COURT OF APPEAL.

Dominion, Volume 2, Issue 554, 8 July 1909, Page 2

COURT OF APPEAL.

MINERALS IN CROWN LANDS,

HOW "DEEP" IS SUCH LAND

ACQUIRED?

SURFACE OR EABTH'S CENTRE?

The caso of tho Commissioner of Crown liands, Taranaki, v. John; Blackball Beunie occupied tho attention,of tho Appeal Court yesterday. The Bench comprised their Honours Justices; Williams (acting-Chief Justice), Dennieton, and Edwards. ; Mr. M.'Myers appeared for the appellant, and Mr. C. P. Skerrott, 1 K.C., with him Mr. M'Veagh (Eltham), for the respondent., .Tho.facts as alleged rere that respondent .wae the holder of a leaso-in-pcrpotuity under Section 121 of tho Land Act, 1892, which provided that, where any minerals had been discovered under Crown lands, or tho existence of' minerals was probable, only the surface of the laud might be leased in perpetaity, iio miuerftls boing reserved .to tlio Crown. There'was a special condition in tho lease to ths' effect 'that, all mineral were. so reserved,, and; the lease, purported to be' of the surface only. . Section 20 of. tho Land Laws Amendment Act, 1907, provided that: ."Every 'owner of a loase-in-pereptuity shall have tne right at timo during the existence of the lease, to purchaso the fee simple of the land comprised in the lease, at a price' equal to the capital value,of the said land at the time of the purchaee thereof. The capital value shall be determined by, valuation; or arbitration in the manner* provided in thie. section and shall include the value of all minerals' other than gold and silver," ■ ete. v'The respondent claimed that this'section referred to: , all leases-in-porpetuity, . whetlior of the: lee simple or oi. the surface ,only, and .he oJaimed the right to purchase the fee simple of the'land comprised-in hie lease; including the minerals other than gold and silver. Mr. Justice Chapman haa .upheld this oontdrtieii, and an appeal from this decision was now brought by the appellant on ( behalf of'the: Crown.:! .: : v Mr. Myers said'that, in March, 1904, a lease was granted bj' the 'Land Board to the respondent under Sectipn 121' and Part 3 of the Land Act, 1892/ v Part 3 made provision generally for leases-m-perpetuity, and Section 121 was a.particular section in an earlier part of the Act.. Tho lease ;dko purported to be under Section'l9 of the MiningAct, 1898. Section 135-:' of tho Consolidated. Act-of iOOS corresponded with Section 121 of the' Act of 1892," but,; subsequent to the passing of the latter Act, there was. passedtho Act 6f 1907, which prohibited leasee-in-perpetuity for the. future, and authorised tho granting of; renewable leases. Subject i to that alteration 1 the sections corresponded exactly. The land, the surface of which, was :' kneed /to •' the , respondent, was withdrawn 1 from sale by a proclamation of tho GoTernor-in-Council. It was not known whether.the land contained, minerakji although petroleum .miglit bo ■ From, sub-Section 2. of Section 138, in'P.art .3'of'the.'Act,: it was plain that .'the policy'of the Legislature was! that the minerals should be retained .by theCrown; Tho G6vernor-in-Council might withdraw- laikls 'from-. ;sale altogether■ under Section' , 121,', and, if .that •was idoiio, the most the: board' might .do :was.i to grant .surface rights only.. Even ,ii' tho'.Governor-. in-Council decided not to act under: Section 121,.Section; 138 'Still prevented the sale of land containmg'minerals. -;.Thore wero classes of. leases-in-perpe_tuity.': : , the,- lease under part 3 was an: ordinary lease, and tho 'other' 1 class;-under Section 121, was a limited and. special leaso;. The;definition of a;leasej-in-perpotuity.'\yas'''a-'le3se:of Und ;•',. , . , which was;' prima: facie inapplicable to the special' leasivm-perpetnity.. Tt was: a lease, of , the , ' or "50i1, , ! which words: had; a restricted meaning:' It'. was the principle which the ;Crown contended;- lands had beeM" leased- in various try, v according to' this interpretation of the law; .Unless' the appeal; were upheld, the Crown would ho deprived.'of special Lα tho cast of the general lcaee-in-perpetuity,. : tlie : Crown .would have■ the' right,'■:under' Sec-; tiori : 50 of the: Mining'Aot, 1898, to"prospect; for gold-or any'other, metal or mineral. Iho only other right of the Grown was'the right to' resume the , land. Tho/Crown, had much greater rights under i Section 121. J When, land held under a general was sold to a lessee under Section 20 of theAct'of 1907, .the Crownhad the Isamenghts as'beforo (by the Mining : Act), but .ing the lease under Section 121,, if lVwero permitted to be, sold,' the rights:of. the Prown ivonld 'be considerably! less than they; were before.'-'■'■:: 7:' :/: - ; : ,: , '-: ■':■>'; v^:.:..:;.:.; Mr. Justice Denriiston: It'has lost something for'which it.has ; received nbconsideration. ■: '• -.' ■■ '.'•'.■■-,-' ' ■■■' ■■ ■.'•'■"'■'■ ■.'■ ,: :'..,'V- . .■' Mr. Skerretfr said -that one of;the.: principal 'questions .was whether ■ a lease under. Section -121' of the Land Act/ 1892, was withiff the general' words 'of ■■ Section^' 0 ' the Act of .1967. He submitted that,there was only one class of lease-in-perpetuity. It had been contended that Section'l2l contemplated the lease only of the ■ of the land, limiting'thattothe mere upper, stratum; above .the minerals.'lhero wero; only, two parts of the land: ; compnsed ,in a. lease under Section 121-rthe surface and the minerals.' Tho wholo lanf was exhausted under that section by the surface" nnd"tho minerals," The surface was to go to the lessee, and the ; minerals were to be reserved to the.Crown.. The;true policy, of the 1907 Act was:te abolish for,the future, leasee-in-perpetuity, and to grant to lessees-in-pbrpctuity the right to, purchase tho fee simple,'the Crown"protecting-itself by maltiiiE it clear that tenants were, to include m tht capital value the price of all minerals and mines. Had the Legislature intended.to mako a distinction between one class o] lease-in-pcrpetuity and; another, it,would havo done so. ' ■ ■ V , ' 1 • ''V' Their Honours, reserved i judgment., A