An Important Decision

Feilding Star, Volume XIV, Issue 20, 4 August 1892, Page 3

An Important Decision

In the ease Tatteriall r. tlie Wellington Land Board on the question of the improvements to be effected by nonres.dent holders of deferred payment sections before they could claim their titles. The judgment which was in favour of the appeal his been printed in full by the Pahiatna Star, and from it we learn that Hi« Honor remarked :— "The lessee is in vaj opinion entitled now to acquire freehold, he h&vrag already Carried out all the improvements required by his lease to be made— that is, having already (though only in the third year of bis leaiej effected all the cultivations and- permanent improvements which he would have had to effect if he were applying for the freehold after the lapse of the firsi sit years of his lease, instead of in the third year of his lease ; and having effected additional cultivations which by the 2Ut section of the Amending Act of 1887 is to be ef fected in lieu of residence on the land." His Honor then. makes a critical anaiy* •is of the sererat clauses of the various Land Acts referring to the question, and arrives at the .following: "If. then, residence for the whole period of the fijst six years is no longer required as a condition to the right to ' acquire the freehold, and residence up to the time of the application is Mifficient, there seems no reason whj that which by the 21st section is in respect of any period taken inlieaof residence as exempting in re sped of such period from the perfor* mince of the condition as to residence, should not also be sufficient for the purpose of conferring the right to acquire the freehold and be deemed, in respect of an application within the period to acquire the freehold, a fyJßlhng of the condition as to residence, or, which is in effect the: same thing, an exemption from the performance of the condition ofresi* donee, so far as residence is required." The Chief Justice concluded his i judgment as follows : "The Iwsee in this case has brought n-to cultivation one fifth of the land, end has put substantial improvements of a permanent character, on the land to the value of £1 for every acre of such land ; but as he has been non- resident and is applying for the freehold after the second year, and before the end of the fourth year of his {ease, he ought to have $rstig£t'inlto cultivation twice one fifth of the land leased. That he has done, therefore fee is entitled to' acquire the freehold. If he had applied after the fourth year, he would have had to pat on permanent improve* ment to the value of £2 per acre instead of £l per acre. It his application >ad been earlier— if he Had applied at any time before the expiration of the first year of the lease, toe would have had to have brought into cultivation onefifth plus one-twentieth of the land, and put on permanent improvements to the value of £1 per acre. If he had .ap* plied after the first: year, and within two years, he would have had to have brought onerffth plus one-tenth of the. land into cultivation, and put on improvements to the value of £1 per •ere. A question of some difficulty mat perhaps arise as to whether a lessee who applies just after the expiration of the first year or second) or fourth year, as the case may be. could claim the benefit of the -,21st section without having completed the cultivation or improvements which he would haye had the rest of the period, to dp them in if he were resident. This difficulty arises whether /the question be for for feitnre for non-fulfilment of the con dition of residence or be in reference to the right to acquire the freehold. I an inclined to. the opinion that the non* resident lessee in «uch a case must be able to show that he has. in whatever part* of any of the periods the question ef nonaresidence is raised, be able to show that he has effected double the amonnt of cultivation or improvement required in respect of the period—that is, whether the question is raised at the commencement or end of the period, the cultivation or improvement must hare been effected or- he cannot claim the exemption. The question does not arise in the present ease, for though the applicant is applying at the coma mencement of tbe third period, which consists of the second two years of the lease, he has done double the amount of cultivation prescribed to be done before the end of these two years."