PAPERS RELATING TO CLAIMS OF JOHN KELLY TO COMPENSATION FOE NON-POSSESSION OF LAND PURCHASED BY HIM FROM THE CROWN.

Appendix to the Journals of the House of Representatives, 1872 Session I, G-33

G.—No. 33.

PAPERS RELATING TO CLAIMS OF JOHN KELLY TO COMPENSATION FOE NON-POSSESSION OF LAND PURCHASED BY HIM FROM THE CROWN.

PRESENTED TO THE HOUSE OF KEPRESENTATIVES, BY COMMAND OF HIS EXCELLENCY. WELLINGTON, 1872.

Gh—No.

3

No. 1. Mr. G-. S. Coopeb to Mr. T. Beckham. Sib,— _ Colonial Secretary's Office, Wellington, Bth January, 1872. I have the honor, by direction of Mr. G-isborne, to transmit to you the accompanying records noted in the margin, on the subject of the claim of John Kelly, of Auckland, for compensation°for nonpossession of land purchased by him, and to request that you will be good enough to inquire into the case and report thereon. Should you prefer it, a Commission, under the Commissioners Powers Act, will be prepared and forwarded to you on your intimating that such is your wish. I have, &c, Thomas Beckham, Esq., Auckland. q. g Coopee No. 2. Mr. T. Beckham to the Hon. the Colonial Seceetaet. Sib,— Auckland, 11th June, 1872. Adverting to your letter of Bth January, 1872, No. 71-3,600, and its inclosures, with reference to a claim of Mr. John Kelly for compensation for non-possession of land purchased by him, and instructing me to inquire into the case and report thereon, I have the honor to state, from the evidenced adduced, that it appears Mr. John Kelly, in the year 1859, purchased land at the Waitakarei comprising an area of 3,209 acres, with a large frontage to" the river Waitakarei; that Mr. Kelly built a house and stockyard on the land, and converted it into a farm by clearing and laying down in grass about 100 acres, at a cost of £30 per acre. In the year 1870 a Mr. Brissenden made arrangements with Mr. Kelly to lease 384 acres of his land, for a period of twenty-one years, at a yearly rental of £159 for the first ten years and £318 during the last eleven years, for a mill site, mill-race, tramway, and to cut flax. Mr. Brissenden entered into possession in January, 1870, and built a mill, made a mill-race and tramway, and cleaned a portion of the river to make it navigable, at an expense of about £4,000; and after an occupation of eight months, Mr. O'Neill claimed a considerable portion of the land which he had arranged to lease, and he and his partner were obliged to abandon all further operations, and refused to sign the lease in consequence of the insecurity of the title. It further appears that Mr. O'Neill brought an action against Kelly in the Supreme Court for a part of the land which had been occupied by Mr. Brissenden, and obtained a verdict, on 23rd September, 1870 awarding him 148 acres of the land which had been included in a Crown grant to Kelly. The land so awarded to Mr. O'Neill comprises the best portion of Kelly's grant, cutting off the flax field, about two-thirds of the tramway, the landing place and the navigable portion of the river cleared by Mr. Brissenden, with a considerable portion of the best river frontage, thereby seriously injuring Kelly's farm, and rendering the remainder of his property of little value, particularly for a cattle run, for which a large portion was used. In the land taken by the Court from Mr. Kelly are 87 acres and 16 perches which had been cleared and laid down m grass at an expense of £30 per acre. Under the circumstances, it appears to me that Mr. Kelly has suffered a loss as follows :— For 148 acres taken by the verdict of the Supreme Court, which includes 87 acres 16 perches cleared and laid down in grass at an expense of £30 per acre ... ... ... ... 2 687 O 0 Cost of defending action ... ... ... 35^ g g Clearing three miles of road ... ... ... ... 220 q q Procuring witnesses in action in Supreme Court... ... ... 10 0 0 Surveyors' charges and witnesses ... ... ... 40 3 6 Mr. Whitaker's charges for conducting case before the Commissioner 26 5 0 First ten years' rent, at £159 per annum ... ... ... 1,590 0 0 £4,824 17 0 If the Government purpose compensating for the consequences of severance, Mr. Kelly would be entitled to receive further a sum of £1,834 1 6 Loss of Mr. Brissenden's outlay, about... .. ... 4 000 0 0 £5,834 1 6 A copy of the evidence is herewith transmitted. The Hon. the Colonial Secretary, Wellington. " ' Thomas Beckham.

PAPERS RELATIVE TO CLAIMS OF JOHN KELLY.

G—No. 33

4

PAPERS RELATIVE TO

Enclosure in No. 2. Edward Torrens Brissenden, of Epsom, in the Province of Auckland, Esq., stated: I know the farm at Waitakarei, belonging to Mr. John Kelly. I know the land that was in dispute between Mr. Kelly and Mr. O'Neill. The plan produced I recognize as being a delineation of this land. In the year 1870 I made an arrangement with Mr. Kelly for a portion of this land for a mill site, for millrace for a tramway, and to cut flax from. A written memorandum was made of the arrangement, and I entered into possession, and expended a large sum of money. I spent nearly £4,000 in building a mill, making a mill-race and tramway, and clearing the river to make it navigable. By Mr. Kelly's and my instructions, a 1 lease was prepared by Messrs. Whitaker and Kussell. The document produced is the lease as approved by me, and which I should have signed had it not been for the dispute between Kelly and O'Neill. O'Neill claimed the site of a large portion of the tramway. When I first went, O'Neill claimed only a small portion of the land he afterwards claimed and was awarded by the Court. The part he then claimed is coloured yellow, and is bounded by the line marked on the plan, O'Neill's fence. After an occupancy of eight months he claimed the whole of the piece marked yellow. I then abandoned all my operations and have never resumed them. I have lost about four thousand pounds. O'Neill saw me making the improvements, but never objected. He offered at first to let me take the tramway through the small piece marked yellow, and bounded by his fence, for £15 ; afterwards he claimed the small piece of bush adjoining, and then offered that in addition for £10 more, or £25 altogether. My partner refused to go on, on the ground that there was no security of title, and I was left with the whole on my hands. Mr. O'Neill shifted his ground so often, I could not bring him to any conclusion. I know the ground marked yellow on the plan. About 100 acres of that land had been cleared. It must have been very costly: not less than from £20 to £30 an acre the cost of clearing, the timber being very large and thick underbrush. The cost of constructing the tramway on the yellow piece was about £280. I cannot say exactly what the cost of the clearing tho river was, as the men were not constantly employed —not in bad weather —but the cost was considerable. My reason for abandoning my works was the difficulty about the title—the claim made by O'Neill. Apart from the value of the land now held by O'Neill and formerly Kelly's, there is much damage to Kelly's property by his losing the best part of his property, and that which had been most improved. O'Neill has now taken the heart of the property, very near up to Kelly's house, and a great deal of the water frontage—the best of it. Taken before me this 19th day of February, 1872. Thomas Beckham. Horatio Nelson Warner stated: lam a surveyor, residing in Auckland. I produce a plan of Mr. Kelly's and Mr. Allan O'Neill's property at Waitakere. The piece of land coloured blue, 193 acres, was marked off by Mr. Tole, the Government Surveyor, as the land included in the Crown grant to Mr. O'Neill, together with the strip coloured green, 27 acres, making together 220 acres. Mr. O'Neill claimed the piece coloured green and yellow, containing 173 acres, as included in his Crown grant. 146 acres of this land was included in a subsequent Crown grant to Mr. Kelly. Mr. O'Neill brought an action in the Supreme Court against Mr. Kelly, in which I was a witness for the defendant, to recover the land coloured green and yellow, and Mr. O'Neill obtained a verdict. The land thus recovered from Mr. Kelly comprises a large portion of his best river frontage, and some of the best land comprised in his grant. A considerable portion of it also had been cleared and laid down in grass, which must have entailed much expense, as the forest was very heavy. The boundaries of the land recovered by O'Neill run up very close to Mr. Kelly's homestead, and very considerably diminish the value of his estate. The portion of land included in Mr. Kelly's Crown grant, and awarded to Mr. O'Neill, contained 146 acres. This land has also running over it two-thirds of a tramway, laid down from a mill site to the landing-place at the head of the navigation of the river. That part on the plan coloured yellow is copied from the plan deposited as a record in the Supreme Court, to show the land awarded to Mr. O'Neill by the Jury. Taken before me this 23rd day of February, 1872. Thomas Beckham. John Stewart Kelly stated : I am the eldest son of Mr. John Kelly, defendant in the case of O'Neill v. Kelly. I know my father's land at Waitakere, and the land that was in dispute between himself and O'Neill. I resided for six years on the farm. I was grazing cattle and sheep, clearing the land, and putting it under grass. I know the portion of land marked yellow on the plan, and awarded to Mr. O'Neill. A portion of it was cleared and laid down in grass. The bush was very heavy and costly to clear. About 100 acres had been cleared. The cost of clearing has been between £28 and £30 an acre. We had a quantity of cattle running on the estate when the award was made to O'Neill, which were driven from the cultivated portion given to him by his son and his men, and have since gone wild. We have no means of getting them again : they could only be recovered by driving through O'Neill's property, which is now fenced. They were a mixed herd of seventy-five head, and worth, on an average, £9 per head. My brother, myself, and some men have tried to recover them, but have only been able to get a few of them. There are seventy-five still missing. Taken before me this 7th day of March, 1872. Thomas Beckham. John Kelly, of Auckland, Surveyor, stated : I am the defendant in the action of O'Neill v. Kelly. The action was brought to recover a piece of land that had been granted to me by the Crown. I purchased the land on the 28th March, 1859, and have been in possession until judgment was obtained against me. I had built a house and stockyard, and had made a farm of it. As far as lam able to judge, the plan by Baber, Warner, and Fairburn gives a fair representation of tho property. The piece coloured yellow, that was awarded to O'Neill by the Court, runs up to the house and farm

CLAIMS OE JOHN KELLY.

5

G.—No. 33,

buildings. The portion taken was by far the most valuable of the whole estate, the remainder bein<* rendered unavailable in consequence of the proper access to it being on that portion awarded to Mr. O'Neill. A large portion of the land so awarded was cleared by me at a large expense. There were about 100 acres cleared, at a cost of £30 sterling an acre. I bought the estate, comprising 2 873 acres, in March, 1859, at 10s. per acre. The only road to take the flax to the mill was through'the portion awarded to Mr. O'Neill, and that is now entirely cut off from the flax field. Taken before me this 7th day of March, 1872. Thomas Beckiiam. William J. Dalton stated :lam a civil engineer and licensed surveyor, residing in Auckland I know Mr. Kelly's farm at Waitakere, and Mr. O'Neill's. I was a witness for the plaintiff O'Neill in the Supreme Court, in the suit of O'Neill v. Kelly. I did not make a survey myself, but I accompanied Mr. Wrigg and my brother over the land. Those gentlemen made the plan, which I afterwards examined and found correct. The plan produced is a fac-simile of the one placed on record in the Supreme Court, and signed by the Judge, Sir George Arney, for the purpose of showing the land awarded by the Court to Mr. O'Neill. I have been all over the piece of land in dispute between Kelly and O'Neill, and know it well. The piece of land taken from Kelly comprised an area of 148 acres ;> it is coloured pink, and marked figure 2on the plan. The piece given by the Court to Mr. O'Neill comprises the finest part of the estate belonging to Mr. Kelly, a great deal of the other being very broken. When I surveyed the piece, there were from 75 to 80 acres cleared out of the 148 acres. 1 believe, if measured on the ground, it would turn out to be about 100 acres of cleared land. That portion of it is in grass. The land cleared was all heavy bush land. There is a tramway running alongside the river. About 50 chains of the tramway was taken from Mr. Kelly on the land taken from him. The tramway was almost completed ; it seemed to be a good sound job • it was being finished whilst I was there. The tramway, from the boundary of the land taken from Kelly by O'Neill to the mill, was 25 chains in length, which is now rendered useless to him. In my opinion, the mill and the whole of the works were rendered useless for the purposes for which they were placed there. The mill was a flax mill. They could not now get flax to the mill. The taking of the land from Kelly destroyed the purpose for which the mill, mill-dam, and race were put there. The piece of land taken from Kelly by O'Neill carries with it nearly a mile of water frontage. The land taken renders the remainder of the farm left to Kelly nearly unsaleable. Taken before mo this 7th day of March, 1872. Thomas Beckham. Peter Joseph Ballon stated: lam a surveyor and civil engineer, residing in Auckland. I knowMr. Kelly's and Mr. O'Neill's land at Waitakere. I was a witness in the case O'Neill v. Kelly, in the Supreme Court. For the purpose of giving evidence on that trial, I made a survey jointly with Mr. Wrigg and my brother. The plan produced was made by myself. It is a fac-simile of that which remains on record in the Supreme Court in the case of O'Neill v. Kelly. It is the plan upon which I gave evidence in the case. The portion marked "E" on the plan, containino- 26 acres was common to both surveys of Mr. O'Neill's land, on which there was no dispute. Taken before me this 14th day of March, 1872. Thomas Beckham. Note.—This is the same plan upon which Mr. William James Dalton gave his testimony on 7th March. J William James Dalton, recalled, stated: lam a surveyor, residing at Auckland Since °iving evidence on the 7th March, I have visited Mr. Kelly's farm, for the purpose of ascertaining the exact quantity cleared, and find the quantity cleared onjMr. Kelly's land to amount to 87 acres and 16 perches I have again gone over the whole farm, and reconsidered the matter, and the evidence I gave on the 7th March, and iam satisfied that evidence is quite correct. The plan marked " P," now produced, shows the position of the flax field, and upon which the flax was to be obtained by Mr. Brissenden'. The point to which the river is navigable is marked on the plan, and a canal has been cut to make a communication between the navigable portion of the river and the tramway. The land awarded to Mr. O'Neill comprises a large portion of the tramway, which was the only available route by which flax could be taken from the flax field to the mill. Taken before me this 14th day of March, 1872. Thomas Beckham. John Forster stated: lam a farmer, residing at Ongarhu. I know Mr. Kelly's farm and Mr. O Neill's farm at Waitakere. Ho had some cattle there. I have seen them. They are running on Kelly's land, and on the coast at the back of O'Neill's. I have seen about a score of them I consider the value of them, to drive them from where they are now, would be from £1 to £1 10s per head. If they could be brought to the market they would be worth £9 each. The difference of value is caused by the difficulty of getting them from where they are now running. That difficulty arises from O Neill s land being fenced, which necessitates their being driven a long distance round, and through a very difficult country. Taken before me this 14th day of March, 1872. Thomas Beckiiam. John Kelly, re-called, stated : The amount which I have paid in costs and incidental expenses and also subsequent expenses, is £351 Bs. 6d., a detailed account of which I now put in marked " G " Taken before me this 14th day of March, 1872. Thomas Beckham. 2

G.—No. 33,

6

PAPERS RELATIVE TO

Q-. —Memorandum of Costs, O'Neill versus Kelly. October, 1869. £ a. d. Amount of Plaintiff's costs, as taxed ... ... ... ... ... ... 140 11 2 Amount of our defending ... ... ... ... ... ... ... 135 13 10 Paid for (surveying ... ... ... ... ... ... 2616 Surveyor Witnesses'expenses, 21s. per day ... ... ... ... ... 15 15 0 Maori witness, 9 days, Waitakere, ss. per day ... ... ... ... ... 250 Expenses ... ... ... ... ... ... ... ... ... 15 0 J. H. Kelly, 9 days ... ... ... ... ... ... ... ... 4 10 0 Expenses ... ... ... ... ... ... ... ... ... 150 W. A. Kelly, 9 days ... ... ... ... ... ... ... 4 10 0 Expenses ... ... ... ... ... ... .... ... ... 150 John Kelly (defendant), 3 days ... ... ... ... ... ... 330 Hamlin, Interpreter ... ... ... ... ... ... ... G6O Account paid in costs ... ... ... ... ... ... ... 0 10 0 November 2, 1872. You to Provincial Government, Petition ... ... ... ... ... 220 August 15, 1871. Petitions to House of Representatives and Legislative Council ... ... ... 550 Re-engrossing and altering same ... ... ... ... ... ... 110 Frederick Whitaker, fees for conducting case before Commissioner ... ... 26 5 0 £377 IB 6 Thursday, 28th March, 1872. Mr. Whitaker produced a copy of the Crown grant to Mr. O'Neill, as set out in the pleadings in the Supreme Court, in the cause of O'Neill v. Kelly. Also, the original Crown grant to Mr. Kelly of the land at Waitakere, dated 18th February, 1860. (Copy handed in.) John Kelly recalled, stated: On or about the 11th January, 1859, I purchased 336 acres of land adjoining the 2,873 acres referred to in my previous statement, the two together forming one farm of 3,209 acres. The 2,873 acres were purchased by me on the 28th March, 1859. The verdict in the action by O'Neill against me was given on the 23rd September, 1870. I claim the following amounts for losses sustained by me for being deprived of the best portion of my farm as follows, namely : — £ s. d. The value of 148 acres awarded to O'Neill by the verdict of the Supreme Court ... 74 0 0 Interest on the above from date of purchase to verdict, at 10 per cent. ... ... 85 2 0 Damage to the estate resulting from the severance ... ... ... ... 3,220 2 0 Cost of clearing and laying down in grass 87 : acres 16 perches, at £30 per acre (including stumping) ... ... ... ... ... ... ... 2,613 0 0 Clearing thistles for ten years, at £10 per year ... ... ... ... 100 0 0 Clearing three miles of road, which has been lost by severance ... ... ... 120 0 0 Expenses of procuring Natives necessary to give evidence in the Supreme Court ... 1000 Sundry expenses for self and witnesses waiting on the Superintendent and Executive by appointment ... ... ... ... ... ... ... 50 0 0 Costs of defending the action in the Supreme Court ... ... ... ... 351 8 6 Total ... ... £6,623 12 6 Interest on £6,623 12s. 6d. from date of verdict to March, 1872, eighteen months, at 10 per cent. ... ... ... ... ... ... ... ... 993 19 10 Two years' rent under Brissenden's lease, from 14th February, 1870, to 14th February, 1872, at £159 per annum, with interest at 10 per cent. ... ... ... 353 15 6 Present value of eight years' rent from 14th February, 1872, at £159 per annum ... 848 0 0 Present value of eleven years'rent from 14th February, 1880, at £318 per annum ... 963 10 0 Three sons out of employment for two years, from commencement of proceedings in the Supreme Court, at £150 each per annum ... ... ... ... ... 900 0 0 Loss of cattle (75 head) driven off the farm ... ... ... ...^ _ ... 562 10 0 Damages for loss of improvements to have been left by Brissenden at the expiration of lease ... ' ... ... ... ... ... •■■ ... 4,000 0 0 £15,244 18 10 Expenses of the present inquiry as follows: — Mr. Whitaker's charges for conducting case ... ... ... ... 26 5 0 Witnesses —John Forster, 2 days attendance, and travelling expenses 36 miles ... 3 6 0 H. N. Warner, 2 days ... ... ... ... ... ... ... 4 4 0 Messrs. Dalton's account, surveying, &c. ... ... ... ... ... 32 13 6 £15,311 7 4 Taken before me this 16th day of May, 1872, ■ Thomas Beckham. John, Stewart Kelly, recalled, stated : The loss to my father's estate by the severance of the 148 acres is at least £3,220, as the remaining 3,061 acres are, by the severance, so diminished in value that

CLAIMS OE JOHN KELLY.

7

G.— No. 33

they would not realize more than Is. Gd. per acre. By the non-completion of the flax mill, machinery, and other buildings and improvements, which were required, by the terms of the lease to Brissenden, to' be left upon the ground in good order at the expiration of the lease, I estimate that my father has sustained a loss amounting to £4,000. Myself and my two brothers were engaged in farming on the land previous to the commencement of proceedings by O'Neill, but were by those proceedings thrown out of employment, and have been idle up to the present time. Taken before me this 16th day of May, 1872. Thomas Beckham. No. 3. His Honor T. B. G-illies to the Hon. the Colonial Secretary. Sib,— _ Wellington, 18th July, 1872. Referring to yours of the th instant, enclosing copy of Mr. Beckham's report in the case of John Kelly, I have the honor to call your attention to several circumstances in relation thereto. In the first place, if Mr. Kelly's grievance was a Provincial grievance, liable to be satisfied by the Province, then I apprehend the Provincial authorities were the proper parties to deal with it. If it is a Colonial concern, with which the Colonial Legislature and Government have occasion to deal, then the Colonial Government and the Colony must accept the responsibility of the report. In the next place, I would call your attention to the fact that no intimation of the inquiry by Mr. Beckham was conveyed to the Provincial Government, by the Colonial Government or by the Commissioner appointed by them : that the whole evidence is ex parte, and the conclusions arrived at simply absurd. Although, in my view of the matter, the Province or Provincial Government have no direct interest in the result of a claim which originated before they existed, and which must be satisfied by the preexistent authority, that is, tho Colony, I think it would have been in the interests of the Colony had there been an opportunity afforded for protecting those interests by the production of evidence by the Province in relation to the claim made. Such opportunity was not afforded, inasmuch as I was not aware of the existence of such an inquiry until in receipt of the report. In such circumstances, you will, I think, consider me not to be without justification in giving every legitimate opposition to the giving practical effect to the report transmitted. I have, &c, The Hon. the Colonial Secretary, Wellington. Thomas B. Gillies. No. 4. The Hon. W. Gisbobne to His Honor T. B. Gillies. Sib,— Colonial Secretary's Office, Wellington, 23rd July, 1872. I have the honor to acknowledge the receipt of your letter of the 18th instant, relative to Mr. Beckham's award in the case of Mr. John Kelly's claim for compensation. The papers relating thereto shall be laid before the House of Eepresentatives for their consideration. I have, &c, His Honor the Superintendent of Auckland, Wellington. W. Gisboene. No. 5. Mr. O'Neill to the Hon. the Colonial Seceetaby. Sib,— North Shore, Auckland, Bth August, 1872. Seeing in the Herald of the 6th current a copy of Mr. John Kelly's compensation claim, wherein Mr. Beckham awarded him the following, viz. : — £ s. d. For 148 acres taken by the verdict of the Supreme Court, &c. ... 4,821 17 0 Severance, loss of Mr. Brissenden's outlay, &c. ... ... ... 5,834 1 6 I beg to inform you that the Government may have at once from me the 148 acres, with all the improvements, for ten pounds per acre. On inquiry you will find this to be a fair value, taking into consideration how property in the vicinity of Auckland is now selling in the market. I have, &c, The Hon. the Colonial Secretary, Wellington. Allan O'Neill. No. 6. Mr. G. S. Coopee to Mr. A. O'Neill. Sic, — Colonial Secretary's Office, Wellington, 23rd August, 1872. I am directed by Mr. Gisborne to acknowledge the receipt of your letter of the Bth instant, adverting to Mr. Beckham's award in the case of John Kelly, and offering to sell your land, taken by verdict of the Supreme Court from Mr. Kelly, for ten pounds per acre, which you consider to be the present value of the land, and to state that a copy of your letter will be added to the former papers on this subject already before the House, as the whole subject will probably be brought under their consideration. I have, &c, G. 8. Coopee, Allan O'Neill, Esq., North Shore, Auckland. Under Secretary.