Murdoch to Elliot (Assistant Under-Secretary)
30th March 1865
I have to acknowledge your letter of 24th inst, with a further despatch from the Governor of Vancouvers Island, on the subject of the piece of Land claimed by Mr Lowenberg as having been sold to him by the Hudsons Bay Company, previous to the Agreement between the Company and the Crown of 3rd February 1862. The circumstancesManuscript image of this claim are stated in my report of 8th March 1864, and the conclusion which I then ventured to submit to the Duke of Newcastle was, that however much any encroachment on the Government Reserve was to be regretted, there was no ground on which the Crown could refuse to recognize the Sale.
2. I gather from the Governors present despatch that his Grace having approved that conclusion, directed the Governor to give Mr Lowenberg a valid title to the Land in question. The Governor explainsManuscript image that he could not act on that instruction because the Island being still legally vested in the Company he has no power to make grants, and he takes the opportunity to reopen the question as to the validity of this Sale, and the expediency of recovering the Land either by legal proceedings or by repurchase from Mr Lowenberg.
3. In dealing with this question we of course assumed that whether Mr Lowenberg's land (Lot Z) was or was not within the Government Reserve—a point contested between the Local Government & the CompanyManuscript image the legal and beneficial Estate with full right to dispose of it was still in the Company at the time of the Sale. That point, however, is now denied by the Colonial Attorney General. He says that in 1854 a Lot containing 10 Acres was set aside by the Hudsons Bay Company as an Indian Reserve—that subsequently a portion of the Western side of this Lot was sold and to make it up an equal portion was added on its southern side—that the Lot so made up was resurveyed in 1858 and set aside on the Official Map of the TownManuscript image of Victoria as the "Government Reserve"—that the Company thereby divested themseles of the power of making any other disposition of the Lot—that Mr Lowenberg and the Companys Agent were aware at the time of the Sale to the former of the doubt as to the Companys right to sell, as he required, and the Company granted him, a special covenant for good title, not contained in any other Deed issued by the Company—and that now to confirm the Sale would prejudice the rights of other purchasers in the neighbourhood, who consider themselves aggrieved by the SaleManuscript image of what they had been led to believe was a Government Reserve—and who if I understand him rightly, have taken proceedings to annul that Sale. In these statements the Attorney General is borne out, so far as his knowledge goes, by Mr Pemberton who as Surveyor General made the Surveys of the Land both in 1854 and 1858—and the House of Assembly pray (1) that the Agreement of 3rd Febry 1862 should be annulled (which is of course impossible) and (2) that the Governor will communicate their views to the Secretary ofManuscript image State before any steps are taken to confirm Mr Lowenberg in possession of the Lot in question. The Governor adds that the abstraction of this piece of Land renders the public buildings and the ground on which they stand comparatively valueless—that it is regarded by the public generally with great indignation, and by the Legislative Assembly as unwarrantable—and that if it cannot be otherwise acquired, the Government ought to repurchase it at the price paid by Mr Lowenberg rather than allow it to remain in private hands. But he adds that in his opinionManuscript image the Hudsons Bay Co ought as a matter of honor and equity to give it up.
4. The doubt thus raised as to the legality of the sale to Mr Lowenberg alters very materially the position of the question. So long as it was assumed that however inconsiderate and unfair that sale might be it was still within the legal competence of the Company, Her Majesty's Government had no alternative but to carry out frankly and in good faith the agreement of February 1862. But the circumstances now stated, particularly the dedication of theManuscript image Land as a Government Reserve in 1858 and the special Covenant introduced into Mr Lowenberg's Deed of Sale, raise so strong a presumption against the transaction, that Her Majesty's Government ought not, I think, to proceed with the proposed arrangement for the reconveyance of the Island until this question is set at rest. Whether that can best be done through the proceedings commenced (as we understand the Attorney General) by some of the private purchasers of the Company, or whether the Crown should intervene directlyManuscript image to bring the case to trial before the local Tribunals, is a question which may best be left for the decision of the Local Government. But if Mr Cardwell should approve the course I have proposed, the first step would be to communicate with the Hudsons Bay Company in this Country. It is possible that they might be able to suggest some compromize by which the matter might be arranged without a sacrifice of the public interests on the spot, and at the same timeManuscript image without the delay and expense which must attend legal proceedings.
I have the honor to be,
Your obedient
humble Servant
T.W.C. Murdoch
Minutes by CO staff
Manuscript image
Mr Elliot
See Governor's desph 2637—of the 2d Feb/65. See also Land Board report of 20 March. The previous papers to which reference may be necessary are annexed.
ABd 31 March
Sir F. Rogers
You looked at this case at previous stages: in 2626. Mr Murdoch's opinion on the present state of the affair lying at Page 8 of this Report.
He suggests communication with the H.B.Co.
TFE 1 April
I would ask Mr Murdoch to draft the necessary letter. The objects are 1. to ascertain what answer (if any); the HBC have to the allegation that the Land wh they sold to Mr Lowenberg was not theirs to sell. 2. to ascertain whether there is any mode of compromising or getting rid of this question. 3. supposing this matter disposed of to get the approval of the L. Offrs & of the H.B.C. to the draft submitted in 2730 V.C.I. 4. supposing this done to send out the draft to the Govr requiring him to report whether the map is correct—& if not to endeavour to [work?] with the compy agent out there whose alteration it requires.
The E.C. mt perhaps consider whether any definite step wd be made Manuscript imagepossible on this kind of base.
The H.B.C. to regrant (by the prepared Deed) what is undoubtedly due to the Crown.
The Crown quà proprietor, to come under an express or implied pledge not to disturb their occupation of lots excepted from the regrant.
But the Compy to remain liable to all such actions as may be brought either by proprietors of land for having damaged their property by selling what they had promised not to sell, or by the Govt representing not the Crowns proprietary rights, but the publics—(as by an action for stopping a public road).
FR 7/4
Other documents included in the file
Manuscript image
Rogers to Sir Edmund Head, Hudson's Bay Company, 24 April 1865, further discussing the disposition of the property claimed by Lowenberg and asking for any explanations or suggestions that the company may have to offer on the subject.
Minutes by CO staff
Manuscript image
Sir F. Rogers
This draft has been prepared by Mr Murdoch at your request.
As the matter savours of law, and as you generally conferred with Sir E. Head when interviews have been necessary, I would suggest, if you approve, that this letter when settled should go out with your signature.