THE SALE OF THE THORNDON FORESHORE.

New Zealand Times, Volume XXIX, Issue 4272, 28 November 1874, Page 3

THE SALE OF THE THORNDON FORESHORE.

The opinion of the City Solicitor upon the proposed sale of the Thorndon foreshore was laid before the City Council at its meeting on Thursday. The opinion is as follows : ■Wellington, November, 1874. Sir,—With reference to the resolution of the City Council transmitted to mo in your letter of the 7th inst., I beg to state as follows: I found that the land in question was granted to Dr, Featherston, as Superintendent of Wellington, and his successors, by grant dated the 18th October, 1855. This grant appears to have been accidentally destroyed by a fire, and on the. 20th of June, 1862, a grant in confirmation was issued, in which the original grant is recited, and the trusts and purposes for which it was made are mentioned. As the land purported to be granted by these two grants lay below high-water mark in the harbor of Port Nicholson, the grants themselves could only legally be made under the provisions of, and in conformity with, the Public Reserves Act, 1851, the second and third sections of which are as follows ; “ 2ml. It shall bo 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, or 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 situate, or adjacent, or in such other manner to sucli other persons and upon such terms as shall be 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 water frontage.” “ 3rd. Every such 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 purposes for which such lands shall be held, whether general or specific, as the case may be.” Ic does not appear from the recital of the grant of 1855 in that of ISO2, nor from that of 1862, that the first-mentioned grant was made “with the 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 matter of title, at all events, it might (subject to my observations in the sequel) be necessary for the grantee to show to a 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 from the above-quoted section 3 of the Public Reserves Act that in grants made under the provisions of the second section, the purposes for wliich any lands granted under the authority of that section are to be held must be declared in the grant itself, whilst in the grant in question it is provided that the trusts and uses for the public service of the province for which the lands granted thereby 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 lands may be granted under the foregoing provisions is, I think, extremely doubtful; but it may perhaps be contended that whatever doubts 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 Acts of the General Legislature, such as the Consolidated Loan Application Act, 1869. The Wellington Reclaimed Land Act, 1871 ; and the Wellington Harbor Reserved Mortgage Release Act, 1873. It appears, however, that, except as hereinafter suggested, the Provincial Council of Wellington have never declared any trusts or purposes, either specific or general, in respect of the land in question. Many Acts affecting it iiave been passed by that body, of wliich those most nearly touching the matter under consideration are the Harbor Keserves Act, passed in February, 1860, and the Harbor Reserves Amendment Act, passed in 1861, both of which were assented to by the Governor. These Acts are both printed in actenso in the collection of Provincial Statutes. As regards sales of the land comprised in the grant, the first section of the Act of 1856 provides that, except in the cases mentioned in the second . section, all sales shall bo by auction. The second section provides for a right of preemption to persons who may have erected wharves, &c., ■ on any part of the land ; and the third section provides that no sale shall take place without four months’ previous notice thereof in the Provincial Gazette. But as will be observed no actual authority to sell is given by this Act, the provisions above referred to only containing directions as to Die mode of conducting any sales which may thereafter be effected under due authority of law. Now the seventh section of the Public Reserves Act, 1854, 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) except by the authority of some Act or Ordinance of the Provincial Council of the Province, to be passed in that behalf ; and therefore, in the absence of an authority to sell in the Provincial Act of 1856, I am of opinion that no sale could have been legally effected under that Act. I come now to the Act of 1801. The recitals contain erroneous statements in regard to the date of the original grant, which are, perhaps, immaterial, except as creating confusion, and the first section declares that the before quoted Act of 1850 “ shall be deemed to refer to the block of land granted to the Superintendent by grant dated the 16th day of Otober, 1855, issued under the Public Reserves Act, 1854.” Disregarding, however, any doubts which may arise from this error in regard to the date of the grant, I proceed to examine how far the Act of 1861 gives power to sell the land in question. The second section of the Act is, in its language, declaratory, bub it would probably be construed as giving power to sell subject to the restrictions already noticed, which ai’e contained in the Act of 1856, except in so far as those restrictions arc modified by sections four and five of the Act now under consideration. The seventh section authorises the Superintendent to raise money by way of mortgage on the security of any unsold portions of the land “ for the purpose of reclaiming and making fit for sale any part of the said ‘ land, and for the purpose of erecting a wharf for passenger ami cargo ships of large size.” It may be that the latter provision is in the nature of a declaration by the Provincial Council of purposes for wliich the land in question is to be held under the grant, but if ho, the money to be raised must be exclusively devoted to the purposes indicated, namely, to the reclamation of the land anti the erection of a wharf, aiid to none other. But beyond the possibly implied declaration lastly above alluded to, 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 upon this state. of facts several important questions arise—--Ist. Is the grant itself in conformity with the provisions of the Public Reserves Act, 1854? 2nd. Xft not, is it of any effect for the purpose of vesting the lands comprised in it in the Superintendent ? 3rd. Even if it be sufficient, can any sale or mortgage be made of the lands in question except for the purpose 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 arc still important at all events.-as regards those parts of the land comprised in the grant which have not already boon alienated by the Superintendent. I doubt, indeed, whether Die grant could bo sustained if impeached on those grounds, unless it Is aided by the statutes before referred to. Sotting aside the question how far Dio title to the lands already sold may bo 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 18US, an Act was passed by the Provincial Council, authorising the Superintendent to raise £25,000 on the then unsold portions of the land granted to him for the purpose of recouping to that extent the general revenue of the province, In respect of its expenditure on the construction of a wharf in X’ort Nicholson harbor. This sum appears to have been raised, and was afterwards paid off out of moneys,raised under the Consolidated Loan Application Act, 1809, by section twelve of which any further mortgages of the land in question, under the provisions of the Harbor Reserves Amendment Act, 1801, were prohibited. But section 8 of the Consolidated Loan Abdication Act, 1809, is as follows “8. On payment to the Superintendent of the said sum of £31,000 and £25,000, so much of Dio land in the harbor of Port Nicholson, vested in the Superintendent under the Public Reserves Act, 1854,

as yet unsold, shall by virtue of this Act bo vested in the Governor and his successors by way of mortgage, who for this purpose shall be a corporation sole. Provided always that the Superintendent or Deputy-Superintendent may sell the same land according to the provisions in that behalf now in force, or by any Act of tho Superintendent and Provincial Council to be hereafter enacted; and the Governor and his successors shall join in the conveyances thereof, on one-half of the proceeds of such sale being paid into the Colonial Treasury to the public account in part liquidation of the said two sums of £31,000 and £26,000 to be advanced under this Act.” It may bo contended that this section authorises the Superintendent to sell according to tho provisions of tho Provincial Acts above alluded to, but it is questionable whether this is tho true construction,' and 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 these Acts, so far as is necessary for this in 1873 an Act was passed by the General Assembly, called the Wellington Harbor Deserves Mortgage Release Act, the second section of which is as follows: , , , ~ “2. On the re-paynfent by or on behalf of the Superintendent of "Wellington to the Colonial Treasurer of the said sum of £25,000, and all moneys payable to the colony in respect thereof, the said lands described in the said two hereinbefore recited grants shall bo released from the mortgage thereof, created by tho Consolidated Loan Application Act, 1809, and the Governor shall execute under Ins 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 of the province of Wellington, and thereupon the said 12th section of tho said Act shall be repealed, and the said lands, except as aforesaid, shall become and be subject to tho provisions of tho said Acts of tho Provincial Council of Wellington, mentioned in the said 12th section of the said Act and to all other Acts of the said Provincial Council passed, or to be passed, under the Public Reserves Act, 1854, relating thereto, as if tho said mortgage had never been created and tho 12th section of the said Act never been enacted, and notwithstanding anything to tho contrary thereof contained in the Wellington Reclaimed Land Act, 1871.”

It would appear that so soon as the provisions of this section have been complied with the power to mortgage, such as it is, under the Provincial Act of 1861, will revive. lam not aware whether the necessary steps to that end have yet been taken. The question still remains whether the power of sale claimed by the Superintendent (if indeed any such power is effectually given by the Provincial Acts" of 1850 and 1801, or either of them), can be exercised in the existing state of circumstances. As before observed, the Provincial Council have not declared any trusts of the land in question, and I am inclined to think that until this has been done, at all events the alleged power of sale cannot be properly exersised. The power of sale must bo treated as collateral to the trusts to be declared, and ought only to be exercised in a manner conformable to such trusts; and it is impossible to say that it can be properly exercisable until trusts have been declared accordingly. The question is a new and difficult one, upon which no authorities can bo cited, but were I acting for a purchaser under the alleged power, I should not accept the title. It will be specially noted that there are no provisions in tho Act in regard to the application of the purchase money, which, even if the sales bo valid, ought to be placed to a trust account in connection with the land in question,—l have, &c,, W. T. J«. Travers, City Solicitor. To the Town Clerk, Wellington.