Murdoch to Rogers (Permanent Under-Secretary)
31st October 1865
I have to acknowledge your letter of 20th inst, with one from Sir E. Head enclosing a report from the Agent of the Hudsons Bay Co in Van Couvers Island and other documents, relating to the Lot in the Town of Victoria Van Couvers Island known as Lot Z.
2. The circumstances connected with the sale of this Lot to Mr Lowenburg [Lowenberg] have been so repeatedly stated, and are so well known at the Colonial Office, thatManuscript image it is unnecessary to restate them on the present occasion. In March 1864 the Duke of Newcastle, (on the ground that the sale to Mr Lowenburg was covered by the Indenture of Febry 1862) directed the Governor to admit Mr Lowenburg to possession of the Land. Against that instruction the Governor remonstrated on the ground
1st That the Lot in question had formed part of a Government Reserve set apart by the Hudsons Bay Company several years before the sale to Mr Lowenburg and that consequently they had no legal authority to sell it.
2nd That Mr Lowenburg was awareManuscript image at the time of the purchase that the sale was invalid, as was proved by his requiring, and the Company giving, an exceptional guarantee of Title in the conveyance of the Land to him, and
3rd That the abstraction of the Lot rendered the Government Reserve comparatively valueless.
3. The documents enclosed in Sir E. Heads letter are intended to combat these objections.
4. In respect to the first it was stated by Mr Pemberton, the Surveyor General of Vancouvers Island, that he surveyed the Government Reserve in question in 1854, & reported it to the Secretary of the Hudsons BayManuscript image Company as then containing 10 Acres—that he again surveyed it "finally" in 1858, when in consequence of a portion of the original Reserve having been sold in error the lines were "readjusted"—and that it then also contained 10 Acres—that Lot Z was sold to Mr Lowenburg in the spring of 1861 and that if that Lot be subtracted from the Reserve its original area would be pro tanto reduced. In his evidence also before a Committee of the Assembly appointed to enquire into the Hudsons Bay Company's claims Mr Pemberton stated that to the best of his belief Lot Z had formed part of theManuscript image original Reserve of 10 Acres.
5. In answer to this the Company's Agent, Mr Tolmie, transmits a Declaration from Mr Tiedman [Tiedeman] an Assistant in the Surveyor General's Office (who he says from June 1858 to March 1861, performed the principal surveying and Map making in the Land Office) to the effect that the Town Maps of 1855, on which the Reserve was originally marked off, were not official and were not usually adhered to—that in 1859 when he (Mr Tiedman) was engaged in making an Official Map of the Town, since known as "the Official Map of 1858", it was discovered thatManuscript image a portion of the West Side of the original Reserve had been surveyed into Town Lots and sold, and that the Colonial Surveyor Mr Pemberton desired him to "make up the deficiency of the area by adding to the southern side the portion of Land marked Z which at that time formed part of the Companys hay fields"—that Mr Dallas seeing this in progress pointed out that the Land which he was taking in was not under control of the Land Office Authorities—but that he was nevertheless ordered by the Colonial Surveyor to mark the ground as a GovernmentManuscript image Reserve. Tracings are also sent of the Maps of 1855 and 1858 to show from their inconsistencies that no reliance is to be placed on the former—and it is argued that before 1858 there were in fact no boundary marks on the ground. A further tracing is also sent showing the Reserve as originally marked on the Map of 1855 as subsequently "readjusted" on the Map of 1858—and as proposed to be surrendered by the Company in 1863.
6. Considering how much must depend on a matter of this nature on facts that can be ascertained only by inspection of the premises, itManuscript image would be useless to attempt from the inspection of tracings such as are now sent home, to reconcile the differences which those on the spot appear unable to adjust. I will only point out therefore that the present declaration of Mr Tiedeman is in direct contradiction to the statement of Mr Pemberton enclosed in the Governor's despatch of 2nd Febry last, and to his evidence before the Committee of the Assembly—and that the tracing No 5 which professes to give the boundary of the Reserve as originally traced and as afterwards readjusted, would showManuscript image that at all events a large portion of Lot Z was included in the Reserve as marked off in 1855—and the whole of it in 1858.
7. In regard to the alleged exceptional guarantee of Title to Mr Lowenburg the Agent encloses copies of two Agreements with Mr Lowenburg for the sale of the Land in question. These Agreements only undertake that on the completion of payment the Company will issue to Mr Lowenburg "a good and sufficient deed in the usual form." I presume, although it is not so stated, that pending the discussion on theManuscript image subject no deed has actually been issued—but there is clearly no stipulation for an exceptional guarantee in the Agreement with Mr Lowenburg.
8. Thirdly—As to the importance of the Lot to the Reserve both the Companys Agent and Mr Lowenburg dispute the Governors opinion. They allege that the boundary of Governor Douglas' property, on which building leases have been granted & houses commenced, is much nearer the Government buildings than the boundary of Lot Z—that there isManuscript image ample room on the Reserve for additional buildings, and that while the Reserve is already accessible by two streets, a third, separating the Buildings from Lot Z, might be easily made—for which Mr Lowenburg expresses himself willing to contribute one third of the Land. Upon this point I do not feel competent to offer an opinion. The arguments of the Companys Agent and Mr Lowenburg appear reasonable enough, but whether they are a sufficient answer to the Governor's objection it is for him to decide.
9. In conclusion if, as IManuscript image understand, the Law Officers have expressed an opinion that the grant to Mr Lowenburg cannot be successfully impeached, there is not sufficient in these papers to lead to a modification of that opinion. The only important fact is the production of a tracing showing that Lot Z, was included in the Government Reserve in the Map known as "the Official Map of 1858." But of that Mr Tiedeman has given an explanation, and the fact, even if not explained, would not, I apprehend, have beenManuscript image sufficient to alter the view taken of the case by the Law Officers of the Crown. Mr Lowenburg in his letter to the Company's Agent offers (with the consent of his Tenant) to sell the Lot to the Crown for $9500 (£1979.3.4). As he paid the Hudsons Bay Company for it in 1861 only $1285 (£267.14.2) it is scarcely likely that the Government and Legislature of Vancouvers Island would be prepared to act on this proposal.
10. Upon the whole it appears to me that the present papersManuscript image contribute nothing towards the solution of the difficulty that has arisen on this subject.
I have the honor to be
Your obedient
Humble Servant
T.W.C. Murdoch
Minutes by CO staff
Manuscript image
Mr Elliot
The Law Officers opinion on this case was communicated to the Govr in a Desp: of 14 of Aug/65 & he was informed that Mr Cardwell was "unable to authorize the Govr to treat the grant to Mr Lowenburg as invalid, or to take any steps for setting it aside."
VJ 2 Novr
Manuscript image
Sir F. Rogers
This report supplies further reasons for adhering to the decision which has already been sent to the Governor upon receiving the report of the Crown Lawyers. Nothing more therefore appears to be necessary unless you should be aware of any ground for desiring to repeat the instructions or to render them more peremptory.
TFE 3 Novr
Ackne Mr E. Head's letter with thanks, adding that the Crown will not dispute Mr Lowenburg's title & that the Govr has been informed that Mr Cardwell &c (as in Mr Jadis' minute).
Add that any proposal for selling the Land to the Govt must be madeManuscript image to the Local Govt on whom it will depend to submit any proposal of the kind to the Local Legislature.
The land it appears has been let for 90$ a month [marginal note: = 226£ per ann] reduced for the present to 65$ with a right in the tenant to buy the reversion for £2100. Lowenberg offers (as I understand) to sell his reversion to the Crown for £1900. But this independently of the question of [amear?] wd be of little use unless it was clear that the tenant wd part with at least his right of purchase.
EC 15
Other documents included in the file
Manuscript image
Elliot to Sir Edmund Head, Hudson's Bay Company, 22 November 1865, advising that the Governor had been told that he could not invalidate or set aside the sale of land to Lowenberg.
Manuscript image
Rogers to Emigration Commissioners, 23 November 1865, forwarding copy of the letter as noted above.