SUPREME COURT.

Evening Star, Issue 2877, 9 May 1872, Page 2

SUPREME COURT.

IN BANCO. Yesterday. (Before His Honor Mr Justice Chapman.) Re Clarke’s Purchase. —This was a special case, submitted for the opinion of his Honor, and turned upon the interpretation of the 41st and 42ud sections of the Waste Lauds Act of 1866. The first-named section enacts that an allowance at the rate of ten acres for every 100 acres surveyed, shall be made as compensation to the purchaser for the cost of survey j and the 42nd section enacts that any person making application to have the land surveyed, shall deposit with the Waste Land Board the sum of 2s per acre as the cost of survey per acre until the land shall be surveyed and purchased ; the money to be returned, if the applicant be not declared the purchaser. The questions submitted for the Court’s opinion were—Under the 41st section of the Act, is the allowance of ten per cent, to be obtained on the whole of the land to be granted, including not only the land originally applied for, but the acreage allowance for survey, or whether it can only be claimed to the extent of the land applied for—viz., 45,500 acres ? Mr Shapter, who appeared for the Waste Land Board, said that the question turned on the construction of the word “purchased,” in the 42nd clause, and contended that the ordinary construction must be placed upon it—that was to say, the allowance of ten per cent, was meant to apply to the land actually applied for. To give it the extended meaning, which would doubtless be urged for it on the other side, would be to say that it meant au allowance in laud i u any way acquired uuder the Act, which ho held to bo an interpretation wholly improper, and not justified by the clauses. Mr Smith, who appeared for Clarke, argued that if a person applied for so much land, and undertook to survey the laud himself, he did so at his own cost; the Government surveyor reported that so many aeres had been surveyed, and he was then declared the purchaser of so many acres. His Honor : Tins is a tacit assumption that the amount of compensation must necessarily take place in land Mr Smith submitted that that was not the assumption. The marginal not; of the section said so ; but the section itself did not. It amounted to this : that for every nine acres surveyed the applicant got ten, and when ho went to the Treasury paid only for the number of acres that had been surveyed. His Honor obse ved that if the section had said ten per cent of the purchase money was to b remitted, Mr Smith’s argument would have held good. But it said ten acres for every 100 acres—that was in land. Mr Smith contended that the argument of the other side would deprive the applicant of compcnsatiod on the entire acreage—of everything beyond the area originally applied tor,

although he had been at the cost of surveying the whole. The proper intention of the Legislature he submitted was that where the applicmt undertook the cost of survey he should be recouped for every acre surveyed, and should receive compensation. If that intention could be carried out along with the expressed intention of allowing ten acres for every 100 surveyed—it was a construction which the Court should accept. It would be allowing a man to make his application, and when he came to settle with the Treasurer to pay for nine instead of ten acres ; —that was, he submitted, really allowing ten per cent off the purchase money. His contention was shortly this—That the fen per cent arrangement sufficiently satisfied the requirements of the Act, and nothing short of it would carry out what he submitted was the clear intention of the Legislature. His Honor said :—I am of opinion that that the purchaser is confined to, that his right is limited to ten per cent, in land on the quantity originally purchased. I do not see that the words ‘"surveyed and purchased” can be got over in any other way. Moreover, I think they do not mean acquired, but bought. Selling and buying, in this case, is effected by ap dication and deposit, aod that is limited to ten per cent, on 45,500 acres, No other interpretation, it seems to me, can render it impos-ible, theoretically, to arrive at a time when there can be some infinitisimal claim for compensation I consider purchasing means bought; and it is the only interpretation which would not land us in an absurdity. I will return a oertih - ato to tho Land Office that the allowance is limited to ten per cent, on 45,500 acres actually purchased and surveyed.