Murdoch to Elliot (Assistant Under-Secretary)
18th December 1866
I have to acknowledge your letter of 4th inst, with a despatch from the Governor of Vancouver Island enclosing, with other documents, a report from a Board of Officers whom he had appointed to consider the Draft reconveyance of Vancouver Island to the Crown, which was prepared in this Country and transmitted to the Colonial Government for their consideration. The Board consisted of the ColonialManuscript image Secretary—the Acting Attorney General—the Acting Surveyor General and the Registrar General.
2. In transmitting the Draft reconveyance to the Governor Mr Secretary Cardwell, while directing him to see that the Map to be attached to the Deed was not so drawn as to confer on the Company any advantage not intended by the Government, impressed on him "the expediency of not raising any question which would unnecessarily delay a settlement" of the matter. Acting on the former part of this instruction the Board of Officers proceed to reargue three of the questions which have been so muchManuscript image debated between the Colonial Authorities and the Hudson's Bay Company during the last 4 years. Those questions are—
First—the Sale of a portion of Beacon Hill Park, through an error in running its Western boundary.
Second—the sale of a portion of the foreshore on the South side of James Bay—and
Third—The sale of lot Z.
3. The general argument put forward by the Board of Officers in each case is, that the sale of the land was inconsistent with the plan on which the Town of Victoria was laid out by the Company, as shown on the MapManuscript image of 1858—that the Map was recognized by the Company as "official"—their deeds of conveyance referring to it under that Title and containing no other description of the land conveyed—that consequently it formed a contract between the Company and the public—and could not, therefore, be set aside "without the consent of all parties concerned." If this argument were good it would be conclusive, since the Map of 1858, of which a copy was published in 1861, undoubtedly sets out the Land in the manner maintained by the Board of Officers. But I apprehend that according to the opinion ofManuscript image the Law Officers of the Crown of 26th July 1865, that Map did not constitute such a dedication of the Land in question as would divest the Company of their right to deal with it and that the Indenture of Febry 1862 must be held to validate all sales made by the Company, previous to it's date, so far as the Crown is concerned.
4. But passing from this general question, it is alleged, in respect to the sale of part of the public Park that it took place not designedly, but by an error of the person employed to run the Boundary. This is admitted by Mr Dallas who moreover alleged that the errorManuscript image originated in the Colonial Land Office, and was discovered & rectified by himself. The Board on the other hand state that the error was committed by Mr Tiedemann, who although he had been employed temporarily in the Land Office, was at the time on leave from that office and was employed by the Hudson's Bay Co and that it was while so employed in laying out their land that he encroached by mistake on the public Park. The extent of land cut off from the Park is stated to be 3 1/2 Acres and the price paid to the Company for it 1700 dollars. As it is not in a position in which it wouldManuscript image have been much used by the Public, and no public inconvenience results, therefore, from the sale, the Board are satisfied with recommending that the Company should be required to refund the amount received for this land. This appears to me no more than reasonable. Whether the error was made by Mr Tiedemann while in the service of the Land department or of the Company is not, I think, essential. It is admitted by the Company that the land in question formed part of the Park which had been assigned to the Public, and that the sale of it was the consequence of aManuscript image mistake. But if so it follows that the price realized by the sale ought to belong to the party to whom the land belonged—that is to the Public. I would suggest that as regards this case the course recommended by the Board should be adopted, and the company be requested to refund the amount received for the Land.
5. Second in respect to the water frontage on the South side of James Bay, the Board, besides appealing as has been said to the map of 1858, allege that most of the lots were sold for inadequate consideration to servants of the company. But if, as the LawManuscript image Officers state, the Crown cannot after all that has passed dispute the right of the Company to regard the land of which they were in possession before 1849 as absolutely their own, it has clearly no right to question the manner in which they disposed of that land. The sales in question were all made previous to 1862, and came therefore within the scope of the Indenture of Febry 1862. The Committee recommend that the Crown should not part with these foreshore rights. But the Indenture of 1862 expressly includes the water frontage and spaces between high and low water mark sold by the CompanyManuscript image among the sales which it recognizes. The Crown is, therefore, precluded from taking the course suggested by the Board of Officers in this respect.
6. Thirdly—the question of the sale of lot Z to Mr Lowenburg [Lowenberg] had been so repeatedly under consideration that there is but little new to be said about it. The Board repeat their conviction, from their personal knowledge, that Lot Z formed part of the Government reserve at the time it was sold to Mr Lowenburg. Mr Young the Colonial Secretary, in a Memorandum addressed to the Governor which the BoardManuscript image append to their report, states, that he is prepared to declare on oath that when he purchased from the Company certain lots of land, in rear of lot Z, in Janry 1860, the boundary line of the Government reserve on the Map exhibited to him formed one side of the Street, and corresponded with the corner posts placed there in 1858, which he had himself seen on the ground both before and after the sale to Lowenburg. He distinctly denies the statement that Lot Z was fenced off by an ox fence &c, and so continued till sold to Lowenburg—and that it was under cultivation—and alleges that the land that was under cultivationManuscript image was on the other side of the Street. And he adds that from the early part of 1860 he was in the habit of passing to and fro between his office and his residence over the disputed piece of land, and can assert that "from that date to the time of the sale to Lowenburg neither fence, ditch, rails, bank or crops existed. A drain to carry off the surface water certainly did exist, but in some cases it had become nearly obliterated, and in others was only some 6 or 8 inches deep" &c. In support of his statement that Lot Z formed part of the Government reserveManuscript image he quotes extracts of Affidavits made by Mr Tiedemann and Mr Pemberton in May 1861. The extract from Mr Tiedemann's affidavit is to the effect that about midsummer 1858 he laid out the Government Reserve, containing 10 Acres or thereabouts, under instructions from the Acting Colonial Surveyor—that he had examined the 10 Acres so laid out since the alleged sale to Lowenburg and finds that the piece of land so alleged to have been purchased by Lowenburg is a portion of the said 10 Acres &c. Mr Pemberton's Affidavit states that he instructed Tiedemann to lay out a reserve of 10 Acres—that he afterwardsManuscript image examined the lines on the ground and found them [to] correspond accurately, and that he is informed and believes that Lowenburg has purchased a piece of the Land comprized in such Reserve. Mr Young assumes that if this evidence on Oath had been before the Law Officers they would have given more weight to the representations of the Colonial Government than of the Hudsons Bay Company. But on the other hand it is to be observed that Mr Young has omitted a few very essential words used by Mr Tiedemann in describing the manner in which he laid out the Reserve, vizt, by the extension of the "South line of Section VI" and that the Law Officers had before them another affidavit made by MrManuscript image Tiedemann on the 2nd June 1865, which explains the words I have quoted, and would very much have modified the effect of the earlier Affidavit referred to by Mr Young, even if that Affidavit had been exactly as he quoted it. In their other Affidavit Mr Tiedemann says, that while engaged in constructing the official map he found that there were not 10 Acres in the Government Reserve—that on mentioning this to Mr Pemberton he was ordered to make up the deficiency by adding to the Southern side the portion of land now forming lot Z "which at that time formed part of the Company's hayfields at Beckley Farm"—that Mr DallasManuscript image who happened to pass while he was running the boundary, objected to what he was doing, on the ground that the land in question belonged to the Company—and that he was ordered by the Colonial Surveyor to include the land in the Government reserve, notwithstanding this notice. This affidavit is also consistent with the evidence given by Mr Tiedemann before the Committee of the House of Assembly in Novr 1863, to the effect that Mr Dallas said that in laying out the Reserve he took away some land of his (Dallas') farm and thatManuscript image the line of Beckley Farm ditch and fence would appear on the North side of lot Z.
7. The evidence on the subject of lot Z is so conflicting that it is hopeless to attempt to decide upon it in this Country, or by a mere comparison of the statements of the several witnesses. Nor is it I apprehend necessary to attempt now to do so. The Law Officers give it as their opinion, that even if lot Z had been dedicated to public uses, it could have been sold by the Hudsons Bay Co with the consent of the Crown—and that assuming the facts to be as stated in the papers before them—and those facts to have beenManuscript image known to the Government, the Indenture of Febry 1862 operated to validate the sale, so that it cannot now be questioned by the Government. That being the case it only remains to consider what can now be done to remedy the inconvenience which it is said will accrue to the public from the sale of this lot.
8. The Board of Officers, assuming that the sale of the land by the Company was "unlawful," suggest that the Company should be required to refund the amount, 1285 dollars, received for it, to be applied in part payment of its repurchase. This assumption, however, cannotManuscript image be maintained, in the face of the opinion of the Law Officers of the Crown—and it is certain that the Company would refuse to admit it. The result would be to postpone indefinitely the reconveyance of the Island to the Crown to the serious injury of public interests.
9. But it is said the Government might put a pressure on the Company in this matter, by making it a condition of the exchange of a certain lot in Fort Street which, by a mistake on the part of Mr Dallas, was inserted in the indenture of Febry 1862 for a lot in Broughton Street. The mistake was so evident that the Duke of Newcastle consented toManuscript image its rectification as part of the general arrangement. It would hardly, I think, be becoming in the Government now to take advantage of that mistake in the manner suggested by the Board of Officers, and the attempt to do so would naturally lead to strong remonstrances from the Company and continued delay. I cannot therefore, recommend the adoption of that course.
10. I have already suggested that the Hudson's Bay Co should be called on to refund the amount received for the portion of the public Park erroneously soldManuscript image for their benefit, amounting to 1700 dollars. That sum when recovered might be applied towards the repurchase of Lot Z. Lot Z has been recently valued on appeal to the Court of the Real Estate Assessed Tax at 2000 dollars. Its saleable value is probably more, but whatever it may be the balance beyond the above 1700 dollars must be provided out of Colonial Funds. It will, I presume, be necessary to obtain an Act of the Legislature giving the Crown the usual powers of compulsory purchase in respect to this Lot—but there is no reason to apprehend anyManuscript image difficulty on the part of the Legislature in passing such an Act.
11. In a Memorandum attached to the report of the Board the Attorney General expresses an opinion that the proposed Deed of reconveyance ought to be modified, and ought to be in the form of a Conveyance of all the Island excepting the Lands in Town and Country sold by the Hudsons Bay Company, which should be included in a schedule and set out on a plan to be attached to the Deed. The Deed was not drawn in it's present form unadvisedly as will be seen by a reference to the report from this Board of 10 Febry last, & as it has been approved by the Law OfficersManuscript image of the Crown in this country it is scarcely necessary to discuss the point raised by the Acting Attorney General in the Colony.
12. In the Draft as returned from the Colony some alterations have been suggested by the Colonial Government. They refer to the description of the lands excepted from reconveyance and appear to us to raise no question of importance. It would, however, be necessary that the attention of the Hudsons Bay Company should be drawn to them before the necessary steps are taken for executing the reconveyance, should Lord CarnarvonManuscript image decide, notwithstanding the remonstrance of the Board of Officers, on proceeding with that measure.
I have the honor to be,
Your obedient
humble Servant
T.W.C. Murdoch
Minutes by CO staff
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Sir F. Rogers
Mr Murdoch submits three recommendations on the Report of the local Board of Officers. 1st that the H.B. Company should be required to refund the amount (1700 dollars) realized by the sale of part of the Public Park. 2nd that the Crown should not take the course suggested by the BoardManuscript image and refuse to confirm the sales of the Water frontage on James' Bay, being precluded from doing so by the terms of the Indenture of 1862. 3rd that lot Z (Lowenbergs land) should be purchased by the local Govt & that the Sum of 1700 dollars received from the Company on account of the Public Park should be appropriated, as far as it will go, to that purpose—the balance to be paid from Colonial funds. If these suggestions are adopted the first step I apprehend will be to communicate the decision to the H.B. Company & in doing so to call attention to the red ink alterations in the Indenture?
VJ 20 Decr
Manuscript image
Mr Adderley
V.C.I. was conveyed to the H.B.C., subject, in part to certain possessory rights—and subject to the duty of governing it & of applying to public purposes the proceeds of their land sales. This did not satisfy the world or work well and after a few years, the possession & Govt of the Island was resumed by the Crown. By the terms of the agreement this involved a great settlement of accounts with the H.B.C. & a reconveyance of this soil of the Island by them to the Crown. The Settlement of accounts was effected. The Compy originally claimed (I think) some 200,000£. But ultimately the money payment was reduced (I think) to some 50,000£ or 60,000£ wh money was paid to the Compy.
On the reconveyance various knotty questions have arisen—inflamed to the highest pitch of animosity by the disputes betn Sir James Douglas the old Agent of the Company & Governor of the Island and Mr Dallas the new agent of the Compy who married Sir J. D's daughter. Mr Young the present Colonial Secretary married another daughter of Sir J. Douglas.
I mention this because I conceive that one main object of Govt here should be to prevent the publicManuscript image interest being sacrificed, with the object or the result of protracting these family disputes.
Hitherto the effect of these disputes, of the parallel quarrels between the V.C.I. Legislature & the H.B.C. has been that after years of controversy the Crown has not yet got its legal title to the soil of V.C. Island. The matter has been pending since May 1859.
The Instrument now under consn was framed after consultation with the Law Officers, (vide 7205/1865 & 2296/1866) both as to substance & as to form—and was sent to V.C.I. for verification & revision.
This is the result. I confess I can only look on the report of the Board of Officers (with Mr Young as their head) as a piece of local hard fighting—obstinacy of men who are too much absorbed in their own particular points to see that in the settlement of a large & intricate questionManuscript image mathematical justice in petty disputes must not be insisted on.
I have no doubt that if I had a weeks uninterrupted leisure for examination I shd be able to prove to Lord Carnarvon conclusively, that strict justice could not be in all respects secured without sending out a Commission of impartial Lawyers from England to take evidence on oath first there & then here. But I do not think such a conclusion wd help us much.
I think that as in the opinion of the Emign Commrs the question is now reduced to one of 1700$ say 400£—It shd be settled—by getting the money if we can—by yielding it if we cannot.
I would therefore state that Ld C. concurred in the conclusions of the Commrs & wdManuscript image request them to communicate with the H.B.C. accordingly. They have for the most part negotiated the matter with Mr Maynard the Compy solicitor.
FR 21/12
I agree.
CBA 22/12
This is all, as it seems to me, that can be done.
C 26 Dec
Other documents included in the file
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Colonial Office to Emigration Commissioners, 2 January 1867, advising that Carnarvon concurs in their conclusions with respect to the report received from the colony, and asking that such opinion be communicated to the company.
Minutes by CO staff
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See Sir F. Rogers' Minute on 10971.