Waverley Claims Dispute

The morning of March 21, 1881, was a busy one at Nova Scotia’s Department of Mines.

At 10:00 a.m., 45 staked claims in Waverley expired, meaning they were up for grabs for whoever could stake them first by submitting paperwork and a staking fee.

Waverley was an historical gold district that produced 72,566 ounces of gold between 1862 and 1940, so the claims were considered valuable, and prospectors gathered at the Department of Mines in the hope of staking them.

In English, “staking a claim” to something means you have a right to it or that it should belong to you. The expression comes from literally driving wooden stakes into the ground to mark a mineral claim – a specific area where a person/company has the right to explore and mine.

For a century and a half, staking claims in Nova Scotia was done by hammering stakes into the ground and marking the area in government ledgers and on a master set of 500 mapsheets, which were updated daily by hand at the Halifax offices of the provincial government’s Department of Mines.

This system inevitably led to disputes over things like claim boundaries and the filing of paperwork.

The Waverley claims that were the focus of attention that day had been staked by father-son team, Thomas A. Wallace and T. J. Wallace, who reopened an old Waverley gold mine in 1878.

On July 1, 1880, the Wallaces leased the claims for twelve months to Henry O’Toole to carry on the mining work.

O’Toole and the five or six men he employed worked the claims for months but ceased work in mid-February 1881. According to O’Toole, his agreement with the Wallaces “stated that if we ceased work for thirty days the agreement would be void. I stopped work there about the 14th February; my men stopped the 15th February.” Having voided the agreement by not fulfilling his end of it, O’Toole felt he could stake the claims when the Wallaces’ lease expired.

The Commissioner of Public Works and Mines declared the Wallaces’ claims forfeited as of March 21, presumably because they were not being actively worked.

As a result, about ten prospectors gathered at the Department of Mines office to stake the claims that day.

According to Nova Scotia Supreme Court records, “…on the Market Clock commencing to strike, a struggle took place between them in the endeavour each to be the first to bring his application to the notice of the Commissioner.”

C. H. Carman, the Department of Mines clerk to whom prospectors had to submit paperwork, later testified that “There were a number of applications. The first that reached my hands were O’Toole’s and McDonald’s, the others were made while the clock was striking, and I gave receipts in the order that I received them, as far as I could know. On first stroke of clock O’Toole and McDonald handed their applications to my hand; the others were not put into my hands, but were put on the table or desk. I cannot say whether their applications came to my hand before others laid on table.”

O’Toole testified, “The instant I heard the clock commence to strike ten I laid this application, with the money inside of it, in Mr. Carman’s hand, and said, ‘first application, Mr. Carman.’” O’Toole noted that Carman said, “I am not a machine, and have not got a dozen hands,’ after he had four or five applications in his hands.” O’Toole said Carman declared him the first to apply.

Thomas Wallace said, “I was sitting at the corner of the desk watching the clock, and as the minute hand came up to the figure XII for ten o’clock, I moved up to Mr. Carman, and the instant the first stroke sounded I pushed my application under Mr. Carman’s hand (left hand), on the desk. As I moved away from Carman I saw others on other side, and saw Mr. O’Toole there then. Five $20 notes accompanied my application, these notes were folded in the application. There was a rush. I watched Mr. Carman and not the others. After two or three seconds Carman took my application and laid it upon the desk in front of him.”

W. R. Foster, one of the prospectors, said, at 10:00 a.m. “a scramble took place…A large number, including my own, were in before the clock had made four strokes."

Charles R. Fairbanks, another prospector, said, “Mr. Carman was perfectly besieged with applications and money laid down before him.”

Given the confusion, the Commissioner of Public Works and Mines investigated and concluded that he had no jurisdiction over the private agreement between O’Toole and the Wallaces, so he could not settle whether their agreement had been voided by O’Toole stopping work on the claims.

The Commissioner did have to decide, however, which of the prospectors would now get the claims. He awarded them to Henry O’Toole on the basis that he had filed his paperwork first – even though multiple applications had been filed within seconds of each other.

The Wallaces appealed the Commissioner’s decision and Nova Scotia’s Supreme Court heard the case in 1882.

The court decided that the applications were submitted basically simultaneously so there was no basis for the Commissioner deciding that O’Toole’s was first.

The court also concluded that O’Toole could not take the claims from the Wallaces when O’Toole was bound by an agreement to work them on the Wallaces’ behalf: “…a person holding a chattel interest under another could not lawfully do any act to defeat the title of his lessor, during the continuance of the lease….”

The Wallaces won their appeal and got the claims back.

Despite their legal victory, the claims did not produce riches for the Wallaces. The Waverley gold district was idle through much of the 1880s and the Wallaces did little if any additional work. The other prospectors involved in the March 21 scramble also had little subsequent success. Their names are largely absent from Department of Mines records.

Today, technology makes this sort of dispute very unlikely to occur. In Nova Scotia and many other jurisdictions, staking claims is now done using online, digital mapping systems, so there are no scrambles to shove paperwork into the hands of a clerk (https://novaroc.novascotia.ca/novaroc/).

Digital staking is just one of many examples of how technology makes modern mining completely different from historical mining.

Staking claims in Nova Scotia began in 1862 when the legislature passed “An Act relating to the Gold Fields” in response to the province’s first gold rush, which started after the discovery of gold in Mooseland. Learn about early claim staking at https://notyourgrandfathersmining.ca/gold-fields

See another example of how disputes were sometimes caused by the old staking system – a boundary dispute in the South Uniacke gold district – at https://notyourgrandfathersmining.ca/south-uniacke-claim-dispute