COURT OF APPEAL.

New Zealand Times, Volume XXX, Issue 4574, 17 November 1875, Page 2

COURT OF APPEAL.

Tuesday, November 16. (Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Gillies, and Mr. Justice Williams.) MORRISON V. PEARSON AND OTHERS. In this case George Morrison, John Morrison, and Henry Banuerman Morrison are plaintiffs, and Walter Henry Pearson, John Mitchell, Duncan McArthur, John Holland Baker, Sir John Larkins Cheese Richardson (Knight), George Lumsden, and William Wood, Commissioners of the Waste Lands Board of Southland are defendants. It is a special case stated by the parties without pleadings for the opinion of the Supreme Court, and by consent, and in pursuance of an order made by Ids Honor Mr. Justice Williams, removed into the Court of Appeal under the 19th section of the Court of Appeal Act, 1862. The case set forth that on the 9th July, 1873, the Governor, by an order in Council, and upon the recommendation of the Superintendent and Provincial Council of Otago raised the price of rural land in the district of Southland, until the publication of the classification of the lands by three commissioners, who, under authority of the Superintendent, classified the unsold rural lands not included within any existing Hundred in the district of Southland, and sent in their report on the 10th of April,lß74. Onthellth July, 1874,theSuperintendent, by authority of the sth section of the Southland Waste Lands Act, in which it is enacted that it shall be lawful for the Superintendent, with the advice and consent of the Provincial Council, to set aside lands for sale on deferred payments, such lands to be sold and dealt with in terms, and subject to the conditions and provisions embodied in sections 47 to 64, inclusive of the Otago Waste Lands Act, 1872, set apart a number of lands for disposal under the system of deferred payments, and included in these lauds were 960 acres on run No. 159, to which plaintiffs had a right as holders of a depasturage license which does not terminate by effluxion of time till 1881. On the 19th August, 1874, Archibald Finlaysoh, Newman Finlayson, and Kenneth Finlayson, respectively, applied under the provisions contained in the 47th to the 64th sections inclusive of the Otago Waste Lands Act, 1872, embodying what is commonly known as the deferred payment system of alienating rural land, for licenses to occupy three several parcels of land, each containing 200 acres, situate in the Taringatura district and on the run No. 159. The applications were opposed by plaintiffs, but notwithstanding such opposition an interim certificate was, in pursuance of the Srdjsubsection of the 50th section of the Otago Waste Lands Act of 1872, issued to each of the said applicants. The Waste Lands Board had refused to issue to the said applicants respectively, licenses to occupy the lands referred to in such interim certificates respectively, until the opinion of the Court had been obtained. The questions for the opinion of the Court were : (1.) Is the said proclamation of the 11th day of July, 1874, mentioned and set out in the third paragraph of this case, so far as it affects lands csmprised within the limits of the said run No. 159, or any other run held under licenses issued in pursuance of the Southland Waste Lands Act, 1865, valid ? (2.) Are any of the lands comprised within the limits of the said run No. 159, or any other run held under the provisions of the Southland Waste Lands Act, 1865, legally liable by virtue of the provisions of the Southland Waste Lands Act Amendment Act, 1873, to be set aside for the purpose of being sold on deferred payments, or otherwise dealt with according to the provisions contained in the 47th to the 64th sections inclusive, of the Otago Waste Lands Act, 1872. (3.) Are any of the lands comprised within the limits of the said run No. 159, or any other run held under the provisions of the Southland Waste Lands Act, 1865, legally liable by virtue of the provisions of the Southland Waste Lands Act Amendment Act, 1873, to be sold on deferred payments, or otherwise dealt with according to the provisions contained in the 47th to the 64th sections inclusive of the Otago Waste Lands Act, 1872 ? Mr. Macassey and Mr. Haggitt appeared for the plaintiffs, contending that it was not the intention of the Legislature to embody all of the sections from 47 to 64 of the Otago Act into the Southland Act, because the other provisions of the two Acta were so different, and the circumstances of the two provinces so diverse, that provisions which were perfectly applicable in the one case would be absurd if applied to the other. It was submitted that if two constructions could be placed upon the sth section of the Southland Waste Lands Act of 1873, then the Court would adopt that construction which would not interfere with vested interests of individuals. It was pointed out that under the regulations of 1856, pastoral tenants held land by licenses, in respect of which they paid £5 per annum ; but their occupation was liable to be determinated at any time, and for such determination they were not entitled to compensation. The province then got into considerable difficulties, and in adopting means to extricate the province from the difficulties, it was the policy of the Legislature to hold out inducements to the tenants to give up the tenures they then held, and to pay the provincial authorities larger sums for their tenures, the inducement held out being that they would attain great security in their holdings. They were led to believe that their tenure would remain unaffected except by the laud being sold, granted, or reserved for public purposes. When the Act for the reunion of the two provinces was passed, the position of the pastoral tenants was confirmed, by special provision being

made to retain the same land law for Southland as was then in existence, and therefore it was submitted for the plaintiff that a lease could not be determined by proclamation of the Superintendent without compensation being given. The certificate of occupancy granted upon the application within terms of the law regarding the deferred payment was not a purchase, grant, or disposal, or reservation for public purposes, within the meanin 0 * of the Act of 1865, s. 59, and the license could not be abrogated. It was inconsistent and unreasonable that individuals should be so deprived of their rights, and the fair construction to be placed upon the Act was that it applied to all land open to be dealt with, without interfering with existing rights of individuals. The validity of the proclamation was contested, and it was urged that a mere proclamation did comply with words used in the Act, “with the advice and consent of the Provincial Council.” An Ordinance was necessary. Even supposing proclamation was sufficient, there ought to be two ; one setting aside the land, and another proclaiming it to open for selection under the deferred payment system.

After Mr. Haggitt had concluded, the Court adjourned till next day.