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Colonial Cases

Jones v. Lewis, 1873

[mining law]


Jones v. Lewis

Warden's Court, Southport
Connor, 17 December 1873
Source: Northern Territory Times and Gazette, 26 December 1873, p 3





(Before Mr. Connor, Chief Warden.)


Mr. Smith, appeared for the plaintiff, and Mr. Rudall for defendant.

Action to recover two mining claims on the Eleanor reef, alleged to have been unlawfully taken possession of by Lewis and others, and also to recover £50 damages on account of the injury sustained by the plaintiff, George Jones, and his partner.

Charles Gozzler, a partner or the plaintiff, said on 31st December, 1872, he took up ground, with his mate, including the claims now in dispute-Nos. 4 and 5. There were no posts at each comer when they took up the ground. He and his partner put in posts, according to the by-laws, and put flags with their names on them. They also cut trenches at every corner. On 20th January Mr. Warden Melville carne on the ground and made enquiry, after which ho declined to register the claims for plaintiff.

By Mr. Rudall-He said Mr. Lewis had applied for a lease: he did not say that Mr. Lewis, had pegged out the ground, but that he had paid a deposit. Several persons were present at that time, including Mr. Lewis. Had never received notice of Mr. Melville coming there. Mr. Melville examined the persons present, and then said that he could not allow plaintiff to have the ground. Nothing was said about claims to the south of the Kapunda.

By Mr Smith-The Warden did not administer an oath to any one whom he examined.

Joshua Jones-Was a trooper in December, 1872, and remembered receiving applications from G. Jones for the registration of two quartz claims. Wrote out the forms and deposited them with the Warden, who asked if there was not some question about the claims. Replied that there was, and explained the matter. Never received the registration certificate from the Warden. It was about the 3rd January witness first heard of the dispute.

Henry Williams, publican, was present when the Warden cania on the claims; was at that time in the employ of Mr. Lewis. Was told by Mr. Lewis to go then and put the pegs in properly on the two claims. Found that the tops of the trees had been cut off and squared, and a piece of tin had been nailed up. Witness and his mate put  in pegs for Mr. Lewis close by those of Jones and Gozzler. No proper trenches had been made by Mr. Lewis.

Mr. Rudall submitted that there was no case to go on with, as the matter had bean decided by a previous Warden.

The Court could not recognise the proceedings of the previous Warden unless proper records were produced.

Mr. Lewis, the defendant, said that on the 30th December he put in application for nine ordinary quartz claims at Pine Creek. Saw the Warden on the 6th January at his camp, at Yam Creek, and asked for the registration certificates. The Warden said he was busy then; but on the 8th January he gave him the certificates. On the 11th defendant applied for a lease of these claims, and paid £25 for survey, and £10 for first year's rental (receipts produced.)

The Court could not take evidence as to any lease application since November, 1872.

The defendant continued-had paid rent for the claims now in dispute, and had caused them to he properly marked out. 

Mr Melville mentioned that plaintiff had objected to claims, and said he would go up and make enquiry. He did not say what claims; and afterwards it appeared that the objection was to claims "south"--not west. The enquiry was held by Warden Melville in consequence of a complaint or objection made by the present plaintiff. He did not give a decision, as the ground was leased ground; but said he would forward the particulars to the Commissioner of Crown Lands. The Telegraph Company, whom defendant represented, was in pos- session at that time. Plaintiffs were never camped on the claims.

By Mr. Smith-Never told Williams and mate to peg the ground "properly," but to see that the pegs were in order.

The Court--after hearing counsel-would take a week before giving a decision, and would, in the meantime, obtain all information as to the notes taken by Warden Melville, and as to the granting of the registration certificate.

Judgment to be given at Palmerston on the following Wednesday.

[On Wednesday the Warden gave his decision at Palmerston-judgment for the plaintiff, with damages £50, and costs £19 19s.]


Source: Northern Territory Times and Gazette, 2 January 1874, p 2



Wednesday, December 17.

(Before Mr. Connor, Chief Warden.)

[Subjoined is the judgment of Mr. Connor, Chief Warden, in the case of Jones and Gozzler v. Lewis and Others.]

"In this case I grant a verdict for the plaintiffs, with £50 damages, and £19 19s. costs; and as it is the first case decided in the Northern Territory, I make the following remarks in connection with it.

"The claim now made by Jones and Gozzler was originally made in an objection to a lease being granted to Lewis, on the grounds that he had not complied with the requirements of the Act under which he supposed he was taking up the claims. I say supposed, because as a fact on the day when he pegged or professed to peg out the claims, the Act had been repealed and a new one substituted, in which Act-that is the one now existing-there is no power to take up land on lease, and no power in the Government to grant leases. The then Warden, Mr. Melville, after, in an unjudicial manner, hearing the case, came to the conclusion (which is in writing) that the claim had not been properly pegged out, and evidently thought that the plaintiffs were in justice entitled to the claim, but hesitated at deciding the point, and referred the matter to the Government Resident, Capt. Douglas, such reference being at that date illegal and at variance with the Act, which grants no power to any one save the Warden, or appeal from him to Local Court, in disputes connected with claims. I regret to find that the defendant, in his examination by me, stated that the decision was given in his favor by the Warden, the exact contrary being the case. Had the defendant in the first instance complied with the Act of 1871, I should have felt that great consideration was necessary prior to displacing him from possession, having regard to the fact that my Court is a Court of equity as well as law; but as it has been distinctly proved that he did not comply with the clauses requiring proper pegging and posting notice, or lease application, and that he knew he had not done so, from the fact of his sending men to re-peg the day the Warden was proceeding to the ground, several days after the plaintiffs had pegged correctly, I can only arrive at the conclusion that his taking up the claim in such a careless-wilfully careless-manner, was one of those acts so common, and which has brought much of the gold mining into disrepute, namely, running over a country and taking any kind of possession, so as to prevent others.

"Under all these circumstances, I find that the defendant is in illegal possession of the ground, and has been since December, 1872; and that the claims in question are properly the property of the plaintiffs."

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