No. 66
24 October 1861
I have the honor to acknowledge receipt of Your Grace's Despatch No 65 of the 26th July last, forwarding for my report copy of a letter from the Governor of the Hudson's Bay Company complaining of certain transactions arising out of the Sale by the Agents of the Company of a certainpieceManuscript image piece of land at Victoria to a Mr Lowenberg.
2. My Despatch No 50 of the 8th August last, will have revealed very fully to Your Grace the recent proceedings of the Agents of the Hudson's Bay Company in respect to lands which had been previously appropriated as Government and Public Reserves, and will have shewn how this Government was compelled, although most reluctantly, by their inconsiderate and really unwarrantable actions, to have recourse to legal measures, not only to prevent part of the Streets, PublicPark,Manuscript image Park, and Church Reserve from being sold, but actually to retain in its entirety the very small spot of land upon which the Government Offices stand. The case of Lowenberg is exclusively connected with this Government land, and it is clearly disclosed by the Documents forwarded in that Despatch; but as it is made the subject of a special and very grave complaint, and as the matter is but very imperfectly represented in the letter of Mr Berens, I will recapitulate the actual facts of the case, mostofManuscript image of which are incontestably proved by the affidavits filed with the information of the Attorney General, certified copies of which were forwarded with my aforesaid Despatch.
3. A few days before the interference, complained of by Mr Lowenberg, occurred, I had issued instructions to the Surveyor General to run a fence round two of the open sides of the Government Reserve. Upon the evening of the day the work was commenced and after the Surveyor's men had ceased their work, Mr Lowenberg,it appears,Manuscript image it appears, repaired to the spot with a number of men and proceeded to the construction of another fence. Mr Tiedeman an employé of the Land Office warned the men that they were committing a trespass upon the Government property, and were doing that which might lead to a breach of the peace. They desisted, and I am told that thereupon Mr Lowenberg became very violent and assaulted Mr Tiedeman. Mr Tiedeman laid an information against him, and he was taken into custody. This I believe tobeManuscript image be the whole sum and substance of the proceeding, characterized as an "outrage" upon the part of this Government, by Mr Berens: but which I, probably, with greater accuracy might designate as an attempt upon the part of the Hudson's Bay Company to re-possess themselves of the Government Reserve, Mr Lowenberg being merely their Agent or instrument in the first step taken.
4. Mr Berens does not state that the land purported to have been sold to Mr Lowenberg by Mr Dallas, was a portion of the GovernmentReserve,Manuscript image Reserve; he represents it to have formed part of a farm which had long been under cultivation by the Servants of the Company, and had been cropped by them for a series of years, and that it "adjoined" the Government Reserve from which it was "separated" by a "Ditch or Fence". In 1858 when the Hudsons Bay Company surveyed off into lots and sold the Town Site of Victoria, this Government Reserve, consisting of 10 Acres more or less, was laid out and marked with conspicuous posts upon the ground, some of which remain to this day;andManuscript image and when the Plan of the Town was made it was duly included therein. A portion of the Reserve might or might not once upon a time have been considered to be included within the limits of the Company's Farm, but if the lines of the Reserve did extend so far back as to encroach upon the lands of the Farm, they were taken so designedly in the first instance by the Company's Agents, to the advantage of the Company, by enabling them to utilize and sell as Town Lots an increased frontage on the water. Certain it is that the cultivation of this portion of the Farm, representedbyManuscript image by Mr Berens to have existed, was not continued after the land was laid out as a Government Reserve. The portion in question was not separated either by a ditch or fence from the land occupied by the Government, for neither exists unless indeed a drain or trench, about two feet wide, to carry off the surface accumulation of water during the winter, can with consistency be termed a ditch. Mr Berens says "a proposal had been made to form a street which passed through the farm and severed this piece from theremainderManuscript image remainder of the Farm." The "proposed" Street was actually laid out, and lots upon it facing the Government Reserve sold in 1859; the Map upon which the Lots were exhibited and sold by the Company containing the lines of the Government Reserve as originally laid down, the rear line in 1859 forming part of our side of the "proposed" Street. For convenience and for a better comprehension of this point I forward a plan of the locality.
5. I cannot believe that Mr Berens could be aware of all these matters when he penned the letter now under consideration. It wouldseemManuscript image seem to have been the policy of Mr Dallas, who sold the land, to deprive both the Government and public of the lands originally reserved to them, and to restore the power of the Hudsons Bay Company to deal with the land. The attempt to sell the Public Springs, Public Park, &ca &ca detailed in my Despatch No 50, afford strong evidence of this. Your Grace is well aware of the manner in which my recent application was met for a site for a public wharf and Harbour Masters Office. The Governor of the Hudsons Bay Company theninstantlyManuscript image instantly repudiated any desire on the part of the Company to interfere with the requirements of the Public, and I would fain believe that he will now upon becoming possessed of the real facts of the case as instantly repudiate this attempt to deprive the Government of a piece of ground required for public purposes, and so allotted and marked out in 1858: the more especially as Mr Berens himself recognizes this Reserve in his letter to your Grace of the 16th December 1859, wherein he says The landuponManuscript image upon which Governor Douglas is now erecting the new Public Offices has also been represented by that Gentleman to be Government property, but I have reason to know that it is part of the land held by the Fur Trade long prior to the Grant from the Crown. 2 The Company therefore will have a claim upon the Government for the value of this land. In 1859 Mr Berens admits this land to be in the possession of the local Government and simply contends that the Company will have "a claim"forManuscript image for the value of the land. In 1861 Mr Berens represents a portion of this same land to be part of a farm "cultivated" and "cropped" by the Servants of the Company, and only separated from that farm in imagination by a "proposed" Street. I have already shewn that the lines of the Government Reserve were run and marked in 1858, that the Hudsons Bay Company were in possession of a copy of the official plan of the Town upon which those lines are traced, and altho' one of those lines nowformsManuscript image forms part of the proposed Street (actually laid out in 1859) yet at the time it had no reference to it, and no other significance than the rear line of boundary of the Government reserved land. On the contrary I think the inference may not unfairly be drawn that in laying out the Street alluded to, in 1859, the situation of the Government Reserve did govern the position and direction of such Street and of the Lots surveyed off and sold, otherwise it seems remarkable that Lots should be laid outandManuscript image and sold upon one side of a street only, and that when fresh lots were required, they should be laid out and sold in the rear of those first disposed of; the less remote meanwhile not only being not sold, but not even surveyed or exhibited for sale: and at last that this piece of land, which had it been at the disposal of the Hudsons Bay Company, could have been advantageously disposed of if put up for sale in Lots at Public Auction, should be parted with to a private Individual, a land Agent by profession, without being surveyed and divided insimilarManuscript image similar manner to the other side of the Street.
6. The claim for payment of the value of the land which Mr Berens asserts in 1859, would I conceive be perfectly legitimate if the Company had in the first instance paid for the land, for it would merely be an equitable refund in a case where the Company had no power to sell or to purchase; but as the Company have not paid for it, nor for any portion of the 3084 Acres dealt with by them as private property,theyManuscript image they cannot, I apprehend, sustain any claim for repayment or re-imbursement on account of any portion of those 3084 Acres required for Public purposes, for whether the private ownership of those lands be admitted or not, the same principle, I conceive must govern both them and the other lands of the Colony, viz. that all such portions as are required for public purposes must remain in the Crown, and are, consequently, wholly removed from the control of the Company, whatever generalrightsManuscript image rights and privileges may have been accorded by the Crown.
I have the honor to be
My Lord Duke
Your Grace's most obedient
and humble Servant
James Douglas
Minutes by CO staff
Manuscript image
Mr Elliot
This despatch completely disposes of the alleged outrage on Mr Lowenberg for it appears that the facts of the case were simply that Mr Lowenberg committed an assault upon Mr Tiedmann [Tiedeman] an officer of the Land Department and was accordingly taken into custody & required to find Bail.
ThereManuscript image
There remains the question whether the piece of Land sold by Mr Dallas to Mr Lowenberg did or did not form part of the Govt Reserve.
On this point the present despatch appears to leave no doubt. Governor Douglas states that the Reserve was created by the Hudsons Bay Co in 1858, that they marked the Boundary as now claimed by him with Posts, some of which still remain—that the whole of the ground is laid down in the Plan of the Town as a Reserve, and that the Boundary of the Reserve has governed the direction of the street since made. On the other hand Mr Dallas alleges that the true Boundary is a ditch & fence cutting off the piece of land adjoining the street which has been sold to Mr Lowenberg. To this Gov. Douglas replies that there is no fence & that the ditch is merely a drain across thefieldManuscript image field to carry off the surface water.
In sending this despatch to the Hudsons Bay Company the true nature of the affair with Mr Lowenberg might be pointed out; and at the same time it might be stated (if Govr Douglas' view be adopted) that the piece of Land sold to Mr Lowenberg is so evidently a portion of the Reserve which the Hudsons Bay Company set apart for Government purposes that the Secy of State trusts that the Company will direct the sale to be cancelled.
It will be observed from par 3 of the despatch that Gov Douglas states that Mr Lowenberg is merely the agent or instrument of the Company in the affair—and it is very probable thatManuscript image this is another piece of sharp practice on the part of Mr Dallas which, as in the case of the water frontages of Victoria, & the Land Claims in British Columbia, (and as I understand will probably be the case in settling the pecuniary claims in connection with Vancouver Island) the Company in England will not support their agent.
HT Irving 12 Decr
Mr Fortescue
In the present pressure of Canadian business, I venture to pass on Mr Henry Irving's minute for your consideration, as you have always alluded so much to everything connected with the affairs of the Hudson's Bay Company.
TFE 12 Decr
Sir F. Rogers
Send to H.B.Co. and write as proposed by Mr Irving.
I pass this through you for your information.
CF 13
Documents enclosed with the main document (not transcribed)
Not on microfilm.
Other documents included in the file
Manuscript image
Colonial Office to H.H. Berens, Hudson's Bay Company, 21 February 1862, forwarding an extract of the despatch for information.
Minutes by CO staff
This despatch was not sent to the H. Bay Co at the time it was
received, [as] the negotiations for the settlement of the Land questions were then pending. It may be thought proper however, for the reason stated in the last par. of this draft, to send now an Extract of the Governors despatch, omitting the controversial portions.
TFE 18/2