from: Bendigo Advertiser, Tuesday 09 June, 1891, page 4
Monday, 8th June.
Before Mr. Warden Patterson, P.M.
Thomas Jones applied for a lease of ground at Sugarloaf Hill, Axedale. William Fozard objected to the granting of the application. Mr. Macoboy appeared for the applicant and Mr. Hyett for the objector. Mr. Macoboy understood that the only difficulty was that the objector wanted to have a quartz claim held under miner’s right excised.
Thomas Jones, the applicant, deposed, in reply to the warden, that he had complied with all the requirements of the Act in connection with the application.
To Mr. Hyett: Had erected the posts, which were about four feet high round and painted white. There was a metal plate affixed to them giving his name and showing that a lease had been applied for. At least the plates were on them; he did not know whether they were on now or not, as he had not seen them since the date of the survey. He had inserted the usual advertisement in the newspapers and had posted a notice at the Warden’s Court and at the Axedale station.
There were no person in occupation of the ground, on the day that he pegged out the ground. When he went there subsequently, with the surveyors, he saw some people, whose names he did not know, working on the ground. He did not serve them with notice of his intention to apply for the lease. He had deposited the necessary fees with the warden’s clerk. He had seen pegs without plates on them when he went there with the surveyor, and before that, about the beginning of March.
He pegged out on the 5th March. He saw some of the pegs there then. The country is very rocky and scrubby. The place is about 13 miles from the city. In reply to Mr. Macoboy, the witness stated that he was with Mr. Walker when he went out to survey the ground. The same pegs were there then that he had seen previously. Fozard was there then, and pointed, out to Mr. Walker that the pegs were his.
Witness told Mr. Walker in the presence of Fozard that the pegs were those that were put in by Coyle. Fozard said that he. had taken the pegs out and put them in again. So far as witness could tell the trenches had not been cut afresh, and the pegs were unpainted. Mr. Macoboy said he now proposed to close the applicant’s case, and let the objector prove his case, then he would call his rebutting case.
The Warden pointed out that the newspaper notice did not agree with the notice posted at the Warden’s Court. The applicant stated that there were others interested in the ground, although he was the only one applying for the ground. Mr. Macoboy submitted that the applicant was the only person who had complied with the regulations, and therefore there was no reason why he should not get the lease.
The Warden remarked that the question arose whether the whole of the names should appear in the application or not. In reply to Mr Hyett, the witness stated that Fozaid did not say anything about taking Coyle’s pegs out, and putting:them in again. Mr Hyett appealed to the clerk’ who was taking the depositions, but there was not anything written down in regard to the matter. This closed the case for the applicant.
Mr Hyett submitted that the application must fail, as the applicant had stated there were other people applying with him for the ground, and at least the names of two of them should have appeared on the plates, that the.applicant should have seen that the pegs were kept, stating, that he had not given notice to the persons who were in occupation when he went out with the surveyor.
The warden was against Mr. Hyett on the two last mentioned objections, and Mr. Hyett said he would rely on his first objection. The Warden said he was simply sitting there to take the evidence, and forward to the Minister. William Fozard, a farmer who had resided in the neighborhood of the Sugarloaf ranges for over 20 years, deposed that he pegged out a portion of the land,100 yards along the line and 150 yards across, as a quartz claim on the.1lth May.
When he pegged out the ground he saw same former pegs there. They belonged to Peter Coyle. He used the same pegs for his pegging.out. When he went on to the ground two of the pegs were nearly lying on the ground. He put them up straight, and drove them in again. The third peg was lying on the ground, and he put it up straight and drove it into the ground again. The fourth peg was standing and he knocked it further into the ground with a’ pick. The pegs were about 3 feet high and about 4 inches thick. The trenches, which were several inches deep and 3 feet long, were cleaned out by him.
On the same day he told Middleton that he had pegged out the ground. The country is very scrubby in that locality. He was not there on the following day when, it is alleged,the other side put in their pegs. He had two men employed on the ground ever since.
He registered the claim on the 7th May. He saw Jones and the surveyor out there, and told Jones that the pegs were his, and Jones replied that they were Coyles. In cross-examination by Mr.Macoboy, the witness said that he would not have registered the claim at all, if it had not been for the other people going out on the 5th and pegging out some of the land.
Mr.Macoboy, you say you have been living in the locality over twenty years. Why did you not take it up before the 4th of ‘May? .
.Witness: The prospector, Middleton had got such a good prospect.
Mr. Macoboy: But, that was a month before.
Witness: I was there almost every day.
Macoboy : You say you pegged out on Monday, the other side pegged out on Tuesday. You heard of this on Wednesday, and registered on Thursday?
Withess : That is so.
Mr. Macoboy: Surely if you cleaned out the trenches on Monday and drove the pegs into this rocky ground there would be some traces there on the following day.
Witness: I cleaned out the trenches and drove in the pegs firmly. James Middleton, a prospector, deposed that had a claim at the Sugarloaf Ranges. He knew the land in dispute, which joined his on the north side. The land applied for by Jones, 10 acres, was immediately north of his, and Fozard’s quartz claim was included in the 10 acre block. He saw Jones putting in his pegs on the south side. He did not know the date, but Fozard had spoken to him about the matter previously.
Mr Macoboy objected to this evidence, Mr Hyett submitted that as the warden was not sitting judicially : the evidence was admissable. The Warden replied that although not sitting judicially, there must be some limit placed on the evidence to be taken.
Peter Coyle, blacksmith, deposed that he knew the quartz claim of Fozard’s. It was first pegged out by witness on the 9th of April. At that time he had no miner’s right, and consequently he did not proceed further in the matter. Fozard then took up the matter.
Witness had an interest in the claim. In cross examination by Mr, Macoboy, witness could not give any reason why nothing should have been done from the time of his pegging out until Fozard pegged out several weeks after. This closed the case for the objector.
Mr. Macoboy said that even supposing Fozard’s statement to be true, he contended he had no claim to the ground until he registered it on the 7th. Jones had pegged out on the 5th. The Warden pointed out that seven days were allowed for registration.
Mr. Macoboy: But according.to the Act he is not legally in possession until he does register. Mr. Hyett submitted that as the locality was over ten miles from the warden’s office there was no necessity to register at all. The Warden said there was no doubt Fozard was protected for seven:days.after pegging out so as to enable, him to register if he chose.
Mr. Macoboy said he would recall his client to give rebutting evidence.
T. Jones,recalled, stated that when he pegged out the ground on. the 5th May, he saw some pegs there: They were then in the same state as they were when he saw them in March. Tho Warden remarked that.after looking over the plan, he was of opinion that it would be much better for the parties to go in together, as the ground would then make a very good lease.
Mr. Macoboy: That’s just what we want. (Laughter). Tho Warden: Oh yes, but would it not be better for the two to amalgamate and make a good lease. Mr. Hyett (after consulting with his client), said that he would rather have the quartz claim he had applied for. The applicant (continuing his re-examination), said that when he pegged out the land on the 5th, the pegs were apparently in the same state as when he saw them in March after they were put in by Coyle.
In cross examination by Mr. Hyott, Jones stated that he had another quartz claim in the locality. He had dug trenches on it, looking for the reef, He had done about a fortnight’s work there. William Miller, mining speculator, deposed that he knew the ground applied for by Jones. He and Robert Aitken were with Jones, when he pegged out the ground. Witness had a share in it.
He saw Coyle’s two western pegs. The trenches looked as if they had been cut about two or three weeks before. They did not bear traces of recent interference. One of the pegs was leaning over. From the general appearance of things he was of opinion that neither the pegs, nor the trenches had been touched within two or three weeks. He asked who the old pegs belonged to, and was told they had been put in by Coyle some .weeks before.
They made inquiries from persons in the locality if anybody had been on the ground recently, and were told that they had not been there. Mr. Hyett objected to the evidence as being inadmissible. In reply to Mr. Macoboy the witness said that in consequence of what they were told they pegged out the ground.
J. Middleton was called by Mr. Macoboy and stated that from the time Coyle put in his pegs until Jones applied for the Iease, Fozard was in the locality frequently. The Warden said that he would recommend that Jones’ application be granted, subject to certain excisions. Fozard, who, although uncorroborated, was evidently a witness of truth, had sworn to having pegged out and registered his claim, and therefore that portion of the ground would be excised. He still thought it would be better for the parties to join and make one good lease.
Then there was an overlap on the Mizentop lease that also would have to be excised. Mr. Hyett said that £5 had been deposited by both parties to cover the costs of the case. He would apply for costs. The Warden ordered the costs of the applicant’s case to be paid out of the £5 lodged by the objector.
The court then adjourned.
*Please note: Punctuation and paragraphs have been added to the above transcription for ease and speed of reading
“WARDEN’S COURT.” Bendigo Advertiser (Vic. : 1855 – 1918) 9 June 1891: 4. Web. 16 Aug 2020 <http://nla.gov.au/nla.news-article88963004>.
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