COURT OF APPEAL.

Evening Post, Volume LXXVIII, Issue 7, 8 July 1909, Page 4

COURT OF APPEAL.

A TARANAKI CASE. L.I.P. J TENURE AND MINERALS. After The Post went to press yesterday, the Court of Appeal turther considered the case of the Commissioner of Crown Lands (Taranaki) v. Beimie. Their Honours Mr. Justice Williams (presiding), Mr. Justice Denniston, and ±\lr. Justice Edwards were on the Bench. The case concerned the claim of respondent, that ho had the right to purchase the fee simple of the land comprised in his lease, including the minerals other than gold or silver. Mr. Myers appeared for the appellant and Mr. 0, P, bkerrett, K.C., with him Mr. M'Veagh, for respondent. 2th. Myers addressed Vuo court at considerable length. Ho that special leases h s id been granted ail over tho country, and " he submitted that it was never intended that die led&ee snoukl be entitled to purchase the foe eimplo of the whole land. To establish le.spun- | debit's contention, it would have to be shown that a lessea had a right to purchase a great dea' more than had ever been leased to him, both minerals and sub-soil. Counsel had been speaking for over ! an hour when his Honour Mr. Justice Denniston asked: "Is it really suggested I that theic are minerals under this land?" j ' Mr. 'Myers : 1 think so ; of course I cannot say definitely. It i& a case where, to use the words of the Act, "the presence of minerals is probable." His Honour : It has been withdrawn from sale on that assumption. Mr. Myers : No doubt it is a> case of probable existence of petroleum. His 'Honour : 'It is not this particular piece of land that is troubling you? Mr. Myers : Quite so ; there is a very large principle involved. Counsel, when referring to another aspect of the case, was interrupted by his Honour Mr. Justice Edwards, who stated that the point did not appear to be »aised in the court below. Mr. Myers replied that he was not aware whether this was the caso or not. In any event, he was bound to raise the point now. ■His Honour said counsel did so quite properly ; but in small towns it was often tho case that matters were argued before a judge without the necessary authorities being quoted. One side said a thing was black, and the other said it -was white. Then the judge was expected to decide. His Honour Mr. Justice Williams : There should be no banco sittings on circuit at all. You require a good library and a strong bar. Mr. Myers agreed that the case should have been removed into the Court of 'Appeal at tho outset. In concluding his argument, Mr. Myers contended that the case should ■be construed much in the same way as a grant from the Crown is. A grant from the Crown was construed against the grantee. This lease was in a sense a statutory grant, and the rights of the Crown could not, and ought not, be held to be taken* away unless they were taken away by express and plain language, especially when there had been a solemn reservation withholding these lands from sale. Mr. Justice Denniston: The right of purchase is a- concession. Mr. Myers : Yes ; and it is a concession which should not be so construed as to take away the rights of the Crown unless that position is forced upon the court. ' When Mr. Myers had concluded his address, Mr. Skerrett, in reply, said that one of the principal questions was whether a' lease under section 121 of the Land Act, 1892, was within the general meaning of section 20 of the 1907 Act. Pie urged that this section referred to all leases-in-perpetuity, whether of the fee simple, or of the surface only. He claimed the right to purchase the fee simple comprised in his lease, including all the minerals but gold and silver, the latter being reserved to the Crown. Tho time policy of the 1907 Act, he submit,ted, was to abolish leases-in-perpetuily for the future, all lessees being granted the right to purchase the fee simple, the Crown making it clear that tenants were .to include in capital value the .price of all minerals and mines. Judgmeut was reserved. The court adjourned until Monday next.