MAITLAND v. MERVYN.

Otago Daily Times, Issue 6432, 23 September 1882, Page 4

MAITLAND v. MERVYN.

TO THE EDITOR. Sir, —The recent decision of the Supreme Court in the case Maitland v. Mervyn has called forth from you two leading articles which I cannot but think are most unfair to Mr Mervyn.

The mere fact that you comment upon a case still before the law courts of the Colony, and in which the matters at issue may yet come before a jury, in a manner calculated seriously to prejudice the interests of one of the parties to the action, I cannot but look upon as travelling altogether outside of your legitimate functions as a journalist.

As I have no desire to imitate your example, I would merely ask that in justice to Mr Mervyn you should publish a letter addressed by my firm, by instructions of Mr Mervyn, to the Waste Land Board, and read to the Board at its meeting on Wednesday last, of which I be* to enclose you a copy, from which you will see that had the Board availed itself of the remedies provided by the Act, or were it even now so to avail itself, it would have received back the whole of the land, together with a much larger sum of money from' Mr Mervyn than it could equitably claim for the use of the same for the period during which it has been occupied by him. I purpose in a day or two forwarding to you a few remarks explanatory of the real effect of the recent decision of the Supreme Court on the working of the deferred-payment system, as it is of general intercut. —I am, &c, J. AITKEN CONNELL,

September 22nd.

[We cannot admit that there was anything Unfair to Mr Mervyn in either of our articles, but as negotiations rire pending we refrain from further comment at present;— JEri. O. D. T.]

14th September, 18S& The Chief Commissioner of the Waste Lands

Board, Dunedin; Sir, — Be D. H. Mervyn. We are instructed by Mr D. H, Mervyn to make application to the Board to enforce the provisions of "The Land Act, 1577," and requite him to' give up possession of section 7, Block XrV", Benger district, for which he holds a pastoral deferred-payment license, liis right t'd which h;i3 been forfeited under the provisions of section b'3 of the said Act (sub-section 10);

We are aware that the Board has hitherto declined or neglected to do this, under the im-, pression that Mr Mervyn could be compelled to carry out the original terms of his purchase; he, (on the contrary, believing that if he was prepared to forfeit auy_ payments he had made and 25 per cent, of his improvements, he was not liable to complete its purchase. The recent decision of Mr Justice Williams supports Mr Mervyn's view, and it is not without considerable doubt that his Honor indicates an action for use and occupation as the only remedy for the Board if the enforcement of forfeiture is not made—the course, we respectfully submit, clearly indicated by the statute« This course Mr Mervyn has all along been anxious and willing that the Board should follow, and he now instructs us again to beg that the Board will take this course.

We have the honour to point out t hat Mr Mervyn paid to the Board in 1579 the sum of £90 11s 3d, which sum, together with 25 per cent, of his improvements, will under the Act be forfeited to the Crowm

He has occupied the land from Ist September, 1879, to Ist September, 1882, say for a period of three years. Taking into consideration the character of the land as pastoral country—running up as it does, we believe, to an altitude considerably exceeding 3000ft above sea-level—and taking as a measure of value the rents received at recent sales of the leases of runs of similar pastoral country, we submit that Od par acre per annum would be considerably beyond the fair rent which sucli land as that of Mr Mervyn would command.

We may instance the fact that run No. 249 (Eraser's, Earnseleugh) was offered to public competition in February last, and realised only 5d per acre, although subdivided into threo parts, and each part offered separately. The whole of the conditions affecting this run are precisely similar, indeed almost identical, with those affecting Mr Mervyn's land, excepting that Eraser's has a much larger proportion of low-lying country. It fronts the Clutha River, as does Mr Mervyn's land; backs upon the same mountain range; has the same main road running through it; and is subject to the same conditions as .regards rabbits ; it has, moreover, the same aspect. No competent person, we submit, who knows the districts and is competent to form a sound judgment could possiblj' come to a conclusion that Mr Mervyn's land was worth more for usa and occupation as pastoral land than run No. 249. Taking, however, a rental 20 per cent, higher as a measure of value, this would give Gd per acre, or £25 17s, per annum as rental, which for three years amounts to £77 11s. Mr Mervyn, however, has already paid in one sum in advance £90 11s 3d, which would represent a considerably larger sum were any allowance made for interest. We beg therefore respectfully to submit that no possible good can result to the Board or to the revenue by further protraction of law proceedings, as Mr Mervyn is ready to acquiesce in forfeiture, and to give up possession of the land, under which course the Board will have received a much larger amount than it could possibly do, even if successful in a suit for use and occupation. It is, of course, open to the Board to appeal against the recent decision of Mr Justice Williams, or to proceed with the suit for use and occupation, but we beg to submit with profound respect that ho settler should be required to carry on a case for the purpose of settling on the highest authority general questions as to the Board's powers and remedies under the statute, and if the Board should feel disposed to refuse the present application with a view of finally settling such questions, we submit that an assurance should be given that the Board or the Government will pay all costs on both sides, otherwise the suit may, and indeed probably will, prove ruinous to Mr Mervyn.— We have, &c, (Signed) Con'N'ell axd Moodie.