Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Public Offices document
Murdoch, Thomas William Clinton to
Elliot, Thomas Frederick 30 March 1865, CO 305:27, no. 3034, 159.
Abstract
Murdoch, Thomas William Clinton to
Elliot, Thomas Frederick 30 March 1865, CO 305:27, no. 3034, 159.
Public Offices document.
Minutes (4), Other documents (1).
Murdoch to Elliot (Assistant Under-Secretary)
Emigration Board
30th March 1865
Sir,
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 circumstances
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.
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
explains
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.
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 Company
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 Town
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 Sale
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 of
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 opinion
the Hudsons Bay Co ought as a matter of honor and equity
to give it up.
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 Town
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 Sale
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 of
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 opinion
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 the
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 directly
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 time
without the delay and expense which must
attend legal proceedings.
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 directly
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 time
without the delay and expense which must
attend legal proceedings.
Minutes by CO staff
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.
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.
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
possible on this kind of base.
possible 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
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
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.
People in this document
Murdoch, Thomas William Clinton