PRACTICE COURT.

Before Hood, J. BESTMAN V. MITTEN. June 1, 16. Mines Act 1890 (No. 1120), s. 5-Mines Act 1897 (No. 1514), s. 53 (1) Maryborough Mining District By-laws No. 4, ss. 84, 85-Schedule XIMiner's Right-Possession of Land-By-Laws Tailings Site Registration-Invalidity-Forfei ture of Tailings.

The holder of a miner's right is not entitled to possession of any land under section 5 of Act No. 1120, until appropriate By-laws have been made. The By laws of the Maryborough Mining District do not provide for the taking up of a tailings site, and therefore the registration of a tailings site in that district is invalid.

Section 53 (1) of Act No. 1514 effects a forfeiture of
tailings left upon land comprised in a lease which
has terminated, whether such tailings were placed
there during the currency of the lease or not.
Special case stated by the warden of the goldfields
at Tarnagulla.

The special case was as follows:-
:-

"This case was commenced by summons dated 5th February, 1904, by which the complainant, Frederick William Bestman, sought by virtue of his miner's right, and also by virtue of his application No. 4956, Maryborough, for a gold mining lease, to have it declared that the defendant, Andrew Mitten, trespassed on certain Crown lands situate at Llanelly, aforesaid included in an application for a gold mining lease by the said complainant, which said land was marked out by him for such application on the 13th July, 1903, and since that date, up to the present time, the said application has been pending, such trespass by the defendant being the marking out and

NOTES OF CASES. July 9, 1904.

registration by defendant, on the 5th January, 1904, of the said land as quartz tailings in contravention of the Mines Acts, and of clause 85 of the Maryborough Mining By-laws number 4.

And the complainant seeks it to be declared :(a) That defendant is in illegal occupation of the said land by which defendant claims to be in occupation of under a certain registration dated 5th January, 1904, under clause 85 of the Maryborough Mining By-laws.

(b) That such registration by the defendant was illegal, inasmuch as such quartz tailings, referred to in the said registration, had not been raised, stacked, or stored by defendant, nor was defendant the owner thereof.

And the complainant further seeks an order that such registration be cancelled, and that he be put in possession of the land comprising same.

The said summons came on for hearing before me, the undersigned Warden, on the 23rd February, and the 4th and 14th March, 1904, both parties being represented by counsel.

The following are the facts given in evidence, and admitted by both parties to the complaint :—

On the 3rd day of October, 1892, the defendant, Andrew Mitten, obtained from the Crown, under the Mines Act 1890, a lease for quartz gold mining, No. 3514, consisting of 8 acres 3 roods and 7 perches of Crown lands at Llanelly, in the State of Victoria, and held such lease continuously from then until the 22nd day of June, 1900, when such lease was declared void by the Crown for non-compliance with the covenants therein expressed.

For years prior to, and on the 22nd day of June, 1900, the date of the said voidance, a large quantity of tailings was left lying on the land comprised in defendant's said lease.

The defendant Mitten did not remove, work, or treat the said tailings from the date of the declara

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