THE COLONIST. PUBLISHED EVERY MORNING. TUESDAY FEBRUARY 11, 1913. THE SOUTHLAND TRANSACTION.

Colonist, Volume LV, Issue 13646, 11 February 1913, Page 4

THE COLONIST. PUBLISHED EVERY MORNING. TUESDAY FEBRUARY 11, 1913. THE SOUTHLAND TRANSACTION.

The Minister of Lands has not seen^his I way to permit perusa^ by the Presa ot : the report of the Ciown Law Depart-' ment on thet-much'talked of transaction in Southland under the Land Laws Amendment Act, 1912, and the rights of Mr. Brighton, the lessce-in-perpetuity of an area of coal bearing land, who recently purchased the fco simple in the terms of that Act. Under tho previous Land Act the holder of a lease-in-porpetuity was enabled to acquire tho freehold, including coal, if any, but was required to pay the estimated value of tho coal. The contention of the critics of the Government is that by omitting from last year's Act this Safeguard of Sir Joseph Ward's it has permitted, or rather, required that i coal measures shall become the property of fortunate lessees of land containing* them, upon their purchasing the freehold at the original suifaco value, plus one per cent, per annum. Mr. Massey allowed some time to elapse before he took official notice of the outcry "and referred tho question to the Crown Law .Office, withholding,' tlio issue of-Mr. Brighton's title. While, as wo have stated, he has not permitted access -to itho opinion, he lias received he has communicated it's* effect to tho Wellington newspapers. According to this stato-^ ment the report draw s a distinction between two kinds of lease-in-perpetuity. The section under which the' Southland land was leased reserves the minerals and the right to enter and take them to .the Grown. The lease itself contains-tho following covenant.: "Tho lessee 'shall have no right to any mineral, mineral , oil, gas, metal, coal, or valuable stone under the surface of the land hereby demised, tho surface only of the land being demised and leased to the lessee, and the wight to ingress, egress, and regress reserved to all peisons lawfully engaged -in working the said minerals, minoial oil, gas, metal, coal, or stone, is hereby reserved." The Land Laws Amendment Act of last session, the re-, port states, gives tho night to the tenant to acquiio "the- fee simple" of tho land comprised in his lease. The lease, according to the covenant, includes only the surface and nothing below tho surface. The report of the Crown Law Office concludes \ufch these i words: "I think that the lessee is entitled to buy from the Ciown, and the Crown is bound to,sell to him, tho fee simple of the land comprised in his lease. As minerals are not part of the land comprised in his lease, but are expressly reserved for the Crown, ho is not entitled to purchase the minerals. When he becomes the purchaser of the laud comprised in the lease, he does not become the purchaser of the minerals." This opinion "was submitted, with a statement of the facts, by the "New Zealand Times" to Mr. T. 1". Martin and other eminent Wellington counsel, who are unanimous in tho view that the interpretation of the position upon winch the criticism of the" Government has been based is correct. Mr. Martin, in, the course of a lengthy opinion pub-

''lished by the "limes" on -Saturday, says that on the facts as stated by the .''Dominion" it is clear that, Mr. is entitled to tho fee simple of the land comprised in the lease, including the coal on the property. Dealing with tho right to purchase the freehold under Sir Joseph Ward's Act, Mr. Martin sajVs: "No class of lease is excepted from the operation of section 20, and it is plain that the Legislature contemplated it should extend to leases u'ii which the reservation of coal existed, becaiiso special provision is made for the payment of tho value of tho ooai. Moreover, it would bo quite impropci to speak of tho fee simple of tho land being purchased if it were only intended to grant the surface of the land. 'Fee simple' is a term used to denote the ■highest estate an land which it is possible for a subject to acquire." Tho effect of the Act of 1912, Mr. Martin continues, \vas to repeal section 20 of "the 1907 Act, or rather section 177 of the Act of 1908, which was substituted for section 20, and provided that the owner of a lcase-in-peipetuity was entitled to purchase the fee simple of the land comprised in the lease at the original value, plus one por' cent, per annum on the amount, and interest on such one por cent. Mr. Martin's opinion as follows: "The position is therefore that before the passing of tho Act of 1912, the owner of a lease-in-pcrpetuity under the Act of 1892 was entitled to purchase the fee simple, including coal, but he was required to pay the value of the coal. Under the Act of 1912, tho right to pur'cliase the fee is granted, in just the same -words as were used in section 20 of the Act of 1907, but instead of a price which includes the value of the coal, he has only to pay the amount upon which his rent was computed, in this case, £47 plus the one por cent, per annum and interest thereon." It is pot, of course, for laymen to attempt to determine the truth whon eminent lawyers disagree, but the question is likely td be the subject of an authoritative decision, for it is reported that Mr. Brighton intends to institute proceeding at the first sittings of the Supiemc Court at Invercargill to compel the Lands Department to grant him th^ title he believes the Act of last yeai allows him to hold.