THE SALE OF THE THORNDON FORESHORE.

New Zealand Times, Volume XXIX, Issue 4271, 27 November 1874, Page 3

THE SALE OF THE THORNDON FORESHORE.

The opinion of the City Solicitor upon the proposed Kile of the Thorndon foreshore wa3 laid before the City Council at it 3 meeting yesterday. The opinion is a 3 follows : "With reference to the resolution of the City Council transmitted to me in your letter of the 7th inst., I beg to state a 3 follows:—I found that the land in question wa3 granted to Dr. Feather3ton, aa Superintendent of the province of Wellington, and his successors, by grant dated the 18th of October, 1858. This grant appears to have been accidentally destroyed by a fire, and on the 20th of Jnne, ISC2, a graDt in confirmation was issued, in which the original grant is recited, and the purposes for which it wa3 made are mentioned. As the land purported to bo made by these two grants lay below high-water mark in the harbor of Port H|» icholson, the grants themselves could only legally be .- made under the provisions of, and in conformity with, the Public Iteserve3 Act, 1854, the second and third sections of which are as follows : "2. It shall be lawful for the Governor of the said colony, with the advice of his Executive Council, to grant and dispose of any land reclaimed from the sea, and of any land below high - water mark, in any harbor, arm, or creek of the sea, or in any navigable river on the sea coast within the said colony, either to the Superintendent of the province and his successors in or to which such land is situated, or adjacent, or in such other manner, to such other persons and upon such terms as shall le thought fit. Provided alwa>s that every such grant or disposition, within any province other than to the Superintendent thereof shall be made in pursuance of a joint recommendation by the Superintendent of such province and of the Provincial Council thereof. Provided also that nothing herein contained shall prejudice the rights of persons claiming such frontage." " 3. Everystlch grant shall be sealed with the public seal of the colony, and shall be valid and effectual as against Her Majesty, her heirs and successors, and shall have the same force and effect as a direct grant from the Crown, and for the purposes of registration shall be deemed to bo a grant from the Crown ; and every such grant shall declare the purpose for which such lands shall be held, whether general or specific, as the case may be." It does not appear from the recital of the grant of 1855 in that of 1802, nor from that of 1802, that the Jlr.-it-mentioned grant was made " with tho advice of the Executive Council of the colony, as required by the second section of the Public Keserves Act, and in order to sustain the grants as to matter of title, at all events it might (subject to my observations in the se(iuol) be necessary for the grantee to show to the purchaser that the grants were in effect issued with such advice ; but a graver question arises in regard to these grants. It will have been observed in the abovequoted section of the Public Unserves Act that the grant made under the provisions of the second section, that the purposes for which any lands granted under the authority of that section ate to bo held must be declared in the grant itself; whilst in the grant in question it is provided that the trusts and uses for which the public reserves of tho province are to be held are to be declared by Act of the Superintendent and Provincial Council of the province of Wellington. Whether the Governor had power to delegate the declaration of the purposes for which land 3 may be granted under the foregoing provisions is, I think, extremely doubtful; but it may perhaps bo contended that whatever doubt 3 may have existed as to the validity of the grant on this ground, such doubts have been set at rest by the recognition of the grant itself in several Act 3 of the General Legislature, such a 3 the Consolidated Loan Application Act, 180!). Tho Wellington lieclatmed Land Act, 1871; and the Wellington Harbor Reserved Mortgage Keleaso Act, 1873. It appears, however, that except as hercintrter suggested, the Provincial Council of Wellington have never declared any trusts or purposes, cither specific or general, in respect of tho land in question. .Many Acts affecting it havo been passed by that boiy, but those most nearly touching the matter under consideration are the Harbor Keserves Act, passed in February, 1850, and the Harijor Kejerves Amendment Act passed in 1801, both of which are assented to by tho Governor. These Acts aro both printed in externa In the collection of Provincial Statutes. As regards the sale of the land comprised in the grant, the first section of the Act of 1858 provides that, except in the case mentioned In tho second section, all sales shall be by auction. _ The second section provides for tho right of pre-emption to persons who may have erected wharves on any part of tho land, and the third section, provides that no sale shall tako place without four months' previous notice thereof in tho Provincial (Jautte. But ait will be observed no actual authority to sc'l Is given by this Act. Tho provisions above referred to only contain directions as to the mode of conducting any sales which may hereafter be effected •under due authority of law. Now the seventh section of tho Public Jlesorvcs Act of 1851 expressly prohibits sales or mortgages of land granted under, amongst others, the second section of the Act under which the grant in question was made ex :opt by the authority of some Act or Ordinance of the Provincial Council, to bo passed in that behalf; and therefore, in tho absence of an authority to sell in tho Provincial Act of 1838, I arn of opinion that, no sale could have been legally effected under that Act. I come now to tho Act of IBCI. The recitals contain erroneous statements in regard to the dato of tho original grant, which arc, perhaps, immaterial, except aa creating confusion ;

" and the first section declares that teW«W*|J Act of 1850 shall bo deemed to refer_to tho mock oi £nd Ranted to tho Superintendent by grant dated the 10th October, 1855, issued under the Public Reserves Act 1851. Disregarding, however any StTwhkh may arise from this error in regard to he date of the grant, I proceed to examine how far tho Act of 1801 Rives power to sell the land wiqiicstion. The second section of the Act is, in «' 'ansuage declaratory, but it would probably as giving power to sell sub ect to the restrictions already Noticed which arc contained in »•£*»' 1856 excent in so far as those restrictions are modiQed by sections four and five of the Act now under consideration. The seventh section authorise* the Superintendent to raise money by way of mm tgage on the security ofany unsold portions, of the:land for the purpose of reclaiming and making fit for sale any part of tho said land, and for the purpose of erecting a wharf for passenger and cargo ships of la -go size It may be that the latter provision is in the nature of a declaration by the Provincial Council of the purposes for which the land in question is to be hold under tho grant, but if so, tho money to be raised must bo exclusively devoted to the purposes indicated namely, to the reclamation of land and the erection of a wharf and to none other beyond the possibly implied declaration lastly above alluded to, but both the,Act of 1855 and that of 1801 are silent as to the purposes whether specific or general, for which the land is to bo held Now unon this state of facts several important questions arise-lst. Is the grant itself in conformity with the provisions of the Public Reserves Act. 1851 ? 2nd. If not, is it of any effect for the purposo of vesting the lands comprised in it in tho Superintendent ' 3rd Even if it be sufficient, can any sale or mortgage Dc made of tho lands in question except for the purposes of reclamation or wharf construction? As to the first and second points, it is clear that the grant is not in conformity with the provisions of the Public Reserves Act, 1854, and these points are still important at all events as regards those parts of the land comprised in the grant which have not already been alienated by the Superintendent. I doubt, indeed, whether the grant would be sustained if impeached on those grounds, unless it is aided by the statutes beforo referred to. Setting aside the question how far the title to tho land already sold may be affected by the foregoing points, I proceed to inquire into the power to deal with the unsold portions of the land. I find that in 18CS, an Act was passed by the Provincial Council, authorising the Superintendent to raise £25,000 on tho then unsold portion of the land granted to him for tho purpose of recouping to that extent the general revenues of the province, in respect of its expenditure on the construction of a wharf in Port Nicholson harbor. This sum appears to have been raised, and was afterwards paid off out or tliu muneya raised under the Consolidated Loan Application Act, ISO 9, by section twelve of, which any further mortgage of the land in question, under the provisions of the Harbor Reserves Amendment Act of 1801, were prohibited ; but section 89 of the Consolidated Loan Application Act, 1869, is as follows : "8. On payment to the Superintendent of tho said sums of £31,000 and £25,000, so much of the land in the harbor of Port Nicholson, vested in the Superintendent under tho Public Reserves, Act, 1854, as yet unsold, shall by virtue of the Act be vested in the llovernor and his successors by way of mortgage, who for this purpose shall be a Corporation sale. Provided always that tho Superintendent or Deputy Superintendent may sell the same land according to the provisions in that behalf now enforced, or by any Act of tho Superintendent and Provincial Council to be hereinafter enacted ; and the Governor and his successors shall join in the conveyance thereof, on one-half of the proceeds of the sale being paid into the Colonial Treasury to the public account in part liquidation of the two sums of £31,000 and £25,000 to be advanced under this Act. It may be contended that this section authorises the Superintendent to sell according to the provisions of the Provincial Acts above alluded to, but it is questionable -whether this is the true construction ; whether in effect it was not merely intended not to interfere with such powers of sale, as the Superintendent then held under the provisions of the Provincial Acts, and I have already referred to those Acts, so far as is necessary for this purpose. I find that in 1573 an Act was passed by the General Assembly, called the Wellington Harbor Reserves Mortgage Release Act, the second section of which is as follows :—" On payment by or on behalf of the Superintendent of the province of Wellington to the Colonial Treasurer of the said slim of £25,000, and all moneys payable to the colony in respect thereof, the said land described in the said two hereinbefore recited grants shall be released from the mortgage thereof, created by the Consolidated Loan Application Act, 1869, and theGovernorshallexecuteunder his hand and the public seal of the colony a release of the said mortgage, and re-vest the said lands, except so much thereof as are included in the descriptions set forth in the Ist and 3rd schedules to the Wellington Reclaimed Land Act, 1871, in the Superintendent and Provincial Government of Wellington, and thereupon the said 12th section of the said Act shall be repealed, and the said lands, except as aforesaid, shall become and be subject to the provisions of the said Acts of the Provincial Council of Wellington, mentioned in the said twelfth section of the said Act and all other Acts of the said Provincial Council passed, and to be passed, under the Public Reserves Act of 1854 relating thereto, as if tho said mortgage had never been created and the 12th section of the said Act had never been enacted, and notwithstanding anything to the contrary contained in the Wellington Reclaimed Land Act, 1871.

It would appear that ao soon as the provisions of this section have been complied with the power to mortgage, such as it is under the Provincial Act of 1865, will revive. lam not aware whether the necessary steps to that end have been taken. The question still remains whether the power to sell claimed by the Superintendent, if indeed any such is given by the Provincial Acts of 1861 and 1866, or either of them, can be exercised in the existingstate of circumstances. As before observed, the Provincial Council have not declared any trusts of the land in question, arid lam inclined to think that until this has been done, at all events the alleged power to sell cannot be properly exersised. The power to sell must be treated as collateral to the trusts to be declared, and ought only to be exercised in themannerconformable to such trusts; and it is impossible to say that it can be properly exercisable till trusts have been declared accordingly. The question is a new and difficult one, upon which no authorities can be cited, but were I acting for a piirchaser under the alleged power, I could not accept the title. It will be specially noted that there are no provisions in the Act in regard to the application of the purchase money, which, even if the sale be valid, ought to be placed to the trust account in connection with the land in question. AV. T. J.. TBATJERS.