LAW. REPORTS.

Dominion, Volume 6, Issue 1794, 5 July 1913, Page 14

LAW. REPORTS.

COURT OF APPEAL. THE SOUTHLAND LEASE CASE. LESSEE & MINERALS. ATTORNEY-GENERAL'S ADDRESS. Argument was concluded in tho Court of Appeal yesterday in "The Southland Lease Case." It will be remembered that in Februaiy last, at Invercargill, his Honour Sir Joshua Williams heard argument on an originating summons, under the Declaratory Judgments Act, which sought for an order interpreting dertain sections of the Laud Laws Amendment Act, 1912, and defining the rights of tho plaintiff (Gavin Brighton) in the action in rcspect to the property concerned. Tho two questions for his Honour were: If plaintiff, being the holder of a lease in perpetuity under Section 121 and Part 3 of the Land Act, 1892, has exercised the option given to him by Section 31 of tho Land Laws Amendment Act, 1912, what meaning is to bo attributed to certain words in Section 31, Sub-section 1, of the Land Laws Amendment Act, 1912? Theso words are: "Tho land comprised in the lease."

Under the circumstances mentioned in tho preceding paragraph, is the plaintiff, on the Land Board's certifying that he has completed his purchase, entitled to a Crown grant of tho lend mentioned in the notice to purchase free from all restrictions or reservations other than those named in Section 37 of the Land Laws Amendment Act, 1912?

As indicated, tho plaintiff in that action was Gavin Brighton, tho lessee of the land in question, and tho other party to the case was the Crown Lands Department. Original Judgment. In a considered judgment, his Honour answered the first question in the summons by statin* that the words "tlio land comprised in tho lease" meant the land demised by lease, that is the land without the minerals. The answer to tte second question was that the plaintiff was entitled to a Crown grant of tho land, exclusive of the minerals, Againstlthifc decisiom'plaintiiF lappealed. On the Bench for the hearing of the appeal were his Honour the Chief Justice (Sir Robert Stout), his Honour Mr. Justice Denmston, hia Honour Mr. Justice Cooper, and his Honour Mr. Justice Chapman. Sir John Findlay, IC.C., and Mr. W. A. Stout, of Invercargill, appeared for tho appellant Brighton. The Attorney-General (Hon. A. L. Herdman) and Mr. H. H. Ostler represented the respondent, Minister for Lands.

Argument in the case commenced on Tnursday, and at the evening adjournment both Sir John Findlay and Mr. Stout had addressed the Court. The Attorney-General. ■In his opening remarks yesterday, the Attorney-General said that the only question involved was: Whether the lessee was entitled (by virtue of the legislation passed in 1912), when acquiring the freehold, to also acquire the minerals? It had been, argued that he was entitled to purchase not only the surface soil, but also the minerals, and moreover, that ho was entitled to get them (tho minerals) for nothing. Mr. Justice Denniston: For one per cent. The Attorney-General replied that he hoped to bo able to satisfy tho Court that tho one per cent, had nothing whatever to do with them. The first point which he desired to make was that the Legislature had intended that, in the oase of lands where minerals wore known to exist, those lands should receive speoial treatment by legislation. Tho policy was that those lands should bo reserved from sale. That waa indicated in Section 121 of the Act of 1892, and that policy had been followed ever since. There was a similar section in the Land Act of 1908, the only difference being that the lease in perpetuity was abolished, and tho renewable lease took its place. Tho condition of things was altered by Section 20 of the Land Laws Amendment Act, 1907, when, for the first time in thto history bp land legislation in New Zealand, the right was given to any holder of a leaso in perpetuity to acquire tho freehold. "When the right was given, tho condition was that ho should pay not only for the sur-" face soil, but also for the minerals. One matter to be noticed, however, was that he was not oompelled to convert into freehold. It was a privilege. Mr. Justice Cooper • remarked that he should have thought that a lease for 999 years was infinitely superior to the freehold. The Attorney-General suggested that tho purchase of the freehold would be a distinct disadvantage in some oases. After l»inting out that tho provisions of Section 20 of tho 1907 Ax)t had been reenacted in the Act of 1908, the AttorneyGeneral came to the fundamental alteration in tho law, whipli had been made in The holder of the lease-in-per-Iftuity was given the right to acquire the freehold, but the principle, on. which he was allowed to convert, differed widely from that in the Act of 1907. Under the Act of 1907 the method of acquiring the freehold was by paying the capital value at the time of . purchase. But under tho Act of 1912 the position was entirely changed, the prico of purchase being the original capital value, which was the prico of the surface soil only. Original capital valuo had been defined in the Act of 1912 as the value on which the yearly rental of i per cent, had boen computed at tho time of the leaso. The 1 per cent, was charged upon the "cash price," and this could not include the value of tho minerals. Mi'. Justice Chapman: Where do you get your definition of "cash price"' in Section 157 of tho Act of 1892 ? Tho Attorney-General replied that there was no definition, but it was clear that the words "oash price" in the case of lands leased under Section 121 referred to tho cash price of the surface only, the Legislature having placed it beyond the power of the Land Boards or the Crown to give a title of any sort to what was undor the soil. In th§ present oase, Brighton could have exercised his right of purchase (of the land, including minorals) under the privilege oonferred by the 1907 Act, but he failed to do so, and now that right had been taken away by tho Act of 1912. It was submitted that the judgment of the Court of Appeal in Bennio's cose made it cloar that it was because of Sub-section 2 put into Section 20 of tho 1907 Act that the Court came to the conclusion that tho lessee was entitled to the minerals, and the Legislature, by omitting that sub-section in the 1912 Act, had taken away the ri^ht. Mr. Ostler also addressed the Court, and after Sir John Findlay had replied thie Chief Justico intimated that the Court would take time to consider its decision.