SUPREME COURT.

Evening Star, Issue 3868, 17 July 1875, Page 2

SUPREME COURT.

IN BANCO.

Saturday, July 17. (Before Mr Justice Johnston,)

Herbert v. the Waste Lanes Board.— Argument in respect to the injunction herein was heard to-day. IBefore counsel proceeded to state the frets iu Herbert’s case it was decided to hear the cases in which Messrs Larnnch, Mervyu, aud M’Kellar were concerned at the same time, apparently with the object of saving time. As before Messrs Barton, Stout, and Smith ap eared for the Board, and Messrs Macassey, Haggitt, and G. Cock for the squatters.

Mr Barton entered into a long argument in re spect to Herbert’s case, and in reading the Principal part of the affidavit filed in connection with the action, said that paragraph 8 of the declaration staled that on the Bth June, the Board, with his Honor the Superintendent, withdrew from sale under the Waste Lands Act, 1874, the unsurveyed parts of the Honot Hundred upon the plaintiff’s run, and which had never been sold or rescinded. Paragraph 9 stated that in May, 1875, at the session of the Provincial Council, on the recommendation, aud waiting the approval of the Superintendent, it ivas resolved to sot apart 60,00 acres in the Heriot Hundred, part of the plaintiffs run; and the total acreage setayart underthatresolution amounted to 30 (100 - the total acreage allowed to be set apart under the Act in one year. Paragraph 11 stated that the Superintendent had by proclamation published in the ‘ Gazette ’ of May 19, atto sot apart and declared open for sale on deferred payments on the Heriot Hundred 13,701 acres, part of plaintiffs run. Paragraph 12 declares that of this complete block or district of land, 7,000 acres wore reserved for lease or sale on the deferred payment system, A proclamation was issued by the Superintendent, without the authority of the Provincial Council, on the 23rd, professedly for the object of correcting the alleged mistake in the previous proclamation, but proclaiming certain lands open for sale under the 47th section of the Act. Mr Heid, in his affidavit, had said it was true that the land had been set apart for sale by resolution of the Provincial Council, 1874, giving power to set apart 26,000 acres. Seven thousand acres were set apart as agreed to by resolution in 1875, and the residue, 1,018 acres, was proclaimed as under 1874.

At half-past one Mr Macassey pointed out the impossibility of the case of Herbert v. Thomson and Others being finished before the Judge loaves for Christchurch, ns the civil sittings commence on Monday next, and suggested that it would bo better to make sonic arrangement. After discussion the Judge decided to communicate with the Chief J ustico to ascertain whether it could he arranged for him (Judge Johnston) to remain here longer, nr whether some arrangement could be made to take this case and the remaining banco business in Christchurch.

Logan v. Otago Waste Lands Board.— His Honor gave a lengthy judgment (which will appear on Monday) in this appeal. The principal question in dispute was whether the Otago Waste Lands Board were or were not justified iu refusing to entertain and grant the application made by the appellant for rural laud open for purchase at 20s per acre. His Honor was of opinion that the appeal must be dismissed, and that a certificate should be sent to the Board to tne effect that their decision should be confirmed in the terms of the Waste Lauds Boards Appeal Act, 18C7, see* tfon 5.

A certificate was accordingly given, his Honor awarding costs to the respondents. His Honor delivered the following judgment °

the Sorrm.AN d Waste Lands Act, c->; parte M Intosh.— This is an appeal from the decision of J, 4Vaste Laud Board at Invercargill, given on the sth August, 1874, in the matter of tlm>o applications by James M'lutosh for certain portions of land in the Oreti Hundred. The principal question in the case is whether a certain reservation by the Superintendent of Otago, of lands, comprising amongst others the lauds in question, whereof notification was published in the ‘ Otago Provincial Government Gazette' of the 15th July, 1874, was or was not good in law. The reservation in question appears to have been made under the provisions contained in the 4th section of the Southland Waste Lands Act Amendment Act, 1873. By that section it is provided that it " shall be lawful for the Superin. tondent of Otago temporarily, and pending the meeting next ensuing of the Provincial Council, to »et aside and reserve from sale such blocks of laud within the said district the district formerly known as the Province of Southland) us he shall see lit; provided that such temporary reservation shall be null and void after the termination of the session next ensuing of the Provincial Council.’* It appears that betweeu the 2nd October, 1873, the date when the Act came into operation, and the date of the notification above-mentioned, a session of the Proli nc iSl^ ( l un < ?L. <^tß?o , wfts held, commencing on the 29th April, 1874, and terminating on the 15th Juno In the same year. The first question in the ease, arising on the construction of the 4th section of the Act, is whether the power thereby granted to the Superintendent expired on the opening of the above-mentioned session, or whether it is a power which exists from time to time during the periods when the Provincial Council is not iu session • or m other words, the question is whether the exii'es* sion •< temporarily and pending the meeting next ensuing of the Provincial Council,” means “next ensuing or happening after the passing of this Act ” or next ensuing the act of setting aside and re serving.” I am clearly of opinionthat. upon the true construction of the section, the latter and imt the former meaning must he attached to it It is said that in former Acts, where bv m the P «.T CrB > veu be exercised by the Superintendent, not once bnt from wa a G ul°J lUJ u d 4 ltf T e '° Ut more explicit language was 9<K t' Hut I see no reason iu any of the sag. gested arguments why this, the more strict and

m—gnable aonatrootioii of tlua tangUMM of th« section, should be rejected. The power of finally dealing with the lands was reserved to the Superintendent and Council; but, in order to prevent their being brought up in the usual way while the Council were in recess, power was given to the Superintendent to reserve such portions os he thought fit from sale till the Council could finally deal with them. Another objection was raised to the validity of the reservation, on the ground that it does not with sufficient certainty indicate the particular portions of land which were to be reserved. Certain acre- 1 ages in certain districts and runs ware enumerated in the notice, ending with the words “Total. 137,412, as the same is delineated on the maps in the Land Office, Invercargill.” Those maps, it appears, do not, without explanation, show of themselves the hlookswhich were s a reserved; but the officers of the department indicated to applicants that such blocks were marked in a particular manner, i.e., were edged with bine. The blocks applied for by the appellant are found by the case to be identical with or included in the blocks which he was informed by the officer of the Survey Department were the blocks reserved under the foregoing notification. It appears to mo that, although the foregoing notification of reservation might have more distinctly indicated the definition on the map of the blocks reserved, yet there were reasonable means by which intending applicants could ascertain the specific position of those blocks; and that nobody could be misled by the terms of the notification, though they might thereby be put to more minute inquiry as to the position of the blocks reserved it facto. Inasmuch as officers of the Board indicated the particular blocks marked in a particular manner, it appears that specific reservations had actually been made, and not merely reservations of quantities in unascertained positions. As 1 entertain no doubt upon this pertion of the case, it is unnecessary for me to determine whether the second and third reasons given by the Board for refusing M'lntosh’s applications were valid, and properly stated, under the 29th section of the Southland Waste Lands Act Amendment Act, T.B6T. For these reasons I am of opinion th.v: the decision of the Board was correct, and I shall certify accordingly, so that they may confirm their decision, pursuant to the provisions of the Waste Land Boards Appeal Act, 1867, section 4. Certificate accordingly, with costs. Leave to appeal was granted. The Court then adjourned.