MR E. G. ALLEN AND THE DUNBACK RESERVE.

Otago Daily Times, Issue 12601, 3 March 1903, Page 3

MR E. G. ALLEN AND THE DUNBACK RESERVE.

-.a. At lost night's meeting of the Port Chalmers Borough Council the matter of the Dunback Reserve, leased <to Mr E. G. Allen, again came up for consideration. Mt E. G. Allen wrote:— "In tho report of the council's proceedings on tho 16th ult. a. statement was made by Cr Cable that I 'had denied having sub-leased a portion of my land at Dunback, and then admitted having done so. I have never, admitted doing anything of the kind. Thai councillor and some of his colleagues who arc hostile to me persistently distort facts. They assert that the arrangements I have made with my neighbour is sub-leasing. I assert it is so suck thing; therefore I maintain that I have not sub-leas«d. A sub-lease would involve parting with the tenant's interest in tho land or thing sub-leased. I have not parted with my interest in nor my right to sue for tresspass on tho land. I keep the fences around tli. crop repaired, destroy tho rnbbits, and look after my interests in the crop just the same as I would if I paid wages for cultivating them. I should like to know what would bo the difference to tho council whether I arrange to cultivate the land under my instructions and pay in oats, or employ my own men and sell the crop and hand Iwck to the workmen what they would bo entitled lo out of the price paid. The difference would bo that betwixt Tweedledum and Tweedledee. The present storni in a- teacup was started by Cr Tait stating that I had sub-let a considerable portion of the endowment at a rental of at least 16s an acre, but which might even amount to 303 per acre. These were important statements, said Cr Tnit, and he mado them in all seriousness. Ana it all works into this— that I shall lave tho crops from about 10 acres for winter feed on the run, That is tho -••• -total of the matter. Even if the crop is

one of the best, and realises Cγ Tait's greatest price, it would represent to me a> gain of £30— * sum not half as much as I pa-id last' year for bonedust and fencing the land, All theso facts could easily linve been found out by private- inquiry; but that did not suit my political opponents. They had a. Dunback scandal to expose. 'It would be an eyeopener" to the council, as the prime mover declared; and so I have had to put up with, tho worry and annoyance of seeing public charges matte against me on no .foundation by itresponsibjo persons, who took this course, to gratify their political malice.'.' Tho Kcserves Committee repotted:—" The committee appointed to inquire into the circumstances connected with sub-leasing of tho Uunback Reserve without the written consent of tho council, and nlso as to the evidence oi tho value of the land, find the conditions of tho lease are as follows:—'And will not, without tho consent of the said corporation first hud and obtained, assign, sub-let, or part with the possession of the premises or any part thereof.' Wo find that Mr Allen admits that he hud arranged with two of his neighbours to crop a small part of the run, the arrangement being that they were- to plough, sow, reap, and thresh about 50 acres of tho 3000 in the reserve, and instead of paying wages 'or the work, ho was to allow them three-fourth's and four-fifths respectively of the yield, keeping tho balance for himself. We took tho opinion of Mr F. E. Chapman on the point, and Mr Allen submitted to us an opinion from Mr J. F. M. Praser (copies annexe:!). "We have made inquiries from another public body and persons with leases coutiining a similar covenant to tho one in the corporation lease, and we find thai they do not regard the system of working a portion of tho land leased as calling for written authority, and it would not bo regarded as a breach of the lease by them. Wo are of the samo opinion, and consider that Mr J. F. M. Fraset's view of ihe law in this caso is correct, and that Mr Alien lias not committed a. brooch of his lease. With regard to tho second portion of our inquiry—viz., as (o the evidence as to the value of the land,—wo find no further information to guide us thtui the council had before them at the last exhaustive inquiry into (ho matter, when tho rent was reduced, and sinoe then the council has accepted payment of the rent on the Teduced scale."—This report was signed by Crs M'lCay, Inverarity, and tho Mayor. The Town Clerk read the following legal opinion from. Mr F. E. Chapman:—"We understand tho facts to be that the tenant entered into verbal arrangements with two farmers to crop portions of the land under lease at grain rentals. In ono lease tho urea was 16 and in the other 40 acres. This, we think, is contrary to thn terms of tho lease, and is a broach of condition unless condoned by the acceptanco of rent with a laiowledge of the facts. The covenant provides that the , tenant shall not' sub-let or part with the possession of the premises or any part thereof' without the previous consent in. writing of the council. We think that this is both a subletting and a parlinj, with the possession. A fail test would be whether tho tenant could sue any person who trespassed upon his crop. Ws think that he could sna by virtue of hi 3 possession, though his ngrceinemt is only verbal." Tho Town Clerk next proceeded to xead another legal opinion supplied to Mr Allen by Mr J. F. M. Praser, to which Crs Edgar, Simpson, Tait, and Cablo objected, on the ground that it had not been, asked for. It was decided, hdwever, that the letter be read. It was as follows:—" Your lease from the corporation contains the following condition: ' And will not, without tho consent of the council of the said corporation first had aad obtained, assign, sub-let, or part with the possession of tho premises or any part thereof.' TJnder circumstances detailed by you. in your published letter now fce/ore me, you crranged with two neighbours to do the work of ploughing, sowing, and reaping 50 acres out of the 3000 you lease, paying them for tho work three-fourths and four-fifths respectively of the yield, instead oE settling in cash, i am asked to advise whether or not this arrangement was a. breach of the lease. In all these cases there are two methods of examining a position. One is to use a microscope; tjio other to utilise the ordinary organ of vision. I prefer the lattei, as more likely to result in a decision ihat is safe to follow. To amount to a breach of the covenant evidence must be forthcoming to showthat the possession has been parted with by the tenant. The mere act of letting other persons into possession by the tenant and permitting them to use the premises for their own purposc.3 is not, so long as ho retains the legal possession thereof, a, breach of the covenant. P.0.A., " Landlord and Tenant," 3rd ed., 1901, p. 249: 'Whore a theatre was leased, and the lease contained a covenant not at any time during tho term hereby granted to assign, demise, 1 or otherwise ya.rt with the indenture or any estate or interest therein for all or any part of the said term, to any person or persons whomsoever, without the license of the lessor first had and obtained in writing, and. the lessee granted to a third person for a term the freo and exclusive right to tho us» of all the refreshment rooms, bars, smoking rooms, wine collars, iMid offices. Held no breach (Da-loy v. Edwards, 82 Law Times 372, 1900).' Hero I assume that the agreement was that A and B should plough, harrow, bow, and reap 50 acres; that instead of bsiiig paid in cash they are paid in kind, receiving a portion of tho yield. The property in tho 50 acres remains in the lessee, who continues to pay rent and taxes thereof. I think also that tho fact of only 50 acres out of 3000 being thus dealt with should receive consideration. In ono case tho judge held that there must be a substantial parting with a substantial portion of tho demised premises. This was whero certain fields wero let to a tenant who had no right to part with possession without leave. The tenant let a travelling circus occupy ono of tho fields at a weekly rent. Held no forfeiture resulted (Mashiler v. Smith, 3 Inner Temple Law Reports, C 73). It is, of course, quite probable that it might seriously be contended that there had been a breach by Mr Allen, but I do not think any court would sustain a. contention, and I do not think that any man of common sense would expect a lease to be worked by a lessee from his landlord, where a mere matter of 50 acres out of 3000 was involved, and where tho lessee Bad arranged to pay for the work done in kind instead of in cash." Cr Cable moved—" That the report of the Special Reserves Committee be not adopted." Hβ considered the whole of the proceedings were irregular, and that ihe committee had not fulfilled their duties in this matter. He further objected to the action of tho chairman of the Reserves Committee in taking away documents connected with 'the inquiry and preventing , councillors getting a. full knowledge of what was being done in the matter. It was not until i o'clock that afternoon, ha said, that anything of the matter could be found out. Cr Cable then reviewed Mt Allen's correspondence with the council in reference to the Dunback icservo at some length. He denied that thero was any political bias on his (Cr Cable's) part. Cr M'Kay interjected that Cr Cablo was making a very fair hand of it. Cr Cable went on to say that he should like any one councillor who voted for a reduction of the rent of the Dunback reserve to give one fair and valid reason for his action. Cr Inverarity explained the reasons which had induced him to keep the report and correspondenco back until it came before the council. Certain councillors had attended tho committee meeting, and when these were over ono of them (Cr Tait) went outside and made it public. Cr Tait denied this. The only person he had spoken to on the subject was Cr. Cablo. Cr Leech emphatically protested against the conduct of a section of the council in this matter. Ho was of opinion that Mr Allen had been harshly treated. Cr Tait said Cr Cable had gone so hilly into the matter that there was very little left to say; but he was glad to have the opportunity of stating that ho fully concurred in all that Cr Cable had said. Ho took exception to the way in which the business of the committee had been conducted. He had it on good authority that fully 300 acres of the reserve was first-class land. Ci Mackay was still of the same opinion as formerly in this matter. Mr Allen had been most desirous to give the council all tho information in his poweT. Taking everything into consideration, he (Cr Mackay) considered the committee had done nothing to be ashamed of. He admitted that there were a few hundred acres of fair land at Dunback, but the total amount of land broken up there was only 184 acres. Cr Sha-w did not consider there was anything in Mr Allen's conduct that should call for the treatment he had received. Cr Edgar took exception, to the stand taken by Crs Inverarity and Leech, while Cr Mackay, he said, had forgotten a great deal of what he had said in reference to Dunback and its reserves some years back. He reviewed the action of the committee in keeping back papers of importance, and said he would liko to state that the reduction of Mr Allen's rent took place on the 27th March last. He also pointed out that in Mr Allen's lease there was a clause

giving him a month's grace in which to mate' his payments of rent. He considered! it was. time this question was brought to a conolusion. If tho council beat them in that chamber they would find it would be carried somewhere else. The Mayor: Is that a threat, Cr Edgar? ' Cr Godfred would insist on the- matter being" settled there and then, and if it were necessary let it go into court and bo deoided there. Mr Allen, in his opinion, had been shamefully treated. The Mayor put Cr Cable's motion—" That the report be not received "—when five hands wero held up for it. The motion for tho adoption of the report was then put, when six votes were recorded. His Worship dcclnrod the report adopted.