Head to Rogers (Permanent Under-Secretary)
Hudsons Bay House,
February 26th 1864
I have the honor to call your attention to a claim made upon this Company in reference to a small lot of land in Victoria Vancouvers Island which has been frequently alluded to in the correspondence between Her Majesty's Government as "Lot Z."
The Town lot in question is a portion of the lands held by the Hudsons Bay Company previous to the Grant of the Island to the Company. ItisManuscript image is situated in the rear of the ground on which the Government buildings have since been erected. In March 1861 it was sold by Mr Dallas, at that time the Hudsons Bay Company's principal Agent at Victoria to a Mr Lowenberg, who in May of that year attempted to take possession by fencing the land. This proceeding was resisted by Governor Douglas by whose direction the fence erected by Mr Lowenberg was pulled down. On the 9th May 1861 Mr Dugald Mactavish in a letter addressed to Governor Douglas called his Excellency's attention to the proceedings adopted against Mr Lowenberg and informed him that the land was sold to him (MrLowenbergManuscript image Lowenberg Lowenberg) sometime since by the Hudsons Bay Company but Governor Douglas declined to grant any redress and it was found necessary for this Company to refer that and their other claims in Vancouvers Island to the Colonial Office and ultimately on the 3rd of February 1862 an Agreement was entered into between Her Majestys Government and this Company settling all such questions and entitled "Deed of Arrangement for Settling the Claim of the Company to certain lands in Vancouvers Island." The first provision of that Agreements is as follows— "That all sales made by the said Company previous to the first day of January 1862ofManuscript image of any portion of the lands so occupied by them in the Victoria District as aforesaid before the thirtieth day of January 1849 including water frontages and the spaces between high and low water mark abutting on such portions of land shall be valid and effectual as against Her said Majesty Her heirs and Successors.
And the fifth provision limits the land to be surrendered to Her Majestys Government to "the site of the New Government buildings so far as the old fence, in the rear dividing it from a farm known as Bexley or 'Beckney'" or in other words as far as the limit ofLotManuscript image Lot Z.
On the 4th instant Mr Lowenberg addressed a letter to the Secretary of the Hudsons Bay Company (copy of which is hereunto annexed) complaining that proceedings have been taken in the Courts of Vancouvers Island by the Attorney General of the Colony to prevent the recovery of the land in question. Mr Lowenbergs letter having been referred to the Companys Solicitor he has advised to the following effect—
"Referring to your letter of the 11th instant inclosing copy of one received from Mr Lowenberg it appears to me that theHudsonsManuscript image Hudsons Bay Company having sold the land in question to Mr Lowenberg were bound to put him into possession of it; but on the other hand I am of opinion that upon the footing of the arrangement as defined by the Governors letter to the Duke of Newcastle of the 1st August last the Crown can have no claim to it and ought not therefore to interfere to prevent Mr Lowenberg being put into possession of it.
"I assume that the land in question was part of that which the Company claimed as having belonged to them before the Grant from the CrownandManuscript image and their rights in respect of which were arranged with the Government in the year 1862 (February) modified by the Correspondence in July and August.
It seems to me to have been quite clear that the Government ratified all sales which had been made by the Company; and those; to Mr Lowenberg were therefore included; and I should recommend that the circumstances be now brought under the notice of the Duke of Newcastle and that he be requested to give directions for any claim on the part of the Crown in regard to this land being withdrawn.
Seeing that the land inquestionManuscript image question is clearly within the meaning of the first clause of the Agreement and that the land surrendered to the Crown is expressly limited by the 5th Clause to the old fence between the site of the Government buildings and the lot in question the Committee of the Hudsons Bay Company cannot doubt but that His Grace the Secretary of State for the Colonies will give directions that Mr Lowenberg's rights should be respected.
The paragraph in my letter of the 1st August and to which Mr Maynard refers is as follows— On the part of the Hudsons Bay Company we are ready to surrender anyrightManuscript image right or title the Company may have in the Lots marked in Mr Mactavish's plan with the letter Z as well as the Lot 1605 on which the Post Office is built and the two lots adjoining thereto, marked 1605 and 1607. We are also ready to surrender the Lot at the foot of Broughton Street in exchange for the Lot at the foot of Fort Street, on which it was originally intended that the Harbour Masters house should be built. In making these concessions however it must be understood that the Hudsons Bay Company surrender only the rights which they actually possess and that the arrangement is made subject to and saving the rightsofManuscript image of third parties (if any) to whom the lots in question may have been already conveyed.
I have the honor to be,
Your most obedient Servant
Edmund Head
Minutes by CO staff
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Mr Elliot
I suppose that this claim of the Hudsons Bay Company to a certain lot of Land in Victoria will be referred in the first instance to the Land Board?
VJ 27 Feby
Transmit for report.
TFE 27/2
Documents enclosed with the main document (not transcribed)
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Copy, L. Lowenberg to Thomas Fraser, Hudson's Bay Company, 4 February 1864, communicating details of his purchase of the land in question, and asking the company to assist him in obtaining possession of what was rightfully his.
Other documents included in the file
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Elliot to Emigration Commissioners, 2 March 1864, forwarding copy of the letter and enclosures for their observations and suggestions.
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Draft reply, Newcastle to Kennedy, No. 5, 16 March 1864.
Minutes by CO staff
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May this instruction be given at once, or should the Govrs report be
first obtained?
It is an authority, and I should give it at once.
TFE 14/3