S.C. 1902. HAWKINS SLATE RIVER SLUICING The works tiff and defendant, and for breach of contract. Under "The Mining Act, 1891," section 265, it was deCOMPANY. Clared that " clared that Every action, suit, or other proceeding whatso"ever relating to any matter arising in any district, and "which is within the jurisdiction of a Warden's Court or "a District Court under this Act, shall be brought, com"menced, and proceeded with in such Warden's Court or "District Court, as the case may be, and not in the Supreme "Court." The matters in the jurisdiction of the Warden's Court were declared in section 261 (see subsection 8), and included " generally, concerning debts, contracts, torts, ques"tions, disputes of any kind relating to mining," &c. Under this statute several cases were decided. McConnochie v. Ewing(1) decided that the Supreme Court's jurisdiction was ousted if the Warden's Court had jurisdiction, and this decision was expressly approved of by the Court of Appeal in Develin v. The Waihi-Silverton Gold-mining Company (2). 66 'The Mining Act, 1898," repealed the 1891 statute, and has enacted provisions relating to Warden's Courts different in words from those of the 1891 statute. Section 294 provides, Subject to the provisions herein before contained for "appeal to the Supreme Court, or for special cases reserved "for the opinion of that Court, and subject also to the right "of any person to proceed in the Supreme Court when the cause of action affects title to land held otherwise than under "this Act, all proceedings in any matter within the jurisdic"tion of the Warden's Court or the District Court under this "Act shall be brought in such Court alone." What matters are within the jurisdiction of the Warden's Court are dealt with by section 254. They include all actions, suits, and other proceedings concerning "all contracts, torts, questions, or disputes of any kind relating to mining privileges or operations." 66 66 The first question is, does this action relate to a mining operation? The phrase "mining operation " is defined (section 5) as including the construction of dams. This action seems to me to relate to a contract for the construction of a dam, and is therefore covered by the words in section 254. The next question is, is the jurisdiction of the Supreme Court excluded? Unless there can be a distinction made between the terms of the 1891 Act and those of the 1898 Act, the decision of the Appeal Court before referred to is binding on me. His Honour Mr. Justice Williams has held that under the 1898 Act the jurisdiction of the Supreme Court is ousted in cases over which the Warden's Court has jurisdiction: See In re Spain's Application(1). He says, "By the combined "operation of sections 253, 254, and 294 of The Mining Act, "1898,' jurisdiction is given to the Warden's Court and to the Warden in respect of the various matters set out in sec"tion 254 which would, apart from the statute, have been “within the jurisdiction of the Supreme Court, and the jurisdiction of the Supreme Court is expressly taken away in respect of such specified matters." The words at the end of section 294, "shall be brought in such Court alone," would not, I should have thought, have been sufficient to impliedly repeal, so far as mining disputes are concerned, section 16 of "The Supreme Court Act, 1882." But the section expressly preserved the jurisdiction of the Supreme Court in cases where title to land is in question held otherwise than under "The Mining Act, 1898." This seems to me to show that the jurisdiction is excluded, and that the provisions of the 1898 Act are not distinguishable in this respect from those in the 1891 Act, and consequently this Court has no jurisdiction over this suit. 66 66 Section 14 of "The Mining Act Amendment Act, 1900," gives this Court power to remove an action wrongly commenced into the Warden's Court, and I think that the power in this case should be exercised. As to costs, the practice under the old procedure was in cases of error brought not to give costs where the point could have been raised by demurrer: See Cornish v. Forman(2); The National Bank of New Zealand v. Ward(3). I am of opinion that, as the want of jurisdiction was not raised till the trial had been begun, no costs should be granted. Order of removal to Warden's Court at Collingwood. No costs. Gully, on the question of costs: Objection was taken at the earliest possible moment of the hearing. (1) 2 Gaz. L.R. 264; S.C. sub. nom. Hesson v. Spain, 18 N.Z. L.R. 679 (2) Mac. (N.Z.) 376. (3) N.Z. L.R. 1 C.A. 51. S.C. 1902. HAWKINS t. SLATE RIVER [STOUT, C.J.-I think it ought to have been pleaded. The question of law should have been raised for argument before the trial.] The defendant should haye the costs of this motion. That would have been necessary in any case. The costs of the adjournment of this motion were to be the plaintiff's costs in any event. STOUT, C.J.-I think the one should be set off against the other. Order for removal into Warden's Court. Solicitors for the plaintiff : Pitt & Moore (Nelson). Solicitors for the defendant company: Bell, Gully, Bell, & Myers (Wellington). S.C. IN BANCO. KILMINSTER v. MONAGHAN. WELLINGTON. Magistrates' Courts-Jurisdiction-Title to Land-Whether bona fide in Dispute—“ Incidentally in Question-Appeal or Prohibition. 1902. March 13, 15. STOUT, C.J. The appellants and the respondent were neighbouring farmers, with a fence between their farms. The fence fell into disrepair, and both parties assumed that half of it had to be repaired by each. The appellants offered to repair the respondent's half, but the respondent repaired his own half, and put wire on the fence. The appellants asserted that he had used wire belonging to them, and they removed it. The respondent sued them in a Magistrate's Court for trespass on his property and for pulling down and destroying his fence. At the hearing the appellants were unable to substantiate their claim to the ownership of the wire, and they set up that the fence was in their land, and not a boundary-fence ; that the action was one in which title to land was in dispute; and that the Magistrate had therefore no jurisdiction. The fence had been in the same position for forty years, and the predecessors in title of both parties, and the parties themselves, had always treated it as being on the true boundary. No evidence was adduced in support of the claim set up by the appellants, beyond their own statements that the fence was on their land. The Magistrate held that the title to the land was not bonâ fide in dispute, and gave judgment for the respondent. Held, on appeal, 1. That the title to the land was not bona fide in dispute. 2. That in any case the question arose only incidentally, within the meaning of section 34 of "The Magistrates' Courts Act, 1893," and that the Magistrate had therefore jurisdiction. Quare, Whether an appeal lay at all on the question of jurisdiction, and whether the appellants' remedy, if any, ought not to have been prohibition. THIS HIS was an appeal from Dr. McArthur, S.M., sitting at Wellington. The facts of the case sufficiently appear from the headnote and judgment. Wilford, for the appellants : S.C. บ. MONAGHAN. The title to the land was in question: Annual County Court 1902. Practice(1); Sewell v. Jones(2). The Court will not assume KILMINSTER that the claim was not bonâ fide raised. The jurisdiction is ousted if there is a real dispute, although the evidence in support of the claim may be quite insufficient. Lilley v. Harvey(3) is the class of case in which the jurisdiction is not ousted, where there is a mere pretence. Chew v. Holroyd (4) shows where the line is drawn. Mountney v. Collier(5) is another case showing what a small point will constitute a real dispute. [STOUT, C.J.-Does an appeal lie at all? Ought it not to be prohibition, according to Groves v. Somerville(6)? There are English cases the other way! Barker v. Palmer(7) and Sweetland v. The Turkish Cigarette Company(8). Barker v. Palmer(7) was doubted by Denniston, J., in Gormley v. McIntyre (9).] Here any objection to the form of proceeding has been waived. Skerrett, for the respondent: No question of title was involved. Two things must concur-(a) there must be an honest and bonâ fide claim; and (b) the claim must be of such a character as is capable of existence in point of law. In Lilley v. Harvey(3) the second of these requirements was not complied with. Here the real question. was about the previous ownership of the wire. The question of the title to the land was not bonâ fide raised. the Magistrate on this point is conclusive: cock(10). The respondent is not raising the an appeal is the proper remedy. Hawkins v. Rutter(11) is a recent case where the course taken was an appeal, but the point was not raised. Next, if a question of title was involved, it was so only incidentally. Tait v. McCallum(12) is conclusive. Wilford, in reply: The finding of Becket v. Peaquestion whether Marsh v. Dewes (13) shows that the jurisdiction ceases although the evidence is insufficient and the Judge is satisfied that the claim is not raised bonâ fide. S.C. 1902. บ. MONAGHAN. STOUT, C.J.: — This is an appeal from the Stipendiary Magistrate, Dr. KILMINSTER McArthur, who was sitting in Wellington in 1901. The suit was in form for trespass, and was for a small sum-for £5. The facts of the case show'that the appellants and respondent are neighbouring farmers, with a fence between their farms. The fence fell into disrepair, and both parties assumed that half of the fence had to be repaired by each. The appellants offered to repair the respondent's half, but the respondent repaired his own half, and put wire on the fence. The appellants asserted that the wire put on belonged to them and not to the respondent, and went and removed it. The respondent then sued them for trespass on his property and for pulling down and destroying his fence. At the hearing the appellants were unable to substantiate their claim to the ownership of the wire, and they set up that the fence was in their land, and not a boundary-fence, and that consequently the Magistrate had no jurisdiction. The fence had been in the same position for forty years, and the predecessors in title of both parties, and the appellants and respondent, had always treated the fence as being on the true boundary. There was no evidence adduced to show that there had ever been any dispute about the boundary, or that there were any grounds for the claim thus for the first time set up by the appellants that the fence was on their land. The only evidence in favour of their assertion of ownership of the land in which the fence stood was the statement of the two appellants that the fence was on their land. The Magistrate held that the title to the land was not bonâ fide in dispute, and gave judgment. for £3, and costs. Whether there can be an appeal on the question of jurisdiction was not raised by the respondent, but, on the contrary, waived a dictum in Barker v. Palmer(1), approved of in Sweetland v. The Turkish Cigarette Company(2), showing that it may be. In Groves v. Somerville (3) the contrary was decided, and a doubt as to the dictum in Barker v. Palmer(1) was expressed in Gormley v. McIntyre (4). It is not necessary in this case to give any decision on that point. The respondent's counsel raised two answers to the appeal: (a) There was no bonâ fide dispute as to title; (b) title, if in dispute, was only incidentally so, and that the Court had jurisdiction under section 34 of "The Magistrates' Courts Act. 1893," to hear the case. (1) 8 Q.B.D. 9. (2) 47 W.R. 511. (3) 2 N.Z. Jur. N.S. S.C. 1. (4) 12 N.Z. L.R. 36. |