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Colonial Cases

Borealis v. Watson [1865]

mining law - boundary disputes

Borealis Mining Co. v. Watson Co.

Borealis Mining Co. v. Saw Mill Co.

Supreme Court

Begbie C.J., 20-21 June 1865

Source: The Cariboo Sentinel, 24 June 1865, p 1[1]

APPEALS.

(Before the Hon. Mr. Justice Begbie.)

Tuesday, 20th June, 1865.

   His lordship proceeded to hear the Appeals from the Gold Commissioner's Court.  The first case called on was:

   The Borealis Mining Co'y vs. the Watson Co'y. - Mr. Walker, who appeared along with Mr. Walkem for the Borealis company, stated the case.  He said that he applied on behalf of the appellants to have the decision of Mr. Cox, the Commissioner, set aside, which gave to the respondents a portion of the ground belonging to the Borealis company.  The nature of the case he would lay before the Court in a few words.  The Borealis company originally recorded in 1863 and subsequently in 1864 a bill claim at the back of the Aurora company's ground.  In order to have the boundaries of the claim distinctly laid down, the Borealis company brought an action against the Aurora company in June, 1864, in the Supreme Court, to compel the latter to mark out their lines.  The result of that action was that the Aurora company's claim was marked out, and the base line of the Aurora was directed by his lordship to be taken as the base line of the Borealis, the latter to get all the ground formerly held by the Aurora.  There was no dispute after this about the boundaries.

   The Borealis then went to work in their tunnel, and continued to legally represent their ground up to the time the claims were laid over; in fact held undisputed possession of it.  In the spring of the present year the Borealis company heard that the Watson company had been working a considerable portion of their ground.  The Watson company had previously looked about for a title to the ground, for he (Mr. W.) found that on the 20th of January last Allan, Trelevan, McIntire, Murdock, and Drake, members of the Watson company, had jumped 450 feet,  or 4 1-2 claims, of the ground held by the Borealis Co'y, and were holding it under the title of the Ellers Lea company.  On the 21st of January, the day after they had recorded it, the same parties sold their interest to James Symmington, in trust for the Watson company.  At a later period, on the 27th April, Simpson, Murdock, Trelevan, and MacIntire jumped 400 feet more of the Borealis ground and had it recorded; it was to consist of 4 hill claims, commencing at back of Watson company, and to be known as the Dauntless company. 

   These same parties, on the 28th April, transferred by bill of sale their interest to the Watson company.  The Borealis company claim to have been in possession of this ground all last year (record of June, 1864, put in.)  When the boundary of the Aurora company's ground was defined by his lordship, and the order given, the Borealis company were to have as their base line that of the Aurora, and to run to the summit of the hill.  With respect to any difficulty about stakes, the learned counsel said that the Legislature in its wisdom had made it unnecessary for hill claims to stake off their ground.

   Mr. Walker said in conclusion he would show that the Borealis company were in possession in the fall of 1864, and that in dead of winter the Watson company had worked the ground, after which they had recorded it first in January and a second time in April.  He urged his lordship to give the Ellers Lea and Dauntless gentlemen their deserts by reversing the decision of the Commissioner.

   Mr. P. E. Devine was then examined by Mr. Walker.- He said he was a member of the Borealis company when the ground was taken up in October, 1863; remembered action between  Borealis and Aurora in June last, the lines of both companies were then defined (Mr. Devine pointed out the boundary stakes on a map which was produced); had no notice until he came up this spring that any one had claimed the Borealis ground; remembered an action between the Watson and Aurora companies in 1863; the former claimed the runnel ground, but the Aurora won the suit;  Mr. Dewdney after that marked out the Watson claim, which was 100 feet into the hill; the claim was recorded after this suit; the Borealis company expended last season over $2000 to work their ground according to law; the claim was represented up to the  time all claims were laid over; on coming up this spring found the Watson company had jumped the Borealis ground, and saw their stakes marking it out; the Watson company were allowed by the court in 1863 100 feet running into the hill.

   Cross-examined by Mr. Robertson, who appeared for the respondents. - In reply witness said he pre-empted for the Borealis in 1863; claimed all the ground not recorded for the Aurora; the Borealis claim consisted if 1400 feet.

   Judge - Mr. Robertson, have you ever seen a dump box?

   Mr. Robertson - Yes, my lord.

   Judge - Then, looking at the map, I can only liken the Aurora company to a dump box, with the Borealis in the place of the riffles ready to catch everything that came in its way. [Laughter in court.]                                   

   Cross-examination resumed. - Did not know how the Aurora would be staked off and took the back line of Aurora as the base line of the Borealis.

   Judge - But your "base" line was not your "back" line.

   Cross-examination continued - The Aurora and Borealis companies were jointly interested; Edwards was foreman of both, and he (witness) was secretary of both; the Aurora company was the first hill claim staked off, which took place in August, 1864.

   Re-examined - Borealis was stake d off in August, 1864.

   Judge - Mr. Devine, abandon your moral principle for the moment and put yourself in the place of a "jumper," would you then consider the definition of the claim sufficient?

   Witness - When the Aurora lines were laid down by the order of the court the posts of that claim were taken as the posts of the Borealis, and the order of the court defining the boundary posted up within 140 feet of the Watson co'y, and also on the Saw Mill company's ground on the extreme end.

   Mr. Menard Hilton examined by Mr. Walker - The Aurora ground was originally staked off by witness; in spring of 1864 he had also staked off the ground of Borealis company; never heard of a claim to this ground till this spring, when the Watson company had jumped it.

   Cross-examined by Mr. Robertson - Was a member of Aurora and Borealis companies; the Borealis took up the ground not staked off by the Aurora; replaced the stakes of Borealis in summer of 1864; it was agreed by Watson (formerly of the Watson company_) and witness that the boundary line of the Watson company should be 100 feet into the hill, and that line was staked off by Watson, Dewdney the surveyor, and witness; the Aurora was the first hill claim taken up here, and it was staked out by witness when the snow was on the ground in winter; thought himself the record was bad, but he had nothing to do with it.

   ----McDonald examined - Was present when Borealis ground was staked off in fall of 1863; witness posted the order of the Supreme Court stating that the Borealis company claimed all the ground formerly held by the Aurora.

   Cross-examined by Mr. Robertson - Held an interest in the Borealis company which he subsequently transferred to Jack Edwards.

   Judge - Mr. Walker, you have not established your case.

   Mr. Walker, in a lengthened address, pointed out that under his lordship's order laying down the base line of the company, and the fact proved in evidence that his clients were in possession up to the time the claims were laid over, and that a considerable amount had been expended last year on the ground, they were entitled to judgment in their favor.  He said if his lordship decided against them that it would be the first time in his memory a claim would be lost on a mere informality in the wording of a record; and if the Watson party succeeded in this case it would be an opening by which the "jumping' days of 1863 would return, and every title to claims on the creek would become unsettled and insecure.

   Mr. Walkem followed, and in a forcible speech denounced the parties who had "jumped" the ground of the Borealis company.  The learned gentleman said they might as well put their hands into the pockets of his clients as to take from them the ground upon which they had expended their money.  He urged upon his lordship's attention that the Borealis title was perfectly good on the evidence submitted; that if there was any ambiguity in the wording of the record, the law as it formerly stood was misty and unsatisfactory also.  Mr. Walkem dwelt with marked emphasis on the discredit to be attached to the proceedings of the Watson company which had dared to "jump": other men's property.  He trusted the Court would stop such proceedings at the outset and not allow the days of 1863 to return again.

   The Judge then proceeded to deliver judgment.  His lordship was reluctantly obliged to affirm the decree.  The appellants had not established their case.  They did not prove that their ground was properly recorded, or staked, or occupied, when the Ellers Lea and Dauntless companies jumped it.  By the decree of the Supreme Court, upon which Mr. Walker relied, six weeks were allowed to have the ground staked off.  That had not been done, and if the plain letter of the law was set at naught and the Borealis company chose to neglect their own business, and place their valuable property in jeopardy, the fault was not with the Court.  It was a strange and unaccountable feature in connection with the miners of this creek that they evinced a desire on every occasion to evade the plainest dictates of the law, and in order to do so they often came to the Commissioner to extract an opinion out of him as to the course they should follow rather than comply with the law as laid down for them.  This was a very reprehensible practice and led to great evils, just such a hardship as the Borealis company now suffered in being deprived of their valuable property, simply because they had not taken the precaution to stake out their ground as required.  There was no question that if this company had stake off the ground within the six weeks allowed for that purpose it would be his (the Judge's) duty to reverse the Commissioner's order and re-establish them in legal possession, but they had grossly neglected their own interests and must suffer for such neglect.

   His lordship concluded a lucid judgment, by stating that he was obliged BY LAW to affirm the decree of the Court below as the appellants had not established one of three things, viz: That they were in possession of the ground when the Watson co'y "jumped" it; that it had been staked off as directed by order of the Court; or that that situation of the ground was properly defined in the record.

   Mr. Robertson made an application for costs, and was forcing several arguments on his lordship in support of his views, when

   The Court interrupted the learned gentleman in a good humored manner by saying, "Mr. Robertson, the more you say the less you have to say."

   Mr. Robertson - Well, my lord, I know it is entirely in your discretion to allow costs or not.

   The Court - The position which your clients occupy, Mr. Robertson, reminds me of a picture I once saw in a facetious almanac of a burglar who had been robbing a house, and being surprised by the inmates ran down stairs; in his hasty flight he tumbled over the coal scuttle; gathering himself up he leaned against the wall, the very picture of injured innocence, and exclaim med, "Such neglect!"

   The force of the anecdote was keenly felt by the learned advocate, who saw that further pleading for costs in the case was useless.

   The Court - I cannot give costs in this case.

Wednesday, 21st June.

The Borealis company vs. Saw Mill company.

This was an appeal by the Saw Mill company, Conklins Gulch, from a judgment of Mr. O'Reilly's last season.  They sought to obtain possession of a piece of ground lying between the Aurora company and the Saw Mill company, but it is being claimed as part of the Borealis ground and held under the order of Court referred to in the proceeding yesterday, it was awarded under the decision of the Supreme Court to the Borealis company by Mr. O'Reilly.

   Mr. Walker, who appeared for the Borealis company, said that after his lordship's decision in the previous case, he had no alternative but to retire from defending the rights of the Borealis company in a court of law.

   The Court dwelt at great length on the neglect of owners of claims in not complying with the law, and reversed the decree in favor of the Saw Mill company.

   Mr. Robertson made an application for costs, but the Judge refused to grant it.

   Mr. Robertson made an application to the Judge for time to stake out the ground of the borealis company.

   The Court granted one week for the purpose.

Note

[1] These cases were transcribed by Peter Bullock.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School