IMPORTANT CASE

Lyttelton Times, Volume III, Issue 106, 15 January 1853, Page 7

IMPORTANT CASE

1 At the Kesident Magistrate's Court, Akaboa, before John Watson, Esq., ». m., Akaroa, and H. G. Gouland, Esq., j. p. Fiuday, 7th Jan., 1853.

Campbell v. Matson. —This case, which excited a considerable degree of interest, arose in the following mauner:—Mr. Matson, as the agent of Capt. Muter, is in possession of a section of land at German Bay, a large portion of which he has cleared, fenced, and cultivated. He is also in possession, under a lease to himself .of other lands in German Bay. Colonel Campbell, as Commissioner of Crown Lands, had awarded some of the lands referred to, to claimants under the Nanto Bordelaise Company, and had also appropriated part of them as a Government Eeserve. Mr. Boys, the Government Surveyor, was sent to lay out the same, but was warned off the land by Mr. Matson, upon which Colonel Campbell applied for a summons. At first, the unlawful occupation was the only charge made in the information, but on the morning of trial, by consent of defendant, another charge was added, viz., that the Government Surveyor had been illegally obstructed in the execution of his instructions.

James Campbell being duly sworn, stated: I am Commissioner of Crown Lands for this district. The defendant, George Matson, of German Bay, has been guilty of unlawfully occupying lands the property of the Crown, situate in German Bay, or of lauds subject to claims or contracts to be fulfilled by Her Majesty's Government, and to the New Zealand Company's Land Claimants' Ordinance, and has also illegally obstructed and prevented Mr. Boys, Government Surveyor, from obeying the instructions I had given him to mark out and survey for certain purposes certain lands in German Bay aforesaid which I had pointed out to him, the said George Matson having warned him off the same. I beg further to state that the lands alluded to, are either the property of the Crown, or are still vested in Her Majesty until all claims upon them are satisfied under the New Zealand Company's Land Claimants' Ordinance.

Mr. Matson: Where are the lands situated with trespassing upon which I am charged ? Colonel Campbell: They are situated in German Bay, to a considerable extent around the Block-house there, and are under the Canterbury Association's first Act of Parliament, dated 14th August, 1850, reserved with other lands in Banks' Peninsula, to Her Majesty, her heirs ■and successors.

Mr. Matson : What proof can you give that they are Crown Lands ?

Colonel Campbell: I idM give no other answer to that question, but that I know them to be such.

"' Mr. Matson: I wish to know what quantity of Land round the .Block-house in German Bay is subject to claims ? Colonel Campbell: They have not yet been measured by me, but the whole of the land there is reserved to the Crown, or is subject to contracts to be fulfilled under the Land Claimants' Ordinance.

Air. Gouland : I wish to know, Col, Campbell, under what law or Ordinance you expect us to adjudicate this question. Colonel Campbell: Under the Crown Lands Ordinance, Session X., No. 1. and also uiuier the New Zealand Company's Land Claimants' Ordinance, which includes all claims and contracts to which the Nanto Bordelaise Company are subject.

Mr. Gouland: In the Schedule to the Canterbury Act I find this clause, " With the exception of certain buildings, and the lands marked out appurtenant thereto." Does the land on which you say Mr. Matson has trespassed come under this exception ?

Colonel Campbell: It "is not for me to inter-

pret Acts of Parliament. On the Magistrates expostulating, Colonel Campbell answered, Part does.

Mr. Gouland: Will you be kind enough to tell us the boundaries of the land appurtenant to such buildings. Colonel Campbell: They are undefined ; I have not yet ascertained them myself. But these questions would be far more satisfactorily answered by my witnesses. John C. Boys being sworn, stated : I am Government Surveyor. You (Col. Campbell) gave me instructions about a fortnight ago to mark out certain lands in German Bay. One portion of them surrounds the Block-house there. You directed me to mark it out for a Government Eeserve.

Colonel Campbell: I said'nothing about Government Reserves—the Government have nothing to do with it, the lands are the property of the Crown. Did not I imstruct you to survey them " to he reserved to Her Majesty, her heirs and successors."

Mr. Boys : I believe you designated them as the property of the Crown. There is a portion of land immediately around the Block-house, enclosed, cleared, and cultivated ; I do not know by whom it was done. You pointed out lands on the Eastern side of the German Bay Road, which you directed me to survey for Capt. Darmaudarits. Ido not know that you a few days before investigated claims to these and other lands in German Bay. I took down notes at that Court from your dictation, but did not pay sufficient attention to be able to recollect now what they were, particularly as I was suffering at the time from severe toothache. I did not mark out the lands as instructed, because Mr. Matson warned me off them ; he warned me off the land on the Eastern side of the road, and also off part of that round the block-house.

(In the course of the foregoing evidence, as Colonel Campbell was repeating and interpreting the answers of the witness, and the Magistrates on the other hand, were endeavouring to take them down in his own words, a circumstance took place which we should think was altogether new in the experience of the magistrates. Mr. Boys having stated that he had paid little attention to the proceedings at Col. Campbell's court, partly because it was not any portion of his duty to take notes of them, but having afterwards given his answer, for the Resident Magistrate to take down as stated above, Colonel Campbell sought to elicit again from Mr. Boys the part pf his answer withr drawn. The Magistrates took occasion to observe that Colonel Campbell was seeking to make out a case against Mr. Boys, and that it was contrary to all the practice of Courts for a party to invalidate the testimony of his own witness.)

Mr. Boys, cross-examined by defendant: I always understood you to say that there was a portion of land immediately surrounding the Block-house that you did not intend warning me off, but you did warn me off part of the land that is fenced in.

By the Court: I never understood Mr. Matson to admit that a portion of the land belonged to Government, but that he supposed there would be some reserve made round the Block-house. He did not state, when he warned me off, what lands he would not object to my surveying, I have no means of knowing what lands are appurtenant to the Block-bouse, excepting from Col. Campbell's instructions.

George Hempelman sworn : I ara a master whaler, but at present am employed by Mr. Boys, as chain man. I heard Mr. Matson warn Mr. Boys off the land he was about to survey in German Bay. He warned Mr. Boys off two different portions of land—one of which was close to the Block-house, and the other between the place where Lebeau was formerly living, and the place where Hoale formerly lived ; on the East side of the German Bay road. I have seen Mr. Matson's men clearing and fencing in the ground round the Block-house. I have seen Mr. Matson inside the fence along with the men, but have never seen him at work that I can recollect.

By Defendant: You ordered Mr. Boys off that portion of the land round the Block-house which is at the South corner, next the beach. The distance of the spot where you warned him off, from the block-house, was between 3 and 4 chains. You asked Mr. Boys if lie was going to survey that piece of ground. Mr. B.iys said, yes. You then said-r-I warn you off. .

By the Court: There was a temporary fence put round the block-house for protection, when it was first built. It was composed of posts and slabs. I cannot remember how far it was from the block-house. I can form no idea of the distance.

Mr. Matson in his defence said: As a general answer to the two charges I have to state that I was put in possession, by Capt. Muter, of all the freehold lands in question, and my authority for acting for him is the Power of Attorney I now hand in—that Capt. Muter was put in possession by the Canterbury Association, as is shewn by the Order of Choice I now produce. To the second charare, I have to say that I warned Mr. Boys off land of which I myself was put in possession ; I submit that this case involves a question of disputed title, and is not under the jurisdiction of this Court. Ido not dispute the land said to be reserved around the block-house, if, it is pointed out to me, but I have never been able to discover that there is any Government Eeserve there. I object, however, to any further reserves being made there.

Colonel Campbell: Will the Magistrates allow me to inspect the Power of Attorney and Order of Choice put in. ■ • ,

Mr. Matson: I object, Colonel Campbell, to your inspecting them in this Court.

The Magistrates decided that the documents might be read to Colonel Campbell, which was accordingly done. Mr. Matson having stated that he should call no witnesses,

Colonel Campbell took the opportunity to say that he was actuated in this matter by no personal feeling towards Mr. Matson, and had not moved in the matter until obliged to do so ' in order to protect the rights of the Crown. Captain Muter, for whom Mr. Matson was agent, was the son of one of his earliest and most intimate friends, and he should be happy, where he could fairly do so, at all times to advance his interests or those of Mr. Matson.'

The Magistrates then retired, and on returning simply stated that " they dismissed the case,"— Communicated.

Resident Magistrate's Codht, Akakoa, Bth Jan., 1853, before J. Watson, c. m., and H. G. Gouland, Esq.

Campbell v. Davie.—This was an information laid by the Commissioner of Crown Lands for an alleged trespass committed by the defendant upon certain lands situated at German Bay, Akaroa, " the property of the Crown, or lands subject to claims or contracts to be fulfilled by her Majesty's Government under the New Zealand Land Claimants' Ordinance," for which trespass he sought to recover the sum of £20. Owing to the eccentric manner of conducting the case, the time of the Court was occupied for nearly three hours with the Plaintiff's statement and the examination of his witnesses; contrasting forcibly with the succinct defence.

It appears that the defendant, an Assistant Surveyor of the Canterbury Association, in obedience to written instructions he had received, proceeded to Akaroa tor the purpose, amongst others, of marking out a section which had been selected at German Bay, by virtue of a Land Order issued by the Association. On his arrival here the Commissioner directed Mr. Boys, the Government Surveyor, to in form him that there were certain claims " unsatisfied and undefined," and that should he, in making his survey, trespass on any of the lands subject to such claims, the Commissioner would forthwith institute proceedings against him. On asking the Government Surveyor for further information as to the nature and extent of the claims in question, he was told that the Commissioner had given him (Mr. B<>ys) most positive instructions not to afford any, nor assist him in any way to discover them. The defendant had' therefore no alternative but to proceed with his survey, endeavouring at the same time to ascertain from plans in his possession, ami such other evidence as he could procure the information refused by the Commissioner.

The Defendant stated that he was acting in conformity with the instructions of the Agent of the Canterbury Association, and at the same, time cayrving out the intentions of the Act o Parliament passed the 7th August, 1851, to the lOth section of which le begged to direct the attention of the Court, at the same time puttine in his written instructions from the Canterbury Association.

The Magistrates dismissed the case,