LAND PURCHASE CASES.

New Zealand Times, Volume LXVII, Issue 3437, 19 May 1898, Page 2

LAND PURCHASE CASES.

HATUMA ESTATE. COURT OF APPEAL PROCEEDINGS. Ia the Cjurt of Appeal yesterday, before a full Bench, the rumored oasoe “ Thomas Parris Russell, of Warrnck, Milnathort, Scotland, and of Hatuma. ITk. B >y, plaintiff, and the Hon John Mc.-.-mz-i', Minister of Lind=, di/o. I-, V and “George Edward Sdinshury. •> and Henry Hamilton Pi i I-;,-, hiii.i I* l , Euataniwha, plaintiff - , uu-,t th-> Mimsle; of Lands, defendant,” came on f.-r hear Messrs Sainsbury and I! ulgo m - mrtees under deeds of settlement. the prayer which concludes the slateia nt of claim iu each case is that the defendant may be restrained by order and injunction from proceeding to compulsorily take tho Hatuma estate under the Land for Settlements Act, 1891, and from taking any steps to assess the compensation to be paid to the persons entitled to the land, and from taking any other proceedings to take possession of the land. Mr Martin Chapman, with him MrSainsbury, appeared for tho plaintiffs, and Dr Findlay, with him Mr Baldwin, for the defendant.

Mr Chapman said it had been arranged by counsel that the two cases should be taken together, bnt that an appropriate order should be made iu each. That was to say, the Court might find a difference between the two cases: there undoubtedly was a difference. It had also been arranged tbatthereshonldbeonosetof costs, but that the Court should have power to say how tho costs should be apportioned. The facts in the two cases, said Mr Chapman, were almost identical, though some material facts alleged in the action Sainsbury v. McKenzlo worn additional to those alleged in tho notion Russell v. McKenzie. The facts in the cases were briefly these:—There was au estate in the Hawke’s Bay district known as the Hatuma estate, which consisted of 27,127 acres of land. Of that area 23,770 acres were owned by Mr Parvis Russell in fee he was tho absolute owner of that. The remainder of tho run, -1357 acres, was under settlements. There was a purchasing clause iu favour of Mr Russell. The plaintiffs said this power must have been exercised at once, and that as it had rot beon so exercised it had gone. The 4357 acres was conveyed to the trustees upon trusts in 1858. A deed poll declared that the trusts were to be for Mr and Mrs Russell for life, with remainder to Mrs Bussell absolutely’. Then there were articles of settlement made between Mary Maud, daughter of Mr and Mrs Russell, and Mr Henry James Montgomery, by which the life interests of Mr and Mrs Russell were allowed to remain, and Mr and Mrs Montgomery were given successive life interests. The Chief Justice: If tho Court is against you as to the 22,000 acres, is it worth your while to argue the other case at all ? Mr Chapman : Probably the 4000 acres is the more valuable part of the estate. The Chief Justice : If a large part of the estate goes, and it is manifest that it is only a question of time as to the rest, because the Government can begin again, is it worth while to argue tho other case ? Mr Justice Denniston : There is always a chance, as tho old man said, that the ass may die or the king may die. I won’t push the parallel any further. (Laughter.) The Chief Justice 1 Suppose the Couit is against you as to the 22,000 acres, ia it worth your while to put tho Minister.to tho trouble of taking fresh steps as to the 4000 acres ?

Mr Chapman said the plaintiffs were acting on their rights. The condition of the estate being as ho had stated, tho socalled negotiations for its purchase were commenced. A letter was sent by “ James McKerrow, chairman”—the writer did not say chairman of what offering on behalf of the Government to purchase tho

Hatuma estate, with the alternative of its acquisition under the Laud for Settlements Act. Mr McKerrow was chairman of the Board of Land Purchase Commissioners, and it was possible that the notice over hia signature would bo correctly understood as a notice from tho Board under the Land for Settlements Act, But it was to be observed that Mr McKerrow did not say what he was chairman of. If it was of anything, it would seem to be chairman of the Government of Now Zealand. (Laughter.) The offer made by him was not accepted. There was no definite refusal. Mr Russell could not accept, because the power of sale was not vested in him j that was to say, as to tho 4000 acres, the power of sal© was vested in the trustees with tho consent of all the tenants for life. The defendant [had set out a series of correspondence which ho presumably relied on as showing that there was a refusal, or that no agreement could be come to. It might appear that there was some difficulty in getting an answer from Mr Russell for some time, but really there was no coyness on his part. In the first 4 place, Mr Sainsbury, Mr Russell’s agent, made an offer: of a small part of the land, which the latter could sell. The Government made no reply, but after waiting some time cabled to Mr Russell, who was in England, for an answer to their offer. Mr Russell replied that ho was awaiting an answer to,the offer made on his behalf by Mr Sainsbury. Upon that the Government cabled that Mr ‘ Simsbury's offer was refused, and again asked for a reply to their offer. The Chief Justice: Was no answer sent to Mr Sainsbury’a suggestion except that telegram ? Mr Chapman * No answer at all. Dr Findlay ; v There were interviews.

Mr Chapman: Mr Sainsbury made an offer of a small part of the freehold, without prejudice. He specially guarded himself by saying that ho had no power to enter into any agreement. Supposing there was a refusal by Mr Russell, what was hie refusalP It was a refusal to soil tho whole of the Hatuma estate, an estate of which ho was owner only of part. The so-called negotiations wore all with Mr Russell; not a syllable was said as to the trustees.

Dr Findlay 3 A copy of the letter sent to Mr Russell was sent to Mr Sainsbury, who was solicitor for the trustees and one of the trustees himself. Mr Justice Edwards: Have you a grievance in fact ? Is it not merely technical ?

Mr Chapman : I apprehend we have tho right to hold on to our land as long as we can. This is not such a little thing. Supposing this land were taken to-day Mr Russell would lose something like 4 per cent, on his money for the rest of tho time.

Mr Justice Edwards : That is rather a reason for repealing the Act. Mr Chapman s It is a grievance in fact.

Mr Justice Donniston . suggested that relief might be 'got from the Compensation Court.

Mr Chapman: That is not our experience. (Laughter) The Government was not content with negotiating with a limited class of persons, it served the Gazette notice upon only Mr Russell and tho trustees, and not upon Mrs Russell, Mr or Mrs Montgomery, or any of tho children. Further, tho Gazette notice was irregular and insufficient because tho classification of the land was in such form that tho settled land could not be separated from the freehold land. The Minister of Lands had no power to take a portion of tho estate ; he had only power to take tho whole. The defendant said that tho act of the Governor in regard to the estate was final. The plaintiffs replied to that that the here was practically the Minister, and-‘that Ministerial acta could always be restrained by injunction- of the Supremo Court; They said that the only decision of the Governor was the decision to acquire the land, and that after that decision had been erme to certain conditions must be complied with. All the owners must be negotiated with. Owners included everybody having estate or interest itf’the land. Owner in section 6 included every person whose consent was necessary to the sale. The proceedings in connection with the 4000 acres were insufficient, because, whilst the Government should have negotiated with the trustees, they chose to negotiate simply with a tenant for life. Mr Sainsbury submitted that the defendant had no higher rights or privileges than a corporation interfering with tbo property of any person. The plaintiffs might have an affection for their land which could net be measured in money. They were entitled to stick to their land, to use a vulgar phrase, as long as they could.

Dr Findlay, for the defendant, submitted that tho owner for the purpose of refusal under the Act, did refuse to sell, and such owner was Mr Russell. Refusal meant refusal for all reasons. The Governor-in-Council had decided that the owner refused to sell, and that no agreement for purchase could bo come to; and this Court could not review tho Govertjor-in-CounoiTs decision. Hatuma was farmed and controlled by Mr Russell as one estate. The correspondence showed that the Government was anxious to acquire the land privately. Seven months elapsed from the time the first notice was sent until any critical step was taken towards compulsorily taking the land. It- was not until the end of the seven months that tho plaintiffs said there were different proprietors. The Court adjourned till this morning, when argument will be resumed.