and a copy 
 of such notice on the oflSee of the Mining Recorder for at least twenty 
 days, which notice shall contain the following particulars : — 
 
 (o) The name of each applicant; 
 
 (6) The number of each applicant's free miner's certificate ; 
 
 (c) The name, or if unnamed, a sufficient description of the stream, 
 
 lake, or other sourCe from which such water is intended to 
 be taken ; 
 
 (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; 
 (ff) 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 twenty-five dollars, to be refunded 
 if the grant is not made. 
 
 57. The grant of such water right shall be recorded in the office of the 
 Mining Recorder in the Record of Water Grants, within the time limited for 
 the recording of placer claims, and shall during each year of the continuance 
 of the grant, and whilst it shall be in operation, be re-recorded as in the 
 case of a placer claim. 
 
 58. No grant shall take effect until recorded. 
 
 59. No free miner shall be entitled to a grant of the water of any stream 
 for the purpose of selling the water to claim-holders on any part of such 
 stream. The Gold Commissioner may, however, grant such privileges as_ he 
 may deem just, when such water is intended to work bench or hill claims 
 fronting on any such stream; provided, that the rights of free miners then 
 using the water be protected. 
 
!•] APPENDIX A.— MINING STATUTES. gg5 
 
 60. The owner of any water right may distribute the water to such free Placer Act 
 mmevs and on such terms as he may deem advisable, within the limits men- iggi ' 
 
 tioned in his grant: Provided, always, that such owner shall be bound to 
 
 supply water to all applicants, being free miners, in a fair proportion, and Distribution of 
 shall not demand more from one than another, except where the difficulty of water within 
 supply is enhanced. limitB men- 
 
 tioned in grant 
 
 61. If, after the grant has been made, any free miner or free miners locate m^hts nf ,r,i„ 
 and iona fide work any placer claim below the ditch head, on any stream so ers Iooate"be- 
 diverted, he or they shall collectively be entitled to forty inches of water if low ditch head 
 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 diversion 
 of such 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 prior to such grant Priority of no- 
 being made, priority of notice shall constitute priority of right, if any. ''oe. priority 
 
 of right. 
 
 63. A grant duly recorded shall Speak from the date of the grant, and not Date of grant. 
 from the date of the record. 
 
 64. Every such grant shall be subject to the rights of such free miners as Rights of 
 shall, at the date of such grant, be working on the stream above or below the pereons using 
 ditch head, and of any other persons lawfully using such water for any pur- water. 
 
 pose whatsoever. 
 
 65. A grant of a water right made in respect of any placer claim or placer Grant of water 
 mine held as real estate, shall be deemed appurtenant to such claim or mine, right appurte- 
 and whenever the claim or mine shall have been worked out, abandoned or iiant to claim . 
 forfeited, or whenever the occasion for the use of the water upon the claim 
 
 or mine shall have permanently ceased, the grant shall be at an end and de- 
 termined. 
 
 66. Within thirty days after the grant is made, the grantee shall com- When work 
 mence the excavation or construction of the works in which he intends to ™"st be 
 divert and convey the water, and shall prosecute the work diligently and commenced. 
 uninterruptedly to completion, unless interrupted by the severity of the wea- 
 ther: Provided, always, that the Gold Commissioner may, in his discretion. Proviso. 
 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 .^rant shall be 
 forfeited. 
 
 67. Th grantee of any water right may obtain permission from the Gold Change of 
 Commissioner to change the place of diversion, on giving such notices and place of 
 complying with such terms as the Gold Commissioner may require. diversion. 
 
 68. Every such grantee shall take all reasonable means for utilizing the I'orfeiture for 
 water granted to him ; and if he wilfully waste any water, or take a quantity w^s""S water, 
 of water in excess of his requirements, the Gold Commissioner may declare his 
 
 grant to be forfeited. 
 
 69. Any person desiring to bridge any stream, claim, or other place, for any Carrying 
 purpose, or to mine under or through any ditch or flume, or to carry water works across 
 through or over any land already occupied, may do so with the written sane- other land, 
 tion 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. 
 
 70. In measuring water in any ditch or sluice, the following rules shall be Rules for mea- 
 observed : — ^The water taken into a ditch or sluice shall be measured at the surement of 
 ditch or sluice head. No water shall be taken into a ditch or sluice except water. 
 
■666 
 
 MARTIN'S MINING OASES. 
 
 tT6t. 
 
 Placer Aot, in 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 above 
 
 the upper side of the orifice. 
 
 Notice to be 71. Whenever it shall be intended, in forming or upholding any ditch to 
 
 before ao-'^"^'^ enter upon and occupy any part of a placer claim, or placer mine held as 
 proachinK '"®^' estjate, or other land, or to dig or loosen any earth or rock within twenty 
 within 20 feet, ^^^t "^ ^°y ditch thereon, three days' notice in writing of such intention shall 
 
 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 constrnction of any 
 lllow'ditoh to ^°^^ °^ work may, with the sanction of the Gold Commissioner, cross, divert, 
 
 be diverted. 
 
 or otherwise interfere with a:ny ditch, water right, or other mining 
 whatsoever, for su'ch period as the said Commissioner shall direct. 
 
 rights 
 
 Owner to pro- 73. The owner of any ditch, flume, or pipe, shall, at his own expense, con- 
 vide for w»ste 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 ihay determine, all damage 
 which may be ' occasioned by or through any parts of the works of such ditdh, 
 
 caused by 
 defect . 
 
 What is 
 effectual 
 notice . 
 
 Renewal t,f 
 water riglit. 
 
 Bights of 
 Chief Com- 
 
 flume, or pipe breaking or being impetfect. 
 
 76. If any written notice to the party intended to be afEected thereby bfe 
 posted for ten days on some conspicuous part of any premises referred to in 
 such notice, and also on the office of the Mining Recorder, such notice shall 
 be deemed good and sufiicient. 
 
 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 renevral 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 Cominissioner 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 
 right, or mining right, in any Crown land, without compensation, provided that 
 as little dainage as possible shall be done. 
 
 Pabt V. 
 
 Mining Partnerships. 
 
 To what class 79. All mining partnerships shall be governed by the provisions hereof, un- 
 
 this shall jggg ^jj^y gji^n have othei: and written articles of partnership. 
 
 apply. 
 
 Partnerships 80. A mining partnership shall, unless otherwise agreed upon, be deemed 
 
 to be annual. (•(, be a yearly partnership, renewable from year to year by tacit consent. 
 
 Scope of 
 partnership. 
 
 81. The business of Such partnership shall be mining, and such other mat- 
 ters as pertain sblely thereto. 
 
■I'J APPENDIX A.— MINING STATUTES. ggy 
 
 r,iof? ^^'"'°! Partnei-Bhips can locate and record in the partnership name a Placer Act 
 
 ^av L n™. r T" "^Tr ^^° '' "^ ^'^^ "^'"^■•- S™h partnership claims mi ' 
 
 -may be located and recorded as a set of claims, and each such claim shall be 
 
 stated as an ordinary placer claim. One stake on each such claim shall be Rights of 
 marKed as an Initial stake, by writing thereon the words " Initial post " It partherships. 
 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. 
 
 83. A set of claims may be recorded in one record. The name of every d j « 
 partner, and the number of every partner's free miner's certificate, shall be „Xprshn, 
 on the record of every such set of claims. The partnership name shall appear claims 
 on every such record, and all claims so taken up shall be the property of the 
 .partnership. 
 
 ■ ^\ ^, P'^'^''^^'^ '° ^"y mining partnership, or his agent authorized in writ- Right of each 
 ing, shall, at any meeting thereof, be entitled to vote upon any interest or partner to 
 fraction of an interest which he may hold therein; but the result of the votes ^"te. 
 given shall be determined by the number of the full interests voted upon, and 
 not by the number of partners voting at such meeting. 
 
 85. A majority of such votes may decide when, how long, and in what What matters 
 manner to work the partnership claim, or set of claims, the number of men may be decid- 
 to be employed, which number shall not be less than one man to each claim, ed by vote of 
 and the -extent and manner of levying the assessments to defray the expenses partners, 
 incurred by the partnership. Such majority may also choose a foreman or 
 
 manager, who shall represent the partnership and sue arid 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 man- 
 ager. In the event of such parther or agent being discharged by the foreman 
 or manager, the Court having jurisdiction in mining disputes may, if request- 
 ed, summon the foreman or manager before it, and upon hearing the tacts 
 make such order as it shall deem just. 
 
 86. All assessments shall be payable within five days after being made. Assessments. 
 
 87. Any partner making default in payment, after receiving a notice certi- Saleofpartner- 
 fying the amount due by him, shall, if such amount be correct, be personally ^'^'P Property 
 liable therefor to the partnership, and his interest in the partnership property *'° P?^ assess- 
 may be sold by the partnership for the payment of the debt, and any further ™ " ^' 
 assessment which may have accrued thereon up to tlie 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 juris- 
 diction 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. 
 Notice of sale shall, in either of the above cases, be conspicuously posted ten 
 clear days pi:i6r to the day of sale, in the vicinity of such mining or other pro- 
 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 
 afofesaid thirty clear days before the day of sale, and a copy of Siich 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 pos- 
 session of the property sold, and to' a bill of sale therefor signed by the auc- 
 tioneer; such bill of sale shall confer such title upon the purchaser as the 
 owner had. 
 
 88. After a notice of abandonment, in writing, shall have been served on Effect of 
 the foreman or manager of a partnership by any member thereof, and duly notioeof 
 recorded, such member shall not be liable for any debts or other liabilities of abiindonmeni;. 
 
668 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 Placer Act, the partnership incurred after service and record of such notice, and no 
 1R91. member shall be deemed to have abandoned an interest until service and record 
 of such notice. 
 
 Interest when or, . ^ , „ , . , , 
 
 sold continues . °^- -^"y partner shall be entitled to sell, or contract for the sale of, his 
 liable. interest in the partnership property, but such interest shall continue liable 
 
 for all the debts of the partnership. 
 
 Partner re- 
 lieved by sale 
 from future 
 debts of 
 partnership. 
 
 "Limited 
 liability." 
 
 90. Wo partner shall, after a bill of sale conveying his interest has been 
 recorded, be liable for any indebtedness of the partnership incurred thereafter. 
 
 Limited Liability. 
 
 91. Any mining partnership, composed of two or more free miners, and 
 being free from all debts in respect of the partnership property, may limit the 
 liability of its members, upon complying with the requirements following, 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, or set of claims, in large 
 letters, the name of the partnership, followed by the words "Limited 
 Liability." 
 
 to be added to 92. The words " Limited Liability " shall thereupon become part of the 
 *™^' partnership name. 
 
 Effect of same. 93. After such conditions shall have been complied with, no member of such 
 partnership shall he liable for any indebtedness incurred thereafter beyond an 
 amount proportioned to his interest in the partnership. 
 
 Duties of 94. Every ■ such partnership shall keep a correct account of its assets and 
 
 '.'''™ited^ liabilities, together with the names of the partners, and the interest held by 
 
 ri'oriv,;^ P*'^''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. 
 
 nership. 
 
 Partner may ^- Every partner in such partnership shall be at liberty to sell or dispose 
 
 sell his in- of his interest therein, or of any part thereof, to any other free miner ; but 
 terest.« such partner shall be liable for the indebtedness on the said interest in pro- 
 
 portion to his interest in the partnership. 
 
 How to avoid ^^- ^° member of such partnership, after a bill of sale conveying his in- 
 future debts of terest has been duly recorded, or after he has served a notice of abandonment 
 limited liabi- of his interest on the foreman, and left a copy thereof with the Mining Re- 
 lity partner- corder, shall be liable for any indebtedness of the partnership incurred there- 
 ship- after. 
 
 Dividend. 
 
 97. No such partnership shall declare any dividend until all its liabilities 
 have been paid. 
 
 Foreman. 98. Every such partnership shall appoint a foreman or manager who shall 
 
 represent the partnership, and who shall sue and be sued in the name of the 
 partnership ; and his contracts in relation to the business of the partnership 
 shall be deemed to be the contracts of the partnership. 
 
 What debts ^9. No such partnership shall be liable for any other indebtedness than that 
 the partner- contracted by its foreman or manager, or by its agent duly authorized in writ- 
 ship is liable ing. 
 for. 
 
!•] APPENDIX A.— MINING STATUTES. 669 
 
 Pakt VI. ^'^llsi*"*' 
 
 Bed-roch Flumes. 
 
 100. One or more free miners may apply to the Gold Commissioner for a Application 
 grant of exclusive rights of way through and entry upon any mining ground for right of 
 in his district, for the purpose of constructing, laying and maintaining a bed- w*y «"" '^d- 
 lock flume. rock flume. 
 
 101. Every such application shall be in writing, and shall be left at the How applica- 
 Mining Recorder's oflBce, addressed to the Gold Commissioner, and shall state tion is made, 
 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- 
 tion 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 hun- 
 dred and twenty-five dollars, to be left with the Mining Recorder, which shall 
 be refunded if the application be refused, but not otherwise. 
 
 102. Every such grant shall be in writing, signed by the Gold Commis- Term, 
 sioner, and shall be for a term not exceeding five years. 
 
 103. The grantee shall be entitled to the following rights and privileges Richtot 
 that is to say : — • grantee. 
 
 (0) The right of way through and entry upon any new and uhworked 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; 
 
 (1) 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 ex- 
 clusive 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 ; 
 
 (c) 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 Commis- 
 sioner may seem advisable ; 
 
 id) The right of way through and entry upon all placer claims which are 
 at the time of the notice of application before mentioned bona flde 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 : 
 
 if) The right to all the gold or other minerals in his flumes; 
 
670 MARTIN'S MINING CASES. [vol.. 
 
 Placer Act, (ff) No person locating new and un worked or abandoned ground within the- 
 
 1891. 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. 
 
 Claiip-holder 104. A holder of a placer claim through which the line of the grantee's 
 
 may,cpnneot flume is to run may put in a bed-ropk flume in l^ig claim to connect with the. 
 with bed-rook grantee's flume, upon giving the grantee ten days' notice in writing to that 
 flume. effect ; but he shall maintain the like grade and build his flume as thoroughly 
 
 and, of as strong materials as are used by such grantee. 
 
 Duties of such 105. A claim-holder coijstructiiig such flume through his claim shall keep 
 claim-holder jjig Q^j^e free from obstru,ctioii, and he shall be entitled to all the gold or other 
 minerals found therein, but he shall be subject to, the same regulations with 
 regard to cleaning up the flume, repairs, and other matters in which both 
 parties ^^'6 inter^ted, as may be adopted by such grantee ; and such claiip- 
 holder shall haye the right at any time before the abandonment of his claim 
 to become a partner of the grantee, by uniting his cl^m and flume ■^ith the 
 ground and flume of the grantee, and taking an interest proportionate to that 
 wiiich 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 10(B. Tlie grantee shall lay at least one hundred feet of flume during the 
 laid the first firgt year of such grant, and three hundred feet annu9.11y thereafter, until com- 
 year, 300 feet pjetion of the flume ; but the amount of flume to be laid may be reduced at 
 a?ter. ''''"'^^® disci;etioii of thft 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 sljiices, hydrajilics, and ground sluices into 
 
 may make of g^cii flume ; but so as not to obstruct the free working of such flume by rocks, 
 
 a flume. stones, boulders, or otherwise. 
 
 Record of ^.OS. The 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 rent of twelve dollars and fifty cents for each quarter of a mile of 
 
 right of way legally held under such grant. 
 
 Intere.-.t of 109. The interest of the grantee in his grant, and in all flumes and fixtures 
 
 grantee a chat- connected therewith, shall be deemed to be a chattel interest equivalent to a 
 tel interest. jg^gg f(,p jije term of such grant. 
 
 Extension of HO. Uppn the expiration of the grant for a bed-rock fiume, it may be 
 
 term. extended for any further term not exceeding five years for any one extension, 
 
 at the discretion of the Gold Commissioner. 
 
 Forfeiture of 111. Any grant of a bed-rock flume shall be forfeited whenever the grantee 
 
 grant. shall fail to comply with the conditions thereof, or of this Act. 
 
 Paet VII. 
 
 Leases. 
 
 How lease of H^- A free miner desiring to obtain a lease of any placer mining ground 
 
 mining ground shall mark out such ground by placing a legal post at each corner, and shall 
 obtained. 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 ttpplicant; 
 
 (2) The locality of the ground to be acquired; 
 
 (3) The quantity of ground; 
 
 (4) The terms for which such lease is to be applied for. 
 
!•] APPENDIX A.— MINING STATUTES. g^^ 
 
 113. The free miner, after staking tlie ground and posting his notice as piaoer Act 
 aforesaid, shall make an application in writing addressed to' the Gold Com- i89i ^ 
 
 missioner, and leave the same at the office of the Mining Recorder, which appli- ■' 
 
 cation shall set out — Application 
 
 (1) The name of each applicant ; ' for lease. 
 
 (2) The number of each applicant's free miner's certificate ; 
 
 (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 application the free miner shall deposit with the Deposit of 
 Mining Recorder for the use of the Gold Commissioner a plan of the ground, plan. 
 
 in duplicate. 
 
 11.5. Application shall not be made for a longer term than ten years, ex- Term of lease. 
 cepti!ig 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 not be for greater than the following areas or Areas of 
 diBtance.s : — ground. 
 
 In dry diggings, ten acres ; 
 
 In bar diggings unworked, half a mile in length along the high water 
 
 mark ; 
 In bar diggings which have been worked and abandoned, one_ mile and a. 
 
 half in length along the high water mark ; 
 In creek diggings on abandoned creeks, one mile and a half in length ; 
 In bench lands a,djoining 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. 
 
 117. No such application shall be made for any mining ground which is im- Application 
 mediately available for mining by individual free miners, or any portion of nottobemade- 
 which is actually occupied by free miners, unless with the consent of such oc- for ground 
 cupiers. available for, 
 
 or occupied by, 
 
 118. The lease may be granted or refused in the discretion of the Gold J^^'g^f "*' ^"^^"^ 
 Commissioner, who may modify the terms and conditions of any application, _ ' ^ , 
 
 ,,,,,,'.,„.'' oi Lease granted, 
 
 as he shall think fit. at Gold Com- 
 
 missioner's 
 
 119. Every application for a lease for a term exceeding five years, together discretion, 
 with a plan of the ground and the Gold Commissioner's report, shall be for- Application 
 warded to the Lieutenant-Governor, and no lease shall be granted on any such for terms ex- 
 application without his sanction. ceeding five 
 
 years. 
 
 120. Every lease of mining ground shall be in writing signed by the Gold Lease to be in 
 Commissioner and the lessee. writing. 
 
 121. Every lease shall provide for securing to the public reasonable rights Contents of 
 of way and water, and shall contain a covenant by the lessee to mine the lease. 
 ground in a miner-like manner, and shall contain such covenants for the con- 
 tinuous working of such ground as the Gold Commissioner shall think reas- 
 onable, 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- j-Q^feiture of 
 lion in any, lease, such lease shall be declared forfeited by the Gold Commis- j^^^g 
 sioiier, and become absolutely void, and the ground included in such lease shall 
 thereupon be open for location by any free miner. 
 
672 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Placer Act, 123. Leases shall be granted for placer mining only, and shall not be 
 1891. assigned or sub-let without the written consent of the Gold Commissioner. 
 
 Leases to be 124. When any bench lands adjoining unworked or abandoned rivers are held 
 
 only for placer under lease for hydraulic working, the lessee of such land shall be entitled to a 
 
 mmmg. 
 
 Hydraulic 
 workings on 
 bench lands. 
 
 grant from the Gold Commissioner of such quantit;^^ of unappropriated water, 
 from any stream or lake, as may, in the opinion of the Gold Commissioner, be 
 necessary to work the said bench 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 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 
 tihe 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 con- 
 veying 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. 
 
 Record of 125. Every grant, and every extension of a grant of a water right for bench 
 
 water grants, 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 or extension 
 
 annually. 
 
 '^™°' °f '^*^^ ^^^- ^^ ^^^'' ^^ lawful for the Gold Commissioner, with the sanction of the 
 river. 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- 
 poses, 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 such 
 free miner shall locate before or after the date of such lease. 
 
 Appointment 
 of Mining 
 Recorder. 
 
 Appointment 
 of Recorder by 
 miners them- 
 selves . 
 
 Proviso. 
 
 Part VIII. 
 Mining Recorders — Appointment, Duties, Powers. 
 
 127. The Lieutenant-Governor in Council may appoint any person to be a 
 Mining Recorder in and for any part of the Province. 
 
 128. Where mineral land is discovered in a part of the Province so situate 
 that the provisions of this Act as to free miners' 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 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 accord- 
 ance 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. 
 
 Recorder to 
 issue certifi- 
 cates. 
 
 129. Every Mining Recorder shall issue free miners' certificates and 
 stituted certificates " to all persons and companies entitled thereto. 
 
 sub- 
 
i-i APPENDIX A— MINING STATUTES. 673 
 
 130. Such free miners' certificates shall be taken from a printed book of Placer Act, 
 forms, with duplicate counterfoils, one of which counterfoils shall be filed in 1891. 
 the office of the Mining Recorder. 
 
 Counterfoils 
 
 131. Every Mining Recorder shall keep the following books, to be used for '" ^ ^'^i^- 
 placer mining entries : — Books to be 
 
 (o) A book to be known as the "Record Book;" Recorder. 
 
 (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;" 
 
 (e) A book to be known as the " Record of Water Grants ;" 
 
 132. Upon the application of or on behalf of any free miner, and upon Rggord and re- 
 receipt of all the particulars required by sec. 23 of this Act, the Mining Recorder record of 
 shall record any placer claim, by entering all the particulars required by said claims, 
 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 shall 
 be, as near as convenient, in the Form C in the Schedule to this Act. The 
 Mining Recorder shall not make any such record until he has received all the 
 particulars required by section 23, and any record made in violation of this 
 section shall be absolutely void. 
 
 133. The Mining Recorder shall record every lay-over, leave of absence, Record of 
 licence, permit, and other privilege granted and forfeiture declared by the Gold lay-over. 
 Commissioner in the Record Book. 
 
 134. The Mining Recorder shall record all water grants and extensions Record of 
 thereof in the Record of Water Grants. water grant. 
 
 135. Upon the receipt of a notice of abandonment, the Mining Recorder shall Record of 
 record the same in the Record of Abandonments, and file such notice, and write abandonment, 
 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 placer claim is abandoned, and not the entire claim, the memo- 
 randum in the record shall shew which interest is abandoned. 
 
 136. The Mining Recorder shall record, by popying out verbatim, all affidavits Record of 
 and declaratory statements brought to him in connection with his office, in the affidavits. 
 Record of Affidavits. 
 
 137. The Mining Recorder shall record, by copying out verbatim, in the jjeoord of 
 Record of Conveyances, all conveyances, mortgages, bills of sale, contracts for documents of 
 sale, and other documents of title, including powers of attorney, or other author- title. 
 
 ities. to execute all or any of the above description of documents when brought 
 to 'him for that purpose. 
 
 138. The Mining Recorder shall record all other documents relating to Record of 
 mining property which may be brought to him for record, and shall file all such other 
 documents which may be brought to him to be filed. documents. 
 
 139. Every entry made in any of the Mining Recorder's books shall shew Entry to show 
 the date on which such entry was made. date. 
 
 140. All books of record shall, during office hours, be open to public inspec- Books to be 
 tion free of charge, and documents filed shall be open to public inspection upon open for 
 payment of the fee set out in the Schedule to this Act. inspection. 
 
674 
 
 MARTIN'S MINING CASES. 
 
 [vot. 
 
 Placer Act, 141. Every 'copy of, or extract from, any entry in any of the said books, 
 
 1891. or of any document filed in the Mining Recorder's office, certified to be a true 
 
 . copy or ^tract by the Mining Recorder, shall be received in any Court as 
 
 Office omies evidence of the matters therein contained, 
 to be evidence. 
 
 Tees to be 142. Before issuing any free miner's certificate, or substituted certificate, or 
 
 pre-paid. making any entry in any book of record, or filing any document, or making any 
 
 eopy or extract therefrom, the Mining Recorder shall collect the fees payable 
 in respect thereof, as set out in the Schedule to this Act. 
 
 Recorder to 143. ^he Mining Recorder shall receive all applications and other documents 
 
 receive docu- addressed to or intended for the Gold Commissioner, and forvrard the same to 
 mentfor the Gold Commissioner. 
 
 (Jommissioner. 
 
 To receive 144. The Mining Recorder shall receive all deposits of money directed to be 
 
 money under made by this Act, and apply the same as directed by this Act. 
 
 Act. 
 
 To collect 
 rent. 
 
 Moneys col- 
 lected to be 
 paid into 
 J-'rovincial 
 Treasury. 
 Recorder's 
 office. 
 
 Effect of es- 
 tablishing 
 Record office 
 in a mining 
 district. 
 
 Gold Commis- 
 sioner to have 
 all powers of 
 Mining • 
 Recorder . 
 
 145. The Mining Recorder shall collect all rents collectable under the condi- 
 tions of any lease or other documents granted under the pro-visions of 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 and 
 sub-divide any district into mining divisions, and to establish in each or either 
 mining division a Mining Recorder's office. 
 
 148. 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 — 
 
 (o) 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 prop- 
 erty, 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 
 sub-divided 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 131 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 tran- 
 scripts 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 the 
 Province. 
 
 149. When there shall be no Mining Recorder for a district or division, the 
 duties of the Mining Recorder shall devolve upon the Gold Commissioner, and it 
 shall at all times be lawful for the Gold Commissioner to perform the duties of 
 the Mining Recorder, and the Gold Commissioner shall have all the powers of a 
 Mining Recorder. 
 
I.] APPENDIX A.— MINING STATUTES. 875 
 
 150. The Mining Recorder's oflBce shall be open upon all days, excepting piacer Act, 
 public holidays, from 10 a.m. to 4 p.m., and such times shall be deemed the oflBce 1891. 
 hours of such oiEce. 
 
 Office hours . 
 Part IX. 
 
 Gold Commissioner's Powers. 
 
 151. It shall be lawful for the Gold Commissioner to perform the following Powers of 
 acts in accordance with the provisions of this Act ; — Commissioner. 
 
 (o) 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 ; 
 
 (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 ; ^ 
 
 (/) He may, in case of disputed boundaries or measurements, employ a sur- 
 veyor 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 mining posts to be moved ; 
 
 (h) He may summarily order any mining works to be so carried on as not 
 to interfere with or endangei" the safety of the public, any public work 
 or highway, or any mining property, mineral claim, placer claim, bed- 
 rock drain, or bed-rock flume, and any abandoned works may by his 
 order be either filled up, or guarded to his satisfaction, at the cost of 
 the party who may have constructed the same, or, in his absence, upon 
 such terms as he shall think fit; 
 
 (i) He may, upon application made to him, allow a free miner such right 
 of entry upon any adjacent claim as may be necessary for the working 
 of his claim, and upon such terms as may to him seem reasonable ; 
 
 (/) He may grant licences and rights of way for the purpose of construct- 
 ing drains or tunnels, and may exercise such powers as are specified 
 in Part III. of this Act; 
 
 (&) He may grant water rights, and renew the same, and declare the same 
 forfeited, and grant all such privileges, and exercise such powers as are 
 specified in Part IV. of this Act; 
 
 (l) 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; 
 
 (m) He may grant leases of placer mining ground, and of unappropriated ^ 
 
 water to work the same, and may grant renewals of such leases, and 
 grant such privileges and exercise all such powers as are specified in 
 Part VII. of this Act. 
 
 152. -Notwithstanding anything contained in the "Gold Mining Amendment "Gold Mining 
 Act, 1873," or in any Crown grant issued under the said Act, or under this or Amendment 
 any other Act, it shall be lawful for the Gold Commissioner, in his discretion, Act, 1873. " 
 and with or without any terms or conditions, to allow to the owners of placer 
 
676 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Plaoer Act, claims all such rights or privileges in and over mineral or other claims held as 
 1891. real estate as may be allowed in and o^-cr 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. 
 
 Full power to 153. The Gold Commissioner shall have power to do all things necessary or 
 
 carry out this expedient for the carrying out of the provisions of this Act. 
 
 Administration. 
 
 Commissioner 154. The Gold Commissioner shall take possession of the mining property of 
 to take deoeas- g^jjy jjeceased free miner, and may cause such mining property to be duly worked, 
 propertT^ or dispense therewith at his option. 
 
 Miner's intes- 135. 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 8300 of administration or probate of the will, if any : Provided, however, that where 
 t° ^^ vf^''?^"'^ *°^ ^''^^ miner shall die intestate, and the value of the personal estate of such 
 Gofd C deceased free miner is less than three hundred dollars, it shall not be necessary 
 
 sioner free™'^' ^"^ ^^'^ Gold Commissioner to obtain from any Court letters of administration, 
 but in such case the Gold Commissioner may administer and wind up the per- 
 sonal estate of the deceased, and do all things necessary and proper therefor, 
 and act in all respects as if letters of administration to the per- 
 sonal estate of such deceased free miner had been granted to such Gold Commis- 
 sioner, 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. 
 
 Pakt X. 
 
 CotJNTy Courts. 
 
 County Courts 
 to have powers 
 of Courts of 
 Law and 
 Equity in all 
 cases arising 
 out of mining 
 property . 
 
 Jurisdiction., Procedure, Forms, and Costs. 
 
 156. In addition to the jurisdiction and powers given to County Cpurts by 
 the " County Courts Jurisdiction Act," and other Acts, every County Court 
 shall have and exercise, within the limits of its district, all the jurisdiction and 
 powers of a Court of Law and Equity — 
 
 (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 privilegie 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 prop- 
 , erty, or from lands entered, or claimed to have been entered, in search- 
 
I-] APPENDIX A.— MINING STATUTES. 677 
 
 ing for, mining, or working minerals (other tlian coal), or for any pur- Placer Act, 
 pose directly connected with the business of mining, or entered, or 1891. 
 
 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 re-forming, or delivering 
 up, or cancelling, any agreement for sale, purchase, or lease of any 
 mineral claim, mine, or other mineral property ; 
 
 (8) In all suits for the dissoJution or winding up of any raining 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 
 Act relating to mining (other than coal mining) ; 
 
 (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. 
 
 157. The jurisdiction given to County Courts by this Act shall be known "Mining juris- 
 as the " mining jurisdiction " of the County Court, and the words "mining juris- diction." 
 diction " shall be written or printed on all summonses, writs, and other process, 
 
 and all other documents, in every action or cause brought under the mining 
 jurisdiction of the County Court. 
 
 158. County Courts and County Court Judges, Registrars, Sheriffs, and other Poweis of 
 officers, shall have the same duties, powers, privileges, and authorities in all County Comt 
 actions and suits, and other proceedings brought under the mining jurisdiction of in "mining 
 the County Court, as they now have, or at any time hereafter may have, in jurisdiction.' 
 actions and suits and other proceedings brought under the ordinary jurisdiction 
 
 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 practice and procedure 
 in County Courts, and all rules and orders for the time being applicable to the 
 ordinary jurisdiction of the County Court, shall, so far as practicable and not 
 inconsistent with this Act, apply to the mining jurisdiction of the Coimty Court. 
 
 159. Where disputes arise concerning mining property, portions whereof are Disputes in 
 situated in adjoining or different districts, the County Court of either of such adjoining 
 districts before which the dispute is first brought shall determine it. distnots. 
 
 160. The hearing of any summons, plaint, or other process in any County Siimmonses to 
 Court shall not be defen-ed beyond the shortest reasonable time necessary in be made ra- 
 the interests of all parties concerned, and it shall be lawful for the Registrar to tumable as 
 make summonses or other proceedings returnable forthwith, or at any other time. !,° ggi^e 
 
 161. In all mining actions or suits the Court may decide the question at issue Court may de- 
 upon the ground in dispute, and such decision shall be entered as in ordinary cide the ques- 
 cases, and have the same virtue and effect as if rendered in Court. tion on ground 
 
 in dispute. 
 
 162. In any mining cause or suit, either party may require that the issues Issues of fact 
 of fact shall be tried by a jury, and the Judge may, before delivering judgment Y^^7 o« t"«d 
 in any action, suit or other proceeding, direct all or any issues of fact to be '^y J"''y- 
 found by a jury. 
 
 163. 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 allovTBd 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. 
 
.678 
 
 MABTIN'S MINING CASES. 
 
 [VOL. 
 
 Placer Act, 
 1891. 
 
 Jurisdiction of 
 County Court 
 over real estate 
 held under the 
 "Gold Mining 
 Amendment 
 Act, 1873." 
 
 Writs of ea. 
 re. , ne exeat, 
 and ca. sa. 
 
 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 
 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 milling 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-mattter 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. 
 
 Saving juris- 166. The jurisdiction given to the County Court by this Act shall not in any 
 
 diction of manner interfere with or lessen the jurisdiction of the Sxipreme Court. 
 
 Supreme Gt. 
 
 Part XI. 
 Penal and Miscellaneous. 
 
 Penally for 167. Any person wilfully acting in contravention of this .\ct, or refusing to 
 
 contravention c*bey any lawful order of the Gold Commissioner or of any .Tiidge presiding in a 
 of Act. Court having jurisdiction in mining disputes, 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. 
 
 Keoovery of 
 penalties . 
 
 Disposition of 
 moneys. 
 
 168. All fines and penalties imposed or payable under this Act may be re- 
 covered 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. 
 
 169. All fees, rents, fines, penalties and other moneys collected under this 
 Act shall be paid into the Provincial Treasury. 
 
 Saving exist- 
 ing rights and 
 public rights 
 of way and 
 water. 
 
 Gopi«8 of Act . 
 
 Before whom 
 affidavits are 
 to be made . 
 
 170. 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 ilajesty. Her heirs 
 and successors, and to the public rights of way and water. 
 
 171. Every free miner, on application to 
 entitled to a printed copy of this Act. 
 
 the Mining Recorder, shall be 
 
 172. Affidavits and declarations made under the provisions of this Act shall 
 be made before some Judge or Registrar of a Court of Record, or before some 
 Gold Commissioner, Mining Recorder, Stipendiary Slagistrate, Justice of the 
 Peace, Notary Public, or Commissioner for taking affidavits. 
 
I.] APPENDIX A.— MINING STATUTES. 
 
 679 
 
 SCHEDULE. Plaeer Aob, 
 1891. 
 
 A. 
 
 Location Notice. 
 
 [Set out name of claim'} Placer Claim. 
 
 Take notice that [set out the name of each locator] has this day located this 
 ground as a placer claim (or, as a sel; of placer claims) to be known aa 
 
 the Placer Claim, feet in length. Its general direction is 
 
 Dated 
 
 IMark one post "Initial Post," and fix this notice on that post. If a set 
 of claims is located only one notice is requisite, tut there must he an initial post 
 for each claim.] 
 
 B. 
 
 Record of a Placer Claim. 
 
 [Name of claim] Placer Claim. 
 
 Located by No. of certificate, 
 
 [Set out the name of each locator, and the numlcr of each locator's free 
 miner's certificate, opposite such name.] 
 
 The claim is situate 
 
 The length of the claim is feet. 
 
 Recorded for years. 
 
 Located on the day of , 18 . 
 
 Recorded this day of , 18 . 
 
 C. 
 
 Re-record of a Placer Claim. 
 
 [Name of claim.] Placer Claim. 
 
 [Set out the name of each holder of an interest in such claim, and the num- 
 ber of each holder's free miner's certificate,] 
 
 The claim is situate 
 
 Re-recorded for years, to commence to run from the day 
 
 of , 18 . 
 
 Re-recorded this day of , 18 . 
 
 D. 
 
 Record of a Set of Placer Claims. 
 
 [Set out the name of each claim.] 
 Located in the partnership name of 
 
 The numbers of the partnership and the numbers of their respective free 
 miner's certificates are: — 
 The claims are situate 
 
 The length of each claim is feet. 
 
 Recorded for . years. 
 
 Located on the day of , 18 . 
 
 Biecorded on this day of , 18 . 
 
680 MARTIN'S MINING OASES. [tol. 
 
 Placer Act, B. 
 1891. 
 Tunnel or Drain Licence. 
 
 To all whom it may concern : — 
 
 Take notice that , a free miner and owner of having 
 
 given security to the amount of for any damage he may do, 
 
 has this- day obtained a licence from me to run a tunnel (or drain) from 
 ba his said claim. The said licence is granted on these express conditions : — 
 \_8et out condsitiens, if o^my.] 
 Dated 
 
 Gold Commissioner. 
 
 Application for Puhlic 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 draim] , 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 in- 
 cluded in such grant :— 
 
 ISet out privileges sought to be acqtiired.] 
 
 Dated 
 To the Gold Commissioner. 
 
 IPost notice on ground and on Mining Recorder's office, setting out appli- 
 cation.} 
 
 G. 
 
 Water Notice. 
 
 Take notice that we [Set out the name of each applicant and numher of each 
 applicant's free miner's certificate}, shall, twenty days from the date ot this 
 notice, apply to the Gold Commissioner for a grant of a water right over water 
 in [Set out the name, or, if unnamed, a sufficient description of the stream, 
 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 
 
 H. 
 
 Water. 
 Gbant of Water Eight. 
 
 Granted this day of , 189 , to [Set out every 
 
 grantee's name, and the numher of every grantee's certifioate} inches 
 
 of water out of [source of water} for the term of j-ears from the date 
 
 hereof. 
 
 Such water is to be used for [purpose} on [claim or land on tohich water is 
 to be used}, and is to be diverted from its source at a point [point of diversion]. 
 
 Dated 
 
 Gold Commissioner. 
 
!■] 
 
 APPENDIX A.— MINING STATUTES. 
 
 681 
 
 I. 
 
 Scale of Fees to he 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 tlie 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 
 
 Placer Act, 
 1891. 
 
 55 Vict. Chap. 32. 
 An Act to Amend the " Mineral Act, 1891." 
 
 Mineral Am- 
 endment Act, 
 1892. 
 
 H 
 
 I23rd April, 1892.1 
 
 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 
 1892." 
 
 'Mineral Act (1801) Amendment Act, Short title . 
 
 2. Sections 1, 30, 31, 32, 46, 47, 109, 124, 137, 138 and 147 of the " Min- Sections 
 eral Act, 1891," ^ hereinafter called "the said Act") are hereby repealed. repealed. 
 
 3. Section 10 of the said Act is hereby amended by inserting at the end Amend.? s. 10. 
 of line fourteen the following: "Provided that where any hydraulic mining 
 
 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 Amends s. 11. 
 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." 
 
682 MARTIN'S MINING CASES. [vol. 
 
 Min. Amend- 5. Sections 14 and 15 of the said Act are hereby repealed, and in lieu 
 ment Act, 1892 thereof be it enacted : 
 
 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 f oi' mining, 
 
 Size and form enter upon the same and locate a plot of ground, where possible, not exceeding 
 of free miner'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 hori- 
 zontally, 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, neither shall it be lawful to 
 move No. 2 post, except for the correction of distance by the Provincial Govern- 
 ment Surveyor. Nos. 1 and 2 posts shall govern the direction of one side 
 of the claim. 
 
 Minerals, " (o) The owner of a mineral claim shall be entitled to. all minerals which 
 
 owner of claim may lie within his claim, but he shall not be entitled to mine outside 
 
 entitled- to. , the boundary lines of his claim continued vertically downwards : 
 
 This Act not " ( '' ) This Act shall not prejudice the rights of claim-owners who have 
 
 to prejudice located their claims under foi-mer Acts." • 
 
 existing 
 
 rights. 6. Section 17 of the said Act is hereby amended by striking out the word 
 
 Amends s. 17. " centre " in lines two, four, and five, and inserting in each line in lieu thereof 
 the word " side." 
 
 Amends s 19 '^' ^^^^"^ 1^ °^ *^^ s^'<^ ^^^ is hereby amended by the addition thereto 
 of the following words : " 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." 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 
 " side." 
 
 Amends s. 24. g. Section 24 of the said Act is hereby amended as follows: — 
 
 (1) By inserting between the words "year" and "Provided," in the third 
 line thereof, the words " without the necessity of re-recording." 
 
 (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 Miniug 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 woi-k for each claim so held by him or 
 them." 
 
I-J APPENDIX A.— MINING STATUTES. 
 
 683 
 
 acted .^"°" "'■' °^ *'^^ ^^^ '® '"^'^■^''y repealed, and in lieu thereof be it en- Min. Amend- 
 ment Act, 1892 
 
 " ^^" ?.? 'i^^^ °^ ^^ dispute as to' tlie title to a mineral claim priority of RepealTs 25 
 record will determine the right, subject to any question as to the validity of the Disoate as to 
 record, and subject also to a compliance by the free miner with the provisions title to claim! 
 
 10.^ Section 2G of the said Act is hereby amended by striking out all the words Amends s. 26. 
 atter puichase," in the third line thereof, and by substituting the following :— 
 ' But a free miner shall be entitled to locate and record on separate veins or 
 lodes additional claims, not exceeding two in each mining division; provided 
 that not more than one claim is located on each separate vein or lode, to the 
 number of two in all, as aforesaid." 
 
 11. Section 29 of the said Act is hereby amended by inserting between the Amends s. 29 
 words " thereof " and " which," in the second line thereof, the words " which 
 
 he shall have failed to record within the prescribed period or." 
 
 12. Section 35 of the said Act is hereby amended by striking out the words Amends s. 35 
 " 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 
 such as have respect solely to the work required to be done on claims." 
 
 13. Section 36 of the said Act is hereby amended as follows : — (1) By insert- Amends s. 36. 
 ing in line two, between " requirements " and " he " the words " to the satisfac- 
 tion of the 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. (f) thereof of the words "Pro- 
 vided 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 affida- 
 vit 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." 
 
 14. Section 37 of the said Act is hereby repealed, and in lieu thereof be Repeals s. 37. 
 it enacted as follows : — ■ , 
 
 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 improvements, 
 such certificate when issued be impeached on any ground except that of fraud : 
 
 "(2) Any adverse claim to be filed shall be on the oath of the person or Adverse claim 
 persons making the same, and shall shew, with reasonable particularity, the to be on oath, 
 nature, boundaries and extent of such adverse claim ; and all proceedings, except etc. 
 the publication of notice and making and filing the affidavit thereof, shall be p ,. 
 stayed until the controversy shall have been decided by a Court of competent be'sSn'ed^^ ° 
 jurisdiction or the adverse claim shall have been withdrawn or waived. An 
 adverse claimant shall, within thirty days after filing his claim (unless such Adverse 
 time shall be extended by special order of the Cojirt upon cause being shewen), claimant to 
 commence proceedings in a Court of competent jurisdiction to determine the commence 
 question of the right of possession, and shall prosecute the same with reason- proceedings, 
 able diligence to final judgment; and a failure so to commence or so to 
 prosecute proceedings shall be deemed to be a waiver of his adverse" 
 claim. After such judgment shall have been rendered, the person or 
 
MARTIN'S MINING CASES. 
 
 [voi« 
 
 Mdn. Amend- 
 ment Act, 1»92 
 
 Certified copy 
 of judgment 
 may be filed. 
 Certificate of 
 improvements 
 after judg- 
 ment. 
 Amends s. 38. 
 
 any one of the pei-sons entitled to the possession of the claim, or any part 
 thereof, may file a certified copy of the same in the office of the Mining Re- 
 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." 
 
 Amends s. 39. ' 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." 
 
 Repeals s . 52. 17^ Section 52 of the said Act is hereby repealed, and in lieu thereof the 
 
 following shall be read : — ■ 
 
 Transfer to be " 52. The transfer of any real estate acquired under the provisions of 
 in writing, etc. 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." 
 
 Repeals s. 53. 18. Section 53 of the said Act is hereby repealed, and in lieu thereof be it 
 
 enacted : — 
 
 Claim of " 53. No mineral claim shall be open to location by any other person during 
 
 miner during the last illness nor, unless with the permission in writing of the Gold Oom- 
 
 illness and missioner, for twelve months after the death of the lawful holder." 
 after death. 
 
 Amends s. 55. 19- Section 55 of the said Act is hereby amended by striking out all the 
 words between " shall " in line three and " such " in line four, and inserting 
 in lieu thereof the words " be entitled to obtain and hold under this section 
 more than one mill site for each mineral claim lawfully held by him." 
 
 Amends s. 56. 20. Section 56 of the said Act is hereby atfiended 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 Sur- 
 veyor." 
 
 Regeals sub.s. 21. Sub-section (2) (f) of sec. 57 of the said Act is hereby repealed. 
 (2) (f ) of s. 57. 
 
 Amends s. Ill 22. Section 111 of the said Act is_ hereby amended by striking out the 
 words " and record the same," in the second line. 
 
 Amends s 115. 23. Section 115 of the said Act )« hereby amended by striking out the 
 ffvords "brought to him," in the second line, and inserting in lieu thereof "re- 
 quired to be recorded." 
 
 , Amends s. 148. 24. Section 148 of the said Act is hereby amended by insertinj!- after the 
 word "property," in the second line thereof, the words "within the district 
 of such Commissioner." 
 
 Amends s 1C3. ^^' Section 163 of the said Act is hereby amended by adding at the end 
 thereof the words " on payment of the sum of twenty-five cents." 
 
 Amends 26. Schedule " A " of the said Act is hereby amended by striking out the 
 
 Schedule A. word "centre" where it first appears, and inserting in lieu thereof the word 
 " side." and by striking out the figure " 3 " and the words and figure " centre 
 post 2," and inserting in lieu of " centre post 2 " " initial post 1." 
 
1-3 APPENDIX A.— MINING STATUTES. ggg 
 
 27.^ Schedule " B." to the said Act is hereby amended by striking out the Min Amflnd 
 "side " " wlierever the same appears, and inserting in lieu thereof the word ment Aet,m2 
 
 Amends 
 
 28. Schedule " B." to the said Act is hereby amended by striking out the Schedule B. 
 words " and recorded " on the third line. Amends 
 
 Schedule E. 
 
 29. Schedule " H." to the said Act is hereby amended by striking out of Amends 
 clause 5 thereto " No. 2 or centre," in the first and second lines, and insert- Schedule H. 
 ing in lieu thereof " No. 1 or Initial." 
 
 30. Schedule " N." to the said Act is hereby amended by striking out 'sec- Amends 
 tion three thereto. '^ Kohedule N. 
 
 31. The last Schedule of the said Act is hereby amended by striking out the Amends last 
 figures "1.00," in the last line but one, and inserting in lieu thereof the Schedule, 
 figures " .25." 
 
 56 Vict, Chap. 28. Mineral Claim 
 
 Confirmation 
 An Act to Confirm the Title to certain Mineral Claims. Act, 1893. 
 
 U2th April, 1893.] 
 
 WHEREAS by the "Mineral Act (1891) Amendment Act, 1892," certain Preamble, 
 changes were made in the size, form and method of staking mineral 
 claims : 
 
 And whereas it was provided by sub-sec. (6), sec. 5 of said Act, that the 
 aforesaid Act should not prejudice the rights of claim owners who have located 
 their claims under former Acts : 
 
 And whereas between the passage of the said Amendment Act and the time 
 of its receipt at outlying localities, certain claims were located and recorded 
 under the provisions by said Act repealed : 
 
 And whereas it is just and equitable, that parties acting in good faith and 
 without knowledge of the alteration in the law affecting procedure as afore- 
 said, should not be prejudiced in their rights. 
 
 Therefore, Her Majesty, by and with the advice and consent of the Legis- 
 lative Assembly of the Province of British Columbia, enacts as follows : — 
 
 1. This Act may be cited as the " Mineral Claim Confirmation Act, 1893." Short title. 
 
 2. The title to any claim bona fide located in accordance with the provisions Passage of 
 
 of the "Mineral Act, 1891," after the passage of the "Mineral Act (1891) 18S)2, c. 32, not 
 Amendment Act, 1892," but before the receipt by the Mining Recorder of the to affect the 
 district in which such claim is recorded of Intelligence that such Amendment title to certain 
 Act had been passed, and of the nature of the provisions respecting the size, claims, 
 shape, and method of staking mineral claims thereby substituted for the provi- 
 sions previously existing, shall be in no wise affected or prejudiced by the 
 passage of the said "Mineral Act (1891) Amendment Act, 1892." but such 
 claim shall be held to all intents and purposes as if located before the passage 
 of the said " Mineral Act (1891) Amendment Act, 1892." 
 
 3. Every Mining Recorder shall transmit to the office of the Minister of Declaration to 
 Mines, to be there received and filed, on or before the 31st day of December, ?|.*™' *'° j ® 
 1893, a declaration in the form in the Schedule hereto, made before any person jiiues'^before 
 authorized to take the same, and such declaration, or an office copy thereof, sist December 
 shall, for the purposes of the preceding section, be conclusive evidence of the 1393, by Min- ' 
 facts therein stated in all Courts of the Province. ing Recorder. 
 
686 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 Mineral Claim -^nd whereas it is provided by sees. 44 and 45 of the " Placer Mining Act, 
 Confirmation 1891," that no transfer of any placer claim, or of any interest therein, shall 
 Act, 1893. be enforceable unless the same or some memorandum thereof shall be in writ- 
 ing, 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 : 
 
 Preamble to And whereas similar provisions were made by sees. 38 and 56 of the " Gold 
 
 ss. 44 and 45. Mining Ordinance, 1867," being eh. 123 of the "Consolidated Statutes of Bri- 
 tish Columbia, 1877," as follows: — 
 
 "38. No" transfer of any claim, or of any interest therein, shall be enforce- 
 able, 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 be 
 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 tradi- 
 tional customs among miners, numerous informal documents were drawn, de- 
 livered 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 instru- 
 ments, and it is desirable that such defects should be cured; be it therefore 
 enacted : — ■ 
 
 Validates 4. Every instrument, memorandum of sale, or other writing, whether under 
 
 informal bona seal or not, executed before the passing of this Act, purporting to transfer any 
 fide transfers, interest 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 
 deduci'ble 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 reserva- 
 tion or exception or contrary intention appears, otherwise than by the omis- 
 sion 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. 
 
 Copy of record 5. Where, by reason of the loss of the documents of title to any such claim, 
 may be used it is impossible to produce the same for purposes of registiation, it shall be 
 for registra- suflBcient to entitle an applicant to have his title registered under the Land 
 tion 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 office are the books of record in which any such transfer is recorded. 
 
 SCHEDULE. 
 
 In the matter of the " Mineral Claim Confirmation Act, 78.93." 
 
 I, of the of 
 
 , Mining Recorder for the 
 Electoral District, do hereby solemnly declare :- 
 
 in the Electoral District of 
 Mining Division of the said. 
 
!•] APPENDIX A.— MINING STATUTES. ggT 
 
 (1) That prior to the day of , A.D. 1892, I had received no Mineral Claim, 
 intelligence that the /'Mineral Act (1891) Amendment Act, 1892," had been Confirmation 
 passed by the Legislative Assembly, and that the alterations thereby made le- Act, 1893. 
 epecting the size, shape, and method of staking mineral claims were in force. 
 
 (2) That between the 23rd day of April, 1892, being the date of the pas- 
 sage of the said "Mineral Act ( 1891 ) Amendment Act, 1892," and the said 
 
 day of , A.D. 1892, there were recorded in this office, in accord- 
 
 ance with the provisions of the " Mineral Act, 1891," the mineral claims in the 
 appendix hereto, by the parties whose names are in said appendix set opposite 
 the names of each mineral claim respectively, on the dates in said appendix 
 shewn. 
 
 And I make this solemn declaration, conscientiously believing the same to 
 be true, and by virtue of the " Act respecting Extra-judicial Oaths." 
 
 Declared before me at tfie 
 of in the 
 
 of this day of i (Signature.) 
 
 A.D.1893. 
 
 Justice of the Peace, (or as the case may be). 
 
 APPENDIX. 
 Date of Record. Name of Claim. Locator's Name. 
 
 H 
 
 56 Vict. Chap. 29. -,. . , 
 
 Mm. Amena- 
 
 An Act to Amend the " Mineral Act, 1891." '"™ _' 
 
 [12th April, 189S.] 
 
 ER MAJBSTT, 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 "Mineral Act (1891) Amendment Act, short title 
 lo9o. 
 
 2. Section 2 of the "Mineral Act, 1891," is hereby amended by striking jijnj,„js , 2. 
 out all the words in lines 45, 46, and 47, and inserting in lieu thereof the fol- 
 lowing : — • 
 
 li i 
 
 Mineral' shall include all metalliferous ores, precious or base, found in "Mjngral" 
 veins, lodes, or rock in place, and whether such metalliferous ores are 
 found separately or in combination with each other ; but shall not include 
 coal." 
 
 (o) .The said section is also amended by striking out the words "falling 
 under the definition of a foreign company in," in lines 55 and 56, and 
 inserting in lieu thereof the w«rds " whether foreign or local, registered 
 or incorporated under." 
 
 3. The sections substituted by the "Mineral Act (1891) Amendment Act, Repeals ss. 14 
 1892,'" for sees. 14 and 15 of the " Mineral Act, 1891," are hereby repealed, and 15. 
 and in lieu thereof be it enacted : — 
 
 " 14. Any free miner desiring to locate a mineral claim shall, subject Size and form 
 to the provisions of this Act, with respect to land which may be used for min- of free miner's. 
 ing, enter upon the same and locate a plot of ground measuring where possible, claim. 
 
€88 
 
 MARTIN'S MINING OASES. 
 
 [vol.. 
 
 Min. Amend- but not exceeding 1,500 feet in lengtli by 1,500 feet in breadth, in as nearly as 
 ment Act, 1893 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 thg lines need not necessarily be meridional. 
 In defining the size of a mineral claim, it shall be measured horizontally, irre- 
 spective of inequalities on the surface of the ground. 
 
 How staked " 15- A mineral claim shall be marked by two legal posts, placed as near 
 
 ■out. 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 hun- 
 dred 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 claim, 
 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 com- 
 pass bearing of No. 2 post, and a statement of the rfUmber 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.' 
 
 Particulars to " All the particulars required to be put on No. 1 post shall be furnished by 
 
 be furnished the locator to the Mining Recorder at the time the claim is recorded, and shall 
 
 to Mining form a part of the record of such claim. 
 Recorder. 
 
 How line " When a claim has been located, the holder shall immediately mark the 
 
 between posts liue between posts Nos. 1 and 2 so that it can be distinctly s.een ; in a timbered 
 
 1 and 2 to be locality, by blazing trees and cutting underbrush, and "in a locality where there 
 
 marked. is neither timber nor underbrush he shall set legal posts so that such line can 
 be distinctly seen. 
 
 Placing of " The locator shall also place a legal post at the point where he has dis- 
 
 legal posts. covered 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 
 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." 
 
 Examples. 
 
 Examples of Vakious Modes of Laying Out Claims. 
 
 1- 2. 3- 
 
 N'o. 2 Post. 
 
 No. 1 Post. 
 
 No. 2 Post. 
 
 
 260- 
 
 liM 
 
 
 ( 
 
 5 Biscovery 
 Post.. 
 
 'j-> 
 
 250" 
 
 1250' 
 
 
 JJo. 
 
 Post. 
 
 
 •No. 
 
 2 Post. 
 
 llOOf 
 
 400' 
 
 ^ 
 
 1 
 
 DisooT^iy Post ; 
 
 1 
 
 1100' 
 
 iixy 
 
 No.] 
 
 Post. 
 
 Minerals, 
 •owner of claim 
 entitled to all . 
 
 This Act not 
 to prejudice 
 existing rights. 
 
 *' It shall not be lawful to move No. 1 post, neither shall it be lawful to 
 move No. 2, post, except for the correction of distance by the Provincial Govern- 
 ment Surveyor. Nos. 1 and 2 posts shall govern the direction of one side of 
 the claim. 
 
 " (o) 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. 
 
^] APPENDIX A.— MINING STATUTES. 689 
 
 " (c) No mineral claim shall be recorded without the application being Min. Amend- 
 accompanied by an affidavit or solemn declaration made by the appli- mentAot,1893 
 
 cant, or some person on his behalf cognizant of the facts, that mineral 
 
 has been found in place on the claim proposed to be recorded." Affidavit that 
 
 mineral has 
 
 4. Section 17 of the " Mineral Act, 1891," is hereby amended by striking '^f™ f°""<^ '" 
 out, in lines two, four, and five, the word "side," substituted for the word ^i^^ ,„!S^™" 
 ;' centre" by sec. G of the "Mineral Act (1891)i Amendment Act, 1892," and jlonforrecOTd 
 inserting in each line in lieu thereof the word " location." A d 17 
 
 5. Section 19 of the " Mineral Act, 1891," is amended by striking out, in Amends s. 19. 
 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," is hereby Repeals s. 10 
 repealed. of 1892, e. 32. 
 
 7. Section 26 of the " Mineral Act, 1891," is hereby amended by inserting Amends s 26 
 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 How title to 
 to the claim shall be recognized according to th^ priority of such location, sub- ™i^eral claim 
 ject to any question as to the validity of the record itself, and subject further „°2ed when 
 to the free miner having complied with all the terms and conditions of this dispute as to 
 Act. location. 
 
 9. Sub-sections (c), (d), (e), and (_f) of sec. 36 of the "Mineral Act, Repeals sub. sa. 
 1891," are hereby repealed, and in lieu thereof the following are inserted : — (c)> (d), (e) and 
 
 (f)ofs.36. 
 " (o) Had the claim surveyed by an authorized Provincial Land Surveyor, Requirements 
 who shall have made three plats of the claim, and who shall have accur- fo^ certificate 
 ately defined and marked the boundaries of such claim upon the ground, of improve- 
 and indicated the corners by placing monuments or legal posts at the ments. 
 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 writ- 
 ing, 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 the surveyor's 
 original field-notes and plat; 
 
 " (f) Inserted a copy of such noticfe in the British Columbia Gazette and in 
 any newspaper published in the Province, and circulating in the district 
 in which the claim is situate, for at least sixty days prior to such appli- 
 cation, which insertion can be made at any time after the posting of the 
 notice on the claim ; 
 
690 
 
 MARTIN'S MINING CASES. 
 
 [VOL^ 
 
 Min. Amend- 
 ment Act, 1893 
 
 Amends s . 11 
 of 1892, c. 32. 
 
 " (g) Filed with the Mining Recorder: — 
 
 " (1) Affidavit of the holder of the claim, or his agent, in the Form H., in.' 
 the Schedule of this Act; 
 
 " (A) At the expiration of the term of the said publication, provided no 
 adverse claim shall have been filed Vi'ith the Mining Recorder, he Shall 
 forward to the Gold Commissioner, undter Form J. of the Schedule to. 
 this Act, the documents referred to above." 
 
 10. Section 14 of the " Mineral Act (1891) Amendment Act, 1892," is hereby 
 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, how- 
 ever, that if an adverse claim has, in the opinion of the presiding Judge, been 
 hona fide made, notwithstanding that the same may have been imperfectly made,, 
 flhe 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 Commissioner,"' 
 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." 
 
 Repeals s. 121. 
 
 Duty of Gold 
 Commissioner 
 bn ifeoeiving 
 a'ppKcation for 
 Crown grant. 
 
 12. Section 121 of the said Act is hereby repealed and the following inserted 
 in lieu thereof : — 
 
 " 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." 
 
 Amends s. 145. 13. Section 145 of the said Act is hereby amended by striking out the- 
 figures and word " 121 or," in line two. 
 
 14. Schedule A., to the said Act is hereby repealed, and the following in- 
 serted in lieu thereof : — 
 
 " FOKM A. 
 
 Schedule A. 
 
 " Location Notice. 
 
 Mineral claim. 
 
 Form A "^ ' ^^'^^ '^'^ "^^^ located this ground as a mineral claim, to 
 
 be known as the ' Mineral Claim, feet in length by 
 
 feet in breadth. The direction of the location line 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, 
 making the initial post 1." 
 
 Amends 15- Schedule B. to the said Act is hereby amended by striking out, wherever 
 
 Schedule B. the same appears, the word " side," substituted for the word " centre " by the- 
 
I-] APPENDIX A.— anNING STATUTES. 
 
 691 
 
 "Mineral Act (1891) Amendment Act, 1892," and inserting in lieu thereof Min Amend- 
 the word " location." „e„i Act,189S 
 
 10. Schedulie C. to the said Act is hereby amended by strikinR- out the word Amends 
 "centre," wherever the same appeal's, and inserting in lieu thereof the word Schedule C. 
 " location." 
 
 17. Schedule F. to the said Act is hei-eby repealed, and the following in- Reueals 
 serted in lieu thereof :— .Schedule V. 
 
 " FOBM F. 
 " Notice of Application for Certificate of Improvements. 
 
 Mineral claim. Furm F. 
 
 " 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 above claim. 
 
 " And further take notice that adverse claims must be sent to the Jliuing 
 Recorder, and action commenced before the issuance of such certificate of im- 
 provements. 
 
 " Dated this day of 189 ." 
 
 18. Schedule G. of the said Act is here repealed. RepealK 
 
 Schedule G. 
 
 19. Schedule II. of the said Act is hereby repealed, and in lieu thereof the Repeals 
 fo^owing substituted : — Schedule H . 
 
 " Form H. ■ 
 
 "Application for Certificate of Improvenit'iits. 
 
 "Applicant's Affidavit. „ „ 
 
 " I, , of , in the District of , 
 
 free miner, make oath and say : — 
 
 " (1) I am the recorded holder, and am in undisputed possession of the 
 llineral claim, situate at in the 
 
 District (or Division) of 
 
 " (2) I have done, or caused to be done, work on the said claim in develop- 
 ing a mine to the value of at least five hundred dollars, full particulars whereof 
 are hereunto annexed and marked " A." 
 
 " (Particulars must he 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 has made three 
 
 plats of the said claim. 
 
 " (5) I have placed one such plat on a conspicuous part of the land em- 
 braced in such plat. 
 
 " (6) I have posted a copy of the notice hereunto annexed, and marked 
 " B.," at the same place as said plat is posted, and another copy on the Min- 
 ing Recorder's oflice at , which said notice and plat have been 
 posted, and have remained 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, 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 aflBdavit. 
 
 " Sworn, &c. 
 
 " (This affidavit may be made hy an agent, and can lie altered to suit cir- 
 cumstances.) " 
 
692 
 
 MARTIN'S MINING OASES. 
 
 [VOL. 
 
 Min. Amend- 20. Schedule J. to the said Act is hereby repealed, and the following in- 
 ment Act, 1893 serted in lieu thereof: — 
 
 Repeals 
 Schedule J. 
 
 Form ,7. 
 
 " FOEM J. 
 
 " Mimng Recorder's Gertifioate. 
 
 Mineral claim. 
 " Date locatedj . Date recorded, 
 
 " To the Gold Commissioner of 
 
 " Sir, — ^I herewith enclose the sum of dollars, and the following 
 
 documents relating to an application for a certificate of improvements to tht 
 above claim : — 
 
 "AflSdavit 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 hia in- 
 
 tention to apply for a certificate of improvements for sixty days in the Govern- 
 ment Gazette and newspaper, and that no adverse claim has been filed 
 in this office up to this date. 
 
 "Dated 189 . 
 
 Mining Recorder." 
 
 Amends 
 .■Schedule L. 
 
 21. Schedule L to the said Act is hereby amended by striking out section 4 
 thereto. 
 
 Annual tax of 
 '2n cents per 
 acre to be 
 levied on every 
 claim held 
 under Crown 
 grant. 
 
 In default of 
 payment claim 
 may be sold. 
 
 How purctiase 
 money applied 
 
 Owner may be 
 sued for tax. 
 
 Proviso for re- 
 mission of 
 tax on $200 
 havinpr been 
 expended on 
 ■claim. 
 
 22. There shall be levied and collected from the owner or occupier of every 
 mineral or placer claim of which a Grown 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- 
 fi^-e 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 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 and receive the 
 tax. In the event of the tax not being paid to the Assessor or Collector, the 
 Gold Commissioner may in his discretion cause the claim upon which the tax is 
 chargpd 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 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 expenses of 
 advertising and the payment of the tax, and any surplus shall 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 shall not be sufiicient to pay the tax and ex- 
 penses 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 re- 
 covered by distress of the goods and chattels of the person against whom the 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 improve- 
 ments in any one year, then the tax shall not be levied in respect of such claim 
 for such year. 
 
!•] APPENDIX A— MINING STATUTES. 693 
 
 23. Notwithstanding anything to the contrai-y contained in any Act, every Min. Amend- 
 Crown grant hereafter issued of a mineral claim shall convey and' be deemed to ment Act,1893 
 oonviey only the right to the use and possession of the surface of such claim 
 
 for the purpose of winning and getting from and .out of the claim the minerals What Crown 
 contained therein, including all operations coimected therewith or with the Srant of min- 
 business of mining, and the lawful holder by record of a claim shall, during the eral clami shall 
 continuance of his record, be entitled to the said surface rights, and no others ; '=°"^''y ™''y- 
 and all remaining surface rights shall be deemed to be vested in the Crown, and 
 may be granted and disposed of as is provided by the land laws for the time 
 being in forc(;, but subject, always, to the rights of free miners as aforesaid. 
 1893, ch. 29, sec. 23. 
 
 24. This Act, except the preceding section thereof, shall not come into force When Act 
 until 15th day of May, 1893. .excepting s! 
 
 23, to come 
 into force. 
 
 H 
 
 57 Vict. Chap. 32. iJin. Amend- 
 ment yXct,18ii4 
 An Act to Amend the "Mineral Act, 189J," and Amending Acts. 
 
 ' [nth April, 189/1.1 
 
 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 " Mineral Act Amendment Act, 1894." .short title. 
 
 2. Section 2 of the " Mineral Act, 1891," and sec. 2 of the " Mineral Act Amends 1891, 
 (1891) Amendment Act, 1893," are hereby repealed and the following enacted s. 2. 
 
 in lieu thereof : — 
 
 " Interpretation. 
 
 "(2.) In the construction of this Act the following expressions shall have Interpreta- 
 the following meanings respectively, unless inconsistent with the context : — tion. 
 
 "'Mine' shall mean any land in which any vein or lode, or rock in place, " Mine." 
 shall be mined for gold or other minerals, precious or base, except coal ; 
 
 " ' Mineral ' shall mean all valuable deposits of gold, silver, platinum, iridium, '' Mineral." 
 or any of the platinum group of metals, mercury, lead, copper, iron, tin, 
 zinc, nickel, aluminum, antimony, arsenic, barium, bismuth, boron, bro- 
 mine, cadmium, chromium, cobalt, iodine, magnesium, manganese, molyb- 
 denum, 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 Buildinft 
 purposes shall not be considered as mineral within the meaning of the stone, etc. 
 Act; 
 
 " ' Rock in place ' shall mean all rock in place bearing valuable deposits of '-Rock in 
 mineral within the meaning of this Act; place." 
 
 "'Vein,' or 'lode.' Whenever either of these terms is used in this Act, "Vein or 
 'rock in place' shall be deemed to be included; lode." 
 
 "'Mineral claim' shall mean the persona! right of property or interest in "Mineral 
 any mine; claim." 
 
 "'Mining property' shall include every mineral claim, ditch, mill site, or "Mining 
 water right used for mining purposes, and all other things belonging to a property.' 
 mine or used in the working thereof ; 
 
694 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 ' Legal post ' sliall mean a stake standing not less than four feet above the 
 ground, and sqiiared 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 inch0s 
 on its face so far as squared or faced, and any stumj) or tree cut off and 
 squared or faced to th6 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 trans- 
 porting, crushing, reducing, or sampling ores, or for the transmission of 
 power for working mines ; 
 
 ' Streams ' shall include all natural watercourses, whether usually contain- 
 ing 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 ; 
 
 ' Ditch head ' shall menn the point in a natural watercourse or lake, or 
 other source 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 miners' 
 certificate, and no other ; 
 
 ' Record,' ' register,' and ' registration ' shall have the same meaning, and 
 shall mean an entry in some ofiicial book kept for that purpose ; 
 
 ' Full interest ' shall mean any mineral claim ot the full size, or one of 
 several shares into which a mineral claim shall be equally divided; 
 
 ' Cause ' .shall include any suit or action ; 
 
 ' Judgment ' shall include ' order ' or ' decree ' ; 
 
 ' Real estate ' shall mean any mineral land 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,' and 
 any company duly incorporated in British Columbia for mining purposes 
 under the ' Companies Act, 1802 ' (Imperial), and shall include all com- 
 panies, whether foreign or local, registered or incorporated under the 
 ' Companies Act.' " 
 
 Repeals 1891, 3. Sections 43, 44, and 58 of the " Mineral Act, 1891," are hereby reijealed, 
 
 ss. 43, 44, and and the following are enacted in lieu thereof : — 
 58. 
 
 What passes " ^^' ^ Crown grant of a mineral claim located on any waste lands of the 
 
 by Crown Crown shall be deemed to transfer and pass the right to all minerals within the 
 grant on waste meaning of this Act (excepting coal) found in veins, lodes, or rock in place, 
 lands. 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, including 
 the rights set forth in sec. 31 of this Act, and may be in the following form : — 
 
 Min. Amend- 
 ment Act, 1894 
 
 "Legal post." 
 "Mill-site.'' 
 
 ' Streams . " 
 'Ditch." 
 'Ditch-head.' 
 'Free-miner.' 
 
 '■ Record," 
 "register, "and 
 "registration." 
 
 " Full in- 
 terest." 
 ' ' Cause. " 
 "Judgment." 
 *'Real estate." 
 
 " Joint stock 
 company . " 
 
 Form. 
 
 {Royal Anns.) 
 
 " Mineral ,\ct." 
 
 Province of , 
 British Columbia. - 
 
 No. i 
 
 " ViOTOHiA, by the Grace of God. of the United Kingdom of Great Britain and 
 Ireland, Queen, Defender of the Faith. To all to whom these jne-ents 
 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 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 within the meaning 
 
^■^ APPENDIX A.— MINING STATUTES. ggg 
 
 •of this Act (save coal) which may be found therein in veins, lodes, or rock in Mi„ Amend- 
 ^IT'X whether such minerals are found separately or in combination with Z^'^^m 
 each other, unto the said h heirs and assigns forever: 
 
 " Provided that it shall at all times be lawful for Us, Our heirs and succes- 
 sors or foi- 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 otjier works of public utility 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 sub- 
 ject _ to the laws for 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 lake 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. 
 
 " 44. Crown grants of mineral claims located on lawfully occupied lands the What passes 
 right whereon to enter, prospect, and mine all minerals (other than coal) has by Crown 
 been reserved to the Crown and its liceucees, shall pass to the grantee all minerals grant when all 
 within the meaning of this Act (other than coal) found in veins and lodes, or minerals (save 
 rock in place, and whether such minerals are found separately or in combination ooal) have been 
 with each other, which may be in, upon, or under the land in the said Crown reserved, 
 grant mentioned, and including all the rights given to mineral claim holders of 
 mineral claims so located in sec. 31 of this Act, but such Crown grant shall ex- 
 pressly reserve the rights of such prior occupant, and may be in the following 
 form : — 
 
 (Royal Arms.) 
 
 " Mineral Act." Pp^^ 
 
 Province of i 
 
 British Columbia, l 
 
 No. I 
 
 " 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, 
 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 and assigns, all minerals within the meaning of this Act (save 
 
 coal) which may be found in veins, lodes, or rock in place, and whether such 
 minerals are found separately or in combination with each other, under 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 minerals unto the said h heirs and assigns for- 
 
 «vei', excepting nevertheless [set out any exceptions'\ : 
 
 "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 ; 
 
696 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Min. Amend- " Provided further, that it shall be lawful for any person duly authorized by 
 ment 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 pur- 
 poses in the vicinity of the said land, upon paying therefor a reasonable compen- 
 sation 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 
 a£Sxed: 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 , an j in the of our 
 
 Reign. 
 
 " 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 {jjg jj^jj i^ (-jjg gJ^jJ Crown grant mentioned, but all such Crown grants shall 
 
 grant of mill- expressly reserve all minerals under the said land, and the right to the Crown 
 " and its licencees to enter and mine the said minerals, and may be in the fol- 
 
 lowing form : — 
 
 Porra. 
 
 [L.S.] 
 
 (Boyal A.rms.) 
 
 PbOVINcb of 1 
 Bbitish Columbia. - 
 
 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'tha:t 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 build- 
 ings may have been erected, or which may be in use for the more convenient 
 occupation of any such buildings. 
 
 " Provided, also, that it shall at all times be lawful fop 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, within the meaning of this Act, 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. 
 
!■] APPENDIX A.— MINING STATUTES. 697 
 
 " Provided, also, that it shall be lawful for any person duly authorized in Min. Amend- 
 that behalf by Us, Our heirs and successors, to take and occupy such water ment Aet, 1S94^ 
 
 privileges, 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 
 required for 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 
 authorized in that behalf by Us, Our heirs and successors, to take from or upon 
 any part of sthe hereditaments hereby granted, without compensation, any gravel, 
 sand, stone, lime, timber, or other material which may be required in the con- 
 struction, maintenance, or repair of any roads, ferries, bridges, or other public 
 works. 
 
 " 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. 
 
 4. Section 3 of the " Mineral Act (1891) Amendment Act, 1893," is hereby Amends 1893, 
 repealed and the following is enacted in lieu thereof : — s. 3. 
 
 " 14. 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, enter of free miners' 
 upon the same and locate a plot of ground measuring, where possible but not claim. 
 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 nejd not necessarily be meri- 
 dional. In defining the size of a mineral claim, it shall be measured horizon- 
 tally, 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 
 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. 
 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 dis- 
 covered 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. 
 
■698 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Min. Amend- 
 ment; Act, 1894 
 
 Examples of Vabious Modes of Laying Out Olaijis 
 1- 2. ?' 
 
 No. 2 Post. tfo g p(^t 
 
 No. 1 Post. 
 
 260' 1260' 
 
 
 1 
 
 
 J-" 
 
 o Discorety 
 Post. 
 
 
 260' 
 
 126<)' 
 
 
 No. 
 
 I Post. 
 
 
 UOIf 
 
 Disoovwy Post, p 
 
 No. 1 Post. 
 
 Amends 1891, 
 s. 36, as 
 amended by 
 1892, s. 13. 
 What to be 
 done before 
 •certificate of 
 improvement 
 granted. 
 
 " It shall not be lawful to move No. 1 post, neither shall it be lawful, to 
 move No. 2 post, except for the correction of distance by the Provincial Govern- 
 ment Surveyor. Nos. 1 and 2 posts shall govern the direction of one side of the 
 claim. 
 
 "(a.) The holder of a mineral claim shall be entitled to all minerals which 
 may lie within his claim, but h^ 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 
 nccompanied 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: — 
 
 " (o.) Done or caused .to be done work on the claim itself in developing a 
 mine to the value of five hundred dollars, exclusive of all houses, build- 
 ings, and other like improvements. 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 who receives a transfer of 
 such claim ; but in no case shall the cost of surveying be considered as 
 improvements or work done on the claim." 
 
 Amends 1893, 
 s. 17. 
 
 ForniF. 
 
 6. Section 17 of the " Mineral Act (1891) Amendment Act, 1893,' 
 repealed, and the following is inserted in lieu thereof: — 
 
 Poem F. 
 Certificate of Improvements. 
 
 is hereby 
 
 Notice. 
 
 Mineral Claim. 
 
 (Situate in the Mining Division of 
 
 jOistrict. 
 Where located. 
 (Certificate of Take notice that I , free miners' certificate No. , 
 
 improvements) 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 grabt of the 
 above claim. 
 
 And further take notice, that adverse claims must be sent to the Gold Cpro- 
 missioner and action commenced before the issuance of such certificate of 
 improvements. 
 
 Dated this day of , 189 . 
 
 ^StOTcertificate '''• '^^®° ^ ^"''^^i' °^ ^ mineral claim has taken out his certificate of im- 
 imtil Crown provements he shall not record any transfer of his rights in the said claim until 
 grant. he obtains his Crown grant.. 
 
I.] APPENDIX A.— MINING STATUTES. 699 
 
 57 ^'ICT. CuAP. 33. Placer Ajnend- 
 
 ment Act, 1894 
 An Act to Amend the "Placer iJining Act, 180J." 
 
 H 
 
 [11th April, 189/,.] 
 
 ER MAJESTY, by and with the advice and consent of the Legislative 
 Assembly of the Province of British Colvimbia, enacts as follows — 
 
 ' 1. This Act may be cited as the " Placer Mining Amendment Act, 1894." Short title. 
 
 2. Section 55 of the "Placer Mining Act, 1891," is hereby repealed and the Amends s. ra. 
 following inserted in lieu thereof : — 
 
 " 55. A free miner may, at the discretion of the Gold Commissioner, obtain ^yat^p rjirht to 
 a grant to a water right in any unappropriated water, for any placer mining unappropriat- 
 purpose, for any term not exceeding ten years, upon such terms and conditions ed water, 
 as such Gold Commissioner shall think fit ; but no free miner shall be charged 
 any money rental for any such water used by him for mining purposes on his 
 own mining claim." 
 
 3. Section 114 of the " Placer Mining Act, 1891," is hereby repealed and Amends s. 114. 
 the following inserted in lieu thereof : — 
 
 "114. On making such application the free miner shall deposit with the i)Bpo.sitof 
 Slining Recorder for the use of the Gold Commissioner a plan of the ground, plan, 
 in duplicate. And every person making application for a lease of mining 
 ground for any purpose under the provisions of this Act shall deposit the sum 
 of twenty dollars with llii' Gold Commissioner at the time the application is 
 made. If the application is granted the twenty dollars deposited to be applied And $20. 
 towards the payment of the first year's rent; if the application is not granted 
 the twenty dollars deposited is to be returned to the applicant; but in case the If application 
 applicant fails to perform his part in accordance with his application, then the ""^ granted 
 twenty dollars deposited shall be forfeited to the Government." UirneS.'^'' 
 
 4. Section 115 of the "Placer Mining Act, 1891," is hereby repealed and Amends s. 115 
 the following inserted in lieu thereof : — 
 
 "115. Application shall not be made for a longer term than ten years, ex- Xerm of lease 
 cepting for mining lands on or adjoining unworked or abandoned rivers or 
 creeks, for hydraulic workings, for which mining lands application may be made 
 for any term not exceeding twenty years." 
 
 5. Section 116 of the " Placer Mining Act, 1891," is hereby repealed and the Amendss. 116 
 following inserted in lieu thereof : — 
 
 " 116 Applications for leases shall not exceed the following areas or dis- Areas of 
 tances:— ground. 
 
 " In dry diggings, ten acres ; Dry diggings. 
 
 " In bar diggings, unworked, half a mile in length along the high water g^r diggings, 
 
 mark ; unworked. 
 
 " In bar diggings which are unworked or abandoned, one mile and a half gar diggings, 
 
 in length along the high water mark ; abandoned. 
 
 " In creek diggings on abandoned or unworked creeks, one mile and a half Cie>-k 
 
 in length ; diggings. 
 
 ■" In bench lands adjoining unworked or abandoned rivers, for hydraulic Bench lands. 
 
 workings, one hundred and sixty acres ; but in such lands the length shall 
 
 in no case exceed half a mile." 
 
700 MARTIN'S MINING CASES. [vol. 
 
 PlaoerAmend- 6. Section 117 of the " Placer Mining Act, 1891," is hereby repealed and the 
 ment Act, 1894 following inserted in lieu thereof : — 
 
 Amends s 117 "117. A lease shall not be granted for any mining ground any portion of 
 „ , ■ ■ which is actually occupied by free miners unless with the consent of such 
 eranted^of occupiers ; and no lease shall be granted for any mining ground which is, in the 
 ground occu- opinion of the Gold Commissioner, available for agricultural purposes." 
 pied, nor 
 
 agricultural T. Section 122 of the " Placer Mining Act, 1891," is hereby repealed and the 
 
 ground. following inserted in lieu thereof : — 
 
 Aitjends s. 122_ " 122. On the non-performance or non-observance of any covenant or con- 
 Porfeiture of dition in any lease, such lease shall be declared forfeited by the Gold Commis- 
 lease. sioner, and become absolutely void, and the ground included in such lease shall 
 
 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 rivers 
 
 workings. or creeks are held under lease for hydraulic working, the lessee of such lands 
 
 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 efiiciently, and 
 shall have the right of way through any mining ground for the purpose of con- 
 structing 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 the 
 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 
 abandoned -vyhere the 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. 1^^ *1'3^° fi^® 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- 
 sion annually." 
 
 Repeals s. 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 
 bed. 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 
 lease." 
 
I.] APPENDIX A.— MINING STATUTES. 701 
 
 58 Vict. Chap. 39. Min. Amend- 
 ment Act, 1895 
 An Act to Amend the " Mineral Act, 1891." ■ 
 
 H 
 
 [2l8t February, 189S.'] 
 
 ER MAJESTY, by and with the advice and consent of the Legislative 
 Assembly of the Province of British Columbia, enacts as follovsrs — 
 
 1. This Act may be cited as the " Mineral Act Amendment Act, 1895." Short title. 
 
 2. Section 9 of the " Mineral Act, 1891," is hereby repealed, and the follow- Re-enactsl891 
 ing inserted in lieu thereof :■ — c. 25, s. 9. 
 
 " 9. No person or joint stock company shall be recognized as having any Uncertificated 
 right or interest in or to any mineral claim, or any minerals therein, or in or to person not en- 
 any water right, mining ditch, drain, tunnel, or flume, unless he or it shall have titled to inter- 
 a free miner's certificate unexpired. And on the expiration of a free miner's est m mining 
 certificate the owner thereof shall absolutely forfeit all his rights and interests property. 
 in or to any mineral claim, and all and any minerals therein, and in or to any proyj^ed in- 
 and every water right, mining ditch, drain, tunnel, or flume, which may be held terest of a oo- 
 or claimed by such owner of such expired free miner's certificate, unless said owner failing 
 owner shall, on or before the day following the expiration of such certificate, to keep up his 
 obtain a new free miner's certificate : Provided, nevertheless, should any co- licence shall 
 owner fail to keep up his free miner's certificate, such failure shall not cause a ^^^* '" *"® 
 forfeiture or act as an abandonment of the claim, but the interest of the co- °''°^'^ ™" 
 owner who shall fail to keep up his free miner's certificate shall, ipso facto, be _ 
 and become vested in his co-owners pro rata, according to their former interests : v^°^'^^,~, * 
 Provided, nevertheless, that a shareholder in a joint stock company need not be need^not have 
 a free miner, and, though not a free miner, shall be entitled to buy, sell, hold, gj,g|, licence 
 or dispose of any shares therein : And provided, also, that this section shall not jj . ^ppiy 
 apply to mineral claims for which a Crown grant has been issued." when Crown 
 
 grant issued. 
 
 3. Section 23 of the "Mineral Act (1891) Amendment Act, 1893," is hereby Re-enaotsl893, 
 repealed, and the following inserted in lieu thereof :— c- '29> s. 23. 
 
 " 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, bo 
 long as he holds the said claim for the purpose of developing the minerals con- 
 tained 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 mentwork. 
 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," c. 32, s. 10; 
 are hereby repealed, and the following inserted in lieu thereof : — • 1893, c. 29, s. 
 
 I , and re-en- 
 " 26. No free miner shall be entitled to hold in his own name, on in the acts 1891, s. 2B. 
 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 
 
 miner. 
 
 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 
 sec. 3 of the " Mineral Act Amendment Act, 1894," is hereby amended by ^™.*°' ^^^ „ 
 
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, 1805 the "Mineral Act, 1891," the words and figures, " in sec. 31 of this Act;" also 
 
 by striking out of the section substituted for the said section 43 of the 
 
 " Minerarl Act, 1891," the words " including the rights set forth." 
 
 R«-enact3l891, 7. Section 85 of the "Mineral Act, 1891," is hereby repealed, aud the fol- 
 o. 25, s. 85. lowing 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 
 up free miner's claim, but the share of the partner who shall so fail to keep up his free 
 certincate . 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." 
 
 8. The Minister of Mines and the Provincial Inspector or Mineralogist shall 
 have the right to enter into or upon and examine any mineral claim or mine 
 within the meaning of this Act. 
 
 9. Every owner of a mine or mineral claim, aud every contractor for the 
 performance of any work upon a mine or mineral claim, shall pay the annual 
 fee for a free miner's licence for any person in their employment and liable 
 for the fee, and may deduct ,the amount so paid on account of such person 
 from the amount of salary or wages due or to become due to him from such 
 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 
 licence fee; but no such statement shall biud the Recorder or Collector or excuse 
 him from making due inquiry to ascertain its correctness. 
 
 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 dol- 
 lars, to be recovered, together with the amount of the unpaid licence fees, 
 upon summary conviction before one Justice of the Peace. 
 
 Taxation of H- Notwithstanding anything contained in the said " Jlineral Act, 1891," 
 
 mines aud 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. 
 
 Minister of 
 Mines and 
 Provincial In- 
 spector or 
 Mineralogist 
 may examine 
 any mineral 
 claim . 
 Owners and 
 contractors to 
 pay licence for 
 employees. 
 
 To furnish 
 collector with 
 list of em- 
 I'loyees. 
 
 Penalty . 
 
 Lieut-Gover- 
 nor may make 
 rules and 
 regulations. 
 
 To relieve 
 "gainst forfei- 
 tures under 
 s. 9. 
 
 I'liblioation. 
 
 12. 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 am- 
 biguous or doubtful ; and may also make regulations for relieving against for- 
 feitures arising under sec. 9 of the " Mineral Act, 1891," as amended by 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 tha said provisions, and make others in their stead ; and further 
 impose penalties not exceeding two hundred dollars, or not exceeding three 
 months' imprisonment for \'iolation 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 days of the session next after the date thereof. 
 
I.] APPENDIX A.— MINING STATUTES. 793, 
 
 58 Vict. Chap. 40. Placer Amend- 
 
 ment Act, 1895> 
 An Act to Amend the " Placer Mining Act, 1891." 
 
 HER a 
 Ass. 
 
 [2Ut Felruary, i895.] 
 
 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, (1891) Amendment Act, Short title. 
 1895." 
 
 2. Section 9 of the " Placer Mining Act, 1891," is hereby repealed, and the Re-enacts s .!) . 
 following enacted in lieu thereof : — 
 
 " 9. No person or joint stock company shall be recognized as having any No person 
 right or interest in or to any i)lacer claim, mining lease, bed-rock flume grant, other than free^ 
 or any minerals in any ground comprised therein, or in or to any water right, ™">?r holding 
 mining ditch, drain, tunnel, or flume, unless he or it shall have a free miner's J^rtitioatti to 
 certificate unexpired. And on the expiration of a free miner's certificate the pronertv'"" 
 owner thereof shall absolutely forfeit all his rights and interests 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 certificate : 
 Provided, nevertheless, should any co-owner fail to keep up his free miner's Cc-ciwner fail- 
 certificate, such failure shall not cause a forfeiture or act as an abandonment i"S |'9 keep up 
 of the claim ; but the interest of the co-owner, who shall fail to keep up his free certificate, 
 miner's certificate, shall, ipso facto, be and become vested in his co-owners pro rata, 
 according to their former interests : Provided, nevertheless, that a shareholder .Shareholder in. 
 in a joint stock company need not be a free miner, and, though not a free company need 
 miner, shall be entitled to buy, sell, hold, or dispose of any shares therein : Ana, "ot he free 
 provided, also, that this section shall not apply to placer mines for which a i"""^''- 
 Crown grant has been issued." 
 
 3. The provisions of sees. 39 and 42 of the said Act shall not apply to land S.s. 39 and 42 
 or mining property held under mining leases, pursuant to Part VII. of the not to apply to. 
 "Placer Mining Act, 1891," but such leases shall in all matters be governed "'in'ng 'eases 
 by the terms thereof. ™Y'' ^*''* 
 
 4. Section 114 of the "Placer Mining Act, 1891," as amended by sec. 3 of Re-enacts 114, 
 the " Placer Mining Amendment Act, 1894," is hereby repealed, and the fol- as amended by 
 lowing enacted in lieu of said section 114 : — ISill, c. 33. s. 3. 
 
 " 114. On making such application the free miner shall deposit with the pjan in dupli- 
 Mining Recorder for the use of the Gold Commissioner a plan of the ground, cate of grouiid 
 in duplicate. And every person making application for a lease of mining gi'ound sought to be 
 for any purpose under the provisions of this Act shall deposit the sum of JS"'^®'^ '° ^^ 
 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 ^20 deposit, 
 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 Commis- 
 sioner 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 appli- 
 cation is not granted the twenty dollars deposited is to be returned to the 
 
704 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 PlacerAmend- applicant ; but in case the applicant fails to perform his part in accordance 
 ment Act, 1895 with his application, then the twenty dollars deposited shall be forfeited to 
 the Government, and his application shall be void. 
 
 Re-enacts s. 
 116. 
 
 Repeals 1894, 
 «. 33, s. 6. 
 
 Areas. 
 
 Dry diggings. 
 Bar diggings 
 Creek 
 diggings . 
 
 Benchdiggings 
 for hydraulic 
 worfclngs. 
 Proviso. 
 
 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 
 the following substituted in lieu of said section 116 of the " Placer Mining 
 Act, 1891 :" 
 
 " 116. Applications shall not be for greater than the following areas or dis- 
 tances : — 
 
 " In dry diggings, ten acres ; 
 
 " 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 
 length ; 
 
 ' 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." 
 
 Re-enacts ». 6. Section 120 of the said Act is hereby repealed, and the following enacted 
 
 120. in lieu thereof : — 
 
 Issue of lease. "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 oflSce of the Mining Recorder in the mining division of (ke 
 district in which the land leased is situated." 
 
 Re-enacts 1894 '^- Section 7 of the " Placer Mining Amendment Act, 1894," is hereby re- 
 <!■ 33, s . 7. pealed, 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 : — 
 Forfeiture of " 122. On the non-performance or non-observance of any covenant or con- 
 
 lease, dition in any lease, such lease shall be declared forfeited by the Gold Com- 
 
 missioner, 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 
 in accordance with this section." 
 
 Re-enacts s. 
 126. 
 
 Repeals 1894, 
 c. 33, s. 10. 
 Grant of lease 
 of river bed. 
 
 Right to run 
 tailings in and 
 mine 2 ft. be- 
 low surface. 
 
 And leesees 
 may cut into 
 bars, benches, 
 ■etc. 
 
 8. Section 10 of the " Placer Mining Amendment Act, 1894," and the sec- 
 tion 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 
 Act, 1891:"— 
 
 " 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 exceed- 
 ing 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 
 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 tJoint 
 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 ihe time when they may be 
 engaged in dredging, to cut into any bar, bench, or old channel on any of the 
 
L] APPENDIX A.— MINING STATUTES. 705 
 
 banks of such river on which they hold leases, or mine in any bench or bank PlacerAmend- 
 thereof during high or low water, provided the same ground is not leased under ment Act, 18&5 
 
 the ' Placer Mining Act, 1891,' and amending Acts, or any other Act, or is not 
 
 it such time being worked by free miners, the right being always reserved to 
 free miners to construct wing-dams as far as may be desired into any of such 
 bars, bankSj or benches for the purpose 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." 
 
 9. It shall not be lawful for any free miner to construct wing-dams within protection to 
 ■one thousand feet of any dredger while working, nor to obstruct any dredger dredgers. 
 
 in any manner. 
 
 10. Every owner of a mine or placer claim, and every contractor for the Owners etc. 
 performance of any work upon a mine or placer claim, shall pay the annual to pay the fe^ 
 fee for a free miner's licence for any person in their employment and liable for for employees, 
 the fee, and may deduct the amount so paid on account of such person from 
 
 the amount of salary or wages due or to become due to him from such 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 And to furnish 
 
 requested by him so to do, from time to time, a list of all persons in his em- ^i*''- 
 
 ploy, 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. 
 
 11. If any person fails to pay the said licence fee for his employees, or to Penalty, 
 deliver to the Recorder or Collector the list mentioned in the preceding section 
 
 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 re- 
 covered, together with the amount of the unpaid licence fees, upon summary 
 <;onviction before one Justice of the Peace. 
 
 12. Notwithstanding anything -contained in the said " Placer Mining Act, Mjjies and 
 1891," or amendments thereto, mines and moneys invested therein shall not be moneys there: 
 exempt from taxation, but shall bear such rate as may be imposed by any law in invested not 
 in force in the Province. exempt from 
 
 taxation. 
 
 13. The Lieutenant-Governor in Council may make such orders as are deem- Ljeut-Gover- 
 cd necessary from time to time to carry out the provisions of this Act, ac- ^or may make 
 ■cording 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 doubtfuj ; and may also make regulations for relieving against of the Act. 
 forfeitures arising under sec. 9 of the " Placer Mining Act," 1891, ^^^ ^ relieve 
 as amended by this Act; and may further make and declare any ^g^j^^t forfei- 
 regulations which are considered necessary to give the provisions turesunders.9. 
 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 pro- 
 visions, and make others in their stead; and further impose penalties not ex- 
 ceeding two hundred dollars, or not exceeding three months' imprisonment for 
 violation of any regulations under this Act ; and further provide that any state- 
 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 sec- 
 tion shall have force and effect only after the same has been published for two guoh regula- 
 successive weeks in the British Columbia Gazette ; and such orders or regula- tions to be 
 tions shall be laid before the Legislative Assembly within the first fifteen days published, 
 of the session next after the date thereof. 
 
 14 Nothing in this Act shall affect litigation pending on the first February, Pending litiga- 
 
 1895. *'°" »°* 
 
 ■ B affected. 
 
 M.M.O. *^ 
 
706 
 
 MAETIN-'S MINING CASES. 
 
 [TOL. 
 
 Mineral Act, 
 1896. 
 
 Short title. 
 
 59 ViOT. Chap. 34. 
 An Act relating to Gold and other Minerals excepting Coal. 
 
 Wth April, iS96.] 
 
 HER MAJESTY, by and with the advice and consent of the Legislative 
 Assembly of the Province of British Columbia, enacts as follows: — 
 
 Short Title. 
 1. This Act may be cited as the " Mineral Act, 1896." 
 
 Interpretation 
 
 "Mine." 
 
 "Mineral." 
 
 Building 
 stone, etc. 
 
 "Rook in 
 place. " 
 
 "Vein or 
 lode." 
 
 "Mineral 
 claim. " 
 
 "Mining 
 property." 
 
 "Legal post." 
 
 •'Mill-site." 
 
 "Streams." 
 
 "Ditch." 
 "Ditohhead." 
 
 Interpretation. 
 
 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, strontium, 
 sulphur (or any combination of the aforementioned elements with them- 
 selves 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; 
 
 " Bock in place " shall mean all rock in place bearing valuable> deposits of 
 mineral within the meaning of this Act; 
 
 " 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 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 trans- 
 porting, crushing, reducing, or sampling ores, or for the transmission of 
 power for vrorking mines; 
 
 " Streams " shall include all natural watercourses, whether usually con- 
 taining 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 ; 
 
 " Ditchhead " shall mean the point in a natural watercourse or lake, or 
 other source where water is first taken into a ditch ; 
 
!•] APPENDIX A.— MINING STATUTES. 7q7 
 
 " Free miner " shall mean a person or joint stock company, or foreign coni- Mineral .Act 
 pany, named in and lawfully possessed of a valid existing free miner's 1896. ' 
 certificate, and no other; ' 
 
 " Record," " register," and " registration," shall have the same meaning, and ,< J^^^ ini||er. ■ 
 shall mean an entry in some official book kept for that purpose ; <> reeister "and 
 
 " Full interest " shall mean any mineral claim of the full siz6, or one of "registration." 
 several shares into which a mineral claim shall be equally divided ; '' Full inter- 
 
 " Cause " shall include any suit or action ; .. /^ „ 
 
 " Judgment " shall include " order " or " decree ;" „ Judgment " 
 
 "Real estate" shall mean any mineral land in fee simple under this or any "Real estate.' 
 Act relating to gold mines, or to minerals other than coal ; 
 
 " Joint stock company " shall mean any company duly incorporated for „ Jqj ^ .i-ock 
 mining purposes under the " Companies Act," " Companies Act, 1890," company." 
 and any company duly incorporated in British Columbia for mining 
 purposes under the " Companies Act, 1862 " (Imperial) , and shall include 
 all companies, whether foreign or local, registered or incorporated undel • 
 the " Companies Act." 
 
 Past I. 
 
 Free Miners and their Privileges. 
 
 3. Every person over, but not under, eighteen years of age, and every joint ^. , 
 stock company, shall be entitled to all the rights and privileges of a free miner, f ^pg 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 cor- 
 porate name. A tree miner's certificate shall not be transferable. 
 
 4. A free miner's certificate may be granted for one or more years, to run Duration of 
 from the date thereof, or from the expiration of the applicant's then existing certificate, 
 certificate, upon the payment therefor of the fees set out in the Schedule of 
 
 Fees to this Act. Only one person or joint stock company shall be named 
 therein. 
 
 5. A free miner's certificate shall be in the following form : — Form of 
 
 „ „ certificate.- 
 
 British Columbia. 
 
 Free Miner's Certificate. 
 
 NOT TEANSFERABLE. 
 
 Date, No. 
 
 Valid for year only 
 
 This is to certify that of has paid me this day the 
 
 sum of , and is entitled to all the rights and privileges of a free 
 
 miner for year from the day of , 18 . 
 
 (Signature of Gold Commissioner or Mining Recorder, 
 as the case may be.) 
 
 6. If any person or joint stock company shall apply for a free miner's certifi- . ,. .. 
 cate at the Mining Recorder's office during his absence, and shall leave the ^Morder's" 
 fee required by this Act with the officer or other jKrson in charge of the said ^^^^^ ^^ j^j^ 
 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 
 
 miner's certificate, commencing to run at the expiration of his then existing free 
 
708 
 
 MARTIN'S MINING CASES. 
 
 [V6t. 
 
 Minei7al Act, 
 1896. 
 
 " Substituted 
 certificate . " 
 
 miner's certificate, provided, that wlien lie applies for such certificate he shall 
 produce to the Mining Recorder, or in case of .his absence shall leave with the 
 oflScer or other person in charge of the Mining Recorder's office, such existilig 
 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 whoin or out 
 of whose office the original was issued. Every such copy shall be marked " sub- 
 stituted 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 S. Every person and joint stock company engaged in mining for minerals 
 
 minmg ^ith- (other than coal) shall take out a free miner's certificate, and every person or 
 out certificate, joint stock company who mines or worfes as a miner in any mineral claim, mine 
 ueld 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 sum- 
 mary way, forfeit and pay a penalty not exceeding twenty-five dollars, besides 
 J 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 
 person not en- 
 titled to inter- 
 est in mining 
 property. 
 
 Provided in- 
 terest of a co- 
 owner failing 
 to keep up his 
 licence shall 
 vest in the 
 (ither co- 
 owners. 
 
 Provided a 
 shareholder 
 need hot have 
 such licence. 
 
 Not tn apply 
 when Crown 
 grant issued. 
 
 In ease of pur- 
 chase of claim 
 where default 
 has been made 
 in keeping np 
 certificate. 
 
 Owners and 
 contractors to 
 pay licence for 
 employees. 
 
 To furnish Col- 
 lector with list 
 of employees. 
 
 9. Subject to the proviso hereinafter stated, no person or joint stock company 
 shall be recognized as having any right or interest in or to any mineral claim, 
 or any minerals therein, or in or to any water right, mining ditch, drain, tunnel, 
 or flume, unless he or it shall have a free miner's certificate unexpired. And oil 
 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, 
 nevertheless, should any co-owner fail to keep up his free miner's certificate, 
 such failure shall not cause a forfeiture or act as an abandonment of the claim, 
 but the interest of the co-owner who shall fail to keep up his free miner's certifi- 
 bate shall, ipso facto, be and become vested in his co-owners pro rata, accord- 
 ing to their former interests : Provided, nevertheless, that a shareholder . in a 
 joint stock company 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 mineral claims for which a Crown 
 grant has been issued : Provided, always, that if any person or company shall 
 acquire, by purchase or otherwise, any mine or mineral 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 so acquiring such mine or 
 mineral claim, or interest therein, may, within one month from the time when he 
 or it shall first acquire knowledge thereof, or if knowledge already acquired with- 
 in one month after thie 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 mineral 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. 
 
 10. Every owner of a mine or mineral claim, and every contractor for the 
 performance of any work upon a mine or mineral claim, shall pay the annual 
 fee for a free miner's licence for any person in their employment and liable for 
 the fee, and may deduct the amount so paid on account of such person from the 
 amount of salary or wages due or to become due to him from such 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 
 
1] APPENDIX A.— MINING STATUTES. 
 
 ro9 
 
 requested by him so to do, from time to time, a list of all persons in bis em- Mineral Act 
 ^loy, or indirectly employed by him, liable to pay the said licence fee; but no 1896. ' 
 
 such statement shall bind the Recorder or Collector or excuse him from making 
 
 due enquiry to ascertain its correctness. 
 
 11. If any person fails to pay the said licence fee for his employees, or to Penalty, 
 deliver to the Recorder or Collector the list mentioned in the preceding section 
 
 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 re- 
 covered, together with the amount of the unpaid licence fees, upon summary 
 conviction before one Justice of the Peace. 
 
 12. Every free miner shall, during the continuance of his certificate, but not Where a free 
 longer, have the.right to enter, locate, prospect, and mine upon any waste lands of miner may 
 the Crown for all minerals ■ other than coal, and upon all lands the right where- prospect and 
 on to so enter upon, prospect, and mine all minerals other than coal shall have mine, 
 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 descrip- 
 tion 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 pur- 
 poses other than placer mining, and also Indian reservations and military or 
 naval reservations: Provided that where any hydraulic mining works, established Hydraulic 
 in accordance with the " Placer Mining Act, 1891," have been in operation, the mining works, 
 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 : Provided that in the event of such entry being Proviso for 
 made upon lands already lawfully occupied for other than mining purposes, and security ^nd 
 not being a portion of lands granted to and held by or for a railway company oo^np^nsa lo . 
 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 
 of the Gold Commissioner or Mining Recorder for any loss or damages which 
 may be caused by such entry ; and provided that, after sudh entry, he shall make 
 full compensation to the occupant or owner of such lands for any loss or dam- 
 ages 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. 
 
 13. Any free miner shall be at liberty, at any period of the year, while Right to kill 
 actually prospecting or engaged in mining, to kill game for his own use. game. 
 
 14. A free miner shall have all the rights and privileges granted to free " Placer 
 miners by the " Placer Mining Act." Mining Act." 
 
 15. Any free miner desiring to locate a mineral claim, shall, subject to the gj^e and form 
 provisions of this Act with respect to land which may be used for mining, enter of free miner's 
 upon the same and locate a plot of ground measuring, where possible but not claim, 
 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 surve.ved claim is 
 adopted as common to both claims, but the lines need not necessarily be meri- 
 dional. In defining the si^e of a mineral claim, it shall be measured horizon- 
 tally, irrespective of inequalities of the surface of the ground. 
 
 16. A mineral claim shall be marked by two legal posts, placed as near as g^^ staked 
 possible on the line of tlie 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. 
 
 [VOL. 
 
 Mineral Act, be written, in addition to the foregoing, " Initial Post," the approximate compass 
 1896. bearing of No. 2 post, and a statement of the numbei' 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." 
 
 All the particulars required to be put on No. 1 and No. 2 posts shall be fur- 
 nished by the locator to the Mining Recorder, in writing, 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 u locality where there is neither 
 timber nor underbrush he shall set legal posts or erect monuments of 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 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. 
 
 Examples of Various Modes of Laying Out Claims. 
 
 No. 1 P03t. 
 
 No. 2 Post. 
 
 260' 
 
 < 
 250' 
 
 1250' ' 
 
 o 
 
 s 
 
 5 Discovery 
 
 Post. 
 
 No. 
 
 1 Fost. 
 
 No. 1 Post. 
 
 It shall not be lawful to move No. 1 post, neither shall it be lawful to move 
 No. 2 post, except for the correction of distance by the Provincial Government 
 Surveyor. Nos. 1 and 2 posts shall govern the direction of one side of the claim. 
 
 (o) 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 of the full size shall be recorded without the applica- 
 tion being accompanied by an affidavit or solemn declaration in the Form 
 S., made by the applicant or some person on his behalf cognizant 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 applied for is unoccupied by any other person as a mineral claim, 
 and is not occupied by any building, or any laud falling within the 
 curtilage of any dwelling-house, or any orchard, or any land under culti- 
 vation, 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 fvill, and as accurate a descrip- 
 tion as possible of the position of the claim given, having special reference 
 to any prior locations which it may join ; 
 
I-] APPENDIX A.— MINING STATUTES. 
 
 711 
 
 No mineral claim which at the date of its record is known by thy locator Mineral Act 
 to be less than a full sized mineral claim, shall be recorded without the 1896. 
 
 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 buildiug, 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 certifi- 
 cate 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 appli- 
 cant 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 formali- 
 ties hereinbefore referred to is not of a character calculated to mislead 
 other persons desiring to locate claims in the vicinity. 
 
 17. Any location made upon Sunday or any public holiday shall not for that Location made 
 reason be invalid, any law or statute to the contrary notwithstanding. on Sunday. 
 
 18. In cases where, from the nature or shape of the ground, it is impossible where staking 
 to mark the location line of the claim, as provided by this Act, then the claim out cannot be 
 may be marked by placing legal posts as nearly as possible to the location line, properly done, 
 and noting the distance and direction such posts may be from such location line, 
 
 which distance and direction shall be set out in the record of the claim. 
 
 19. Every free miner locating a mineral claim shall record the same with -Record of 
 the Mining Recorder of. the district within which the same is situate, within daim. 
 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 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 
 heen recorded within the prescribed period shall be deemed to have been aban- 
 doned. 
 
 20. A free miner shall not be entitled to a record of a mineral claim until he "When a free 
 shall have furnished the said Mining Recorder with all the above particulars. miner is 
 
 entitled to 
 
 21. Upon the establishment of a mining division and the opening of a Mining record. 
 Recorder's office therein, under the authority of this Act, such office and none ]y[ining 
 ■other shall be the proper office for recording all mineral claims within such Recorder's 
 mining division, and making all records in 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 thdt in which such claim is situate, such error shall 
 
 Tj ,~ iot affect his title to such claim, but he shall, within fifteen days from the dis- 
 
 cla^'S'wronff '^9^^'^^ °^ ^^^ error, record such claim in the mining division in which it is 
 district. situate, ^nd 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. 
 
 Application at 
 Recorder's 
 office in his 
 absence. 
 
 Duration of 
 claim and 
 duties of 
 claim-holder. 
 
 Adjoining 
 claims held in 
 partnership. 
 
 Payment in- 
 stead of as- 
 sessment work, 
 
 Surface rights. 
 
 Priority of 
 location in 
 cases of 
 dispute. 
 
 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 ^om 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 Com- 
 missioner 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 minei-s 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 vacant 
 and abandoned, any rule of law or equity to the contrary notwithstanding. 
 
 25. The holder of a mineral claim may, in lieu of the work required to be 
 done by section 24 of this Act, on a claim in each year, pay to the Mining Re- 
 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 pay- 
 ment and the record thereof in any year shall relieve the persoa 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. 
 
 26. The owner of a mineral claim shall be entitled to all surface rights, in- 
 cluding 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 the 
 purpose of developing the minerals contained therein, but no longer. 
 
 27. 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, 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 Act. 
 
 Iriregularities 28. Upon any dispute as to the title to any mineral claim no irregularity 
 
 previous to happening previous to the date of the Pecord of the last certificate of work shall 
 last certificates affect the title thereto, and it shall be assumed that up to that date the title 
 of title, to such claim was perfect, except upon suit by the Attorney-General based upon 
 
 fraud. 
 
I.] APPENDIX A.— MINING STATUTES. 7ja 
 
 29. No free miner shall be entitled to hold in his own name, or in the name Mineral Act 
 of any other person, more than one mineral claim on the same vein or lode, 1896. 
 
 except by purchase, but such free miner may hold by location a claim upon any 
 
 separate vein or lode. Not more than 
 
 one claim to 
 
 30. A free miner may at any time abandon any mineral claim by giving J'®"s'4 "Y 
 notice in writing of such intention to abandon to the Mining Recorder, and from mmer. 
 the date of such notice all interest of such free miner in such claim shall cease. Abandonment 
 
 of claim. 
 
 31. When a free miner abandons a mineral claim he shall have the right to Machineiy on 
 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. 
 
 32. No free miner shall be entitled to relocate any mineral claim, or any Re-location of 
 portion thereof which he shall have failed to recoi^d witliin the prescribed period, abandoned 
 or which he shall have abandoned or forfeited, unless he shall have obtained the claim, 
 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 
 BUch permission. y 
 
 33. Where a tunnel is run for the development of a vein or lode the owner t,_i.j. (.„ lodes 
 of such tunnel shall, in addition to any mineral claim legally held by him, have discovered 
 the right to all veins or lodes discovered in such tunnel : Provided that the ground ;„ ^ tunnel . 
 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 Interest in 
 held as real estate, be deemed to be a chattel interest, equivalent to a lease, for claim a chattel 
 one year, and thence from year to year, subject to the performance and obser- interest. 
 viEince of all the terms and conditions of this Act. 
 
 35. Any lawful holder of a mineral claim shall be entitled to a Crown grant Purchase of 
 thereof on payment to the Government of British Columbia of the sum of five mineral claim. 
 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 
 hWve respect solely to the work required to be done on claims. 
 
 36. Whenever the lawful holder of a mineral claim shall have complied with Certificate of 
 the following requirements, to the satisfaction of the Gold Commissioner, he improvements. 
 Shall be entitled to receive from the Gold Commissioner a certificate of improve- 
 ments in respect of such claim, unless proceedings by the person claiming an 
 
 adverse right under section 37 of this Act have been taken : — 
 
 (o) I>ouB or cause to be done work on the claim itself in developing a mine -w^hat work to 
 to the value of five hundred dollars, exclusive of all houses, buildings and be done before 
 other like improvements. For the purpose of this section, work done on certificate of 
 the claim by a predecessor or predecessors in title shall be deemed to have improvements 
 been done by the applicant who receives a transfer of such claim ; but in granted . 
 no case shall the cost of surveying be considered as improvements or 
 work done on the' claim ; 
 
 (6) Found a vein or lode within the limits of such claim; Found a vein. 
 
 (e) Had the claim surveyed by an authorized Provincial Land Surveyor, who Survey re- 
 shall have made three plats of the claim, and who shall have accurately quirements for 
 defined and marked the boundaries of such claim upon the ground, and certificate of ' 
 indicated the corners by placing monuments or legal posts at the angles improvements. 
 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 
 
714 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Mineral Act, 
 1896. 
 
 Evidence of 
 location. 
 
 Notice of; 
 application, 
 etc. , to be 
 posted. 
 
 Publication of 
 such notice in 
 ■Gazette, 
 
 Filed copy of 
 ■original notee 
 ■with Recorder. 
 
 Affidavit in 
 Form G. 
 
 Mining Re- 
 corder's duties 
 thereupon . 
 
 the original field-notes and plan direct to the Lands and Works Depart- 
 ment. After a certificate of improrements has issued in respect of any 
 claim so surveyed, prima 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 prima 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 
 sur'vey 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 
 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 tfie purpose of obtaining a Crown grant ; 
 
 ( 5 ) The date of the notice ; 
 
 (e) Inserted a copy of such notice in the British Columbia Gazette and 
 in any newspaper published in the Province, and circulating in the dis- 
 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 ; 
 
 (f) Shall have filed with the Mining Recorder a copy of the surveyor's 
 original field notes and plat immediately after posting the notice on the 
 claim of his intention to apply for a certificate of improvements ; 
 
 (g) Filed with the Mining Recorder — 
 
 (1) Affidavit of the holder of the claim, or his agent, in the Form G 
 in Schedule of this Act ; 
 
 (h) At the expiration of the term of the said publication, provided no 
 action shall have been commenced and notice thereof filed with the 
 Mining Recorder, he shall forward to the owner 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. (<J), 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. 
 
 37. (1.) A certificate of improvements when issued as aforesaid sha.ll 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, 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, 
 
 within sixty days after the publication in the British Columbia Gazette of the 
 
 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 
 
 Supreme Court of British Columbia to determine the question of the right of 
 
 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 
 
 Certified copy judgment, and a failure to so commence or so to prosecute shall be deemed to 
 
 «t judgment be a waiver of the plaintitE's claim. ' After final judgment shall have been ren- 
 
 may be filed, dered in the said action the person or any one of the persons entitled to the pos- 
 
 Certifioate of 
 i-mprovenients 
 not to be 
 impeached 
 except for 
 fraud. 
 Adverse 
 claimant. 
 
 Action to be 
 ■commenced. 
 
I-] APPENDIX A.— MINING STATUTE*. 
 
 715 
 
 session of the claim or any part thereof, may file a certified copy of the same Mineral Act 
 in the oflSce of the Mining Recorder. After the filing of the said judgment, 1896. 
 
 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 Certificate of 
 of improvements in respect of the claim or the portion thereof which he or improvements 
 they shall appear from the decision of the Court rightly to possess : Provided • j"'' 
 that this section shall not apply to any adverse claim filed or action to enforce ''" ^'"*" ' 
 the same commenced prior to the date of this Act coming into force, but the Pending 
 same shall be continued in the same manner as if this Act had not been passed, litigatio 
 
 itlOll. 
 
 38. After the issuing and recording of such certificate of improvements, and Eflfeot of certi- 
 Tvhila such certificate shall be in force it shall not be necessary to do any work ficate of 
 
 •on such claim. improvements. 
 
 39. On the granting and recording of such certificate of improvements in Record of 
 respect to a mineral claim situate outside of the Railway Belt, the holder thereof certificate of 
 .shall be entitled to a Crown grant of such claim without the payment of the improvements 
 five hundred dollars required by sec. 35. And on the granting and recording entitles owner 
 of such certificate of improvements in respect of a mineral claim situate inside ^° Crown 
 
 the Railway Belt, the holder thereof shall be entitled to a Crown grant of such ?''*°*- 
 claim on the payment of five dollars per acre to the Mining Recorder. Railway belt. 
 
 40. The holder of a mineral claim for which a certificate of improvements Application 
 has been granted and recorded shall make application for a Crown grant to for Orown 
 the Gold Commissioner, enclosing his certificate of improvements, the Crown grant, 
 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 
 
 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 im- Transfer 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 
 missioner, 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 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. 
 
 42. When a holder of a mineral claim has taken out his certificate of im- jj ot to transfer 
 provements he shall not record any transfer of his rights in the said claim until he after oertifi- 
 obtains his Crown grant. cate until 
 
 Crown grant. 
 
 43. Tlie issuance of a Crown grant shall not invalidate any lien which may Crown grant 
 have attached to any mineral claim previous to the issuance of such Crown does not. iii- 
 '^rant. validate a lien. 
 
 44. A Crown grant of a mineral claim located on any waste lands of the What passes 
 Crown shall be deemed to transfer and pass the right to all minerals within by Crown 
 
 the meaning of this Act (excepting coal) found in veins, lodes, or rock in place, granton waste 
 and whether such minerals are found separately or in combination with, each l^nd. 
 other, in, upon, or under the land in the said Crown grant mentioned. 
 
 45. Crown grants of mineral claims located on lawfully occupied lands the -what passes 
 right whereon to enter,' prospect, and mine all minerals (other than coal) has by Cruwn 
 been reserved to the Crown and its liceneees, shall pass to the grantee all grant when all 
 minerals within the meaning of this Act (other than coal) found in veins or minerals (save 
 lodes, or rock in place, and whether such minerals are found separately or In coal) have been 
 combination with each other, which may be in, upon, or under the land in the said reserved. 
 
716 MARTIN'S MINING CASES. [vol. 
 
 Mineral Act, Crown grant mentioned, and including all the rights given to mineral claim. 
 1896. ■' holders of mineral claims so located, but such Crown grant shall expressly re- 
 serve the rights of such prior occupant. 
 
 In case of tim- (Where the mineral claim is located on land lawfully occupied under a 
 ber'lease. 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 46. Crown grants of mineral claims located on lawfully occupied lands, the- 
 
 by Crown right whereon to enter and mine gold and silver has been reserved to the 
 gofd and Si"ver p^'o^" ^""i its licencees, shall pass to the grantee all the gold and silver found 
 has been re- ''° veins, or lodes, or rock in place, which may be in, upon, or under the land 
 served. ™ the said Crown grant mentioned, and including all the rights given to mineral 
 
 claim holders of mineral claims so located; but such Crown grant shall ex- 
 pressly reserve the rights of such prior occupant. 
 
 Adverse claim 47. If an adverse claim shall only affect a portion of the ground for which 
 affecting only a certificate of improvements is applied, the applicant may relinquish the por- 
 portion of tion covered by the adverse ctaim, and still be entitled to a certificate of im- 
 claira. provements 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, of such judgment shall be entered in the " Record Book ;" and if by any judg- 
 ment 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. 
 
 Record of title 49, Every conveyance, bill of sale, mortgage, or other document of title re- 
 not real estate. lating 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 record, and not from the date of such document, : 
 After Crown And provided further, that after the issuance of a Crown grant for any min- 
 grant. eral claim it shall not be necessary to register any transfer or other document 
 
 of title executed subsequent to such Crown grant with the Mining Recorder of 
 the district in which the said claim is situated ; but all documents relating to 
 the same may thereafter be registered in the same manner as are other docu- 
 ments of title relating to the transfer of real estate, and all the provisions of 
 " Land Re- t^^ " Land Registry Act," and any amendments thereto, shall apply to such 
 gistry Act." registration. 
 
 Transfers to be 50. No transfer of any mineral claim, or of any interest therein shall be: 
 in writing. enforceable unless the same shall be in writing, signed by the transferrer or 
 
 by his agent authorized in writing, and recorded by the Mining Recorder ; and 
 Agent. j£ signed by an agent, the authority of such agent shall be recorded before the 
 
 record of such transfer. All mineral claims derived under Crown grant, and 
 " Land Re- every transfer thereof, or any Interest therein, shall be registered under the 
 gistry Act." provisions of the " Land Registry Act." 
 
 Transfers un- 51 ijijig transfer of any real estate acquired under the provisions of the 
 der " Gold n (jold Mining Amendment Act, 1873," shall be in writing, signed by the trans- 
 Amenlment ferrer or his agent authorized in writing, and need not be by deed or under 
 Act, 1873." seal- 
 Claim of miner 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 gjoner, for twelve months after the death of the lawful holder. 
 
 Faiults of Gov- 53. No free miner shall suffer from any acts of omission, or commission, or 
 rnment delays on the part of any Government official, if such can be proven. 
 
 fficials . 
 
^•] APPENDIX A.— MINING STATUTES. 717 
 
 Mill Sites. Mineral Act, 
 
 54. A free miner may locate any unoccupied and unreserved Crown land ^^^ 
 not known to contain minerals, and not exceeding five acres, as a miH^ite. Location of 
 No free miner shall be entitled to obtain and hold under this section more mill-sites, 
 than one mill site for each mineral claim lawfully held by him. Such mill site 
 
 shall be as nearly as possible in the form of a square. On locating a mill 
 site the free miner shall comply with the following requirements : — 
 
 (a) Mark out the land by placing a legal post at each corner; 
 
 (&) Post a notice on each post, stating — 
 
 1. The name of such free miner ; 
 
 2. The number of his free miner's certificate ; 
 
 3. Hia intention, at the expiration of sixty days from the date of the 
 
 notice, to apply for the land as a mill site; 
 
 4. The date of the notice; 
 
 (c) Post a copy of such notice on the office of the Mining Recorder. 
 
 55. On the expiration 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 Com- 
 missioner 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 Commission- 
 er. If, during the continuance of such lease, such free miner shall prove 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, he shall be entitled to a Crown grant of such Crown grant, 
 mill -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 satis- 
 faction 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- 
 titled to a Crown grant of such mill site. 
 
 56. On applying for a Crown grant of a mill-sit§, the free miner shall — Application 
 
 (1) Pay the sum of five dollars per acre to the Mining Recorder; for Crown 
 
 (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 or constructed on 
 the mill site to the value of at least five hundred dollars ; 
 
 (e) Application for the Crown grant. 
 
 57. Crown grants of milleites shall pass to the grantee all the surface of what passes 
 the land in tjie said Crown grant mentioned, but all such Crown grants shall by Crown 
 expressly reserve all minerals under the said land, and the right to the Crown grant of mill 
 and its licencees to enter and mine the said minerals, and may be in the follow- site. 
 
 ing form : — 
 
 [L.S.] .(Royal Arms.) 
 
 Peovince of I 
 British Columbia. \ 
 
 No. ) 
 
 Victoria, by the Grace of God, of the United Kingdom of Gi-eat Britain and Form. 
 
 Ireland, Queen, Defender of the Faith, and so forth. To all to whom 
 
 these presents shall come. Greeting : 
 
718 MARTIN'S MINING CASES. [vol.. 
 
 Mineral Act, Know ye that We do by these presents, for Us, Our heirs and successors,, 
 1896. 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 con- 
 venient 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 there- 
 out any minerals, within the meaning of this Act, 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 under any parts of the hereditaments hereby granted, as may be reasonably 
 required for mining or agricultural purposes in the vicinity of the said here-- 
 ditaments, 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 auth- 
 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 con- 
 struction, maintenance, or repair of any roads, ferries, bridges, or other public 
 works. 
 
 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. 
 
 Tunnels and Drains. 
 
 Licence to run 58. Any free miner, being the holder of a -mineral claim or mine held as 
 tunnels and pg^i estate, may, at the discretion of the Gold Commissioner, obtain a licence 
 drams. ^^ ^^^ ^ drain or tunnel, for drainage or any other purpose connected with the- 
 
 development or working of such claim or mine, through any occupied or unoc- 
 cupied 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. 
 
I.] APPENDIX A.— MINING STATUTES. 719. 
 
 Water Rights. Mineral Act, 
 
 1896. 
 
 59. A free miner who is the holder of a mineral claim or mine held as real 
 
 estate, or of any mill site, may, at the discretion of the Gold Commissioner, obtain Grant of water 
 a grant to a water right in any unappropriated water for any mining or mill- '''S"''- 
 
 ing purpose, for any term not exceeding twenty years, upon such terms and 
 conditions as such Gold Commissioner shall think fit. 
 
 60. Before applying for any such grant, the free miner shall — What must be 
 (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 applying for a 
 such notice on the office of the Mining Recorder for at least sixty days, ^"^^ ' 
 which notice shall contain the following particulars : — 
 
 (o) The name of each applicant; 
 
 (6) The number of each applicant's free miner's certificate; 
 
 (c) The name, or if unnamed, a sufficient description of the stream, 
 
 lake, or other source from which such water is intended to be 
 taken; 
 
 (d) The point of diversion or intended ditch head; 
 
 (e) The number of inches of water applied for ; 
 it) The purpose for which it is required ; 
 
 (ff) 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, Kecord ol grant 
 which time can be extended by the Gold Commissioner in his discretion. 
 
 62. No grant shall take effect until recorded. Grant not 
 
 , ,, j..i J. effectual till 
 
 63. On any dispute prior to such grant, priority of notice shall constitute recorded. 
 
 priority of right. Priority of 
 
 . notice. 
 
 64. A grant duly recorded shall speak from the date of the grant, and ^lot j^^^.^ ^^ ^^^^j. 
 
 from the date of the record. 
 
 65. Every such grant shall be subject to the rights of such free miners as „. , ^^j 
 shall, at the date of such grant, be working on the stream above or below the ^.^^^^ ^^^^ 
 ditch head, and of any other persons lawfully using such water for any purpose jj^g^^ jj,g 
 whatsoever ; and such grant shall be deemed as appurtenant to the mineral stream. 
 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 purpose ^3,^^^ not to- 
 of selling such water, or of using the same otherwise than for the purpose ^^ ^^j^^ 
 
 .for which the water was recorded. 
 
 67 Within six months after the grant is made, the grantee shall commence Commence- 
 the construction of the ditch or other works through which he intends to con- ment of con- 
 vev the water, and shall prosecute the same diligently and uninterruptedly to struction of 
 completion, unless interrupted by the severity of the weather: Provided, works, 
 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. 
 
720 
 
 MARTm'S MINING OASES. 
 
 [VOL. 
 
 Mineral Act, 
 1896. 
 
 Change of 
 point of 
 diversion. 
 
 Wilful waste 
 of water. 
 
 68. The Gold Commissioner shall, in his discretion, have power to allow a 
 grantee of any water right to change the place of diviersion, on giving such 
 notices and complying with such terms as the Gold Commissioner may require. 
 
 69. Every such grantee shall take reasonable means for utilizing the water 
 granted to him ; and if he wilfully waste any water, or take a quantity of water 
 in excess of his requirements, the Gold Commissioner may declare his grant to 
 be forfeited. 
 
 et*3. 
 
 Power to 70. Any person desiring to bridge any stream, claim, or other place, for any 
 
 bridge stream, purpose, or to mine under or through any ditch or flume, or to carry water 
 through or over any land already occupied, may do so with the written sanction 
 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. 
 
 Rule for mea- 71. In measuring water in any ditch or sluice, the following rules shall be 
 surement of observed : — The water taken into a ditch or sluice shall be measured at the 
 water. 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. 
 
 Notice to be '^2. Whenever it shall be intended, in forming or upholding any ditch, to 
 
 given on ap- enter upon and occupy any part of a registered claim, or mine held as real 
 proaohing any estate, or to dig or loosen any earth or rock within four feet of any ditch not 
 ditch. 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 '^^- ^^^ person heretofore or hereafter engaged in the construction of any 
 a ditch. road or work may, with the sanction of the Gold Commissioner, cross, divert, 
 
 or otherwise interfere With any ditch, water right, or other mining rights what- 
 soever, for such period as the said Commissioner shall direct. 
 
 Owner to pro- T4. The owner of any ditch, flume, or pipe shall, at his own expense, con- 
 vide for water struct, secure, and maintain all culverts necessary for the passage of waste and 
 waste. superfluous water flowing through or over any such ditch, flume, or pipe. 
 
 Owner to keep '^^- '^^^ 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, 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. 
 
 Owner liable 
 for damages. 
 
 76. The owner of any ditch, flume, or pipe shall be liable 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, 
 flume, or pipe breaking or being imperfect. 
 
 What oonsti- 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 iu 
 notice. such notice, and also in the ofiice of the Mining Recorder, such notice shall be 
 
 deemed good and sufficient. 
 
 Renewal of 
 
 78. 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. 
 
I-] APPENDIX A.— MINING STATUTES. 721 
 
 79. Nothing herein contained shall be construed to limit tb« right of the Mineral Act, 
 Chief Commissioner of Lands and Works to lay out, from time to time, the 1896. 
 
 public roads of the Province, across, through, along, or under any ditch, water 
 
 right, or mining right, in any Crown land, without compensation, provided that '^''i«f Commis- 
 iis little damage as possible shall be done in so doing. sioner may lay 
 
 out roads, etc . 
 
 Part III. 
 
 illmng Partnershijin. 
 
 80. All mining partnerships shall be governed by the provisions hereof, unless Mining part- 
 they have other and written articles of partnership. nerships ; ap- 
 plication . 
 
 81. A mining partnership shall, unless otherwise agreed upon, be deemed to Partnership to 
 be a yearly partnership, renewable from year to year by tacit consent. be annual. 
 
 82. The business of the partnership shall be mining and such other matters Scope of part- 
 as pertain solely thereto. ner-ship. 
 
 83. Mining partnerships can locate and record in the partnership name a Record of min- 
 mineral claim for each partner, but the name of every partner, and the number ing partner- 
 of every partner's free miner's certificate shall be on the record of every such ships. 
 
 claim. The partnership name must appear on every such record, and all the 
 claims so taken up shall be the property of the partnership : Provided, always, 
 that no free miner who is the member of a mining partnership, holding by right 
 of location a mineral claim, shall be entitled to hold by right of location in his 
 own name or in the name of any other partnership any interest in any other 
 mineral claim on the same vein or lode on which the partnership claim is 
 situate. 
 
 84. Should any partner fail to keep up his free miner's certificate, such One partner 
 failure shall not cause a forfeiture, or act as an abandonment of the partner- f^'lms to keep 
 ship claim, but the share of the partner who shall so fail to keep up his free "P j'.^'' """^"^ ** 
 miner's certificate shall, ipso facta, 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 partner's 
 shall, at any meeting thereof, be entitled to vote upon any interest or fraction right to vote, 
 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 what Majoiity to. 
 ■ manner to work the partnership claim, the number of men to be employed, and ™*''^ assess- 
 
 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 part- 
 nership 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. 
 
 87. All asssessments shall be payable within thirty days after being made, ^^^^g^^fj*'^ 
 
 88. Any partner making default in payment after receiving a notice specify- !!'"'™,?? 3* 
 ing the amount due by him, shall, if such amount be correct, be personally liable "®'7^f ™ Pg^; 
 therefor to the partnership, and his interest in the partnership property may be „,g^t ^y p^rt- 
 
 M.M.c. ^6 ner. 
 
722 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Mineral Act, 
 1896. 
 
 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 in- 
 suflBcient 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 
 SherifE to seize aid 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 carry- 
 ing 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. 
 
 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 
 to their foremost interests. 
 
 Title to 
 abandoned 
 share vests in 
 continuing 
 partners . 
 
 Partner may ^^- -^^ partner shall be entitled to sell, or contract for the sale of, his 
 
 sell his interest interest in the partnership property, but such interest shall continue liable for 
 all the debts of the partnership. 
 
 After sale, 92. No partner shall, after a bill of sale conveying his interest has been 
 
 partner not recorded, be liable for any indebtedness of the partnership incurred thereafter, 
 liable for debts 
 
 Limiied Liability. 
 
 Limited ^3- -^"y mining partnership composed of two or more free miners may limit 
 
 liability. the liability of its members, upon complying with the requirements following, 
 
 that is to say : — 
 
 Upon filing with the Mining Recorder a declai-atory 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 con- 
 spicuous part of every such claim, in large letters, the name of the part- 
 nership, followed by the words " Limited Liability." 
 
 Addition of 
 limited lia- 
 bility to com- 
 pany's name. 
 Effect of 
 limited 
 liability. 
 
 Accounts to 
 be Isept. 
 
 94. The words " Limited Liability " shall thereupon become part of the part- 
 nership name. 
 
 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 
 
I-] APPENDIX A.— MINING STATUTES. 723 
 
 the partnership ; and such balance sheet and all the books of the partnership Mineral Act, 
 shall be open to the inspection of creditors at all reasonable hours. 1896. 
 
 97. Every partner in such partnership shall be at liberty to sell or dispose of Partner may 
 his interest therein, or of any part thereof, to any other free miner. sell. 
 
 98. No member of such partnership, after a bill of sale conveying his interest '^ftw sale, 
 has been duly recorded, or after he has served a notice of abandonment of his Py',"^'" ""' , 
 interest on the foreman, and left a copy thereof with the Mining Recorder, shall ''aWefor debts 
 be liable for any indebtedness of the partnership incurred thereafter. partnership. 
 
 99. No such partnership shall declare any dividend until all its liabilities Dividends, 
 have been paid. 
 
 100. Every such partnership shall appoint a foreman or manager, who shall Appointment 
 represent the partnership, who shall sue and be sued in the name of the part- °f foreman . 
 nership, and his contracts in relation to the business of the partnership shall be 
 
 deemed to be the contracts of the partnership. 
 
 101. No such partnership shall be liable for any other indebtedness than To what 
 that contracted by its foreman or manager, or by its agent duly authorized in partnership is 
 writing. liable. 
 
 102. Should any such partnership fail to comply with any of the provisions Failure to 
 of this Act relating exclusively to " limited liability " partnerships, such part- comply with 
 nerships shall, from the date of such failure, cease to be a " limited liability" P'ovisions. 
 partnership. 
 
 Part IV. 
 
 Mining Recorders — Appointment, Duties, I'owers. 
 
 103. The Lieutenant-Governor in Council may appoint any person to be a Appointment 
 Mining Recorder in and for any part of the Province. of Mining 
 
 Recorder. 
 
 104. Where mineral land is discovered in a part of the Province so situate Election of 
 that the provisions of this Act as to free miners' certificates and records of Recorder by 
 mining property cannot be justly applied or enforced by reason of there being no miners. 
 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, 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 and term thereof, and the fees for the same, 
 be forwarded to the nearest Gold Commissioner or Mining Recorder as soon 
 .thereafter as practicable. 
 
 105. Every Mining Recorder shall issue free miners' certificates and " substi- Rectrder to 
 tuted certificates " to all persons and companies entitled thereto. issue certifi- 
 cates . 
 
 106. Such free miners' certificates shall be taken from a printed book of Book of forms, 
 forms, with duplicate counterfoils, one of which counterfoils shall be filed in counterfoils, 
 the office of the Mining Recorder. <^tc. 
 
 107. Every Mining Recorder shall keep the following books : — Books to be 
 
 kept by Min- 
 (o) A book to be known as the Record Book; iug Recorder . 
 
 <6) 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 ;" 
 
 (e) A book to be known as the " Record of Free Miners' Certificates." 
 
724 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 Mineral Act, 
 1896. 
 
 Issue of ■ 
 certificate . 
 Filing and 
 record of 
 affidavit and 
 certificate . 
 Record of 
 certificate of 
 improvements. 
 What Re- 
 corder must 
 record . 
 
 108. Upon receipt of an affidavit setting forth a detailed statement of work, 
 as required by sec. 24, the Mining Recorder shall issue a certificate of work in 
 the Form E in the Schedule to this Act. 
 
 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, per- 
 mits, grants of water rights, and other privileges granted by the Gold Commis- 
 sioner or Mining Recorder, and all forfeitures declared by -the Gold Commis- 
 sioner, and a memorandum of every judgment affecting ^ mineral claim or other 
 mining property, in the Record Book. 
 
 Certain partic- 112. Upon any Mining Recorder issuing a free miner's certificate, or upon 
 Mlars to be any free miner applying to record any mineral claim, bill of sale, or other 
 entered m free instrument, the Minings Recorder shall enter in the free miner's certificate book 
 JSl^^hnnt*^' ' '^^ particulars of such free miner's certificate, giving number of certificate, date, 
 place of issue, and to whom issued. 
 
 -cate book. 
 
 Record of 113. Upon the receipt of a notice of abandonment, the Mining Recorder. 
 
 jibandonmeuts 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. 
 
 How records 114. The Mining Recorder shall record, by copying out veriatim all affidavits 
 
 are to be made and declaratory statements required to be recorded in connection with his office, 
 in the Record 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 docu-, 
 ments 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. 
 
 Date of entry. 117. Every entry made in any of the above books shall shew the date on 
 which such entry was made. 
 
 Ditto. 
 
 Record of 
 documents . 
 
 Book to be 
 open for in- 
 spection . 
 
 Office copy to 
 be evidence . 
 
 lis. All books of record and documents filed shall, during office hours, be 
 open to public inspection free of charge. 
 
 119. Every copy pf, 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. 
 
 n f f r Id ^2^- Upon receipt from the holder of a certificate of improvements of an ap- 
 
 rommlssioner Plication for a Crown grant in the proper form, and all moneys payable in 
 on receiving respect of the claim for which a Crown grant Is applied, the Gold Commissioner 
 application f(ir shall send such moneys, together with the under-mentioned papers, to the Chief 
 Crown grant. Commissioner of Lands and Works: — 
 
 (1) The certificate of improvements; 
 
 (2) Affidavit of the holder of the mineral claim, or his agent- 
 
 -Form G ; 
 
^■J APPENDIX A.— MINING STATUTES. 725 
 
 (3) A copy of the plat of the mineral claim ; Mineral Act 
 
 (4) The copy of the surveyor's original field-notes ; lS9t>' 
 
 (5) Mining Recordeif's certificate — Form I. 
 
 121. Upon receipt from the lessee of a mill site of all the moneys and docu- t^ .• 
 
 'GoTdCol'^r^ner" "" '"' *' *''"'°^ ^'''"^'' ^'"^^ ^^""^ '""^ '^'^^ '" the ^^^^ -'o 
 
 mil] sites. 
 
 122. Before issuing any free miner's certificate, or substituted certificate, Recorder to 
 or certificate of work, or making any entry in any book of record, or filing an^ colkct fees 
 document, or making any copy or extract therefrom, the Mining Recorder shall 
 
 itollect the fees payable in respect thereof. 
 
 mining Divisions. 
 
 123. It shall be lawful for the Lieutenant-Governor in Council to divide and Mining 
 sub-divide any district into mining divisions, and to establish in each mining divisions 
 division a Mining Recorder's ofiice. 
 
 124. Upon the establishment of a mining division, and the opening of a ^.„ 
 Minmg^Recorder's office therein, under the authority of the last preceding ggt^^bUshment 
 
 of Recorder's 
 (a) Such office, and none other, shall be the proper office for recording all ,w*distrSr" 
 claims, records, certificates, documents, or other instruments affecting 
 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, 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 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; 
 
 (6) Upon the district or division of any Mining Recorder being divided or 
 sub-divided 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. 107, 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 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 
 or Judicature in this Province. 
 
 125. When there shall be no Mining Recorder for a district or division, the Gold Corn- 
 duties of the Mining Recorder shall devolve upon the Gold Commissioner, and missioner has 
 it shall at all times be lawful for the Gold Commissioner to perform the duties ^''. P.owers of 
 of the Mining Recorder, and the Gold Commissioner shall have all the powers of ^'^'""'S Ke- 
 
 a Mining Recorder. 
 
 126. The Mining Recorder's office shall be open upon such days and hours q«. . 
 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. 
 
726 ■ 
 
 MARTIN'S MINING CASES. 
 
 [YOL. 
 
 Mineral Act, 
 1896. 
 
 Commissioner 
 may grant 
 licences for 
 tunnels. 
 
 Paet V. 
 
 Gold Commissioker's Ministerial Powers. 
 
 Tunnels and Drams. 
 
 127. It shall be lawful for, but not incumbent upon, the Gold Commissioner 
 to grant a licence to any free miner, being the lawful holder of a mineral claim 
 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. 
 
 Water. 
 
 Gi^ant 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 ca^es where he shall think fit to extend the time for the recording of the 
 grant of such water right. 
 
 Renewal of ^^- *-*'* **^® exciration of the grant to any such water right, it shall be 
 
 grant (if 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 
 
 continues to exist. 
 
 Porfeituve of 130. Upon proof that any grantee has not complied with all or any of the 
 
 grant. conditions upon which grants of water rights are held, the Gold Commissioner 
 
 may declare the grant to be forfeited. 
 
 Record of 
 forfeiture. 
 
 Change of 
 place of 
 diversion . 
 
 131. When such grant shall have been declared forfeited, the Gold Commis- 
 sioner shall cause such forfeiture to be recorded by the Mining Recorder in the 
 Record Book. 
 
 132. The Gold Commissioner may permit the grantee of any water right to 
 change the place of diversion, on being satisfied that others are not injured by 
 such change. 
 
 Grant of 133. The Gold Commissioner may, in all proper cases, grant an authority in 
 
 authority to writing to any person desiring to bridge any stream, claim, or other place, for 
 •"^^.^ t''"''^^ *°y purpose, or to mine under or through any ditch or flume, or to carry water 
 orditoh, etc. 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, or 
 otherwise interfere with any ditch, water privilege, or other mining rights what- 
 soever, for such period as the said Commissioner shall think fit. 
 
 Owner of ditch 134. The Gold Commissioner may order the owner of any ditch, flume, or 
 liable for pipe to make good, in such manner as such Gold Commissioner shall think fit, 
 
 damage. all damages which may be occasioned by or through any parts of the works of 
 
 such ditch, flume, or pipe breaking or being imperfect. 
 
 Worlcing of Mines or Claims, and other Powers. 
 
 135. The Gold Commissioner may, in his discretion, permit a free miner to 
 Re-location of re-locate a mineral claim, or any part Jthereof , which may have been abandoned 
 claim . jjy 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 ^^^- '^^*® ^"^^ Commissioner may mark out a space of ground for deposits 
 
 space for of leavings and deads from any tunnel, claim, or mining ground, upon such 
 
 deposits. terms as he may think just. 
 
I-] APPENDIX A.— MINING STATUTES. 
 
 727 
 
 137. The Gold Commissioner shall have the power to summarily order any Mineral Act 
 mining works to be so carried on as not to interfere with or endanger the safety 1896, ' 
 
 of the public, any public work or highway, or any mining property, mineral 
 
 claims, mining claims, bed-rock drains, or bed-rock flumes ; and any abandoned Commissioner 
 works may by his order be either filled up or guarded to his satisfaction, at the '° Provide for 
 cost of the parties who may have constructed the same, or, in their absence, Public safety . 
 upon such terms as he shall think fit. 
 
 138.^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, ^'™"f 
 and with or without any terms or conditions, to allow to the owners of mineral w*^o?a*"' 
 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 i;eal estate shall be entitled to the same rights and privileges as 
 owners of claims not so held. 
 
 139. 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 afiidavit 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 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 ^i^- 
 
 to that effect. 
 
 141. Upon receipt from the Mining Recorder of the moneys and documents Recorder to 
 mentioned or referred to in sec. 121, the Gold Commissioner shall satisfy himself forward docu- 
 that the same are in order, and then forward the same to the Chief Oommis- ments, etc., to 
 sioner of Lands and Works. C. 0. of Lands 
 
 and Works. 
 
 142. The Gold Commissioner shall have power to do all things necessary or Power to carry 
 expedient for the carrying out of the provisions of this Act. out Act. 
 
 Administration. 
 
 143. The Gold Commissioner, or any person authorized by him shall take Commissioner 
 charge of all the property, within the district of such Commissioner, of any to administer 
 deceased free miner until the issue of letters of administration or probate of the estate of in- 
 will, if any, and may cause any mineral claims held or owned to be duly repre- testate 
 sented or dispense therewith at his option : Provided, however, that where any deceased miner 
 free miner shall die intestate, and the value of the personal estate of such 
 
 deceased free miner is less than three hundred dollars, it shall not be necessary 
 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 per- 
 sonal 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. 
 
 Pakt VI. 
 
 County Couets. 
 
 Jurisdiction, Procedure, Forma, 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. 
 
728 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Mineral Act, 
 • 1896. 
 
 Transfer to 
 SupremeCourt 
 
 (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 con- 
 sumption 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 prop- 
 erty, or from lands entered, or claimed to have been entered, in searching 
 for, mining, or working minex'als (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 ob- 
 tained 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 
 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 tills Act; 
 
 (9) In all suits relative to water rights claimed under this Act, or any other 
 Act relating to mining (other than coal mining) [ 
 
 (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 action, 
 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 Su- 
 preme Court, or a Judge thereof, shall have discretion to order that any 
 case so transferred shall be heard, tried, or disposed of without pleadings. 
 
^•3 APPENDIX A.—MINING STATUTES. 72^ 
 
 fh.^"ti^^l ^."".'^^'="<'° Si ven to County Courts by this Act shall be known as Mineral Act 
 
 and an othi dl ? °' P"°*"^ °" ^" summonses, writs and other process, — 
 
 ^nrlrn.Hrl f ^rT*°*! m every action or cause brought under the mining "Mining 
 jurisdiction of the County Court. jurisdiction." 
 
 .^ 14^- County Courts and County Court Judges, Registrars Sheriffs and v. 
 i?:n°«^t-nn' ''"." 'r ^r^'"^ ^°«^^' P°-«-- Pnvilegfs Ld auttVitresSrtyC<n,rt. 
 
 of the Countv rn.v."*'' ^^^ °*'" ^'^'''''"^^ "^""^^^ ''"''^'^ *« jurisdiction and olce' 
 of the County Court, as they now have, or fit any time hereafter may have, 
 
 in actions and suits and other proceedings brought under the ordinary jurisdic- 
 tion 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 
 Ji^dges, Kegistrars, Sheriffs, and other officers, and regulating the practice and 
 procedure in County Courts, and all rules and orders for the time being applic- 
 «ible to the 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. 
 
 147. When disputes arise concerning mining property, portions whereof are Adioiniim dis- 
 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 
 Oourt 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 make summonses or other proceedings returnable forthwith, or at any other 
 
 time. 
 
 149. In all mining actions or suits the Court may decide the question at Court may de- 
 issue upon the ground in dispute, and such decision shall be entered as in oide 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 fact 
 of fact shall be tried by a jury, and the Judge may, before delivering judgment may be found 
 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 
 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. 
 
 152. Every County Court having jurisdiction in mining disputes shall, with County Court 
 reference to real estate held under the " Gold Mining Amendment Act, 1873," has jurisdic- 
 or under this Act, and notwithstanding any law to the contrary, have the tion over land 
 same powers and authorities to decide all matters or disputes arising between in certain cases 
 •the owners thereof, or between the owners thereof and any third person, or 
 
 between mining joint stock companies^ or between shareholders therein, or be- 
 tween 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 pro- 
 ceedings 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. 
 
 153. Any County Court Judge having jurisdiction in mining causes, may di- Writs of capias 
 rect the issuing of writs of capias ad respondendum, ne exeat regno, and capias ^ responden- 
 ad satisfaciendum, in all cases in which by law he has jurisdiction over the ' ne exeat 
 subject-matter of the suit, but under and subject to such conditions as a Judge g^^^sTd sat- 
 of the Supreme Court might usually require in applications of a similar nature, isfaciendum. 
 
730 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Mineral Act, 
 1896. 
 
 Penalty for 
 oontravt-ntion 
 •of Act. ' 
 
 Pabt VII. 
 
 Penal and Miscellaneous. 
 
 154. Any person wilfully acting in contravention of this Act, or refusing to 
 obey any lawful order of the Gold Commissioner or of any Judge presiding in 
 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 raining 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. 
 
 ne ""iT"^!^ "^ "'■^^" ■^'' ^°^® ^^^ penalties imposed and payable under this Act may be re- 
 
 p na ie». covered by distress and sale of any mining or other personal property of the 
 
 offender ; and in default of suflBcient distress by imprisonment, with or with- 
 out hard labour, not exceeding three months. 
 
 Fines, etc., to 
 be paid into 
 Consolidated 
 Revenue. 
 
 Saving rights 
 existing before 
 the passing of 
 this Act. 
 
 156. All fines, fees and penalties collected under this Act shall be paid into 
 the consolidated revenue fund of British Columbia. 
 
 157. 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 
 Btated, 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 Mining Recorder of the district, 
 shall be entitled to a printed copy of this Act on payment of the sum of 
 twenty-five cents. 
 
 Before whom 159 Affidavits and declarations made under the provisions of this Act shall 
 
 b made^ "^ ^^ '^^^^ before some Judge or Registrar of a Court of Record, or before some 
 e ma e. Gold Commissioner, Mining Recorder, Stipendiary Magistrate, Justice of the 
 
 Peace, Notary Public, or Commissioner for taking affidavits. 
 
 Minister of 
 Mines & Pro- 
 vincial Inspec- 
 tor or Mineral- 
 ogist may ex- 
 amine any 
 mineral claim. 
 
 Lieut- Gover- 
 nor may make 
 rules, etc. 
 
 To relieve 
 against for- 
 feitures under 
 -s. y. 
 
 Publication. 
 
 160. The Minister of Mines and the Provincial Inspector or Mineralogist 
 shall have the right to enter into or upon and examine any mineral claim or 
 mine within the meaning of this Act. 
 
 Rules and Regulations. 
 
 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 regu- 
 lations under this Act ; and further provide that any statement or returns re- 
 quired 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 days of the session next 
 after the date thereof. 
 
I-] APPENDIX A.— MINING STATUTES. 
 
 731 
 
 Taxation of Mines and Moneys Invested Therein. Mineral Act, 
 
 1896. 
 
 162. Notwithstanding anything contained in ■ this Act, mines and moneys ,., ": — 
 invested therein shall not be exempt from taxation, but shall bear such rate itn*'' °"h 
 as may be imposed by any law in the Province. moneys in vest- 
 
 ed therein. 
 
 Ib6. Ihere 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 ' Gold Mining Ordinance ied on every 
 1867,' and the ' Gold Mining Amendment Act, 1872,' " an annual tax of twenty- '^'^i™ ^^^^ ""■ 
 ■five cents for every acre and fractional part of an acre of land conveyed by the '^*'' Crown 
 grant, payable on the 30th day of June 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 " Provin- 
 cial 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,claim 
 is charged to be offered for sale by public auction, of which sixty days' notice may be sold, 
 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 
 may sell siich claim, receive the purchase money, and execute a conveyance 
 thereof to the purchaser. The purchase money shall be applied in payment of How purchase 
 the expenses of advertising and the payment of the tax, and any surplus shall "'^"^y appbed 
 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 shall not be sufficient to pay the tax 
 and expenses of advertising, the land shall absolutely revert to the Province, 
 and the Crown gi ant thereof shall be deemed void. The Assessor or Collector Owner may be 
 may, before offering the claim for sale, sue the owner or occupier for the tax, sued for 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 goods and chattels of the person against 
 whom the tax may be recovered : Provided, that if the owner of any such Proviso for re- 
 mineral or placer claim shall establish, to the satisfaction of the Gold Commis- mission of tax 
 sioner. Mining Recorder or Assessor and Collector of the district in which the ™ Sf^OO having 
 claim lies, that the sum of two hundred dollars has been expended thereon in ™®" expended 
 labour or improvements in any one year, then the tax shall not be levied in °" " *™'' 
 respect of such claim for such year. 
 
 164. Where a claim 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 proceed- 
 ings 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- 
 od owner of a mineral claim or his agent by him duly authorized, the evidence denceofloca- 
 of the location or record on the ground, or the situation of a mineral claim, tbn, etc.. 
 has been destroyed, lost, or effaced, or is difficult of ascertainment, nevertheless, etfacedthrough 
 effect shall be given to same as far as possible and the Court shall have power '*""^ ™ others 
 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 hona 
 fide acquirer of the claim. 
 
 Part VIII. 
 Repealing Clause. 
 
 166. Tlie Acts and parts of Acts mentioned in this section shall stand re- Repealing 
 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, 
 1S96. 
 
 1891, c. 25 
 1,892, c. 32 
 
 1893, c. 29 
 
 1894, c. 32 
 
 1895, c. 39. 
 
 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," 
 the "Mineral Act (1891) Amendment Act, 1893," the "Mineral Act Amend- 
 ment Act, 1894," and the " Mineral Act Amendment Act, 1895," are hereby 
 repealed. 
 
 Pending litiga- 167. Nothing herein contained or enacted shall affect any litigation pending 
 
 tion not af- at the time of the passage of this Act. 
 
 ffected. 
 
 Jurisdiction of 168. The jurisdiction conferred upon a Gold Commissioner by section 6 of the 
 Gold Conimis- " Mineral Act " shall not be exercised until after the end of the next session of 
 "Mineral " *^ Legislative Assembly. 
 Act," s. 6. 
 
 Schedules. 
 
 SCHEDULES. 
 
 Form A. 
 
 FOKM A. 
 LocaHon Notice. 
 
 Mineral 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 the location line is 
 
 and , feet of this claim lie to the right and feet to the left of 
 
 the location line. 
 
 Dated this day of 
 
 Take care to number the posts 1, 2, 
 making the initial post 1. 
 
 189 
 
 JTorm B. 
 
 FOKM B. 
 
 Record of Mineral Claim. 
 
 Mineral Claim. 
 
 No. of Certificate. 
 
 Located by — 
 
 ' Set out the name and receipt form, 
 of payment of the record fee of 
 each locator, and the No. of 
 each locator's free miner's certi- I 
 ficate opposite such name. j 
 
 The claim is situate 
 
 The direction of the location line is 
 
 The length of the claim is 
 
 The claim was located on the 
 
 Recorded this day of 
 
 feet, 
 day of 
 
 189 
 
 189 
 
 Mining Recorder. 
 
 [If the stakes arc not on the location line, comply with section 18.'] 
 
!•] APPENDIX A.— MINING STATUTES. 
 
 733 
 
 ^°^^ C. Mineral Act, 
 
 1896, 
 Keoord of Partnership Mineral Claim. 
 
 Mineral Claim. 
 Located in the partnership name of 
 
 The members of the partnership, and the Nos. of their respective free miner's 
 certificates are — 
 
 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 . 
 
 • Mining Recorder. 
 
 \_lf the sml{(.n arc not on the location line, comply with sec. 18.] 
 
 Form C. 
 
 Form D. 
 
 Application for Certificate of Worlc. 
 
 Affidavit. 
 
 I, , of , in the District of 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 , to the value 
 
 of at least one hundred dollars, since the day of , 189 . 
 The following is a detailed statement of such work: — 
 
 [Set out full particulars of the work done in the tioelve months in which 
 such worh is required to ie done hy sec. 2^.] 
 
 Sworn, &c. 
 
 [This affidavit may l)e made T)y an agent, and can he altered io suit circum- 
 stances.] 
 
 Form D. 
 
 Fo«M E. j,„^„E 
 
 Certificate of Work. 
 
 (Name of claim) Mineral Claim. 
 
 This is to certify that an aflSdavit setting out a detailed statement of the 
 work done on the above claim since the day of 189 , made 
 
 by , has this day been filed in my office, and in pursuance of the 
 
 provisions of the Act in that behalf, I do now issue this certificate of work in 
 iiespect of the above claim to 
 
 Dated 
 
 Gold Commissioner or Mining Recorder. 
 
734 MAETIN'S MINING CASES. [vol. 
 
 Mineral Act, FOBM F. 
 
 189B. 
 
 ForniF. 
 
 Certificate of Improvements. 
 
 NOTICE. 
 
 Mineral Claim. 
 
 Situate in the Mining Division of 
 
 District. 
 
 Where located. 
 
 Talse 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, undei- sec. 37, must be commenced before 
 the issuance of such certificate of improvements. 
 
 Dated this day of , 189 . 
 
 Form ©. FOBM G. 
 
 Application for Certificate of Improvements. 
 Applicant's Affidavit. 
 
 I, , of , in the District of 
 
 make oath and say : — 
 
 1. I, , the recorded holder, and am in undisputed possession of 
 the Mineral Claim, situated at , in the District 
 (or Division) 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*" particu- 
 lars 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 ofiice 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. 
 
 Y. 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 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. 
 
 Sworn and subscribed to > ' 
 
 at , this day 
 
 of , 189 , before me 
 
 ■•Particulars must be exclusive of all houses and other like improvements. 
 This affidavit may be made by an agent, duly authorized, in writing, and can 
 be altered to suit circumstances. 
 
I-l APPENDIX A.— MINING STATUTES. 735 
 
 ^OJ'^H- Mineral Act,. 
 
 Certificate of Improvements. _' 
 
 Mineral Claim. ^°™ ^■ 
 
 This is to certify that , of , in the District of 
 
 , free miner's certificate No. , has proved to my satis- 
 
 factioii 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 pursuance of the provisions of the said Act I do now issue this certificate 
 of improvements, in respect of the above claim, to 
 
 Dated 
 
 Qold Commissioner. 
 
 This certificate will become void unless a Crown grant is applied for within 
 three months from its date. 
 
 [Form may he altered to suit circumstances.^ 
 
 Form I. Form I. 
 
 Mining Recorder's Certificate. 
 
 Mining Division. 
 District. 
 Mineral Claim. 
 Date located, Date recorded. 
 
 To ' 
 
 Sib, — I herewith enclose the following documents relating to your applica- 
 tion 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 
 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 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 . 
 
 , Mining Recorder. 
 
 F0»M J- Form J., 
 
 Mill Site. 
 
 Notice. 
 
 Take notice that I, , of in the District of 
 
 , free miner's certificate No . intend, sixty days 
 
 from the date hereof, to apply for acres of land for a mill site, 
 
 situate at , in the district of , as a mill site. 
 
 Dated 
 
736 
 
 MARTIN'S MINING CASES. 
 
 [vol.. 
 
 Mineral Act, 
 1896. 
 
 FormK. 
 
 Poem K. 
 Mill Site. 
 Affidavit of Applicant Peiok 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 site, by placing 
 a legal post at each corner. 
 
 2. I have posted a notice on each such post, and on the Mining Recorder's 
 oflSce 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. 
 
 Form L. 
 
 Form M . 
 
 FOKM L. 
 
 Lease of Mill Site. 
 
 This indenture, made the day of , 189 , Ijetween 
 
 , 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, his executors, administrators, and assigns, all that 
 
 IDescribe the mill site.} 
 for the term of one year from the date hereof, subject to the provisions and 
 conditions of the " Mineral Act " relating to mill sites. 
 
 In witness whereof, the said parties have hereunto set their hands and seals. 
 
 Signed, sealed, and delivered 
 
 Form M. 
 
 MUl Site. 
 
 I, 
 
 Affidavit of Applicant Peioe to Crown Grant. 
 , of , in the District of 
 
 free miner, make oath and say : — 
 
 1. I am the lawful holder of the mill site mentioned in indenture of lease 
 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 first hundred dollars. 
 
 Sworn, &c. 
 
 Form N. 
 
 Form N. 
 
 Certificate op Improvements. 
 
 This is to certify that , ' has put or constructed works or machin- 
 
 ery, for mining or milling purposes, to the value of at least five hundred dollars, 
 on the mill site described in and demised by indenture dated the 
 day of , 189 , and made between 
 
 during the existence of such lease. 
 
 Gold Commissioner. 
 
I.] APPENDIX A.— MINING STATUTES. 737 
 
 Poem O. Mineral Act, 
 
 1896. 
 Tunnel or Drain Lieenoe, 
 
 To all whom it may concern : — 
 
 Take notice that , 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 from me 
 to run 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 Commissioner. 
 
 FOBM P. Form P. 
 
 Mill Site. 
 Application fob Csown Grant. 
 To the Mining Recorder ai 
 
 SiE, — ^I enclose herewith the sum of dollars and the under- 
 
 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 Crown grant of the mill site demised by the above- 
 
 mentioned lease. 
 
 Yours respectfully, 
 
 Form Q. FonnQ. 
 
 Water Notice. 
 
 Take notice that we [Set ont name of each appUcanif and number of each 
 applicant's free miner's certificate] shall, sixty days from the date of this 
 notice, apply to the Gold Commissioner for a grant of a water right over water 
 tin [Set out the name, or, if unnamed, a sufficient description of the stream, 
 lake, or other source from which water is to ie 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 
 
 FoBM R. Porm R. 
 
 Water. 
 Grant of Water Right. 
 
 Granted this day of , 189 , to [Set ouif every gran- 
 
 tee's name, and the numler of every grantee's certificate] inches 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 ore vjhich water is 
 to he used], and is to be diverted from its source at a point [point of diver- 
 sion]. 
 
 Dated 
 
 M.M.O. 47 
 
738 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Mineral Act, 
 1896. 
 
 Torm S. 
 
 FOKM S. 
 For a Full Claim. 
 Mining Division, 
 
 District. 
 
 I, A.B., of in the Mining Division 
 
 of 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 , 1 located the 
 Mineral Claim, situated [here 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 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 SBC. 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 laud falling within the^ 
 curtilage of ajiy dwelling-house, or any orchard, or any land under cultivation,, 
 or any Indian reservation. 
 
 NOTB. — This declaration may be made by an agent. 
 
 Form T. 
 
 FOEM T. 
 For Fractional Claim. 
 Mining Division, 
 
 District.. 
 
 I, A.B., of in the Mining Division 
 
 of 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 
 
 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 qn 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 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. 
 
I-J Al'FKNDIX A.— MINING STATUTES. 739 
 
 Spalo of Pees to be Charged. Mineral Act 
 
 1896. 
 
 For every free miner's certificate (for eacli year) $5 00 
 
 Every siibstitu,ted certificate » 1 00 Scale of fees. 
 
 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 
 
 .jO ^•ICT. Chap. 35. Placer Amend- 
 ment Act, 1896 
 An Act to amend the " Placer Mining Act, 1891," and amending Acts. 
 
 H 
 
 [,17th April, 1896.] 
 
 ER MA.TESTY, 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. Short title . 
 1896." 
 
 2. Section 2 of the " Placer Mining Act, 1891," is hereby repealed, and 
 the following enacted in lieu thereof : — 
 
 " Interpretation. 
 
 "2. In the construction of this Act the following expressions shall have the interpretation 
 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 ..pj^"^^ 
 for gold or other precious minerals or stones; mine," 
 
 "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 "Placer 
 every placer claim, ditch, or water right used for placer mining pur- claim, 
 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; 
 
 " Creek diggings " shall mean any mine in the bed of any river,' stream, or " Creek dig- 
 ravine, excepting bar diggings; gings." 
 
740 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Placer Amend- 
 ment Act, 1896 
 
 "Bar .iig- 
 gings." 
 "Dry dig- 
 gings." 
 " Bench dig- 
 gings." 
 " Hill dig- 
 gings." 
 "Precious 
 stone dig- 
 giJigs." 
 
 "Streams and 
 ravines." 
 " Ditch." 
 
 "Ditch head." 
 "Free miner." 
 
 ' Legal pott." 
 
 " Ptecord," 
 "register," 
 "registration." 
 " Record." 
 
 ■" Full in- 
 terest." 
 
 " Close 
 
 "Cause." 
 " Judgment." 
 "Real estate." 
 
 ^' Joint Stock 
 ■Co." 
 
 Repeals s. 12. 
 Kight to cut 
 timber. 
 Re-enacts s. 26 
 
 " Bar diggings " shall mean any mine over whieh a river extends when in 
 its flooded state; 
 
 " Dry diggings " shall mean any mine over which a river never extends ; 
 
 " Bench diggings " shall mean any mine on a bench, and shall, for the pur- 
 pose of defining the size of a claim in bench diggings, be excepted from 
 " dry diggings ;" 
 
 " Hill diggings " shall mean any mine on the surface of a hill, and fronting 
 on any natural stream or ravine; • 
 
 " Precious stone diggings " shall mean deposit of precious stones, whether 
 in veins, beds, or gravel deposits ; 
 
 " Streams and ravines " shall include all natural watercourses whether 
 usually containing water or not, and all rivers, creeks, and gulches ; 
 
 " 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 " 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 
 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 oflicial book kept for that purpose; 
 
 " Record," when used without qualifying words shewing that a different mat- 
 ter is referred to, shall be taken to refer to the record of the location 
 of a placer claim ; 
 
 " Full interest " shall mean any placer claim of the full size, or one of sev- 
 eral 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 in- 
 clude all companies falling under the definition of a foteign 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 "20. If through ignorance any free miner shall record a placer 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 dis- 
 .covery 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." 
 
 in wrong 
 district. 
 
'•J APPENDIX A.— MINING STATUTES. r^4j 
 
 5. Section 112 of the " Placer Mining Act, 1891," is hereby repealed, and PiaeerAmend 
 the following anserted in lieu thereof:- ™en?itri896 
 
 " Leases. Re-enacts s. 
 
 "112. 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 un- Leases of un- 
 reserved Crown land for placer mining purposes or for precious stone diggings ""^P'efl , , 
 for any term not exceeding twenty years, on such terms and conditions as he nl=^^"^„: °^ 
 shall think fit; and any free miner desiring to obtain a, lease of any placer and^OTedo"'^ 
 mining ground shall mark out such ground by placing a legal post at each stone diggings 
 cornier, 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 Min- 
 ing 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 groimd ; 
 
 " (4) The term for which such lease is to be applied for." 
 
 6. Section 113 of the " Placer Mining Act, 1891," is hereby repealed, and r„ „„,„*>. 
 the following inserted in lieu thereof :— ite-enaetb ». 
 
 " 113. The free miner, after staking the ground and posting the notices as Application 
 aforesaid, shall, within thirty days, make application in writing, addressed to for lease, 
 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 terni of the lease desired; 
 
 "(6) The rent proposed to be paid." 
 
 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, 1893," 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 Pl*° i" dupli- 
 Mining Recorder, for the use of the Gold Commissioner, a plan of the ground, "^^^ ?^ ground 
 in triplicate. And every person making application for a lease of mining ground "g^sed to'be^ 
 for any purpose under the provisions of this Act shall deiMJsit the sum of twenty jijed. 
 dollars with the Gold Commissioner at the time the application is made. If »2o denosit 
 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 Commis- 
 sioner 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 applica- 
 tion, 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, 1891," as amended by sec. 4 of Repeals s. 115, 
 the " Placer Mining Amendment Act, 1894," is hereby repealed. as amended, 
 
 1894, c. 33, S.4. 
 
 9. The section substituted by sec. 5 of the "Placer Mining Act (1891) Term of lease. 
 Amendment Act, 1895," for see. 116 of the "Placer Mining Act, 1891," is Re-enacts s . 
 hereby repealed, and the following substituted in lieu of said sec. 116 of the Ho- 
 
 " Placer Mining Act, 1891." 
 
742 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 PlacerAmend- 
 ment Act, 1896 
 
 Areas. 
 
 Creek diggings 
 
 Othnr placer 
 
 ground. 
 
 Precious stone 
 
 diggings. 
 
 Proviso. 
 
 " 116. Applications shall not be for greater than the following areas or dis- 
 tances : — 
 
 " In creek diggings on abandoned pr unworked creeks, half a mile in length : 
 
 " Any other placer mining ground, eighty acres ; but in no case shall any 
 
 lease extend along any creek or river more than five hundred yards ; 
 
 creek diggings excepted : 
 " 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 i-enewal thereof." 
 
 Re-enacts 10. Section 118 of the " Placer Mining Act, 1891," is hereby repealed, aud the 
 
 *• 118- following substituted in lieu thereof : — 
 
 Gold Com- " 118- The Gold Commissioner may, with the sanction of the Lieutenant- 
 
 missioner's Governor in Council, grant or refuse any application for a lease of placer min- 
 
 powers of ing ground, or modify the terms and conditions of such application as he shall 
 
 granting lease, think fit." 
 
 11. Section 119 of the "Placer Mining Act, 1S91," is hereby repealed, and 
 the following suDstituted in lieu thereof : — 
 
 " 119. Every application for a lease of placer mining ground, together with 
 the plan of the ground and the Gold Commissioner's report thereon, shall be 
 forwarded by such Gold Commissioner to the Lieubenant-Governor in Council, 
 and no lease shall be granted on any such application without his sanction." 
 
 12. The section substituted by sec. 9 of the "Placer Mining Act (1891) 
 Amendment Act, 1895," for sec. 120 of the " Placer Mining Act, 1891," is 
 hereby repealed and the following substituted in lieu of said sec. 120 of the 
 "Placer Mining Act, 1891":— 
 
 " 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, 
 to be filed in the office of the Mining pecorder in the mining division of the 
 district in which the mining ground leased is situated." 
 
 13. Section 7 of the "Placer Mining Act (1891) Amendment Act, ISOn." 
 and the section thereby substituted for sec. 122 of the " Placer Mining Act, 
 1891," are hereby repealed and the following is substituted in lieu of said sec. 
 122 of the " Placer Mining Act, 1891 :" 
 
 " 122. On the non-performance or non-observance of any covenant or con- 
 dition in any lease, such lease shall be declared forfeited by the Gold Commis- 
 sioner, sub.iect 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. Xo lease, whether made 
 before or after the passage of this Act, shall hereafter be declared forfeited, ex- 
 cept in accordance with this section." 
 
 14. The section substituted toy sec. 8 of the " Placer Mining Amendment 
 Act, 1894," for sec. 124 of the " Placer Mining Act. 1891," is hereby repealed 
 and the following substituted in lieu of sec. 124 of the " Placer Mining Act, 
 1891 " :— 
 
 Grant of water " 124. When any placer mining ground is held under lease, the lessee of such 
 to work min- mining ground shall be entitled to a free grant from the Gold Commissioner of 
 ing ground. g^ch quantity of unappropriated water, from any stream or lake, together with 
 
 Re-enacts 
 s. 119. 
 
 Applications 
 with plan 
 annexed. 
 
 Re-enacts 
 s. 120. 
 
 Leases to be 
 in writing, etc 
 
 Re-enacts 
 s. 122. 
 
 Forfeiture of 
 lease. 
 
 Re-enacts 
 s. 124. 
 
!•] . APPENDIX A.— MINING STATUTES. 
 
 743 
 
 the right and privilege to construct, erect, and maintain dams, gates, and placerAmend- 
 flumes for the puj-pose of diverting, storing, and controlling such water as may, ment Act, 1896 
 
 in the opinion of the Gold Commissioner, be necessary to work the said mining 
 
 ground efBeiently, 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 ground so held, which grant shall be for the same term for which the 
 mining ground is leased. Whenever such mining ground shall have been effi- 
 ciently 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 Extension, 
 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 min- 
 ing ground as still remains unworked, and the Gold Commissioner may, with the 
 sanction of the Lieutenant-Governor in Council, grant such extension by memor- 
 andum endorsed on the lease : Provided, that whenever the mining ground so Forfeiture and 
 held under lease has been forfeited, abandoned, or worked out, or the occa- abandonment, 
 sion for the use of the water upon such mining ground 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 If ditch costs 
 than five thousand dollars, such ditch or flume shall remain the property of the $5,000. 
 owner thereof." 
 
 15. The "Placer Mining Act, 189],'" is hereby amended by adding thereto ^„,gnjg Iggj 
 the following new sections : — c. 26 ; adds 
 
 " 124a. Before applying for any such water grant, the holder of a lease ^ ■*■ *" "• 
 
 -hall Procedure to 
 
 *°^" obtain such 
 
 "(I) Post a notice in writing on a legal post upon some conspicuous part of grant, 
 the mining ground on which such water is intended to be used, and a 
 copy of such notice on the oflice of the Mining Recorder for at least 
 twenty days, which notice shall contain the following particulars : — 
 "(o) The name of each applicant; 
 
 "(6) The number of each applicant's free miner's certificate; 
 "(c) The name, or if unnamed, a sufficient description of the stream, 
 • lake, or other source from which such water is intended to be 
 
 taken; 
 "(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 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, of 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 
 iconsolidated. 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 pro- 
 vided 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 
 
744 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 PlaoerAmend the consolidated leases, and receive from such Recorder and record a receipt for 
 ment Act, 1896 such payment ; and payment and 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 lease in respect of which payment is recorded." 
 
 Re-enacts 
 s. 125. 
 
 16. The section inserted in lieu of sec. 125 of the " Placer Mining Act, 
 1891," by sec. 9 of the " Placer Mining Amendment Act, 1894," is hereby re- 
 pealed and the following substituted in lien of said sec. 125 of the " Placer 
 Mining Act, 1891 :" — 
 
 " Record of " 125. Every grant, and every extension of a grant, of a water right for 
 
 Water Grants" mining grounds leased shall be recorded in the ' Record of Water Grants,' but 
 it shall not be necessary to re-record such grant or extension annually. 
 
 Miu. Amend- 
 ment Act, 1897 
 
 H 
 
 60 Vict. Chap. 28. 
 
 An Act to amend the " Mineral Act, 1S96." 
 
 iSth May, 1897.'] 
 
 ER MAJESTY, by and with the advice and consent of the Legislative 
 Assembly of the Province of British Columbia enacts as follows : — 
 
 Short title. 
 Re-enacts s. 2 
 
 Interpretation 
 "Mine." 
 
 " Mineral." 
 
 " Building 
 stone. " 
 
 " Rock in 
 place." 
 
 " Valuable 
 deposits of 
 mineral." 
 
 " Vein or 
 lode." 
 
 ' ' Mineral 
 claim." 
 
 " Mining 
 property. " 
 
 1. This Act may be cited as the " Mineral Act Amendment Act, 1897." 
 
 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 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, jfatinum, 
 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 them- 
 selves or with any other elements), asbestos, emery, mica, and mineral 
 pigments ; 
 
 Limestone, marble, clay, or any building stone when mined for building pur- 
 poses shall not be considered as mineral within the meaning of this Act; 
 
 " Rock in place " shall be deemed to mean and include mineral, not neces- 
 sarily in a vein or lode, that is, when discovered in Jhe same place or posi- 
 tion 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 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 ; 
 
I-] 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 ; 
 
 "Location line" shall be the straight line between posts numbers one and "Location 
 two; line." 
 
 " Mill site " shall mean a plot of ground located, as defined by this Act, for " Mill site." 
 the purpose of erecting thereon any machinery or other works for trans- 
 porting 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 "Free miner." 
 company, named in and lawfully possessed of a valid existing free miner's 
 certificate, and no other ; 
 
 "Record," "register," and "registration," shall have the same meaning, " Record, " 
 and shall mean an entry in some official book kept for that purpose ; " register" and 
 
 "Full interest" shall mean any mineral claim of the full size, or one of "FuU interest" 
 several shares into which a mineral claim shall be equally divided ; 
 
 " Cause " shall include any suit or action; "Cause " 
 
 "Judgment" shall include "order" or "decree;" "Judgment." 
 
 " Real estate" shall mean any mineral land in fee simple under this or any "Real estate.'' 
 Act relating to gold mines, or to minerals other than coal ; 
 
 " Joint stock company " shall mean any company for mining purposes : » joint stock 
 
 (a) Incorporated under the " Companies' Act, .1.897," or any Act repeal- company." 
 
 ed 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 nnder the 
 "Companies' Act, 1897;" or 
 
 (d) Incorporated by any special Act. 
 
 3. Section 12 of the said Act is hereby repealed and the following substituted Re-enacts s. 12 
 in lieu thereof : — 
 
 " 12. Every free miner shall, during the continuance of his certificate, but Where free 
 not longer, have the right to enter, locate, prospect, and mine upon any waste miner may 
 lands of the Crown for all minerals other than coal, and upon all lands the right P'"®' P^sp^^^ti 
 Wjhereon 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 descrip- 
 tion of lands any land occupied by any building, and any land falling within the Occupied lands 
 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 pur- 
 poses 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, 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 Hydraulic 
 shall have been so uncoviered : Provided that in the event of such entry being ,vorks. 
 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 
 
746 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Min. Amend- or Mining Recorder for any loss or damages which may be caused by such entry 
 ment Act, 1897 if requested by the owner or owners of such land, and should he refilse to give 
 such security when so requesfce'd his right to such claim or mine shall cease and 
 determine : Provided that after such entry he shall make full compensation to 
 the occupant or 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 with- 
 out a jury." 
 
 Proviso for 
 compensation 
 
 Re-enacts s, 16 4. Section 10 of the said .\ct is hereby repealed and the following substituted 
 in lieu thereof : — ■ 
 
 Mode of stak- "16. A mineral claim shall be marked by two legal posts, placed as near as 
 
 ing a claim. 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 
 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, tlius: — " Initial post. Direc- 
 tion 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 and No. 2 posts shall be 
 furnished by the locator to the Mining Recorder, in writing, 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 or erect monuments of 
 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. 
 
 " Examples of Various Modes or Laying Out Claims. 
 
 No. 2 Post. 
 
 2. 
 
 No. 2 Post. 
 
 ■No. ? Post 
 
 kv 
 
 X260' 
 
 
 1 
 
 
 *H 
 
 < 
 
 ) OiseoveiJ 
 Post. 
 
 
 260" 
 
 1261)' 
 
 
 No. 
 
 I Post. 
 
 
 •xioo" 
 
 100' 
 
 1 
 
 1 
 
 Disoo»«w Post. 
 
 i 
 
 1100' 
 
 m 
 
 N6.j 
 
 L Post. 
 
 " It shall not be lawful to move No. 1 post, but No. 2 post may be moved by 
 the Provincial Land Surveyor when the distance between Nos. 1 and 2 posts 
 exceeds 1,500 feet in order to place No. 2 post 1,500 feet from No. 1 post on 
 the line of location. When the distance between posts Nos. 1 and 2 Is less than 
 1,500 feet, the Provincial Land Surveyor has no authority to e::tenO the claim 
 beyond No. 2. 
 
T-] APPENDIX A.— MINING STATUTES. 747 
 
 " The ' location line ' shall govern the direction of one side of the claim, Min Amend- 
 ^pou which the survey shall be extended according to this Act. merit Act, 1897 
 
 '■ (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 of the full size shall be recorded without the appli- 
 cation being accompanied by an affidavit or solemn declaration in the 
 Form S., made by the applicant or some person on his behalf cognizant 
 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 applied for is unoccupied by any other person as a 
 mineral claim, and is not occupied by any building, or any land falling 
 within fire 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 loca- 
 tor 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 afiidavit 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 iu i/!;iip on the fractional claim proposed to be recorded; that the 
 sround applied tur 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 certifi- 
 cate 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 laud or land occupied by mineral claims, 
 with the names of the claims. A stetch 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 hona 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." 
 
 5. Section 24 of the said Act is hereby repealed and the following substituted ue-enacts s. 24 
 in lieu thereof: — 
 
 " 24. Any free miner having duly located and recorded a mineral claim shall Duration of 
 be entitled to hold the same for the period of one year from the recording of the record and 
 same and thence from year to year without the necessity of re-recording: Pro- duty of holder, 
 vided' 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 Mming Recorder 
 
74,8 
 
 MARTIN'S MINING CASES. 
 
 [VOL.. 
 
 Min, Amend- 'that such work has been done, by an affidavit of the fi'ee miner or his agent,, 
 ment Act, 1897 getting 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 Com- 
 missioner or Mining Recorder, for the purposes of this section, to be work done 
 Adjoining °° '^^ claim : Provided, further, that any free miner, or company of fiiee miners 
 claims in holding adjoining mineral claims, or any two or more free miners who locate and 
 
 partnership. I'ecord 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 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 vacant and abandoned, any rule of law or equity to the contrary notwith- 
 standing." 
 
 Re-euacts s. 26 6. Section 26 of the said Act is hereby repealed and the following substituted 
 in lieu thereof:— 
 
 Surtaice rights. " 26. Notwithstanding anything to the contrary contained in any Act, every 
 Crown grant hereafter issued of a mineral claim shall convey, and be deemed to 
 convey, only the right to the use and possession of the surface of such claim, in- 
 cluding the use of all the timber thereon, for the purpose of winning and getting 
 from and out of such claim the minerals contained therein, including all opera- 
 tions connected therewith or with the business of mining, and the lawful holder 
 'by record of a claim shall, during the continuance of his record, be entitled to 
 the same surface rights and no others, and all remaining surface rights shall 
 be deemed to be vested in the Crown, and may be granted and disposed of as is 
 provided by the Land Laws for the time being in force, but subject always to 
 the rights of free miners as aforesaid." 
 
 Re-enacts s. 30 7. Section 30 of the said Act is hereby repealed and the following substituted 
 in li^u thereof : — 
 
 Abandonment " ^^- ^ ^""^^ miner may at any time abandon any mineral claim by giving 
 of claim. potice in writing of such intention to abandon to the Mining Recorder, and from 
 
 the date of the record of such notice all interest of such free miner in such claim 
 
 shall cease." 
 
 ■ Re-enaets s. 
 ;i6, s.-ss. (a) 
 and (e) . 
 What work to 
 be done before 
 certificate of 
 improvements 
 granted. 
 
 Publication of 
 notice. 
 
 8. Sub-sections (a) and (e) of section 36 of the said Act are hereby repealed 
 and the following substituted in lieu thereof: — 
 
 " (o) Done or cause to be done work on the claim itself in developing a 
 mine to the value of five hundred dollars, exclusive of all houses, buildings 
 and other like improvements. 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 who receives a transfer of such claim." 
 
 (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 applicatior^, which insertion can 
 be made at any time after the posting of the notice on the claim." 
 
 9. Section 111 of the said Act is hereby repealed and the following substi- 
 Re-enacts f^^^^ j^ jjeu thereof :— 
 
 a. 111. 
 
 " 111. The Mining Recorder shall record all extensions of time, licences. 
 
 What the Re- permits, and other pritvileges granted by the Gold Commissioner or Mining 
 
 corder mngt Recorder, and all forfeitures declared by the Gold Commissioner, and a memor- 
 
 record. andum of every judgment affecting a mineral claim or other mining property, 
 
 in the Record Book." 
 
''■' APPENDIX A.-JIINING STATUTES. >j^q 
 
 tut'<?-in^lieu°"th'e?eoff-' '"' ""'' ''' '''"'''' ■'^P^''^^'^ -^ ''^^ f°"---S -"sti- Min. Amend- 
 
 ment Act, 1897 
 
 Minin^^P^n.'l,.^'"' f '^''"'^1™^"' of a mining division, and tlie opening of a Re-enToTs 
 -Mining Recorders office therein, under the authority of the last preceding sec- s m 
 
 Eflfeotofestab- 
 "(a) Such office, and none other, shall be the proper office for recordine all !jf !>?«"* »* 
 fllZ"^ L"^°'^'' '=^Ft!fi'=^'««. documents, or^tLr instrumensaSg ^^Ser^s office 
 held a; rX.r.""°'°f ^T'''^ 'l'"'^'^ ^^t'^^" ''"'^ °>'"'"g division noHnmSing "' 
 «„!i '^^^l^^^^^' aiid 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 Com- 
 missioner 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 ; 
 
 ■"(6) Upon the district or division of any Mining Recorder being divided or 
 sutodiv-ided 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, certifi- 
 cates, documents, or other instruments shall prima facie be deemed to be 
 true copies of the several records, certificates, documents, or other instru- 
 ments 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 Crown grant of a mineral claim issued under the Purchase bv 
 provisions of this Act shall, in cases where such mineral claim has been located Crown grantee 
 on waste lands of the Crown or on lands not already occupied for other than of mineral 
 mining purposes, be entitled to receive a Crown grant of all the surface rights of claim of sur- 
 such mineral claim on payment to the Government of British Columbia of the face rights on 
 sum of five dollars per acre for such land, and of the fee of five dollar^ for the waste lands. 
 Crown grant. 
 
 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, 
 ■which has indications of running through and under such alluvia! 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 bona fide 
 searched for such lode ^nd has expended, either in cash or labour, or both, not 
 less than one hundred dollars in such search. During the existence of such 
 
750 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Min. Amend- pei'mit the ground covered by the same shall not be open to record by any other 
 ment Act, 1897 miner. The fee for such permit, and each renewal of the same, shall be the 
 same as the fee for a record. 
 
 be evidenced ■^*- ^° ^^'^^ miner shall be entitled to any interest in any mineral claim 
 
 by writing. which has been located and recorded by any other free miner unless such interest 
 
 is specified and set forth in some writing signed by the party so locating such 
 
 claim. 
 
 Onus of proof 
 by adverse 
 claimant. 
 
 15. If any person shall in any suit or matter claim an adverse right of any 
 kind to the mineral claim comprised in any record, or to any part thereof, or 
 shall claim that any record is invalid or has been improperly obtained, or that 
 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 givln for the holder of 
 such prior record in so far as such action, suit or matter relates to anj* of the 
 matters aforesaid. 
 
 Repeal < if Acts 
 deemed to have 
 clauses saving 
 rierht of min- 
 eral claim- 
 hiilders to 
 nbtain Crown 
 grants . 
 
 16. 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 the time 
 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 impair or 
 in any way restrict the rights and privileges conferred on ownei's of mineral 
 claims by the preceding section of this Act. 
 
 Validation of 17. All Crown grants heretofore issued to the holder's of mineral claim 
 
 Crown grants records shall be deemed to have been validly issued so far as relates to the proce- 
 heretofore iun upon the application to obtain same, if in the application therefor the holder 
 
 isHued. thereof observed either the procedure prescribed by the statutes in force at the 
 
 time of the record of such mineral claims, or the procedure proscribed by the 
 statutes in force at the time of the applications for Crown grants thereof. 
 
 Pending 
 litigation . 
 
 18. Nothing herein contained or enacted shall affect any litigation pending at 
 the time of the passage of this Act. 
 
 Repeals 1896, 19. Sections 59 to 79, both inclusive, and 128 to 134, both inclusive, and; 
 
 c. 34, ss. 59 to Forms " Q " and " R " of the Mineral Act of 1896 are hereby repealed. 
 79, 128 to 134, 
 
 and R (water). 20. Section 143 of the "Mineral Act, 1896," is hereby amended by adding 
 Amends s. 143! thereto the following sub-section : — 
 
 Application of 
 "Official Ad- 
 ministrators 
 Act." 
 
 (o) The Gold Commissioner or person authorized by him as aforesaid shall 
 be governed by the provisions of the ' Official Administrators Act,' and 
 amending Acts, and any rules and regulations thereunder." 
 
 21. Sections 5, 6, 13, 19, 20, 22, 27, 28 and 29 of the " Mineral Act," being 
 chapter 82 of the "Consolidated Acts, 1888," are hereby repealed. 
 
 Repeals cer- 
 tain provisions 
 C. A. 1888, 0. 
 
 82. 22. Tlie schedule of fees to the " Mineral Act, 1806," is hereby amended by 
 
 .Schedule of striking out the word " scale " in the caption thereof and inserting the word 
 fees. » 
 
I.] APPENDIX A.— MINING STATUTES. 751 
 
 " Schedule," and by striking out the first line thereof and inserting in lieu there- Min. Amend- 
 of the following : — ment Act, 1897 
 
 " For every free miner's certificate issued to an individual $ 5 00 
 
 " For every free miner's certificate issued to a joint stock company, — 
 
 " (o) Having a nominal capital of $100,000.00 or less 50 00 
 
 " (6) Having a nominal capital exceeding $100,000.00 100 00 
 
 23. Forms " A " and " B " of the Schedules of the said Act are hereby re- Ee-enacts 
 pealed, and the following substituted in lieu thereof :— Forms A and • 
 
 B. 
 
 SCHEDULES. 
 
 FOEM A. 
 Location Notice. 
 
 Mineral 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, l 
 making the initial post 1. !- 
 
 FOEM B. 
 Record of Mineral Claim. 
 
 Mineral Claim. 
 No. of Certificate, 
 Located by — 
 
 Set out the name of claim and namher 
 of receipt form of payment of the 
 record fee of each locator, and the 
 No. of each locator's free miner's 
 certificate opposite such name. 
 
 The claim is situate 
 
 The direction of the location line is 
 
 The length of the claim is feet. 
 
 The claim was locatsd on the day of , 189 
 
 Recorded this day of , 189 
 
 Mining Recorder.. 
 
 [If the stafccD are not on the location line, comply with tec. 18.] 
 
752 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 PlaoerAmeiid- i 60 VicT. Chap. 29. 
 
 ment Act, 1897 
 
 An Act to further amend the " Placer Mining Act, 189J." 
 
 [8th May, i897.] 
 
 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 (1891) Amendment 
 Act, 1897." 
 
 2. " Joint stoclj company " shall mean any company for mining pnrposes : 
 
 (o) Incorporated under the " Companies Act, 1897," or any Act repealed 
 thereby ; or 
 
 (6) Registered as a foreign company under any Act repealed by the " Com- 
 panies Act, 1897 ;" or 
 
 (c) Licenced or registered as an extra-Provincial company under the " Com- 
 panies Act, 1897;" or 
 
 (d) Incorporated by any special Act. 
 
 Re-enactsl891, 3. The section substituted by sec. 14 of the " Placer Mining Act Amend- 
 <:. 26, s. 124. ment Act, 1896," for sec. 124 of the "Placer Mining Act, 1891," is hereby 
 repealed, and the following inserted in lieu of said sec. 124: — 
 
 Short title. 
 
 "Joint stock 
 company," de- 
 finition of. 
 
 Extension of 
 lease after ex- 
 piraticm. 
 
 When ditch 
 remains pro- 
 perty of 
 owner. 
 
 Re-enactsl891, 
 c. 2B, s. 151, s.- 
 s. {m). 
 
 Gold Commis- 
 sioner's pow- 
 ers to grant 
 leases, &o. 
 
 Consolidation 
 of leases held 
 as creek 
 claims . 
 
 Repeals claus- 
 es relating to 
 ■water grants . 
 
 " 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 expira- 
 tion 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 Com- 
 missioner 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 carry- 
 ing 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." 
 
 4. Sub-section (m) 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 re- 
 newals of such leases, and exercise all such powers as are specified in 
 Part VII. of this Act." 
 
 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 part- 
 nership 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. 
 
 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 Sl'ATUTES. 753 
 
 (c) Sub-section (e) of sec. 103, sub-see. (k) of sec. 151, and sub-sec. (9) PlacerAmend 
 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," "^ f««»> ^^ee 
 and insert the following : — miners certi- 
 
 For every free miner's certificate issued to an individual $ 5 00 
 
 For every free miner's certificate issued to a joint stock company : — 
 
 (o) Having a nominal capital of $100,000.00 or less ,50 00 
 
 (6) Having a nominal capital exceeding $100,000.00 100 00 
 
 Revised Statutes, B. C„ Chap. 134 (1897). Inspection of 
 
 Metalliferous 
 
 An Act for securing the Safety and Good Health of Workniten engaged in <»'rsb^c 1897 
 
 ahout the Metalliferous Mines in the Province of British 
 
 Columbia iy the appointment of an Inspector 
 of Metalliferous Mines. 
 
 Whereas it is expedient to secure the safety and good health of the men _ 
 •engaged in or about the mines (otherwise than coal mines) in this Province; i^reamble. 
 
 Therefore, Her Majesty, by and with the advice and consent of the Legis- 
 lative Assembly of the Province of British Columbia, enacts as follows : — 
 
 1. This Act shall be cited as the " Inspection of Metalliferous Mines Act." gij„jj j;jig 
 1897, ch. 27, sec. 1. 
 
 2. The Lieutenant-Governor in Council may appoint an Inspector of Metal- ^ • . 
 liferous Mines, or mines of whatever description other than a mine to which of^i^°5'neSor 
 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 here- 
 inafter 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 or agent or lessee inspector not 
 for any mining or other corporation during the term of his office, but shall to act or report 
 give his whole time and attention to the duties of the office to which he has for persons or 
 been appointed ; he shall not make a report on any mine or mining property corporations, 
 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 thous- 
 and 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 inspee- 
 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 such 
 parties and the Inspector. On receipt of notice of any serious accident in any 
 mine, the Minister of Mines shall instruct the Inspector to inquire into the cause 
 of such accident. 1897, ch. 27, sec. 4. 
 
754 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Duties of In- 
 spector in re- 
 porting, 
 
 Inspection of 5. The Minister of Mines shall Instruct the Inspector to examine and report 
 Metalliferous to him the condition of the hoisting machinery, engines, boilers, whims, cages, 
 Mines Act, cars, buckets, ropes, and cables in use in all the metalliferous mines in opera- 
 K..S.BXI.,1897 tion in the Province of British Columbia, the appliances used for the ex- 
 tinguishing 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 
 system of signals used in the mines. The Inspector shall not give notice to 
 any owner, agent, or lessee of the time when such inspection shall be made. 
 1897, ch. 27, sec. 5. 
 
 Owners, &c., 6. Every owner, agent, manager, or lessee of any metalliferous mine in this- 
 
 of mines to ad- Province shall admit the Inspector to such mine on the exhibition of his cer- 
 mit Inspector, tificate of appointment for the purpose of making the examination and in- 
 spection provided for in this Act, whenever the mine is in active operation, but 
 said Inspector shall not unnecessarily obstruct the working of said mine. 
 
 Penalty for re- I^ tl^* owner, agent, manager, or lessee refuse to admit the Inspector to 
 fusal to admit, such miue, 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 '^- I£ 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 
 tained in in- ]jjm Jq making such insjiection, upon summary conviction thereof the said In- 
 spection, specter 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. 
 
 Inspector's 
 duties as to 
 dangerous 
 things in 
 mines. 
 
 Enforcing In- 
 spector's 
 orders. 
 
 8. The Inspector shall exercise a sound discretion in the advancement of 
 the subjects of this Act, and in the enforcement of : the regulations made here- 
 under ; and if he shall find any matter, thing, or practice in or connected with 
 any metalliferous mines to be dangerous or defective, so as to, in his opinion, 
 threaten or tend to the bodily injury of any person, the Inspector shall give 
 notice in writing thereof to the owner, stating in such notice the particulars 
 in which he considers such mine, part thereof, or practice to be dangerous or de- 
 fective, and he shall order the same to be remedied. 1897, ch. 27, see. 8. 
 
 9. In case the owner, agent, manager, or lessee, after written notice being 
 duly given, does not conform to or disregards any lawful order o'f the Inspector 
 made hereunder, or disobeys any regulation made hereunder, any Court of com- 
 petent jurisdiction may, on application or information of the Minister 
 of Mines by civil action, enjoin or restrain, with costs, the owner, agent, man- 
 ager, or lessee from working the same until it is made to conform to the pro- 
 visions of 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. 
 
 Owners and 10. Any owner, agent, manager, or lessee having charge or operating any 
 
 others to give metalliferous mine, whenever loss of life or serious accident shall occur in con- 
 notice of ser- nection with the working of such mine, shall give notice immediately, and 
 iouB accident, report all facts thereof to the Minister of Mines or the Inspector, and the said 
 Inspector shall investigate and ascertain the cause and make a report, which 
 shall be filed in the office of the Minister of Mines for future reference. 1897^ 
 ch. 27, sec. 10. 
 
 Removal of 11. The Lieutenant-Governor in Council shall have the power at any time- 
 
 Inspector, to remove from office the Inspector for incompetency, neglect of duty, or abuse- 
 of the privileges of his office. 1897, ch. 27, sec. 11. 
 
I.] APPENDIX A.— MINING STATUTES. 755 
 
 Employment of Females, Children and Boys. Inspection of 
 
 |- Metalliferous 
 
 12. No boy under the age of twelve years, no woman or girl of any age, r g ib'p''^ioq7 
 and no Chinese or Japanese person shall be employed in, or allowed to be for ' ' ' 
 the purpose of employment in, any mine to which this Act applies below Prohibits em- 
 ground. 1897, ch. 27, sec. 12. ployment of 
 
 women, giil^, 
 
 13. No boy under the age of sixteen years shall be employed undei-ground Chinese and 
 for more than fifty-four hours in any one week, or more than ten hours In any Japanese un- 
 one day. 1897, ch. 27, sec. 13. derground. 
 
 Boys under 16. 
 
 14. The person in charge of the machinery for raising and lowering men Person in 
 must be a male of at least eighteen years of age ; but in no case shall the person charge of hoist- 
 in charge be of the Chinese or Japanese race. ing machinery, 
 
 (1) The owner, agent, or manager of any mine to which this Act applies. Register of 
 shall keep in the office at the mine a register, and shall cause to be entered boys and wo- 
 in such register the name, age, residence and date of first employment of all ™^" employed 
 boys of the age of twelve and under the age of sixteen, and of all such young 
 persons under the age of sixteen years who are employed in the mines below 
 ground, and of all women and young persons and children employed above 
 ground in connection with the mine, and shall produce such register to any In- 
 spector under this Act at the mine at all reasonable times when required by 
 him, and allow him to inspect and copy the same. 1897, ch. 27, sec. 14. 
 
 Wages. 
 
 15. No wages shall be paid to any person employed in or about any mine Prohibition of 
 to which this Act applies at or within any public house, beer shop, or place payment of 
 for the sale of any spirits, beer, wine, cider, or other spirituous or fermented wages at 
 liquor, or other houses of entertainment, or any office, garden, or place belonging public houses . 
 or contiguous thereto or occupied therewith. 1897, ch. 27, sec. 15. 
 
 Returns, Notices and Abandonments. 
 
 16. On or before the fifteenth day of January in every year the owner, agent. Returns by 
 manager, or lessee of every mine to which this Act applies shall send to the owners, agents 
 Bureau of Mines, in the City of Victoria, on behalf of the Minister of Mines, or managers of 
 a correct return specifying with respect to the year ending on the preceding mines. 
 
 81st day of December the quantity of metal or ore wrought in such mines, and 
 the number of persons ordinarily employed in or about such mine above and 
 below ground, and any other information as may be required. 1897, ch. 27, 
 sec. 16. 
 
 17. The return shall be in such form as may be from time to time prescribed Form of return 
 by the Minister of Mings, and the Inspector or the Provincial Mineralogist 
 
 shall from time to time, on application, furnish forms for the purpose of such 
 return. 1897, ch. 27, sec. 17. 
 
 18. The Minister of Mines may publish the aggregate results of such re- publication of 
 turns, but the individual returns shall not be published without the consent of results and 
 the person making the same, or the owner of the mine to which they relate, returns. 
 
 and no person except the Inspector, or Provincial Mineralogist, or the Minister 
 of Mines shall be entitled without such consent to see the same. All such infor- 
 mation shall be used for statistical purposes only. 1897, ch. 27, sec. 18. 
 
 19. Where in or about any mine to which this Act applies, whether above Notice to be 
 or below ground, either : — given of acci- 
 
 (1) Loss of life or any personal injury to any person employed in or about "^^"'^ '" mines 
 the mine occurs by reason of any explosion of gas, powder or any steam 
 boiler ; or 
 
756 MARTIN'S MINING CASES. [vol. 
 
 Inspection of f^) 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, 
 
 r'^'S^*?s'q ™^°^Ser, or lessee of the mine shall, within twenty-four hours next after the 
 
 B.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, this section, 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- guch mine shall, within two months after such commencement or abandonment, 
 ment. gj^g 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 em- 
 ployed below ground. 1897, ch. 27, sec. 20. 
 
 Fencing of 21. Where any mine to which this Act applies is abandoned, or the work- 
 
 abandoned ing thereof discontinued, at whatever time such abandonment or discontinuance 
 ™'"®' 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 an^ 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 gf such mine at the time of the abandonment shall, within three months after 
 Mmister. gjj|,jj 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 pre- 
 served under the care of the Minister of Mines, but no person except the In- 
 spector 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 dot 
 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, sec. 22. 
 
 ( 
 Plans of Mines. 
 
 Plans of mines 23. The owner, agent, manager, or lessee of every mine to which this Act 
 to be kept at applies shall keep in the office of the mine, or in the principal office of J,he 
 the office of mines belonging to the same owner in the district in which the mine is situ- 
 the mine. 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 discon- 
 tinued at a date more than twelve months before the commencement of this 
 Act. 
 Production to (1) The owner, agent, manager, or lessee of the mine shall produce to the 
 Inspector. 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 
 examine the same. 
 If owner &c W If the owner, agent, manager, or lessee of ally mine fails to kegp such 
 
 makes default, plan as is prescribed by this section, or wilfully refuses to produce or allow 
 guilty of to be examined such plan, or wilfully withholds any portion of any plan, or 
 
 offence against conceals any part of the workings of his mine, or produces an imperfect or in- 
 this Act. accurate plan, unless he shews that he was ignorant of such concealment, im- 
 
 perfection, or inaccuracy, he shall be guilty of an offence against this Act ; and. 
 Requisition by further, the Inspector may, by notice in writing (whether a penalty for such 
 Inspector. offence has or has not been inflicted), require the owner, agent, manager, or 
 
I-J APPENDIX A.— MINING STATUTES. 
 
 757 
 
 lessee to cause au accurate plan, such as is prescribed by this section, to be Inspection of 
 made within reasonable time, at the expense of the owner or lessee of the mine. Metalliferous 
 on a scale of not less than a scale of thirty feet to one inch, or on such other Mines Act, 
 scale as the plan used in the mine is constructed on. RS.B.C.,18a7 
 
 (S) If the owner, agent, manager, or lessee fail, within twenty days, or such 
 further time as may be shewn to be necessary, after the requisition of the 
 Inspector, to make or cause to be made such plan, he shall be guilty of an 
 offence against this Act : — 
 
 Provided, that tliiy section shall apply only to a mine to which this Act Proviso, 
 applies, and in which more than twelve persons are ordinarily employed below 
 ground. 1897, ch. 27, sec. 23. 
 
 Inupccioi's Report. 
 
 24. The Inspector shall make an auuual report of his proceedings during ^„nual report 
 the preceding year to the Minister of Mines, which report shall be laid before by Inspector, 
 the Legislative Assembly. 
 
 (1) The Minister of Mines may at any time direct an Inspector to make a Special reports 
 special report with respect to any accident in a mine to which this Act applies, 
 which accident has caused loss of life or serious personal injury to any person, 
 and in such case shall cause such report to be made public at such time and in 
 such manner as he thinks expedient. 1897, ch. 27, sec. 24. 
 
 General Rules. 
 
 25. The following rules shall, so far as may be reasonably practicable, lie General rules. 
 observed in every mine to which this Act applies. 
 
 Yentilation. 
 
 (1) An adequate amount of ventilation shall be constantly produced in every Ventilation. 
 mine to such an extent that the shafts, winzes, sumps, levels, slopes, and working 
 
 places of such mine, and the travelling I'oads to and from such working places, 
 shall be in a fit state for working and passing therein. 
 
 Explosives. 
 
 (2) Gunpowder, dynamite, or other explosive and inflammable substances Explosives, 
 shall not be stored anywhere underground in the mine, but shall be stored in a storing, &c. 
 magazine provided only for this purpose. Said magazine shall be placed far 
 
 enough from any shaft, tunnel, engine or mining buildings as to insure their 
 remaining intact in case of the explosion of the stock of explosives in said 
 magazine. 
 
 (3) All explosives in excess of the amount required for a shift's or day's 
 work, shall be kept in the magazine. 
 
 (Jt) Bach mine to which this Act applies, shall have a suitable device for 
 thawing such explosives as require it, and such device shall be heated only by 
 the use of hot water or steam. 
 
 (5) Oils, candles, and other inilammable substances, fuse and detonating caps 
 shall not be stored with the explosives. 
 
 (6) An iron or steel tamping rod shall not be u«ed for ramming or tamping 
 the wadding or first part of the tamping on the explosives. 
 
 Fire Protection. 
 
 n) Every plant using steam, where boiler, engine, blacksmith shop and shaft ^-^^ protec- 
 are in the same building, shall have a hose and hose-connection injector or feed (joj,^ t^^^^ etc. 
 pump, and keep the same ready for instant use. and the line of hose shall be 
 sufficient to reach the farthest point of said plant. 
 
758 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 tetrad ^06e of Signals. 
 
 Mines Act, ,„,„,. . , 
 
 R.S.B.C. 1897 (°J Each mine using a code of signals shall use the following code : — 
 
 p , ": , 1 Bell. To hoist (when the bucket, skip or cage is not in motion) ; 
 
 1.^006 signals. ^^ g^jj rj,^ ^^^^ (when the bucket, skip or cage is in motion) ; 
 
 1 1 Bell. To lower ; 
 1 1 1-1 Bell. With care — to hoist (man on) ; 
 • 1 1 1-1 1 Bell. With care — to lower (man on) ; 
 
 Other signals to meet other demands, may be arranged, but the code of signals 
 in full shall be plainly printed and placed in the engine-room,, at the top of the 
 shaft, and at each station or landing or level, together with a notice and penalty 
 for wrong or improper signals. 
 
 (9) The bell rope or other device for signalling shall be so constructed that 
 signals can be sounded clearly and easily at the surface from any station, land- 
 ing or level. 
 
 Hoisting and Landing Men. 
 
 Hoisting, &c., (^OJ The hoisting or lowering of employees at any mine shall be permitted 
 of men. ' or positively prohibited. 
 
 Every working vertical shaft in which persons are towered or raised shall, 
 if exceeding three hundred feet in depth, be provided with a cage and guides. 
 Such cage to be provided with a sufficient iron or steel covering or hood and 
 catches. 
 
 Daily in- 
 spection. 
 
 Shafts. 
 
 Daily Inspection of Mine. 
 
 (11) A competent person or persons who shall be appointed for the purpose, 
 shall, once at least every twenty-four hours, examine the state of the extjemal 
 parts of the machinery, and the state of the head gear, working places, levels, 
 inclines, ropes and other works of the mine which are in actual use, and once 
 at least in every week shall examine the state of the shafts or inclines by which 
 persons ascend or descend and the guides, timbers and ladder-ways therein, shall 
 make a true report of the result of such examination, and such report shall be 
 recorded in a book to be kept at the mine for the purp'ose, and shall be signed by 
 ithe person who made the same. 
 
 Shafts. 
 
 (IS) Every shaft, incline or stope in which mechanical appliances for hoist- 
 ing are used, and which is a means of travel for employees, shall be of at least 
 two compartments, and shall be well timbered. 
 
 (IS) The top of every shaft shall be covered or so protected as to prevent 
 persons or foreign object falling into said shaft. 
 
 Stations. 
 
 Stations. 
 
 (H) Each station or landing shall have a passage way around one side of 
 the shaft where the level or drift extends both ways from the said shaft. 
 
 Ladder Ways. 
 
 Ladder ways. (15) A ladder permanently used for the ascent or descent of persons in 
 the mine shall be sufficiently strong for the purpose demanded, and shall be 
 firmly fastened and kept in good repair. In a vertical shaft the ladder shall 
 not be fixed in a vertical or overhanging position, and shall be inclined at the 
 most convenient angle which the space in which the ladder is fixed allows, and 
 every such ladder shall have substantial platforms at intervals of not more 
 than twenty feet. 
 
I-] APPENDIX A.— MINING STATUTES. 759 
 
 (16) The said platform shall be closely covered, with the exception of au Tnsnpptinn nf 
 opening large enough to permit the passage of a man, and shall be so arranged Metalliferous 
 that by no means could a person fall from one ladder through the opening Mines Act 
 to the next ladder. R.S.B.C.,1897 
 
 (17) The ladder way in a shaft, incline or stope shall be separated by a 
 strong partition from the compartment or division of the shaft, incline or stope 
 in which the material of the mine is hoisted. 
 
 Winzes and Mill Holes. 
 
 (18) Bach winze or mill hole extending from one level or drift to another Winzes and 
 level or drift shall be protected at the top by a cover or a guard rail. . mill holes. 
 
 Exits. 
 
 (19) As soon as it is practicable each mine to which this Act applies shall Exits. 
 have two or more exits from the said mine, and levels or drifts driven each way 
 from a shaft, or incline, or stope shall be connected by upraises or winzes 
 equipped with ladders to provide exits, or means of escape in case of accident. 
 
 Timhering. 
 
 (20) Bach shaft, incline, stope, tunnel, level or drift, and any working place Timbering 
 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. 
 
 Gauges to Steam Boilers. 
 
 (21) Every steam boiler shall be provided with a proper steam gauge and Q-auges to 
 water guage, to shew respectively the pressure of steam and height of water in ateam boilers, 
 the boiler, and with a proper safety valve. 
 
 Ohservance of Directions. 
 
 (22) Every person shall observe such directions with respect to working Observance of 
 as may be given to him with a view to comply with the sections of this Act. directions. 
 
 (23) Every person who contravenes or does not comply with any of the ''^hat consti- 
 general rules of this section shall be guilty of an offence against this Act ; a ainsfAot"''^ 
 and in the event of any contravention of or non-compliance with any of the ° 
 
 said general rules in the case of any mine to which this Act applies, by any 
 person whomsoever, the owner, agent and manager shall each be guilty of an 
 offence against this Act unless he proves that he had taken all reasonable 
 means, by publishing, and to the best of his power enforcing, the said rules as 
 regulations for the working of the mine, to prevent such contravention or non- 
 compliance. 1897, ch. 27, sec. 25. 
 
 / 
 
 26. The Lieutenant-Governor in Council may from time to time make such Rules may be 
 rules for the safety of mines in addition to those herein laid down, and not in- made by 
 consistent therewith, as may be deemed advisable for the protection of the Lieut.-Gov- 
 miners and in and by such rules or regulations may impose fines or penalties ernor. 
 
 for the infraction thereof not exceeding those imposed in and by this Act; and 
 the said rules and regulations fehall have the force of law after they have been 
 advertised for four weeks in the British Columbia Gazette. 1897, ch. 27, 
 sec. 26. 
 
 Penalties. 
 
 27. Every owner, agent, manager, or lessee of a mine to which this Act Penalties, 
 applies, who is guilty of any act or omission in contravention of the pro- owners, &c. 
 
7«0 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Inspection of visions or requirements of this Act, shall be deemed guilty of an offenee against 
 Metalliferous this Act. 1897, ch. 27, sec. 27. 
 
 Mines Aet, 
 R.S.B.C.,1897 28. Every person employed in or about a mine other than an owner, agent, 
 -p , manager or lessee, who is guilty of any act or omission which in the case 
 
 mp oyees. ^^ ^^^ owner, agent, manager or lessee would be an offence against this Act, 
 shall be deemed guilty of an offence against this Act. 1807, ch. 27, sec. 28. 
 
 Amounts of 29. Every person who is guilty of any offence against this Act shall be liable 
 
 penalties. .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 ease of an 
 owner, agent, manager or lessee, to a further penalty not exceeding one hun- 
 dred 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 ijerson 
 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 cal- 
 culated 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 danger- 
 ous 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 ex- 
 ceeding 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 per- 
 son so aggrieved may appeal therefrom. 1897, ch. 27, sec. 31. 
 
 Imprisonment 
 where pecuni- 
 ary penalty 
 will not meet 
 case. 
 
 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 (i) 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 ; 
 
 (2) The description of any offence under this Act in the words of this 
 Act shall be sufficient in law; 
 
 Defendant W 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, &o. proved by the defendant, but need not be specified or negatived in the informa- 
 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 ; 
 
 Q (4) The owner, agent, manager, or lessee may, if he think fit, be sworn and 
 
 eive 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 shalj, 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 
 Amount of shall not impose a penalty under this Act exceeding two hundred and fifty 
 ^f th Pe ce ^ dollars, but any such Court may impose that or any less penalty for any one 
 mav imnose offence, notwiths'tanding the offence involves a penalty of higher amount. 1897, 
 
 ch. 27, sec. 33. 
 
I] APPENDIX A— MINING STATUTES. 761 
 
 34. No prosecution shall be instituted against the owner, agent, manager or Inspection of 
 lessee of a mine to which this Act applies for any offence under this Act which MetaUifeiou.'s 
 can be prosecuted before a Court of Summary Jurisdiction, except by an Inspec- Mines Act, 
 tor, or with the consent in writing of the Minister of Mines; and in the case R.S.B.C., 1897 
 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- prosecution 
 sonable means to prevent the commission thereof, an Inspector shall not insti- own'ers &o. 
 tute any prosecution against such owner, agent, manager, or lessee, if satis- ' 
 
 fled 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 Indictment 
 liable under any other Act or otherwise to any other or higher penalty or pun- under other 
 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 Prohibits eer- 
 which this Act applies, or the father, son or bi-other of such owner, agent or tain relations 
 manager, shall not act as a Court or member of a Court of Summary Jurisdic- f'"™ acting as 
 tion in i-espect 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 whom 
 notice of any explosion or accident or for any offence against this Act which penalties to be 
 has occasioned loss of life or personal injury, the Minister of Mines may (if P*'"- 
 
 he think fit), direct such penalty to be paid to or distributed among the per- 
 sons injured and the relatives of any persons -whose death may have been occa- 
 sioned by such explosion, accident, or offence, or among some of them ; 
 
 Provided that — • 
 
 (1) Such persons did not in his opinion, occasion, or contribute to occa- 
 sion, the explosion or accident, and did not commit and were not parties to 
 committing the offence ; 
 
 (2J The fact of such payment or distribution shall not in any way affect 
 or be receivable in any legal proceeding relative to or consequential on such 
 explosion, accident, or offence. 
 
 Save as aforesaid, all penalties imposed in pursuance of this Act shall be paid 
 into the Provincial Treasury. 1897, ch. 27, sec. 37. 
 
 H 
 
 Rev. Stat. B. C. Chap. 135 (1897). Mineral Act, 
 
 „ , R.S.B.C.,c.l35 
 An Act relating to Gold and other Minerals excepting Coal. 
 
 BR MAJESTY, by and with the advice and consent of t'.ie Legislative 
 Assembly of the Province of British Columbia, enacts as follows : — 
 
 Short Title. 
 
 1. This Act may be cited as the " Mineral Act." 1896, e. 34, s. 1. ghort title. 
 
 Interpretation. 
 
 2. In the construction of this Act the following. expressions shall have the interpretation 
 following meanings respectively, unless inconsistent with the context : — 
 
762 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Mineral Act, 
 R.S.B.C.,c.l35 
 
 -"Mine." 
 "Mineral." 
 
 "Building 
 stone." 
 
 " Rock in 
 place." 
 
 "Valuable 
 deposits of 
 mineral." 
 
 ' ' Vein or 
 lode." 
 
 "Mineral 
 claim." 
 
 "Mininfr 
 .property." 
 
 '" Leg;al post.' 
 
 " Location 
 line." 
 
 "Mill site.' 
 
 'Free miner." 
 
 " Record," 
 "register" and 
 "registration" 
 "Full 
 interest." 
 " Cause." 
 " Judgment." 
 " Real estate." 
 
 "Joint stock 
 •company." 
 
 " 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 groups 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, strontium, sul- 
 phur (or any combination of the aforementioned elements with them- 
 selves or with any other elements), asbestos, emery, mica, and mineral 
 pigments ; 
 
 Limestone, marble, clay, or any building stone, when mined for building pur- 
 poses, shall not be considered as mineral within the meaning of this 
 Act: 
 
 " Rock in place " shall be deemed to mean and include mineral, not neces- 
 sarily 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 prospec- 
 tive 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 
 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 : 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; 
 
 " Location line "• shall be the straight line between posts numbers one and 
 two; 
 
 " 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 trans- 
 porting, 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 
 company, named in and lawfully possessed of a valid existing free miner's 
 certificate, and no other ; 
 
 " Record," " register," and " registration," shall have the ?ame meaning, 
 and shall mean an entry in some official book kept for that purpose ; 
 
 " Full interest " shall mean any mineral claim of the full size, or one of 
 several shares into which a mineral claim shall be equally divided ; 
 
 " Cause " shall include any suit or action ; 
 
 " Judgment " shall include " order " or " decree ;" 
 
 " Real estate " shall mean any mineral land 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 for mining purposes : 
 (o) Incorporated under the "Companies' Act, 1897," or any Act re- 
 pealed thereby ; or 
 
i] APPENDIX A.— MINING STATUTES. 763 
 
 (6) Registered as a foreign company under any Act repealed by the Mineral Act, 
 "Companies' Act, 1897;" or R.S.B.C, 0.135 
 
 (c) Licenced or registered as an extra-Provincial company under the 
 '■ Companies' Act, 1897;" or 
 
 (d) Incorporated by any special Act. 
 
 1897, ch. 28, sec. 2. 
 
 Part I. 
 Free Miners and their Privileges. 
 
 3. Every person over, but not under, eighteen years of age, and every joint Who may be a 
 stock company, shall be entitled to all the rights and privileges of a free miner, 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. 1896, ch. 
 34, sec. 3. 
 
 4. A free miner's certificate may be granted to a free miner for one or more Duration of 
 years, to run from the date thereof, or from the expiration of the applicant's certificate . 
 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. 1896, ch. 34, 
 sec. 4, and 1897, ch. 2, sec. 161. 
 
 5. A free mirer's certificate shall be in the following form: — Form of certi- 
 
 ficate . 
 
 British Columbia. 
 
 Free Miner's Certificate. 
 
 NOT TRANSFERABLE. 
 
 Date, No. 
 
 Valid for year only. 
 
 This is to certify that of has paid me this 
 
 day the sum of , and is entitled to all the rights and privileges 
 
 of a free miner for year from the day of , 
 
 18 
 
 {Signature of Gold Commissioner or Jilinirig Recorder, 
 OS the case may ie.) 
 1896, ch. 34, sec. 5. 
 
 6. If any person or joint stock company shall apply for a free miner's cer- Application at 
 tificate at the Mining Recorder's ofiSce during his absence, and shall leave the Recorder's 
 fee required by this Act with the officer or other person in charge of the said office in his 
 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 
 
 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 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. 
 
 7. If any free miner's certificate be accidentally destroyed or lost, , the " Substituted 
 owner thereof may, on payment of the fees set out in the Schedule to this certificate." 
 
764 MARTIN'S MINING CASES. [vol. 
 
 Mineral Act, Act, have a true copy of it, signed by the Mining Recorder, or otlwr person 
 K.S. B.C., 0.135 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. 1896, ch. 34, sec. 7. 
 
 mining witli- ^' ■'^^^'"3' Person and joint stock company engaged in mining for minerals 
 
 out certificate, (otlier than coal J 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 flum.', 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. 189(5, 
 ch. 34 sec. 8. 
 
 Uncertificated ^- Subject to the proviso hereinafter stated, no person or joint stock corn- 
 person not en- Pany shall be recognized as having any right or interest in or to any mineral 
 titled to in- claim, or any minerals therein, or in or to any water right, mining ditch, 
 terest in rain- drain, tunnel, or flume, unless he or it shall have a free miner's certificate 
 mg property, unexpired. And on the expiration of a free miner's certificate the owner thereof 
 -J J ■ shall absolutely forfeit all his rights and interests in or to any mineral claim, 
 1 rovided ra- ^^j g^jj j^, ^ gjjy minerals therein, and in or to any and every water right, raining 
 owner failing ditch, drain, tunnel, or flume, which may be held or claimed by such owner of 
 to keep up his S'lch expired free miner's certificate, unless such owner shall, on or before 
 licence shall -''■^'o day following the expiration of sucli certificate, obtain a new free miner's 
 vt-st in the certificate : Provided, nevertheless, should any co-owner fail to keep up his 
 other CO- free miner's certificate, such failure shall not cause a forfeiture or act as an 
 
 owners. abandonment of the claim, but the interest of the co-owner who shall fail to 
 
 keep up his free miner's certificate shall, ipso facto, be and become vested in his 
 ProvidHd a co-owners pro rata, according to their former interests : Provided, nevertheless, 
 shareholder x,]mt a shareholder in a joint stock company need not be a free miner, and, though 
 such licence ""* ^ ^^^^ miner, shall be entitled to buy, sell, hold, or dispose of any shares 
 therein : And provided, also, that this section shall not apply to mineral claims 
 Not to apply ^'^^ which a Crown grant has been issued : Provided, always, that if any person 
 when Crown or company shall acquire, by purchase or otherwise, any mine or mineral claim, 
 grant issued, or interest therein, and it shall appear that some person or company through 
 whom he or it claims title has neglected to take ovit or keep up a free miner's 
 In case of pur- certificate, according to the provisions of this Act, such jierson or company so 
 '^^u^^ °| claim acquiring puch mine or mineral claim, or interest therein, may, within one month 
 where def^n ^^^^ ^^^ ^^^^ -when he or it shall first acquire knowledge thereof, or if knowledge 
 inkeepineup already acquired within one month after this Act becomes law pay to the 
 certificate. 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 mineral 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. 
 1896, ch. 34, sec. 9. 
 
 Owners and 10. Every owner of a mine or mineral claim, and every contractor for the 
 
 contractors to performance of any work upon a mine or mineral claim, shall pay the annual 
 pay licence for fgg fop g. free miner's licence for any person in their employment and liable 
 einployees. ^^j. ^.^^ jgg^ ^j^^ may deduct the amount so paid on account of such person from 
 lo furuLsh ^^^ amount of salary or wages due or to become due to him from such employer 
 list of e"m "PO" production and delivery of the receipt for such tax to such person. Every 
 
 ployees! such owner or contractor shall furnish to tlie Mining Recorder or Collector, when 
 
 requested by him so to do, from time to time, a list of all persons in his em- 
 ploy, 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 enquiry to ascertain its correctness. 1806, ch. 34. sec. 10. 
 
IJ APPENDIX A.— MINING STATUTES. 765 
 
 11. If any person fails to pay the said licence fee for liis employees, or to Mineral Act, 
 deliver to the Recorder or Collector the list mentioned in the preceding section R.S.B.C.,c.l35 
 
 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 re- I'enalty. 
 covered, together with the amount of the unpaid licence fees, upon summary 
 conviction before one Justice of the Peace. 1896, ch. 34, sec. 11. 
 
 12. Every free miner shall, during the continuance of his certificate, but Where free 
 not longer, have the rjgnt to enter, locate, prospect, and mine upon any waste miner may 
 lands of the Crown for all minerals other than coal, and upon all lands the min^, pro- 
 right whereon to so enter upon, prospect, and mine all minerals other' than ^P^'^'- *''- 
 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 
 
 vipon 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, Occupied lands 
 
 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 jjyjraulic 
 
 space of six months next after the same shall have been so uncovered : Pro- works 
 
 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- proviso for 
 
 vided that after such entry he shall make full compensation to the occupant or compensation. 
 
 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, 
 
 ch. 28, sec. 3. 
 
 13. Any free miner shall be at liberty, at any period of the year, while Right to kill 
 actually prospecting or engaged in mining, to kill game for his own use. 1896, game. 
 
 ch. 34, sec. 13. 
 
 14. A free miner shall have all the rights and privileges granted to free "Placer Min- 
 miners by the " Placer Mining Act." 1896, ch. 34, sec. 14. ing Act." 
 
 Part II. 
 
 Mineral Claim.s and JIines. 
 
 Locating, Recording, Working, and Crown Grants. 
 
 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 
 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 sur- 
 veyed claim is adopted as common to both claims, but the lines need not neces- 
 sarily be meridional. In defining the size of a mineral claim, it shall be mea- 
 sured horizontally, irrespective of inequalities of the surface of the ground. 
 1896, ch. 34, sec. 15. 
 
766 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Mineral Act, 16. A mineral claim shall be marked by two legal posts, placed as near as 
 
 R.S.B.C., 0.135 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, 
 
 Modeof stak- the line between posts Nos. 1 and 2 to be known as the location line, and upon 
 ing a claim . 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 
 be wi-itten, 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. Direc- 
 tion 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 and No. 2 posts shall be 
 furnished by the locator to the Mining Recorder, in writing, 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 or erect monuments 
 of 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 
 tlaim 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. 
 
 Examples of vaeious modes of laying out Claims located as full sized 
 
 Mineral Claims. 
 
 1. 2. 3. 
 
 No. 2 Post. 
 
 No, 1 Post. 
 
 No. 2 Post. 
 
 
 260' 
 
 1260'. 
 
 
 I I, 
 
 i 
 
 3 Discovery 
 . Post. 
 
 J-* 
 
 260' 
 
 1260- 
 
 
 No. 
 
 I Post. 
 
 
 No. 2 Post', 
 
 ■ No. 1 Post. 
 
 It shall not be lawful to move No. 1 post, but No. 2 post may be moved 
 by tlje Provincial Land Surveyor when the distance between Nos. 1 and 2 
 posts exceeds 1,500 feet in order to place No. 2 post 1,500 feet from No. 1 
 post on the line of location. When the distance between posts Nos. 1 and 2 is 
 less than 1,500 feet, the Provincial Land Surveyor, has no authority to extend 
 the claim beyond No. 2. 
 
 The " location line " shall govern the direction of "one side of the claim, 
 upon which the survey shall be extended according to this Act. 
 
 (o) 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 ; 
 
 (o) No mineral claim of the full size shall be recorded without the applica- 
 tion being accompanied by an affidavit or solemn declaration in the 
 Form S., made by the applicant or some person on his behalf cognizant of" 
 
I.] APPENDIX A.— MINING STATUTES. 767 
 
 the facts : That the legal notices and posts have been put up ; that Mineral Act 
 mineral has been found in place on the claim proposed to be recorded ; R.S.B.C.,c.l35' 
 
 that the ground applied for is unoccupied by any other person as a min- 
 
 eral 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 certi- 
 ficate 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 cogni- 
 zant 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 orchai-d, 
 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 bond fide attempt to 
 comply with the provisions of this Actj 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. 1897, 
 ch. 28, sec. 4. 
 
 17. Any location, made upon Sunday or any public holiday shall not for that Location made 
 reason be invalid, any law or statute to the contrary notwithstanding. 1896, ch. on Sunday. 
 34, sec. 17. 
 
 18. In cases where, from the nature or shape of the ground, it is impos- Where staking 
 sible to mark the location line of the claim, as provided by this Act, then out cannot be 
 the claim may be marked by placing legal posts as nearly as possible to the properly done, 
 location line, and noting the distance and direction such posts may be from 
 
 location line, which distance and direction shall be set out in the record of the 
 claim. 1896, ch. 34, sec. 18. 
 
 19. Every free miner locating a mineral claim shall record the same with Record of 
 the Mining Recorder of the district within which the same is situate, within claim . 
 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 re- 
 cord 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 Re- 
 corder, in which shall be inserted the name of the claim, the name of each 
 
768 
 
 MARTIN'S 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 ot his agent. A claim which 
 shall 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 a record of a mineral claim until 
 
 ??.\° j''.^'* *"" , he shall have furnished the said Mining Recorder with all the above particulars, 
 titled to record, ^ggg ^^_ 3. ^^^^ ^0. 
 
 MiningReoord- 21. Upon the establishment of a mining division and the opening of a Min- 
 
 ■er's office . jug Recorder's oflBce therein, under the authority of this Act, such office and 
 
 none other shall be the proper office for recording all mineral claims within 
 
 such mining division, and making all records in respect thereof. 1896, ch. 
 
 34, sec. 21. 
 
 claim inwrong ^^- ^^ through ignorance any free miner shall record a mineral claim in a 
 district. 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. 84, sec. 22. 
 
 Application at 23. If a free miner applies at the Mining Recorder's office during his ab- 
 Recorder's of- sence 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 fo have such record dated on the date of such application. 1896, 
 ch. 34, sec. 23. 
 
 "fice in his 
 iibsence. 
 
 Duration of re- 24. 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 
 of holder. 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 satisfac- 
 tion 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. 
 Adjoining or company of free miners holding adjoining mineral claims, or any two or 
 
 claims in part- more free miners who locate and record adjoining mineral claims, not exceed- 
 nership. jng 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 per- 
 form 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 vacant and aban- 
 doned, any rule of law or equity to the contrary notwithstanding. 1897, ch. 28, 
 sec. 25. 
 
 Payment in- 25. The holder of a mineral claim may, in lieu of the work required to be 
 
 stead of assess- done by sec. 24 of this Act, on a claim in each year, pay to the Mining Recorder 
 ment work. in whose office the claim is recorded the sum of one hundted dollars ati3 
 
I] APPENDIX A.— MINING STATUTES. 769 
 
 •receive fi-om such Recorder and record a receipt for such payment. Such pay- Mineral Act 
 ment and the record thereof in any year shall relieve the person making it from K.S.B.C.,c.lfe 
 
 the necessity of doing any work during the year in and for which and upon the 
 
 <;laim in respect of which such payment is recorded. 1896, ch. 34, sec. 25. 
 
 26. Notwithstanding anything to the contrary contained in Sny Act, every gurface rishta. 
 Crown grant hereafter issued of a mineral claim shall convey, and be deemed co 
 
 ■convey, only the right to the use and possession of the surface of such claim, 
 including the use of all the timber thereon, for the purpose of winning and 
 getting from and out of such claim the minerals contained therein, including all 
 operations connected therewith or with the business of mining, and the Is^wful 
 holder by record of a claim shall, during the continuance of his record, be 
 entitled to the same surface rights and no others, and all remaining surface 
 rights shall be deemed to be vested in the Crown, and may be granted and dis- 
 posed of as is provided by the Land Laws for the time being in force, but sub- 
 ject always to the rights of free miners as aforesaid. 1897, ch. 28, sec. 6. 
 
 27. In case of any dispute as to the location of a mineral claim the title to Priority of 
 the claim shall be recognized according to the priority of such location, subject location in 
 
 'to any question as to the validity of the record itself, and subject, further, to casesof dispute, 
 the free miner having complied with all the terms and conditions of this Act. 
 1896, c. 34, s. 27. 
 
 28. Upon any dispute as to the title to any mineral claim no irregularity Irregularities 
 happening previous to the date of the record of the last certificate of work shall previous to last 
 ■affect the title thereto, and it shall be assumed that up to that date the title certificates of 
 to such claim was perfect, except upon suit by the Attorney-General based upon ti'l«- 
 
 fraud. 1896, ch. 34, sec. 28. 
 
 29. No free miner shall be entitled to hold in his own name, or in the name jfot more than 
 •of any other person, more than one mineral claim on the same vein or lode,. rne claim to be 
 except by purchase, but such free miner may hold by location a claim upon any held by free 
 separate vein or lode. 1896, ch. 34, sec. 29. miner. 
 
 30. A free miner may at any time abandon any mineral claim by giving Abandonment 
 notice in writing of such intention to abandon to the Mining Recorder, and of claim, 
 from the date of the record of such notice all interest of such free miner in 
 
 •such claim shall cease. 1897, ch. 28, sec. 7. 
 
 SI. When a free miner abandons a mineral claim he shall have the right to Machinery on 
 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 of 
 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 reloca- 
 tion ; and he shall hold no interest in any portion of such mineral claim, by loca- 
 tion without such permission. .1896, ch. 34, sec. 32. 
 
 33. Where a tunnel is run for the development of a vein or lode the owner Right to lodes 
 •of such tunnel shall, in addition to any mineral claim legally held by him, have discovered in a 
 the right to all veins or lodes discovered in such tunnel : Provided that the ground tunnel, 
 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 mmeral 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. 1896, ch. 34, sec. dd. 
 49 
 
770 
 
 MARTIN'S MINING OASES. 
 
 [VOL. 
 
 Mineral Act, 34. The interest of a free miner in his mineral claim shall, save as to claims 
 
 R.S.B.C.,c.l35 held as real estate, be deemed to be a chattel interest, equivalent to a lease, for 
 one year, and thence from year to year, subject to the performance and obser- 
 vance of all the terms and conditions of this Act. 1896, ch. 34, sec. 34. 
 
 Interest in 
 claim a chattel 
 interest. 
 Purchase of 
 mineral claim. 
 
 Certificate of 
 improvements. 
 
 Work to be 
 done, etc., be- 
 fore certificate 
 of improve- 
 ments granted. 
 
 T'ound a vein. 
 
 Survey re- 
 quirements for 
 certificate of 
 improvements. 
 
 Evidence of 
 location. 
 
 Notice of ap- 
 plication, etc., 
 to be posted. 
 
 Publication of 
 such notice 
 in Gazette. 
 
 Filed copy of 
 original notes 
 with Recorder. 
 
 Notices of ap- 
 plication . 
 Affidavit, 
 form of. 
 
 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. The intending purchaser 
 shall comply with all the provisions of sec. 36 of this Act, except such as have 
 respect solely to the work required to be done on claims. 1896, ch. 34, sec. 35. 
 
 36. Whenever the lawful holder of a mineral claim shall have complied with 
 the following requirements, to the satisfaction of the Gold Commissioner, he 
 shall be entitled to receive from the Gold Commissioner a certificate of improve- 
 ments in respect of such claim, unless proceedings by the person claiming an 
 adverse right under sec. 37 of this Act have been taken : — 
 
 (o) Done, or cause to be done work on the claim itself in developing a mine 
 to the value of five hundred dollars, exclusive of all houses, buildings, 
 and other like improvements. 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 who receives a transfer of such claim. 
 1897, ch. 28, sec. 8 ; 
 
 (B) Found a vein or lode within the limits of such claim ; 
 
 (c) Had a. claim surveyed by an authorized Provincial 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 repre- 
 sented 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, primS, 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 " Evi- 
 dence Act," shall be received in all Courts as pritnd 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 
 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; 
 
 The name of the lawful holder thereof; 
 
 The number of such holder's existing free miner's certificate ; 
 
 His intention to apply for certificate of improvements at the end of 
 
 sixty days, for the purpose of obtaining a Crown grant ; 
 
 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. 
 1897, ch. 28, sec. 8; 
 
 (f) Shall have filed with the Mining Recorder a copy of the surveyor's 
 original field-notes and plat immediately after posting the notice on the- 
 claim of his intention to apply for a certificate of improvements ; 
 
 (ff) Filed with the Mining Recorder — 
 
 (1) Affidavit of the holder of the claim, or his agent, in the Form G im 
 the Schedule of the Act; 
 
 (2) 
 (3) 
 (4) 
 
 (5) 
 
I-] APPENDIX A.— MINING STATUTES. 771 
 
 (ft) At the expiration of tlie term of the said publication, provided no action Mineral Act, 
 shall have been commenced and notice thereof filed with the Mining Ke- R.S.B.C.,c.l35 
 
 corder, he shall forward to the owner or agent, under Form I of the , , 
 
 Schedule to this Act, the documents referred to above, together with a Mining Re- 
 certificate that the notice provided by sec. 36, sub-sec (d) , has been ^jj™|^^^°"''«* 
 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. 1896, 
 ch. 34, sec. 36, 1897, ch. 28, sec. 8, and 1808, ch. 33, sees. 7 and 8. 
 
 37. (1) A certificate of improvements when issued as afoii;said shall not be Certificate of 
 impeached in any Court on any ground except that of fraud. improvements 
 
 not to be im- 
 (2) In case any person shall claim an adverse right of any kind, either to peae led except 
 possession of the mineral claim referred to in the application for certificate of for fraud, 
 improvements or any part thereof, or to the minerals contained therein, he shall. Adverse 
 within sixty days after the publication in the British Columbia Gazette of the claimant. 
 notice referred to in see. 36 hereof (unless such time shall be extended by special Action to be 
 order of the Court upon cause being shewn), commence an action in the Supreihe commenced. 
 Court of British Columbia to determine the question of the right of possession or 
 otherwise enforce his said claim, and shall file a copy of the writ in said action 
 tvith 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 
 plaintifE's claim. After final judgment shall have been rendered in the said 
 action the person or any one of the persons entitled to the possession of the 
 claim or any part thereof, may file a certified copy of the same in the ofiice of 
 the Mining Recorder. After the filing of the said judgment, and upon compli- Certified copy 
 ance with all the requirements of the next preceding section, such person or of judgment 
 persons shall be entitled to the issue to him or to them of a certificate of ""y °^ "'•*" 
 improvements in respect of the claim or the portion thereof which he or they Certificate of 
 shall appear from the decision of the Court rightly to possess: Provided that '"'Provements 
 this section shall not apply to any adverse claim filed or action to enforce the after judgment 
 same commenced prior to the date of this Act coming into force, but the same Pending liti- 
 snall be continued in the same manner as if this Act had not been passed, gaiion. 
 1896, ch. 34, sec. 37. 
 
 38. After the issuing and recording of such certificate of improvements, and Effect of certi- 
 while such certificate shall be in force it shall hot be necessary to do any work ficate of im- 
 on such claim. 1896, ch. 34, sec. 38. provements. 
 
 39 On the granting and recording of such certificate of improvements in Record of cer- 
 respect to a criminal claim situate outside of the Railway Belt, the holder thereof titioate of im- 
 shall be entitled to a Crown grant of such claim without the payment of the P"™'"™*^^^^ 
 five hundred dollars required by sec. 35. And on the granting and recording ^;'*(5*'„^^ ™,^^; 
 of such cei-iifieate of improvements in respect of a mineral claim situate inside 
 the Railway Belt, the holder thereof shall be entitled to a Crown grant of such Railway belt, 
 claim on the payment of five dollars per acre to the Jlining Recorder. 1896, 
 ch. 34, se(\ 39. 
 
 40. The holder of a mineral claim for which a certificate of improvements Application for 
 has been granted and recorded shall make application for a Crown grant to the Crown grant. 
 Gold Commissioner, enclosing his certificate of improvements, the Crown 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 _ 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. 1896, ch. 34, sec. 40. 
 
772 MARTIN'S MINING CASES. [vol. 
 
 Mineral Act, 41. If the holder of a mineral claim, after applying for a certificate of im- 
 
 R.S.B.C., 0.135 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- 
 
 oiltm aft '^Jo'^er, the new holder of the claim shall be entitled to a certificate of improve- 
 
 appUoation for ™®°*® ™ ^^^ °^" name. And if a sale and transfer shall be made to any person 
 
 certificate. °'' 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 transfer 42. When a holder of a mineral claim has taken out his certificate of im- 
 after certificate proyements he shall not record any transfer of his rights in the said claim until 
 grant """^ ^^ obtains his Crown grant. 1896, ch. 34, sec. 42. 
 
 Crown grant 43. The issuance of a Crown grant shall not invalidate any lien which may 
 
 does not in- have attached to any mineral claim previous to the issuance of such Crown 
 validate a Hen. grant. 1896, ch. 34, sec. 43. 
 
 What passes ^ ^ Crown grant of a mineral claim located on any waste lauds of the 
 
 erant^on'waste Crown shall be deemed to transfer and pass the right to all minerals within the 
 
 ^„j 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 mineral claims located on lawfully occupied lands the 
 
 by Crown right whereon to enter, prospect, and mine all minerals (other than coal) has 
 
 grant when all j^gg^^ reserved to the Crown and its lieencees, shall pass to the grantee all 
 
 coa°?h^vebeen minerals within the meaning of this Act (other than coal) found in veins or 
 
 reserved. lodes, or rock in place, and whether such minerals are found separately or in 
 
 combination with each 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, but such Crown grant shall expressly 
 
 reserve the rights of such prior occupant. 
 
 In case of (Where the mineral claim is located on land lawfully occupied under a timber 
 
 timber lease, lease, the Crown grant shall convey the surface and minerals within the mean- 
 ing of this Act (save coal) found in veins or lodes, or rock in place, but shall 
 reserve the timber.) 1896, ch. 34, sec. 45. 
 
 What passes 4(5. Crown grants of mineral claims located on lawfully occupied lands, the 
 
 by Crown right whereon to enter and mine gold and silver has been reserved to the Crown 
 fold and siivpr ^°^ ^*^ licencees, shall pass to the grantee all the gold and silver found in veins, 
 has been re- °'-' 'o'^^^' 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. 
 
 Adverse claim 47. If an adverse claim shall only affect a portion of the ground for which 
 affecting only a certificate of improvements is applied, the applicant may relinquish the por- 
 portion of tion covered by the adverse claim, and still be entitled to a certificate of im- 
 
 claim. provements for the undisputed remainder of his claim, upon complying with the 
 
 requirements of this Act. 1896, ch. 34, sec. 47. 
 
 After judg- 48. When judgment in such case is rendered by the Court, a memorandum of 
 
 ment is given, g^ch 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 Pro- 
 vincial 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. 
 
 Record of title 49- Every conveyance, bill of sale, mortgage, or other document of title 
 
 not real estate, 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, 
 
!•] APPENDIX A.— MINING STATUTES. 773 
 
 always, that the failure to so record any such document shall not invalidate the Mineral Act, 
 same as between the parties thereto, but such documents as to third parties shall R.S.Ii.C.,o.l35 
 
 take effect from the date of record, and not from the date of such document: 
 
 And provided further, that after the issuance of a Crown grant for any mineral After Urown 
 claim it shall not be necessary to register any transfer or other document of Sfan*- 
 title executed subsequent to such Crown grant with the Mining Recorder of the 
 district in which the said claim is situated ; but all documents relating to the 
 same may thereafter be registered in the same maimer as are other documents 
 of title relating to the transfer of real estate, and all the provisions of the 
 " Land Registry Act," and any amendments thereto, shall apply to such regis- " Land Regis- 
 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 A„g„t 
 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 
 
 " Gold Mining Amendment Act, 1873," shall be in writing, signed by the trans- undur "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 (Jlaim of miner 
 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, a.nd after death 
 sec. 52. 
 
 53. No free miner shall suffer from any acts of omission, or commission, or Faults of 
 delays on the part of any Government official, if such can be proven. 1896, ch. Government 
 34, sec. 53. . officials. 
 
 Mill Sites. ' 
 
 54. A free miner may locate any unoccupied and unreserved Crown land not Location of 
 known to contain mineral, and not exceeding five acres, as a mill site. No free mill sites. 
 miner shall be entitled to obtain and hold under this section more than one mill 
 
 site for each mineral claim lawfully held by him. Such mill site shall be as 
 nearly as possible in the form of a square. On locating a mill site, the free 
 miner shall comply with the following requirements : — 
 
 (a) Mark out the land by placing a legal post at each corner; 
 
 (B) Post a notice on each post, stating — 
 
 1. The name of such free miner ; 
 
 2. The number of his free miner's certificate ; 
 
 3. His intention, at the expiration of sixty days from the date of the 
 notice, to apply for the land as a mill site ; 
 
 4., The date of the notice ; 
 (c) Post a copy of such notice on the office of the Mining Recorder. 1896, 
 ch. 34, sec. 54. / 
 
 55. On the expiration of sixty days after the fulfilment of the above require- Recorder may 
 ments, 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 
 
774 
 
 MAKTIN'S MIXING CASES. 
 
 [VOL. 
 
 Mineral Act, the said land, which lease shall be executed by the Gold Oomtoissioner. If, dur- 
 R.S.B.C.,c.l35 ing the continuance of such lease, such free miner shall prove 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 
 Crown grant, liuudred dollars, he shall be entitled to a Crown grant of such mill site upon 
 payment of five dollars per acre for such land. Any free miner now having a 
 Price. 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 tor 
 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 entitled to a 
 Crown grant of such mill site. 1896, ch. 34, sec. 65. 
 
 Application 
 for Crown 
 grant of mill 
 site. 
 
 56. 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: — 
 (o) 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 or constructed on the 
 mill site to the value of at least five hvindred dollars ; 
 
 (e) Application for the Crown grant. 1896, ch. 34, sec. 5G. 
 
 What passes ^^- Crown grants of mill sites shall pass to the grantee all the surface of the 
 
 by Crown land in the said Crown grant mentioned, but all such Crown grants shall ex- 
 
 grant of mill pressly reserve all minerals under the said land, and the right to the Crown 
 site. and its licencees to enter and mine the said minerals, and may be in the following 
 
 form : — 
 
 [L.S.] 
 
 (Royal Arms.) 
 
 Beitish Columbia, i 
 Province of i 
 No. 
 
 Victoria, by the Grace of God, of the United Kingdom of Great Britain and 
 ^o™!- Ireland, Queen. Defender of the Faith, and so forth. To all and 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 oflScial 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 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 convenient occupa- 
 tion 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 
 
I J APPENDIX A.— MINING STATUTES. 775 
 
 any minerals, within tlie meaning of this Act, which may be thereupon or there- Mineral Act, 
 under situate, and to use and enjoy any and every part of the same land, and R.S.B.C.,c.l35 
 of the easements and privileges thereto belonging, for the purpose of such rais- - — 
 
 ing 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 under any 
 parts of the hereditaments hereby granted, as may be reasonably required for 
 mining or agricultural purposes in the vicinity of the said hereditaments, 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 
 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 construction, maintenance, or repair of any roads, ferries, bridges, or other 
 public works. 
 
 In testimony whereof We have caused these Our Letters to be made Patent, 
 and the Greal Seal of Our Province of British Columbia to be hereunto 
 aflBxed : 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. 1896, ch. 34, s. 57. 
 
 Tunnels and Drains. 
 
 58. Any free miner, being the holder of a mineral claim or mine held as real Licence to run 
 estate, may at the discretion of the Gold Commissioner, obtain a licence to run tunnels and 
 
 a drain or tunnel, for drainage or any other purpose connected with the develop- drains, 
 ment or working of such claim or mine, 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. 1896, ch. 34, 
 sec. 58. 
 
 Pakt III. 
 
 Mining Partnerships. 
 
 59. All mining partnerships shall be governed. by the provisions hereof, unless Mining 
 they shall have other and written articles of partnership. 1896, ch. 34, sec. SO. partnerships ; 
 
 application. 
 
 60. A mining partnership shall, unless otherwise agreed upon, be deemed to Partnership to 
 be a yearly partnership, renewable from year to year by tacit consent. 1896, be annual. 
 
 ch. 34, sec. 81. 
 
 61. The business of the partnership shall be mining and such other matters gcope of 
 
 as pertain solely thereto. 1896, ch. 34, sec. 82. partnership. 
 
 62 Mining partnerships can locate and record in the partnership name a ^^^^.^ ^f 
 mineral claim for each partner, but the name of every partner, and the number fining 
 of every partner's free miner's certificate shall be on the record of every such partnerships, 
 claim The partnership name must appear on every such record, and all the 
 claims so taken up shall be the property of the partnership : Provided, always, 
 that no free miner who is the member of a mining partnership, holding by right 
 of location a mineral claim, shall be entitled to hold by right of location In his 
 
776 MARTIN'S MINING CASES. [vol. 
 
 Mineral Act, own name or in the name of any other partnership any interest in any other 
 R.S B.C., 0.135 mineral claim on the same vein or lode on which the partnership claim is 
 situate. 1896, ch. 34, sec. 83. 
 
 One partner 63_ 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- 
 
 certifica'te"^' ^ P 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 
 
 raid, 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 pai:tnership 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 
 
 raake assess- matter to work the partnership claim, the number of men to be employed, and 
 ments . the extent and manner of levying the assessndents 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 partner- 
 ship 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 man- 
 ager before it, and upon hearing the facts make such order as it shall deem just. 
 1896, ch. 34, sec. 86. 
 
 . 66. All assessments shall be payable within thirty days after being made, 
 
 to be paid iggg 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 
 assessment by HaWe therefor to the partnership, and his interest in the partnership property 
 partner. ^^^^^ jjg g^j^ j^y ^^^ 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 insufScient 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 
 poste4 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 pujjlished 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 diyision in which the property to be sold is situate, or some one 
 appointed by him, may act as auctioneer. 1896, ch. 34, sec. 88. 
 
 Effect of notice 68. 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, 
 ™®"'' such member shall not be liable for any debts or other libailities of the partner- 
 
 ship incurred after service and record of such notice, and no member shall be 
 
!•] APPENDIX A.— MINING STATUTES. 777 
 
 deemed to have abandoned an interest until service and record of such notice. Mineral Act 
 1896, ch. 34, sec. 89. K.S.B.C.,c.l35 
 
 69. Upon the abandonment of any share in a mining partnership, the title Title to aban- 
 to the abandoned share shall vest in the continuing partners, pro rata, accord- doned share 
 ing to their former interests. 1896, ch. 34, sec. 90. ^.*'''? '" <"'"" 
 
 tinuinff 
 
 70. Any partner shall be entitled to sell, or contract for the sale of, his P*"''"'"'^- 
 interest In the partnership property, but such interest shall continue liable for fltf^fL'TiLf 
 all the debts of the partnership. 1896, 'ch. 34, sec. 91. sen his interest 
 
 71. No partner shall, after a bill of sale conveying his interest has been After sale, 
 recorded, be liable for any indebtedness of the partnership incurred thereafter, partner not 
 1,896, ch. 34, sec. 92. liable for debts 
 
 of partnership. 
 
 Limited Liability. 
 
 72. Any mining partnership composed of two or more free miners may limit Limited lia- 
 the liability of its members, upon complying with the requirements following, bility. 
 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." 1896, ch. 34, 
 sec. 93. 
 
 73. The words " Limited Liability " shall thereupon become part of the part- Addition of 
 nership name. 1896, ch. 34, sec. 94. limittd liabil- 
 ity to com- 
 
 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 a ccounts to be 
 liabilities, together with the names of the partners, and the interest held by jjepj 
 
 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, sec. 96. 
 
 76. Every partner in such partnership shall be at liberty so sell or dispose Partner may 
 of his interest therein, or of any part thereof, to any other free miner. 1896, sell. 
 
 ch. 34, see. 97. 
 
 77. No member of such partnership, after a bill of sale conveying his in- After sale, 
 terest has been duly recorded, or after he has served a notice of abandonment partner not 
 of his interest on the foreman, and left a copy thereof with the Mining Re- liable for 
 corder shall be liable for any indebtedness of the partnership incurred there- debts of part- 
 after. 1896, ch. 34, sec. 98. nership. 
 
 78. No such partnership shall declare any dividend until all its liabilities Dividends, 
 have been paid. 1896, ch. 34, sec. 99. 
 
 79. Every such partnership shall appoint a foreman or manager, who shall Appointment 
 represent the partnership, who shall sue and be sued in the name of the partner- of foreman, 
 ship, and his contracts in relation to the business of the partnership shall be 
 
 deemed to be the contracts of the partnership. 1896, ch. 34, sec. 100. 
 
 80. No such partnership shall be liable for any other indebtedness than that To what 
 contracted by its foreman or manager, or by its agent duly authorized in partnership is 
 writing. 1896, ch. 34, sec. 101. ''able. 
 
778 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Mineral Act, 81. Should any such partnership fail to comply with any of the provisions 
 E.S.B.C.,o.l3.T 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- 
 
 J< allure to nership. 1896, ch. 34, sec. 102. 
 ■comply with ' ' 
 
 provisions . 
 
 Pabt IV. 
 
 Mining Recorders — Appointment, Duties, Potvers. 
 
 Appointment 
 of Mining 
 Recorder . 
 Election of 
 Recorder by 
 miners . 
 
 Recorder to 
 issue certifi- 
 cates. 
 
 82. The Lieutenant-Governor in Council may appoint any person to be a 
 Mining Recorder in and for any part of the Province. 1896, ch. 34, sec. 103. 
 
 83. Where mineral land is discovered in a part of the Province so situate 
 that the provisions of this Act as to free miners' 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 vote, to appoint one 
 of their number to issue free miners' certificates and to enter records. of min- 
 ing 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 kccordanee 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 Commissioiler or Mining Recorder as 
 soon thereafter as practicable. 1896, ch. 34, sec. 104. 
 
 84. Every Mining Recorder shall issue free miners' certificates and " substi- 
 tuted certificates " to all persons and companies entitled thereto. 1896, ch. 34, 
 see. 105. 
 
 Book of forms. 85. Such free miners' certificates shall be taken from a printed book of 
 counterfoils, forms, with duplicate counterfoils, one of which counterfoils shall be filed in the 
 «*o- office of the Mining Recorder. 1896, ch. 34, sec. 106. 
 
 Books to be 
 kept by Min- 
 ing Recorder. 
 
 Issue of certi- 
 ficate. 
 
 86. Every Mining Recorder shall keep the following books :■ — 
 (o) 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 AflBdavlts ;" 
 
 (d) A book to be known as the " Record of Conveyances ;'' 
 
 (e) A book to be known as the " Record of Free Miners' Certificates." 
 
 1896, ch. 34, sec. 107. 
 
 87. Upon receipt of an aflBdavit setting forth a detailed statement of work, 
 as required by see. 24, the Mining Recorder shall issue a certificate of work in 
 the Form E in the Schedule to this Act. 1896, ch. 34, sec. 108. 
 
 Filing and 88. Upon issuing such certificate of work, the Mining Recorder shall file 
 
 record of such affidavit in the Record of Affidavits, and also record such certificate of 
 
 affidavit and ^^^.y^ j^ tj^g Record Book, 1896, ch. 34, sec. 109. 
 certificate . 
 
 Record of- 
 certificate of 
 ■ improvements. 
 
 What 
 Reonrder 
 
 must recoixl. 
 
 89. Upon receiving a certificate of improvements, the Mining Recorder shall 
 record the same voriatim in the Record Book. 1896, ch. 34, sec. 110. 
 
 90. The Mining Recorder shall record all extensions of time, licences, per- 
 mits, and other privileges granted by the Gold Commissioner or Mining Re- 
 corder, and all forfeitures declared by the Gold Commissioner, and a memo- 
 randum of every judgment affecting a mineral claim or other mining property, 
 in the Record Book. 1897, ch. 28, sec. 9. 
 
I J APPENDIX A.— MINING STATUTES. 779 
 
 91. Upon any Mining Recorder issuing a free miner's certificate, or upon Mineral Act, 
 any free miner applying to record any mineral claim, bill of sale, or other R.S.B.C.,o.l35 
 instrument, tlie Mining Recorder shall enter in the free miners' certificate book — — 
 
 the particulars of such free miner's certificate, giving number of certificate, Certain parti- 
 date, place of issue, and to whom Issued. 1896, ch. 34, sec. 112. culars to be 
 If entered m free 
 
 92. Upon the receipt of a notice of abandonment, the Mining Recorder shall fioatTbcmk" 
 I'ecord the same in the Record of Abandonments, and file such notice, and write tj^ j , ' 
 across the record of the claim afCected by such notice, in the Record Book, abandon- 
 the word " Abandoned," and the date of the receipt by him of the notice. If ments. 
 only an interest in ? mineral claim is abandoned, and not the entire claim, the 
 memorandum iu the record shall shew which interest is abandoned. 1896, ch. 
 
 34, sec. 113. 
 
 93. Tlie Jlining Recorder shall record, by copying out verbatim all affidavits How records 
 and declaratory statements required to be recorded iu connection with his are to be made 
 office, in the Record of Affidavits. 1896, ch. 34, sec. 114. 
 
 94. The Mining Recorder shall record, by copying out verbatim in the Record How records 
 of Conveyances, all conveyances, mortgages, bills of sale, contracts for sale, and are to be made 
 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 tliat purpose. 1896, ch. 34, sec 115. 
 
 95. The Jlining Recorder shall record in the Record Book all other doeu- Record of 
 meuts relating to mining property which may be brought to him for record, and documents, 
 shall file all such documents which may be brought to him to be filed. 1896, 
 
 ch. 34, sec. 116. 
 
 96. Every entry made in any of the above books shall shew the date on pate of entry, 
 which such entry was made. 1896, ch. 34, sec. 117. 
 
 07. All books of record and documents filed shall, during office hours, be open Book to be 
 to public inspection free of charge. 1896, ch. 34, sec. 118. open for in- 
 
 spection. 
 
 98. Every copy of, or extract from, any entry in any of the said books, or Office copy to 
 of any document filed in the Mining Recorder's office, certified to be a true be evidence, 
 copy or extract by the Mining Recorder, shall be received in any Court as evi- 
 dence of the matters therein contained. 1896, ch. 34, sec. 119. 
 
 99. Upon receipt from the holder of a certificate of improvements of an Duty of Gold 
 application for a Crown grant in the proper form, and all moneys payable in Commissioner 
 respect of the claim for which a Crown grant is applied, the Gold Commissioner on receiving 
 shall send such moneys, together with the undermentioned papers, to the Chief application for 
 Commissioner of Lands and Works :— ^™''" S™""^- 
 
 (1) The certificate of improvements; 
 
 (2) Affidavit of tlie holder of the mineral claim, or his agent — Form G; 
 
 (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 I. 1896, ch. 34, sec. 120. 
 
 100 Upon receipt from the lessee of a mill site of all the moneys and docu- Duties with 
 meuts mentioned in sec. 56, the Mining Recorder shall send the same to the reference to 
 Gold Commissioner. 1896, ch. 34, sec. 121. "»" ="^^- 
 
 101 Before issuing any free miner's certificate, or substituted certificate, or Recorder to 
 certificate of work, or making any entry in any book of record, or filing any collect fees, 
 document, or making any copy or extract therefrom, the Mining Recorder shall 
 
 collect the fees payable in respect thereof. 1896, ch. 34, sec. 122. 
 
780 MARTIN'S MINING OASES. [vol. 
 
 Mineral Act, . Mining Divisions. 
 
 %.S,B.G.,c.Vi5 
 
 ^. . 102. It shall be lawful for the Lieutenant-Governor in Council to divide' 
 
 ^"?'Pff and subdivide any district into mining divisions, and to establish in each min- 
 
 aivisiona. j^g division a Mining Recorder's office. 1896, ch. 34, sec. 123. 
 
 Effect of 103. Upon the establishment of a mining division, and the opening of a Min- 
 
 establishment ing Recorder's office therein, under the authority of the last preceding section — ■ 
 of Recorder's 
 
 office in min- i"') Such office, and none other, shall be the proper office for recording all 
 
 ing district. 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 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. 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, ch. 28, sec. 10. 
 
 Gold Com- 104. When there shall be no Mining Recorder for a district or division, the 
 
 missioner has duties of the Mining Recorder shall devolve upon the Gold Commissioner, and it 
 all powers of gjiall at all times be lawful for the Gold Commissioner to perform the duties 
 Recorder °^ ^^^ Mining Recorder, and the Gold Commissioner shall have all the powers 
 
 of a Mining Recorder. . 1896, ch. 34, sec. 125. 
 
 Office 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. 
 
 Pabt V. 
 Gold Commissioners' Appointment and Ministerial Powers. 
 
 Gold Com- 106. The Lieutenant-Governor in Council may from time to time appoint 
 
 missioners to g^^-^ persons as he shall think proper to be respectively Chief Gold Oommis- 
 bv tSe Lfeut - ^ioner and Gold Commissioners, either for the whole Province or for any par- 
 Governor, ticular districts therein, and from time to time in like manner fix and vary the- 
 limits of and subdivide such districts, and make and revoke all such appoint- 
 ments. C. A. 1888, ch. 82, sec. 4. 
 
 Tunnels and Drams. 
 
 Commissioner 107. It shall be lawful for, and not incumbent upon, the Gold Commissioner 
 
 may grant to grant a licence to any free miner, being the lawful holder of a mineral claim 
 
 licences for or mine held as real estate, to run a drain or tunnel, for any purpose connected 
 
 tunnels. viith the development or working of such claim or mine, through any occupied 
 
^•J APPENDIX A.— MINING STATUTES. 
 
 781 
 
 or unoccupied lands, whether mineral or otherwise, upon security being deposited Mineral Act 
 or given to him, to his satisfaction, for any damage that may be done thereby, R S B C cl35 
 and upon such other terms as he shall think fit. 1896, ch. 34, sec. 127. ■' ' 
 
 Working of Mines or Claims, and other Powers. 
 
 108. The Gold Commissioner may, in his discretion, permit a free miner to Rb location of 
 re-locate a mineral claim, or any part thereof, which may have been abandoned claim 
 
 cr forfeited by such free miner : Provided that such re-locations shall not pre- 
 judice or interfere with the rights or interests of others. 1896, ch. 34, sec. 135. 
 
 109. The Gold Commissiober may mark out a space of ground for deposits Marking out 
 of leavings and deads from any tunnel, claim, or mining ground, upon such terms space for 
 
 as he may think just. 1896, ch. 34, sec. 136. deposits. 
 
 110. The Gold Commissioner shall have the power to summarily order any Commissioner 
 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 ^''*'' 1873." 
 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 ^'''^■ 
 
 to that effect. 1896, ch. 34, sec. 140. 
 
 114. Upon receipt from the Mining Recorder of the moneys and documents Recorder to 
 mentioned or referred to in sec. 100, the Gold Commissioner shall satisfy himself forward docu- 
 that the same are in order, and then forward the same to the Chief Commis- ments, etc., to 
 sioner of Lands and Works. 1896, eh. 34, sec. 141. and Works"*^^ 
 
 115. The Gold Commissioner shall have power to do all things necessary or Power to carry 
 expedient for the carrying out of the provisions of this Act. 1896, ch. 34, out Act. 
 
 sec. 142. 
 
 Administration. 
 
 116. The Gold Commissioner, or any person authorised by him, shall take Commissioner 
 charge of all tlje property, within the district of such Commissioner, of any to administer 
 deceased free miner until the issue of letters of administration or probate of estate of intes- 
 the will, if any, and may cause any mineral claims held or owned to be duly '*!* deceased 
 represented or dispense therewith at his option : Provided, however, that where '""^er. 
 
 any free miner shall die intestate, and the value of the personal estate of such 
 
782 MARTIN'S MINING OASES. [vol. 
 
 Mineral Act, deceased free miner is less than three hundred dollars, it shall not be necessary 
 R.S.B.C.,c,135for the Gold Commissioner to obtain from any Court letters of administration, 
 but in such case the Gold Commissioner may administer and wind up the per- 
 sonal 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. 
 
 Application of ("■) The Gold Commissioner or person authorized by him as aforesaid shall 
 
 " OiEoial Ad- be governed by the provisions of the " Official Administrators Act," and 
 
 ministrators any Rules and Regulations thereunder. 189t, ch. 28, sec. 20. 
 Act." 
 
 Part VI. 
 
 County Courts. 
 
 Jurisdiction, Procedure, Forms, and Oasts. 
 
 Jurisdiction of 117. 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 ehall 
 in niinmg ^ave and exercise, within the limits of its district, all the jurisdiction and 
 matters. powers of a Court of Law and Equity — 
 
 (1) In all personal actions, where the debt or damages claimed arise di- 
 rectly 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 min- 
 ing) ; 
 
 (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 con- 
 sumption 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, min- 
 ing, 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 pro- 
 perty, or from lands entered, or claimed to have been entered, in search- 
 ing for, mining, or working minerals (other than coal), or for any pur- 
 pose 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 re- 
 lating 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 min- 
 eral claim, mine, or other mining property ; 
 
 (8) In all suits for the dissolution or winding up of any mining partner- 
 ship, whether registered or not, under the provisions of this Act ; 
 
^•J APPENDIX A.— MINING STATUTES. 733 
 
 (9) In all suits relative to water rights claimed under this Act, or any other Mineral Act 
 Act relating to mining (other than coal mining) ; R.S.B.C.,c.l35 
 
 (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 jur- 
 isdiction is given to the County Court by this Act ; 
 
 (11) Provided, always, that at any time during the progress of any action, „ 
 
 suit or matter relating to or concerning any of the classes of subjects in ^ranster to 
 this section before referred to and enumerated, any of the parties to ^"P''^™^ oourt 
 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 direct- 
 ing 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 pro- 
 ceedings in respect of such action, suit or matter, shall be had and de- 
 termined 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. 
 1896, ch. 34, see. 144. 
 
 118. The jurisdiction given to County Courts by this Act shall be known. " jiininj? 
 
 as the "mining jurisdiction" of the County Court, and the words "mining jurisdiction." 
 jurisdiction " shall be written or printed on all summonses, writs and other 
 process, and all other documents in every action or cause brought under the 
 mining jurisdiction of the County Court. 1896, ch. 34, sec. 145. 
 
 119. County Courts and County Court Judges, Registrars, Sheriffs, and other power» of 
 officers, shall have the same duties, powers, privileges, and authorities in all County Courts 
 actions and suits, and other proceedings brought under the mining jurisdiction of and officers. 
 the County Court, as they now have, or at any time hereafter may have, in actions 
 
 and suits and other proceedings brought under the ordinary jurisdiction of the 
 County Court, and the provisions of all Acts for the time being in force regu- 
 lating the duties and powers of County Courts and County Court Judges, 
 Registrars, Sheriffs, and other officers, and regulating the practice and procedure 
 in County Courts, and all Rules and Orders for the time being applicable to the 
 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. 
 1896, ch. 34, sec. 146. 
 
 120. Where disputes arise concerning mining property, portions whereof are Adjoining^ 
 situated in adjoining or different districts, the County Court of either of such districts. 
 districts before which the dispute is first brought shall determine it. 1896, ch. 
 
 34, sec. 147. 
 
 121. The hearing of any summons, plaint, or other process in any County Summonses- 
 Court 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 lortnwitii. 
 to make summonses or other proceedings returnable forthwith, or at any other 
 
 time. 1896, ch. 34, sec. 148. 
 
 122. In all mining actions or suits the Court may decide the Question at issue Court may 
 upon the ground in dispute, and such decision shall be entered as in ordinary decide on the 
 cases, and have the same virtue and effect as if rendered in Court. 1896, eh. ground. 
 
 34, sec. 149. 
 
784 
 
 MARTIN'S MINING OASES. 
 
 [VOL. 
 
 Mineral Act, 123. In any mining cause or suit, either party may require that the issues 
 R.S.B.C., 0.135 of fact shall be tried by a jury, and the Judge may, before delivering judgment 
 in any action, suit, or other proceeding, direct all or any issues of fact to be 
 found by a jury. 1896, ch. 34, sec. 150. 
 
 Issues of fact 
 may be found 
 by a jury. 
 ■Costs. 
 
 124. 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 con- 
 sider 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. 1896, ch. 34, sec. 151. 
 
 ■County Court 125. 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 or under this Act, and notwithstanding any law to the contrary, have the same 
 in oertam 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 
 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 
 .ad responden- the issuing of writs of capias ad respondendum, ne exeat regno, and special 
 dum, ne exeat orders for the arrest and detention of a judgment debtor, in all cases in which 
 regno and jjy jj^.^ j^g jjj^g jurisdiction over the subject-matter of the suit, but under and 
 
 for aTrest ^"^^ subject to such conditions as a Judge of the Supreme Court might usually re- 
 quire in applications of a similar nature. 1896, ch. 34, sec. 153. 
 
 When survey 
 to be counted 
 as worlj done 
 on claim. 
 
 Pabt VII. 
 
 Fenal and Miscellaneous. 
 
 127. The owner of a mineral claim who has had his claim surveyed within 
 one year from the date of the record of the claim, or if the claim was recorded 
 before the passing of this Act, then if surveyed within one year from the pass- 
 ing 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 128. 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 
 face rights on surface rights of such mineral claim on payment to the Government of British 
 waste land. 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. 
 
 When lode 
 crosses valley, 
 p«rmit to 
 search. 
 
 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 s-vrorn 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 
 
I] APPENDIX A.— MINING STATUTES. ,, 785 
 
 less than one hundred dollars in such search. During the existence of such Mineral Act, 
 permit the ground covered by the same shall not be open to record by any other R.S.B.C.,c.l35 
 
 miner. The fee for such permit, and each renewal of the same, shall be the 
 
 same as the fee for a record. 1897, ch. 28, sec. 13. 
 
 130. No free miner shall be entitled to any interest in any mineral claim Agreements to 
 which has been located and recorded by any other free miner unless such be evidenced 
 interest is specified and set forth in some writing signed by the party so locating by writing, 
 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 claimant, 
 the holder thereof has not complied with the provisions of the Act under which 
 
 the location and record were made, or has not pcioi 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 Repeal of Acts 
 the saving clauses of any such repealing Acts, all such repealing Acts shall be deemed to have 
 deemed to have contained provisions declaring the holders of records of mineral clauses saving 
 claims entitled to apply for Crown grants thereof under the provisions of the ri?°' oj 
 
 law in force at the time of such applications, and that the procedure upon any h^J^ers to "" 
 such applications shall be that prescribed by the statutes in force at the time obtain Orown 
 of such applications, the grants thereafter vesting in the holders such rights aa grants, 
 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 impair 
 or in any way restrict the rights and privileges conferred on owners of mineral 
 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 •I®'' f? 
 holder thereof observed either the procedure prescribed by the statutes in force '^^"^'^• 
 
 at the time of the record of such mineral claims, or the prooeaure prescribed by 
 the statutes in force at the time of the applications for Crown grants thereof. 
 1897, ch. 28, sec. 17. 
 
 134. Nothing herein contained or enacted shall affect any litigation pending J^g^'^^f ^'''^*" 
 at the time of the passage of this Act. 1897, ch. 28, sec. 18. affected. 
 
 135. Sections 5, 6, 13, 19, 20, 22, 27, 28, and 29 of the " Mineral Act," being ?Jf„*'' .^^:_„ 
 ch. 82 of the " Consolidated Acts, 1888," are hereby repealed. 1897, ch. 28, cl!^i888'°e 
 sec. 21. 82. 
 
 136 Any person wilfully acting in contravention of this Act, or refusing to Penalty for 
 obey any lawful order' of the Gold Commissioner or of any Judge presiding in ^HX^" 
 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. 1896, ch. 34, sec. 154. 
 
 137. All fines and penalties imposed or payable under this Act may be re- ^^^''j?^^ ° 
 covered by distress and sale of any mining or other personal property of the 
 
 50 
 
 M . M . C . 
 
786 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Mineral Act, offender ; and in default of suflBcient distress by imprisonment, with or without 
 Il.S.B.C.,0.135 hard labour, not exceeding three months. 1896, ch. 34, sec. 155. 
 
 Fines, etc., to 
 be paid into 
 Consolidated 
 Revenue . 
 Saying rights 
 existing before 
 the passing of 
 this Act. 
 
 138. All fines, fees, and penalties collected under this Act shall be paid into- 
 the Consolidated Revenue Fund of British Columbia. 1896, ch. 34, sec. 156. 
 
 139. 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,^ 
 Her heirs and successors, and to the public rights of way and water. 1896, 
 ch. 34, sec. 157. 
 
 Copies of Act. 140. Every free miner, on application to the Mining Recorder of the district, 
 shall be entitled to a printed copy of this Act on payment of the sum of twenty- 
 five cents. 1896, ch. 34, see. 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, Notai^y Public, or Commissioner for taking affidavits. 1896, ch. 34, 
 
 sec. 159. 
 
 Minister of 
 Mines and 
 Provincial In- 
 spector or 
 Mineralogist 
 may examine 
 any mineral 
 claim. 
 
 Lieut. -Gover- 
 nor may make 
 rules, etc. 
 
 To relieve 
 against forfei- 
 tures under 3.9. 
 
 Publication. 
 
 142. The Minister of Mines and the Provincial Inspector or Mineralogist 
 shall have the right to enter into or upon and examine any mineral claim or 
 mine within the meaning of this Act. 1896, ch. 34, sec. 160. 
 
 Rules and Regulations. 
 
 143. 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 regula- 
 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 British 
 Columbia Gazette ; and such orders or regulations shall be laid before the Legis- 
 lative Assembly within the first fifteen days of the Session next after the date 
 thereof. 1896, ch. 34, sec, 161. 
 
 Taxation of Mines and Moneys Invested Therein. 
 
 mines and ^^- Notwithstanding anything contained in this Act, mines and moneys 
 
 moneys invest- invested therein shall not be exempt from taxation, but shall bear such rate as 
 ed therein. may be imposed by any law in the Province. 1896, ch. 34, sec. 162. 
 
 Annual tax of 5^45 There shall be levied and collected from the owner or occupier of every 
 aoreTt h''^'^ mineral or placer claim of which a Crown grant has issued, including Crown 
 levied°on\verv grants issued uBder authority of an Act made and pa'ssed in the 36th year of 
 claim held Her Majesty's reign, intituled " An Act to amend the ' Gold Mining Ordinance, 
 under Crown 1867,' and the 'Gold Mining Amendment Act, 1872,' " an annual'tax of" twenty- 
 grant, 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- 
 
r-1 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.,c.l35 
 
 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- 
 sioner may in his discretion cause the claim upon which the tax is charged to indefault of 
 be offered for sale by public auction, of which sixty days' notice shall be posted payment,claim 
 upon the principal Court House of the district in which the claim is situate, and may be sold. 
 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 expenses of advertising ji nurrhasB 
 and the payment of the tax, and any surplus shall be paid into the Treasury in moneyappliS 
 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 and Collector may, before Owner m h 
 offering the claim for sale, sue the owner or occupier for the tax, in a sum- gyg^j f^j. ^^^ 
 mary 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 goods and chattels of the person against whom the 
 tax may be recovered : Provided, that if the owner of any such mineral or Proviso for 
 placer claim shall establish, to the satisfaction of the Gold Commissioner, Mining remission of 
 Recorder, or Assessor and Collector of the district in which the claim lies, that tax on $200 
 the sum of two hundred dollars has been expended thereon in labour or improve- havinpr been 
 ments in any one year, then the tax shall not be levied in respect of such claim expended on 
 for such year. 1896, ch. 34, sec. 163. '■-'^™"'- 
 
 146. Where a claim has been recorded under any name, and the owner or change of 
 his agent is desirous of changing the same the Reedrder 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, how- 
 ever, that such change of name shall not in any way affect or prejudice any 
 proceedings or execution against the owner of the said claim. 1896, ch. 34, 
 sec. 164. 
 
 147. Whenever through the acts or defaults of any person other than the ^^^here evi- 
 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 throngh faults 
 power to make all necessary inquiries, directions and references in the premises, oi 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. 
 
 Part VIII. 
 Repealing 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 (18911 Amendment Act, 1892,'' 1891, c. 25; 
 the" Mineral Act (1891) Amendment Act, 1893," the "Mineral Act Amendment 1892, c, 32, 
 Act, 1894," and the " Mineral Act Amendment Act, 189o," are hereby repealed. ^™^' «■ |».| 
 1896, ch. 34, sec 166. 1895^ c. 39; 
 
788 
 
 Mineral Act, 
 B..rf.B.C.,c.l35 
 
 Schedules. 
 
 Form A. 
 
 Form B. 
 
 Form (J. 
 
 MARTIN'S MINING CASES. 
 SCHEDULES. 
 
 Form A. 
 Location Notice. 
 
 [VOL. 
 
 Mineral 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 
 
 Take care to number the posts 1, 2, 
 making the initial post 1, 
 
 1897, ch. 28, sec. 23. 
 
 , 189 
 
 Form B. 
 
 Record of Mineral Claim. 
 
 No. of Certificate. 
 Located by — 
 
 f Set out the name of claim and numier \ 
 of receipt form of payment of 
 the record fee of each locator, and l 
 the No. of each locator's free miner's 
 certificate opposite such name. I 
 
 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 
 
 Mineral Claim. 
 
 189 
 
 189 
 
 Mining Recorder. 
 
 '[If the stakes are not on the location line, comply with sec. 18.] 
 
 1897, ch. 28, sec. 23. 
 
 Form C. 
 
 Record of Partnership Mineral Claim. 
 
 Mineral Claim. 
 Located in the partnership name of 
 
 The members of the partnership, and the Nos. of their respective free miner's 
 ■certificates are — 
 
 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 . 
 
 Mining Recorder. 
 
 [If the stakes are not on the location line, comply with sec. 18.] 
 
 1896, ch. 34, Form C. 
 
I'' APPENDIX A.— MINING STATUTES. 789 
 
 Mineral Act, 
 Form D. R.S.B.C.,o.135 
 
 AppUoation for CerHficate of Work. FnrmD. 
 
 Affidavit, 
 
 I. , of , in the District of , 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 , to the value 
 
 of at least one hundred dollars,. since the day of , 189 . 
 The following is a detailed statement of such work : — 
 
 ISet out full particulars of the work done in the twelve months in which 
 such work is required to 6e done 6j/ sec. 24. ] 
 
 Sworn, &c. 
 
 IThis affidavit may 6e made by an agent, and can 6e altered to suit circum- 
 stances.'] 1896, ch. 34, Form D. 
 
 Form E. ^ 
 
 Form E. 
 
 V Certificate of Work. 
 
 {Name of claim) Mineral Claim. 
 
 This is to certify that an affidavit setting out a detailed statement of the 
 work done on the above claim since the day of 189 , 
 
 made by , has this day been- filed in my office, and in pursuance 
 
 of the provisions of the Act in that behalf, I do now issue this certificate of 
 work in respect of the above, claim to 
 
 Dated 
 
 Oold Commissioner or Mining Eecordcr. 
 1896, ch. 34, Form B. 
 
 Form F. 
 
 Form F. 
 
 Certificate of Improvements. 
 
 Notice. 
 
 Mineral Claim. 
 
 Situate in the Mining Division of 
 
 District. 
 
 Where located 
 
 Take notice that I , fi'ee 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 section 87, must be commenced 
 before the issuance of such certificate of improvements. - 
 
 Dated this day of ,180 . 
 
 1896, ch. 34, Form F. 
 
790 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Mineral Act, 
 R.S.B.C.,c.l35 
 
 Form G. ■ 
 
 Form G. 
 
 Application for Certificate of Improvemen'is. 
 
 Applicant's Affidavit. 
 
 of 
 
 , in the District of 
 
 make 
 
 oath and say :- 
 1. I, 
 
 , the recorded holder, and am in undisputed possession of 
 Mineral Claim, situated at , in the District 
 
 the 
 
 (or Division) 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* parti- 
 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 appear- 
 ed on the day of ' 189 , and was continuously pub- 
 lished 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 pub- 
 lication of the said notice in the British Columbia Gazette. 
 
 at , this 
 
 Sworn and subscribed to 
 
 of , 189 , before me 
 
 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 
 can be altered to suit circumstances. 
 
 1896, ch. 34, Form G., & 1898, ch. 33, sec. 13. 
 
 FormH. 
 
 FOEM H. 
 
 Certificate of Improvements. 
 
 Mineral Claim. 
 
 This is to certify that , of , in the District of 
 
 , free miner's certificate No. , has proved to my satisfaction 
 
 that he has complied with all the provisions of the " Mineral Act " to entitle 
 
 him to ai certificate of ifliprovements in respect of the Mineral 
 
I-] APPENDIX A.— MINING STATUTES. 79I 
 
 ■Claim, situate at , in the District of ; and in pur- Mineral Ac* 
 
 euance of the provisions of the said Act, t do now issue this certificate of imrR.S.B.C.,o.ld5 
 provements in respect of the above claim, to — - 
 
 Daeed 
 
 Gold Commissioner. 
 
 This certificate will become void unless a Crown grant is applied for within 
 three months from its date. 
 
 IForm may be altered to suit circumstances.} 
 
 1896, ch. 34, Form H. 
 
 ^OKM I. Form I. 
 
 Mining Recorder's. Certificate. 
 
 Mining Division. 
 District. 
 
 Mineral Claim. 
 Date located. Date recorded, 
 
 2'0 I ■ ■ ' I I 1 -=ri*-m| 
 
 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 thfe 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. 
 
 Form J. 
 
 MUl mte. 
 Notice. 
 
 T^ke notice that I, , of in the District 
 
 of , free miner's certificate No. , intend, sixty days from 
 
 the date hereof, to apply for acres of land for a mill site, situate 
 
 at , in the district of , as a mill site. 
 
 Dated 1896, ch. 34, Form J. 
 
 Form J. 
 
 Poem K. „ „ 
 
 Form K. 
 
 Mill Site. 
 Affidavit of Applicant Prior 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 site, by placing a 
 legal post at each corner. 
 
792 
 
 MARTIN'S MINING CASES. 
 
 [toil 
 
 Mineral Act, 2. I have posted a notice on each such post, and -on the Mining Recorder's 
 R.S.B,C.,c.]35 OfiSce 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. 
 
 Form L. 
 
 FOKM L. 
 
 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 
 " Mineral Act," he, the said lessor, doth hereby demise unto the said lessee, his 
 executors, administrators, and assigns, all that 
 
 [Describe the mill site.'] 
 for the term of one year from the date hereof, subject to the provisions and 
 conditions of the " Mineral Act " relating to mill sites. 
 
 In witness whereof, the said parties have hereunto set their hands and seals. 
 
 Signed, sealed, and delivered. 
 
 1896, ch. 34, Form L. 
 
 Form M. 
 
 FOBM M. 
 
 mm Site. 
 
 Affidavit of Applicant Peiob to Ceown Geant. 
 
 I, , of , in the District of free miner, 
 
 make oath and say: — 
 
 1. I am the lawful holder of the mill site mentioned in indenture of lease 
 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. 
 
 Sworn, &c. 
 
 1896, ch. 34, Form M. 
 
 /' 
 
 Form N. 
 
 FOEM N. 
 
 Mill Site. 
 
 Ceetificate of Impeovements. 
 
 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 
 dollars, on the mill site described in and demised by indenture dated the day 
 
 of , 189 , and made between during 
 
 the existence of such lease. 
 
 Gold Commissioner. 
 
 1896, ch. 34, Form N. 
 
!•] APPENDIX A.— MINING STATUTES. 793: 
 
 ^0™ O- Mineral Act, 
 
 Tunnel or Drain Licence. R.S. B.C. ,c.l3S- 
 
 To all whom it may concern: — Form O. 
 
 Take notice that , 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 from me to run a tunnel (or drain) from 
 to his said claim [or mine). 
 
 The said licence is granted on these express conditions : — 
 
 [/Se( out conditions, if any.'] 
 Dated - — 
 
 Qolii Commissioner. 
 1896, ch. 34, Form O. 
 
 FOBM P. For^ p. 
 
 Mill Site. 
 Application for Crown Grant. 
 To the Mining Recorder ai> 
 
 Sir, — I enclose herewith the sum of dollars and the under- 
 
 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 Crown grant of the mill site demised by the above- 
 mentioned lease. 
 
 1896, ch. 34, Form P. Yours respectfully. 
 
 ■ Form S. Form S. 
 
 For a Full Vlaim. 
 Mining Division, District. 
 
 I, A. B., of in the Mining Division of 
 
 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 claim as near as possiile, 
 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. 
 
794 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Mineral Act, 
 Tl.S.B.C.,c.l35 
 
 (Form T. 
 
 ■Schedule of 
 .fees. 
 
 Form T. 
 
 For Fractional Claim. 
 
 Mining Division, District. 
 
 I, A. B., of in the Mining Division of Dis- 
 
 trict, free miner, maire 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- 
 claration. 
 
 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 claiin. 
 
 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 grouiid' 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. 
 
 Note. — This declaration may be made by an agent. 
 1S96, ch. 34, B'orm 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 
 
 (J) Having a nominal capital exceeding $100,000.00 100 00 
 
 ■ - (1897, ch. 28, see. 22.) 
 
 Every substituted certifiTcate 1 00 
 
 Recording any claim 2 50 
 
 Recording every e,ertificate 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 " Recdrd of Abandonments" 2 5t) 
 
 For recording every affida.vit, 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 fqr all records made in the " Record of 
 
 AflBdavits." 
 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 fqlio: 
 
 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 thre^ 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 1898, ch. 33, sec. 14. 
 
^■3 APPENDIX A.— MINING STATUTES. 
 
 7^5 
 
 H 
 
 Rev. Stat. B. C. Chap. 136 ( 189T) . Placer Act, 
 
 R.S.B.0.,0.136 
 An Act relating to Plaoer Mines. 
 
 ER MAJESTY, by and with the advice and consent of the Legislative 
 Assembly of the Province of British Columbia, enacts as follows:— 
 
 Short Title. 
 
 1. This Act may be cjted as the "Placer Mining Act." 1893, ch. 26, sec. 1. Short title. 
 
 Interpretation. 
 
 2. In the construction of this Act the following expressions shall have the Interpretation 
 .■following meanings respectively, unless inconsistent with the context: — 
 
 "Mine." "placer mine," and "diggings" shall be synonymous terms, and. "Mine," 
 
 shall mean any natural stratum or bed of earth, 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- i"S P™P8''''y-" 
 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; 
 
 " Creek diggirgs " shall mean any mine in the bed of any river, stream, or "Creek 
 ravine, excepting b.ar diggings; diggings." 
 
 "Bar diggings" shall mean any mine over which , a river extends when "Ear 
 in its flooded state ; diggings." 
 
 "Dry diggings" shall mean any mine owr which a river never extends; "Dry 
 
 "Bench diggings" shall mean any mine on a bench j and shall, for the „^ ,' 
 purpose of defining the size of a claim in bench diggings, be excepted HieeWs '- 
 from " dry diggings ; 
 
 " Hill diggings " shall mean any mine on the surface of a hill, and fronting "Hill 
 on any natural stream or ravine; ' diggings." 
 
 "Precious stone diggings" shall mean deposit of precious stones, whether " Precious 
 in veins, beds, or gravel deposits ; stone 
 
 diggings. '• 
 
 "Streams and ravines" shall include all natural watercourses '^^hether ■.gj.j.gg^jjjg ^j^j 
 usually containing water or not, and all rivers, creeks, and gulches ; ravines. " 
 
 "Ditch " shall include a flume, pipe, race, or other artificial means for con- "Ditch." 
 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 "Ditch head." 
 water is first taken into a ditch ; 
 
 " Free Jliner " shall mean a person, or joint stock company, or foreign com- "Free miner.' 
 pany named in, and lawfully possessed of, a valid existing free miner's 
 certificate, and no other ; 
 
 ^' Degal post " shall mean a stake standing not less than four feet above „ ^ lot" 
 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, ,< p^gcord " 
 and shall mean an entry in some ofiBcial book kept for that purpose; "register," 
 
 " registration" 
 
796 
 
 MARTIN'S MINING CASES. 
 
 [VOIi. 
 
 Placer Act, 
 R.8.B.C.,c.l36 
 
 "Record." 
 "Full 
 interest." 
 " Close 
 
 season. " 
 
 " Cause." 
 
 "Judgment." 
 
 "Real estate." 
 
 "Joint Stock 
 Co." 
 
 Free miner's 
 certificate. 
 
 Duration of 
 certificate. 
 
 Fees. 
 
 Form. 
 
 'Record," when used without qualifying words shewing that a different 
 matter is referred to, shall be taken to refer to the record of the loca- 
 tion 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 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. 1896, ch. 35, sec. 2, and 1897,. 
 
 Pakt I. 
 Free Miners and their Privileges. 
 
 3. Every person over, but not under, eighteen years of age, and every joint 
 stock company, shall be entitled to all the rights and privileges of a free mineiv 
 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. 1891, 
 ch. 26, sec. 8. 
 
 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. 
 
 5. A free miner's certificate shall be in the following form : — 
 
 British Columbia. 
 
 Free Miner's Certificate. 
 
 NOT TRANSFEEABLE. 
 
 year only, 
 of has paid me this 
 
 , and is entitled to all rights and privileges 
 year from the day of , 
 
 Date, ^ No. 
 
 Valid for 
 This is to certify that 
 day the sum of 
 of a free miner, for 
 189 . 
 
 (Signature of Gold Commissioner or Mining Recorder, 
 as the case may be). 
 
 1891, ch. 26, sec. 5. 
 
 Mode of re- 6. If any person or joint stock company shall apply for a free miner's cer- 
 
 newal of cer- tificate at the Mining Recorder's ofiice during his absence, and shall leave the 
 tifioate fee required by this Act with the officer or other person in charge of the said 
 
I.] APPENDIX A.— MINING STATUTES. 797 
 
 office, he or it shall be entitled to have such certificate from the date of such Placer Act, 
 Application; and any free miner shall at any time be entitled to obtain a free R.S.B.C.,c.l36 
 
 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. 1891, ch. 26, sec. 6. 
 
 7. If any free miner's certificate be accidentally destroyed or lost, the Substituted 
 owner thereof may, on payment of the fees set out in the Schedule to this certificate. 
 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. 1891, ch. 26, see. 7. 
 
 8. Every person and joint stock company engaged in placer mining shall take Penalty for 
 out a free miner's certificate, and any person or joint stock company who mines mining with- 
 er works as a miner in any placer claim, or on any bed-rock flume, drain or out certificate, 
 •ditch, without having taken out and obtained such certificate, shall, on convic- 
 tion 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 Proviso, 
 or company, who, through not being a free miner, has rendered himself or itself 
 liable to the above penalty. 1891, ch. 26, sec. 8. 
 
 9. No person or joint stock company shall be recognized as having any No person 
 right or interest in or to any placer claim, mining lease, bed-rock flume grant, °™®'' *t *^- ® 
 or any minerals in any ground comprised therein, or in or to any water right, ^r°fggate '"^ 
 mining ditch, drain, tunnel, or flume, unless he or it shall have a free miner's (.^ [^^jj fining, 
 certificate unexpired. And on the expiration of a free miner's certificate the property, 
 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 
 
 certificate: Provided, nevertheless, should any co-owner fail to keep up l^is ^^^^^^^ j^.j 
 
 free miner's certificate, such failure shall not cause a forfeiture or act as an ^^^ ^^ ^^^ ^^ 
 
 abandonment of the claim; but the interest of the co-owner who shall f ail ggrtifioate. 
 
 to keep up his free miner's certificate shall, ipso facto, be and become vested in 
 
 his co-owners, pro rata, according to their former "interests' ; Provided, nev-3r- 
 
 theless, that a shareholder in a joint stock company need not be a free miner. Shareholder in 
 
 and, though not a free miner, shall be entitled to buy, sell, hold, or dispose of company need 
 
 any shares therein: And provided, also, that this section shall not apply to^J^^^g® ^^^ 
 
 placer mines for which a Crown grant has been issued. 1895, ch. 40, sec. 2. 
 
 10. Every owner of a mine or placer claim, and every contractor for the Owners, etc., 
 performance of any work upon a mine or placer claim, shall pay the annual to pay the fees 
 fee for a free miner's licence for any person in their employment and liable for 'o"" employees . 
 the fee, and may deduct the amount so paid on account of such person from the 
 
 amount of salary or wages due or to become due to him from such 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, And to furnish 
 
 when requested by him so to do, from time to time, a list of all persons in hisHsta. 
 
 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. 
 
 (2) If any person fails to pay the said licence fee for his employees, or to Penalty, 
 deliver to the Recorder or Collector the list mentioned in the preceding section 
 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 
 
798 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Placer Act, be recovered, together with the amount of the unpaid licence fees, upon sum- 
 K.S.B.C«,c.l36 mary conviction before one Justice of the Peace. 1895, ch. 40, sees. 10 and 11. 
 
 Right of oerti- H. Every free miner shall, during the continuance of his certificate, but 
 *rnonoi° ° "°* loDgcr, have the jight to enter, locate, prospect, and mine for gold and 
 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 occu- 
 pied for placer mining purposes, and also Indian reservations. 1891, ch. 20, 
 see. 10. 
 
 prospect. 
 
 Tree miner to 
 give security 
 for damag:e 
 caused by 
 entry (in land. 
 
 12. Previous to any entry being made upon lands already lawfully occupied, 
 such free miner shall give adequate security, to the satisfaction of the Gold 
 Commissioner, for any loss or damage which may be caused by such entry ; 
 and after such entry he shall make full compensation to the occupant or 
 owner of 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. 1891, 
 ch. 26, sec. 11. 
 
 Kight to kill 13 ^ny f].gg miner shall be at liberty at any period ■ot the year, while 
 
 game. actually prospecting or engaged in mining, to kill game for his own use. 1891, 
 
 ch. 26, sec. 13. 
 
 Rights under 14. A free miner shall have all the rights and privileges granted to free 
 
 "Mineral Act, miners by the " Mineral Act, 1896." 1891, ch. 26, sec. 14. 
 
 1896." 
 
 Part II. 
 
 Sine and Nature of Placer Claims. 
 
 What claims 15. Every free miner shall be entitled to locate and record a placer claim 
 
 freeminermay on each separate creek, ravine, or hill, but not more than two claims in the 
 record and same locality, only one of which shall be a creek claim. He shall be allowed 
 purchase. to hold any number of placer claims by purchase, and every free miner may 
 
 sell, mortgage, or dispose of his claim or any interest therein. 1891, ch. 26, 
 
 sec. 15. 
 
 Size of placer 
 claims. 
 
 16. The size of placer claims shall be as follows : — 
 
 A " creek claim '' 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 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 ; 
 
 " dry diggings " a claim shall be 100 feet square ; 
 
 "bench diggings" a claim shall be 100 feet square: Provided that the 
 Gold Commissioner shall have authority, where a bench is narrow, to 
 extend the limits of the claim beyond the limits of the bench, but not 
 to exceed 100 feet square ; 
 
 hill diggings " a claim shall have a base line or frontage of 100 feet, 
 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 constitute 
 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. 1891, ch. 26, sec. 16. 
 
 „., , , . 17. If any free miner, or party of free miners, discox'Br a new mine, and 
 
 on discove'rv «"ch discovery be established to the satisfaction of the Gold Commissioner, 
 
 of new mine, placer claims of the following sizes, in dry, bar, bench, creek, or hill diggings 
 
 y ' shall be allowed, viz. :— 
 
 In 
 In 
 
 In 
 
I.J APPENDIX A.— MINING STATUTES. f 799. 
 
 To one discoverer, one claim 300 feet in length ; piaoer Act, 
 
 To a party of two discoverers, two claims, amount- i R.S. B.C., 0.136 
 ing together to 600 " 
 
 To a party of three discoverers, three claims, amount- 
 ing together to 800 " 
 
 To a party of four discoverers, four claims, amount- 
 ing together to 1,000 
 
 And to Bach 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 centre of the creek 
 as far as the summit of the hill, but not exceeding 1,000 feet. 1891, 
 ch. 26, sec. 17. 
 
 18. A new stratum of auriferous earth, gravel, or cement, situated in a New stratum 
 locality where all placer claims are abandoned, shall be deemed a new mine, where all 
 although mines in the same locality shall have been previously worked ; and claims aban- 
 dry diggings discovered in the vicinity of bar diggings shall be deemed a new doned. 
 mine, and vice versa. A discoverer's claim shall be considered as one ordinary 
 
 claim, in respect to recording, working, and representing. 1891, ch. 26, sec. 18. 
 
 19. In defining the size of placer claims they shall hi measured horizontally. Measurement 
 irrespective of inequalities on the surface of the ground. 1891, ch. 26, sec. 19. of claims. 
 
 Locating, Recording, Re-recording, Worlcing, and Lay-overs. 
 
 • 
 
 20. Every placer claim shall be as nearly as possible rectangular in form. Shape of claim 
 and marked by four legal posts at the corners thereof, firmly fixed in the ground, and how 
 One of such posts shall be marked as the " initial post," and on that post shall marked. 
 
 be placed a legible notice in writing, stating the name of the claim, its length 
 in feet and general direction, with the date of the notice and name of each 
 locator. If any side line of any claim shall exceed 100 feet in length, legal 
 posts shall be placed along such side line, at distances not exceeding 100 feet. 
 1891, oh. 26, sec. 20. 
 
 21. Any location made upon Sunday 'OB. any public holiday shall not for Location made 
 that reason be invalid, any law or statute to the contrary notwithstanding, on Sunday. 
 1891, ch. 26, sec. 21. 
 
 22. In case of any dispute as to the title to a placer claim, the title to Disputes as to 
 the claim shall be recognized according to the priority of such location, subject title to claim, 
 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. 
 1891, ch. 26, sec. 22. 
 
 23. Every free miner locating a placer claim shall record the same with Record of 
 the Mining Recorder of the district or division within which the same is situate, claim, 
 within three days after the location thereof, if located within ten miles of the 
 
 office of the said Mining Hecorder. One additional day shall be allowed for 
 making such record for every additional ten miles or fraction thereof. Such 
 record shall \ie made in a book to toe kept for the purpose in the office of the ^^ 
 said Mining Recorder, to be known as the " Record Book," in which shall be "R™™'*! 
 inserted the name of the claim, the name of each locator, the number of each Book, 
 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 
 ithe record: Provided that a free miner shall not be entitled to a record of a Proviso, 
 claim until he shall have furnished the Mining Recorder with a written state- 
 ment of the above particulars. 1891, ch. 26, sec. 23. 
 
 24. After the recording of a placer claim, the removal of any post by the Forfeiture by 
 holder thereof, or by any person acting in iis behalf, made for the purpose of removal of 
 changing the limits of his claim, shall act as a forfeiture of the claim. 1891, posts. 
 
 ch. 26, SBC. 24. 
 
^00 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Placer Act, 25. Upon the establishment of a mining division and the opening of a Min- 
 
 R.S.B.C.jC.lSe ing 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 
 
 When records mining division, and making all records in respect thereof. 1891, ch. 26, sec. 25. 
 are to be made. 
 
 Effeotof record 
 in vi'rong dis- 
 trict. 
 
 Duration of 
 record. 
 
 Re-record of 
 a claim. 
 
 26. If through ignorance any free miner shall record a placer 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, oh. 35, sec. 4. 
 
 27. A free miner having duly located a placer claim, shall be entitled to 
 record the same for one or more years, upon payment of the fees set out in 
 the Schedule to this Act. 1891, ch. 26, sec. 27. 
 
 28. A free miner shall, at any time during the existence of his record or re- 
 record, be entitled to extend the term of his interest in his placer claim for 
 one or more years, upon payment of the fees set out in the Schedule to this 
 Act, by re-recording such claim. Such re-record shall be made in the Record 
 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 Ke- at the Mining Recorder's office during office hours, but during his absence, and 
 eorder's ab- shall leave the fee required by this Act, and the particulars and information 
 senoe. 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 applica- 
 tion. 1891, ch. 26, sec. 29. 
 
 Same as to re- 
 record. 
 
 30. If a free miner shall apply for a re-record, and shall make such appli- 
 cation 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 informa- 
 tion 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 applica- 
 tion, but commencing to run from the expiration of his existing record or re- 
 record. 1891, ch. 26, sec. 30. 
 
 Terms on 31. A free miner, having duly located and recorded a placer claim, shall be 
 
 which miner entitled to hold the same during the existence of his record or re-record of such 
 may hold a claim upon complying with all the terms and conditions of this Act. 1891, ch. 
 claim. on „„„ Q-, 
 
 Ab, sec. ol. 
 
 Right of miner 32. Every free miner shall have the exclusive right of entry upon his placer 
 to his claim, 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 : 
 Proviso. 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 work- 
 ing of their claims, upon such terms as may to him seem reasonable. 1891, ch. 
 26, sec. 32. 
 
 Irregularity 33. Upon any dispute as to the title to a placer claim, no irregularity made 
 
 prior to record prior to the date of the then current record or re-record of such claim shall 
 not to affect affect the title thereto, and it shall be assumed that up to the date of such 
 title to claim, record or re-record the title to such claim was perfect ; Provided always, that 
 
r.] APPENDIX A.— MINING STATUTES. 801 
 
 it shall at all times be open to provB that the ground was improperly or in- Placer Act, 
 sufficiently staked, or that the stakes have been illegally moved. 1891, ch. 26, R.S.B.C.,o.l36 
 sec. 33. ' 
 
 34. Tunnels, shafts and ditches shall be considered as belonging to the -^o^ks in con 
 placer claim for the use of v?hich they are constructed, and as abandoned or section with 
 forfeited by the abandonment or forfeiture of the claim itself. 1891, ch. 26, claim deemed 
 sec. 34. as part thereof 
 
 35. In tunnelling under hills, on the frontage of which angles occur, or in tunnelling 
 which may be of an oblong or elliptical form, no party shall be allowed to tun- in hills rights 
 nel from any of the said angles, nor from either end of such hills, so as to of others to be 
 interfere with parties tunnelling from the main frontage. 1891, ch. 26 sec. 35. respected . 
 
 36. The interest of a free miner in his placer claim shall, save as to placer Interest in 
 mines held as real estate, be deemed to be a. chattel interest, equivalent to a claim deemed 
 lease, for such period as the same may have been recorded, renewable at the a chattel in- 
 end thereof by re-recording, and subject to the conditions as to forfeiture, terest. 
 working, representation, re-recording, and otherwise, for the time being in force 
 
 with respect to placer claims. 1891, ch. 26, sec. 36. 
 
 3Y. The holder of a placer claim shall have no right to any vein or lode. Holder of 
 as defined by the " Mineral Act," within the limits of such placer claim, unless placer claim 
 he shall have located and recorded the ground as a mineral claim ; and until has no rigbt to 
 he shall so locate and record such ground, the same shall be open to any free vein or lode, 
 miner to locate and record as a mineral claim. 1891, ch. 26, sec. 37. 
 
 38. Every placer claim as defined by this Act shall be represented and Duties of 
 iond fide worked by the holder thereof, or by some person on his behalf, con- placer olaim- 
 tiuuously, as nearly as practicable, during working hours, and shall be deemed holders . 
 
 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 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. 1891, 
 ch. 26, sec. 38. 
 
 39. Bvei-y free miner, or company of free miners, shall be entitled to a j^^^^^ ^f ^y^_ 
 leave of absence for one year from his or their placer claim or set of claims, — ggnce. 
 
 (a) 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, 
 laibour, 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 
 (6) Upon the application for such leave being signed by all the holders of 
 
 the claim or set of claims. 
 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 sec- 
 tion affect the discretionary power of the Gold Commissioner with respect to 
 granting a leave of absence under other conditions. 
 
 (2) The provisions of this section shall not apply to land or mining P^op-^ , 
 
 erty ,held under mining leases, pursuant to Part VII. of this Act, but such ^^ ^inin'!' ' 
 leases shall in all matters be governed by the terms thereof. 1891, ch. 26, sec. j^^gg ^^^^^ 
 39, and 1895, ch. 40, sec. 3. Part VII. 
 
 40. Every forfeiture of a placer claim shall be absolute, any rule of law or j-grfeitures ab- 
 equity to the contrary notwithstanding. 1891, ch. 26, sec. 40. solute. 
 
 41. No placer claim located and recorded in any district within fourteen (-.jg^i^g ^ggorj. 
 days before, or at any time during the close season, shall be deemed to be laid ed 14 days be- 
 over unless so much work shall have been lonS. fide done thereon by the holder fore close aea- 
 thereof as shall, in the opinion of the Gold Commissioner, fairly entitle him to son not en- 
 havB such claim laid over. 1891, ch. 26, see. 41. t'^ed *» lay 
 
 51 
 
802 
 
 MAETIN'S MINING CASES. 
 
 [VOL.. 
 
 Record of 
 charges on 
 claims. 
 
 Placer Act, 42. Where the supply of water is insuflScient to work hydraulic or other 
 
 II.S.B.C., 0.136 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- Bxcept by leave of the Gold Commissioner ; but a notice of such insufficiency 
 ing inautbci- ^f ^^ter must be posted on the office of the Mining Recorder within three days 
 enoy of water, f^^j^ ^^^ cessation of work : 
 
 Not to apply (2) The provisions of this section shall not apply to land or mining property 
 
 to mining held under mining leases, pursuant to Part VII. of this Act, but such leases shall; 
 
 ^ases under Jq all matters be governed by the terms thereof. 1891, ch. 26, sec. 32, and 1895, 
 
 Part VII. p,j 4o_ ggp 3 
 
 43. Every bill of sale, conveyance, or mortgage of a placer claim, or of any 
 fraction thereof, shall be recorded within the time prescribed for recording 
 placer claims. 1891, ch. 26, sec. 43. 
 
 Xranstersmuat 44 jsTo transfer of any placer claim, or of any interest therein, shall be 
 ^d'r^orded ^^^^Tceable unless the same or some memorandum thereof shall be in writing, 
 
 signed by the transferrer, or by his agent authorized jn 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. 
 
 Validates in- 4.3. Every instrument, memorandum of sale, or other writing, whether under 
 
 formal bona ggg^j qj. jjoj.^ executed before the passing of this Act, purporting to transfer any 
 tranaters. jnj-grest 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- 
 tion or 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. 
 
 Copy of record 47. Where, by reason of the loss of the documents of title to any such claim, 
 
 may be used it is Impossible to produce the same for purposes of registration, it shall be- 
 
 for registra- sufficient to entitle axi applicant to have his title registered under the Land 
 
 tion 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- 
 
 office are the books of record in which any such transfer is recorded. 1893, 
 
 ch. 28, sec. 5. 
 
 Pakt 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 min- 
 or drains eral or not, shall obtain a licence from the Gold Commissioner for that purpose, 
 through other which licence shall be granted or withheld in the absolute discretion of such 
 land. Qo]j[ 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. 
 
 To belong, to 
 claim. 
 
 49. A tunnel or drain shall be considered as part of the placer claim, or mine- 
 held as real estate, for which the same was constructed. 1891, ch. 26, sec. 47.. 
 
1.] APPENDIX A.— MINING STATUTES. 803 
 
 50. Any free miner may apply to the Gold Commissioner for a grant of right , placer Act, 
 of way and entry through and upon any mining ground in his district, for the R.S.B.O.,o.l36 
 
 purpose of constructing a drain for public drainage of mines. 1891, ch. 26, . 
 
 sec. 48. Right of way 
 
 for making 
 
 51. The application for every such grant shall be in writing, and shall set out t^n^iels. 
 
 the name of each applicant, tfie nature and extent of the proposed drain, the T?orm of appli- 
 
 amount of toll to be charged, the term of years for which such grant is to be°'''*''°"' 
 
 made, and all other privileges sought to be acquired. The application shall 
 
 be left at the Mining Recorder's oflBce addressed to the Gold Commissioner. A 
 
 notice of such application, setting out the above particulars, shall be posted Notice. 
 
 on the office of the Mining Recorder and on the ground for thirty clear days 
 
 before such grant shall be made. 18&1, ch. 26, sec. 49. 
 
 52. The applicant for every such grant shall deposit with the Mining Re- Deposit of $25- 
 corder, at the time of the leaving of his application as aforesaid, twenty-five dol- 
 lars, which shall be refunded in case the application shall be refused. 1891, 
 
 ch. 26, sec. 50. 
 
 53. Such grants shall be in writing and signed by the Gold Commissioner, Grants of right 
 and shall not be given for a longer period than twenty years, and shall give ^^^' '^ "' 
 such rights of way and entry and such powers to assess, levy, and collect tolls 
 
 from all persons using such drain, or benefited thereby, as the Gold Commis- ■ 
 sioner shall think fit, but not in any case to exceed the term, rights, or powers 
 set out in the application. 1891, ch. 26, sec. 51. 
 
 54. The following covenants and conditions on the part of the grantee and Covenants on 
 his assigns shall be deemed to be part of every grant, whether expressed therein part of grantee 
 or not : — ■ 
 
 (o) That he shall construct a drain or drains of sufficient size to meet all 
 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 made 
 by any free miners, other than the grantee or his assigns, 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 drainage works, materials, and tolls, or any of them ; 
 
 (c) That he shall, within a reasonable time, construct proper tap-drains from 
 or into any adjacent claims, upon being requested in writing by the hold- 
 ers 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 with 
 one-half the specified rates of toll, or such other proportion as the Gold 
 
 , Commissioner may direct ; 
 
 (d) That he will not, in the construction and maintenance of such drains 
 and tap-drains, in any way injure the property of others, and that he 
 shall make good any damage done by him. 1891, ch. 26, sec. 52. 
 
 55. Every such gi-ant shall be recorded in the Record Book, and the de- Record of 
 posited sum of twenty-five dollars shall be retained as a recording fee. A rent grant. 
 of twenty-five dollars for each quarter of a mile and each fraction thereof shall 
 be paid annually to the Mining Recorder by the grantee ; such rent to commence 
 from the date of the grant. 1891, ch. 26, sec. 53. 
 
 Part IV. 
 
 56 A free miner may, at the discretion of the Gold Commissioner, obtain -water right to 
 'a srant to a water right in any unappropriated water, for any' placer mmmg unappropri- 
 pui-poses for any term not exceeding ten years, upon such terms and conditions ated water. 
 
804 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Placer Act J as such Gold Commissioner shall think fit; but no free miner shall be charged 
 E.S.B.C, 0.136 any money rental for any such water used by him for mining purposes on his 
 own mining claim. 1894, ch. 33, sec. 2. 
 
 (Note. — Queen's Printer's Erratum to R. S. B. C, 1897: — "Mines, 
 Placer, ch. 136 r strike out caption Part IV., and sec. 56, reprinted by error 
 from 1894, ch. 33, sec. 2, repealed by the ' Water Clauses Consolidation Act,' 
 ch. 190, sec. 154, sub-sec. (c), i>age 2,190.") 
 
 Part V. 
 
 To what 
 1 his shall 
 apply. 
 
 Mining Partnerships. 
 
 57. All mining partnerships shall be go^'erned by the provisions hereof, un- 
 less they shall have other and written articles of partnership. 1891, ch. 26, 
 sec. 79. 
 
 to be annuaf ^^' "^ ™i"iiig partnership shall, unless otherwise agreed upon, be deemed to 
 
 ■ be a yearly partnership, renewable from year to year by tacit consent. 1891, 
 ch. 26, sec. 80. 
 
 Scope of , 59. The business of such partnership shall be mining, and such other matters 
 
 partnership. ^s pertain solely thereto. 1891, ch. 26, sec. 81. 
 
 Rights of 60. Mining partnerships can locate and record in the partnership name a 
 
 partnerships, 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. 
 
 61. A set of claims may be recorded in one record. The name of every 
 partner, and the number of every partner's free miner's certificate, shall be 
 on the record of every such set of claims. The partnership name shall appear 
 on every such record, and all claims so taken up shall be the property of the 
 partnership. 1891, ch. 26, sec. 83. 
 
 62. A 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 
 nu&ber of partners voting at such meeting. 1891, ch. 26, sec. 84. 
 
 63. A majority of such votes may decide when, how long, and in what 
 manner to work the partnership claim, or set of claims, the number of men to be 
 employed, which number shall not be less than one man to each claim, and the 
 extent and manner of levying the assessments to defray the expenses incurred 
 by the jpartnership. Such majority may also choose a foreman or manager, who 
 shall represent the partnership and sue and be sued in the name of the partner- 
 ship for assessments and otherwise ; and he shall have power to bind them by 
 his coutracts, 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 partner or agent being discharged by the foreman or manager, the 
 Court having jurisdiction in mining disputes may, if requested, summon the fore- 
 man or manager before it, and upon hearing the facts make such order as it shall 
 deem just. 1891, ch. 26, see. 85. 
 
 Assessments 64. AH assessments shall be payable within five days after being made. . 
 
 1891, ch. 26, sec. 86. 
 
 Record of 
 partnership 
 claims . 
 
 Right of each 
 partner to 
 vote. 
 
 What matters 
 may Le decid- 
 ed by vote of 
 partners. 
 
I-] APPENDIX A.— MINING STATUTES. ' g05 
 
 05. Any partner making default In payment, after receiving a notice certify- Placer Act, 
 ing the amount due by him, shall, if such amount be correct, .be personally R.S.B.C.,c.l36 
 
 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 Saleof partner- 
 assessment which may have accrued thereon up to the day of sale, together with J'^'P property 
 all costs and charges occasioned by such default ; and if the proceeds of the sale ^g^ts *^^®'^"' 
 be insufficient to pay off the several sums mentioned, the Court having jurisdic- 
 tion in ruining 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 ten 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 
 thirty clear days before the day of sale, and a copy of such notice shall be pub- 
 lished in some newspaper circulating in the district wherein such mining or 
 other property is situate for the same period. Such sale shall bd 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, 
 ch. 26, sec. 87. 
 
 06. After a notice of abandonment, in writing, shall have been served on the Effect of 
 foreman or manager of a partnership by any member thereof, and duly recorded, notice of 
 such member shall not be liable for any debts or other liabilities of the partner- abandonment, 
 ship incurred after sei-vice and record of such notice, and no member shall be 
 
 deemed to have abandoned an interest until service and record of such notice. 
 1891, ch. 26, sec. 88. 
 
 67. Any partner shall be entitled to sell, or contract for the sale of, his interest when 
 interest in the partnership property, but such interest shall continue liable for so](j continues 
 all the debts of the partnership. 1891, ch. 26, sec. 89. liable. 
 
 68. No partner shall, after a bill of sale convey ing ^ his interest has beLen p . 
 recorded, be liable for any indebtedness of the partnership incurred thereafter, jjeyed bv sale 
 1891, ch.- 20, sec. 90. from future 
 
 debts of 
 Limited Liability. partnership. 
 
 09. Any mining partnership, composed of two or more free miners, and being "Limited 
 free from all debts in respect of the partnership property, may limit the liability liability." 
 of its members, upon complying with the requirements following, 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. con- 
 spicuous part of every such claim, or set of claims, in large letters, the 
 name of the partnership, followed by the words " Limited Liability." 
 1891, ch. 20, sec. 91. 
 
 70. The words " Limited Liability " shall thereupon become part of the to be added to 
 partnership name. 1891, ch. 20, sec. 92. name. 
 
 71. After such conditions shall have been complied with, no member of such gggct of same 
 partnership shall be liable for any indebtedness incurred thereafter beyond an 
 
 amount proportioned to his interest in the partnership. 1891, ch. 26,' sec. 93. 
 
 72. Every such partnership shall keep a correct account of its assets and jj ji . 
 liabilities, together with the names of the partners, and the interest held by,<jj^j;jgj 
 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 ofnership.. 
 
 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. 
 26, sec. 94. 
 
806 
 
 MAETIN'S MINING CASES. 
 
 [VOL. 
 
 Placer Act, 
 R.S.B.C.,c.l36 
 
 Partner may 
 
 sell his in- 
 terest . 
 
 How to avoid 
 future debts of 
 limited liabi- 
 lity partner- 
 ship. 
 
 IMvidend. 
 Foreman. 
 
 What debts 
 the partner- 
 ship is liable 
 for. 
 
 Application 
 for right of 
 way for bed- 
 rook flume . 
 
 How applica- 
 tion is made. 
 
 Term. 
 
 Rights of 
 grantee. 
 
 73. Every partner in such partnership shall be at liberty to sell or dispose 
 of his interest therein, or of any part thereof, to any other free miner ; but such 
 partner shall be liable for the indebtedness on the said interest in proportion 
 to his interest in the partnership. 1891, ch. 26, sec. 95. 
 
 74. No member of such partnership, after a bill of sale conveying his Interest 
 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 Mining Recorder, shall 
 be liable for any indebtedness of the partnership incurred thereafter. 1891, ch. 
 26, sec. 96. 
 
 75. No such partnership shall declare any dividend until all its liabilities 
 have been paid. 1891, ch. 26, sec. 97. 
 
 76. Every such partnership shall appoint a foreman or manager:, who shall 
 represent the partnership, and who shall sue and be sued in the name of the 
 partnership ; and his contracts in relation to the business of the partnership 
 shall be deemed to be the contracts of the partnership. 1891, ch. 26, sec. 98. 
 
 77. No such partnership shall be liable for any other indebtedness than that 
 contracted by its foreman or manager, or by its agent duly authorized in writing. 
 1891, ch. 26, sec. 99. 
 
 , Part VI. 
 
 Bed-rock Flumes. 
 
 78. One or more free miners may apply to the Gold Commissioner for a 
 Srant of exclusive rights of way through and entry upon any mining ground in 
 his dis-trict, for the purpose of constructing, laying and maintaining a bed-rock 
 flume. 1891, ch. 26, sec. 100. 
 
 79. Every such application shall be in writing, and shall be left at the 
 Mining Recorder's ofiice, addressed to the Gold Commissioner, and shall state 
 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 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 sl;all 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. 
 
 80.' Every such grant shall be in writing, signed by the Gold Commissioner, 
 and shall be for a term not exceeding five years. 1891, ch. 26, sec. 102. 
 
 81. The grantee shall be entitled to the following rights and privileges, that 
 is to say : — 
 
 (a) The right of way through and entry upon any new and unworked river, 
 crefek, 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; 
 
^•] APPENDIX A.— MINING STATUTES. 
 
 807 
 
 (c) Such nght of way through and entry upon any river, creek, or ravine piac^r A^.^ 
 discovered within two years next preceding the date of his application R.S RC. c;i36 
 
 Detore mentioned, and upon any portions of which any free miner is 
 
 legally holding and bond fide working a claim, as to the Gold Commis- 
 sioner may seem advisable ; 
 
 (d) The right of way through and entry upon all placer claims which are at 
 the time of the notice of application before mentioned l)on& fide being 
 worked by any free miner, for the purpose of cutting a channel and laying 
 ma flume therein, with such reasonable space for constructing, maintain- 
 ing, 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 bo 
 located. 1891, ch. 26, 103, and 1897, ch. 29, sec. 6. 
 
 82. A holder of a placer claim through which the line of the grantee's flume ci.;™ holdpr 
 is to run may put in a bed-rock flume in his claim to connect with the grantee's may connect 
 flume, upon giving the grantee ten days' notice in writing to that effect ; but he with bed-rock 
 shall maintain the like grade and build his flume as thoroughly and of as strong flume, 
 materials as are used by such grantee. 1891, ch. 26, sec. 104. 
 
 83. A claim-holder constructing such flume through his claim shall keep his Duties of such 
 flume free from obstruction, and he shall be entitled to all the gold or other claim-holder 
 minerals found therein, but Jie shall be subject to the same regulations with 
 
 regard to cleaning up the flume, repairs, and other matters in which both 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 claim 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 or flume, and such abandon- 
 ment shall enure to the use and benefit of the grantee. 1891, ch. 26, sec. 105. 
 
 84. The grantee shall lay at least one hundred feet of flume during the first ,„. , , . . 
 year of such grant, and three hundred feet annually thereafter, until completion j^^^ ^^^ first ^ 
 of the fiume ; but the amount of flume to be laid may be reduced at the discretion year, 300 feet 
 of the Gold Commissioner. 1891, ch. 26, sec. 106. ' annually there- 
 after. 
 
 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, ^*™^^'^g ^j 
 stones, boulders, or otherwise. 1891, ch. 26, sec. 107. ^ flume. 
 
 86. The grantee shall record his grant with the Mining Recorder within three pg„oi.(j gf 
 days after obtaining the same, and pay for such record the fee provided in the grant. 
 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 fixtures 
 connected therewith, shall be deemed to be a chattel interest equivalent to a Interest of 
 lease for the term of such grant. 1891, <:h. 26, sec. 109. teTinterest! 
 
 88. Upon the expiration of the grant for a bed-rock flume, it may be extended ■„ t 
 for any further term not exceeding five years for any one extension, at the dis- ^^J^"^^ " 
 cretion of the Gold Commissioner. 1891, ch. 26, sec. 110. 
 
 89. Any grant of a bed-rock flume shall be forfeited whenever the grantee 
 
 shall fail to comply with the conditions thereof, or of this Act. 1891, ch. 26, Forfeiture of 
 sec. 111. S'*°'- 
 
808 MARTIN'S MINING CASES. [voi,. 
 
 Placer Act, Paet VII 
 R.S.B.C.,0.136 ^^ • 
 Leases. 
 
 occupied . ^- ^* ^'^^•" ^^ lawful for the Gold Commissioner, with the sanction of the 
 
 Crown land for Ijieutenant-Governor in Council, to grant a lease of any' unoccupied or unre- 
 
 pla<!er 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- 
 
 for lease. 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 Re- 
 corder, 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. 85, sec. 6. 
 
 Plan in dupli- 92. On making such application the free miner shall deposit with the Mining 
 
 cate of ground Recorder, for the use of the Gold Commissioner, a plan of the ground, in tripli- 
 
 sought to be gg^j-g ^jj^ every person making application for a lease of mining ground for 
 
 fileT ° ^ ' any 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 
 
 S20 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 jnay 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 applicatioii, then the 
 
 twenty dollars deposited shall be forfeited to the Government, and his application 
 
 shall be void. 1896, ch. 35, sec. 7. 
 
 Areas. 93. Applications shall not be for greater than the following areas or dis- 
 
 tances : — 
 Creek diggings ^'^ creek diggings on abandoned or unworked creeks, half a mile in length ; 
 O'ther nlac r '^^^ other placer mining ground, eighty acres ; but in no case shall any lease 
 
 eround extend along any creek or river more than five hundred yards; creek 
 
 diggings excepted ; 
 Precious stone Precious stone diggings, ten acres ; but the right to mine for precious stones 
 diggings. shall not include the right to mine for gold or other precious metals, un- 
 
 less the ground be held also for that purpose separately, under the pro- 
 visions of this Act. 
 Provided always, that nothing in this Act sjiall be deemed to affect the right 
 Proviso. of j^jiy 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. 80& 
 
 94. A lease shall not be granted for any mining ground any portion of which Placer Act, 
 
 is actually occupied by free miners, unless with the consent of such occupiers; R.S.B.0.,c.l3& 
 
 and no lease shall be granted for any mining ground which is, in the opinion of 
 
 the Gold Commissioner, available for agricultural purposes. 1894, ch. 33, sec. 6. ^" '!*5® , 
 
 ' granted of 
 
 95. The Gold Commissioner may, with the sanction of the Lieutenant- pied^nor^aeri- 
 Governor in Council, grant or refuse any application for a lease of placer mining ciiltural ground 
 ground, or modify the terms and conditions of such application as he shall think go^ Commis 
 fit. 1896, ch. 35, sec. 10. siont-r's ijowera 
 
 of granting 
 
 96. Every application for a lease of placer mining ground, together with the lease. 
 
 plan of the ground and the Gold Commissioner's report thereon, shall be for- Applications 
 warded by such Gold Commissioner to the Lieutenant-Governor in Council, and with plan 
 no lease shall be granted on any such application without his sanction. 1896, annexed, 
 ch. 35, sec. 11. 
 
 97. Every lease of mining ground shall be in writing signed by the Gold Leases to be in 
 Commissioner and the lessee, and shall be in duplicate or triplicate, as the case writing, etc. 
 may require, and one copy of every such lease shall, as soon as possible after it 
 
 Js 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 Contents of 
 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 Forfeiture of 
 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. 85, sec. 13. 
 
 . JOO. Leases shall 'be granted for placer mining only, and shall not be Leases to be 
 assigned or sub-let without the written consent of the Gold Commissioner. 1891, only for placer 
 ch. 26, sec. 123. • mining. 
 
 101. When any placer mining ground is held under lease, and such mining p'^"* °f ^l*'^"" 
 ground shall have been efficiently worked, as required by the conditions of the ["g^ou™ 
 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 
 
 said mining ground as still remains unworked, and the Gold Commissioner may, 
 
 with the sanction of the Lieutenant-Governor in Council, grant such extension E-xtension. 
 
 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 carrjiug capacity 
 
 of not less than five hundred inches of water, and shall have cost not less than 
 
 fiv« 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 of 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. 
 
 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. 1897, ch. 29, sec. 5. 
 
 103. It shall be lawful for the Gold Commissioner, with the sanction of 
 the Lieutenant-Governor in Council, to grant a lease forany term, not exceeding 
 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 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 gra,nted 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 
 high or low water, provided the same ground is not leased under the " Placer 
 Mining Act, 1891," or this or any other Act, or is not at such time being 
 worked by free miners, the right being always reserved to free miners to con- 
 struct wing-dams as far as may be desired into any of such bars, banks, or 
 benches for the purpose of conducting mining operations, either by sluice or 
 rocker, and parties holding such dredging leases shall not in any manner inter- 
 fere 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. 
 
 Drsdgers — Protection. 
 
 Protection to 
 
 dredgers. 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 
 
 any manner. 1895, ch. 40, sec. 9. 
 
 Placer Act, 
 R.S.B.C.,c.l36 
 
 Grant of lease 
 of river bed. 
 
 Right to run 
 tailings in and 
 mine 2 feet 
 below surface. 
 
 And lessees 
 may cut into 
 bars, benches, 
 etc. 
 
 Appointment 
 ■of Mining . 
 Recorder. 
 
 Paht VIII. 
 
 Mining Recorders — Appointment, Duties, Powers. 
 
 105. The Lieutenant-Governor in Council may appoint any person to be a 
 Mining Recorder in and for any part of the Province. 1891, ch. 26, sec. 127. 
 
 Appointment ^^- Where mineral land is discovered in a part of the Province so situate 
 
 of KBCorder by that the provisions of this Act as to free miners' certificates and records of 
 
 miners them- mining property cannot be justly applied or enforced, by reason of there being 
 
 selves.' 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- 
 
 Proviso. jug 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. 
 
 Recorder to 107. Every Mining Recorder shall issue free miners' certificates and " sftb- 
 
 issue certifi- stituted certificates " to all persons and companies entitled thereto. 1891, ch. 
 cates. 26, sec. 129. 
 
 toTefiTe'd^'^ 108. 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. 1891, ch. 26, sec. 130. 
 
I] APPENDIX A.— MINING STATUTES. 811 
 
 109. Every Mining Recorder shall keep the following books, to be used for Placer Act, 
 placer mining entries: — B.S.B.C.,c.l36 
 
 (o) A book to be known as the " Record Book;" Books to be 
 
 (5) A book to be known as the " Record of Abandonments ;" !?.''P' ^y 
 
 Recorder, 
 (o) A book to be known as the " Record of Affidavits ;" 
 
 (d) A book to be known as the " Record of Conveyances ;" 
 
 (e) A book to be known as the " Record of Water Grants." 1891, ch. 26, 
 sec. 131. 
 
 110. Upon the application of or on behalf of any free miner, and upon receipt Record andre- 
 of all the particulars required by see. 23 of this Act, the Mining Recorder record of 
 shall record any placer claim, by entering all the particulars required by said claims, 
 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-i*cord 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 C in the Schedule to this Act. The 
 Mining Recorder shall not make any such record until he has received all the 
 particulars required by see. 23, and any record made in violation of this sec- 
 tion shall be absolutely void. 1891, ch. 26, sec. 132. 
 
 111. The Mining Recorder shall record every lay-over, leave of absence, Record of 
 licence permit, and other privilege granted and forfeiture declared by the Gold lay-over. 
 Commissioner in the Record Book. 1891, ch. 26, sec. 133. 
 
 112. Upon the receipt of a notice of abandonment, the Mining Recorder shall Record of 
 record the same in the Record of Abandonments, and file such notice, and write abandonment, 
 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 placer claim is abandoned, and not the entire claim, the 
 memorandum in the record shall shew which interest is abandoned. 1891, ch. ' 
 
 26, sec. 135. 
 
 113. The Mining Recorder shall record, by copying out verbatim all affi- Record of 
 davits and declaratory statements brought to him in connection with his office, affidavits, 
 in the _Record of Affidavits. 1891, ch. 26, sec. 136. 
 
 114. The Mining Recorder shall record, by copying out verbatim, in the Record of 
 Record of Conveyances, all conveyances, mortgages, bills of sale, contracts for documents of 
 sale, and other documents of title, including powers of attorney, or other auth- title, 
 orities, to execute all or any of the above description of documents when, brought 
 
 to him for that purpose. 1891, ch. 26, sec. 137. 
 
 115. The Mining Recorder shall record all other documents relating to mining Regg^^ ^f 
 property which may be brought to him for record, and shall file all such docu- ^jher 
 ments which may be brought to him to be filed. 1891, ch. 26, sec. 138. documents. 
 
 116. Every entry made in any of the Mining Recorder's books shall shew gjjj^ ^^ gj^^^^ 
 the date on which such entry was made. 1891, ch. 26, sec. 139. date. 
 
 117. All books of record shall, during office hours, be open to public in- Books to be 
 spection free of charge, and documents filed shall be open to public inspection open for 
 upon payment of the fee set out in the Schedule to this Act. 1891, ch. 26, sec. inspection. 
 140. 
 
 118. 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 ^.^ j^^ ^^j t'^^'^^ 
 copy or extract by the Mining Recorder, shall be received m any Court as 
 evidence of the matters therein contained. 1891, ch, 26, sec. 141. 
 
812 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Placer Act, 119- Before issuing any free miner's certificate, or substituted certificate, or 
 R.S.B.C.,c.l3B 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- 
 
 reoeive docu- ments addressed to or intended for the Gold Commissioner, and forward the 
 
 mentfor game to the Gold Commissioner. 1891, ch. 26, sec. 143. 
 
 Commissioner. 
 
 To receive 121. 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 
 rent. 
 
 Moneys col- 
 lected to be 
 paid into 
 J-'rovincial 
 Treasury. 
 Recorder's 
 office. 
 
 Effect of es- 
 tablishing 
 Record office 
 in a mining 
 district. 
 
 122. The Mining Recorder shall collect all rents collectible under the con- 
 ditions of any lease or other documents granted under the provisions of this 
 Act. 1891, ch. 26, sec. 145. 
 
 123. The Mining Recorder shall forward to the Provincial Treasury all fees, 
 rents, fines, penalties, and other moneys collected and obtained by him in ac- 
 cordance 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 Min- 
 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 
 placer claims, records, certificates, documents, or other instruments af- 
 fecting claims, placer mines held as real estate, or placer mining pro- 
 perty, 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 ; 
 
 (S) 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 facts, 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 the Province. 1891, ch. 26, sec. 
 148. 
 
 Gold Commis- 126. When there shall be no Mining Recorder for a district or division, the 
 
 sioner to huve duties of the Mining Recorder shall devolve upon the Gold Commissioner, and 
 
 all powers of it shall at all times be lawful for the Gold Commissioner to perform the duties 
 
 Mining ^f ^he Mining Recorder, and the Gold Commissioner shall have all the powers 
 
 Recorder. ^^ ^ Mining Recorder. 1891, ch. 26, sec. 149. 
 
 Office hours. 127. 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. 1891, ch. 26, sec. 150. 
 
i-^ APPENDIX A.— MINING STATUTES. 813 
 
 Paut Tir Placer Act, 
 
 i-ABT 12L. R.S.B.C.,c.l36 
 
 Gold Commissioner's Powers. 
 
 128. It shall be lawful for the Gold Commissioner to jperform the following Powers of 
 acts in accordance with the provisions of this Act: — ■ Commissioner. 
 
 (tt) 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 ; 
 
 (e) Ho may extend the limits of a claim in "bench diggings" beyond the 
 limits of the bench, but not to exceed 100 feet square ; 
 
 (t) 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 mining posts to.be moved; 
 
 (ft) 'He may summarily order any mining works to be so carried on as not 
 to interfere with or endanger the safety of the public, any public work 
 or highway, or any mining property, mineral claim, placer claim, bed- 
 rock drain, or bed-rock flume; and any abandoned works may by his 
 order be either filled up, or guarded to his satisfaction, at the cost of 
 the party who may have constructed the same, or, in his absence, upon 
 such terms as he shall think fit ; 
 
 (i) He may, upon application made to him, allow a free miner such right of 
 entry upon any adjacent claim as may be necessary for the working of 
 his claim, and upon such terms as may to him seem reasonable ; 
 
 (;■) He may grant licences and rights of way for the purpose of construct- 
 ing drains or tunnels, and may exercise such powers as are specified in 
 Part III. of this Act; 
 
 (fc) 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 re- 
 newals of such leases, and exercise all such powers as are specified in Part 
 VII. of this Act. 1891, ch. 26, sec. 151, and 189T, ch. 29, sees. 4 and 6. 
 
 129. Notwithstanding anything contained in the "Gold Mining Amendment " Gold Mining 
 Act, 1873," or in any Crown grant issued under the said Act, or under this ■^™^°^™<*n* 
 or any other Act, it shall be lawful for the Gold Commissioner, In his discre- •^<='> 1°73. ' 
 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. 
 
814 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Placer Act. 130. The Gold Commissioner shall have power to do all things necessary or 
 
 R.S.B.C.,c.l36 expedient for the carrying out of the provisions of this Act. 1891, ch. 26, 
 
 sec. 153. 
 
 Full power to x 
 
 carry out this Administration. 
 
 Act. 
 
 Coihmissioner 
 to take deceas- 
 ed miner's 
 property. 
 
 Miner's intes- 
 tate estate of 
 less than $300 
 to be adminis- 
 tered by the 
 Gold Commis- 
 sioner free . 
 
 131. The Gold Commissioner shall take possession of the mining property 
 of any deceased free miner, and may cause such mining property to be duly 
 worked, or dispense therewith at his option. 1891, ch. 26; sec. 154. 
 
 132. The Gold Commissioner, or any person authorized by him, shall take 
 charge of all the property of any deceased free miner until the issue of letters 
 of administration or probate of the will, if any : Provided, however, that where 
 any free miner shall die intestate, and the value of the personal estate of such 
 deceased free miner is less tlian three hundred dollars, it shall not be necessary 
 fot the Gold Commissioner to obtain from any Court letters of administration, 
 but in such case the Gold Commissioner may administer and wind up the per- 
 sonal 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. 1891, ch. 26, sec. 155. * 
 
 Pakt X. 
 
 County Courts. 
 
 County Courts 
 to have powers 
 of Courts of 
 Law and 
 Equity in all 
 cases arising 
 out of mining 
 property. 
 
 Jurisdiction, Procedure, Forms, and Costs. 
 
 133. In addition to the jurisdiction and powers given to County Courts by 
 the " County Courts Act," and other Acts, every County Court shall have and 
 exercise, within the limits of its district, all the jurisdiction and powers of a 
 Court of Law and Equity — 
 
 (1) In all personal actions, where the debt or damages claimed arise direct- 
 ly 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 con- 
 sumption by persons engaged in mining or prospecting ; 
 
 (4) In all actions of trespass on or in respect of mineral claims or other min- 
 ing 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 niining) ; 
 
 (5) In all actions of ejectment from mineral claims or other mining pro- 
 perty, or from lands entered, or claimed to have been entered, in search- 
 ing for, mining, or working minerals (other than coal), or for any pur- 
 pose 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 miniing (other than coal mining) ; 
 
I.] APPENDIX A.— MINING STATUTES. 815- 
 
 (6) In all suits for foreclosure or redemption, or for enforcing any charge or Placer Act, 
 lien, where the mortgage, charge or lien shall be on mineral claims, R.S.B.C.,c.l36- 
 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 claim, mine, or other mining property ; 
 
 (8) In all suits for the dissolution or winding up of any mining partner- 
 ship, whether registered or not, under the provisions of this Act ; 
 
 (9) 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 bv this Act. 1891, ch. 26, 
 sec. 156, and 1897, oh. 29, sec. 6. 
 
 134. The jurisdiction given to County Courts by this Act shall be known as "Mining juris- 
 the "mining jurisdiction" of the County Court, and the woi-ds "mining juris- diction." 
 diction " shall be written or printed on all summonses, writs, and other 
 
 process, and all other documents, in every action or cause brought under the 
 mining jurisdiction of the County Court. 1891, ch. 26, sec. 157. 
 
 135. County Courts and County Court Judges, Registrars, Sheriffs, and other Poweis of 
 officers, shall have the same duties, powers, privileges, and authorities in all County Couit 
 actions and suits, and other proceedings brought under the mining jurisdiction p '.''"i"'."? „ 
 of the County Court, as they now have, or at any time hereafter may have, jurisdiction. 
 in actions and suits and other proceedings brought under the ordinary juris- 
 diction of the County Court and the provisions of all Acts for the time being 
 
 ifQ force regulating the duties and powers of County Courts and County 
 Court Judges, Registrars, Sheriffs, and other officers, and regulating the prac- 
 tice and procedure in County Courts, and all rules and orders for the time 
 being applicable to the ordinary jurisdiction of a County Court, shall, so far 
 as practicable and not inconsistent with this Act, apply to the mining jurisdic- 
 tion of the County Court. 1891, ch. 26, sec. 158. 
 
 136. Where disputes arise concerning mining property, portions whereof are ^'?P.'^*'^^ '° 
 situated in adjoining or different districts, the County Court of either of such j- f*^-"!"^ 
 districts before which the dispute is first brought shall determine it. 1891, ch. 
 
 26, sec. 159. 
 
 137. The hearing of any summons, plaint, or other process in any County Summonses to- 
 Court shall not be deferred beyond the shortest reasonable time necessary^ in the be made re- 
 interests of all parties concerned, and it shall be lawful for the Registrar to tumable as 
 make summonses or other proceedings returnable forthwith, or at any other f°°";uf„ 
 time. 1891, ch. 26. sec. 160. • possioie. 
 
 138. In all mining actions or suits the Court may decide the question at issue Court may de- 
 vipon the ground in dispute, and such decision shall be entered as in ordinary cide the ques- 
 cases. and have the same virtue and effect as if rendered in Court. 1891, ch. 26, tion on ground 
 sec. 161. in dispute. 
 
 139. In ahy mining cause or suit, either party may require that the issues Issues of fact . 
 of fact shall be tried by a jury, and the Judge may, before delivering judgment may be tried 
 in any action, suit or other proceeding, direct all or any issues of fact to be by jury. 
 found by a jury. 1891, ch. 26, sec. 162. 
 
 140. In all actions, suits, and other proceedings within the mining jurisdic- Costs. 
 tion of the Courfty 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 con- 
 sider the case of sufficient importance, he may order that costs be taxed as 
 
 in the Supreme Court, and the costs so ordered shall be costs recoverable in 
 such action, suit, or other proceeding. 1891, ch. 26, sec. 163. 
 
816 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Placer Act, 
 R.S.B.0.,0.136 
 
 Jurisdiction of 
 Comity Court 
 over real estate 
 held under the 
 ''Gold Mining 
 Amendment 
 Act, 1873." 
 
 141. 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 mining joint stock companies, or between . shareholders therein, or be- 
 tween 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 proceed- 
 ings 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. 1891, ch. 26, sec. 164. 
 
 Writs of oa. 142. Any County Court Judge having jurisdiction in mining causes, may 
 
 re. , ne exeat, direct the issuing of writs of capias ad respcmdenchim, ne exeat regno, and 
 and special or- special orders for the arrest and detention of judgment debtors in all cases in 
 ders for arrest, ^jjich 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. 1891, ch. 26, sec. 165. 
 
 Saving juris- 143. The jurisdiction given to the County Court by this Act shall not in any 
 
 diction of manner interfere with or lessen the jurisdiction of the Supreme Court. 1891, 
 
 Supreme Ct. ' ^h. 26, sec. 166. 
 
 Part XI. 
 
 Penal and MiseellamsoiiS. 
 
 of Act . 
 
 Penalty for 144. Any person wilfully acting in contravention of this Act, or refusing to 
 
 contravention ^j^y ^ny lawful order of the Gold Commissioner or of any Judge presiding in 
 a Court having jurisdiction in mining disputes, shall on conviction thereof in 
 a summary way before any two Justices of the Peace or a Stipendiary Magis- 
 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". 
 
 Eecoverv of 1^^- -^^^ ^^^ ^"^ penalties imposed or payable under this Act may be re- 
 
 penalties, covered 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. 
 
 Disposition of 
 moneys. 
 
 146. All fees, rents, fines, penalties and other moneys collected under this 
 Act shall be paid into the Provincial Treasury. 1891, ch. 26, sec. 169. 
 
 Saving exist- 
 ing rights and 
 public rights 
 of way and 
 water. 
 
 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, 
 Her heirs and successors, and to the public rights of way and water. 1891, ch. 
 26, sec. 170. 
 
 Copies of Act . 
 
 148. Every free miner, on application to the Mining Recorder, shall be en- 
 titled to a printed copy of this Act. 1891, ch. 26, sec. 171. 
 
 Before whom 
 affidavits are 
 to be made . 
 
 149. AfSdavits and declarations made under the provisions of this Act shall 
 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 AflSdavits. 1891, ch. 26, 
 sec. 172. 
 
I-] APPENDIX A.— MINING STATUTES. 8L7 
 
 Rules and Regulations. J^S!^ J^"^^' ^ 
 
 iv, o. B. C , c. lo6 
 
 150. The Lieutenant-Governor in Council may make such orders as are Lieut. -Goyer- 
 ■deemed necessary from time to time to carry out the provisions of this Act nor may mafes 
 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 °"' provisions 
 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 And to rejieye 
 clause contained full effect ; and from time to time alter or revoke any order against foi;- 
 or ordeirs 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 ''^ ^■ 
 •doljars, or not exceeding three months' imprisonment for violation of any regu- 
 lations under this Act; and further provide that any statement or returns re- 
 quired 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 j;"°g to^be 
 ■effect only after the same has been published for two successive weeks in the published 
 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. 
 
 Taxation of Mines axid Moneys invested therein. 
 
 151. Notwithstanding anything in this Act, mines and moneys invested Mines and 
 therein shall not be exempt from taxation, but shall bear such rate as may be moneys there- 
 imposed by any law in force in the Province. 1895, ch. 40, sec. 12. in invested not 
 
 exempt from 
 
 152. Inhere shall be levied and collected from the owner or occupier of every ^ , . , 
 mineral or placer claim of which a Crown grant has issued, including Grown 25 cents per 
 grants issued under authority of an Act made and passed in the 36th year of agrg jq be 
 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 ^Jrown grant, 
 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 
 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 the ^^^ ■ 
 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 there- 
 of to the purchaser. The purchase money shall be applied in payment of the j, ourchase 
 expenses of advertising and the payment of the tax, and any surplus shall be ^q^qE 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, to- 
 gether 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 ™ claim, 
 not be levied in respect of such claim for such year. 1896, ch. 34, sec. 163. 
 M . M . c . 52 
 
818 MARTIN'S MINING OASES. [vol. 
 
 Placer Act, 153. Where a claim has been recorded under any name, and the owner or his 
 
 R.S.B.C.,0.136 agent is desirous of changing the same, the Recorder of said mining division 
 
 may, upon application being made by such owner or agent, and upon payment 
 
 Change of of a fee of twenty-five dollars, amend the record accordingly : Provided, hovpBver, 
 that such change of name shall not in any way affect or prejudice any proceed- 
 ings or execution against the owner of the said claim. 1896, ch. 34, sec. 164. 
 
 name. 
 
 Where evi- 154. Whenever through the acts or defaults of any person other than the 
 
 dence of looa- recorded owner of a mineral claim or his agent by him duly authorized, the 
 
 *ff"' ri'" ' evidence of the location or record on the ground, or the situation of a mineral 
 
 throneh t It ^^^^^' ^^^ ''^^'^ destroyed, lost, or effaced, or is difficult of ascertainment, never- 
 
 of others *" ' Hheless, effect shall be given to same as far as possible, and the Court shall have 
 
 power to make all necessary inquiries, directions, and references in the premises, 
 
 for the purpose of carrying out the object hereof, and vesting title in the first 
 
 iona fide acquirer of the claim. 1896, ch. 34, sec. 165. 
 
 SCHEDULES. 
 
 Location Notice. 
 ISet out name of claim'] Placer Claim. 
 
 Take notice that [«et out the name of each locator] have this day located 
 this ground as a placer claim (or, as a set of placer claims,) to be 
 
 known as the Placer Claim, feet in length. Its general 
 
 direction is 
 
 Dated 
 
 IMark one post " Initial Post," and fix this notice on that post. If a set of 
 claims is located only one notice is requisite, iut there must be an initial post 
 for each claim.] 
 
 1891, ch. 26, A. 
 
 B. 
 
 Record of a Placer Claim. 
 IName of claim] PlacBr Claim. 
 
 Located by No. of certificate, 
 
 ISet out the name of each locator, and the numier of each locator's free 
 miner's ceriificate, opposite such name.] 
 The claim is situate 
 
 The length of the claim is feet. 
 
 Recorded for years. 
 
 Located on the day of , 18 . 
 
 Recorded this day of , 18 . 
 
 1891, ch. 26, B. 
 
 C. 
 
 Re-record of a Placer Claim. 
 
 [Name of claim] Placer Claim. 
 
 [Set out the name of each holder of an interest in such claim, and the num- 
 ber- of each holder's free miner's certificate.] 
 
 The claim is situate 
 
 'Re-recorded for years, to commence to run from the day 
 
 of , 18 . 
 
 Re-recorded this day of , 18 . 
 
 1891, ch. 26, C. 
 
!•] APPENDIX A.— MINING STATUTES. 819 
 
 I>- Placer Act, 
 
 R.S.B.C.,c.l36 
 Record of a Set of Placer Claims. 
 
 iSet out the name of each claim.'i 
 Located in the partnership name of 
 
 The members of the partnership and the numbers of their respective free 
 miner's certificates are : — 
 The claims are situate 
 The length of each claim is feet. 
 
 Recorded for years. 
 
 Located on the day of , 18 . 
 
 Recorded on this day of , 18 . 
 
 1891, ch. 26, D. 
 
 Tunnel or Drain Licence. 
 
 To all whom it may concern : — 
 
 Take notice that , a free miner and the owner of , having 
 
 given security to the amount ©f for any damage he may do, has this 
 
 day obtained a licence from me to run a tunnel (or drain) from to 
 
 his said claim. The said licence is granted on these express conditions : — 
 
 ISet out conditions, if any.} 
 Dated 
 
 Gold Commissioner. 
 1891, ch. 26, E. 
 
 Application for Puplio 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: — 
 
 ISet out privileges sought to he acquired.] 
 
 Dated 
 
 To the Gold Commissioner. 
 
 [Post notice on ground and in Mining Recorder's Office, setting out appli- 
 cation.] 
 
 1891, ch. 26, F. 
 
 G. 
 
 Scale of Fees to 6e Charged. 
 
 For every free miner's certificate issued to an individual S 5 OO 
 
 For every free miner's certificate issue'd to a joint stock company : — 
 
 (a) Having a nominal capital of $100,000.00 or less 50 00 
 
 (6) Having a nominal capital exceeding $100,000.00 100 00 
 
 Every substituted certificate .' 1 00 
 
 Recording any claim (for each year) 2 50 
 
820 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 Placer Act, Ke-recording any claim (for each year) $2 50 
 
 B.S.B.C.,c.l36 Becording 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 abovBrnamed 
 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. 
 
 Min. Amend- 
 ment Act, 1898 
 
 61 Vict. Chap. 32. 
 
 An Act respecting Applications for Certificates of Improvements under th-e 
 
 " Mineral Act." 
 
 Preamble . 
 
 Short title. 
 
 Validates giv- 
 ing of notice 
 under s.-R. [e] 
 of s. 36 of 
 ' ' Mineral 
 Act." 
 
 Future con- 
 struction of 
 said sub- 
 section. 
 
 [16tli March, 1898.'] 
 
 WHEREAS by sub-section '(e) of section 36 of the " Mineral Act," a copy of 
 the notice of application for a certificate of improvements of a mineral 
 claim is required to be advertised as is therein prescribed; 
 
 And whereas it ha§ become customary to include in one notice a number 
 of claims, but such course has been held illegal ; 
 
 And whereas a large number of such notices have been published in .good 
 faith and under a mistake as to the meaning of the law, and as no injury 
 appears to have resulted therefrom, it is desirable to validate applications for 
 certificates of improvements so far as such notices affect the' validity thereof ; 
 
 Therefore, Her Majesty, by and with the advice and consent of the Legisr 
 lativB Assembly of the Province of British Columbia, enacts as follows : — 
 
 1. This Act may Tse cited as the " Mineral Claim Advertisement Act, 1898." 
 
 2. Any notice heretofore inserted- in the British Columbia Gazette, and in a 
 newspaper, and purporting to be published under sub-section (e) of section 36 
 of the " Mineral Act," shall, unless heretofore attacked in legal proceedings, be 
 deemed sufficient notwithstanding that it contains the names of two or more 
 mineral claims, and no objection not heretofore taken shall be now taken to 
 any such notice on such ground, if the same is in other respects in accordance 
 with the provisions of the "Mineral Act." 
 
 3. Hereafter the said sub-section shall not be construed as requiring the 
 separate publication of a copy of a notice in respect of each mineral claim, 
 where such notice shall contain 'the names of two or more mineral claims. 
 
I-] APPENDIX A.— MINING STATUTES. 821 
 
 Gl Vict. Chap. 33. ^,. , 
 
 Mm. Ametid- 
 
 An Act to Amend the "Mineral Act." 'ment Act, 1898 
 
 H 
 
 [20th May. ifiSS.] 
 
 ER JIA.IESTY, by and with the advice and consent of the Legislative 
 Assembly of the Province of British Columbia, enacts a s follows : — 
 
 1. This Act may be cited as the " Mineral Act Amendment Act, 1898." Short title. 
 
 2. Section 2 of the " Mineral Act " is hereby amended by striking out all Amends s. 2 
 ■Uie words after " stone " on the 15th line of said section down to and including (building 
 the word " purposes " on the 16th line. stone). 
 
 3. Section 15 of the said Act is amended by adding as sub-section (a) Amends s. 15 
 the following : — 
 
 . " (a) Any free miner desiring to locate a fractional mineral claim shall, sub- Size and fonn 
 ject to the provisions of this Act with respect to land that may be used for °f . ® i""'^'" >* 
 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 
 fight angles nor the lines be meridional, and the lines of the iireviously 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 the size of a fractional mineral claim it shall be measured 
 horizontally, irrespective of inequalities of the surface of the ground." 
 
 4. Section 16 of the said Act is hereby repealed and the foUowiiig enacted in Amends s. 16. 
 lieu thereof : — 
 
 " 16. A mineral claim shall be marked by two legal posts, placed as near as Mode of stak- 
 possible on the line of the ledge or vein, and the posts shall be numbered 1 and infr a claim. 
 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 niineral claim, 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.' 
 
 " All the particulars required to be put on No. 1 and No. 2 posts shall be 
 furnished by the locator to the Mining Recorder, in writing, 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 or erect monuments of 
 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 
 , iclaim 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. 
 
822 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Min. Amend- " Examples of Vakious Modes of Laying Out Claims Located as Full 
 ment Act, 1898 Sized Mineral Claims. 
 
 No.,1 Ppst. 
 
 No.: 
 
 Post. 
 
 
 250' 
 
 1250' 
 
 
 1 
 
 
 ■>1 
 
 o Discovery 
 Post.. 
 
 
 250' , 1250' 
 
 
 No. 
 
 1 Post. 
 
 
 ?< 
 
 
 •No. 
 
 2 Post. 
 
 ■im ' 400- 
 
 
 J 
 
 Disoovefy Post, o 
 
 llOO' 
 
 iixy 
 
 No. i Post. 
 
 " It shall not be lawful to move No. 1 post, but No. 2 post may be moved -by 
 the Provincial Land Surveyor when the distance between Nos. 1 and 2 posts 
 exceeds 1,500 feet in order to place No. 2 post 1,500 feet from No. 1 post on the 
 line of location. When the distance between posts Nos. 1 and 2 is less than 
 1,500 feet, the Provincial Land Surveyor has no authority to extend the claim 
 beyond No. 2. 
 
 " But in case either No. 1 or No. 2 post be on the boundary line of a 
 previously located claim, which boundary line is not at right angles to said 
 location line, the Provincial Land Surveyor shall include the fraction so created 
 within the claim being surveyed: Provided always, that the whole claim does 
 not exceed an area of 51.65 acres. 
 
 " The ' location line ' of a mineral claim located as a full sized mineral claim, 
 shall govern the direction of one side of the claim, upon which the survey shall 
 be extended according to this Act. 
 
 " (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 ; 
 
 " (5) 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 appli- 
 cation being accompanied by an affidavit or solemn declaration in the 
 Form S., made by the applicant or some person on his behalf cognizant 
 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 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 culti- 
 vation, 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 with- 
 out 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, mad© 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 re- 
 corded; that the ground applied for is unoccupied by any other person 
 
i-l APPENDIX A.— MININ(5 STATUTES. 823 
 
 as a. mineral claim, and is not occupied by any building or any laud fall- Min. Amend- 
 ing within the curtilage of any dwelling-house, or any orchard, or any ment Act, 1898 
 
 land under cultivation, or any Indian Reservation. In the said declara- 
 
 tion 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, express- 
 ed in feet, of the fraction desired to be recorded ; 
 
 *' {d) A fractional mineral claim shall be marked by two legal posts placed 
 as near as possible on the line of the previously located mineral claims, 
 and shall be numbered 1 and 2, and the distance between posts 1 and 2 
 shall not exceed fifteen hundred feet, the line between post 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 be written in 
 addition to the foregoing, initial post, the approximate compass-bearing 
 of No. 2 post, and as full a description as possible of the land bounding 
 the fractional claim ; 
 
 ■" (e) The Provincial Land Surveyor, when surveying a fractional mineral 
 claim, whether located before or after the passage of this Act, may 
 survey such claim so that it shall contain, as nearly as possible, all the 
 unoccupied ground lying between the previously located mineral claims, 
 as described in the affidavit and by the sketch plan made by the locator 
 when the claim was recorded, provided that no side of a fractional min- 
 eral claim shall exceed fifteen hundred feet in 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 (f) of sec. 16 of 
 this Act, shall apply to all fractional mineral claims located, and to the 
 surveys of fractional mineral claims made after the passing of this Act, and 
 shall also apply to the completed surveys of fractional mineral claims the field- 
 notes of which have not yet been accepted by the Department of Lands and 
 Works, notwithstanding anything hereinbefore enacted. 
 
 "(fir) 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 bon& fide attempt to com- 
 ply 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 cai'ry out the provisions of this Act, according to their 
 
824 MARTIN'S MINING CASES. [vol. 
 
 Min. Amend- true intent, and to meet the cases which may arise and for which no pro- 
 ment Act, 1898 vision is made, or, when the provision is made, is ambiguous or doubt- 
 ful." 
 
 -Amfinrtfl ^ 24 
 
 5. Section 24 of the said Act is herfeby amended by adding the following : — 
 
 Record of car- " Provided that if said free miner shall have done the work within the 
 
 tifioate of worlc year, and if he shall, within thirty days after the time for obtaining and 
 
 1 ^d""^ recording said certificate, record the same and pay an additional fee of ten 
 
 e apse . dollars ($10), such record shall have the same effect as if recorded within the 
 
 year. 
 
 Assessment " Provided, further, should any free miner perform assessment work on 
 
 work in excess his claim during any one year to the value of one hundred dollars ($100) 
 
 of $100 per oj. more, in excess of the amount of work required to be done in any one year 
 
 annum. j^y ^.j^j^ ^^.j.^ j^g shall have the right of recording a certificate of the work done 
 
 to the value of each one hundred dollars ($100), so as to cover his assessment 
 
 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." 
 
 Re-enacts s. 35. g Section 35 of the said Act'is hereby repealed, and the following sub- 
 stituted in lieu thereof : — 
 Purchase of a ..35 ^„y ja^f^i jjoi^gr of a mineral claim shall be entitled to a Crown 
 
 mmeiai oiaira. ^^^^^ 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 gtant. 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." 
 
 Re-enacts s. 36, j_ Sub-section (o) of sec. 36 6t the said Act is hereby repealed, and the 
 s.-s. (a). following substituted in lieu thereof : — 
 
 Work to be " (o) Done, or cause to be done, work on the claim itself in developing a 
 
 done, etc., be- mine, and paid money, together amounting to the value of five hundred 
 
 tore certihcate dollars, exclusive of all hotises, buildings, and other like improvements, 
 
 mentseranted ^"'^ ^^^ purpose of this section, work done on the claim by a predtecessor 
 
 or predecessors in title shall b8 deemed to have been done by the aijpli- 
 
 cant who receives a transfer of such claim." 
 
 Re-enacts s. 36 8- Sub-section (g) of sec. 36 of the said Act is hereby repealed, and the 
 s.-s. Ig). ' following substituted in lieu thereof : — 
 
 "(g) Filed with the Mining Recorder — 
 
 Notices of "(1) The copies of the British Columbia Gazette and newspaper con- 
 
 application, taining the notices of application for certificate of imijrovements ; 
 
 Affidavit, "(2) Affidavit of the holder of the claim, or his agent, in the Form G. 
 
 form of. in the Schedule of this Act." 
 
 Re-enacts s 37 ^- Section 37 of the said Act is repealed and the following substituted : — 
 Certificate of "37. (1) A certificate of improvements when issued as aforesaid shall not 
 
 improvements be impeached in any Court on any ground except that of fraud. 
 
 peached except "(2) In case any person shall claim an adverse right of any kind, either 
 for fraud. to possession of the mineral claim referred to in the application for certificate 
 
 Adverse claim- of improvements or any part thereof, or to the minerals c6ntained therein, he 
 ant. shall, ^vithin sixty days after the pujilication in the British Columbia Gazette 
 
!■] AI>PBNDIX A.— MINING STATUTES. Ji25 
 
 of the notice referred to in sec. 3G hereof (unless such time shall be extended Min. Amend - 
 by special order of the Court upon cause being shewn), commence an action in mentAct, 189& 
 
 the Supreme Court of British Columbia to determine the question of the right 
 
 of possession or otherwise enforce his said claim, and shall file an affidavit, to be Action to be 
 made by the person asserting the adverse claim, and setting forth the nature, commenced 
 boundaries and extent of such adverse claim, together with a map or plan 
 thereof, made and signed h^ 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 w;ithin twenty days from the commence- 
 ment of said action, and shall prosecute the said suit with reasonable diligence 
 to final judgment, and a failure to so commence or so to iprosecute shall be 
 vdeenied to be a waiver of the plaintiff's claim. After final judgment shall Certified copy 
 have been rendered in the said action the person or any one of the persons "^ •'" l^'S?"! 
 entitled to the possession of the claim or any part thereof, may file a certified ™*y ™ "'®° 
 copy of the same in the office of the Mining Recorder. After the filing of the p„rt,fip„»„ „c 
 said judgment, and upon compliance with all the requirements of the next pre- improvements 
 ceding section, such person or persons shallbe entitled to the issue to him or to after judg- 
 them of a certificate of improvements in respect of the claim or the portion meet, 
 thereof which he or they shall appear from the decision of the Court rightly 
 to possess : Provided that this section shall not apply to any adverse claim J^«nding li'i- 
 filed or action to enforce the same commenced prior to the date of this Act sat'on. 
 coming into force, but the same shall be continued in the same manner as if this 
 Act had not been passed." 
 
 10. Section 127 of the said Act is hereby repealed and the following sub- Re-enacts s. 
 stituted in lieu thereof : — 127. 
 
 " 127. 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 ^ ^^ counted 
 before the passing of this Act, then if surveyed before the fiiiit day of May, ^^ ^]°'im 
 1899, 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 section 3(i 
 of the ' iliueral Act,' and that he has delivered two plats of the claim and 
 a ^opy 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." 
 
 11. In any adverse proceedings hereafter brought before the Conrt under Affirmative 
 the " Mineral Act," each party to such proceedings shall give affirmative evid- evidence in 
 eUce of title to the ground in controversy, and if such title shall not be estab- adverse pro- 
 lished by either party the Judge shall so find, and judgment shall be entered oeedings. 
 according to such finding without costs to either party. 
 
 12. Section 128 of the " Mineral Act " is hereby repealed, and the following Re-enacts s. 
 is substituted therefor : — 128. 
 
 "128. The owner of a mineral claim (located on waste lands of the Crown, Puroha.se by 
 or on lands not already occupied for other tlfen mining purposes) for ^^hich a Crown grant of 
 Crown grant has issued or may hereafter issue, shall, so long a.-! the surface surface rights 
 rights thereof remain in the Crown unencumbered and unreserved, be entitled to "" waste lands 
 receive a Crown grant of such surface right, on payment to the Government 
 of British Columbia of the sum of five dollars per acre for such land, and a 
 fee of five dollars for the Crown grant." 
 
 13. Clause 2 of Form G of the Schedule to the said Act is hereby repealed, Amends Form 
 and the following substituted in lieu thereof: — s'ohedule. 
 
 " 2. I, have done, or caused to be done, work on the said claim 
 
 in developing a mine, and paid money, together amounting to the value of at 
 least five hundred dollars, full * particulars whereof are hereunto annexed and 
 marked ' A.' " 
 
•826 
 
 MARTIN'S MINING CASES. 
 
 [YOL. 
 
 Him. Amend- ^^- The schedule of fees of the said Act is hereby amended by inserting 
 ment Act, 1898 after the word " work," in line eight, the following " and filing affidavit." 
 
 Amends 
 Schedule of 
 Fees. 
 
 Re-enaota s.47. 
 Adverse claim 
 affecting only 
 portion of 
 <clainii. 
 
 Penalty for 
 altering, etc., 
 legal post . 
 
 15. Section 47 of the said Act is hereby repealed, and the following en- 
 acted in lieu thereof : — 
 
 " 47. If an adverse claim shall only affect a -portion of the ground for 
 which a certificate of improvements is applied, the applicant shall neverthe- 
 less 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 sum- 
 mary 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, al1;ers,,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 Taw required to be thereon. 
 
 'Filing of dup- 17. On the passage of this Act, the Chief Commissioner of Lands and 
 licate field- Works shall at once cause the duplicate field-notes of the surveys of all mineral 
 notes of Crown claims to which Crown grants have been issued, or may hereafter be issued, 
 ^'■thM'"'™^*'*' be filed, for reference, in the office of the Mining Recorder in the mining 
 Recorder'"*^ division within which the mining claims are situated. 
 
 PlacerAmend- 
 ment Act, 1898 
 
 H 
 
 61 Vict. Chap. 34. 
 
 An Act to Amend the " Placer Mining Act." 
 
 [20th May, 1898.1 
 
 BR MAJESTY, by and with the advice and consent of the Legislative As- 
 sembly of the Province of British Columbia, enacts as follows : — 
 
 Short title. 
 
 1. This Act may be cited as the 
 Act, 1898." 
 
 Placer Mining Act (1891) Amendment 
 
 Amends, s. 9. 2. Section 9 of the said Act is hereby amended by the addition thereto of 
 
 the following proviso : — 
 
 Purchase of 
 -claims from 
 persons who 
 have failed to 
 take^out free 
 
 " 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 
 miner's licences interest therein, may, within one month from the time when he or it shall first 
 acquire knowledge thei'eof, 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." 
 
 Re-enacte s. 3. Section 102 of the said Act is hereby repealed and the following substi- 
 
 102. tuted in lieu thereof : — 
 
 Consolidation " 102. Any free miner, or two or more free miners, holding adjoining leases 
 
 of leases. ^^ creek claims, or leases of any other placer mining grounds, may consolidate 
 
 as many as ten leases, by filing with the Mining Recorder a declaratory state- 
 
I-] APPENDIX A.— MINING STATUTES. 827 
 
 ment containing tlie name of th? company or partnership which is to hold the pia™r Ampnrt 
 consolidated lease, the location and size of each lease; and such statement' shall ment Act 18')8 
 
 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." 
 
 4. Any free miner, or two or more free miners, holding adjoining leases of Consolidation 
 placer mining ground,' may consolidate his or their holdings into one holding, of leases not to 
 not to exceed six hundred and forty acres, by filing with the Mining Recorder '^''oeed 640 
 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 con- 
 solidated. 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 Water grant 
 may be used on any one of such consolidated leases ; and provided further, that appurtenant, 
 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 suph leases may, in lieu of the required expendi- 
 ture in work on such leases in each year, pay to the Mining Recorder of the Payment to 
 Mining Division in which such leases are situate, a sum equal to twenty-five Mining Re- 
 per cent, of the aggregate amount required to be so expended in work on the corder in lieu 
 consolidated leases, and receive from such Recorder and record a receipt for such of expenditure 
 payment ; and payment and record thereof in any year shall relieve the person Pf^"/ °^ 
 making it from the upcessity of doing any work during the year in and for 
 which and upon the lease iu respect of which such payment is recorded. 
 
 H 
 
 62 Vict. Chap. 50. ^, 
 
 Placer Amend- 
 All Act to- Amend the "Placer Mining Act." mentAct,1899 
 
 [18th Janaary, 1899.'\ 
 
 ER MAJESTY, by and with the advice and consent of the Legislative As- 
 sembly of the Province of British Columbia, enacts as follows: — 
 
 1. This Act may be cited as the " Placer Mining Act Amendment Act, 1899." ^^^^ ^^^ 
 
 2. Section 3 of ch. 13ff of the Revised Statutes is hereby repealed and . the j^^^^^^^^^ ^_ 3 
 following substituted therefor : — 
 
 "3. (1) Every person who is not less than eighteen years of age and is a p 
 British subject shall be entitled to all the rights and privileges of a free miner ^..^j^^ ^ .^^_^ 
 under this Act, and shall be considered a free miner under this Act upon taking ^^ f^^^ miners, 
 out a free miner's certificate, as long as such certificate remains in force. A 
 free miner's certificate shall not be transferable. 
 
 " (2) No joint stock company or corporation shall be entitled to take out Corporations 
 a free miner's certificate under this Act unless the same has been incorporated, entitled to 
 and not simply licenced or registered, under the laws of this Province, and such rights, 
 unless such company or corporation is authorized to take out a free miner's 
 certificate by the Lieutenant-Governor in Council. Such authorization may at 
 any time be cancelled, and in case of such cancellation such company or cor- 
 poration shall not be entitled to take out a free miner's certificate under this Act, 
 
828 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Placer Amend- 
 ment Act, 1899 
 
 Unauthorize i 
 licences. 
 
 Application of 
 section, to ex- 
 isting licences. 
 
 Pree miners 
 not to hold 
 claims in trust 
 for unauthoriz- 
 ed peisons. 
 This section 
 not to apply to 
 dredging 
 leases or 
 hydraulic 
 mining. 
 Provisions of 
 c. 136 subject 
 to this Act. 
 
 but any free miner's certificate already taken out shall remain in force until its 
 expiry. The word " person " in this section shall include only such companies 
 or corporations as aforesaid. 
 
 "(S) A free miner's certificate taken out by any person not authorized so 
 to do by this section shall be null and void. 
 
 "(4) A free miner's certificate issued before the coming into force of this 
 seetioin, the holder of which is not a British subject, shall not entitle the person 
 holding the same to take up, record, or acquli^e any interest in any claim 
 under the 'Placer Mining Act,' but such certificate shall be valid only witb 
 regard to claiins 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 certifidate shall 
 only be valid with regard to claims recorded under the ' Placer Mining Act ' 
 under the circumstances in this sub-section stated. 
 
 "(5) No free miner, after the coming into force of this section, shall hold 
 any claim under said ' Placer Mining Act,' or any interest therein, as trustee 
 or otherwise, for any person who is not a British subject, or for any corporation 
 not authorized to take out a free miner's certificate as above provided. 
 
 "(6) This section shall not apply to persons to whom the Lieutenant- 
 Governor in Council may, under the provisions of the ' Placer Mining Act,' grant 
 a lease for dredging, land for what is known as hydraulic mining, as distin- 
 guished from ordinary placer sluicing." 
 
 3. All the provisions in said ch. 136 as to the rights, privileges, and powers 
 of free miners shall be subject to Che provisions of this Act. 
 
 Min. Amend- 
 ment Act, 1899 
 
 62 Vict. Chap. -15. 
 An Act to Amend the " JiJlnoral Act." 
 
 lZ7th February, 1899.] 
 
 H 
 
 ER MAJESTY, by and with the advice and consent of the Legislative As- 
 sembly of the Province of British Columbia, enacts as follows : — 
 
 Short title. 
 
 1. This Act may be cited as the " Mineral Act Anjendment Act, 1899." 
 
 Re-enacts ss. 
 4 and 5 . 
 
 2. Sections 4 and 5 of ch. 135 of the Revised Statutes of British Columbia 
 are hereby repealed, and the following substituted therefor : — 
 
 Duration of "' 4. A free miner's certificate shall run from the date thereof and shall 
 
 miner's certifi- expire at midnight on the thirty-first day of May next after its date, or some 
 cate. subsequent thirty-first day of May. Only one person or joint stock company 
 
 Pees therefor, 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 
 Who may is-sue a„y Gold Commissioner or Mining Recorder." 
 
 Form of 
 certificate . 
 
 Any free miner's certificate shall be in the following form : — 
 
l-l APPENDIX A— MINING STATUTES. 8,29 
 
 " BRITISH COLUMBIA. iMin. Amend- 
 ment Act, 1899 
 
 " Fbeb Miner's Ceiitipicate. 
 
 " (Not transferable.) 
 
 " No. 
 " This is to certify that of is entitled 
 
 to all the rights and privileges of a free miner from midnight on the * 'Insert here 
 
 day of A.D. , until midnight on the thirtv-first dav of May. '''^ "J**® "j.*'"* 
 
 one thousand (AD ) ' day immedi- 
 
 ., . , \ ■ I- ately preoed- 
 
 Issued at ing the day on 
 
 which certifi- 
 
 "(Signature of officer issuing same.)" cate is taken 
 
 out, 
 
 3. A person may at any time prior thereto, and not later than the thirty- Renewal of 
 first day of May, or if the thirty-first day of May is a holiday, then on the next certificate, 
 day which is not a holiday, obtain from the proper ofiicer, 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 therc- 
 . after, or any subsequent thirty-first day of May. 
 
 4. In case any person should allow his free miner's certificate to expire he Sp^"'®! certifi- 
 may obtain from the proper ofiicer. upon payment of a fee of fifteen dollars, a''* 
 
 special free miner's certificate. Such special certificate shall have the effect of Effect 
 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 " 
 uad 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 mid- 
 night of the thirty-first day of May next after its issue. In the case of a com- 
 pany the fee for such special certificate shall be three hundred dollars. Such 
 certificate shall be in the following form : 
 
 " BRITISH COLUMBIA. 
 
 " Special Fkbe Mineb's Ceetificate. 
 
 " (Not transferable.) 
 
 " No. . Form of 
 
 " This is to certify that , of has paid ^f;^^'^! '"''*- 
 
 me the sum of (fifteen or three hundred) dollars (as the case may be), and is 
 
 entitled to all the rights and privileges of a free miner from midnight of "insert here 
 the* day of ,A.D. , until midnight of the thirty- the date on 
 
 first day of May, A.D. . . whioji certifi- 
 
 ,, ^ T ^ cate IS i&suea . 
 
 Issued at 
 
 "(Signature of officer issuing same.)" 
 
 5. Section 9 of said ch. 135 is hereby amended by striking out all the words (i"r"h^seof ' 
 after " issued " in the twenty-first line thereof. claim wherede- 
 
 fault in keeping 
 
 6. Sections 8, 10, and 11 of said ch. 135 are hereby repealed. Re^e^inrl ' 
 
 10 and 11.' 
 7 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 d.me and 
 has paid the sum of five hundred dollars and recorded the same as provided by 1^^^^^°^^ 
 sec. 25 of said ch. 135, or has made up said sum of five hundred dollars partly ™Pi™dXr no 
 in one way and partly in the other, and has applied for a certificate of improve- ^^^^ ^^^^'^ 
 ments as provided by sec. 36 of said ch. 135, it shall not be necessary to do any „eed be done 
 
 while certifi- 
 cate in force . 
 
830 MARTIN'S MINING CASES. [vol. 
 
 Min. Amend- more work or pay any more money in connection with such mineral claim as 
 ment Act, 1899 provided by said sees. 24 and 25, until the certificate of improvements has been 
 
 issued and as long as such certificate of improvements remains in force. 
 Mining Re- 
 corders with- 8. All the powers conferred upon Gold Commissioners by said ch. 135 may 
 tnrv to'^havp' ''* P«''^°'^™ed by Mining Recorders, with regard to mineral claims within the 
 all powers of *'^'^'i'^t°'-'y ^O"" which they have respectively been appointed. 
 
 missiontr. 9- Sub-section (g) of sec. 36 of ch. 135, as enacted by sec. 8 of ch. 33 of the 
 
 Pe-enacts s. Statutes of 1898, is hereby struck out, and the following substituted : — 
 36, s.-a.{g). "(3) piigji ^jti^ tt^ Mining Recorder— 
 
 application "^^^ Affidavit of the holder of the claim, or his agent, in the Form G 
 
 in the Schedule of this Act ; 
 
 and shall produce, for the information of the Mining Recorder, the copies 
 of the British Columbia Gazette and newspaper containing notices of 
 application for certificate of improvements." 
 
 Re-enacts s. 40 10. Section 40 of said ch. 135 is hereby repealed, and the following substi- 
 tuted therefor : — 
 
 Application " 40. The holder of a mineral claim for which a certificate of improvements 
 
 for Orown has been granted and recorded, shall make application to the Minister of Mines, 
 grant. enclosing his certificate of improvements, the Crown grant fee of ten dollars, 
 
 the Mining Recorder's certificate. Form I, the field-notes and plat, and the 
 affidavit. Form G, within three months from the date of such certificate of im- 
 provements, and in default of such application having been made within such 
 time, such certificate of improvements shall lapse and become absolutely void." 
 
 km 
 
 Action against H- -^"y person who has performed work or paid money in connection with 
 co-owner to a mineral claim as provided by sec. 24 of said ch. 135, shall be entitled to 
 recover value recover from a co-owner, by suit in any Court of competent jurisdiction, for 
 of his propor- the proportionate part of said work or money which should have been done or 
 tion of assess- paid by such co-owner, 
 ment work . 
 
 Amends s. 32. 12. Section 32 of said ch. 135 is hereby amended by adding thereto as sub- 
 sec. (2) the following : — 
 
 Re-location fee "(2) A fee of ten dollars shall be paid for such permission." 
 
 Amends s. 37. ^3- Sub-section (2) of sec. 37 of said ch. 135, as enacted by sec. 9 of said 
 ch. 33, is hereby amended by inserting after the word " action," in the fifteenth 
 Proceedings to line thereof, the words "(unless such time shall be extended by special order of 
 enforce ad- the Court upon cause being shewn.)" 
 verse claim. 1 , j 1,1 ; , ; . 1 1 n ■ ' 
 
 Amends s 127 ^4. Section 127 of said ch. 135, as enacted by sec. 10 of ch. 33 of the 
 Wh rvev Statutes of 1898, is hereby amended by striking out the words " one year " in 
 to bB^oounted ^he second line thereof, and substituting therefor the words " two years," and 
 as work done by striking out the figures " 1899 " in the fourth line thereof and substituting 
 on claim. - therefor th? figures "1900." 
 
 Amends s . 143 15. Section 143 of said ch. 135 is hereby amended by striking out the words 
 Power to re- " and may also make regulations for relieving against forfeitures arising under 
 lieve against sec. 9 of this Act," in the fifth, sixth, and seventh lines thereof, 
 forfeiture 
 
 abolished, ig_ Section 145 of said ch. 135 is hereby amended by striking out the word 
 
 Amends s. 145 " to," in the fourteenth line thereof; and also by striking out the words "the 
 Gold Commissioner," in the fourteenth and fifteenth lines thereof, and by strik- 
 ing out the words " Gold Commissioner, Mining Recorder or," in the thirty- 
 fourth line thereof. 
 
 Schedule of 17. The Schedule of Fees to be charged as provided in said ch. 135 is hereby 
 
 fees amended, amended as follows: — 
 
!•] APPENDIX A.— MINING STATUTES. 
 
 831 
 
 " For every free miner's certificate for a period for less than a year, a pro- Min Ainpnd- 
 portionate part of the fee charged for a certificate for a year. meat Act, 1899. 
 
 " For recording every abandonment, including the memorandum to be written 
 
 in the record, ten dollars instead of two dollars and fifty cents. 
 
 " For a Crown grant, ten dollars instead of five dollars. 
 
 " For abstracts and other certificates, such fees as the Mining Recorder may 
 consider fair, subject to appeal to the Minister of Mines." 
 
 18. Tlje Minister of Mines may provide for keeping a register of all free Remster of 
 miners' certificates Issued in the Province, and for all persons issuing the same miners' 
 
 to make returns to him for that purpose. Such Register shall shew number of certificates 
 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. 
 
 19. Crown grants of mineral claims shall shew the interest of each grantee q^^ ^^^ grants 
 in the claim. ,hail blfow 
 
 interest of 
 
 20. Nothing in this Act contained shall affect anything done or suffered, or each grantee . 
 any right, title, or interest acquired or accrued before the coming into force of Saving elause. 
 this Act, or any legal proceeding or remedy in respect of any such thing, right, 
 
 title, or interest. 
 
 21. This Act shall come into force on the first day of May, A.D. 1899. Commenoe- 
 
 ment. 
 
 H 
 
 62 Vict. Chap. 49. Inspection of 
 
 Metalliferous 
 An Act to Amend the " Inspection of Metalliferous Mines Act." Mines Amend- 
 ment Act,lS99 
 [U7th February, IBSS.I 
 
 BR MAJESTY, by and with the advice and consent of the Legislative As- 
 sembly of the Province of British Columbia, enacts as follows:- — Short title. 
 
 Amends s . 8 . 
 
 1 This Act may be cited as the " Inspection of Metalliferous Mines Act Inspector's 
 Amendment Act, 1899." ItZZ'",, 
 
 2. Section 8 of ch. 134 of the Revised Statutes of British Columbia is hereby i^'"fetor'to"'" 
 amended by inserting after the word " shall," in the sixth line thereof, the word ^^^ „p ^t 
 "forthwith," and by adding thereto the following sub-sec. (o) — mouth of mine 
 
 "(a) It shall be the duty of the Inspector to forthwith post up, or cause to copy of notice 
 be posted up, in a conspicuous place at the mouth of the mine or at some other ™.°r'"r'"con 
 conspicuous place thereon, a copy of such notice in order that workmen m and ^^^^^ ^^^^^^^ j^ 
 about said mine may become aware of the contents thereof. dangerous . 
 
 Amends s. 10. 
 
 3 Section 10 of said ch. 134 is hereby amended by striking out the word Owners and 
 " or " in the fourth line, and substituting therefor the word " and." others to give 
 
 ' notice of seri- 
 
 4 Section 13 of said ch. 134 is hereby repealed, and the following substituted ous accident. 
 
 ., ", Rfi-enacts s . 13- 
 
 therefor : — m t 
 
 " 13. No person shall be employed underground in any metalliferous mine for ^J'^P^';^j°" «> 
 more than eight hours in every twenty-four hours. _ underground 
 
 more than S 
 hours in every 
 24. 
 
832 
 
 MARTIN'S MINING OASES. 
 
 [VOB. 
 
 Insp. of Met. 
 Miu. Amend- 
 ment Act, 1899 
 
 Amends s. 23. 
 Plans of mine . 
 
 Inspection of 
 plana by In- 
 spector to 
 ascertain 
 whether en- 
 croachment 
 taking place. , 
 Amends sub- 
 section Xi-) of 
 s. 2.5. ■ 
 Ventilation of 
 mine. 
 
 5. Section 23 of said ch. 134 is hereby amended by striking out the word 
 " six," in the fifth line thereof, and substituting therefor the word " three." 
 
 6. The following section is hereby added to said ch. 134 : — 
 
 23o. Any adjoinjng owner may apply to the Inspector for the purpose of 
 learning whether such mine is being worked into his territory, and upon such 
 application being made the Inspector shall examine the plans of such mine, and 
 if necessary examine the workings of such mine, and make report thereon to 
 such adjoining owner as to whether his territory is or is not being encroached 
 on." ' 
 
 7. Sub-section (1) of sec. 25 of said chapter 134 is hereby amended by adding 
 thereto the following : — 
 
 " Not less than 75 cubic feet of air per minute shall be made to pass through 
 such mine for every man and beast employed therein." 
 
 Amends sub- 
 section (2) of 
 s. 25. 
 
 8. Sub-sectioA (2) ot said sec. 25, is hereby a;mended by imsertiug after the 
 word " stored," in the Secbnd line thereof, the words " or thawed." 
 
 Explosives not 9 gub-sectiou (7) of said sec. 25 is hereby amended by adding thereto the 
 Ztert::^ following:- 
 
 in mine. .. j^jj permanent buildings for housing boilers, engines, and machinery shftjl 
 
 section (7) of ^^ erected at a distance of not less than fifty feet fi'om the mouth of any mine." 
 s. 25. 
 
 Engine houses 10. Sub-section (12) of said sec. 25 is hereby amended by adding thereto the 
 following : — 
 
 to be erected 
 at least 50 feet 
 from mouth of 
 mine. 
 
 Amends sub- 
 section (12) of 
 s. 25. 
 Slides. 
 Amends sub- 
 section (13) of 
 s. 25. 
 Shafts. 
 
 " Slides or conductors for shafts which are at least one hundred feet deep 
 shall either be iron shod or all iron." 
 
 11. Sub-section (13) of said sec. 25 is hereby amended by adding thereto the 
 following ;. — ■ 
 
 " All vertical shafts of a depth of at least fifty feet shall be provided with a 
 cross-head and guide, and such cross-head shall descend as such shaft is sunk, 
 so that at no time shall it be at a greater distance from the bottom of the shaft 
 than thirty feet." 
 
 Amends sub- 12. Sub-section (20) of said sec. 25 is hereby amended by adding thereto the 
 
 section (20) of following :— 
 
 s 25 
 
 " No stqpe or drift shall be carried on in any shaft which shall have attained 
 a depth of two hundred feet, unless suitable provision shall have been made 
 for the protection of workmen engaged therein, by the construction of a bulk- 
 head of sufficient strength or by leaving at least fifteen feet of solid ground 
 lietween said stope or drift and the workmen engaged in the bottom of such 
 shaft." 
 
 Timbering. 
 
 Chain ladder 13. A chain ladder twenty feet in length shall extend from the bottom of the 
 
 at bottom of wooden ladder to the bottom of the shaft, 
 wooden ladder 
 
^•J APPENDIX A.— MINING STATUTEJS. 
 
 833 
 
 62 ^'ICT. Chap. 51. Placer Further 
 
 Amend. Act, 
 An Act Farther to Amend the "Placer Mining Act." 1899. 
 
 lZ7th February, 1899.] 
 
 TJBE MAJESTY, by and with the advice and consent of the Legislative 
 J-J- Assembly of the Province of British Columbia, enacts as follows :— 
 
 . "'^■,SJ!?„'*-'^* ™^^ ^^ <='*^'^ ^ *« "Placer Mining Act Further Amendment Short title. 
 Act, 1899." 
 
 2 Sections 4 and 5 of ch. 136 of the Revised Statutes of British Columbia Rfi-enaots ss 
 are hereby repealed, and the following substituted therefor : — 4 and 5. 
 
 " 4. A free miner's certificate shall run from the date thereof and shall t^ *■ t 
 expire at midnight on the thirty-first day of May next after its date, or some i;!S'°l°lfi 
 subsequent thirty-first day of May. Only one person ^or joint stock company ^te 
 shall be named in such certificate. The fee payable therefor shall be as pro- ,, \, , 
 vided in the schedule of fees to this Act. Free miners' certificates may be issued ®' tneretor. 
 iy any Gold Commissioner or Mining Becorder." Whomayissue 
 
 ^ " A free miner's certificate shall be in the following form : — Torm of 
 
 • certificate. 
 
 " BRITISH COLUMBIA. 
 
 " Fbee Miner's Cebtiitcate. 
 
 " (Not transferaVle.) 
 
 '" No. 
 
 "This is to certify that of is entitled 
 
 to all the rights and privileges of a free miner from midnight on the* „ 
 
 <Jay of A.D. , until midnight on the thirty-first day of May, the^dlte rfthe 
 ' ■ ■ day immedi- 
 
 " Issued at ately preced- 
 
 ing the day on 
 which certifi- 
 "(Signatur.e of officer issuing same.)" "^^^ '^ taken 
 
 3. A person may at any time prior thereto, and not later than the thirty- E^n-^al of 
 first day of May, or if the thirty-first day of May is a holiday then on the next certificate, 
 ■day which is not a holiday, obtain from the proper ofiicer, on payment of the 
 
 prdper 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 there- 
 after, or any subsequent thirty-first day of May. 
 
 4. In case any person should allow his free miner's certificate to expire he gnggjoi 
 may frbfaiti from the pfoper oflScer, upon payment of a fee of fifteen dollars, a oertifioalie. 
 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 claims 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 ,buch special certificate, and shall operate as a free miner's certificate until 
 midnight of the thirty-flrSt day of 'May hext after its issue. In the case ofn 
 coritpany the fee for such special bertiflcate shall be three hundred dollars. 
 Such cei-iificate shall be in the following form : — 
 
 M.M.O. 53 
 
834 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Placer Further 
 
 Amend. Act, 
 
 1899. 
 
 Form of 
 
 special 
 
 certificate. 
 
 "BRITISH COLUMBIA. 
 
 *Insert here 
 the date on 
 which certifi- 
 cate is issued. 
 
 Repeals ss. 8 
 and 10. 
 (Workmen to 
 take out 
 certificates. ) 
 Mining Re- 
 corders within 
 their territory 
 to have all 
 powers of Gold 
 Commissioner. 
 Schedule of 
 fees amended. 
 
 " Special Fbee Miner's Certificate. 
 
 " (Not Transferable.) 
 
 " No. 
 
 " This is to certify that , of has paid me the sum 
 
 of (fifteen or three hundred, as the case may be,) dollars, and is entitled to all 
 
 the rights and privileges of a free miner from midnight of the* day 
 
 of , A.D. , until midnight of the thirty-first day of ,A.D. 
 
 " Issued at 
 
 Saving clause. 
 
 Commence- 
 ment. 
 
 "(Signature of offlcer issuing same.)" 
 
 5. Sections 8 and 10 of said eh. 136 are hereby repealed. 
 
 6. All the powers conferred upon Gold Commissioners by said ch. 136 may 
 be performed by Mining Recorders, with regard to mineral claims within the 
 territory for which they have respectively been appointed. 
 
 7. The Schedule of Fees to be charged as provided Jn said ch. 136 is hereby 
 amended as follows : 
 
 " For every free miner's certificate for a period of less than .a year, a pro- 
 portionate part of the fee charged for a certificate for a year. 
 
 " For abstracts and other certificates, such fees as the Mining Recorder may 
 consider fair, subject to appeal to the Minister of Mines." 
 
 8. Nothing in this Act contained shall affect anything done or suffered, or 
 any right, title or interest acquired or accrued before the coming into force of 
 this Act, or any legal proceeding or remedy- in respect of any such thing, right, 
 title or interest. 
 
 9. This Act shall come into force on the first day of May, A.D. 1899. 
 
 62 Vict. Chap. 58. 
 Prospector's 
 Rights Protec- An Act to Extend the Rights of the Crown to Prospect for Minerals on BaUway 
 tion Act, 1899. Lands to all Free Miners. 
 
 [snh February, 1899.1 
 
 HER MAJESTY, by and with the advice and consent of the Legislative 
 Assembly of the Province of British Columbia, enacts as follows : — 
 
 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 over all rights powers and pritileges 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. 
 
 Attornev 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 niiMr, either undra this Act 
 powered to up- or under ch. 135 or 136 of the Revised Statutes of British Columbia, it shall 
 hold miner's be lawful for the Attorney-General of the Province to protect such free miner 
 right to pro- j^ g™ guch dispute, and to institute or defend, at the expense of the Crown, 
 spect. g^jj gj. action as may be considered advisable in connection therewith. 
 
I] • APPENDIX A.— MINING STATUTES. 835 
 
 [Order-in-Council.] „ , 
 
 Order-in- 
 
 GOVERNMENT HOUSE, VICTORIA. ^, "^T^^'i'^nn 
 
 ' March o, 1900. 
 
 March 5th, 1900. 
 
 Present : 
 
 Hig Honour the Lieutenant-Governor m Council. 
 
 WHEREAS, there is doubt as to the true intent of sec. 5 of the " Mineral 
 Act Amendment Act, 1898," and of sec. 36 (as amended) of the " Mineral 
 Act," regarding the recording of assessment work and the payment of money, 
 together amounting to the value of $500, and the time or times when such 
 records may be made before a certificate of improvements for a mineral claim 
 may be issued : 
 
 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 36 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 worli for all or any assessment work done by him or his pre- 
 decessor 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, pro- 
 vided 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 par- 
 ticular 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 RBDDIE, 
 Deputy Clerk, Executive Council. 
 
 H 
 
 64 A'icT. Chap. 21. ^^-^ ^^^„^. 
 
 mentAct, lilOC 
 An Act to Amend the jilmeral .let. 
 
 [Slat August, 1900.] 
 
 ER MAJESTT, 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 " Mineral Act Amendment Act, 1900." Short title . 
 
 2 A Crown grant of a mineral claim, or of any part thereof or interest Crown gran t 
 therein may be issued to the administrator of a deceased owner of such claim, may issue to 
 or part of claim or interest in a claim, upon all conditions precedent to the ^'^l^^^^'^ 
 issue of such grant being fulfilled. owner of min- 
 
 3. The " Mineral Act " is hereby amended by inserting the following as |^^y^^^'^^^ 
 
 sec. 8 thereof: — to "Mineral 
 
 Act." 
 
836 
 
 MARTIN'S MINING OASES. 
 
 [VOL. 
 
 Min. Amend- 
 ment Act, 1900 
 
 Penalty for 
 minwig with- 
 out Free 
 Miner's certifi- 
 cate. 
 
 Re-enacts s. 
 Uofc. 45 of 
 1899. 
 
 Forfeiture of 
 interest of co- 
 owner who 
 fails to con- 
 tribute . 
 
 " 8. Any person who mines for any minerals for his own sole use and bene- 
 fit on any Crown lands in the Province of British Columbia without having 
 taken out and obtained a Free liliner's Certificate, shall, on conviction thereof 
 in a summary way, forfeit and pay a penalty not exceeding twenty-five dollars, 
 besides costs." 
 
 4. Section 11 of chap. 45 of the Statutes of 1899, being the "Alineral Act 
 Amendment Act, 1899," is hereby repealed and the following section is sub- 
 stituted : — ■ 
 
 " 11. Upon the failure of any one of several co-owners to contribute his 
 proportion of the expenditure required by sec. 24 of this Act, the co-owner or 
 co-owpers who have performed the labour or made the ' expenditure may at the 
 expiration of the y^ar give such delinquent co-owner notice by publication in a 
 newspaper published and circulating in the division in which the claim is situ- 
 ated, or in the absence of such local paper, in the one nearest thereto, for at 
 least once a week for ninety days, and if a,t the expiration of the ninety days of 
 publication such delinquent should fail or refuse to contribute his proportion of 
 the expeflditure required by said sec. 24, together with all costs of advertising, 
 his interest in the claim shall become vested in his co-o\fners who have made 
 the required expenditure, pro rata, kccofdiiig to their foriner 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 man- 
 ager 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 wtten the newspaper was published during that time, and tUe name of Sucli 
 newspaper. Such notice shall be recorded as aforesaid within one hu'iidr^d and 
 twenty days after the first publication thereof." 
 
 Re-enacts sub- 
 sec , (h) of s , 
 36 of "Mineral 
 Act." 
 
 Duties of Min- 
 ing Recorder 
 after publica- 
 tion of notice 
 of intention to 
 apply for 
 Certificate of 
 Improvements 
 
 5. Sub-section (ft) of sec. 36 of the "Mineral Act' 
 the following sUb-section is substituted therefor : — 
 
 is hereby repealed and 
 
 '(A) Twenty days after the expiration ■ot the term of the said publication, 
 unless a notice that an action has been commenced, and a copy of the 
 writ in such action have been filed in the office of the Mining Recorder 
 in ithe mining division in which the claim is situated, the Mlnirig Re- 
 corder shall forward to the owner or agent, under Form I of the 
 Scheddle 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 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." [g hereby repealed and the following secllion 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 o4ice of the Mining Recorder in the mining division in which 
 
 SIS work done jbe claim is situated, a declaration" by a Provinci:al Land Surveyor, or if the 
 
 on claim . 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 Recotder 
 
 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." 
 
 f^^.^^L°/.A 7. The schedule of fees attached to the " Mineral Act," is herteby- amended 
 
 Crti^St by striking out " F6r a Crown grant $10.()0 " at the end thereof, and by sub- 
 fee to be $25.00 stituting therefor "For a Crown grant $25.00." 
 
I] APPENDIX A— MINING STATUTES. 837 
 
 64 Vict. Chap. 29. !■'"« Creek 
 
 Discovery Act, 
 
 An Act to vest the title to the " Discovery " Placer Claim, At^in Lake Mining 
 Division of the Vassiar Electoral District, in the Discoverers of Placer 
 Claims in the said District. 
 
 l-iUt August, WOO.] 
 
 'HB8iE!AS Frecl Miller and K,enn€tli McLaren, both o£ the Town of Atlin, Preamble, 
 in the, Province of, British Columbia, Free Miners, were the original 
 discoverers of placer mining claims on Pine Creek, in thq Atlin Lal^ Mining. 
 Division of the Cassiar Electoral district, in the said Province, and believing 
 ^{licl diyi^lpn to be within the territorial boundaries, of thg Nprth-T^^est T.erri- 
 tories, jointly loqated as " Discovery " Cla.im on Pine Cree^, a cl^ini of t\?i8lv,e 
 huiidred feet, in the bed of the said creefe, according to the laws of the said 
 Territory ; 
 
 And whereas it was afterwards determined that the said Pine Creek was 
 within the Province of British Columbia ; 
 
 And whereas the original location, staking and recording of claims in said 
 mining division under the laws of the said Territory led to confusion and diffi- 
 culty in determining the title to many plaper claims therein ; 
 
 And whereas the Honourable Paulus iEmilius Irving, one of Her Majesty's 
 Puisne Judges of the Supreme Court of British Columbia, acting as Commis- 
 sioner 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 saidi Miller and McLaren would be entitled to under the laws of the Pro- 
 vince 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, on or about the 24th day of 
 August, 1899, obtain permission from the Gold Commissioner of the said divi- 
 sion to re-stake the said " Discovery " Claim, and did, on or about the 24th day 
 of August, 1899, re-stake the said " Discovery " Claim in accordance with the 
 provisions of the British Columbia " Placer Mining Act " as a discovery claim 
 for two discoverers ; 
 
 And whereas it is just and equitable that the said " Discovery " Claim so 
 re-staked as aforesaid should be vested in the said Miller and McLaren as the 
 original locators and discoverers of placer claims in the said Mining Division, 
 save and except the said placer bench claims so allowed by the said Copimi?- 
 sioner ; 
 
 Therefore, Her Majesty, by and with the advice and consent of the Legisla- 
 tive Assembly of the Province of British Columbia, enacts as follows: — 
 
 1. This Act may be cited, as the " Pine Creek Discovery Confirmation Act, g^ort title. 
 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 thp said recorded_in 
 Fred' MJller apd Kenneth McLaren, jointly the sai^ ': discovery "Placer narn^ rf Fred 
 Mining Claim, being 598"^ feet in length, and extendipg, in width 1,000 feet K^n^'ethMc- 
 situate on Pine Creek aforesaid, abput eight miles from Atlin Lake, in, the said ^^^0 
 Atlin Lake Mining^ Division, according to the plan of survey thereof on file in 
 the office of the said Gold Commissioner, save and except the portions thereof 
 
838 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 Pine Creek excepted by the decree of the said the Honourable Paulus .^milius Irving, 
 Discovery Act, Special Commissioner appointed under the " Bennett-Atlin Commission Act," 
 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 Ihis Act, has erected a building 
 tabpfT^tu'vi'ri "P0° ^^id land, except in so far as the Gold Commissioner may decide is 
 necessary for the purpose of placer mining upon said claim. 
 
 SCHEDULE " A " 
 Referred to in the preamble to this Act. 
 
 Claims. 
 
 Aw*BDEn TO. 
 
 The Melrose Bench Claiin 
 
 George Johnson. 
 Olaf Parry. 
 J. W. Wethara. 
 
 The Golden Rod Bench Claim No. 1 
 
 The Golden Rod Bench Claim No 2 
 
 The NuBcet Hill Grono Nos. 2. 3 and 4 
 
 f J. H. Rose, 
 1 C. D. Volkert, 
 1 B. N. Perry and 
 Charles J. Thompson. 
 
 
 Min. Amend- 
 ment Act, 1901 
 
 1 Ed. VII. Chap. 3.5. 
 An Act to Amend the "Mineral Act.' 
 
 H 
 
 [nth May, 1901.} 
 
 IS MAJESTY, by and with the advice and consent of the Legislative As- 
 sembly of the Province of British Columbia, enacts as follows : — 
 
 1. This Act may be cited as the " Mineral Act Amendment Act, 1901." 
 
 Re-enacts ». 4, 2. Section 4 of the " Mineral Act Amendment Act, 1899," is hereby repealed, 
 
 of c. 45 of 1899. and the following substituted therefor : — 
 
 Special certi- •• 4_ jn case any person should allow his free miner's certificate to expire he 
 
 may, at any time within six months from the date of such expiration, obtain 
 from the proper officer, upon payment of a fee of fifteen dollars, a 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 claims which such person 
 owned at the time of the lapse of his former certificate, except such as under 
 the provisions of the " Mineral Act " and Amending Acts had become the pro- 
 perty of some other person at or before the time of the issue of such special 
 
 Short title. 
 
 ficate. 
 Fee for. 
 Effect of. 
 
I- J APPENDIX A.— MINING STATUTES. 839 
 
 certificate, and ehall also operate as a free miner's certificate until midnight of Min. Amend- 
 the thirty-first day of May next after its issue. In the case of a joint stock raent Act,- 1901 
 
 company the fee for such special certificate shall be three hundred dollars. 
 
 Such certificate shall be in the following form : Fee for Joint 
 
 Stock Com- 
 
 " BRITISH COLUMBIA. P*"y- 
 
 " Special Fkee Miner's Cektificatb. 
 
 " (Not transferable.) 
 
 "No. 
 
 " This is to certify that , of has paid 
 
 me the sum of (fifteen or three hundred, as the case may be) dollars, and is 
 entitled to all the rights and privileges of a free miner from midnight of the 
 [ftere insert the date of the day immediately preceding the date of issue of 
 certiflcatel day of , 1i.X>. 19 , until midnight of the thirty-first day of 
 
 May, A.D. 19 
 
 " This special certificate, so far only as such title depends upon such person 
 having a free miner's certificate, shall have the effect of reviving the title of 
 the person to whom it is issued to all raining properties which such person 
 owned at the time of the lapse of his former certificate, except such as have 
 become the property of some other person. 
 
 " Issued at the day of A.D. 19 . 
 
 Form. 
 
 "(Signature of officer issuing same.)" 
 
 3. Section 141 of the " Mineral Act " is hereby repealed, and the following 
 substituted therefor : — Re-enacts s. 
 
 " 141. Affidavits and declarations required under the provisions of this Act ^^"^ Mineral 
 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 
 declarations 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. This Act shall not come into force until the first day of July, A.D. 1901. 
 
 Commence- 
 ment. 
 
 1 Ed. VII. Chap. 3T. 
 
 An Act to Amend the " Inspection of Metalliferous Mines Act and Amend- In.spec.of Met. 
 
 ina Act. Mines Amend- 
 
 ment Act, 1901 
 
 [Utn May, 1901.'\ ' 
 
 HIS 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 "Inspection of Metalliferous Mines Act 
 Amendment Act, 1901." Short title. 
 
 2. Section 2 of the " Inspection • of Metalliferous Mines Act" is hereby 
 
 repealed, and the following substituted therefor:— Re-enacts s. 2. 
 
 " 2 The Lieutenant-Governor in Council may appoint an Inspector or In- 
 spectors of Metalliferous Mines, and mines of whatever description other than Appointment 
 mines to which the " Coal Mines Regulation Act " and amending Acts apply, ^f inspectors, 
 who shall be of at least seven years' practical experience in mining, whose 
 
843 
 
 MAROPIN'S MINING OASES. 
 
 [VOL. 
 
 Inspeo.of M*it. duties shall be as hereiaafter specified, and who shall receive such salary and 
 Mines Amend- allowances as shall be determined by the Lieutenant-Governor in Council; and 
 meut Aot,1901 hefiore entering upon the discharge of his or their duties he or they shall take and 
 p . T, subscribe an oath that he or they will dlsGhacge such duties faithfully ; the 
 M^nerSorist ^"""^i^cial Mineralogist shall have the powers and may exercise the func- 
 to have same *'°°® conferred on an Inspector of Metalliferous jVKnes by this Act." 
 
 powers as an 
 
 Inspector. 
 
 Re-enact(i^<10' 
 
 Accidents to be 
 reported to 
 Minister of 
 Mines and 
 Inspector. 
 
 3. Section 10 of the said Act, as amended by sec. 3 of the " Inspection of 
 Metalliferous Mines Act Amendment Act, 1899," is hereby repealed, ■ and the- 
 following substituted therefor : — 
 
 " 10. Any owner, agent, manager or lessee having charge of or operating 
 ^ny rnetalliferous mine, whenever loss of life or serious accident shall occur- 
 io; comieption with th? worJsing of such mine, shall give notice immediately, 
 anji- repo,i|'t apl facts thereof to the Minister of, Mines and the. Inspector for 
 the district in which such mine is situate, and the said Inspector shall in- 
 v^tigate a,nd. ascertain the causes and, make a report, which s^hall be filed in 
 the office of the Minister of Mines for future reference." 
 
 Monthly re- 
 turn of output 
 to be sent to 
 Department of 
 Mines. 
 
 What return 
 must contain. 
 
 form to be 
 prescribed by 
 Minister of 
 Mines. 
 Mining Re- 
 corder to be 
 notified' of 
 shipment. 
 
 Mining Re- 
 corder to fur- 
 nish forms. 
 
 4. On or before the fifteenth day of each i month, the owner, agent, ma,nager 
 or lessee of every mine, and which is actually engaged in.> the shipping or 
 treating of oee, ^.nd to wjiich thjs Act apj(liBs, shall send to the Department of 
 Mines, in the City of Victoria, a correct return, specifying with respect to such 
 min^ 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 
 
 copipa,ny or person operates more than one mine in the sapie minjng 
 
 division, the returns may be given en Hoc, but the names of all thp mines 
 
 must be specified ; 
 
 (c) The quantity of ore ship^pd oi; treated during the previous month and 
 th^ 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 Min- 
 ister 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 
 foi-ms 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, 
 si;ch fprms, shall in no way relieve suph owner, agent, manager or lessee 
 from forwarding such returns within the time hereinbefore provided. 
 
 Returns may 6. It sl^all be lawful for the Lieutenant-Governor in Council to order such 
 
 be made pub- returns, or a summary thereof, to be made public. 
 
 lie. 
 
 Repeals ss. 17 7. Sections 3,7 and 18 of the "Inspection of Metallifei;ous Mines Act" are 
 and 18. hereby repealed. * 
 
 Amends s. 20. §_ Section 20 of the said Act is hereby amended by inserting after the word 
 
 " Inspector," in the fourth line thereof, the words " for the district in which 
 such mine is situate." 
 
 Amends s 25 9. General Rule (8)., as set forth in sec. 25 of th,e said Act, ii^. hjereby 
 j!,yj|e-enaoting rep^al^, and th|e f'ollo;(ving substituted ' thei^W :— 
 
 "(8) In every mine where hoisting, is employed either for the carriage of 
 persons op mineral, the following code of mine signals shall be used : — 
 
 General 
 
 R% 8'.' 
 
I- J 
 
 APPENDIX A.— MINING STATUTES. 
 
 841 
 
 BRITISH COLUMBIA C50DE OF MINE SIGNALS. 
 
 Inspeo.of Met. 
 Mines Amend- 
 ment Act, 1901 
 
 Hoisting. Hoisting. 
 
 1 Bell . . 1 STOP IMMEDIATELY— if in motion. 
 
 1 " ..HOIST (see Rule C). 
 
 2 Bells. . LOWSjR ( " C). 
 
 3 " .. CAUTION— " MEN ON" ( '■' D). 
 
 This is a caution signal — not a signal to move — and means, when 
 the next si'gual, to move is given, " proceed slowly and with 
 I extra care," in accordaBce with such signal. 
 
 4 " ..'blasting or " READY TO SHOOT V Signal (see Rule E). 
 This is a caution signal, and if the engineer, is prepared to accept 
 
 it he mu^t acknowledge it by raising bucket a few feet ajid 
 letting it back slowly. 
 This signal, once accepted, takes preceijepee over all others, aiid 1 
 Bell given when miners are in bucket, is signal to hoist away 
 from blast. 
 
 2 Bells, double pause, followed by station signal (2 station signal), 
 
 Coils Gage or Skip to that station (see Rule A.). 
 
 Station Signals. 
 
 Station signals. 
 
 
 
 Signals. 
 
 Station. 
 
 Signals. 
 
 Station. 
 
 
 
 
 
 
 
 
 Bells. 
 
 Pause. 
 
 Bella. 
 1 
 
 
 Bells. 
 
 Pause. 
 
 Bells. 
 
 No. I 
 
 2 
 
 No. 11 
 
 4 
 
 
 1 
 
 
 ' 2 
 
 2 
 
 
 
 2 
 
 " 12 
 
 i 
 
 — 
 
 2 
 
 
 ' -A' 
 
 2 
 
 — 
 
 3 
 
 " 13 
 
 4 
 
 — 
 
 3 
 
 
 ' 4; 
 
 2 
 
 
 
 4 
 
 " 14 
 
 4 
 
 — 
 
 4 
 
 
 ' 5 
 
 2 
 
 
 
 5 
 
 ' 15 
 
 4 
 
 — 
 
 
 
 
 ' 6 
 
 3 
 
 — 
 
 1 
 
 " 16 
 
 5 
 
 — 
 
 1 
 
 
 ' 7 
 
 .S 
 
 — 
 
 2 
 
 '■ 17 
 
 5 
 
 — 
 
 2 
 
 
 ' 8 
 
 3 
 
 
 
 3 
 
 " 18 
 
 .5 
 
 — 
 
 3 
 
 
 ■ 9 
 
 3 
 
 
 
 4 
 
 " 19 
 
 5 
 
 — 
 
 4 
 
 
 ' 10 
 
 3 
 
 
 o 
 
 " 20 
 
 
 
 ~ 
 
 
 
 In mines where there is a sub-station or ore pocket below level of station, Sub-stations or 
 such suh-station or pocket shall be designated and- signalled by the signal of ore pockets. 
 such main station followed iy 1 hell. 
 
 Example. — Ore pocket under station 7 shall be signalled ?. — 2. — 1. 
 
 3 " "2 — 3 — 1. 
 
 Dangeb. Danger signal- 
 
 t 
 9 BELLS, \vitliont pause between them, means DANGER (fire or other cause) 
 and followed by a station signal, calls cage to that station. 
 
 This signal takes precedence over all others, except an accepted 
 Blasting Signal. 
 
842 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 Inspeo.of Met. 
 Mines Amend- 
 ment Act, 1901 
 
 Miscellaneous 
 signals , 
 
 3 — 3- 
 
 5 Bells.. 
 
 G " .. 
 
 7 " .. 
 
 -3 " .. 
 
 Electric bell 
 signals . 
 
 Rules of in- 
 struction . 
 
 4 — 4 — 4 
 8 — 2 — 2 
 3 — 2-3 
 
 Miscellaneous. 
 
 STEAM — turn off or on. 
 
 AIB — turn off or on. 
 
 FOREMAN WANTED— to be preceded by station call. 
 
 BREAK-DOWN IN SHAFT. Engineer must proceed 
 very slowly and carefully, in accordance with signals to 
 be afterwards given, if so directed, by verbal orders 
 only. 
 
 ALL BLASTING IN SHAFT IS FINISHED. 
 
 SEND DOWN DRILLS. 
 
 SEND DOWN PICKS. 
 
 Electkic 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 
 not answer back. 
 
 2 1 2 bells are rung, engineer or station tender does not under- 
 stand, repeat signal. 
 
 In case of danger or accident, ring 9 bells, a pause, followed by regular 
 station signal. 
 
 RULES OF INSTRUCTION. 
 
 Interpretation NOTE. — " Cage " in these rules signifies either cage, skip, or bucket. 
 " B\t" " ■'^^'^ " '"^ these rules signifies stroke or bell, gong, hammer, or other 
 
 signalling arrangement. 
 
 Station tender Rule A. — No person but the station tender shall ring signal bell, except in case 
 to ring bells. of danger, or when a main shaft is being sunk. 
 
 This shall not apply in mines where no station tender is employed. 
 
 Engineer must slow up when passing stations when men are riding. 
 
 Method and 
 order of 
 signalling . 
 
 Rule B.— METHOD AND ORDER OF GIVING SIGNALS. In giving 
 signals, make strokes on bell at regular intervals. 
 
 In signals requiring such, make the pause ( — ) take same time as for 
 
 one bell. A double pause ( ) must be made between all cautionary 
 
 signals, station signals, and executive signals. 
 
 Signals must be given in order designated- — 1st, cautionary signals ; 
 2nd, directionary signals; 3rd, executive signals. . . 
 
 Example: 3 2 — 5 2 means "men on, to No. 5 Station, 
 
 lower away." 
 
 In " call signals," the station number is given first, followed by 
 Call. 
 
 Example: 3 — 2 7 means "No. 7 Station wants foreman." 
 
 Rule C— The HOIST SIGNAL (1 bell) means "to surface," and the 
 LOWER SIGNAL (2 bells) means "to bottom " or level from which 
 hoisting is then being regularly done, unless these signals are pre- 
 ceded by a station signal signifying that cage is to be stopped at station 
 designated. 
 
1 ■] APPENDIX A.— MINING STATUTES. 843 
 
 KULE D.— When men are to ride, the CAUTION SIGNAL (3 bells) must be Inspec ofMet. 
 given before they enter cage, which must not be moved until the HOIST Mines Amend- 
 or LOWER SIGNAL is given, and then only after a double pause (15 ment Act,190l 
 
 seconds), when cage must be started very gradually. 
 
 Caution signal 
 
 fiULE E.— The BLASTING or "BEADY TO SHOOT" signal (4 bells) must Blasting signal 
 be acknowledged by engineer, as described, before it can be considered 
 as accepted by him. Miners must not light fuse before the engineer 
 has so acknowledged and accepted their signal, as it may not be pos- 
 sible at that moment to hoist. 
 
 The engineer, before acknowledging the Blasting signal, must stand Aoknowledg- 
 ready to hoist immediately on required signal. Having iiclcnoicledged ing blasting 
 and acceiJted such signal, the engineer must not quit his post, and signal, 
 must not allow anything or anybody to interfere with his prompt obed- 
 ience of the signal to '• hoist away " from blast. 
 
 KuLE P. — Timber, tools, &c., longer than the length of bucket or skip, or placed Timber, tools, 
 within a, cage, must be securely lashed in place before being lowered or etc., tube 
 hoisted. lashed. 
 
 10. Printed copies of this Oode of Signals shall be posted in engine-room Where oocle to 
 in front of engineer, on gallows frame, at such working station in the mine, be posted. 
 and elsewhere as the Inspector may direct, and should such copies become at all 
 
 illegible, they must be replaced promptly by fresh ones. 
 
 11. Sections 7 and 10 of the " Inspection of Metalliferous Mines Act Repeals ss. 7 
 Amendment Act, 1899," are hereby repealed. and 10, u. 49 
 
 of 1899. 
 
 12. Section 23 of snid "Inspection of Metalliferous Mines Act" is hereby Amends s. 25 
 amended by inserting, immediately after General Rule 21 In said section 25, ofc. 134, K.S. 
 two General Rules as follows: — B.C. 
 
 " Hours of Laliour of SUiiionari/ Engineers. 
 
 " 21a. Every person who, after the first day of January, A.D. 1902, being Eight-hour 
 «mployed in or about a metalliferous mine, in which the machinei-y hereinafter (j^y for 
 mentioned shall be operated for more than twenty hours in any twenty-four, engineers. 
 (1) operates any direct-acting, geared, or indirect-acting hoisting machine ex- 
 ceeding fifty horse-power, or (2) operates any stationary engine or electric 
 motor exceeding fifty hor^e-power, and shall perform any such duties for more 
 than eight hours in any twenty-four, shall be guilty of an offence onder this 
 Act. 
 
 " 2lB. Any person, corporation or company, who shall induce or persuade Penalty for 
 any person or persons to do any act, matter or thing in contravention of the inducing 
 preceding section hereof shall be guilty of an offence under this Act, but it engineer to 
 shall not be deemed an offence under this or the preceding section if any person work more 
 operates any such machinery for more than the period mentioned for the *'"*",° °"'* 
 purpose of relieving another employee in case of accident, sickness or other P^"" ''' 
 unforeseen cause." 
 
 13. This Act shall come into force on the 1st day of July, 1901. Commence- 
 
 ment . 
 
ai4 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Iil^cerAm^nd- 
 merit Act, l901 
 
 H 
 
 1 Ed. VII. Chap. 38. 
 
 An Act to Amend the " Placer Mining Act " and amending Acts. 
 
 illtli Mm, 1901.'J 
 
 IS MAJESTY, by and with the advice and consent of the Legislative 
 Assembly of the Province of British Columbia, enacts as foUovy's : — 
 
 "~ Short title. 
 
 R^-enaots s . 2. 
 
 Interpretation 
 
 " Mine, '' 
 
 " placer mine" 
 
 and'"diggings" 
 
 "Placer claim' 
 
 " Creek 
 diggings." 
 "Bar 
 diggings." 
 
 "Dry 
 diggings." 
 " Precious 
 stone 
 
 diggings." 
 " Streams and 
 ravines . " 
 "Ditch." 
 
 "Ditch head." 
 "Free miner," 
 
 "Legal post. 
 
 " Record," 
 " register" and 
 " registration" 
 " Recerd." 
 
 .' Full 
 
 jnterest . " 
 
 1. This Act may be cited as the " Placer Mining Act Amendment Act,, 
 1901." 
 
 Interpretation. 
 
 2. Section 2 of the " Placer Mining Act " is hereby repealed, and the fol- 
 loveing substituted therefor : 
 
 " 2. In the construction of this Act the following expression? sh^all have 
 the 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' 
 for gold or other precious minerals or stones ; 
 
 " Placer claim " shall mean the personal right of property or interest in 
 any placer inine; and in the term "mining, property " shall be included 
 every placer claim, ditch, or W3,ter right us?d for pj^cer mining purposes, 
 and all other things belonging thereto or used in the working thereof. 
 Placer claims shall be divided into creek diggings, bar diggings, and 
 dry diggings; 
 
 " Creek diggings " shall mean any mine in the bed of any stream or ravine ;, 
 
 " Bar diggings " shall mean any mine between high and low water marks on 
 a sea, river, lake, or other large body of water ; 
 
 " Dry diggings " shall mean any mine over which water never extends ; 
 
 " Precious stone diggings " shall mean deposit of precious stones, whether 
 in 'veins, beds, or gravel deposits; 
 
 " Streams and raYJnBS " sjialj include eiII na,tura_l, watercourses whether 
 usually containing water or not, and all creeks and gulch,es ; 
 
 "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 " shall mea'n the point in a natural watercourse or lake where 
 water is first taJjpn into a ditdl ; 
 
 " Free miner " shall mean a person, or joint stock company named in, and. 
 lawfully possessed of, a valid existing free miner's certificate, and no- 
 other ; 
 
 "Legal post" shall mean a sta,ke standing not less than four feet above 
 the ground, and squared or faced on four sides for at leapt one foot 
 from the top, and each side so squared or faced shall measure at least 
 fpuf inches on its face so f^r 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 haxe the same meaning, 
 and shall mean an entry in some official book kept for that purpose; 
 
 " Record," when used without qualifying words shewing that a different 
 matter is referred to, shall be taken to refer to the record of the loca- 
 tion of a placer claim ; 
 
 " Full interest " shall mean one of several shares into which a mine may 
 be equally divided ; 
 
I] APPENDIX A— MINING STATUTES. 845 
 
 " Close season " shall mean the period of the year during which placer PlacerAmend- 
 
 claims in any district are laid over by the Gold Commissioner of that ment Act, 1901 
 
 district ; 
 
 "n .. V. „ • , J ■ . "Close 
 
 Cause' shall include any suit or action; season." 
 
 "Judgment" shall include "order" or "decree"; "Cause." 
 
 " Rieal estate" shall mean any placer mineral land held in fee simple; „„ f^. ^ ' „ 
 
 'Joint stock company" shall mean any company for mining purposes; "Joint Stock 
 
 (o) Incorporated under the " Companies Act, 1897," or any Act repealed Co." 
 
 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-Proviucral company under the 
 " Companies Act, 1897 " ; or 
 
 (d) Incorporated by any special Act." 
 
 Part I. 
 
 Free iliiiers and their Privileges. 
 
 3. Section 4 of the " Placer Mining Act Further Amendment Act, 1899," Re-enacts s. i 
 is hereby repealed, and the following substituted therefor : — • c. 51, of 1899 
 
 " 4. In case any person shall allow his free miner's certificate to expire. Special 
 he may, at any time within six months from the date of such expiration, obtain certificate, 
 from the proper oflScer, upon payment of a fee of fifteen dollars, a special free Fee for. 
 miner's certificate. Such special certificate, so far only as such title depends 
 upon such person having a free miner's certificate, shall have the effect of Effect of. 
 reviving the title of the person to whom it is issued to all placer claims which 
 such person owned at the time of the lapse of his former certificate, except such 
 as under the provisions of the " Placer Mining Act " may have 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 joint stock company the fee Fee tor Joint 
 for such special certificate shall be three hundred dollars. Such certificate shall Stock Ubm- 
 be in the following form:— " P*"^- 
 
 BRITISH COLUMBIA. 
 
 " Special Fkee Miner's Certificate. 
 
 "{^ot transferaile.) 
 
 " No. . Form. 
 
 " This is to certify that , of has paid me the 
 
 sum of (fifteen or three hundred, as the case may be), dollars, and is entitled 
 to all the rights and privileges of a free miner from midnight of the * ♦Insert here 
 
 day of , A.D. , until midnight of the thirty-first day of May, the date of the 
 
 A.D. day immedi- 
 
 Ettslv TJrPCtjQ.- 
 
 "This special certificate, so far only as such title depends upon such person j^^g ^j^'^^t ^^ 
 having a free miner's certificate, shall have the effect of reviving the title of the which the 
 person to whom it is issued to all mining properties which such person owned certificate was 
 at the time of the lapse of his former certificate, except such as haVe become taken but . 
 the property of some other person. 
 
 " Issued at on the day of , 19 . 
 
 "[Signature of officer issuing same.)" 
 
846 
 
 MARTIN'S MINING OASES. 
 
 [voi« 
 
 Placer Amend- 
 ment Act, 1901. 
 
 Re-enacts s . 9 
 of c. 136, R.S. 
 Only free 
 miners can 
 hold mining 
 property. 
 
 Upon lapse 
 claim reverts 
 to co-owner. 
 
 Proof of lapse . 
 
 Shareholder in 
 joint stock 
 company need 
 not be free 
 miner. 
 
 Application ot 
 section. 
 
 4. Section 9 of the " Placer Mining Act," as amended by the " Placer Mining 
 Act (1891) Amendment Act, 1898," is hereby repealed, and the following sub- 
 stituted therefor: — 
 
 " 9. No person or joint stock company shall be recognized as having any 
 right or interest in or to any placer claim, mining lease, bed-rock flume grant, 
 or any minerals in any ground comprised therein, or in or to any water 
 right, mining ditch, drain, tunnel, or flume, unless he or it shall have a free 
 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, dr'ain, 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, neverthelciss, should any co-owner fail to keep up 
 his free miner's certificate, such failure shall not cause a forfeiture or act as 
 an abandonment of the claim; but tjie interest of the co-owner who shall fail 
 to keep up his free miner's certificate shall, ipso facto, be and become vested 
 In Ms co-owners, pro rata, according to their former interests. The filing in the 
 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 
 evidence of such lapse to vest the title in the continuing co-owners on the 
 record in the office of such Mining Recorder : Provided, nevertheless, that a 
 shareholder in a joint stock company 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 Orown grant has been issued." 
 
 Penalty for 5. Every person wjio 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- 
 plaoer claim . tificate shall, on conviction thereof in a summary way, forfeit and pay a penalty 
 not exceeding twenty-five dollars, besides costs. 
 
 Amends e. 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 m^gt ^Iso be a free miner, but such agent shall not be entitled to locsite or re- 
 fore locati^'e ^ ''""^ ^^^ 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." 
 
 Amends s. 15, 7. Section 15 of the said "Placer Mining Act" is hereby amended by strik- 
 c. 136, R. S. jjjg Q„(- (-jjg gpsj 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. 
 
 Re-enacts s. g. Section 16 of the said "Placer Mining Act" is hereby repealed, and 
 
 16, c. 136,R.S. tjje following substituted therefor: — 
 
!•] APPENDIX A.— MINING STATUTES' 847 
 
 " 16. The size of placer claims shall be as follows : — PlacerAmend- 
 
 " In • creek diggings ' a claim shall be 250 feet square : Provided always ment Act, 1901 
 that the side lines of each claim shall be measured in the general direc- „. ~7~, 
 tion of the watercourse or stream ; olahns ^ '^ 
 
 " In ' bar diggings ' a claim shall be : — 
 
 " (o) A piece of land not exceeding 250 feet square on any bar which 
 is covered at high water, or 
 
 " (6) A strip of land 250 feet long at high water mark and in width 
 extending from high water mark to extreme low water mark ; 
 " In ' dry diggings ' a claim shall be 250 feet square." 
 
 9. Section 17 of the. said " Placer Mining Act " is hereby repealed, and the Re-enacts a . 
 following substituted therefor: — 17, c.l36, R.S 
 
 " 17. If any free miner, or party of free miners, discover a new locality for Uiscovery 
 the prosecution of placer mining and such discovery be established to the "aims. 
 satisfaction of the Gold Commissioner, placer claims of the following sizes shall 
 be allowed to such discoverers, viz. : — 
 
 " To one discoverer, one claim 600 feet in length ; 
 
 " To a party of two discoverers, two claims, amount- 
 ing together to 1,000 feet in length ; 
 
 " And to each member of a party beyond two in number, a claim of the 
 ordinary size only; 
 
 " Provided that where a discovery claim has been established in any locality Limit within 
 no further discovery shall, be allowed within five miles therefrom, measured which further 
 along the watercourses. The width of such claims shall be the same as ordin- discovery not 
 ary placer claims of the same class." allowed. 
 
 10. Section 20 of the said " Placer Jliniiig Act " is hereby repealed, and Re-enacts s 
 the following substituted therefor: — 20, c. 136, R.S. . 
 
 " 20. Every placer claim shall be as nearly as possible rectangular in form. Shape of 
 and marked by four legal posts at the corners thereof, firmly fixed in the claim. 
 ground. On each of such posts shall be written the name Of flie locator, the 
 number and date of issue of his free miner's certificate, the date of the location Method of 
 and the name given to the claim. In timbered localities all boundary lines of location . 
 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 untimbeved. 
 underbrush monuments of earth or rock, not less than two feet high and two localities . 
 feet in diameter at base, may be erected in lieu of the said last-mentioned legal 
 posts, but not in the ease of the four legal posts marking the corners of the 
 claim." 
 
 11. Section 23 of the said " Placer Mining Act " is hereby repealed, and the Re-enacts s. 
 following substituted therefor : — • 23 of c. 136, 
 
 R. H. 
 " 23. Every free miner locating a placer claim shall record the same in the Time within 
 office of the Mining Recorder for the mining division within which the same is which record 
 situate, within fifteen days after the location thereof, if located within ten miles imist be made . 
 of the office of the Mining Recorder by the most direct means of travel. One jjow time 
 additional day shall be allowed for every ten miles additional or fraction thereof, counted . 
 The number of days shall be counted inclusive of the day upon which such loca- 4j,ni;„„t.o 
 tion was made, But exclusive of the day of application for record. The applica- for record " 
 tion for such record shall be under oath and in the form set out in the Schedule -p ■■, 
 to this Act. A claim which shall not have been recorded within the prescribed ^^^.^ causes"^^" 
 period shall be deemed to have been abandoned." abandonment. 
 
 12. Section 27 of the said " Placer Mining Act " is hereby amended by add- Amends s. 27, _ 
 ing thereto the following : — " The last date on which a re-record can be made o. 136, R. S. 
 shall be the anniversary of the original record of the claim." Duration of 
 
 record. 
 
S48 
 
 MARTIN'S MINING GA.SES. 
 
 [VOL. 
 
 Placer Amend- 
 ment Act, 1901 
 
 Judgment 
 affecting 
 placer claims 
 to be recorded. 
 
 Where 
 boundaries 
 cbanpfed, plan 
 to be filed. 
 
 13. Where a judgment affecting any placer claim is rendered by. a Court 
 having jurisdiction in mining disputes, or by any Commission or Board o£ 
 Inquiry held for such purpose, or any decision is given by a C^old Commis- 
 sioner,' under any powers in this Act contained, the Olerli of such Court, 
 Commission or Board, or such Gold Commissioner, shall forthwith transmit a 
 minute of such judgment or decision to the Mining Recorder for the lUlning 
 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 ofiBee. 
 If by any such judgment or decision the original boundaries of any placer claim 
 shall be changed, a plat shewing such changed boundaries and signed by. the 
 Judge, Commissioner, Board of Inquiry or a member thereof, or Gold Commis- 
 sioner by whom such judgment or decision has been givfen, shall accompany such 
 minute and be filed in the office of the Mining Recorder. 
 
 Re-enacts s. 42, 14. Section 42 of the said "Placer Mining Act" is hereby repealed, and the 
 c. 136, R . S. following substituted therefor : — 
 
 cieney of 
 water. 
 
 Lay-over dur- " (1) Where the supply of water is insufficient to work hydraulic or other 
 ing insuffi- 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, notice thereof shall be liosted in the office of the Slining Recorder and, on the 
 claim within three days from the cessation of work if the claim is within ten 
 miles of such office, hut 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. 
 
 Not to apply " (2) The provisions of this section shall not apply to mining property held 
 
 to mining under mining leases, pursuant to Part VII. of this Act. . Such leases shall be 
 
 u^^t^-irTT^"^ governed solely by the terms thereof. 
 
 Division of " (3) No free miner shall be allowed to divert any creek or stream until he 
 
 creek or stream has given due notice of his intention to do so to adjoining claim-holders; such 
 by free miner, notice to be posted in a conspicuous place on his claim for at lejist ten days 
 before diverting such creek or stream." 
 
 Amends s. 43, 15. Section 43 of the said "Placer Mining Act" is hereby amended by 
 c. 136, R. S. adding thereto the following words : — 
 
 Effect of non- " Provided always, that the failure to so record any sUch document shall 
 
 record. 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." 
 
 Amends s. 44, 
 «. 136, K.S. 
 Authority of 
 agent to be 
 recorded. 
 Amends s. 51, 
 c. 136, R. S. 
 Notice of ap- 
 plication for 
 grant of right 
 of way for 
 tunnel. 
 
 Location after- 
 d^ath of •■ 
 
 holder. 
 Delays, etc., 
 by oiSciale . 
 
 16. Section 44 of the said " Placer Mining Act " is hereby amended by add- 
 ing 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 
 striking out the word " thirty," in the eigthth line thereof, and substituting in 
 lieu thereof the word "fifteen." 
 
 18. No placer claim shall be open to location by any other free miner, un- 
 less with the permission, in writing, of the Gold Commissioner, for twelve 
 months after the death of the lawful holder. 
 
 19. No free miner shall suffer from any act o'f omissioti or commission or 
 delays on the part of any Government official, if such can be proven. 
 
^•] APPENDIX A.— MINING STATUTES. 849 
 
 Part V Placer Amend- 
 
 ment Act, 1901 
 
 Mining Partnerships. 
 
 20. Section 60 of the said " Placer Mining Act " is hereby repealed and the Re-enacts s CO 
 following subaitituted therefor : — c, 1,S6 K. S. ' 
 
 " 60. Mining partnerships can locate, record, and re-record in the partnership How partner- 
 name a placer claim for each partner, but the name of every partner and the ship may re- 
 number of his free miner's certificate shall be on the record or re-record of erery cord claims, 
 such claim. • The partnership name, and the name of the foreman also, .must 
 appear on every such record or re-record, and all the claims so taken up shall 
 be the property of the partnership : Provided always, that no free miner who 
 is a .member of a mining partnership, such partnership holding by right of 
 location a plaeer claim, shall be entitled to locate and record a placer claim on 
 the same creek, ravine, bar, beach or hill. A set of claims belonging to a mining 
 partnership may be recorded and re-recorded in one record, but the fee provided 
 by this Act shall be paid in respect of every such claim." 
 
 21. Section 61 of the said "Placer Mining Act" is hereby repealed, and Repeals s. 61, 
 the following substituted therefor : — e. 136, R. S. ' 
 
 " 61. Upon producing, to the satisfaction of the Gold Commissioner, evidence Consolidating 
 shewing the neoessity for consolidation and obtaining his written consent, any claims, 
 free miner or free miners holding adjoining placer claims may consolidate as 
 many as ten of such adjoining claims by filing with the Mining Recorder such 
 consent, and also a declaratory statement containing the name of the company 
 or partnership which is to hold the consolidated claims, the location and size of 
 each claim, and such statement shall be signed by the holder or holders of the 
 claims to be consolidated. After filing such consent and sUeh declaratory state- 
 ment such free miner or free miners shall be allowed in each and every year to 
 perform on any one or more of such consolidated claims all the work that is 
 necessary to be performed to hold all such consolidated claims. All consolida- 
 tions made under this section shall be considered mining partnerships. Each 
 free miner's interest therein shall be negotiable and be otherwise governed by 
 Part V. of this Act." 
 
 22. Should any partner fail to keep up his free miner's certificate, such Where free 
 failure shall not cause a forfeiture or act as an abandonment of the partnership miner's certi- 
 claim, but the share of the partner who shall so fail to keep up hia iree miner's fifcate of part- 
 certificate shall, ipso facto, be and become vested in the continuing partners, •V^'' lapsies, his 
 pro rata, according to their former interests, and the filing in the office of the share reverts 
 Mining Recorder of a certificate from the Department of Mines that the free 
 
 miner's certificate of such partner has lapsed shall be sufficient evidence of such p^^^f gf japse 
 lapse to vest the title in the continuing partners on the record in the office of 
 such Mining Recorder. 
 
 23. Section 65 of the said " Placer Mining Act " is hereby amended by add- Amends s. 65, 
 ing thereto the following words :— c. 136, R. S. 
 
 " And for the purpose of carrying out the provisions of this section the Mining Re- 
 Miming Recorder of the mining division in which the property to be sold is corder may act 
 situate, or some one appointed by him, may act as auctioneer." as auctioneer. 
 
 24. Upon the abandonment of any share in a mining partnership, the title EfEect of 
 
 to the abandoned share shall vest in the continuing partners, pro rata, accord- abandonmen6 
 ing to their former interests. of share. 
 
 Limited LiaiUify. 
 
 25. Section 73 of the said " Placer Mining Act " is hereby amended by Amends s. 73. 
 striking out the word " partner " in the third line thereof, and substituting 
 
 therefor the words " free miner." 
 
850 
 
 MARTIN'S MINING OASES. 
 
 [vol. 
 
 Plp/oerAmend- 26. Should any such partnership fail to comply with any of the provisions of 
 Dieht Act, 1901 this Act relating exclusively to mining partnerships, such partnership shall,. 
 
 T . . ~,T. , . 'rom the date of such failure, cease to be a " limited liability " partnership, 
 liimited liabi- 
 lity partner- 
 ship failing to, 
 coinply with 
 provisions 
 ceases to be. 
 such. 
 
 Amends s. 109, 
 c. 136. R. S. 
 
 Further books 
 to be kept . 
 
 Record of frte 
 miner's certi- 
 ficate. 
 
 Part VIII. 
 Mining Recorders — Appointment, Duties, Powers. 
 
 27. Section 109 of the said " Placer Mining Act " is hereby amepded by add- 
 ing thereto the following words :— 
 
 "(/) A book to be known as the ' Record of Leases' ; 
 
 " (g) A book to be known as the 'Record of Free Miner's Certificates.''" 
 
 28. Upon any Mining Recorder issuing a. free miner's certificate, or upon 
 any free miner applying to record a placer claim, bill of sale, or other instru- 
 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- 
 Oifice hours of for the figure " 9.'!^ 
 Mining Re- 
 corder to begin PART IX. 
 at 9 a . m . . ' 
 
 Gold Commissioner's Powers. 
 
 Amends s. ]32| 
 c. 136, R. 3. 
 
 Administra- 
 tion to be un- 
 der " Official 
 Administra- 
 tor's Act. " 
 
 30. Section 132 of the said " Placer Mining Act " is hereby amended by 
 adding thereto the following sub-section : — 
 
 " (2) The G0I4 Commissioner or person authorized by him as afpresaid, shall 
 be governed by the provisions of the ' Official Administrators Act,' and any 
 rules and regulations thereunder." 
 
 Part XI. 
 
 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 his successor 
 recorded. jn title, and such writing is recorded in the office of the Mining Recorder. 
 
 Inspection of 32. The Minister of Mines, the Provincial Mineralogist, the Provincial 
 
 clisims by Assayer, any Inspector of Mines, the Gold Commissioner for the District, the 
 
 Government Mining Recorder for any district for which no Gold Commissioner has been 
 officials. 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 
 examine, any placer claim, leased ground, drain, ditch, tunnel or flume. 
 
 33. Section 148 of the said " Placer Mining Act " is hereby amended by add- 
 ing thereto the following words ; " upon payment of the sum of twenty-five 
 cents." 
 
 Amends s. 148, 
 c. 136, R. S. 
 Payment for 
 copy of this' 
 Act. 
 
 Re-enacts s. 
 149, c. 136, 
 R. 8. 
 
 Before whom 
 affidavits may 
 be made. 
 
 is hereby repealed, and 
 
 34. Section 149 of the said " Placer Mining Act ' 
 the following substituted therefor : — 
 
 " 149. Affidavits and declarations required under the provisions of this Act 
 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 
 declarations may be sworn or made, that is to say :— Supreme or County Court 
 
ij APPENDIX A.— MINING STATUTES. 85 
 
 Judge, Registrar of a Court of Record, Gold Commissioner, Mining Recorder, PlaoerAmend- 
 Stipendiary Magistrate, Justice of the Peace, Notary Public, or Commissioner ment Act, 1901 
 for taking Affidavits." 
 
 35. Section 154 of the said " Placer Mining Act " is hereby amended by Amends s. VA 
 striking out the words " mineralclaim," in the second and in the fourth line <^- ■'■'''' "'■ ''• 
 thereof, and substituting therefor the words " placer claim." 
 
 36. This Act shall come into_force on the first day of July, A.D. 1901. Commence- 
 
 ment. 
 
 37. The following forms are added to the Schedule to the said " Placer Forms added . 
 Mining Act " : — 
 
 H. 
 
 Application for Record of a Placer Claim, 
 
 " I, of , hereby apply, under the provisions 
 
 of the ' Placer Mining Act,' for a record of a claim for placer mining as defined 
 in the said Act [here deaorihe locality, dc, fully], and I make oath and say : — 
 
 " 1. That I am the holder of free miner's certificate Xo. , issued' 
 
 at on the day of 
 
 " 2. That from indications I have observed on the claim applied for I have- 
 reason to believe that there is therein a deposit of placer gold. 
 
 " 3. That the said land is at present unoccupied for placer mining purposes. 
 
 " 4. That I did, on the day of , mark out the 
 
 ground and make the proper ipscriptions required by the ' Placer Mining Act '' 
 and amendments, on the claim for which I make this application, and in doing 
 so I did not, so far as I know, encroach on any other valid claim previously- 
 laid out by any other person. 
 
 " 5. That the said claim, as nearly as I could measure, is feet long,, 
 
 running in a and direction, and feet wide, 
 
 and that the above description sets forth in detail its position, to the best of 
 my knowledge and belief. 
 
 " 6. That I have not heretofore located any placer claim on the said creek 
 (or. That heretofore I located claim [name or number'] on said creek (but I 
 have in due form abandoned the same on the day of ) . 
 
 " 7. That I make this application in good faith to acquire the claim for the 
 sole purpose of mining. 
 
 [And if the applicant is the first discoverer, or one of a party of discoverers, 
 let him so state here, giving the names and facts.] 
 
 " Sworn before me this day ) 
 
 of , at " i" 
 
 Note. — ^In the case of applications for a discovery claim the following section 
 shall be added : — 
 
 That I am, to the best of my knowledge and belief, the first free miner to 
 observe indications of gold upon and to locate the said claim. 
 
 In the case of applications for re-location of a placer claim the following 
 section shall be added : — ■ 
 
 That the said claim was previously located by and known as 
 
 the placer claim, but has remained unworked for not less than 
 
 seventy-two hours (or after "claim" "that the free miner's certificate of the 
 said has lapsed.") 
 
852 MARTIN'S MINING CASES. . [vol. 
 
 Placer Amend- 
 ment Act, 1901 I " 
 
 Applioation for Record of a Placer Ulaim located Iv Agent. 
 
 " Ii of , agent for , hereby 
 
 apply, under the provisions of the ' Placer Mining Act,' for a record of a claim 
 for placer mining as defined in the said Act ^liere describe locality, &c., fully], 
 and I make oath and say : — 
 
 " 1. That I am the holder of free miner's certificate No. , issued 
 
 at , on the day of , and that 
 
 the said is the holder of free miner's certificate Ko. 
 
 issued at , on the day of 
 
 " Z. That from indications I have observed on the claim applied for I have 
 reason to believe that there is therein a deposit of placer gold. 
 
 " 3. That the said land is at present unoccupied for placer mining purposes. 
 
 " 4. That I did, on the day of , mark out the ground 
 
 and make the proper inscriptions required by the ' Placer Mining Act ' and 
 amendments, on the claim for which I make this application, and in doing so 
 I did not, so far as I know, encroach on any other valid claim previously laid 
 ■out by any other person. 
 
 " 5. That the said claim, as nearly as I could measure, is feet long 
 
 Tunning in a and direction, and feet 
 
 wide, and that the above description sets forth in detail its position, to the best 
 •of my knowledge and belief. 
 
 " 0. That I have not heretofore located any placer claim on the spiid creek 
 {or. That heretofore I located claim [name or nnrnbor'\ on said creek, but I 
 have i-ecorded an abandonment of same on day of , and 
 
 have posted notice of such abandonment on each of the stakes of such claim). 
 
 " 7. That on the day of , a power of attorney from 
 
 the said to me was recorded in the office of the Mining 
 
 Kecorder at 
 
 " 8. That I located and apply to record the said placer claim in the name of 
 the said , and that the said claim was located by me for his sole 
 
 and only use and benefit and that I have no interest, express or implied, 
 therein. 
 
 " And I make this application on his behalf, in good faith, to acquire the 
 claim for him for mining purposes solely. 
 
 [And if the applicant is the first discoverer, or one of a party of discoverers, 
 let him so state here, giving the names and facts.] 
 
 " Sworn before me this day | 
 
 jof at ." I 
 
 Note. — In the case of applications for a discovery claim the following 
 rsection shall be added :^ 
 
 That I am, to the best of my knowledge and belief, the first free miner to 
 •observe indications of gold upon and to locate the said claim. 
 
 In the case of applications for re-location of a placer claim the following 
 section shall be added: — 
 
 That the said claim was previously located by and known 
 
 gg j-lje placer claim, but has remained unworked for not less than 
 
 seventy-two hours (or after "claim" "that the free miner's certificate of the 
 said has lapsed.") 
 
I] 
 
 APPENDIX A.— MINING STATUTES. 
 
 853 
 
 lOrder-in-Oouncil.'\ 
 " MINERAL ACT AMENDMENT ACT, 1898." 
 
 NOTICE is hereby given that under the provisions of sec. 143 of the " Min- 
 eral Act," His Honour the Lieutenant-Governor in Council has been 
 pleased to revoke the Order in Council of the 5th of March, 1900, published in 
 the British Columbia Gazette of the same date, with regard to the interpretation 
 to be placed upon sec. 5 of the " Mineral Act Amendment Act, 1898," and upon 
 sec. 36 (as amended by sec. 7 of the " Mineral Act Amendment Act, 1898,") of 
 the " Mineral Act." 
 
 Such revocation to take effect the first day of June, 1902. 
 
 J. D. PRENTICE, 
 
 Clerk Executive Council. 
 
 Order-in- 
 
 CounSil, 
 
 May 6, UKJl'. 
 
 Provincial Secretary's Ofl5ce, 6th May, 1902. 
 
 [Order-in-Gouncil.'\ 
 
 " MINERAL ACT AMENDMENT ACT. 1898." 
 
 ■VT OTICE is hereby given that, under the provisions of sec. 143 of the " Miu- 
 1\ eral Act," His honour the Lieutenant-Governor in Council has been 
 pleased to make the following order : — 
 
 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- 
 cess 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 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 
 the 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. 
 
 Provincial Secretary's Office, 15th May, 1902. 
 
 Order-in- 
 
 Council, 
 
 May 15, 1902. 
 
854, 
 
 MARTIN'S MINING CASES. 
 
 [vol. 
 
 Min. Amend- 
 ment Act, 1902 
 
 2 Ed. VII. ChIp. 46. 
 
 An Act to Amend the " Mineral Act.' 
 
 [Zlat June, 1902.} 
 
 H 
 
 IS MAJESTY, by and with the advice and consent of the Legislative As- 
 sembly of the Province of British Colmnbia, enacts as follows : — 
 
 unde?^^M^ ^' ^^ ^^ action or suit brought in any Court under the provisions of sec. 
 
 eral Act " may ^^ "^ '^^' ^^^ °^ *^'^ Revised Statutes of Rritish Columbia, being the " Mineral 
 be tried by 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. 
 
 Decision of 
 title where 
 two or more 
 persons have 
 obtained certi- 
 ficates of work 
 for same claim, 
 or portion 
 thereof. 
 
 Pending 
 litigation not 
 affected. 
 
 2. In any action or suit brought in any Court under the provisions of sec. 
 37 of ch. 135 of the Revised Statutes of British Columbia, being the " Mineral 
 Act," and amendments, notwithstanding anything in the said Act and amend- 
 ments contained, in all cases where two or more persons have obtained certi- 
 ficates of work for the whole or portion of the same claim the title thereto shall 
 be decided under the provisions of sec. 27 of the " Mineral Act." 
 
 3. Nothing in this Act contained shall be held or construed so as to affect 
 any litigation now pending. 
 
 Iron Placer 
 Act, 1902. 
 
 Short title. 
 
 2 Ed. VII. CiiAp. 49. 
 An Act to make provision for t]te Extraction of Iron from Magnetic Sand. 
 
 [21st June, 1902.] 
 
 WPIEREAS there are large deposits of magnetic iron, in the form commonly 
 known as " black sand," which cannot be located by free miners under 
 any Statute, and- it is expedient to make provision for the mining of same : — 
 
 Therefore, His Majesty, by and with the advice and consent of the Legisla- 
 tive Assembly of the Province of British Columbia, enacts as follows : — 
 
 1. This Act may be cited as the " Iron Placer Act, 1902." 
 
 Interpretation 2. In this Act the words " free miner ' 
 as defined in the " Placer Mining Act." 
 
 and " legal post " shall be interpreted 
 
 Leases of 
 unoccupied 
 Grown land 
 
 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 un- 
 reserved Crown land for the extraction of iron from magnetic sand for any term 
 
 for iron placer not exceeding twenty years, on such terms and conditions as he shall think fit ; 
 
 mining. 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- 
 mediate locality, and also on the ofRce of the Slining 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. 
 
I] APPENDIX A.— MINING STATUTES. 
 
 855 
 
 4. The free miner, after staking the ground and posting the notices as afore- Iron Placer 
 said, shall, within thirty days, make application in writing, addressed to the Act, 1902. 
 ■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 Application 
 Recorder, which application shall set out — ■ f™ lease. 
 
 (1) The name of each applicant; 
 
 (2) The number of each applicant'.? free miner's certificate; 
 
 (3) The locality of the ground ; 
 
 (4) The quantity of ground; 
 
 (5) The term of the lease desired ; 
 (0) The rent proposed to be paid. 
 
 5. On making such application the free miner shall deposit with the Mining pj^n ;„ dupli- 
 Eecorder, for the use of the Gold Commissioner, a. plan of the ground in tripli- cate of ground 
 cate. And every person making application for a lease of mining ground for sought to be 
 any purpose under the provisions of this Act shall deposit the sum of ten dol- leased to be 
 lars with the Gold Commissioner at the time the application is made. If the tiled, 
 application is granted the ten dollars deposited to be applied towards the pay- 
 
 ment of the first year's rent, and the balance of the first year's rent shall be J®" dollars 
 paid by the applicant within sixty days after the Gold Commissioner gives him ^P™^ • 
 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 
 whpn the application for the lease is made. If the application is not granted, the 
 ten dollars deposited is to be returned to the applicant ; but in case the applicant 
 fails to perform his part in accordance with the application, then the ten dollars 
 <leposited shall be forfeited to the Government, and his application shall be void. 
 
 6. Applications shall not be for an area greater than eighty acres, and no Application 
 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 ^^ lease 
 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 ground occu- 
 of the Gold Commissioner, available for agricultural purposes. pied, nor 
 
 agricultural 
 
 8. The Gold Commissioner may with the sanction of the Lieutenant-Governor ?^™""tI,' 
 
 in Council grant or refuse any application for a lease of iron placer ground, or C-?'". Corn- 
 modify the terms and conditions of such application as he shall think fit. mwerrof ^ 
 
 granting lease. 
 
 9. Every application for a lease of iron placer ground, together with the plan Applications 
 of the ground and the Gold Commissioner's report thereon, shall be forwarded with plan 
 by such Gold Commissioner to the Lieutenant-Governor in Council, and no lease annexed, 
 shall be granted on any such application without his sanction. 
 
 10. Every' lease of placer iron ground shall be in writing signed by the Gold i,^^^^ ^^ jj^ j„ 
 Commissioner and the lessee, and shall be in duplicate or triplicate, as the case writing, etc. 
 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 dis- 
 trict in which the mining ground leased is situated. 
 
 11. Every lease shall provide for securing to the public reasonable rights of Contents of 
 way and water, and shall contain a covenant by th© lessee to mine the ground lease. 
 
 in a miner-like manner, and shall contain such covenant for the continuous 
 
856 
 
 MARTIN'S MINING CASES. 
 
 [VOL. 
 
 Iron Placer working of such ground as the Gold Commissioner shall think reasonable, and 
 Act, 1902. shall reserve the right to free miners to enter on such ground and mine for Veins 
 or lodes, as defined by the " Mineral Act." 
 
 Forfeiture of 
 lease. 
 
 12. 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 mining ground 
 shall be open for location by any free miner. No lease, Avhethei' made before 
 or after the passage of this Act, shall hereafter be declared forfeited, except in 
 accordance with this section. 
 
 Leases to be 13. Leases shall be granted for iron placer mining only, and shall not be 
 
 only for iron assigned or sub-let without the written consent of the Gold Commissioner, 
 placer mming. 
 
 Extension. 
 
 14. When any iron placer ground is held und«r lease, and such mining 
 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 the 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 Com- 
 missioner may, with the sanction of the Lieutenant-Governor in Council, grant 
 such 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 carry- 
 ing 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 pro- 
 perty of the owner thereof. 
 
 Consolidation 
 of leases.' 
 
 15. Any free miner, or two or more free miners, holding adjoining leases of 
 iron placer mining grounds, may consolidate as many as ten leases, by filing 
 with the Mining Recorder a declaratory statement containing the name of the 
 cdmpany or partnership (if any) 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 state- 
 ment 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. 
 
 Lease forfeited 16. If, and as soon as, any lessee under this Act shall cease to be a free 
 when holder miner the lease shall thereupon cease and determine, and the premises thereby 
 ceases to be a demised be open for location by any free miner : Provided, that if a leasehold is 
 free miner. held by more than one free miner and the free miner's certificate of one or more 
 such co-owners shall lapse, the demised premises shall become vested in such 
 Co-owners. co-owners whose free miner's certificates remain in force accorrling to their 
 Only free previous interests, and such surviving co-owners shall become the lessees and per- 
 
 miners to have form all the covenants and conditions of such lease, and only a free miner shall 
 interests in be entitled to any interest express or implied in any demise under this Act. 
 leases. Shareholders in joint stock companies holding leases under this Act need not 
 
 Shareholders, be the holders of free miners' certificates. 
 
 Royalty. 17. There shall be reserved to His Majesty a royalty of ten cents on each ton 
 
 of ore won from any ground held as leasehold under this Act, which shall be in 
 substitution for any royalty or tax which may at any time be imposed or levied 
 under any Act. 
 
 Leases only to 18. Nothing in this Act shall entitle the holder of any lease to mine for any 
 mine for iron, mineral other than iron unless and until he shall have complied with the statute 
 governing the mining of such mineral. 
 
I-J APPENDIX A.— MINING STATUTES. S57 
 
 2 Ed. YII. Chap. 50. a^""" f 'T^f 
 
 Amend. Act> 
 
 An Act to Ammd the "Iron Placer Act, 1002." ^^^ 
 
 [Zlst June, 190B.'\ 
 
 HIS MAJESTY, by and with the advice and consent of the Legislative As- 
 sembly of the Province of British Columbia, enacts as follows : — 
 
 1. This Act may be cited as the " Iron Placer Act, -1902, Amendment Act, ''""^'^' *'*'*• 
 1902." 
 
 2. The said " Iron Placer Act, 1902," is hereby amended by adding thereto Section added, 
 the following section : — 
 
 " 19. Nothing in this Act contained and no lease granted under this Act ^\S^^^ of jf^e 
 shall interfere with or impair the right of free miners to locate and work claims " pjlo^r Min- 
 under the provisions of the ' Placer Mining Act.' " ;„„ j^ct ■> not" 
 
 interfered 
 with. 
 
 • [Order-in-Council.^ Order-in- 
 
 Council, 
 " MINERAL AOT AMENDMENT ACT, 1898." August^, 1902 
 
 ~Vr OTICE is hereby given that under the provisions of see. 143 of the " Miu- 
 ly eral Act," His Honour the Lieutenant-Governor in Council has been 
 pleased to rescind the order of the 15th of May, 1902, published in the British 
 Columbia Gazette of the same date, with regard to the interpretation to be 
 placed upon paragraph 2 of sec. 5 of the " Mineral Act Amendment Act, 1898," 
 and to make the following order in lieu thereof, namely : — 
 
 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, 
 shall be exercisable only during the year in which such excess shall be performed. 
 
 And it is further ordered that this order shall take effect from the first day 
 of June, 1902. 
 
 J. D. PKENTICB, 
 
 Cleric Executive Council. 
 
 _ .. r 
 Provincial Secretary's Office, 5th August, 1902. 
 
APPENDIX B. 
 
 Glossary of Mining Teems.* 
 Mainly in use in British Columbia. 
 
 Hevised by the Provincial Mineralogist of British Columbia, Wm. Fleet 
 Robertson, Esq., B.A. Se. 
 
 Adit. A horizontal drift or other passage used as an opening or drain 
 to a mine ; applied to no level except one opening on the surface. 
 
 Adventueee. An original shareholder or promoter in a mining enterprise. 
 
 AiTEE Damp. Irrespirable gas, consisting chiefly of carbonic acid and 
 nitrogen, left in mines after explosion of fire damp. 
 
 AlE CouKSE. 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. 
 
 Aeeastee. 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. Some- 
 times Incorrectly written arraster, arrastra, or raster. Span. 
 
 Aech. a part of the lode left standing for support. 
 
 Aegentifekous. Silver bearing. 
 
 Ascension Tiieoky. That referring the filling of fissures to aqueous soluti6n 
 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 con- 
 Btituents of the substance examined. 
 
 Assessment Work. 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. Gemish'. 
 
 AURIFEEOUS. Gold bearing. 
 
 Backs. With reference to a drift, stope, or other such workings, the part 
 of the vein between it and the next working above, on the surface. 
 
 Bal. a mine. Cornish. 
 
 Bank. The surface at the pit's mouth ; used in coal mines only. 
 
 Banksman. The man at the pit-mouth who handles the bucket or car. 
 Cornish. 
 
 * This glossary is not intended to include geological terms which have no 
 peculiar relation to mining. Where a term has more than one meaning the 
 one here given expresses the sense in which it is used in mining. 
 
I.] APPENDIX B.— GLOSSARY OF MINING TERMS. 859 
 
 Bak Diggings. Gold washing on river bars. T'iiZe Diggings. 
 Barbiees. Masses of unworked gangue or coal left to prevent drainage 
 :froin mine to mine. 
 
 Base Bullion. Usually pig lead, sometimes pig copper, containing its gold 
 -and silver unseparated. 
 
 Base Metals. All metals except gold and silver. Of. Mines Royal. 
 
 Bed. a seam or deposit of mineral, later in origin that the rock below, and 
 older than the rock above ; that is to say, a regular member of the series of 
 formations, and not an intrusion. 
 
 Bed Rock. The solid rock underlying the gi'avel, slide, or other loose mat- 
 ter in placer mines. 
 
 Bench Diggings. YUe Diggings. ' 
 
 Black Jack. Zinc blende. Gorniih. 
 
 Black Sand. Sand containing a notable amount of fine black grains of 
 magnetic iron ore — often carrying fine particles of gold. 
 
 Blende. Sulphide of zinc. 
 
 Blind Lode, a vein without an out-crop. 
 
 Blind Shait. Vide Winze. 
 
 Blocked Out. Ore in sight which is exposed on three sides is said to be 
 " blocked out." 
 
 Blossom. The oxidized or decomposed out-crop of a vein or coal bed; more 
 irequently the latter. Also called. " smut " and " tailing." Cf. Gossan and 
 Iron Hat. 
 
 Blow Out. A spreading out-crop. 
 
 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 
 ■Comstock. Spun, 
 
 Bond. An option on the purchase of a mine. See Working Bond. 
 
 Booming. A kind of placer mining where the water is accumulated in a 
 dam and let out at intervals so as to utilize its cutting power in the form of 
 a torrent. 
 
 • 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 chan- 
 nel cut down a declivity into which is let a sudden head of water intended to 
 ^ut to bed-rock and prospect for the apex of any underlying lode. 
 
 BOBRASCA. " 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, 
 
 Brattice. A plank lining or a longitudinal partition of wood, brick, or even 
 ■cloth, in a shaft, level, or gangway, generally to aid ventilation by directing 
 the air current. Ung.. Scot., Wales. 
 
 Breaking Down. (1) The drilling and blasting of ore in a stope. (2) 
 In a broader sense, the foregoing plus tramming and hoisting the ore to the 
 surface. 
 
 Breakings. Poor part of ore ready for crushing. 
 
 Bbeast. The face or heading of a drift, tunnel, or other horizontal work- 
 ing. 
 
 Breccia. A mass of rock made up of angular fragments, and differing 
 only in this respect from conglomerate in which the particles are rounded and 
 water-worn. 
 
 Broaching. Trimming or straightening a working. 
 
 Browse. Ore imperfectly smelted, mixed with cinder and cla.y; a mixture 
 of slag and semi-reduced ore that collects oh the hearth in lead smel'ting. 
 
 BUDDLING. Separating ores from slime or stamp-work by means of. a 
 huddle, an inclined shallow trough shaken in running water. 
 
860 MARTIN'S MINING CASES. [a'OL. 
 
 Bullion. Uncoined gold or silver. 
 Bunch. A small deposit of ore. 
 
 Bunions. Timbers placed horizontally across a 'shaft dividing it into 
 compartments and supporting guides on which the cages run. 
 
 Butt. Surface of cross section of coal cut at right angles to face. 
 Butt-Bntrt. The gallery driven at right angles to the butt-joint. 
 Butty, a miner working on contract by weight or measure. 
 Butty Gang. A company of the last mentioned, dividing the profits. 
 
 Cache. A place where a prospector's provisions or outfit are buried or 
 hidden. French. 
 
 Cage. A frame to hold a bucket or car in hoisting ore in a vertical shaft ; 
 it is steadied by guides on the sides of the shaft. 
 
 Calcareous. Composed of, containing, or of the nature of lime or lime- 
 stone. 
 
 Canyon. A deep narrow valley. Termed Box Canyon wlien the' sides are 
 perpendicular. Spanish . 
 
 Camp. Vide Mining Camp. 
 
 Cap. Space where the walls contract so as to leavi^ only a trace of the 
 vein. A. pinch. (2) A space in the vein where the gangue becomes barren. 
 (3) In mine timbering, the stick resting on two posts and supporting the roof 
 of drift or tunnel. (4) The detonator used to set off a high explosive. 
 
 Cap Rock. Rock overlying vein, stone, or ore. 
 
 Cabbonates. The common term in the west for ores containing a consider- 
 able proportion of carbonates of lead. They are sometimes earthy or ochreous 
 (soft carbonates), sometimes granular and comparatively free from iron 
 (sand carbonates), and sometimes compact (hard carbonates) ; often they are 
 rich in silver. 
 
 Cement. Gravel united and hardened into a compact mass ; but not as 
 compact as a conglomerate. Sometimes gold bearing. 
 
 Certificate of Improvements. Certificate from the Gold Commissioner 
 that the claim owner has complied with all the requirements of the Jlineral 
 Act necessary to entitle him to a Crown grant. 
 
 Chairs. Vide Rests. 
 
 Chee-chahko. a new comer ; a green hand as distinguished from an experi- 
 enced prospector, who is called a "sourdough " (q.v.). In the Chinook jargon, 
 Ghee ^ lately, and chahfco:=to come, hence a "Johnny-come-lately." 
 
 Cheek. The sides or walls of a vein. 
 
 Chimney. A pocket or ore body when found iu pipe shape. An ore shoot 
 with general perpendicular position. 
 
 Chlorides. Compounds of chlorine with other elements, usually applied 
 to chloride of silver. 
 
 CnocK. Pillars or blocks of wood to support roof in coal mine. • 
 
 Choke Damp. Black damp. Carbon-dioxide gas. 
 
 Chute, (or Shoot). A flume. for sliding ore. (2) A chimney of ore. 
 French. 
 
 Claim. A location ; g,v.. the amount of ground which may be located by a 
 single person or association. " ' Mineral Claim,' shall mpan the personal right 
 of property or interest in any mine. .Mineral Ad, sec. 2. Vide Diggings. 
 
 Clean-up. The operation of collecting the gold which has settled in the 
 flume of a placer or in an arrastra for a given period: or the gold so collected 
 at one time. 
 
 Cleavage. The property of splitting more or less readily in certain defin- 
 ite directions. 
 
I.] APPENDIX B.— GLOSSARY OF MINING TERMS. 861 
 
 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." 
 Placer Mining Act, sec. 2. 
 
 Coal. An amorphous substance derived from vegetation of pre-historic 
 ages consisting of different kinds of hydrocarbons, loosely classified into anthra- 
 cite, or hard coal, and bituminous or soft coal according to the amount of 
 volatile matter contained. 
 
 CoASTEB. One who picks dump, or gleams in abandoned mines for ore in 
 sight. 
 
 CoEBiKO. Breaking ore by hand hammer in order to select out the better 
 portions. Cf. Spall. 
 
 Coke. The product remaining after the expulsion by heat of the volatile 
 constituents of coal. To be of value it must be coherent, a quality not found 
 in all soft coals. 
 
 Collar. (1) The top of a shaft or winze. (2) The timbering of a shaft 
 when carried abovB the surrounding surface. 
 
 Colour. A particle or trace of gold in the pan. 
 
 Concentration. The removal by mechanical means of the lighter and less 
 valuable portions of ore. 
 
 Conglomerate. A rock made up of gravel, solidly cemented by silica, lime, 
 or other material — ^Pudding Stone. 
 
 Contact. The plane of meeting of t'\'s'0 adjacent bodies of dissimilar 
 rock. 
 
 Contact Vein. A vein along or close to the plane of contact of two. 
 dissimilar rock formations. 
 
 Cost-Book Company. A system of mining partnership local to Cornwall 
 and Devon. 
 
 CouNTBY Rock. The rock beyond the walls of a lode. The strata between 
 or across which the lode is found. 
 
 Course op Vein. Its strike. The horizontal line on which it cuts the 
 country rock. 
 
 Coyoting. Gophering. Spaslnodic, irregular, surface mining. 
 
 Crab Holes. Holes in bed-rock apparently formed by eddies of water. 
 
 Cradle. A rocker ; a short trough in which auriferous sands are agitated 
 by oscillation in water to collect their gold. 
 
 Crank a Machine, To. The oiieration of drilling and adjusting a machine 
 drill. 
 
 Ceeek. Vide Stream. 
 
 Creek Diggings. Vide Diggings. 
 
 Creep. A rising of the floor of a gangway, occasioned by the weight of 
 incumbent strata, in pillar workings. Also any slow movement of mining 
 ground. Newc. 
 
 Cribbing. Close timbering, as the lining of a shaft, -or the construction 
 of cribs of timber, or timber and earth or rock, to support a roof. 
 
 Cross Course. An intersecting vein, usually approximately at right angles 
 to the main lode. 
 
 Cross Cut. A level driven across the course of a vein. A short tunnel. 
 
 Crown Grant. Vide Certificate of Improvements. 
 
 Culm. The fine waste of screening at coal mines, containing dirt as well 
 as coal dust; slack. 
 
 Cut. To intersect a. vein. Open Cut ; an opening at the surface not 
 reaching cover. 
 
 Cut-off Hole. Vide Missed Hole. 
 
 Cyanide. As a mining term — is an abbreviation for cyanide of potassium, 
 and which has the property of dissolving metallic gold. The cyanide process 
 
862 MARTIN'S MINING CASES. [vol. 
 
 is based on this property. Tlie 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 preci- 
 pitates the gold out of the solution and it settles to the bottom of the tank, 
 from which it is afterwards removed and melted into bullion. 
 
 Deads. Waste matter of a vein or from any mining ground. Unprofit- 
 able •ore. Gf. Leavings. 
 
 Dead Gbound. Unproductive rock Avhich must be moved to get at produc- 
 tive ground. 
 
 Dead Wokk. The work done in developing a mine preparatory to stoping. 
 
 Debbis. The loose fragments detached from the bed rock and washed 
 dowil, 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 re- 
 cord " of a claim. 
 
 Descension Theoky. The theory that veins are filled by mineralized waters 
 from above. 
 
 Development Work. 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. Ac- 
 cording to some authors, alluvium is the efifect 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. 
 
 Dirt Fault. A partial replacement of coal in a seam by clay. Not a true 
 fault. 
 
 Discovert Claim. A larger claim than usual, allovred 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 con- 
 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 whtre 
 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. 
 
 Drift. An underground passage driven horizontally on, or with the vein. 
 
 Drifting. Following along the course of the vein. 
 
 Dry Diggings. Tide Diggings. 
 
 Dry Ore. Vide Ore. Usually a silver ore without suflBcient lead to enable 
 it to be smelted alone. 
 
 Dumb Drift. A gallery which conducts the air round a ventilating furnace- 
 to thie upcast shaft. 
 
I.] APPENDIX B.— GLOSSARY OP MINING TERMS. 
 
 Dump. A deposit, or place of deposit, of waste rock or tailings. 
 Dyke. Vide Dike. 
 
 863. 
 
 Exploitation, The active or productive working of a mine as distinguished 
 from prospecting. Cf. Development and Stoping. 
 Eye. The top of a shaft. 
 
 Face. Synonymous with Breast. 
 
 Fathom. Six feet. A fathom of mining ground is 6 feet forward and 
 6 feet vertical with the width of the vein. Corn. Not used in B. G. 
 
 Fatilt. a dislocation of a S'tratum or vein from its original position. 
 
 Feedbk. a small vein starting from some distant point and running into a 
 main lode. It is practically synonymous with spur. In coal mining, gas issuing 
 out of a fissure in seam. 
 
 FiEE-DAMP. Explosive gas generated in coal seams consisting chiefly of light 
 earburetted hydrogen. 
 
 Fissure Vein. A fissure in the earth's' crust filled with mineral. 
 
 Flat Fault. Vide Fault. 
 
 Float. Float Gee. Masses or particles of ore or quartz detached from the- 
 vein and found below it. 
 
 Flookan, Flucan, Flukan. a soft clayey decomposed cross-course. A 
 vein containing a preponderance of clay is known as a " flookan lode." 
 
 Floor. The rock underlying a horizontal vein or deposit. 
 
 Flume, a wooden conduit bringing water to a mine or mill. 
 
 Fluxing Oke. Tide Ore and Self-fluxing Ore. 
 
 Foot Wall. The under wall of the vein. 
 
 FOKFEITUEE. The loss of possessory title as the result of abandonment or- 
 failure to comply with the conditions under which such title was held. 
 
 FossiCKEE. One who re-works abandoned claims. Australia. 
 
 Free Milling. Applied to oi-es which contain tree gold or silver and can 
 be reduced by crushing and amalgamation, without roasting or other chemical 
 treatment. Vide Ore. 
 
 Free Miner. " Shall mean a person, or joint stock company, or foreign 
 company named in, and lawfully possessed of a valid existing, miner's certi- 
 ficate, and no other." Section 2 of Mineral Act and Placer Mining Act. 
 
 Full Interest. Any placer or mineral claim of full size or one of several 
 shares into which it may be divided. Section 2 of Mineral and Plader Mining- 
 Acts. 
 
 Gad. a small pointed iron or steel wedge for splitting rock. 
 
 Galena. Sulphide of Lead. 
 
 Gallery. A level or drift; applied chiefly to collieries. 
 
 Gangue. Crevice material; vein matter; the base material forming the- 
 matrix of the ore. The commonest gangue are quartz, calcspar, fluorspar, 
 baryl«s, &c. 
 
 Gash Vein. A vein whieli continues for practical purposes only a short 
 distance below the surface, generally narrowing as it descends. 
 
 Geode. a rounded nodule of stone containing a cavity studded with crystals- 
 or mineral matter; the cavity in such nodule. 
 
 Giant. A jointed iron pipe and nozzle decreasing in diameter with the in- 
 crease of hydraulic pressure; used in hydraulic placer mining. 
 
 Glory Hole. A purely local term applied to a large open quarry or stope- 
 of ore. 
 
864 MARTIN'S MINING CASES. [vol. 
 
 Gneiss. A rock composed of the same constituents as granite, but foliated 
 or stratified. Mica gneiss consisting of felspar, quartz, and mica; and home- 
 blende gneiss consisting of felspar, quartz and horneblende, are the commonest 
 varieties. ' 
 
 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 
 of the space packed with waste after long-wall extraction of the coal. S. 
 Wales. 
 
 Gobbing. Packing with waste rock. See Stowing. 
 GOB-FiEE. Fire produced by the heat of decomposing gob. 
 Gophering. Vide Coyoting. 
 
 Gossan. Hydrated oxide of iron, usually formed at the outcrop of a mineral 
 vein. 
 
 Gotjge. a layer of soft material along the wall of a vein, favouring the 
 miner, by enabling him after " gouging " it out with a pick, to attack the solid 
 vein from the side. 
 
 Granite. A plutonic crystalline rock composed of feldspar, quartz and 
 mica. 
 
 Grass. The surface over a mine. Corn. 
 
 Grass Roots, a claim in which the ore is pay grade from the very start 
 is saia to pay from the grass roots." Pay grade ore is that which can be 
 milled or shipped at a profit. 
 
 Grizzly. A grating to catch and throw out large stones from sluices. A 
 bar or screen on which ore is dumped to separate the fines from the roughs. 
 
 Ground. (1) Mining ground. The area covered by a mineral claim or 
 mining location. (2) The rock itself, or ore, in which mining operations are 
 being carried on. 
 
 Gbub Staking. Provisioning or outfitting a prospector on a bargain to 
 share his discoveries. 
 
 Guides. Vide Cage. 
 
 Gulch. Vide Stream. Essentially a deep cut, rapid stream. 
 
 Gut. Of. to Rob. To gut a mine Is to take out all the ore exposed and 
 abandon development work. As distinguished from this, to Rob is to take 
 out ore much faster than it is exposed by development work. 
 
 Hade. Vide Dip. 
 
 Hanging Wall. The upper or overhanging wall of a vein. 
 
 Hard Pan. An unusually hard and compact clay or gravel. 
 
 Heading. The breast or face of a working. 
 
 Headings. In ore-dressing, the heavier portions collecting at the upper 
 end of a huddle 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 another. Cf. Fault. 
 
 High Explosives. Those of greater detonating force than gunpowder ; 
 nitroglycerine compounds. 
 
 Hill Diggings. Vide Diggings. 
 
 Hole. Vide 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 con- 
 verge 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. 
 
 Hungry. Barren. 
 
I.] APPENDIX B.— GLOSSARY OF MINING TERMS. 
 
 865 
 
 Hydbaulicing. That method of placer mining where the gravel is moved 
 by a stream operating under hydraulic pressure. 
 
 Igneous Rock. Those which have evidently been once in a molten condi- 
 tion. 
 
 IMPEOVEMENTS. Vide Certificate of. 
 
 IMPBEQNATION. An ore-deposit consisting of the country rock impreg- 
 nated with ore, usually without definite boundaries. 
 
 Incline. (1) A shaft not vertical; usually on the dip of a vein; vide 
 Slope. (2) A plane, not necessarily underground. 
 
 Initial Post. The No. 1 post in locating a claim under the Mineral Act. 
 
 Incline Drift. A drift run at an incline to subserve the drainage. (2) 
 A misnomer applied to a slope sunk upon a deposit having a slight departure 
 from the horizontal. Vide Slope. 
 
 Infiltration Theory. The theory that a vein was filled by the infiltra- 
 tion of mineral solutions. 
 
 Injection Theory. The theory that a vein was filled first with molten 
 matter injected from below. 
 
 In Place. Vide Rock in Place ; Mineral in Place. 
 
 Interest. Vide Pull Interest. 
 
 Iron Hat. (Eisen Hut.) See Gossau. German. 
 
 Iron Pyrites. Sulphide of Iron. 
 
 Jigging. Separating ores according to specific gravity with a sieve agitated 
 up and down in water. The apparatus is called a jig, or jigger, and is oper- 
 ated by hand or power. Corn. 
 
 Jump. To take forcible or fraudulent possession of u. claim. 
 
 Jumper. (1) One who " jumps " as above. (2) A drill or boring tool con- 
 sisting of a bar or lode is " jumped " up and down in the bore-hole. Corn, and 
 Newc. 
 
 Kibble. An iron hoisting bucket. Corn. 
 
 Lagging. Planks, slabs, or small timber placed over the caps or behind the 
 posts of the timbering, not to carry the main weight, but to form a ceiling 
 or a wall, preventing fragments of rock from falling through. 
 
 Lay. To give a lay on a claim means to give a licence to a miner to remove 
 the gold therefrom in consideration of receiving an agreed proportion of the 
 <;lean-ups. 
 
 Layman. One who takes a lay. 
 
 Lay Over. Vide Close Season. 
 
 Lead. A form of the word Lode. 
 
 Leader. A small ore vein or branch indicating presence of and leading to 
 a large and better one. 
 
 Lean Ores. So low grade as not to be usually worked. 
 
 Leavings. Synonymous with Deads. 
 
 Ledge. A term in use on the Pacific slope synonymous with Lode. 
 
 Legal Post. Vide definition in sec. 2 of Mineral Act and Placer Mining 
 Act. A stake standing not less than 4 feet above ground and squared or faced 
 on four sides at least 4 inches square for at least one foot from top ; a stump 
 ■of tree may be so used for that purpose. 
 
 Length. A certain portion of a vein when taken on a horizontal line 
 on its course. 
 
 M . M . c , 55 
 
866 MARTIN'S MINING CASES. [vol.. 
 
 Level. A horizontal drift along the vein; the word genei'ally used where 
 there are a series of drifts, as first level, second level, &c., diverging from the 
 shaft. 
 
 Lift. The space between two levels. 
 
 Litters. Holes drilled into the floor at a slight angle so the shot when 
 fired will lift the ore upwards. 
 
 Location. The.successive acts by which a claim is staked. (2) The claim 
 itself. 
 
 Location Line. " Shall be the straight line between posts numbers one 
 and two." Mineral Act, sec. 2. 
 
 Lode. An aggregation of mineral matter containing ores in fissures. Von 
 Cotta 26. A vein of ore. A ledge. Corn. Under sec. 3 of the Mineral Act 
 this term includes " Rock in Place," q.v. 
 
 Man Hole. An opening just large enough to permit access between two 
 workings. 
 
 Man Wat. A small passage, used by workmen, but not for transporta- 
 tion. 
 
 Matrix. (Of the lode.) The country rock in which the vein is found. 
 (Of the ore.) The rock or earthy material enclosing the ore; the vein-stone;, 
 gangue. 
 
 Matte. One of the products of matte or pyritic smelting. It consists 
 either of ferrous mono-sulphide (PeS) or of cuprous sulphide (Cu S), with. 
 ferrous mono-sulphide in varying proportions. Vide Smelting. 
 
 Metal. Precious or Base. Cf. Mines Royal. 
 
 Mill Hole. A passage left in the stgpe for throwing down rock and ore> 
 
 Mill Run. 1. ITie work of an amalgamating mill between two clean- 
 ups. 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 Act, 
 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. Vi4e also special definition unJer 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, 30. 
 
 MiNEE. 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 ears 
 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) muckiers'. 
 
 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. 
 
 Mineral in Place. Vide Rock in Place. 
 
 Miner's Inch. In British Columbia the definition of and rules for- 
 measuring a miner's inch of water are contained in sec. 143 of the Water 
 Clauses Consol. Act, as follows : — " The water taken into a ditch or sluice shall 
 
I.] APPENDIX B.— GLOSSARY OP MINING TERMS. ' 8(37 
 
 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 (hat 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 mudi as will 
 pass through the said orifice extsnded 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. Thij 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 Thos. Drummond, C.E., 
 carried out in Hydraulic Laboratory of McGill University. 
 
 Furthermore, multiples of the initial opening extended horizontally do not 
 in any Avay give the same multiples of the original discharge. It is furthermore 
 practically impossible to maintain " n constant head of seven inches " as called 
 for by tJhe Statute. This part of the section is, therefore, impo,ssible 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, un- 
 less otherwise specifled. 
 
 The Miner's Inch was devised in the early days of placer mining in Cali- 
 fornia, 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 amftng 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 ftiinute. 
 
 Mining Camp. (1) In a restricted sense the actual, place of active min- 
 ing 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 
 term " diggings." 
 
 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." Mineral Act, sec. 2. 
 
 Missed Hole. A drilled and charged hole which has missed fire or other- 
 wise failed to explode. A hole in a " round " of holes which has only partly 
 exploded owing to the rock being displaced by the explosion of other holes in the 
 same round is often called a " cut oif," because the displacement has cut off 
 the outer portion from the inner part whien still remains unexploded. Missed 
 holes and cut offs are sources of great danger and the cause of many accidents. 
 
 Mooch. , To hang about a camp for no good object, probably with the in- 
 tention of acquiring information detrimental to the interests of other miners. 
 Of. Rubber, and Rubber-neck — Northern B. C. am] Yukon. 
 
 Motle. a drill or short bar sharpened to a square point, used in cutting 
 hitches and in broaching. 
 
 . Muck. The material, ore and gangue, broken out in mining and ready to be 
 loaded into cars or buckets. 
 
 Mucker. One who loads the muck into cars or buckets. Vide Miner. 
 
 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 entering cover. Vide Cut. 
 Operator. One who works a mine either as owner or lessee. 
 Option. See Bond. 
 
868 ' MARTIN'S MINING CASES. [vol. 
 
 Ore. a natural mineral compound or admixture, of wiiich usually at least 
 one of the elements is a metal. An economic mineral in a sufficiently concen- 
 trated form to admit of it being profitably extracted. — Shippi^jg Oke. Ore 
 sufficiently rich to admit of, or render advisable, its being shipped direct with- 
 out any preliminary treatment. — Concentbating Ore. Ore in which the valu- 
 able mineral is so mixed with gangue, or other matter, as to render it either 
 necessary or advisable to concentrate it before shipping. — Smelting Obe. An 
 ore which from its nature is best treated by a smelting process. — Self-Fluxing 
 'Oee. An ore which from its chemical composition admits of its being smelted 
 Tvithout the addition of fluxes. — Milling Ore. An ore amenable to a milling or 
 .amalgamating process. — Feee Milling Oke. Usually a gold, but sometimes a 
 silver, ore, in which the metal is in such a condition as to admit of direct amal- 
 gamation. — Dry 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. 
 
 Oke Body. The vein or lode in which ore is found. 
 
 Obe Chute. A channel for dropping ore down. 
 
 Oke Resebves. 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. (2) A cylindrical vat of iron, stone, or wood, 
 ■or these combiinpd, in which ore is ground with muUers and amalgamated. See 
 Amalgamation. 
 
 Panning. A^st. 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 
 gems) . 
 
 Patch. A small placer claim outside of the main gulch. 
 
 Patio. A yard or court. The space where oi-e is mixed and amalgamated 
 by tread of horses. Sp. 
 
 Patio Process. The Mexican method of amalgamation of silver ores. 
 
 Pay Dirt. Pay Gravel. 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 Streak. The richer part of the ore body proper, or the seam of de- 
 composed 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. 
 
 Petering. 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- 
 row. 
 
 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. 
 
 Pit. A shallow shaft; a coal mine shaft. 
 
 Pit Coal. Mineral coal, as distinguished from charcoal. 
 
 Pitch, llie dip of a lode. 
 
I.] APPENDIX B.— GLOSSARY OF MINING TERMS. §69 
 
 Placek, Spanish, " plaza " — a place. Generally a deposit of gold not " iii 
 place;" applied to all classes of gold deposit, including cement and channel 
 claims, except lodes in place. Gold, tin ore, chromic iron, iron ore and precious 
 stones are found in placers. 
 
 Placer Mine. See special definition in Placer Mining Act, sea. S. 
 
 Plat. A plan. 
 
 PLATr. A small chamber on the side or sole of a level where it intersects 
 a shaft, made to facilitate dumping. Where it is cut in the sole it is called 
 a trip-platt. Corn. 
 
 Plutonic Book. Igneous rocks which have cooled at depths and under 
 great pressure. 
 
 Pocket. A detached oye body ; a nest of ore. 
 
 Pockety, a term applied to a mite where the pay ore occurs in small 
 detached bodies with intervals of poor ore or barren material. The word im- 
 plies a slur on the mine. 
 
 Poke. A small bag of dressed skin or other convenient material in which 
 the miner carries gold dust or small nuggets. In the Yukon before the 
 advent of currency such pokes were universally carried by miners and others 
 out of which the current expenses were paid. 
 
 Post. Vide Legal Post, Discovery Post, Initial Post. 
 
 Peeoious Metals. Gold and Silver. Cf. Mines Royal. 
 
 Precious Stone Diggings. Vide Diggings. 
 
 PiiospECT. (1) An undeveloped property. (2) Sufficient " colours " found 
 in panning as to indicate probable profitable diggings. 
 
 PnosPECTlNG. A searching for deposits ; applied both to the seeking for 
 undiscovered veins and to the investigation of the value of known vejns by 
 exploration. 
 
 Peospectoe. One engaged in the above. , 
 
 Pudding Stone. Vide Conglomerate. 
 
 Pulp. Pulverized ore and water ; also apiJlied to dry ciatshed ore. Pacific. 
 
 Pup. An offshoot from, or tributary of the " mother " creek or stream — • 
 Northern B. C. and Yukon. 
 
 QUABEy. Any open work in rock or ore on a plan of excavating the entire 
 mass " off the face " as distinguished fi^om working a seam or vein by shafts or 
 approaches under cover. 
 
 Quaetz. 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 indi- 
 cates the pay streak, as distinguished from gravel or earth : hence ■" quartz- 
 mining " and hydraulicing. 
 
 QuAETZOSE. Containing quartz as the' principal ingTedient. 
 
 Ragging. Vide Spall. 
 
 Raise oe Upeaise. A shaft or winze which has been worked from l)eIow. 
 
 Ravine. Vide Stream. 
 
 Rawhiding. a method of hauling sacked ore down the trails over the 
 snow, in raw hides. 
 
 Rebellious Oee. Repeactoey Oee. Vide Ore. Ores not amenable to 
 ordinary methods of treatment. 
 
 Record, d) An entry in some official book kept for the purpose. (2) 
 Certified copy of the record given by the recorder to the free miner — Mineral 
 Act. (3) " The record of the location of a placer claim." Placer Mining 
 Act, sec. 2. 
 
8Y0 MARTIN'S MINING CASES. [vol. 
 
 Reef. An Australian term for lode or ledge. 
 
 REPRESENT. Repkesentation. Placer claims " shall be represented and 
 lona fide worked by the holder thereof or by some person on his behalf con- 
 tinuously 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 reason- 
 able cause which shall be shewn to the satisfaction of the Gold Commissioner." 
 (2) Also, though not ilow so generally employed, as signifying the annual per- 
 formance of assessment work on lode claims ; the allegation that such a claida 
 was " duly represented " in a certain year, would, having reference to the his- 
 tory of mining legislation, be tantamount to saying that the annual assessment 
 work had been performed or money paid in lieu thereof, as the fact might be, 
 as required by the Mineral Act. 
 
 Rests. The arrangement at the top and bottom of a pit for Supporting 
 shaft-cage ^^■llile changing the tubs or cars ; also called Chairs. 
 
 Rib. 1. In coal mining the solid coal on the side of a gallei-y or long 
 wall face ; a pillar or barrier of coal left for support. 2. The solid ore of 
 a vein ; an elongated pillar left to support the hanging wall in working out a 
 ^ein. 
 
 Riffles. Cross sections of timber, stone, or metal set on the bed rock of a 
 sluice, with iritgular spaces between, in which gold settles. 
 
 Rim Rook. Rock forming the edges of channels on the bed rock between 
 which the gold-bearing detritus is found. 
 
 Rise. Upbaisb. A shaft or winze excavated upwards. Corn. 
 
 Rob. To gut a mine ; to work for the ore in siglat for immediate product 
 without regard to pillars, supports, reserves or any future considerations. 
 
 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 4'eposited, 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." Mineral Act, sec. 2. 
 
 RocKEH. See Cradle. 
 
 Roof. The stratum or rock overlying a deposit, or flat vein. 
 
 Room. Vide Breast. 
 
 Royalty. Crown, or individual dues on the produce of a mine. 
 
 Rubber, Rubbbe-neck. One who hangs about a camp to pick up informa- 
 tion by which he can profit at the expense of other miners is said to be " rubber- 
 necking," or " rubbering." Gf. MoOch. 
 
 Rusty. Oxidized. Ore supposedly coated with oxide or iron. Applied to 
 gold which will not easily amalgamate. Pacific. Also applied to coal dis- 
 coloured by water or exposure. 
 
 Safety Caoe. A cage with a safety catch. 
 
 Safety Catch. An automatic device for preventiiig the fall of a cage in 
 a shaft or a car in an incline, if the supporting cable breaks. 
 
 Safety; Lamp. A lamp, the flame of which is so protected that it will not 
 immediately ignite fire-damp. There are several varieties invented by Davy, 
 Stephenson, Clanny, and others. 
 
 Salting. Fraudulently placing foreign ore in a mine. 
 
 ScAL. A loosened fragment of i-ock' threatening to break off and fall. 
 
 Scarfing. Splicing timbers, so cut that when joined the resulting piece is 
 not thicker at the joint than elsewhere. 
 
 Schist. Crystalline or metamorphic rock with slaty structure, usually 
 carrying mica, sometimes argillaceous. 
 
 Scraper. A tool for cleaning bore-holes or drill-holes. 
 
!■] APPENDIX B.— GLOSSARY OP MINING TERMS. 371 
 
 Seam. A thin layer or stratum of rock ; (2) A bed of coal. 
 
 Segregate. To separate the undivided .ioint ownership of a mining claim 
 into smaller " Segregated " claims. Pacific. 
 
 Segeegations. All those aggregations of ore having irregular form but de- 
 finite limits. They differ from beds and lodes by the irregularity of their- 
 form; from impregnations by their definite limits. Mineral deposits formed 
 by concentration from the adjacent rock. 
 
 Selp-pluxing Ore. Ore which contains all the chemical ingredients neces- 
 sary for smelting without the addition of flux. The Boundary ( B.C. ) , ores 
 practically amount to this. The Rossland ores require the addition of lime. 
 
 Selvage. A lining; a gouge; a thin band of clay often found in the vein 
 upon the wall. 
 
 Sepabatob. 1. A machine for separating, with the aid of water or air, 
 materials of different specific gravity. Strictly, a separator parts two or more 
 ingredients, both valuable, while a concentrator saves but one and rejects the 
 rest ; but the terms are often used interchangeably. 2. Any machine for separ- 
 ating materials, as the magnetic separator, for separating magnetite from 
 Jts gangue. 
 
 Set or Sett. 1. A grant of mining ground, as the assignment of a certain 
 part of a mine under contract or tribute. 2. A species of timbering wherein 
 heavy squared timbers are set in regular square formation supporting like 
 ^cross-pieces and a plank flooring. These square sets are erected one above 
 another where necessary in a series of floors connected by ladders. 
 
 Shaft. A pit sunk from the surface ; an opening more or less perpendica- 
 iar sunk on, or sunk to reach, the vein. 
 
 Sheer Zone. Sheer Zone Vein. A sheer zone is a belt or series of par- 
 allel fracture planes caused by the sheer of rocks when under great compres- 
 sion ; 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. 
 
 Shipt. 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. Yide Chute. 
 
 Sill. (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. 
 
 Silt. Muddy deposit. 
 
 Sink Hole. A sump or sink at the bottom of a s'^aft. 
 
 Sizing. Separating ores according to size of particles, preparatory to dress- 
 ing. 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 
 coal seam ; also called a run. 
 
 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. 
 
 Sluice. A series of boxes set in line and floored with riflle blocks to catch 
 the gold in a placer mine. 
 
872 MARTIN'S MINING CASES. [vol. 
 
 Sole. The floor of a horizontal working. 
 
 SOLLAB. Any platform or wooden floor or covering in a working. 
 
 SotTEDOUGH. An experienced prospector as distinguished from a Ohee- 
 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 spalllng, but the terms are often used inter- 
 changeably. Pieces of ore thus broken are called spalls. 
 
 Spak. a name given by miners to any earthy mineral having a distinct 
 cleavalble structure and some lustre; in Cornwall usually quartz; iu British 
 Columbia calcite. 
 
 Spell. A change or turn. 
 
 Spbag. (1) A prop. (2) A short, round, piece of wood used to block the 
 wheels of a car. 
 
 Spub. a branch or off-shoot from a larger vein. Tide 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 num- 
 ber 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 jt has advanced a convenient distance, the 
 next is commenced above it, and so on, the process is called over-hand 
 sloping. 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 per- 
 formed in sinking shafts, driving, levels, &c., for the purpose of opening the 
 mine. 
 
 Stowing. The debris of a vein thrown behind a -miner to support the root 
 or hanging wall of an excavation. 
 
 Steatum. a bed of rock or earth of any kind. Dona. The plural is 
 strata. 
 
 Streak. The powder of a mineral, or the mark which it makes when 
 rubbed upon a harder surface. 
 
 Stkeam. " ' Streams and ravines ' shall include all natural watercourses 
 whether usually containing water or not, and all rivers, creeks and gulches." 
 Placer Mining Act, sec. S. 
 
 Stbipping. 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. Synony- 
 mous with Trend and Course. It is at right angles to the dip. 
 
 Stringer. Narrow branches running off from the vein. 
 
 Sttjll. a platform (stull-covering) laid on timbers (stujl-pieces), braced 
 across a working from side to side, to support workmen or to carry ore or 
 waste. 
 
 Sublimation. The volatilization and condensation of a solid substance 
 without fusion. 
 
I-] APPENDIX B.— GLOSSARY OP MINING TEEMS. 
 
 873 
 
 SUBLIMATION^HEOBY. The theory that a vein was filled first with 
 metallic vapours. 
 
 Sulphide. The chemical union of sulphur with a metal. 
 
 SULPHURET. A sulphide. Sulphide is the more recent and approved term. 
 
 Sump. The extension of a shaft, below the level, forming a pit for the col- 
 lection of water. 
 
 " Swinging " a Claim. Fraudulently changing the locatioa posts. 
 
 Tackle. The windlass, rope and bucket. 
 
 Tahjngs. The lighter and sandy portions of the ore on a huddle or in a 
 sluice. The headings are accumulated or discharged at the upper end, the 
 middlings in the middle, while the tailings escape at the foot. The term tailings 
 IS used in a general sense for the refuse of reduction processes other than 
 smelting. 
 
 Thread. An extremely small vein, even thinner than a stringer. 
 
 Theow. Practically synonymous with Fault and Heave. 
 
 Timbering. See various headings such as Set, Lagging, Stull, &c. 
 
 Trap. In miner's parlance, any dark, igneous, or apparently igneous or 
 volcanic rock. 
 
 Teend. The course of a vein. Cf. Strike. 
 
 Tributers. Miners who work a set, or piece of ground, taking the pro- 
 ceeds as wages, after royalty deducted, but who work under direction of the 
 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 across 
 the country for the discovery or working of a lode or lodes. 
 
 Tut Work. Work paid for by the foot as distinguished from tribute 
 work. 
 
 Upcast. A ventilating shaft Where the air ascends. 
 Upraise. Yide Rise. 
 
 Vanning. A method of washing ore on a shovel, analogous to panning. 
 Concentrating machines for slimes are sometimes called Vanners. Corn. 
 
 Veins. Aggregations of mineral matter in fissures of rocks. Ton Gotta, 
 S6j Bambridge, 3. The word vein has a broader scope than lode, including non- 
 metallic beds. It is also applied in working to small seams threading the greater 
 deposit. Vide Lode. Under sec. 2 of Mineral Act, " Vein " includes " Rock in 
 Place," q.v. 
 
 Volcanic Rock. Igneous rock which has been cooled at and near the 
 surface, e.g., lava and amygdaloid. 
 
 Vug. a cavity in the ore or rock. 
 
 Waggon Breast. One from which ore can be carried by waggon. 
 
 Wall. The plane of the country where it touches the side of the vein, 
 when used in reference to lodes. The side of a level or drift, when used with 
 reference to the workings. 
 
 Wash. Loose surface deposits of sand, gravel, boulders, &c. 
 
 Water Level. (1) The level at which, by natural or artificial drainage, 
 water is removed from a mine or mineral deposit. (2) A drift at the water 
 level. 
 
 Water Right. Vide Mining Property. 
 
 Weathering. Changing under the effect of continued exposure to atmos- 
 pheric agencies. 
 
874 MARTIN'S MINING CASES. [vdt. 
 
 Wedging Cukb or Wedging Crib. A curb used to make a water-tight joint 
 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 CornwEtU 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 powier. 
 
 Whip. The simplest horse-power hoisting machine,' consisting of a fixed 
 pujley and a hoisting rope passing over it, to which the animal is directly 
 attached. 
 
 White Damp. A poisonous gas in coal mines, rarer than fire-damp, choke- 
 damp, &c. ; believed by some to contain carbonic oxide, but this is doubtful. 
 
 Win. To extract ore or coal. 
 
 Winch or Windlass. A man-power hoisting machine, consisting of a 
 horizontal drum with crank handles. 
 
 Winding. Hoisting with a rope and drum. 
 
 Winds. Vide Winze. 
 
 Winning. (1) A aew opening. (2) The portion of a coal field laid out 
 for working. 
 
 Winning Headways. Headways driven to explore and open out the coal 
 seam. Newc. 
 
 Winze. An interior shaft sunk from a level ; usually but not necessarily 
 connecting two levels. 
 
 Working Bond. An option on a mine with the privilege of working it 
 during the option at the bond-holders' expense, the net proceeds to go to the 
 owner in reduction of the purchase price. 
 
INDEX=DIGEST TO REPORTS OF CASES. 
 
 A. 
 
 ABAXDOXMENT. .(1) Unrenewed In- 
 terest. — An Interest in a claim which 
 has not been reserved is an abandoned 
 interest. Williams Cbeek Co. v. 
 Synon 1 
 
 (2) Mining Operations. — Cessa- 
 tion of mining operations for want 
 of funds is not proof of intention to 
 abandon. Quwre. if such a question 
 can be raised by a stranger to a lease 
 from the Orown. Canadian Co. 
 V. Gbouse CEEEii 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 
 
 (4) Non-representation. — Ab- 
 sence from a placer claim for 72 
 hours is not in all cases conclusive 
 eviden< '• of intention to abandon. 
 
 WoODUUJiY V. IIlDJNUT 31 
 
 (5) Partial Abandonment. — Any 
 portion of a mineral claim may be 
 abandoned by specifying the portion 
 and recording the abandonment. 
 (jKANGER v. Pothebingham ....71 
 
 (6) Statutory Notice of. — Only 
 abandonment by which owner of valid 
 location can be concluded is by sta- 
 tutory notice. Nelson. Etc.. Ry. 
 Co. Y. Jebby 161 
 
 (7) Invalid Liocation. — Aban- 
 donment of invalid location need not 
 be recorded before location. Ckbel- 
 MAN v. Clakke 228 
 
 (8) Affidavit of Re-location. — 
 A statement of 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 Jlineral 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 
 M-ritten permission of the Gold Com- 
 missioner. Dunlop v. Haney . .369 
 
 (9) Certificate of Work. — Failure 
 to record certificate of work is pre- 
 sumptive evidence of abandonment. 
 Ckanston v. English Can. Co. .394 
 
 ABSENCE. lyEAVE OF. See Assess- 
 ment WOKK. 
 
 ACCOUXT. See Pabtnership. 
 
 ACT OF PARTY. See Recording 
 Claim. 
 
 ACTION, LAPSE OF. See Wbit. 
 Adverse. See Adverse. 
 
 Transfer ■of, from County Court. 
 See County Court. 
 
 acts" Policy of Jlineral; See Policy. 
 
 ADiJOURXMENT. See Tblal. 
 
 ADVERSE ACTIOX. ADVERSE 
 
 CLAIJI. (1) Time. Extension of — 
 Appeal. — An appeal lies to the Divi- 
 sional Court from the order of a 
 Judge extending the time for bring- 
 ing an adverse action under sec. 37 
 of the Mineral Act, 1891, and Amend- 
 ments. 
 
 The fact that a writ has already 
 been issued is material to the applica- 
 tion and should be disclosed. 
 
 Such a circumstance can be 
 taken advantage of upon appeal from, 
 as well as upon a motion to rescind 
 the order. Re Maple Leap Claim 
 08 
 
 (2) Time, Extension of. — Court 
 has jurisdiction to extend time for 
 commencing adverse action as well 
 after as before lapse thereof. Re 
 Goon Fbiday Mineral Claim. . . .84 
 
 (3) Time, Extension of. — ^The 
 boundaries of the Countess and Gol- 
 den Butterfly mineral claiins overlap- 
 ped. The Countess having applied 
 for a certificate of improvtements 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 sec- 
 retary of the Golden Butterfly Com- 
 pany 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 ac- 
 tion attacking it on his oWn behalf 
 until after' the expiration of the sta- 
 tutory sixty days from the publica- 
 tion of the notice of application for 
 the certificate of improvements to 
 the Countess. He then applied to 
 the Court for leave to bring an ac- 
 tion. 
 
876 
 
 ADVERSE ACTION. 
 
 [VOL. 
 
 ADVERSE ACTION— Continued. 
 
 Held, the circumstances were 
 sufficient ground for an order extend- 
 ing the time. Rb Golden Buttek- 
 
 FLY MiNEBAL CLAIM 125 
 
 (4) Trial of, by Jury. — See 
 Jury. 
 
 (5) Filing Claim — Time, Exten- 
 sion of — Condition Frecedent. — ^Un- 
 der the Mineral Act Amendment Act, 
 1892, sec. 14, the filing of an adverse 
 claim in the office of the mining re- 
 corder is a condition precedent to 
 right of action. 
 
 The Court has no jurisdiction 
 to extend tlfe time for so doing. 
 
 The rules as to time governing 
 ordinary case? are to be more string- 
 ently applied in mining cases. lilL- 
 BOUBNE V. McGdigan 142 
 
 (6) Notioe of Appeal — Service 
 on Solicitor's Agent. — ^A notice of 
 appeal may be served on the agent 
 of the solicitor for the proposed de- 
 fendants. 111. 
 
 (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 claim- 
 ant. Aldous v. Hall Mines C0..213 
 
 (8) Certificate of Work — Title. 
 — Where both sides have recorded, 
 title will be determined according to 
 prior location. Febo v. Hall . . . 238 
 
 (9) Curative- Provisions, Invo- 
 cation of by Party. — Siee Location 
 (16). 
 
 (10) Adverse Actions are eject- 
 ment not trespass actions, and plain- 
 tiff must succeed by strength of his 
 own title. Olabk v. Haney 281 
 
 (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 
 
 (12) Proof of Title. — Section 11 
 of the Mineral Act Amendment Act, 
 1898, applies to all adverse proceed- 
 ings, including those commenced be- 
 fore 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 fade 
 case. SCHOMBERB V. Holden . . . 290 
 
 (13) Certificate of Improve- 
 ments — Second Adverse Action — 
 Fraud — Policy. — Where a claim 
 owner has received a certificate of 
 improvements for his claim his posi- 
 
 ADVBRSE ACTION— Continued. 
 
 tion is assured and he is not called 
 upon to adverse a subsequeut applica- 
 tion of another for a certificate of 
 improvements for a claim which 
 would include a portion of his claim. 
 
 Section 37 requires any claimant 
 of an adverse nature to the ground 
 applied for to substantiate his claim 
 within the prescribed time or be for- 
 ever barred except for fraud. 
 
 The fact yia,t a claimant began 
 adverse proceedings ajid abandoned 
 them does not deprive him of what- 
 ever rights he otherwise had under 
 the section. 
 
 Speedy finality of litigation and 
 quieting of titles with all due celerity 
 are the dominant policy of the 
 Mineral Act. Re American Boy 
 Mineral Claim 304 
 
 (14) Writ — Renewal — Delay ~ 
 — In an adverse action where no 
 reasonable explanation of delay in 
 serving a writ is forthcoming, an 
 application for renewal made two 
 days before the expiry of the writ 
 will be refused. 
 
 Section 37 does not enable a de- 
 fendant to get rid of an adverse ac- 
 tion other than according to the 
 ■ordinary practice of the Court. 
 Haney v. Dunlop 311 
 
 (15) Title — Overlapping — 
 ,1.- Measurements — Re-location — Affi- 
 davit. — In an adverse action if the 
 plaintiff wish to attack the defend- 
 ant's title he must do so at the time 
 of making out a prima facie case for 
 his own title. 
 
 Where boundaries of conflicting 
 claims are in question the overlapping 
 must bp proved by measurements 
 taken on the ground. 
 
 The expression " adverse pro- 
 ceedings " in sec. 11 of the Mineral 
 Act Amendment Act, 1898, is used in 
 a broad sense. 
 • Observations upon the scope and 
 object of sec. 11. Dunlop v. 
 Haney 369 
 
 (16) Time, Extending. — The 
 time for filing affidavit and plan in 
 an adverse action may be further ex- 
 tended on an application made after 
 the lapse of the time fixed by a 
 previous order. Noble v. Blan- 
 chard 373 
 
 (17) Certificate of Improve- 
 ments — bar — Laches- — Crown.- — An 
 adverse claimant who neglects to 
 bring an adverse action under sec. 37 
 cannot sue to set aside a certificate of 
 improvements on the ground of fraud. 
 
 Semble, that under such circum- 
 stances the Crown alone is entitled to 
 sue. Hand v. Warren 376 
 
I-J 
 
 ADVERSE POSSESSION— APPEAL. 
 
 877 
 
 ADVERSE ACTION— Continued. 
 
 (18) Onus of Proof — Objection 
 — Tnal. — ^In adverse proceedings the 
 onus of proof is on the adverse claim- 
 ant, wlio has to give affirmative evi- 
 dence of his own title, and if he is 
 the junior locator establish his case 
 in detail. 
 
 Counsel for adverse claimant in 
 deference to a remark of the trial 
 Judge, did not complete the proof of 
 his own title. 
 
 Held, That he should have press- 
 •ed to be allowed to complete it, but 
 under the circumstances there should 
 be a new trial. Caldwell v. 
 Davys 387 
 
 (18a) Onus of Proof — Title not 
 Mstahltshed. — Defendant cannot satis- 
 fy onus by production of certificate 
 of work issued day before trial. 
 
 Neither party having establish- 
 ed his title judgment was so entered 
 without costs. Rammelmeyek v. 
 •CUETIS 401 
 
 (19) "Adverse Proceedings" — 
 Application of Sec. 11 of 1898.— The 
 words " adverse proceedings " in sec. 
 11 of the Mineral Act, 189a, 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 Courts Act, said sec. 
 11 has the same effect in the County 
 ■Court as in . the Supreme Court. 
 Gelinas v. Clark 428 
 
 (20) Time — Extension of — 
 Court^^adge in Ghamiers. — ^An or- 
 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. Mukphy v. 
 Star Mining Co 450 
 
 (21) Condition Precedent — Affi- 
 davit — Oaths Act — Plan — Survey. — 
 It is a condition precedent to right 
 of adverse action that an affidavit 
 and plan should be filed as required 
 by Mineral Act, sec. 37, and amend- 
 ments. 
 
 Such plan must not only be made 
 and signed by a provincial land sur- 
 veyor, but the survey on which it is 
 'based must De made by him. 
 
 The provisions of the Oaths Act, 
 sec. 16. apply to affidavits filed un- 
 der said sec. 37. Paulsok v. Sea- 
 man 471 
 
 (22) Judgment in Rem — Co- 
 owner — Application of Sec. Sf. — A 
 judgment in an adverse action under 
 ■sec. 37 of the Mineral Act is not a 
 judgment in rem. 
 
 ADVERSE ACTION— Continued. 
 
 One co-owner of a mineral claim 
 is not estopped by the result of such 
 action instituted by an adverse claim- 
 ant against another co-owner who 
 has applied- for a certificate of im- 
 provements. 
 
 Per Martin, J. — Section 37 does 
 not apply to co-owners of the same 
 claim, but to owners of conflicting 
 claims. Fry v. Botsfoed 520 
 
 ADVERSE POSSESSION. See Ad- 
 verse Claim. 
 
 AFFIDAVIT. 
 
 Shewing Abandonment, See Aban- 
 donment (8). 
 
 Of Adverse Claim, See Adverse 
 ■Claim (6), (21). 
 
 For Mechanics' Lien, See Me- 
 chanics' Lien (1), (2). 
 
 False, for Certificate of Improve- 
 ments, See Improvements (5). 
 
 AGENT. (1) Transfer— Bill of Sale.- 
 Interest of principal in mineral claim 
 may be transferred by his agent by 
 bill of sale though executed by agent 
 in his own name. Wilson v. 
 Whitten 38 
 
 (2) Parol Agency and Statute 
 of Frauds. — See Frauds, Statute 
 OF (3). 
 
 (3) Location by Agent — Estop- 
 pel — Fraud. — See Contract (6) . 
 
 (4) Of Solicitor. — See Solici- 
 tor. 
 
 AGREEMENT. See Contract. 
 
 ALIEN. See Chinese. 
 
 AMENDMENT. See Trlil. 
 
 AMERICAN DECISIONS, Applicability 
 of considered, 184, 190, 236, 278, 282, 
 307. 
 
 APEX. See Discovery. 
 
 APPEAL. (1) From Gold Commission- 
 er. — See Gold Commissioner. 
 
 (2) To Divisional Court from 
 Judge's Order extending time to bring 
 Adverse Action. — See Adverse 
 Action (1). 
 
 (3) Abandonment. — -After judg- 
 ment allowing an appeal, and ad- 
 journment 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 
 ■vvhich respondents' counsel was 'not 
 instructed) abandoning the appeal 
 had been served up-on respondents' 
 solicitor on the morning of, biit be- 
 fore the argument of the appeal : — 
 Held, That the appeal was at an end 
 upon the giving of the notice aban- 
 doning it, and the order allowing the 
 appeal not having been drawn up 
 
878 
 
 ASSESSMENT WORK, ANNUAL. 
 
 [VOL. 
 
 APPEAL— Continued. 
 
 no order would be Issued, but the 
 appeal should stand as if struck out 
 of the paper. Re Maple Leaf 
 Claim 68 
 
 (4) A'eMj Defence on Appeal. — 
 Defence setting up defective location 
 cannot be raised for the first time 
 on appeal. Hogg v. If aeeell .... 79 
 
 (5) Time, Extension of — De- 
 lay. — 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 judg- 
 ment were allowed to stand : — 3eld, 
 an insufficient gr'ound for extending 
 the time for appealing. , Trask v. 
 Pellent 86 
 
 (6) Cross-Motion — With- 
 drawal. — A cross-motion to the ap- 
 peal for a new trial having been 
 served by respondent and adjourn- 
 ments 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 
 
 (7) Jurisdiction, Exception to. 
 — See JUEISDICTION. 
 
 (8) Extending Time — Abandon- 
 ed Appeal — Appeal from Mining 
 Courts. — In extending time for ap- 
 pealing 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 in- 
 ability 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. Haeeis . 131 
 
 (9) 'Service of Notice — Agent of 
 Solicitor. — ^A notice of appeal may 
 be served on the agent of the solici- 
 tor for proposed defendants in an 
 adverse action. Kilboukne v. Mc- 
 GUIGAN 142 
 
 (10) Costs of appeal will not be 
 given to appellant who succeeds on 
 point not taken below. Aldous v. 
 Hall Mines -213 
 
 (11) Water Clauses Consol. Act 
 — Notice of Appeal — Time. — See 
 Water Rights (3). 
 
 (121 Jurisdiction of County 
 Court. — Objection to jurisdiction of 
 
 APPEAL— Continued. 
 
 County Court' must be taken below or 
 will not be entertained on appeal. 
 Gelinas v. Clark 428 
 
 (13) Costs — Interlocutory Or- 
 der. — ^Costs of appeal from interlocu- 
 tory order are payable forthwith. 
 Star Mining Co. v. Byeon N. 
 White Co 468 
 
 (14) Injunction to Preserve 
 Proi)erty Pending Appeal. — See 
 Improvements, Certificates of 
 (3). 
 
 ASSESSMENT WORK, ANNUAL. Or- 
 ders in Council respecting 512 
 
 ( 1 ) Close Season — Representa- 
 tion — Cold Commissioner — Leave of 
 A bsence — Residence — Resumption of 
 Possession — Evidence. — During the 
 close season there is no obligation to 
 represent a claim, the whole of that 
 season being for such purposes ex- 
 punged from the calendar, and an 
 attempt to locate another claim on 
 the same ground during that season 
 is merely an unauthorized trespass — 
 a " jumping." 
 
 Building a residence on or at a 
 place manifestly convenient for the 
 purpose of working a claim is doing 
 miner-like work on such claim with- 
 in the meaning of the Mineral Act, 
 1882, sees. 48 and 50, though in old 
 and highly organized countries it 
 would not be. 
 
 The decision of the Gold Com- 
 missioner in granting leave of ab- 
 sence will not 'be interfered with un- 
 less for fraud. 
 
 Where a Free Miner finds an- 
 other 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 de- 
 termined. 
 
 Absence of 72 hours is not in all 
 cases conclusive evidence of an in- 
 tention to abandon. 
 
 If a claim-holder does not prop- 
 erly represent his claim and so ren- 
 der it liable to re-location, he may, 
 nevertheless, if he return to it and 
 find it intact, resume possession, re- 
 commence working and be in " as of 
 his old estate." 
 
 Where one man pretends to re- 
 present two claim holders at the same 
 time it is strong evidence that bis re- 
 presentation in both cases is colour- 
 able, and so, worthless. Woodbuey 
 V. HUDNUT 31 
 
 (2) Close Season — Lay Over — 
 Oold Commissioner. — Gold Commis- 
 sioner cannot by declaring close sea- 
 son or laying over supersede statutory 
 requirements as to assessment work. 
 Wilson v. Whitten 38 
 
I] 
 
 ASSIGNMENT— COAL. 
 
 879- 
 
 ASSESSMENT WORK— Continued. 
 
 (3) Order-in-CounoU extending 
 time for doing. — See Cbown (9). 
 
 (4) Close Season — Gold Com- 
 missioner. — A close season ma.v 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. Victor v. Butler ....438 
 
 (5) Performance of, outside of 
 Location — Mistake — Certificate of 
 Work. — Performance of assessment 
 work by mistake outside of boundar- 
 ies of claim is an irregularity which 
 is cured by the recording of a cer- 
 tificate of work. Lawb v. Parker. 
 456 
 
 (6) Performanoe of, is equiva- 
 lent to payment of annual rent to 
 the Crown. Manley v. Collom . .487 
 
 (7) Performance of, as between 
 subjects is conclusively established 
 by recording certificate of work, 
 Cleaet v. Boscowitz 506 
 
 ASSIGNMENT. See Transfer. 
 
 ATTEMPT TO LOCATE. See Loca- 
 tion. 
 
 B. 
 
 BAR. See Certificates of Work, and 
 Improvements. 
 
 BILL OF SALE. See Transfer. 
 
 BONA FIDE PURCHASER. See Re- 
 gistration. 
 
 BOND, to Landowner. See Landowner 
 (1). 
 
 Working, on mine. See Mech- 
 anics' Lien (2). 
 
 BOUNDARY. See Evidence, Over- 
 lapping, Measurements. 
 
 BREACH OF PEACE. (1) Assessment 
 ^York. — Probability of breach of 
 peace exonerates frte miner from 
 performance of assessment work. 
 Woodbury v. Hudnut 31 
 
 BRITISH NORTH AMERICA ACT. 
 See Crown. 
 
 C. 
 
 CANADA, SUPREME COURT OF. 
 See Supreme Court of Canada. 
 
 CANADIAN PACIFIC RT. OO.'S 
 BELT OF LANDS. See Wateb- 
 RlGHTS (2). 
 
 CERTIFICATE of Departmental 02i- 
 
 ci.Tl. Sec Evidence. 
 
 CERTIFICATE, Free Miner's. See 
 Free Miner. 
 
 Of Improvements. See Improve- 
 ments. 
 
 Of Mining Recorder. See Evid- 
 ence (8) . 
 
 Of Work.. See Work. 
 CERTIORARI. See Conviction. 
 OHAjNIBERS. See Judge in Chambers. 
 
 CHINESE. (1) Disqualification of, 
 from underground employment in 
 coal mine. See Crown (7), (10). 
 
 (2) Conviction of employer for 
 working Chinese underground in coal 
 mine. 'See Crown (8). 
 
 CLAIJI. See Mineral Claim, and Ad- 
 verse Claim. 
 
 CLOSE SEASON. See Assessment 
 Work. 
 
 COAL, Discovery of in B. C. See Pre- 
 face. 
 
 (1) I'roKjiecting Licence — 
 Crown Grant, A pplicalion for — 
 Waiver — Laches — JUvidence ; — 
 Certificate — Statutory Prelimin- 
 aries — Ahandonment. — Petitioners 
 held a prospecting licence for coal 
 over 2,500 acres of land under the 
 Mineral Ordinance. 1869, and ap- 
 plied for a Crown grant. In support 
 of their claim, they relied on a cer- 
 tificate of tlie Assistant Commis- 
 sioner of Lands and Works that 
 they had duly posted notices of their 
 application, and " that no objection 
 to the issue of such grant had been 
 substantiated." 
 
 Held. (11 That the certificate 
 was not in accordance with the Act. 
 
 (2) That the certificate of an 
 Assistant Commissioner was not con- 
 clusive evidence of compliance with 
 the statutory conditions, and the pre- 
 sumption 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) Tliat in n proceeding to en- 
 force 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. 
 
 Quwre. whether to entitle pros- 
 pecting 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? Peck v. 
 Reginam 1.3^ 
 
 (6) Title to Coal Seams. See 
 Title (4). (5). 
 
880 
 
 COAL MINE— CONVICTION. 
 
 [TOL. 
 
 GOAL MINE. (1) Chinem in. See 
 Chinese, and Crown (7), (8), 
 (10). 
 
 (2) Inspection of. See Discov- 
 KBY. 
 
 COMPANY. Mining Company — Shares 
 in — Owner. — The owner of shares in 
 an incorporated mining company is 
 not an owner of any part of a min- 
 ing dlaim owned by it. Granger 
 
 V. FOTHERINGHAM 71 
 
 OOJIPASS BEARING, Error in. See 
 Location (13), (21), (29). 
 
 CONDITION PRECEDENT. See Ad- 
 verse Action (6). (21) ; .Coal (1). 
 Gold Commissioner (2), Adverse 
 Action (5), Landowner (1). 
 
 CONSIDERATION. See Contract. 
 
 OONSTITUTIONAL LAW. See Grown 
 (4), (7), (10), and Mining Court. 
 
 CONTRACT. (1) Sale — Payment by 
 Instalments — Time, Extension of — ■ 
 Consideration. — An agreement for 
 the sale of mineral claims provided 
 for payment by instalments and con- 
 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 (ven- 
 dees) 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- 
 dors without consideration, extended 
 the time for' payment of one of the 
 instalments. After the ojiginal, but 
 tefore the extended period for mak- 
 ing 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 de- 
 fendants, the vendees', to pay the in- 
 stalment in question was absolute 
 upon the day named in the original 
 agreement, and remained unaffected 
 by the voluntary concession of fur- 
 ther time to pay. Webb v. Mont- 
 gomery 129 
 
 (2) Parol Agreement for Part- 
 nership. — See Partnership. 
 
 (3) Parol establishment of 
 Agency. — See Frauds, Sta;tute of 
 
 (3). 
 
 (4) Sale — Rescission — Failure 
 ■of Consideration — Misrepresentaiion. 
 • — 'An executed contract for the sale 
 of a mineral claim, being an interest 
 in land, will not be rescinded for 
 mere innocent misrepresentation. 
 
 But where, by error of both par- 
 ties 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. 
 
 CONTRACT— Continued. 
 
 Thus where, on the sale of a mining 
 claim, it turned out that the whole 
 property sold was included in prior 
 claims, whereby the purchaser got 
 nothing for his money, the contract 
 was rescinded though the vendor 
 acted in good faith and the transac- 
 tion was free from fraud. Pope v. 
 Cole 257 
 
 (5) Paptnei Lapsed Certifi- 
 cate — Stat, of Frauds. — Where part- 
 ners in a mineral claim enter into an 
 agreement for the sale thereof, a 
 partner whose free miner's certificate 
 has lapsed thereafter does not there- 
 by forfeit his share in the proceeds 
 of the sale. 
 
 The Statute of Frauds does not 
 exclude parol evidence of a partner- 
 ship for dealing in land. McNer- 
 hanie v. Archibald 320 
 
 (6) Sale — Fraud — Agent — Es- 
 toppel, — 'W. sold certain mineral 
 claims called the Big Four group to 
 A., who sold in turn to the defend- 
 ants, after which W. as agent for 
 the plaintiff, located a fraction be- 
 tween two of the claims in the plain- 
 tiff'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 coTild 
 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 ques-. 
 tion was located, adjoined each other. 
 Gibson v. McAbthue 382 
 
 (7) Mineral Claim — Develop- 
 ment Work. Ewpense of — Co-owners 
 and Partners — Re-payment — Ore.- — 
 Partners and co-owners in a mineral 
 claim entered into an agreement by 
 which one of the partners and co- 
 owners was to advance to his co-part- 
 ners in cash the amount of their 
 respective shares of the expenses of 
 certain development 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 in- 
 terests of the partners in the claim. 
 
 Held, that taken as a whole the 
 agreement could not, in the absence 
 of express stipulation, be construed 
 to exclude the lender from his or- 
 dinary right to compel the borrowing 
 partners to ultimately account to him 
 for his advances of their share of the 
 expenses Marino v. Sproat. . . .477 
 
 OONVEYANCE. Registration of and 
 Notice. See Registration. 
 See Grant, Transfer. 
 
 CONVICTION. See Crown (8)'. 
 
I.] 
 
 COOK-CROWN. 
 
 881 
 
 COOK. See Mechanics' Lien (2). 
 CO-OWNEiR. See Owner; and Pakt- 
 
 NEKSHIP. 
 
 COPY of Document. See Evidence. 
 
 CORPORATION. See Company. 
 
 COSTS. See Tbial (4^ ■ Appeal (10), 
 (13). 
 
 COUNTY COURT. (1) Finality of De- 
 cision of. — See Res Judicata. 
 
 (2) Transfer to Supreme Court. 
 — ^Action pending in the County 
 Court will not be transferred to the 
 Supreme Court unless some peculiar 
 questions of expediency arise. Rich- 
 ards V. Pbice 140 
 
 (3) Mining Jurisdiction— Negli- 
 gence. — Action for injury in a mine 
 may be brought in County CourL, 
 mining jurisdiction. Beamish v. 
 Whitewater Mines, Ltd 405 
 
 (4) Jurisdiction. — If jurisdic- 
 tion is objected to the point must be 
 taken below or will not be enter- 
 tained on appeal. 
 
 Special defences must be raised 
 by notice before trial. Gelinas v. 
 Clark 428 
 
 COURT. MINING. See Mining Court. 
 
 COURT. SUPREME. OP CAN i, DA. 
 See Supreme Court of Canada, 
 
 COURT. SUPREME, OF BRITISH 
 COLUMBIA. See Supreme Court 
 op British Columbia. 
 
 CREDITOR. Judgment Creditor of a 
 free miner cannot take out a certi- 
 ficate to keep alive the latter's claim. 
 MoNaught v. Van Norman. . . .516 
 
 CROWN. (1) Lease — Forfeiture — 
 . Abandonment — Record. — Where min- 
 ing ground is held from the Crown 
 under a lease, which is subject to 
 forfeiture for ijion-compliance with 
 terms and conditions, the Crown 
 alone can declare a forefeiture and 
 re-enter for breach, or waive it 
 
 Free miners in general are 
 strangers to such a lease and have 
 no rights under or over it. 
 
 Cessation of mining operations 
 for want of funds is not proof of in- 
 tention to abandon, even if that ques- 
 tion 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 cannot operate as a re- 
 demise of ground already leased by 
 the Crown. Canadian Co. v. 
 Grouse Creek Co 3 
 
 (2) Laches is fatal to specific 
 performance against Crown. Peck 
 V. IteGINAM 13 
 
 (3) Precious Metals — " Land " 
 — British North America Act.- — A 
 
 CROWN— Continued. 
 
 conveyance by the Province of Bri- 
 tish Columbia to the Dominion of 
 Canada of " public lauds," being in 
 substance an assignment of its right 
 to appropriate the territorial reven- 
 ues arising therefrom, does not imply 
 any transfer of its interest in re- 
 venues arising from the prerogative 
 rights of the Crown. The precious 
 metals in, upon, and under such lands 
 are not incidents of the land, but be- 
 long to the Crown, and under sec. 
 109 of the British North America 
 Act, 1867, beneficially to tlje Pro- 
 vince, and an intention to transfer 
 them must be expressed or neces- 
 sarily implied. Attorney-General 
 of British Columbia v. Attorney- 
 General op Canada .« 52 
 
 (4) Right of Crown Provincial 
 to create Mining Courts and appoinl 
 Officers. — See Mining Court. 
 
 (5) Right of Lessees of Timber 
 Berths from Dominion Government 
 in Canadian Pacific Ry. Belt. — See 
 Water-Rights (2). 
 
 (6) Precious metals pass only 
 by apt and pi-ecise words, and the use 
 of the words " all mines, minerals 
 and substances whatsoever " in a 
 grant from the Crown did not pass 
 such metals to the grantee. Bain- 
 bkidqe v. Esquimalt & Nan. Ry. 
 Co 98 
 
 (7) Chinese in Coal Mines — 
 Constitutional Law — Brit. N. Am. 
 Act. — The provision in sec. 4 of the 
 Coal Mines Regulation Act, as 
 amended by the Coal Mines Regula- 
 tion Amendment Act, 1890, sec. 1. 
 that " No Chinaman shall be em- 
 ployed 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 
 as being a regulation of coal mines, 
 and is not ultra vires, as an inter- 
 ference with the subject of aliens. 
 In be Coal Mines Regulation 
 Act ■ 116 
 
 (8) Chinese in Coal Mine — Pen- 
 alty — Conviction — Certiorari. — The 
 defendant was convicted before two 
 justices of the peace of having em- 
 ployed a Chinaman in a coal mine 
 underground, and was fined $100.00. 
 
 Upon application for certiorari 
 to quash the conviction : 
 
 Held, that a contravention of the 
 amendment to sec. 4 prohibiting the 
 employment of Chinamen was not 
 made an offence under the Act, for 
 whibh any penalty is imposed, and 
 that the penal Act should not be ex- 
 tended beyond the reasonable con- 
 struction which the words used would 
 bear. 
 
 56 
 
882 
 
 CROWN GRANT— DAMAGES. 
 
 [vol. 
 
 CROWN— Continued. 
 
 The Interpretation Act, sec. 8, 
 sub-sec. 21, providing tliat " any wil- 
 ful contravention of any Act which 
 is not made an ofifence of some other 
 kind shall be a misdemeanour and 
 punishable accordingly," did not as- 
 sist the conviction. Regina v. 
 Little 220 
 
 (9) Order-in-Counoil — Extend- 
 ing Time — Assessment Work.. — ^An 
 order-in-council under sec. 161 of the 
 Mineral Act, 1896, extending time 
 foi; doing and recording of assessment 
 work, is intra vires. Petebs v. 
 Sampson 247 
 
 (10) Chinese — Goal Mine — B. 
 N. A. Act — Naturalizo/tion . and 
 Aliens — Constitutional Law. — Held, 
 that sec. 4 of the " Coal Mines Regu- 
 lation Act, 1890," which prohibits 
 Chinamen' of full age from employ- 
 ment in underground coal workings, 
 is in that respect ultra vires of the 
 Provincial Legislature. 
 
 Regarded merely as a coal work- 
 ing regulation, it would come within 
 sec. 92, sub-sec. 10, or sec. 92, sub- 
 sec. 13, of the British North Amer- 
 ica Act. But its exclusive applica- 
 tion to Chinamen who are aliens or 
 naturalized subjects establishes a 
 statutory prohibition which is within 
 the exclusive authority of the Dom- 
 inion Parliament conferred by sec. 
 91, sub-sec. 25, in regard to " natur- 
 alization and aliens." Betdbjst v. 
 Union Colliery Co 337 
 
 (11) Certificate of Improve- 
 ments — Fraud. — Crown alone can sue 
 to set aside Certificate of Improve- 
 ments on ground of fraud. Hand 
 V. Wareen 376 
 
 (12) Reversion of Lapsed Loca- 
 tion to. — See Location (23), (24 1, 
 (26), (28). 
 
 (13) Precious Metals — Grant 
 of. — Where the Crown has granted 
 the precious metals in a parcel of 
 land a conveyance of such parcel by 
 the grantee of the Crown to a third 
 person in the ordinary form will pass 
 the precious metals, although not 
 specially mentioned. Re St. Eugene 
 do. 406 
 
 (14) Lease — Rent — 
 ment Work — Certificate of Work — 
 Fraud. — ^Performance of the annual 
 assessment work (or the equivalent 
 money payment) is the annual ren- 
 tal payable to the Crown, and there- 
 fore in the case of a valid location 
 whenever a dispute arises in which 
 payment of a rent is concerned, the 
 production of the certificate of work 
 (i.e., payment) is conclusive against 
 all the world, except the Crown it- 
 
 CROWN- Continued, 
 
 self, in a, suit to set it aside for 
 
 fraud. Manlet v. Collom 487 
 
 And see Free Miner, and Aban- 
 donment. 
 
 CROWN GRANT. Application for, to 
 coal areas and specific performance 
 against Crown, and statutory condi- 
 tions. — See Coal (1). 
 
 (1) Lands — Mineral Claims. — 
 An exception of " Lands held as min- 
 eral claims " in Crown grant means 
 de facto claims, and the word " law- 
 fully " cannot be imported. Nelson, 
 Etc.. Ry. Co. v. Jerry 161 
 
 (2) Lease from Grantee — 
 Squatter.- — A Crown grant of a min- 
 eral 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 ob- 
 served its covenants. 
 
 Per Irving, J. : — ^Section 16 of 
 the Mineral Act Amendment Act, 
 1897, is declaratory. Spencer v. 
 Harris , 294 
 
 (3) Cancellation of. — Under 
 sec. 86 of ,the Land Act a defective 
 Crown grant may be cancelled and a 
 new one issued at any time irresjjec- 
 tive of existing certificates of im- 
 provements for mineral claims con- 
 tained in the area of the grant. Re 
 American Boy Mineral Claim 
 304 
 
 (4) Landowner — Certificate of 
 Improvements — Injunction — Policy. 
 
 ■ — Application of Crown grantee of 
 land for injunction against owner of 
 mineral claim who has certificate of 
 improvements. See Improvements, 
 Certieicate OP (6). 
 
 (5) Conflicting Crown Grants — 
 Title. — Where there are two Crown 
 grants to different parties for the 
 same claim, or overlapping portions 
 of two claims, the earlier must pre- 
 vail. Victor v. Butler 438 
 
 CROWN LANDS. See Crown, and 
 Location. 
 
 CURING DEFECTS. See Location 
 (9), (13), (15), (16), (17), (21), 
 <2B). (24), (28). (29) ; and Work, 
 Certificate of, passim. 
 
 D. 
 
 DAMAGES. Trespass. — For trespass, 
 unless actual damage be shown, only 
 nominal damages (.$1) will be 
 awarded. Woodbury v. Hudnut.31 
 
I.] 
 
 DE FACTO MINERAL CLAIM— EVIDENCE. 
 
 883 
 
 DB FACTO MINERAL CLAIM. See 
 Mineral Claim. 
 
 DELAY. See Laches, Abandonment, 
 Adverse Action, Time, Appeal. 
 
 In recording Certificate of Work. 
 See Work, Certificate of. 
 
 In serving Writ. See Writ. 
 
 In bringing Adverse Action. 
 See Adverse Action (5), (13), 
 (17). 
 
 In bringing Appeal. See Ap- 
 peal (5). 
 
 DECEIVE. See Mislead. 
 
 DECISIONS, American. See American 
 Decisions. 
 
 Pull Court, binding upon it- 
 self 498 
 
 DEFECTIVE LOCATION. See Loca- 
 tion. 
 
 DEPARTMENT OF STATE. (1) Stat- 
 utory Conditions — Waiver of. — Can- 
 not dispense with performance of 
 statutory preliminary conditions. 
 Peck v. Reqinam 13 
 
 (2) See Gold Commissioner 
 (2). 
 
 DEVELOPMENT WORK. (1) Repay- 
 ment of co-owner making advances 
 for, out of ore. See Contract (7). 
 
 DILIGENCE. See Laches. 
 
 DISCOVERY of Minerals in B. C. See 
 Preface. 
 
 DISCOVERY. (1) Inspection of Coal 
 Mine — Form of Order. — Where de- 
 fendants admit working within the 
 area of certain coal fields claimed by 
 the plaintiffs, the^ plaintiffs are en- 
 titled before pleading to have inspec- 
 tion by their own agents. 
 
 Form of order considered. Es- 
 QUiiiALT & Nan. Rt. Co. v. New 
 VANconvEE Coal Co 223 
 
 (2) Apex — Extralafrral Rights 
 — Experimental Worlc. — The Centre 
 Star Company had been enjoined till 
 the hearing from mining in the Iron 
 Mask ground, in which there was al- 
 leged to be a continuation of a vein 
 whose apex was in Centre Star 
 ground, and had also been refus'ed 
 leave to do experimental or develop- 
 ment work on the Iron JIask in order 
 to determine the character or iden- 
 tity of the said vein : 
 
 Held. (Martin. .1., dissentingi, 
 that it ought to be left to the trial 
 Judge to decide whether it was neces- 
 sary to ha\-e any work done to eluci- 
 date any of the i.ssues raised. 
 
 Circumstances under which such 
 an order might be granted consider- 
 ed. Centre Star ]\riNiNG Co. r. 
 Iron Mask Mining Co 207 
 
 DISCOVERY— Continued. 
 
 (3) Costs of .Adjourning Trial 
 for.— See Trial (4). 
 
 (4) Inspection and Survey of 
 Mine — Order — VndertaJang and Se- 
 curity. — An order for inspection and 
 survey of a mine and for making 
 copies of plans thereof in an action 
 concerning extralateral rights should 
 contain an undertaking for damages, 
 but not a direction that security be 
 given. Star Miking Co. v. Byron 
 N. White Co 468 
 
 (5) Inspection — Extralateral 
 Rights — Plan. — Proceedings for in- 
 spection of a mine under Rule •"14, 
 are distinct from ordinary proceed- 
 ings in discovery, and a claim of 
 privilege set up in an affidavit in an- 
 swer to a motion to compel inspection 
 is not conclusive. 
 
 It is a proper and convenient 
 practice to apply to the court to en- 
 force an order for inspection. .Star 
 Mining Co. v. Byron X. White 
 Co 513 
 
 DIVISIONAL COURT. See Appeal. 
 
 DOCUMENTS. Recording of. See Re- 
 gistration. 
 
 Admissibility of. See Evidence. 
 
 E. 
 
 EJECTMENT. (1) Nature of eject- 
 ment and adverse actions considered. 
 CoRBiN V. Lookout Mining Co. .120 
 Clark v. Haney 281 
 
 EMPLOYERS' LIABILITY ACT. See 
 
 Negligence. 
 
 ENTRY. See Location ; Free Miner. 
 
 ESOUTMALT k NANAIMO RY. TO.'S 
 BELT OF LANDS. See Free 
 Miner (3). 
 
 ESTATE. See Free Miner; Posses- 
 sion. 
 
 ESTOPPEL. See Adverse Action (221. 
 See Title TO . 
 See Partnership (2). 
 See Contract (6). 
 See Location (27). 
 See Owner (5). 
 See Res Judicata (1). 
 
 EVIDENCE. (1) Certificate of Com- 
 pliance. — A certificate of Assist^it 
 Commissioner of Lands and Wores 
 is not conclusive evidence of com- 
 pliance with provisions of Mineral 
 Ordinance 1869. Peck v. Reginam 
 13 
 
 (2) Of intention to Abandon. 
 See Abandon (4), (8). 
 
884 
 
 ]i;;XAMINATION— FREE MINER. 
 
 [VOL. 
 
 EVIDENCE— Continued. 
 
 (3) Of colourable Representa- 
 tion. — /See Assessment Work (1). 
 
 (4) Observations upon the diffi- 
 culty of obtaining evidence in a min- 
 ing country. Atkins v. Coy ... .88 
 
 (5) Measurements. — Where 
 area of mineral claim is in dispute 
 the evidence of one who has made no 
 measurements is of little if any 
 value. Blebkir v. Chisholm. . . .112 
 
 Watebiiouse v. Liftciiild 153 
 
 DuNLOP v. Haney 369 
 
 (6) Offering fresh Evidence at 
 Trial. See Trial. 
 
 (7) Parol, of Agency under 
 Stat, of Frauds. — See Frauds, Stat- 
 ute OF. 
 
 (8) Certificate — Recorded In- 
 struments — Copy. — Under sec. 119 of 
 the Mineral Act a certificate of a 
 
 1 mining recorder may, under certain 
 conditions, be admitted in evidence 
 without notice as proof of the issu- 
 ance of a free miner's certificate. 
 
 A similar certificate of the re- 
 cording of a certificate of work may 
 be similarly admitted. 
 
 Copies of instruments recorded 
 under sec. 115 may be likewise ad- 
 mitted without proof of loss of ori- 
 ginal and without notice. Pavier v. 
 Snow 384 
 
 (9) By Surveyor. See Adverse 
 Action (21). 
 
 (10) Certificate of Work — Im- 
 peachment — Frajid. — Conclusive evi- 
 dence of performance of assessment 
 work as between subjects till im- 
 peached by Crown for fraud. Man- 
 ley V. COLLOM 487 
 
 Cleary V. BoscowiTZ 506 
 
 And see Title. 
 
 EXAMINATION. See Discovery. 
 
 EXECUTION. See Sheriff. 
 
 EXPERIMENTAL WORK. -See Dis- 
 covery. 
 
 EXTENDING TIME. See Time. 
 
 EXTRALATERAL RIGHTS. See Dis- 
 covery. 
 
 I 
 F. 
 
 FIERI FACIAS. See Execution. 
 
 FORRTGN TERRITORY, Location in. 
 See Location (22). 
 
 FORFEITURE. See Abandonment; 
 Crown ; and Free Miner. 
 
 FRACTIONAL MINERAL CLAIM. 
 
 See Location (29). 
 
 FRAUD. (1) Of Gold Commissioner in 
 granting Leave of Absence. See 
 Gold Commissioner (1). 
 
 (2) Setting aside Certificate of 
 Improvements for. See Improve- 
 ments, Certificate of (4), (5). 
 
 (3) Setting aside a Certificate 
 of Work for. See Work (18). 
 
 FRAUDS, STATUTE OF. (1) Inter- 
 est in Land — Trustee — Pleading. — 
 Whether or not an interest in a min- 
 eral claim is an interest in land with- 
 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 McCreigiit, 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 Stat- 
 ute of Frauds, the Mineral Act 
 should also be pleaded. Wells v. 
 Petty 147 
 
 (2) Interest in Land ■ — Free 
 Miner. — Per Drake, J. : — The inter- 
 est of a free miner in his claim is 
 an interest in land within the Stat- 
 ute of Frauds. Stussi v. Brown 
 105 
 
 (3) Interest in Land — Agent — 
 Trustee: — The interest of a free 
 miner in his mineral claim is an in- 
 terest in land, and a parol agree- 
 ment respecting it cannot be en- 
 forced. 
 
 An agent who, pursuant to a 
 parol agreement, locates in his own 
 name a mineral' claim for his prin- 
 cipal, will, if he repudiate the trust, 
 be declared a trustee for such prin- 
 cipal. Fero v. Hall 238 
 
 (4) Trust — Location — Agent. 
 — ^An agent who locates in his own 
 name a mineral claim for his prin- 
 cipal cannot if he repudiate the trust 
 in the absence of anv writing to 
 satisfy the Statute of Frauds, be de- 
 clared a trustee for such principal. 
 Sunshine, Ltd., v. Cunningham 
 
 286 
 
 FREE MINER. FREE ^FIXER'S IN- 
 TEREST. FREE MINER'S CER- 
 TIFICATE. 
 
 (1) Lease — Renewal — Forfei- 
 ture — Crown — .Abandonment. — 
 Though the interest of a free miner 
 in his claim expires, unless renewed, 
 at the end of a year, his lessor, the 
 Ci'own, may relieve against the for- 
 feiture in cases where there is no 
 one entitled to take advantage of 
 such expiry. 
 
1] 
 
 GLOSSARY OF MINING TERMS— IMPROVEMENTS. 
 
 885 
 
 FREE MINER— Continued. 
 
 An interest in a claim whicli has 
 not been renewed is an abandoned 
 interest. AA'illiams Creek Co. v. 
 Synon 1 
 
 (2) Breach of Peace. — Free 
 miner is not required to commit 
 breacli of yeate to preserve liis rights. 
 See Possession (1). . 
 
 (3) Precious Metals. — Free 
 miner may mine tlie precious metals 
 within Esquimau & Nanaimo Ry. 
 belt. Bainbbidge v. Esquimalt & 
 Nan. Ry. Co 98 
 
 (4) Interest in Land, and Sta- 
 tute of Frauds. — See Frauds, Sta- 
 tute OF. 
 
 ( 5 ) Lapsed Certificate. — Part- 
 ner's interest in proceeds of sale of 
 claim. See Paktnee (3). 
 
 (6) Lost Certificate, Proof of. 
 — See Evidence (8). 
 
 (7) Misleading by Public Officer. 
 — .See Public Ofpiceb (3). 
 
 (8) Using Another's Certificate 
 and Name. — See Alexander v. 
 
 Heath 33 
 
 SIanley v. Collom 487 
 
 (9) Lapsed Certificate — Co- 
 owner — Reversion. — Share of one co- 
 owner who has failed to renew his 
 certificate immediately vests in his 
 co-owners. McNaught v. Van 
 Norman 511 
 
 See Abandonment, and Crown. 
 
 G. 
 
 GLOSSARY OF MINING TERMS. See 
 Preface. 
 
 GOLD. Discovery of in British Colum- 
 bia. See Preface. 
 
 GOLD COMMISSIONER. (1) Review- 
 ing Decision on Appeal. — Decision of 
 Gold Commissioner in granting leave 
 of absence will not, on appeal, be in- 
 terfered with except for fraud. 
 Woodbury v. Hudnut 31 
 
 (2) Powers of Gold Commis- 
 sioner 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 
 lay over mineral claims so as to 
 supersede the necessity of compliance 
 with the statutory requirements re- 
 lating to the representation of such 
 claims toy annual assessment work or 
 expenditure of $100. 
 
 Powers of Gold Commissioner to 
 declare a close season and lay over 
 mineral claims considered. Wilson 
 v. AA'hitten 38 
 
 (3) For Re-location without 
 Permission. — See Abandonjient 
 
 (8) ; Location (5), (7). 
 
 GOLD COMMISSIONER— Continued. 
 
 (4) Pewers under Water 
 Clauses Consol. Act. — See Water 
 Rights (4.), (5), (6). 
 
 (5) Close Season on the Yukon. 
 ■ — See Assessment Work (4). 
 
 (ti) Mistalce of. — See Public 
 Officer (3). 
 
 GOLD LAWS, Early. See Appendix of 
 Statutes. 
 
 GOVERNMENT OFFICIAL. See Pub- 
 lic Officer. 
 
 GRANT. See Crown Grant, and 
 Water Rights (1), (2). 
 
 GROUND. See Location, and Mineral 
 Claim. 
 
 II. 
 
 HISTX)RY of Discovery of Minerals in 
 British Columbia. See Preface. 
 
 HUSBAND AND WIFE. See Adverse 
 Claim (6). 
 
 I. 
 
 IMPEACHJIENT of Certificates of 
 Work and Improvements. See 
 Work; and Improvements. 
 
 IMPROVEMENTS, CERTIFICATE 
 OF. (1) Bar — Fraud — Pleading. — 
 Certificate of improvements is a bar 
 to those claiming adversely to the 
 location in any right and on all 
 grounds except fraud. If it is pro- 
 posed to attack it that issue must be 
 raised on the pleadings. Nbxson, 
 Etc., Ry. Co. v. Jerry 161 
 
 (2) Adversing Second Adverse 
 Action. — Where a claim owner has 
 received a certificate of improvements 
 his position is assured," and he is not 
 called upon to adverse a subsequent 
 application of another for a certi- 
 ficate of improvements for a claim 
 which would include a portion of his 
 claim. Re American Boy Mineral 
 Claim 304 ■ 
 
 (3) Injunction — Preservation 
 of Property pending Appeal. — In a 
 case of very special and exceptional 
 circumstances and to preserve the 
 property in dispute, a part 7 ni an 
 adverse action who has obtained 
 judgment at the trial, may, after 
 appeal has been brought, be enjoined 
 from persisting in liis application for 
 or from obtaining a certificate of 
 improvements pending such appeil. 
 DUNLOP V. Haney 3 14 
 
 (4) Impeachment of — Crown — 
 Fraud. — An adverse claimant who 
 neglects to bring an adverse action 
 under sec. 37 of the Jlineral Act 
 cannot sue to set aside a certificate 
 of improvements on the ground of 
 fraud. Semble. the Crown alone can 
 do so. Hand v. Warren 376 
 
886 
 
 INJUNCTION -JURY. 
 
 [VOL. 
 
 IMPROVEMENTS— Continued. 
 
 (5) Fraud — Affidavit — Applica- 
 tion to Minister of Mines. — A state- 
 ment in an affidavit (as to the ques- 
 tion of undisputed possession) un- 
 true at the time of taking the oath 
 but true at the time when the affi- 
 davit reached the Gold Commissioner 
 for action thereon, was not a mis- 
 leading 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 the said sec- 
 tions. 
 
 Parties strenuously yet iona fide 
 pursuing what they deem, however 
 erroneously, to be their rights, do not 
 come within the meaning of the word 
 fraud in said sections. 
 
 The application to the Minister 
 of Mines under sec. 10 of the Mineral 
 Act Amendment Act, 1899, need not 
 be in writing. 
 
 Setiihle. When fraud is shown vin- 
 der see. 37 the curative properties of 
 sec. 28 vanish as against the Crown. 
 Attobney-Genebal v. Dunlop. .408 
 
 (6) Injunction — Grown Grant 
 — Policy. — A Crown grantee of land, 
 qua land, cannot obtain an injunc- 
 tion to prevent the owner of a min- 
 eral claim who has obtained a certi- 
 ficate of improvements from 'obtain- 
 ing a Crown grant thereunder, even 
 though the objection is only to the 
 form of the Crown grant. 
 
 The policy of the Mineral Acts is 
 to compel persons claiming jidversely 
 to an applicant for a' Crown grant to 
 begin action before the certificate of 
 improvements is obtainprl. Nelson". 
 Etc., Ey. Co. v. Dttnlop ..... .414 
 
 (71 Co-owner, application of 
 sec. 37 to. See Owner (5). 
 
 ( 8 ) Co-owner. — A part owner 
 of a mineral claim may apply for a 
 certificate of improvements. Bent- 
 ley V. BOTSFOED 454 
 
 INJUNCTION. (1) Preservation of 
 Property Pending Appeal. — When to 
 preserve property pending appeal will 
 be granted to prevent application for 
 certificate of improvements. See 
 
 iMrEOVEMENTS, CeKTIFIOATB OF (3). 
 
 (2) Land-owner — Crown Grant 
 — Free Miner. — When will not be 
 granted on application of land-owner 
 to prevent free miner from obtaining 
 Crown grant. 76. (6). 
 
 INNOCENT PURCHASER. 
 Registration. 
 
 INSPECTION. See Discovery. 
 
 INTENTION. t9ee Abandonment. 
 
 See 
 
 INTEREST of Free Miner. See Free 
 Miner. 
 
 INTEREST in Laud. See Frauds, Sta- 
 tute OF. 
 
 INTRA VIRES. See Crown. 
 
 INVALID LOCATION. See Location. 
 
 IRREGULARITY. See Work, Certi- 
 ficate OF, and Curing Defects. 
 
 iJ. 
 
 JOINDER OF PARTIES. See Party. 
 
 JOINT OWNER. See Co-owner, 
 Transfer to. See Transfer (4). 
 
 JOINT OWNER of Water Record. See 
 Water Rights (oj. 
 
 JOINT TRANSFEREE. See Transfer 
 (4). 
 
 JUDGE of Mining Court. See Mining 
 Court. 
 
 JUDGE in Chambers. See Adverse Ac- 
 tion (16), (29). 
 
 JUDGMENT. (1) In Rem. See Ad- 
 verse Action (22). 
 
 (2) Delivery of. — A judgment 
 signed by the Judge and inclosed in 
 a letter directed to the proper dis- 
 trict 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. 
 Attorney-Gene KAL v. Dunlop. .408 
 
 (3) Where neither party estab- 
 lishes title. — ^See Title (6), (11). 
 
 See Sheriff. 
 
 JUDGMENT CREDITOR. (1) Free 
 Miner's Certificate — Debtor. — Cannot 
 take out a certificate of his debtor 
 who is a free miner to prevent the 
 latter's claim from lapsing. Mc- 
 Naught v. \'an Norman 516 
 
 " IJUMPER " ; " JUMPING." See 
 
 Teespass. 
 
 JURISDICTION (1) Of Province to 
 create Mining Courts. — See MINING 
 Court (T). 
 
 (2) Of Court to extend Time. — 
 See Adverse Action (5). 
 
 (3) Of Objection to. of County 
 Court, must be taken below or will 
 not be entertained on appeal. 
 Gelinas v. Clabk 428 
 
 JURY. (1) Rule as to in Mining Ac- 
 tions. — Generally, in adverse actions 
 the issues cannot be tried by a jury. 
 CoRBiN V. Lookout Miking Co . . 126 
 
I-] 
 
 JUS TERTII-LOCATION AND RE-LOCATION. 
 
 887 
 
 JURY— Continued, 
 
 (2) Oeneral Right to, with, 
 Particular Exception. — In a mining 
 action either party lias the right to 
 a trial by jury under Rule 331, sub- 
 ject to Rule 332, which applied to 
 the present case (one of extralateral 
 rights), because it required scientific 
 or local investigation which could not 
 conveniently be made by a jury. 
 Ikon Mask Co. v. Centre Star 
 Co 300 
 
 JUS TERTII. See Title. 
 L. 
 
 LACHES. Unreasonable delay is fatal 
 to an application to enforce specific 
 performance against the Crown. 
 Peck v. Reginam 13 
 
 LANDS, of Ci-own. Sec Chown. 
 
 "Lands held as Mineral Claims." 
 See Mineral 'Claim (4). 
 
 LANDS AND WORKS, Assistant Com- 
 missioner of. — Powers under Water 
 Clauses Consolidation Act. See 
 Wateb Rights (4), (5), (6). 
 
 -LAND-OWNiSH. (1)' Land-owner— Bond 
 — 'Condition Precedent to En/try iy 
 Free Miner.' — 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. 
 
 The requirement of a bond by 
 sec. 10 of the Act of 1891 is a direc- 
 tory 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. Nelson, Etc., Ry. Co. v. 
 
 .Iebry 161 
 
 (2) Injunction by. preventing 
 Holder of Gertiftcate of Improve- 
 ments from obtaining Crown Grant. 
 — See Improvements, Ceetlficate 
 of (6). 
 
 LANDLORD AND TENANT. See 
 
 - Crown, and Free Miner's Interest. 
 Lease by Squatter from Crown 
 Grantee. See Crown Grant (2). 
 
 LAWS. Policy of Mining. See Policy. 
 
 LAY-OVER. See Assessment Work. 
 
 LEASE. See Free Miner's Interest, 
 and Crown. 
 
 LEAVE OF ABSENCE. See Gold Com- 
 missioner. 
 
 LEDGE. See Mineral in Place. 
 
 LEGAL POST. See Post. 
 
 LICENCE to Prospect for Coal. See 
 Coax. 
 
 Free Miner's. See Free Min- 
 er's Certificate. 
 
 LIEN. See, Mechanics' Lien. 
 
 LOAN. See Contract (7). 
 
 LOCATION AND RE-LOCATION. (1) 
 He-location of Existing Location — 
 "Jumping." — An attempt to locate 
 a claim on an existing valid location 
 is merely an unauthorized trespass^ 
 a "jumping." Woodbury v. Hud- 
 nut , 31 
 
 (2) Occupied Land. — A location 
 on land already lawfully occupied for 
 mining purposes is invalid. Gkan- 
 
 6BE V. FoTHEHINGHAM 71 
 
 Atkins v. Gor 88 
 
 (3) Defective Post. — ^A location 
 having a defective post is invalid. 
 
 Ih. ; Pbllbnt v. Almoure 134 
 
 Clark v. Haney 281 
 
 (4) Location Line. — ^A location 
 is not invalid because the location 
 line exceeds in length the statutory 
 allowance. Granger v. Fotheeing- 
 
 HAM 71 
 
 (5) Re-location in Other's 
 Name — Permission of Gold Commis- 
 sioner. — Where owners of a mineral 
 claim, the title to which they con- 
 sidered defective, permitted a third 
 person to re-locate it in his own 
 name, who, afterwards, without pre- 
 vious binding agi-eement to that 
 effect, conveyed his title to them for 
 a consideration. 
 
 Held, not a re-location by the 
 owners of the original claim so as to 
 render necessary the written per- 
 mission of the Gold Commissioner. 
 lb. 
 
 (6) Location Lime — Existing 
 Location — Re-location —r- Imperative 
 Provisions. — 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 cov- 
 ered by a valid and existing location 
 the junior location is invalid to at 
 least the extent of the ground al- 
 ready covered by the senior location. 
 
 The provisions of the Mineral 
 Acts as to location are imperative. 
 
 BlEEKIR v. CfilSHOLM 112 
 
 Pellent v. Almoure .134 
 
 (7) Re-location — Permission of 
 Gold Commissioner. — Before re-loca- 
 tion, it is necessary to record the 
 abandonment of an invalid location 
 and obtain permission of Gold Com- 
 missioner. Pellent v. Almoure 
 134 
 
 (8) Occupation and Working. — 
 Mining ground actually occupied and 
 actively worked as a mineral claim 
 is not open to location. Water- 
 house V. Liftchild 153 
 
888 
 
 LOCATION AND RE-LOCATION. 
 
 [VOL. 
 
 LOCATION, ETC.— Continued. 
 
 (9) Caring Defects — Mislead- 
 ing.— Delects in a location made hona 
 fide in endeavouring to avoid en- 
 croaching upon other locations, and 
 which do not mislead, are cured by 
 a certificate of work. lb. 
 
 (10) Bona fide attempt to Lo- 
 cate — Misleading — Post. — A bona fide 
 attempt to comply with the provi- 
 sions of the Mineral Act, 1896, sec. 
 16 (d) , does not merely mean an at- 
 tempt to locate a claim of size and 
 form as provided in sec. 15, but 
 nieans an attempt to comply with the 
 formalities provided by sec. 16 as 
 to staking; and a locator who has 
 staked his location by four corner 
 posts, without No. 1 and No. 2 posts, 
 has not made such an attempt. 
 RiciiAKDS V. Peice 156 
 
 (11) Landownei Bond — Con- 
 dition Precedent. — 8ee Landowner 
 (1). 
 
 (12) Discovery of Mineral — 
 " Rock in Place " — " Valuable De- 
 posit " — Certificate of Improvements 
 — Bar — Fraud. — ^The discovery of a 
 mineral vein or lode is not essential 
 to a valid location ; " rock in place " 
 is sufficient. 
 
 The words " rock in place " are 
 satisfied by rock in situ, bearing 
 valuable deposits of mineral, although 
 not lying between defined walls, or in 
 a vein or ledge. 
 
 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. 
 
 The expression " valuable de- 
 posit of mineral " means " capable of 
 being valued," not " costly." Nel- 
 son, Etc., Ry. Co. v. Jerry .... 161 
 
 ( 1.3 ) Record — Compass Bearing 
 — Misleading. — Failure to duly re- 
 cord a location invalidates it. 
 
 An error on the initial post of 
 the approximate compass bearing of 
 No. 2 post of N.-E. and S.-W. instead 
 of N.-W. and S.-B. is calculated to 
 mislead, and cannot be cured by sec. 
 16(d). Francoeur v. English. 203 
 
 (14) Location Line — Title. — 
 The foundation or root of title to 
 a mineral claim depends upon the 
 proper location, i.e., a location made 
 in accordance with the rules prescrib- 
 ed in the Mineral Act. 
 
 Failure to mark the location line 
 invalidates the location. Aldotjs v. 
 
 Hall Mines Co 213 
 
 Clakk v. Haney 281 
 
 LOCATION, ETC.— Continued. 
 
 (15) Posts ■ — Curative Provi- 
 sions — Re-location. — Failure to put 
 up legal posts as required by the 
 Mineral Act invalidates a location, 
 unless cured by sec. 16, sub-sec. (d). 
 
 The curative provisions of that 
 section are intended as a shield for 
 the protection of locators and to be 
 invoked by them, and not as a wea- 
 pon of attack upon them. 
 
 It is not necessary to record the 
 abandonment of an invalid location 
 before re-location. Ceeelman v. 
 Clark 228 
 
 (16) Date — Curative Provi- 
 sions. — Failure to write the true date 
 upon the posts of a mineral claim 
 invalidates the location unless cured 
 by sec. 16, sub-sec. {d). 
 
 In an adverse action when the 
 validity of a junior location depends 
 upon the validity of a senior loca- 
 tion on the same ground, the curative 
 provisions of see. 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. Boie v. Saulter 240 
 
 (17) Misleading Location — 
 Monuments — Posts — Curative Provi- 
 sions. — The erection of rock monu- 
 ments instead of legal posts invali- 
 dates a location, and such an omis- 
 sion cannot be cured by sec. 16, sub- 
 sec, (d). The provisions of that sec- 
 tion are conjunctive. 
 
 Any other mode of making a 
 location than that specified by the 
 Act is calculated to mislead other 
 locators. Callahan v. George. .242 
 
 (18) Occupied Ground — Record. 
 — ^If a locator include in his location 
 ground then occupied by buildings, 
 the -record of such location will be 
 rectified so as to exclude such ground. 
 Sunshine Ltd. v. Cunningham 
 286 
 
 (19) Intervening Location'. — 
 Two plots of ground separated by an 
 intervening valid location cannot, al- 
 though within the statutory limit of 
 1,500 feet, be included in one location. 
 DART V. St. Kevbkne Mining Co. 
 331 
 
 (20) Location on Same Vein in 
 Another's Name ■ — Public Policy. — 
 When one free miner locates a min- 
 eral claim and locates another claim 
 on the same vein in the name of an- 
 other free miner, such a proceeding 
 is contrary to public policy and a 
 violation of the Mineral Act and 
 Amendments, and the free miner ac- 
 quires no interest in the second loca- 
 tion. Alexander v. Heath . . . .333 
 
•] 
 
 LOCATION AND RE-LOCATION. 
 
 889' 
 
 LOCATION, ETC.— Continued. 
 
 (21) Irregularity — Compass 
 Bearing — Misleading Location — 
 Curative Provision. — ^Failure to give 
 the " approximate compass bearing " 
 of No. 2 post invalidates a location. 
 Such defect, if of a character calcu- 
 lated to mislead, cannot be cured by 
 sec. 16 (g), nor by a certificate of 
 work under sec. 28. 
 
 Section 28 only cures little ir- 
 regularities after location, and record, 
 which do not go to the root of title. 
 
 If a claim is not properly taken 
 up and recorded it never becomes a 
 mineral claim. Callahan v. Cop- 
 LBN 348 
 
 (22) Foreign Territory — Post. 
 — A location which has its No. 1 
 post on foreigii territory is invalid. 
 CONNELL V. Madden 359 
 
 (23) Re-location — Lapsed Loca- 
 tion — Reversion — Certificate of Work 
 —Irregularity — Curative Provision. 
 — ^Eveu if the senior location were 
 valid at the time of the location by 
 the junior locator, if the senior sub- 
 sequently lapsed the junior location 
 would become entitled to the over- 
 lapped area as against a third loca- 
 tion if the junior locator had recorded 
 a certificate of work before the mak- 
 ing of the third location ; the junior 
 location in the life of the senior was 
 " a mere irregularity " cured by sec. 
 28. Pavier v. Snow 384 
 
 (24) Re location — Lapsed Loca- 
 tion — Reversion to Crown — Certifi- 
 cate of Work — Mineral in Place — 
 Abandonment. — Where a location is 
 purported to be made on ground al- 
 ready covered by a valid and existing 
 location, the junior location is in- 
 valid to at least the extent of the 
 ground 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 dis- 
 covered. Cbanston v. English 
 Canadian Co 394 
 
 (25) Record of Transfers-Effect 
 of failure to. — 8ee Registration 
 
 (3). 
 
 (26) Re-location — Lapsed Loca- 
 tion — Reversion to Crown. — Where a 
 location is purported to be made on 
 ground already covered by a valid 
 and existing location, the junior loca- 
 tion 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. Rammelmeybe v. Cur- 
 tis 401 
 
 LOCATION, ETC.— Continued. 
 
 (27) Fraud — "Swinging" Loca- 
 tion — Estoppel. — Where the location 
 of a claim has been fraudulently 
 changed from its original position it 
 is void, and see. 28 of the Mineral 
 Act has no application and cannot be 
 invoked in support of a so-called 
 location which never existed. Wise 
 V. Christopher 413 
 
 (28) Re-location — Lapsed Loca- 
 tion — Reversion. — A location made 
 upon an existing valid location be- 
 comes a valid location on the lapse of 
 the senior location upon a certificate 
 of work being recorded for the junior 
 location. Gelinas v. Clark ...428 
 
 (29) Imperative Provisions — 
 Invalidity — Re-location — Fractional 
 Claim — Irregularity — Compass Bear- 
 ing — Misleading — Certificate of Work 
 — Proof — Title — Free Miner's Certi- 
 ficate, Using Another's — Crown — 
 Lease — Reversion — Fraud. — The pro- 
 visions of the Jlineral Act as to loca- 
 tion are imperative and failure to 
 observe them invalidates a location 
 unless cured by the remedial sees. 18 
 (g) and 28. 
 
 Section 28 does not include with- 
 in its purview any area not duly re- 
 corded ; and the irregularities cured 
 by that section are only such as oc- 
 cur in the interval between location 
 and record, and the recording of the 
 last certificate of work. 
 
 Where a location is purported 
 to be made on ground already occu- 
 pied 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. 
 
 Performance of the annual as- 
 sessment work (or the equivalent 
 money payment) is the annual ren- 
 tal payable to the Crown, and there- 
 fore in the case of a valid location 
 whenever a dispute arises in which 
 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. 
 
 Failure to give the " approxi 
 mate compass bearing " of No. 2 post 
 will invalidate a location. 
 
 Such defect if of a character cal- 
 culated to mislead, cannot be cured 
 by sec. 16 (g). nor by a certificate of 
 work under sec. 28. 
 
 Accuracy is as» essential in the 
 case of fractional claims as in full 
 sized claims. 
 
 Failure to discover " mineral in 
 place " invalidates a location, and 
 such discovery must be established as 
 a fact when the onus of proving it is 
 upon the locator — belief is insuffi- 
 cient. Manlet v. Collom 48T 
 
890 
 
 LOCATION LINE— NEGLIGKNCE. 
 
 [vol. 
 
 LOCATION LIXE. See Location (4), 
 XiODE. See Mineral in Place. 
 
 M. 
 
 MASTER AND SERVANT. See Negli- 
 gence. 
 
 MEASUREMENTS. See Evidence. 
 
 MECHANIC'S MEN. (1) Free Miner's 
 Lien — Affidavit. — Free Miner . may 
 have a mechanic's lien on a mineral 
 claim. Holden v. Bright Prospects 
 Mining Co 292 
 
 A statement in the affidavit that 
 the work was finished or discontinued 
 " on or about " a certain date is 
 sufficient. li. 
 
 (2) Free Miner's Lien — Cook — 
 Bonded Claim. — Miners employed by 
 a bondholder who has a working bond 
 on si mine by which, if the mine WBre 
 worked, a certain number of men 
 were to be employed by the bond-hol- 
 der, 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 those " at the request " of the 
 owner in sec. 4. ' 
 
 A cook cannot have a lien. 
 
 Observations upon improper affi- 
 davits. Anderson v. Godsal . .416 
 
 aiETALLIFEROrS MINES INSPEC- 
 TION ACT. See Negligence. 
 
 METALS. See Precious Metals, and 
 Glossary. 
 
 MINE. See Mineral Claim, Location. 
 
 MINE-OWNER, Duty of. See Negli- 
 gence. 
 
 MINERAL CLAIM. (1) Location, Re- 
 cord and Abandonment of. — See 
 Location, Record, Abandonment. 
 
 (2) Sale of. — See Contract. 
 
 (3) If interest in land. — See 
 Frauds, Statute of. 
 
 (4) De facto claims. — Excep- 
 tion in Crown grant of " lands held 
 as mineral claims " means de facto 
 claims, and the woi'd " lawfully " 
 cannot be imported. Nelson, Etc., 
 Ry. Co. v. Jerry ... ...^...161 
 
 (5) Lapsed Certificate — Co- 
 owner. — The share of one co-owner 
 which has lapsed because of failure 
 to take out free miner's certificate 
 immediately vests in the other co- 
 owners. McNaught v. Van Nor- 
 man 510 
 
 MINERAL IN PLACE. See Location 
 (12), (24), (29). 
 
 MINING OASES, in Supreme Court of 
 Canada, List of . 504 
 
 MINING CLAIM. See Mineral Claim, 
 Location. 
 
 MINING COURTS. (1) Creation and 
 Officers. — It is competent for the Pro- 
 vince to create Mining Courts, and 
 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 
 (8). 
 
 MINING PROPERTY, Taxation of. 
 See Appendix A. 
 
 MINING RECORDER. See Certifi- 
 cate, Registration, Gold Commis- 
 sioner, Public Officer. 
 
 MINING STATUTES. PROCLAMA- 
 TIONS, ORDINANCES, REGULA- 
 TIONS, AND ORDBRS-IN-COUN- 
 OIL, ORIGIN, AND TABLE OP.— 
 
 See Appendix of Statutes. 
 
 MINING TERMS, Glossary of. See 
 Appendix. 
 
 MISLEADING LOCATION. See Loca- 
 tion (9), (13), (17), (21), (29). 
 
 MISTAKE of Public Officer. See Pub- 
 lic Officer. 
 
 in LocatdoB. . See Location. 
 
 MONUMENT, ROCK. See ' Location 
 (17). 
 
 JIOUND. See Monument. 
 
 N. 
 
 NAME, One free miner using another's. 
 See Free Miner. 
 
 NATURALIZATION of Chinese. See 
 
 'Chinese. 
 
 NEGLIGENCE. (1) Metalliferous Mines 
 Inspection Act — Protection of ^^'inse 
 — Statutory OUigation.—'Rtiis 18. of 
 sec. 25, cap. 134, R. S. B. C, 1897, 
 does not require that a winze ex- 
 tending through several levels of a 
 metalliferous mine shall be protected 
 at each level ; the rule is sufficiently 
 complied with if the winze is pro- 
 tected at the top level only. 
 
 Held, on die facts, that negli- 
 gence had not been shown. Stameb 
 v. Hall Mines Oq 314 
 
 (2) /6.— Section 25 of the In- 
 spection of Metalliferous Mines Act 
 was not intended to Impose unrea- 
 sonable burdens upon the mine own- 
 er, and therefore he is only required 
 to use " reasonably practical " pre- 
 caution against accidents to miners. 
 McDonald v. Can. Pac. Explor. 
 Co 379 
 
I.] 
 
 NOTICE OF APPEAL— PARTNERSHIP. 
 
 891 
 
 NEGLIGENCE— Continued. 
 
 (3) lb. — "Falling Material" — 
 Gage — Bulkhead — Sihaft. — A cage 
 used for towering and hoisting men 
 is not " falling material " within the 
 meaning of that term as used in r. 
 20 of sec. 25 of the Metalliferous 
 Mines Inspection Act, and the amend- 
 ment of 1890 (cap. 49, sec. 12), does 
 not impose any duty on the mine 
 owner to provide protection from a 
 falling cage. McKelvey v. Le Roi 
 Mining Co. Ltd 477 
 
 NOTICE, of Appeal. See Appeal. 
 
 To Purchaser. See Registra- 
 tion. 
 
 O. 
 
 OATH. See Affidavit. 
 
 OCCUPATION. Occupaiion of a min- 
 eral claim ordinarily consists of a 
 valid location and record. Watbe- 
 
 HOTJSE V. LiFTCHILD 153 
 
 See Location, passim. 
 
 OFFICIAL OF GOVERNMENT. See 
 Public Officee. 
 
 OPTION. See Conteact (1) ; Mech- 
 anic's Lien (2). 
 
 ORDER-IN-COUNGIL. See Ceown 
 (9). 
 
 Early, relating to mining. See 
 Appendix op Statutes. 
 
 ORE. Re-payment of Development Work 
 out of proceeds of. See Conteact 
 (7). 
 
 ORDINANCES, MINING. See Appen- 
 dix of Statutes. 
 
 ORIGIN OF MINING LAWS. See Ap- ' 
 
 PENDix OF Statutes. 
 
 OAVNER of Mining Property. (1) 
 Shares in Company. — An owner of 
 shares in an incorporated mining 
 company is not the owner of any part 
 of a mineral claim owned by it. 
 Geangee V. Fotheeingiiam . . . .371 
 
 (2) Parlner or Co-owner of 
 interest in mineral claim is not in 
 the position of a partner, but of a 
 co-owner. Alexander v. Heath 
 3o3 
 
 (3) Co-ou-ncr — Certificate of 
 Improvements. — Co-owner may apply 
 for a certificate of improvement^. 
 Bentlet v. Botsfoed 434 
 
 (4) Lapsed Certificate. — -Inter- 
 est of one co-owner who has failed to 
 renew his certificate immediately 
 vests in his co-owners pro rata. Mc- 
 Naught v. YanNoeman 510 
 
 OWNER— Continued. 
 
 (5) Go-owners and Owners — 
 Adverse Action — Sec. 37. — One co- 
 owner of a mineral claim is not es- 
 topped by the result of such action 
 instituted by an adverse claimant 
 against another co-owner who has 
 applied for a certificate of improve- 
 ments. 
 
 Section 37 does not apply to co- 
 owners of the same claim, but owners 
 of conflicting claims. Fey v. Bots- 
 foed 520 
 
 OWNER 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 con- 
 cerned. DuNLOP v. Haney . . . .344 
 See Adveese Action, Evidence, 
 and Title. 
 
 P. 
 
 PAROL AGREEMENT. See Content. 
 
 PARTY. Joinder of Yarious Claimants 
 in Adverse Action. — ^All claimants 
 under the Mineral Act to any part 
 of the ground covered by the mineral 
 claim of a plaintiff may be made de- 
 fendants to an action by him to en- 
 force his adverse claim against any 
 one of such claimants. DuNLOP v. 
 Haney 232 
 
 PARTNERSHIP. (1) Location of 
 Claim for Partnership — " In on it." 
 — ^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 partner- 
 ship, and the presumption is that 
 the interests shall be equal. Wells 
 V. Petty 147 
 
 (2) Liability — Foreman — Ac- 
 counts. — Section 126 of the Mineral 
 Act does not preclude a mining part- 
 nership from contracting liabilities 
 otherwise than upon the order of a 
 duly appointed foreman. 
 
 If items of expenditure are 
 passed at meetings of the partner- 
 ship, it is estopped from disputing 
 them on taking accounts. Gray v. 
 McCallum 206 
 
 (3) Lapsed Certificate. — Where 
 partners enter an agreement for sale 
 of their claim, a .partner whose cer- 
 tificate has lapsed does not forfeit 
 his share in the proceeds. McNee- 
 
 HANIE V. AECHIBALD 320 
 
 (4) Co-owner. — Owner of an in- 
 terest in a claim is not in .position 
 of a partner, but of a co-owner. 
 Alexandee \'. Heath 333 
 
892 
 
 PEACE-PUBLIC OFFICER. 
 
 [VOL. 
 
 PARTNERSHIP— Continued. 
 
 (5) Development Work — Share 
 of Expense of — Advances by One Go- 
 owner- and Partner — Repayment 
 from — Ore. — See Contract (7). 
 
 PEACE. See Breach op Peace. 
 
 PENALTY, See Crown (8). 
 
 PERFORMANCE. See Crown (2). 
 
 PERMISSION OP GOLD COMMIS- 
 SIONER. See Gold Commissioner. 
 
 PLACER CLAIM. See Location. 
 
 PLAN. See Adverse Claim (20), (21"). 
 See Discovery (5). 
 
 PLEADING. (1) General Denial— Ai)- 
 peal. — A general denial is bad and 
 not only will be disregarded but the 
 allegations must be taken as admit- 
 ted. 
 
 If it is intended to rely on non- 
 compliance with the requirements of 
 the Mineral Act as to location, or 
 otherwise, this must be specially 
 pleaded and the material facts set up 
 on which reliance is placed. 
 
 Defences of such a nature can- 
 not be raised in appeal for the first 
 
 time. Hogg v. Parrell 79 
 
 Aldous v. Hall Mines 213 
 
 (2) Statute of Frauds must be 
 
 pleaded. Wells \-. Petty 147 
 
 Stussi v. Brown 195 
 
 (3) Certificate of Improve- 
 ments. — Attack upon must be raised 
 in pleadings. Nelson & Fort Shep- 
 PARD Ry. Co. v. Jerry 161 
 
 (4) Title — Possession — Coal 
 Seams. — In an action by plaintiffs 
 who have never been in possession to » 
 recover certain coal seams, the state- 
 ment should set out particulars of the 
 title under which the claim is ad- 
 vanced. ESquImalt AND Nan. Ry. 
 Co. v. New Vancouver Coal Co.237 
 
 (5) Title — Goal Seams — Gen- 
 eral Allegations — Embarrassing. — If 
 the defendant not only traverse the 
 plaintiif's title to certain coal seams, 
 but set up a title to the same in 
 himself, he must plead it with par- 
 ticularity ; a general allegation will 
 be struck out as embarrassing. /&. 
 284 
 
 POLICY OF COURT in Mining Litiga- 
 tion. POLICY OF MINING 
 LAWS. (1) Jumping — Equity. — 
 To deal on equitable principles and 
 discourage "jumping." Granger v. 
 
 Fotheringham 71 
 
 Atkins v. Coy 88 
 
 Victor v. Butler 440 
 
 POLICY OF COURT— Continued. 
 
 (2) Registration of Title. — 
 Policy of land registration intro- 
 duced. Atkins v. Coy lb. 
 
 Nelson. Etc., Ry. Co. v. Jerry, 161 
 at p. 187. 
 
 (8) Speed and Finality. — 
 Speedy determination of disputes 
 and tinality of title. Kinney v. 
 Harris 137 
 
 KiLBOUBNB V. MCGUIGAN ..:... 141i 
 
 Nelson, Etc., Ry. Co. v. Jekby, lb. 
 at p. 194; Dunlop v. Haney, at p. 
 
 236 ; Re American Boy 304 
 
 Nelson, Etc., Ry. Co. v. Dunlop 
 414 
 
 (4) Re-location on Same Vein. 
 — Second location in another's name 
 on same vein against public policy. 
 Alexander v. Heath 333 
 
 POSSESSION. (1) Breach of Peace- 
 Assessment ll'orfc — Resumption of 
 Former Estate. — Such wrongful pos- 
 session as will lead to breach of peace 
 if claim owner persists in attempt to 
 perform assessment work exonerates 
 him from such performance. 
 
 If owner return to his former 
 placer claim which he has left un- 
 represented, and finds it intact, and 
 unoccupied, he may resume posses- 
 sion, and be in as of his old estate. 
 Woodbury v. Hudnut 31 
 
 (2) Of Mining Claim, what con- 
 stitutes. See Victor v. Butler. .438 
 
 (3) Allegation of. See Plead- 
 ing (4). 
 
 POST. See Location (3). (10), (13), 
 (16), (17), (221. 
 
 POSTPONEMENT. See Trial. 
 
 PRACTICE. See Adverse Action,. 
 Affidavit, Appeal, Discovery,. 
 Party, Pleading, AVrit, Time. 
 
 PRECIOUS METALS. See Croww. 
 
 PRINCIPAL AND AGENT. See Agent. 
 
 PRIVILEGE. See Discovery (4). 
 
 PROCLAM.4TIONS, MINING.— See Ap- 
 pendix OF Statutes. 
 
 PROOF. See Title. 
 
 PROPERTY IN DISPUTE. Preserva- 
 tion of Pending Appeal. See In- 
 junction (1). 
 
 PUBLIC LANDS. See Crown, and 
 Crown Lands. 
 
 PUBLIC OFFICER. (1) Appointment 
 of Officials of Mining Courts. See- 
 Mining Court. 
 
I] 
 
 PUBLIC POLICY— SPECIFIC PERFORMANCE. 
 
 893 
 
 PUBLIC OFFICER— Continued. 
 
 (2) Public Policy — Improper 
 Conduct — Equitable Principles. — The 
 Court should deal with mining dis- 
 putes upon the principles of a Court 
 of Equity, and should discounten- 
 ance a plaintiff, whose action is 
 based upon defects in title, know- 
 ledge 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. Gkangek 
 
 V. FOTHEEINQHAM 71 
 
 (3) Mistake of— Sec. 53.— If 
 free miner is misled by mistake of 
 Gold Commissioner he is protected 
 by sec. 53 of Mineral Act. Lawr v. 
 Parker 45(j 
 
 PUBLIC POLICY. See Policy. 
 
 PURCHASER, Notice to, of recorded in- 
 strument. See Registration. 
 
 R. 
 
 RECORD, Delay in. See Location 
 (13). 
 
 Rectification of. See Location 
 (18). 
 
 See Registration, Water- 
 rights. 
 
 RECORDING CLAIM. Act of Party 
 not Crown. — ^Act of recording a claim 
 is the act of the party and not of the 
 Crown. Canadian Co. v. Grouse 
 Cbbek Co 3 
 
 RE-LOCATION. See, Location. 
 
 REGISTRATION. (1) Notice— Land 
 Registry. — Conveyance. — 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 con- 
 veyance must be postponed to that 
 which is subsequent but duly regis- 
 tered. 
 
 Quwre : Whether mining records 
 constitute notice, and to what extent? 
 Atkins v. Cot 88 
 
 (2) Notice — Record. — Though 
 documents duly recorded are notice 
 to subsequent purchasers, the mere 
 fact ot a notice of claim being filed 
 with the Recorder is not notice. 
 Stussi v. Brown 195 
 
 (3) Effect of non-record on 
 Location. — Failure to record a con- 
 veyance under sec. 49 of the Mineiral 
 Act. does not result in the claim be- 
 coming waste lands of the Crown 
 open to location. 
 
 There is an apparent conflict be- 
 tween sees. 49 and 50 which can be 
 reconciled by construing sec. 50 as 
 meaning merely that a Court should 
 
 REGISTRATION— Continued. 
 
 not afford relief before record of con- 
 veyance. Grutchfield v. Har- 
 
 BOTTLE 390 
 
 REMEDIAL PROVISIONS. See Cur- 
 ing Defects. 
 
 REPRESENTATION of Mineral Claims. 
 See Assessment Work. 
 
 RESCISSION. See Contract. 
 
 RESIDENCE OF MINER. See Assess- 
 ment Work (1). 
 
 RES JUDICATA. (1) Judgment by 
 County Court. — When the titles to 
 conflicting claims have been investi- 
 gated and determined in the County 
 Court, mining jurisdiction, the same 
 question cannot be raised between 
 the same parties or their successors 
 in title in the Supreme Court. Pel- 
 lent V. Almouke 134 
 
 (2) Estoppel. — Held, that the 
 order of the Full Court reported at p. 
 309 operated to prevent the plea of 
 res judicata being set up by the de- 
 fendant in this action. Dunlop v. 
 Hanet 390 
 
 REVERSION. See Crown (12) ; Free 
 Miner (9) ; Location, passim. 
 
 ROCK IN PLACE. See Mineral in 
 Place. 
 
 RULES AND REGULATIONS, Mining. 
 See Appendix op Statutes. 
 
 SALE of Mineral Claim. See Contract. 
 
 SERVICE. See W«n ; Appeal (9). 
 
 SHARES. See Company. 
 
 SHERIFF. Judgment Debtor — Right to 
 take out Free Miner's Certificate for. 
 — ^A sheriff in possession of a free 
 miner's interest in a mineral claim 
 has no power to take out on behalf 
 of the judgment creditor a special 
 free miner's certificate under sec. 4 of 
 the Mineral Act Amendment Act of 
 1899, in the name of the owner of the 
 interest under seizure, neither has the 
 sheriff power to renew a certificate 
 before lapse. McNaught v. Van- 
 Norman 516 
 
 SILVER. Discovery of, in B. C. See 
 Preface. 
 
 SOLICITOR. Service of Notice of Ap- 
 peal on Agent. — Notice of appeal 
 may be served on agent of solicitor 
 for proposed defendants in an ad- 
 verse action. Kilbourne v. Mc- 
 Guigan 142 
 
 SPECIFIC PERFORMANCE. See 
 Ceown (2). 
 
894 
 
 SQUATTER-TITLE. 
 
 [VOL. 
 
 SQUATTER. See Ckown Gkant (2). 
 
 STAKE. See Post. 
 
 STATE. See Department of State. 
 
 STATEMENTS OF CLAIM AND DE- 
 PENOE. See Pleading. 
 
 STATUTE OP FRAUDS. See Fkatjds. 
 
 STATUTES, MINING, Table ,and Re- 
 print of. See Appendix of Stat- 
 utes. 
 
 STATUTORY CONDITIONS. See Con- 
 dition Pkecedent. 
 
 STATUTORY DUTY. STATUTORY 
 OBLIGATION'. See Negligence. 
 
 STRANGER. See Crown (1). 
 
 SUPREME COURT OP CANADA, List 
 of Mining Cases decided by. . . .504 
 
 SUPREME COURT OP BRITISH 
 COLUMBIA. Judge in Chamiers — 
 2'ime — Extension. — Order extending 
 time for bringing adverse action must 
 be made by Court and not by a Judge 
 in Chambers. Murphy v. Star Min- 
 ing Co 450 
 
 SURPLUSAGE OP LOCATION LINE. 
 See Location Line. 
 
 SURPLUSAGE OP WATER APPLI- 
 CATION. See Water Rights (4;. 
 
 SURRENDER. See Abandonment. 
 
 SURVEY of Mine. See Discovery (1), 
 (4)- 
 
 of Mineral Claim. See Adverse 
 Action (21). 
 
 " SWINGING " a Claim. See Location 
 (27). 
 
 T. 
 
 TABLE OP MINING STATUTES, 
 ETC. See Appendix of Statutes. 
 
 TAXATION OP MINING PROP- 
 ERTY. See Appendix A. 
 
 TENANT. See Crown, and Pree Min- 
 er's Interest. 
 
 TERMS — Glossary of Mining. See Pre- 
 face. 
 
 TIMBER-LEASE. Rights of timber les- 
 sees from Dominion Government. 
 See Water-rights (2) . 
 
 TIME. (1) Extending Time to tring 
 Adverse Action. See Adverse Ac- 
 tion (1), (2). (3). (5), (16), (20). 
 
 (2) Extending Time to bring 
 Appeal. See Appeal (5), (8). 
 
 (3) Extending Time for Assess- 
 ment Work. See Crown' (9). 
 
 TITLE. (1) Estoppel— Jus Tertii.— In 
 proving title one party cannot set 
 up as against another a right to a 
 third claim which he himself contends 
 he has destroyed. Woodbury v. 
 Hudnut 31 
 
 (2) Root of Title. — Location ac- 
 cording to the Act is the root of 
 title. Aldous v. Hall Mines Co. 
 213 
 
 (3) Pleading — I'itle to Coal 
 Seams. See Pleading (4), (5). 
 
 (4) Conflicting Certificates of 
 Work. — Where both sides have re- 
 corded certificates of work, title will 
 be determined according to prior loca- 
 tion and record. Peko V. Hall. .238 
 
 (5) Onus of Proof in Adverse 
 Action. — rin adverse actions which 
 are ejectment, not trespass actions, 
 plaintiff must succeed by strength 
 of his own title. Clark v. Hanby 
 281 
 
 (6) Failure of either Party to 
 Establish, and Judgment accordingly. 
 See Adverse Action (11). 
 
 (7) Manner in which Plaintiff 
 establishes in Adverse Action. See 
 Adverse Action (12), (15). 
 
 (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 certificates of 
 work recorded thereon. Pavier v. 
 Snow 384 
 
 (9) Onus of Proof is on adverse 
 claimant, and if he is junior locator 
 must establish his case in detail. 
 Caldwell v. Davys 387 
 
 (10) Observations upon sec. 11 of 
 Amendment of 1898 re Evidience of 
 Title. DuNLOP V. Haney 390 
 
 (11) Onus of Proof. — Where the 
 onus is on the defendant to prove 
 valid location, he cannot do so simply 
 by the production of a certificate of 
 work issued the day before the trial. 
 
 Neither party having estab- 
 lished his claim, judgment was so 
 entered without costs under sec. 11 
 of the Mineral Act, 1898. Rammel- 
 MEYER V. Curtis 401 
 
 (12) Conflicting Crown Grants 
 — Jus Tertii — Possession. See 
 Crown Grant (5) . 
 
 (13) Certificate of Work, Effect 
 of, on Title. See Work, Certifi- 
 cate of (13). 
 
I.] 
 
 TRANSFER-WATER CLAUSES CONSOLIDATION ACT. 
 
 895 
 
 TITLE — Continued. 
 
 (ISo) Afflrmative Evidence of. 
 — 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 claim and other documents. 
 Cook v. Denholm 447 
 
 (14) Affirmative Evidence of — 
 Certificate of Work. — Where the de- 
 fendant is the senior locator an ad- 
 mission by the plaintifE, the junior 
 locator, that the defendant has duly 
 recorded certificates of work, is of it- 
 self aflBrmative evidence of the de- 
 fendant's title under the Mineral Act, 
 1898. Cleaby v. Boscovmz . ..506 
 
 TRANSFER. (1) Transfer of Interest 
 of Principal hy Agent. See Agent 
 (1). 
 
 (2) Bar — Written Document. — 
 Semble : The bar provided by sec. 51 
 that " no transfer of any mineral 
 claim, etc., shall be enforceable unless 
 the same shall be in writing, etc.," is 
 confined to a plaintifE seeking to en- 
 force the transfer, and inapplicable 
 to a defendant. Sttjssi v. Bbown 
 195 
 
 (3) Writing. — Not enforceable 
 unless in writing. Alexander v. 
 Heath 333 
 
 (4) Joint Transferees. — If one 
 of two joint transferees of an un- 
 divided interest in a mineral claim 
 rejects the transfer, no title passes 
 to the other. Cook v. Denholm. 441 
 
 TRESPASS. (1) Unlawful Relocation 
 — " Jumping." — Attempt to locate a 
 claim on an existing valid location 
 is merely an unauthorized trespass — 
 a " jumping." Woodbuby v. Htjd- 
 NUT 31 
 
 (2) "Jumping" — The practice 
 of " jumping " claims should be dis- 
 couraged. Gbangee v. Potheeing- 
 
 HAM 71 
 
 Atkins v. Coy 88 
 
 ViCTQE V. BUTLEK 438 
 
 (3) Ejectment, Trespass, and 
 Adverse Actions considered. .126, 281 
 
 Damages for Trespass. See 
 Damages. 
 TRIAL. (1) By Jury. See Juby. 
 
 (2) Fresh Evidence. — After the 
 case of adverse claimant has been 
 closed, and while a motion for a non- 
 suit is being argued the case will not 
 be re-opened to enable the plaintifE 
 to give fresh evidence in support of 
 his location. Aldotjs v. Halt. 
 Mines 213 
 
 TRIAL— Continued. 
 
 (3) Undertaking — Trial. — Aiii 
 undertaking not to proceed further 
 until the trial of the action is ob- 
 served alUiough proceedings are- 
 taken before the formal order or de- 
 cree is drawn up, but after judgment 
 delivered. Dunlop v. IIaney . .344 
 
 (4) Adjournment — Inspection 
 — Coaia. — Defendants got an order 
 at the trial for the inspection of a 
 vein in the plaintifE's claim, which 
 they alleged was a continuation of a 
 vein, the apex of which was within 
 the limits of their own claim ; where- 
 upon plaintiffs alleging that such or- 
 der necessitated inspection by them 
 of other similar places on their prop- 
 erty with a view to furnish evidence 
 to rebut that which might be ad- 
 duced by reason of the plaintiffs'' 
 inspection, and an adjournment for 
 that purpose, obtained the adjourn- 
 ment, 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 
 to which the inspection related. Ikon 
 Mask Co. v. Centre Stab Co. . . 362; 
 
 (5) Objection should be pressed 
 by counsel at trial. Caldwell \-. 
 Davys ;J87 
 
 TRUSTEE. See Frauds, Statute of. 
 
 U. 
 
 UNDERTAKING. See Trial (3) ; Dis- 
 covery (4). 
 
 UNITED STATES DECISIONS. See 
 Ameeican Decisions. 
 
 UNOCCUPIED GROUND, Location on. 
 See Location. 
 
 UNOCCUPIED LANDS OP CROWN. 
 See Crown ; Location. 
 
 VEIN. See JIineral in Place. 
 
 VENDOR AND PURCHASER. See 
 Contract, Registration, Trans- 
 fee. 
 
 W. 
 
 AVAIVER. See Abandonment, Laches, 
 and JUEISDICTION. 
 
 WASTE LANDS OF CROWN. See 
 Ceown and Location. 
 
 WATER CLAUSES CONSOL. ACT. 
 See Watee-eights. 
 
896 
 
 WATER, WATER-RIGHTS— WORDS AND PHRASES. 
 
 [vol.. 
 
 WATER. WATE'R-RIGHTS. (1) 
 Orant ■ — HUl Claims — Conflicting 
 Rights — Gold Ordinance, 1867. — Un- 
 der the Gold Mining Ordinance, 1867, 
 unless the owner of a hill claim has 
 obtained a grant of water under Part 
 X. he has no right to intercept water 
 higher up a stream that flows through 
 or past his claim, and so interfei-e 
 *rith another owner of a lower hill 
 ••' claim in the exercise of the latter's 
 rights under a water grant under 
 said Part X. 
 
 Water so intercepted is not 
 water " naturally flowing through 
 or past his claim," within the mean- 
 ing of sec. 36 of said Ordinance. 
 
 A grant of such water-right need 
 not be in writing. IJbnny Lind Co. 
 V. Bradley-Nicholson Co 9 
 
 (2) Timber Lessees from Dom. 
 Government — Free Miner of B. C. 
 — Conflicting Rights — Can. Pac. Ry. 
 Belt. — Lessees of the Dominion Gov- 
 ernment in the Canadian Pacific 
 Railway Belt operating a saw-mill 
 Tjy water power are entitled as ripar- 
 ian proprietors to an injunction re- 
 straining Provincial free miners, 
 located up-stream after occupation 
 by said lessees, and having a min- 
 ing water record, from fouling such 
 stream, the natural source of the 
 water supply, so as to interfere with 
 lessee's user thereof. 
 
 A grant of water privileges un- 
 der the Placer Mining Act. 1891, 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 trustee 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. Columbia River Lum- 
 ber Co. V. YuiLL 64 
 
 (3) Water Clauses Consol. Act 
 — Appeal — Time — Noitice. — ^Anyone 
 affected by a decision appealed from 
 under sec. 36 of .the Water Clauses 
 
 • Consolidation Act. may be let in on 
 the hearing of the appeal even though 
 the month for giving notice of appeal 
 has expired. 
 
 Such person may make his ap- 
 plication on the hearing of appel- 
 lant's motion for directions. Re 
 Water Clauses Consol. Act. .421 
 
 (4) Water Clauses Consol. Act 
 — Notice — " /» the Office " — Con- 
 flicting and Concurrent Applications 
 — Evidence and Procedure. — Where 
 an application for a record of water 
 for ruining purposes is pending be- 
 fore a Gold Commissioner, an appli- 
 
 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 appli- 
 cants before the Gold Commissioner. 
 
 A water notice posted on a board 
 used for such notices, in a hall, 
 leading to the rooms occupied by the 
 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 con- 
 tested the Commissioner need not 
 take evidence, but where it is con- 
 tested he should have the evidence 
 taken in shorthand. Be Water 
 Clauses Consol. Act 422 
 
 (5) Joint Record — Ap'flication 
 — Notice — Duty of Gold Commis- 
 sioner. — 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 incident there- 
 to. Re Water Clauses .J3oNsol. 
 Act 460 
 
 (6) Water Record — Priority — 
 Pending and Conflicting Applications. 
 — Where two different oflBcials are 
 called upon to exercise their functions 
 in regard to applications for water 
 rights respecting the same water, the 
 official who is determining the later 
 application should stay his hand un- 
 til the final result of the prior ap- 
 plication before the other official is 
 known. Re Water Clauses Con- 
 sol. Act 465 
 
 WITNESSES. See Evidence. 
 
 WORDS AND PHRASES. "Adverse 
 Proceedings." — Dunlop v. Haney 
 369 
 
 "At the Instance;" "At the 
 request."— Anderson v. Gods al. 416 
 
 " Costly." — Nelson, Etc., Ry. 
 Co. V. Jerry 161 
 
 " Discovery." — Richards v. 
 Price 156 
 
 " Palling Material." — McKel- 
 VEY V. Le Roi Mining Co 477 
 
 " In on it." — Wells v. Petty 
 147 
 
WORK, OBliTIPICATB OF. 897 
 
 WORDS AND PIIUASES-CoMinuec). WORK. CERTIFICATE OF-Continued 
 
 " In the Office." — Re Watbb failure to give approximate compass 
 
 Clauses Con. Act 422 bearing is of a character calculated 
 
 <i T 1 .. A ^ ^ „ ''•° mislead, such defect cannot be 
 
 Lands."— Atty.-Gen. of B. 0. cured by recording certificate of work 
 
 V. Atty.-Gen. of Canada 52 which only cures little irre|ularTtTes 
 
 Bainbhidgb \ . Esq. and Nan. Ry. which do not go to the root of title 
 
 Co 98 Callahan v. Coplbn SiS" 
 
 n^.-"^fi^^^r H\ „^^ c M™^'^^' ^ (5) ^oof of Title after Certi- 
 
 Claims ;" Lawfully " See MiN- ;^scote of Work. See Title (8) 
 
 ERAL Claim (4) ; Ckown Geant ^ '' 
 
 (!)■ T ^^^ Curative Effect — Lapsed 
 
 "Mineral in Place."-MANLEY SeT*T.^rfn^"'?9ir ^T^''^''"^- 
 
 V. COLLOM 487 Snow " . [ .]\ . . . ^^"384 
 
 "Public Lands." See Crown ,^-, a-,. , 
 
 (3). (!) Abandonment — Mineral in 
 
 UT, , ■ T^, ■ „ ^- c J «ace.— Failure to record certificate 
 
 Rock in Place. --^ELS0N & of work is presumptive evidence of 
 
 Fort Sheppard Ry. Co. v. Jebry abandonment. 
 
 ,VrA ■ /„ c T^ Record of certificate of work is 
 
 Trial. See Dunlop v. an answer to objection that mineral 
 
 Haney 344 in place was not discovered. CUan- 
 
 " Valuable deposit of Mineral ;" ®^°^ ^- English Canadian Co. .394 
 
 " Costly." lb. (8) p^g^f gf Location by. See 
 
 "Water naturally flowing." — Trial (U). 
 
 Jenny Lind Co. v. Bbadley-Nichol- /^^ „ , ^ 
 
 son Co 9 (9) iJ'roMd.— Certificate of work 
 
 cannot be invoked in support of so- 
 
 WORK, CERTIFICATE OF. (1) Cura- ^flled location which has been fraud- 
 
 tive Effect of— Irregularity. — See ulently changed. Wise v. Chbisto- 
 
 Location (9), (13), (15), (161, ™™ 413 
 
 (17), (21), (23), (24), (10) Re-locationr-Lapsed Loca. 
 
 (2) TtHe.— Where both parties twn^Reverston— Irregularity— Cur- 
 have recorded certificates of work, rZ.jB^Uat C'^'"*»^''«*« on— See 
 the title will be determined accord- Location (28). Gelinas v. Clark 
 
 ing to prior location and record. 428 
 
 Fero v. Hall 238 (n) irregularity — Assessment 
 
 (3) Order-in-CouncU Esitending ^Prn!^i~^^^tL°J Ofcial-Gurative 
 Time for Assessment Wori^Irregl h^''^'V°tZTiTfjr\^ ^""^^ "'°^l" 
 larity— Delay.— An Order-in-Coun- t^nr^ n^ft^fn/ rt» Tn ^'^ assessment 
 cil, under sec. 161 of the Mineral X\t ?W f« „^f i™.""^,^"? °K^'S 
 Act 1896 extending the time for the ■ ?u* ^® an irregularity which 
 doing and r^Sg of assessment '^^^ ^ ''"'"^"'^ ^ certificate of 
 work on a mineral claim, is intra 
 
 vires. The Attorney-General is the only 
 
 A certificate of work recorded Party who could attack such certi- 
 
 pursuant to permission granted by a ncate. 
 
 Gold Commissioner acting under such if a free miner is misled by the 
 
 an Order-in-Council, is a good certi- statement of the Gold Commissioner, 
 
 hcate within sec. 28 of the said Act. and consequently neglects to give the 
 
 The word irregularity, in sec. notice required by sec. 24, and makes 
 
 28, extends to the certificate of work an incorrect affidavit he is protect- 
 
 itself. ed by sec. 53. 
 
 Delay in recording such a certi- rpi,. „ff.„(. „i „„„ =-0 „c 4.1, ir- 
 
 ?stu^r^^rs'ailt?c^ir""^ ^'^^'=' -' Srf IH^' l!o^^^ 
 
 is curea Dy saia sec. zs. _ extension of time within which the 
 
 Meaning of irregularity " con- certificate can be- obtained. Lawr v. 
 
 sidered. Peters v. Sampson. . . .247 Parker 45U 
 
 M.M.C. 57 
 
898 
 
 WHIT OF EXECUTION— YUKON. 
 
 WORK, CERTIFICATE OF.— Continued 
 
 (12; Form of — Irregularity. — 
 A certificate of work is not irregular 
 because it contains more than tlie Act 
 requires, nor because it does not 
 show on its face a statutory exten- 
 sion of time. Payne Mining Co. v. 
 Wilson 485 
 
 (13) Irregularity — Impeach- 
 ment of hy Crown for Fraud. — Sec- 
 tion 2,8 does not include within its 
 purview any area not duly recorded; 
 and the irregularities cured by that 
 section aiT only such as occur in the 
 interval between location and record, 
 and the recording of the last certi- 
 ficate of work. 
 
 Performance of the annual 
 assessment work (or the equivalent 
 money payment) is the annual rental 
 payable to the Crown, and therefore 
 in the case of a valid' location when- 
 ever a dispute arises in which pay- 
 ment of rent is concerned, the produc- 
 tion 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. 
 Manley v. Collom 487 
 
 (14) Impeachment of, hy Grown 
 for Fraud. — Crown alone can im- 
 peach certificate of work for fraud ; 
 
 WORK, CERTIFICATE OF.— Continued 
 as between subjects it is , conclusive 
 evidence of performance of assess- 
 ment work. Cleary v. Boscowitz 
 506 
 
 (15) Effect of, as Affirmative 
 Evidence of Title. — See Title (14). 
 
 WRIT OF EXECUTION. See Shekiff. 
 
 WRIT OF SUMMONS. (1) Service 
 within year. — If writ is not served 
 within a year the adverse action is 
 out of Court. Tboitp v. Kilbouene 
 219 
 
 (2) Renewal. — Must be reason- 
 able explanation of delay in serving, 
 otherwise an application to renew 
 made two days before expiry will be 
 refused. Haney v. Dunlop 311 
 
 ^^'RITING, TRANSFER IN. — See 
 Transfer. 
 
 YUKON. Crown Grants in. See Crown 
 Grant (5). 
 
 Close Season in. See Assess- 
 ment Work (3;.