Colonial Despatches
The colonial despatches of Vancouver Island and British Columbia 1846-1871
Public Offices document
Murdoch, Thomas William Clinton to
Elliot, Thomas Frederick 10 May 1865, CO 305:27, no. 4406, 173.
Abstract
Murdoch, Thomas William Clinton to
Elliot, Thomas Frederick 10 May 1865, CO 305:27, no. 4406, 173.
Public Offices document.
Minutes (6), Enclosures (untranscribed) (1), Other documents (1), Marginalia (4).
Murdoch to Elliot (Assistant Under-Secretary)
Emigration Board
1th0 May 1865
Sir
I have to acknowledge your letter of 5th inst, with one from the
Governor of the Hudsons Bay Co, enclosing a Memorandum prepared by
the Company's Solicitors, & concurred in by Mr Dallas, in regard to
the sale of Lot Z in Victoria, Vancouvers Island, to Mr Lowenburg
[Lowenberg].
2. The statement of the Governor of Vancouvers Island is
that the
question formed part of the Government Reserve set aside by the
Company on the Offical Map of the Town of Victoria—that the Company
had thereby divested themselves of the power to make any other
disposition of it—and consequently that they had no right to sell it
to Mr Lowenburg. He added that it was of great importance that the
Lot should be recovered for the public, and that the sale of it by
the Company was regarded with great indignation by the Legislature.
The Memorandum
enclosed in Sir E. Head's letter, which has of course
been prepared on information furnished by Mr Dallas, denies that Lot
Z formed part of the Land set apart as the Government Reserve—and
alleges that on the contrary it was separated from the Reserve by an
Ox fence, and that it so continued, in the possession of the Agent of
the Hudsons Bay Co, up to the time of the Sale to Mr
Lowenburg—that it was perfectly well known at the time of the
Agreement of Febry 1862 that this question existed, and it was then
understood that the claim of the Government was to be abandoned.
that the
question formed part of the Government Reserve set aside by the
Company on the Offical Map of the Town of Victoria—that the Company
had thereby divested themselves of the power to make any other
disposition of it—and consequently that they had no right to sell it
to Mr Lowenburg. He added that it was of great importance that the
Lot should be recovered for the public, and that the sale of it by
the Company was regarded with great indignation by the Legislature.
The Memorandum
enclosed in Sir E. Head's letter, which has of course
been prepared on information furnished by Mr Dallas, denies that Lot
Z formed part of the Land set apart as the Government Reserve—and
alleges that on the contrary it was separated from the Reserve by an
Ox fence, and that it so continued, in the possession of the Agent of
the Hudsons Bay Co, up to the time of the Sale to Mr
Lowenburg—that it was perfectly well known at the time of the
Agreement of Febry 1862 that this question existed, and it was then
understood that the claim of the Government was to be abandoned.
3. In respect to the Agreement of 1862 I must observe that the
question respecting this Lot had at that time never been raised, and
that although Mr Dallas in his interviews with us alluded cursorily
to some dispute as to the exact boundary of the Government Reserve,
we neither did, nor could, express any opinion about it. The
agreement therefore of 1862, which could of course give no validity
to any but the lawful
operations of the Company cannot affect the
question now in dispute either way. That question is whether the
Company were legally entitled to sell the Land which they did sell to
Mr Lowenburg—and that question can be decided only by a Court of
Law. Some proceedings appear to have been taken by individual
purchasers which would probably raise the question, but it would not,
I think, be satisfactory or right to leave it to be decided by a
private suit. I would accordingly submit that the Governor should be
directed
to take the necessary steps for bringing to trial before the
Supreme Court of the Colony the validity of the sale of Lot Z to Mr
Lowenburg—and that he should be further directed, if the decision of
the Local Tribunal should be against the Crown, to consider with his
Attorney General whether it would not be desirable to bring an appeal
from that decision to the Privy Council.
operations of the Company cannot affect the
question now in dispute either way. That question is whether the
Company were legally entitled to sell the Land which they did sell to
Mr Lowenburg—and that question can be decided only by a Court of
Law. Some proceedings appear to have been taken by individual
purchasers which would probably raise the question, but it would not,
I think, be satisfactory or right to leave it to be decided by a
private suit. I would accordingly submit that the Governor should be
directed
to take the necessary steps for bringing to trial before the
Supreme Court of the Colony the validity of the sale of Lot Z to Mr
Lowenburg—and that he should be further directed, if the decision of
the Local Tribunal should be against the Crown, to consider with his
Attorney General whether it would not be desirable to bring an appeal
from that decision to the Privy Council.
Minutes by CO staff
Sir F. Rogers
The Comrs recommend a trial of the case before the Supreme Court of the Colony. On 4225 Mr Blackwood has adverted to the desirableness of having a professional Judge, if possible, before this Course is brought on.
The Comrs recommend a trial of the case before the Supreme Court of the Colony. On 4225 Mr Blackwood has adverted to the desirableness of having a professional Judge, if possible, before this Course is brought on.
A permanent salary of £1200 has been provided for the Judge, and
although the Act may want some amendments, you have recorded your
opinion, I understand, that it will be safe to appoint a new Judge at
once. The case, I believe, is in the hands of Mr Parker, who has
numerous applications.
TFE
11 May
Mr Fortescue
I do not often differ from the Emign Commrs. But on this occasion I certainly feel a good deal of difficulty in recommending Legal proceedings—because first they will cost a great deal—secondly they will prolong irritation, thirdly they will delay the reconveyance of V.C.I. to the Crown—and fourthly I doubt whether they wd be successful.
I do not often differ from the Emign Commrs. But on this occasion I certainly feel a good deal of difficulty in recommending Legal proceedings—because first they will cost a great deal—secondly they will prolong irritation, thirdly they will delay the reconveyance of V.C.I. to the Crown—and fourthly I doubt whether they wd be successful.
I think it very likely that we have been outwitted by the Company's
Agents in matters of detail. It could hardly be otherwise. But the
alternative of keeping the whole legal ownership of the land of the
Colony in the hands of the H.B.C. was and is so inconvenient in
itself & may give rise to such numerous complications & quarrels that
great sacrifices may be prudently made
to avoid it.
to avoid it.
My main ground for fearing an adverse result in a Court of Law wd be
that whatever the real value of the HBC's sale to Mr Lowenberg the
Crown is precluded from calling it in question by the 1st article of
the indenture of Feby 1862.
It is argued that this sale was altogether ultra vires & void & that
it was not intended by act 1 of the indenture to set up such a sale.
But it appears to me that the sale wd have been valid (on any
hypothesis) if it had been made with consent of the Crown, and that
it must have [been]
intended by Act 1 of the indre that the Crown
shd not call in question any sale, which by its concurrence it
mt have rendered valid.
intended by Act 1 of the indre that the Crown
shd not call in question any sale, which by its concurrence it
mt have rendered valid.
I should refer to the Law Officers for advice—turning into a letter
the annexed memo marked A of my own. Fuller information will be
found in the memo (also annexed & marked B) of Mr Ebden.
FR
31/5
Mr Cardwell
Refer to Law Officers accordingly?
Refer to Law Officers accordingly?
[Memorandum "A"]
Par: Papers 12 Feb: 49 Nos 3, 4, 6
In 1849 the Hudson's Bay Company applied to the Secy of State to
confirm their title to certain lands then of little value which they
had occupied in Vancouver Id in connexion with their licence of
Exclusive trade, and Lord Grey after a short correspondence admitted
the principle of their demand.
Nos 9, 10 [and] Par: Papers 7 March 49 pp: 15, 16
But this narrower question was almost immediately merged and lost
sight of in a larger proposal which was made at the same time and
ended in a Grant of all Vancouver I to the H.B.C. for purposes of
settlement. This grant to was made in trust, inter alia, to sell the
land "except so much thereof as might be required for public
purposes" and to apply 9/10 of the proceeds to colonization,
reserving the remaining 1/10 as profit to the Company. It also
reserved to the Government the right of repurchasing the Island on
certain
terms.
terms.
The lands originally claimed by the H.B.C. were not excepted from
this grant in trust. The Company however on the strength of Lord
Grey's admission & in spite of the grant continued to treat them as
their private property. They marked them out on their own authority
(apparently in 1851: Colonial pamphlet pp. 10, 11) to the Extent of
3084 acres registered & reported them to the C.O. as belonging to
themselves and proceeded to deal with them and sell them for their
own benefit discharged of the Trust.
In 1854 they set out 10 acres of this land as
an Indian Reserve on
which however it was afterwards found convenient to place some
government buildings.
In 1858 Mr Douglas who had been appointed Governor by the Crown and
was also the Companys Agent with full authority in matters affecting
land Sales, and Mr Pemberton who was acting for the Company as
Surveyor General,
framed and, it is said, published an official plan
of the proposed town. In this plan the lands about the Reserve were
laid down in building lots; the Reserve itself was laid down as
occupied by Government buildings, & its boundaries were altered. The
original southern limit of the old Indian Reserve is described by the
Company as an Ox fence
separating it from a farm called Bexley or Dutnell's farm. The
Colonial Government however say that the alleged ox fence is a mere
open drain.
framed and, it is said, published an official plan
of the proposed town. In this plan the lands about the Reserve were
laid down in building lots; the Reserve itself was laid down as
occupied by Government buildings, & its boundaries were altered. The
original southern limit of the old Indian Reserve is described by the
Company as an Ox fence
But this limit of the original reserve is certified by the Govt
whose vision of the matter wd reduce though not remove the ground of
dispute.
The substituted southern boundary, which, it is alleged, was now
marked out by posts, formed one side of a proposed Street.
The strip of land lying between these two lines and called in the
Accompanying papers lot Z was thus according to the Company added to
the Reserve. It contains nearly 3 acres.
In 1859 the Home Govt gave notice of their intention to repurchase
the Island under
the powers reserved in the Deed of Grant.
Consquently upon this notice, Mr Douglas and Mr Pemberton ceased
to be agents of the Company and their successor Mr Dallas made fresh
plans more or less at variance with those of 1858 of which he declares
himself to have been ignorant & under his new plans he
proceeded to sell what he treated as the private property of the
Company. Among other things (in 1861) he sold Lot Z.
the powers reserved in the Deed of Grant.
Consquently upon this notice, Mr Douglas and Mr Pemberton ceased
to be agents of the Company and their successor Mr Dallas made fresh
plans more or less at variance with those of 1858 of which he declares
himself to have been ignorant & under his new plans he
proceeded to sell what he treated as the private property of the
Company. Among other things (in 1861) he sold Lot Z.
This was an evident injury to the Government buildings as it
deprived them of one of their street frontages and more than 1/4 of
the ground attached to them. It is also alleged to be an injury
to those who had bought building lots on the opposite side of the
street.
Meantime, the notice of repurchase given in 1859 had raised a
further question wh in 1860 it was determined to refer
to the Judicial Committee of Privy Council viz the question
whether the Company were really entitled to treat as
private property
the 3084 acres above mentioned for the sale of which they had now
realized enormous sums of money—chiefly in consequence of the gold
discoveries.
private property
the 3084 acres above mentioned for the sale of which they had now
realized enormous sums of money—chiefly in consequence of the gold
discoveries.
The negotiations for the repurchase ended in an arrangement under
which
1. The Government was to pay the Company a sum of about £55000 being
the reimbursement of money spent by them in Govt & Colonization.
2. The Emigration Commissioners—on the one side & the
Company on the other executed an indenture dated 3 Feby
1862 containing the following provisions
retain for their own use and benefit
the proceeds & purchase monies of all lands so sold by them as
aforesaid.
5. That the whole of the remaining unsold lands in the said
Victoria district, lying to the South and West of James Bay,
including the site of the New Government Buildings, as far as the old
fence in the rear thereof dividing it from a farm known as Bexley,
Beckney, or Dutnell's farm shall be forthwith conveyed and surrendered
by the Company, unto and to the use of H.My, Her heirs and
successors.
Colonial pamphlet pp 41, 42
1.‹That all sales made by the said Company, previous to the
first day of January 1862 of any portions of the land so occupied by
them as aforesaid," [marginal note: meaning the 3084 acres]
before the 13 Jany/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 My, Her heirs and successors.
2.‹That the Company shall
retain for their own use and benefit
the proceeds & purchase monies of all lands so sold by them as
aforesaid.
5. That the whole of the remaining unsold lands in the said
Victoria district, lying to the South and West of James Bay,
including the site of the New Government Buildings, as far as the old
fence in the rear thereof dividing it from a farm known as Bexley,
Beckney, or Dutnell's farm shall be forthwith conveyed and surrendered
by the Company, unto and to the use of H.My, Her heirs and
successors.
Under these circumstances the Colony desire to
retain or regain possession of lot Z while the Company desire that
the title of their purchaser should be completed or allowed.
It is urged on the part of the Govt, and public of
Vancouver I that the Sale of lot Z was no sale and should not
be considered as covered by the Indenture of 1862—first because the
Company were not authorized, by the Grant of 1849, to sell land
"required for public purposes," and the land was so required having
in 1858
been reserved for Govt buildings by Mr Douglas in his double
capacity of Governor and Company's Agent.
2. Because the
offical plan of 1858 which represented lot Z as Govt Reserve
constituted a pledge to the public that it should be so maintained,
on the faith of which pledge certain lots of land have been bought—&
particularly those on the opposite side of the street.
The Colonial Government therefore desire, that proceedings
should be taken against the present occupants under the grant from the
H.B. Company.
On the other hand the Company will probably contend that
Reserves of this kind ought to be
held to be provisional, at least
till confirmed, or until granted to the Govt in trust for the
Colony by them: in the present case no such confirmation was given or
grant issued.
held to be provisional, at least
till confirmed, or until granted to the Govt in trust for the
Colony by them: in the present case no such confirmation was given or
grant issued.
That as between the
Govt and the Company the sales of Govt Reserves could no
doubt have been effected by common consent—and therefore, whatever
may be the rights of private persons, the Crown is precluded
from calling the sale in question, by the first clause of the
Indenture of 1862, especially as interpreted by the 5th clause.
The Company is of course concerned to avoid any step which
would throw doubt upon their right to deal as they have
done with lands in and near Victoria under their second plan of 1859.
It is extremely undesirable that, the question should remain
unsettled because till it is decided, the reconveyance of Vancouver
Island, to the Crown is delayed: and it is of course possible that
much public inconvenience and insecurity may be caused in the
Colony by this delay.
P.S. The case for the Law Officers it is suggested by Mr
Walcott, shd embrace the follg specific questions
.in +2 -0
1. Was the Reserve and dedication of the Land to public
purposes effectually made by or on behalf of the Company.
2. If so could they afterwards cancel it as to part so as to
enable them to sell that part (Lot Z) for their private advantage.
3. If not could the Crown by joining them have enabled
them Lawfully to effect such cancellation & sale & if so
4. Wd the agreement of Feby 1862 operate retrospectively
as a confirmation of the cancellation & sale, or preclude the Crown
from impugning its validity.
.in -2 +0
[Memorandum "B"]
Gov 2637
Emign Commrs 3034, 4406;
Hudsons B. Co. 11413, 4225;
H. of C. paper Feb/49, March/49;
Vancouver Id paper/1864
Of the public inconvenience which would be occasioned by the
permanent alienation of lot Z to a private individual there can be no
doubt.
Two questions arise upon its sale by the Hudsons Bay Company to Mr
Lowenberg
1. Whether it lies within a certain piece of land reserved for
government purposes.
2. Whether its
sale was originally legal and if not whether it would
be covered by a subsequent agreement between the Crown and the
Company made in February 1862.
sale was originally legal and if not whether it would
be covered by a subsequent agreement between the Crown and the
Company made in February 1862.
Perhaps it may prove convenient to consider the second question first.
In 1838 the Queen granted to the Hudsons Bay Company for twenty one
years an exclusive right of trading in such parts of British North
America as were not already in the Companys possession and were not
within the limits of any British North American Province. This grant
was
revoked as to British Columbia in 1858 and expired altogether in
1859.
revoked as to British Columbia in 1858 and expired altogether in
1859.
Vancouver Id paper p. 10
In 1841 Mr (now Sir) James Douglas as agent of the Company surveyed
a Station for trading in Vancouver Island. The extent of country so
surveyed was 20 square miles but not more than 6 square miles appears
to have been bonâ fide occupied namely two for "enclosures" and
"tillage" and four for "enclosures" and a "range for stock."
The Company had other stations in the territory known as the Oregon
Territory besides that in Vancouver Id.
When by the Oregon
Boundary Treaty in 1846 the 49th parallel of North latitude was
taken as the boundary between the territories of the United States
and Great Britain, the Companys stations south of that line were made
the subject of a special article in the Treaty.
When by the Oregon
Boundary Treaty in 1846 the 49th parallel of North latitude was
taken as the boundary between the territories of the United States
and Great Britain, the Companys stations south of that line were made
the subject of a special article in the Treaty.
H. of C. paper Feb/49 p. 3
Upon the conclusion of the Treaty the Company asked with reference to
their establishment in Vancouver Id "whether they would be confirmed
in the possession of such lands as they might find it expedient
to add to those which they already possessed," thus indirectly
asserting a title to the
Station occupied by them in the exercise of
the license to trade.
Station occupied by them in the exercise of
the license to trade.
A correspondence followed in which the claim so advanced was not
allowed or disallowed
but was left unnoticed. The subject was the grant to the Company for
the purpose of Colonization of the whole once part of the unoccupied
territory in British North America and the result was the conditional
grant of Vancouver Id in 1849.
Hardly. "Lord Grey further directs me to state
he is prepared to assent &c"—P.P. 12. Feb. 1849 p. 9. Vide
also 2 follg letters—Lord Grey says first that "he is prepared to
assent ... to your proposal that certain lands in V.C.I. ... shd be
granted to the H.B.C. but ... requires an opinion from HM's Atty
& Solr General ... that the acceptance by the Compy of such a Grant
wd be consistent with their Charter of Incorporation."
.par
Then on receiving that opinion he writes that he "is ready to receive
& consider the draft of such a Grant as the Compy wd desire to
receive &c."
.par
But this smaller question was merged in the greater one.
H. of C. paper March 49—pp. 15, 16
This grant was liable to revocation failing the fulfillment of
certain conditions by the Company or, if Her Majesty should think
fit, upon the expiration of the exclusive license to trade. These
liabilities
are the subjects respectively of the last two clauses of
the grant. The disposal of land is regulated by the last clause but
two.
are the subjects respectively of the last two clauses of
the grant. The disposal of land is regulated by the last clause but
two.
In 1859 upon the expiration of the license to trade notice of
resumption of the grant was given to the Company. In the meantime
(1853) the Company had registered as belonging to themselves, not by
purchase in their private capacity on the footing of ordinary
purchasers under the grant, but by a title anterior to the grant, a
portion (vir 3084 acres or thereabouts including the site of
Victoria) of the land (vir 8 square miles) occupied by them before
1849, which they accordingly claimed as
their private property and
included as their own in various returns to the Col. office witht
dispute. As last known this claim was disputed by the Colonial
office and preliminary steps were taken for its investigation by the
Judicial Committee of Privy Council.
their private property and
included as their own in various returns to the Col. office witht
dispute. As last known this claim was disputed by the Colonial
office and preliminary steps were taken for its investigation by the
Judicial Committee of Privy Council.
The Company might perhaps have sought to found an equitable if not a
legal title upon their occupation of the land in the exercise of the
license to trade and upon the fact that the claim indirectly advanced
by them in 1846 had not been then explicitly disallowed.
On the other hand the claim had as certainly not been allowed and the
grant, which might have been taken as the Companys title to the whole
Island and to any part of it, made no distinction in favour of
any
particular land.
any
particular land.
However the question was sought to be compromised by an arrangement
in the shape of an indenture dated the 3rd of February 1862 by which
sales by the Company before 1862 were confirmed as against the Crown
and the portion unsold was divided between the Crown and the Company.
Although upon notice of resumption of the grant the disposal of the
public land was practically taken out of the hands of the Company,
yet purchasers cannot receive titles without the formality of the
Company's assent until the accomplishment of the reconveyance to the
Crown contemplated in the Indenture, which
however has been delayed
in consequence of the disputed right of the Company to have sold
a certain piece of land known as lot Z.
however has been delayed
in consequence of the disputed right of the Company to have sold
a certain piece of land known as lot Z.
Lot Z is part of the 3084 acres. It was sold by the Company to Mr
Lowenberg early in 1861 and therefore within the time prescribed by
the Indenture.
It is maintained by the Colonial Government to be within a certain
piece of land authoritatively reserved in 1858 for public purposes.
It is maintained by the Company on the contrary to be without that
reserve.
It is not questioned that if waste land at the time of its sale, that
is
if neither already sold to a private individual nor already set
apart for a public object, its sale would be valid under the
indenture which confirms previous sales as against the Crown.
if neither already sold to a private individual nor already set
apart for a public object, its sale would be valid under the
indenture which confirms previous sales as against the Crown.
But assuming for the present that lot Z is within the Reserve, the
following case arises.
No title to land in Vancouver Id anterior to the grant of the whole
Island to the Company in 1849 has been acknowledged by the Crown.
In regulating the Sale of land the grant excepted from sale such land
as might be required for public purposes
without making any
reservation in favour of any particular land.
without making any
reservation in favour of any particular land.
In 1858 the Chief Officer of the Company who had full power to
exercise their power of disposal of land reserved a piece of land
including lot Z for public purposes. This appropriation was part of
the official plan of Victoria made in 1858 whilst the Island was
under the Company. Upon that official plan town lots have been sold
by the Company and bought by individuals and in reliance upon the
efficacy of the Reservation Government offices have been erected
upon the Reserve in 1859. The alienation of
lot Z by the Company to
a private individual would impair the value of the Reserve as a site
for public offices by preventing easy access to them from a large
portion of the town and would involve a breach of faith to the Crown
and to individuals.
lot Z by the Company to
a private individual would impair the value of the Reserve as a site
for public offices by preventing easy access to them from a large
portion of the town and would involve a breach of faith to the Crown
and to individuals.
In 1853 the Company registered as belonging to themselves by a title
anterior to the grant 3084 acres including lot z which was sold by
their manager early in 1861 to Mr Lowenberg and therefore after the
notice of resumption but the Company sold the land not as public land
but as their private property for their benefit in their private as
distinct from their administrative capacity.
Could the Company legally sell lot Z after its appropriation for a
public purpose?
If the Company could not do so originally, would such sale become
valid under the indenture of 1862 which recognises as against the
Crown sales of portions of the 3084 acres effected before 1862?
Or does not the indenture rather have respect to such sales only as
at the time of sale could be legally effected, putting aside the
question whether the Company could legally sell any portion whatever
of the 3084 acres, which was compromised by the Indenture of 1862?
———————-
Next—as to whether lot Z is or is not part of the Reserve.
15 July 1861 Vancouver Paper p. 22
The first notification to the Colonial Office of the sale of lot Z
was by letter from the Company who complained
that the purchaser had
been interrupted in taking possession of it.
that the purchaser had
been interrupted in taking possession of it.
Memo with Company 4225/65
On this occasion they described it as part of a farm which had been
long under cultivation by the servants of the Company, as separated
from the Government Reserve by a "ditch or fence" (recently magnified
into an "ox fence" consisting of ditch, bank and rails), and as separated
or about to be separated from the rest of the farm by a "proposed
street," a circumstance which in the opinion of the Company had made
its sale advisable.
24 Oct. 61, 20 Apr. 62, 11 Aug. 63
Vancouver paper pp. 23, 49, 62
Mr Mactavish Vancouver paper p. 59
On the contrary Governor Douglas reported
that lot Z was
part of 10 acres reserved in 1858 for Government
purposes; that it had certainly not been under cultivation since that
date; that it was not separated from the remainder of the Reserve by a
"ditch or fence" except a surface drain was considered such; that the
"proposed" street was actually part of the official plan of Victoria
designed in 1858 whilst the Island was under the Company; that in
that plan the "rear line" of the Reserve, including lot Z, appeared
as part of one side of the street on the opposite side of which town
lots were laid out and sold by the Company and bought by individuals
in reliance upon the official plan; that the
Company did not dispute
the extent of the Reserve vir 10 acres which however by the
abstraction of lot Z would be reduced to 8 acres;
that lot Z was
part of 10 acres reserved in 1858 for Government
purposes; that it had certainly not been under cultivation since that
date; that it was not separated from the remainder of the Reserve by a
"ditch or fence" except a surface drain was considered such; that the
"proposed" street was actually part of the official plan of Victoria
designed in 1858 whilst the Island was under the Company; that in
that plan the "rear line" of the Reserve, including lot Z, appeared
as part of one side of the street on the opposite side of which town
lots were laid out and sold by the Company and bought by individuals
in reliance upon the official plan; that the
Company did not dispute
the extent of the Reserve vir 10 acres which however by the
abstraction of lot Z would be reduced to 8 acres;
Vancouver paper pp. 41, 42
The 5th article of the Indenture of 1862 confirmed the Reserve to
the Crown "as far as the old fence in the rear thereof dividing it
from a farm known as Bexley ... farm." Governor Douglas concluded
from their assent to this article that the Emigration Commrs could
not have been aware of the dispute, which certainly does not appear
to have been communicated to them by this office, and in the event of
their ignorance of it the above language, attributed by
Governor
Douglas to Mr Dallas, would be calculated to make them believe that
they were making a safe concession. Practically however the 5th
article has not settled the question one way or the other.
Governor
Douglas to Mr Dallas, would be calculated to make them believe that
they were making a safe concession. Practically however the 5th
article has not settled the question one way or the other.
The copies made in 1861 of the official plan of Victoria made in 1858
as well as the Companys map prepared as required by the 5th article
of the Indenture both exhibit the position of the Reserve including
lot Z with relation to the rest of the town. In the plan of 1858 lot
Z is evidently included in the Reserve, in the Companys map made four
years afterwards lot Z is distinct from the Reserve. Both maps shew
that by the alienation
of lot Z to Mr Lowenberg access to the public
offices from a large portion of the town except by a circuitous route
would be prevented.
of lot Z to Mr Lowenberg access to the public
offices from a large portion of the town except by a circuitous route
would be prevented.
2637 [and] Memo with Company 4225/65
By a despatch recently received from Governor Kennedy the
appropriation of 10 acres for government purposes appears to have
been first made in 1854 by authority of Governor Douglas who had full
power from the Company to dispose of land. This appropriation is
stated to have been duly communicated to the Company and is in fact
acknowledged by their solicitor.
Solicitors Memo with Company 4225
Between 1854 and 1858 a portion of this Reserve was intentionally or
not used for another
purpose and to compensate for the loss a
readjustment of boundaries was in the latter year ordered by Governor
Douglas who still held the powers held by him in 1854. Mr Dallas
who sold lot Z to Mr Lowenberg says that he was ignorant of any
alternation in the boundaries of the Reserve, which may have been the
case as he did not succeed Governor Douglas in the management of the
Companys affairs till February 1859.
purpose and to compensate for the loss a
readjustment of boundaries was in the latter year ordered by Governor
Douglas who still held the powers held by him in 1854. Mr Dallas
who sold lot Z to Mr Lowenberg says that he was ignorant of any
alternation in the boundaries of the Reserve, which may have been the
case as he did not succeed Governor Douglas in the management of the
Companys affairs till February 1859.
Tracing B with 2637
A tracing received with Governor Kennedys despatch exhibits the
boundaries of the Reserve as fixed in 1854 and as altered in 1858.
This tracing if correct would prove
the greater part of lot Z to be
within the boundaries of 1854, and as these boundaries are
acknowledged by the Company, another element would be introduced into
the question.
the greater part of lot Z to be
within the boundaries of 1854, and as these boundaries are
acknowledged by the Company, another element would be introduced into
the question.
Solicitors Memo with 4225
The company also has supplied a tracing with the object of shewing
the present and original boundaries of the Reserve, but even for its
own purpose it lacks the precision of the Government tracing with
which it is not reconcileable.
The Company endeavours to
account for the entire diminution in the quantity of 10 acres which
would follow the alienation of lot Z by the use of part of the
Reserve of 1854 for a road. The Colonial Government allows that part
of the Reserve of 1854 was used for a Road
but in effect maintains
that to compensate for the loss a portion of lot Z was added in 1858,
the remainder of lot Z having all along formed part of the Reserve.
N.B. Since the reservation in 1858 one acre on the water front of the
Reserve has been reclaimed by Govt from the sea. This is beside the
question but is mentioned in case the Company should purposely confound
it with part of the original reserve.
[RE]
but in effect maintains
that to compensate for the loss a portion of lot Z was added in 1858,
the remainder of lot Z having all along formed part of the Reserve.
———————-
Legal proceedings are said to have been taken by individuals in the
Colony to annul the sale of Lot Z. The Emigration Commrs recommend
that the case should be taken up
by the Colonial Government & that, in the event of an
unfavourable decision in the Colonial Courts, there should be an
appeal to the Privy Council. The Company have declared their resolve
to defend the cause to the last.
It has been suggested that the Colonial Govt should buy lot Z
of Mr Lowenberg rather than let him keep it, but the Company ought
to give it up themselves of course compensating Mr L.
.par
The Company decline to give it up so that only the alternatives are
left of buying from Mr L. or going to law.
[RE]
———————-
Other sales of portions of the 3084 acres reserved for public
purposes would
appear to have been effected by the Company for their
exclusive benefit before 1862. The sale of lot Z however is that
respecting which there is most information. The whole subject was
last year investigated by the Assembly from whose resolutions the
Company would appear to have realized by the sale before 1862 of
portions whether reserved or not of the 3084 acres, and in the value
of the unsold land secured to them by the indenture, upwards of 1 1/4
million dollars. The Assembly beg that the indenture may be
cancelled. This would be impossible, but it may be possible to
dispute the sale of lot Z and similar transactions if any.
appear to have been effected by the Company for their
exclusive benefit before 1862. The sale of lot Z however is that
respecting which there is most information. The whole subject was
last year investigated by the Assembly from whose resolutions the
Company would appear to have realized by the sale before 1862 of
portions whether reserved or not of the 3084 acres, and in the value
of the unsold land secured to them by the indenture, upwards of 1 1/4
million dollars. The Assembly beg that the indenture may be
cancelled. This would be impossible, but it may be possible to
dispute the sale of lot Z and similar transactions if any.
RE
29/5/65
Documents enclosed with the main document (not transcribed)
Memo, S. Walcott to Murdoch, 5 June 1863, pointing out
various legal questions arising from the dispute and providing his
observations on various aspects of the question; revisions added by
Colonial Office staff.
Other documents included in the file
Elliot to Attorney General and Solicitor General, 21 June 1865,
referring the question of the government reserve and the disposition
of Lot Z for their consideration, with complete background information
provided (ten pages).
People in this document
Fortescue, 1st Baron Carlingford Chichester
Grey, Third Earl, Henry George
Murdoch, Thomas William Clinton