THE TRUE POSITION

New Zealand Times, Volume XXXVII, Issue 8349, 8 February 1913, Page 5

THE TRUE POSITION

MR T. F. MARTIN’S OPINION. SUPPORTED BY OTHER HIGH AUTHORITIES. COAT; GOES WITH LAND. Tho foregoing, it will bo observed, is not tho report—merely extracts from it, Mr Massey declining to give to the press tho full report. Wo havo submitted tho whole of tho facts and circumstances to several of tho highest legal authorities in Wellington. Their unanimous opinion—tho opinion that we and others had ourselves formed on a layman’s reading of tho statutes — is that tho law of the land, tho Act of tho Massey Government, gives Mr Brighton all that lie asks for. Tho combined view of these highly-trained professional gentlemen is that Mr Brighton and other tenants in like cir-

cumstances may claim, and must have granted to them, the full value of their lands, including coal deposits, at the original value plus 1 per cent, and interest. ... ~ Tho views of tho legal gentlemen referred to in tho foregoing are crystallised in an opinion quoted below. The signatory is admittedly a high authority. He is and has been for years solicitor to tho Municipal Association of New Zealand, and among works from his pen is a well-known handbook on “Tho Land Laws of New Zealand," of which ho has been a very close student. We invito our readers to peruse tho opinion of Mr T. F. Martin: ' “On the facts as stated in this morning’s ‘Dominion,’ it is clear that Mr Brighton is entitled to tho fee-simplo of tho land comprised in tho lease, including tho coal on the property. It is stated that tho lease was issued under the Land Act, 1892, and that it contained a condition providing that the coal and other minerals were excepted from the lease. “Under section 20 of the Land Act, 1907, tho owner of every loase-in-por-petuity granted under the Land Act, 1893, was given tho right to purchase tho foe-si mjilo of ‘the land comprised in tho lease,’ at a price equal to the capital value of tho land at the time of tho purchase. But it was expressly provided that the capital valuo should include tho value of all minerals other than gold and silver. No class of lease is excepted from the operation ol section 20, and it is plain that tho legislature contemplated that it should extend to leases in which tho reservation of coal existed, because special provision is maclo fox* tho pajmaent, in such case, of the value of the coal. Moreover, it would bo quite improper to speak of the fee-simplo of the land being purchased if it were only intended to grant the surface of the land. < Fee-simplo 1 is a term < used to denote tho highest estate in land which it is possible for a subject to acquire. “This construction of section is borne out by a decision of Mr Justice Chapman in the case of the Commissioner of Crown Lands versus Bonmo, decided in 1909. . “Tho learned judge decided that section 20, which gave the. holder of a lease-in-perpetuity tho right to purchase tho foo simple of. prised in the lease’ entitled the holder of such a lease in which tho minerals were reserved, to purchase the fee simple and not merely the surface or the land. His Honor added: “I have carefully considered whether it was intended to confine the right of purchase to tho land held under the lease—that is, the surface only, excluding all valuable minerals. In face of subsection two, however, it is in my opinion impossible so to read the section. . . . In the result a . man claiming to exercise this option must .bear in mind that he may be called upon to pay twice as muon for the agricultural land as the value in respect of which the rent payable under the leas© is calculated, and an additional sum for minerals.’ ‘The effect of the Act of 1912 is _to repeal section 20 of the Act of 1907, or rather section 177 of the Act of 1908, which was substituted for section 20, and provided that the owner of the leaso-in-perpetuity held under the Act of 1893 is entitled to purchase the fee simple of the land comprised in the lease at the original value, that is, the amount upon which the rental of the section was calculated when he bought his lease, plus one per cent, per annum on such amount, and interest on such one per cent. “The position is therefore that before the passing of the Act of 1912, the owner of a lease-in-perpetuity under tho Act of 1892 was entitled to purchase the fee simple, including coal, but he was required to pay the value of the coal. Under the Act of 1912, the right to purchase tho fee is granted, in just the same words as were used in section 20 of the Act of 1907, but instead of a price which includes the value of the coal, he has only to pay tho amount upon which his rent was computed, in tihs case, £47 plus the one per cent, per annum and interest thereon. “T. -F. MABTIN.”