NATIVE LAND COURT.

Poverty Bay Standard, Volume I, Issue 15, 29 November 1883, Page 2

NATIVE LAND COURT.

(B efore His Honor Judge Brookfield and Native Assessor). TUESDAY, NOVEMBER 27. Makauri, 0 N the Court opening this morning, the he aring of the above block was called on, wl ien Riperata Kahutia stated that this took hei 1 by surprise. 1 he Court said this was a most important bloc k, and explained the different complications which existed in connection with the claim s in the same, and the different phases it hat I passed through. It was impossible for th e Court to deal with the matters affectin g the undefined interests of tenants before considering the claims of tenants with defined interests. In the year 1882 an attempt had been made by the Court to deal with the block, but one gentleman had not thought himself fairly dealt with, and had appealed against the decision. From the decision of Mr. Justice Richmond it appeared that all the orders made in the early part of the year were only waste paper and the whole of the time had been wasted. Now a number of owners came forward and asked for sub-division, but urtil the defined claims were settled it would be impossible to deal with the undefined. The Court could not deal with the matter until the proper applications were sent in, and it would have to be adjourned until the next sitting. Mr. Brassey submitted that the Court was quite competent to deal with the question, because the whole of the previous decisions were declared void. A lengthy argument here ensued as to the effect of the Native Grantees Act, 1873, as affecting joint-tenancy and tenancy-in-cotnmon. Mr. Rees contended that although the decision as to European claims had been nullified, yet the previous judgment still held perfectly good as far as the Natives were concerned.

His Honor said the whole question had become so complicated and involved that it would require some special be passed before the Court could deal efficaciously with the matter. The further hearing of the block stood adjourned until the next sitting of the Court. Riperata now asked the Court why it would not deal with her application, and was informed that fresh legislation was necessary before doing so.

His Honor said he saw it stated in last evening’s paper, that the next sitting of the Court would be on December 3rd, but where they got such information from he did not know. The next sitting of the Court at Tologa would be on February 6th, 1884. Matawhero, B. Mr. Brassey applied to the Court that Katarina Kahutia’s shares should be declared to belong to Mrs. Carroll and other children of Riperata, in virtue of the trust deed whereby an annuity was payable to Allan McDonald, M.H.R If this was done he would undertake to get the arrears of annuity paid up and the future payment assured to Katarina by a rent charge on the land, and providing Katarina’s share did not produce enough, Riperata was willing to have a rent charge made on her share so as to make up the deficiency. His Honor said that as the deed jiad been obtained by fraud all matters in connection with the same were null and void. It appears that the present application was made with a view to traverse the judgment, which had been delivered by that Court, and he distinctly refused to interfere with that decision, as the deed was plainly a fraudulent one.

Mr. Rees submitted that though McDonald had committed fraud and the deeds were fraudulent, yet that Court hud no power to deal with the matter. •>

His Honor remarked that though the original application was made under the Land Division Act, 1882, fur an order for a Grown Grant, or Lund Transfer certificate he feltbound to rn iko similar enquiries, to those required by the Native Lauds Act, 1873, on application for an order of freehold tenure, and found that the original deed was a fraud and void. The Court distinctly refused to go from its judgment. Air. Rees said the Court bad gone beyond

ils jurisdiction in dealing with this mutter. He had frequently seen Air. Tucker pay Katarina large sums uf money, and Mr. Tucker had sworn on oath as to certain payments having been made. The only Court capable of dealing with the validity of the deeds was the Supreme Court. His Honor said that- notwithstanding any arguments to the contrary, ho refused to interfere in any manner with the judgment of the Court in this mat Ur, as he still held that the original deed wus u fraud and void. Air. Rees said that being the ruling uf the Court he would amend his application and ask that the share be cut out, so that the Company’s shares could be dealt with. The application stands adjourned until Thursday morning next. Some further business in the shape of succession claims closed the business of the day. Wednesday. On tbe opening of the Court this morning Katarina Kahutia asked that her shares be not vested iu trustees, as was applied for yesterday by Mr. Brassey. She wished the laud to be vested iu herself alone. The application was granted. Airs. K. Gannon made application that certain shares comprising 45 acres iu the northern po.tioa of Waiwhakaata Block might be allocated to her, as she had acquired them by purchase as shown by the deed produced. The Court granted the application subject to the deed being stamped and dated. Airs, Gannon next raised an objection to the action of several Natives who were only entitled to one share, but had put their wives in also, who hud no claim whatever. She had raised an objection at the time, but no notice had been taken of it. Four shares had been wrongly put in. The Court said it was too late to raise the point, as the Natives interested were not present, the sub-division would stand over until to-morrow. Taruheru. The following evidence was taken in the matter of the above block :— Katarina Kahutia, on being sworn, was examined by Air. Brassey, and said she knew the Taruheru and Makauri blocks, but not the house of Harris. Knew a place on the Taruheru named Makakahi, which was the name of a pah on the Whatupoko side above tie laruheru block. The whole of the Taruheru block was below that place. It was at that point where the salt water ceases to flow. There is no portion of the river near Taruheru which is called Makakahi.

By the Court.: There is no part of t’ o river which adjoins Taruheru block called Makakahi. At the northern part of the block tiie ) !■ r is ■•ailed Alak-ikahi. It is all one river w : s Taruheru. It was called Taruheru as fur as the salt water flowed, but Makakahi when the fresh water joined the salt. By Mr. Brassey : The stream where the wafer ij sweet is called Makakahi. This was a !<-• g way inland of Taruheru block. By M r. Tucker: The stream which runs by the block is called Taruheru. The name of Alakak thi arose at the sweet waler. When the tidy was out the fresh water flowed

down past the Taruheru block. There was no particular rule by which this was to be decided.

By the Court: The stream which passes the Taruheru block is called the Taruheru river. The pah is above the junction of the sweet waters. The stream which bounds Taruheru is sometimes called Alakakahi and sometimes Taruheru by the Natives. I call it Taruheru. I was born there. I do not know my age.

Captain Tucker next called Riperata, who was duly sworn. She did not know whether Katarina was born at Taruheru. The pah was on the southern side of Taruheru, and the block took its name from the pah. The stream which flowed by this was known to the Natives by the name of Makakahi down to the pah. It then became Taruheru. By Air. Brassey: The only time the stream was called Makakahi there was when the flood brought down the fresh w’ater. She knew Makakahi pah, but she did not know the one alluded fo by Katarina. She knew the pah called Makakahi on the other side of the stream, to the north-east of Taruhern. It derived its name from the stream. The pah wo 5 next to a small stream called luwhare, which ran into Alakakahi.

Mr. Hurrey, on being sworn, said : The agreement produced was in his hand-writing. He was at the time trustee for Wi Brown. Captain Read, \\ i Brown, and himself were present when the agreement was made. The fence mentioned in the agreement is on the north side of the road leading to the brickyard.

The Court here remarked that this was the first they had heard of a brickyard. Would it not be advisable to have an enlarged sketch drawn, so that the positions could be more clearly defined. Though that Court knew all the points it was probable that the jury of the Supreme Court would not be so clear about the positions. Air. Tucker thought he could make it perfectly clear what land was included in the agreement, so that the Supreme Court, he thought, would have the case clearly before it.

His Honor said Mr. Tucker was assuming too much, inasmuch as he implied he knew the decision to be arrived at.

Mr. Tucker expressed his willingness to be bound by that Court as to the land which was included in the agreement, and then the only matter to go to the Supreme Court was whether the agreement was to take precedence to his deed.

His Honor said that all the existing orders must be in abeyance. What he wished to do was to prevent the Supreme Court throwing the case out. If it was the wish of all parties he would decide as to the land to be included in the deed, and then the only matter to go before the Supreme Court would be the validity of the deed.

Examination continued ; He asked Wi Brown to give him the Native name where the road met the stream, and was told Makakahi, and that was how the name got into the agreement. As Wi Brown’s trustee, he took possession of the ground continued in the agreement by fencing it in. He put the fence on the South side. Captain Read had a fence on the North side. The fence was betw-en it and Taruheru. There was a fence which kept the sheep separate. Mr. Tucker now put a book in the hands of Mr. Hurrey, with a view, he said, of fixing as near as possible the date of the agreement. On referring to the book Mr. Hurrey said the deed was made on tbe 7th November, 1877. He never took po». >sion of the land on the East side of the road. He knew that some Natives eventually did so about the time of sale by auction. He made a memorandum at the time Read gave him a paper, which he us d Read’s his information and used the paper for his own information read). The fence mentioned in the agreement is the one extending to the river. The fence indicated on the plan is the one, and there was no other. Recollected when Rend built his brick house. It was after the agreement had been made. He did not. know when Road died. Read built a brick-yard, brick-shed and wharf. The brickyard was in existence before the agreement wtis made. The paper was in his hand-writ-ing—but not the whole of it. Subsequently he attended at Read’s office and attested an agreement. He received money on account of Curtis’s rent, and paid Read’s trustee’s money on account of Wi Brown for 50 acres mentioned in agreement. He did not know what the 350 acres meant. The freehold overlapped the leasehold by some 350 acres. The 3'o acres of freehold mentioned in that portion was also mentioned in Curtis’s lease, and was now in the possession of Mr. Locke. Read had shares also in Taraheru, and he made a like reduct ion in t hat case. Ho had

a conversation with Wi Brown somewhere about the time of Read’s death. Brown told him that Makakahi was not there, but. up by

the old flower-mill. I said “if such is the case you claim the whole of the land.” He answered in the affirmative. Told him it. could not he so , as there was a copy of the

agreement in Read’s ledger. At that time we were frequently before the Land Court and had every facility for knowing the boundary of Makauri —the Paparia road on fine side and the stream on the other. If Wi Brown

hud told him that, the whole average was 80 acres he would not have believed him. Wi Brown, Read, and himself had some conversation about. this, and he said he thought there were about 40 acres in the block. Fifty acres were then decided upon. Those fifty acr«s are marked on the plan. The only portion it was intended to pay for was this 50 acres. By Air. Brassey : Had stated that the fence was on the Makauri Block. The first passage in the agreement says that Wi Brown should be indemnified for any expense incurred by molestation by Natives. The whole of the Natives had not signed the Makauri deed. Was not certain that Read did nut include that part of Alakauri. The Natives refused to fake the rent Wi Brown would have accepted the rent The agreement, was made in Read’s office—now Common, Shelton & Co’s The reason why Wi Brown put up the fence was to keep his flock clean The piece marked off was not included in the agreement He assisted to lay the road off H<* did not make the road a boundary because Wi Brown said the Native name of the stream was Makakahi, but before this time the stream was know as Taraheru Did not remember seeing any map of the block, the parties signing the lease of Taraheru would be consenting to the part relative to Alakauri When the agreement was made he did not go there for the sole purpose He acted us Read s agent in January The reason why we wanted that particular piece of land, and which was fenced, was to prevent the scabby flock mixing with Wi Brown’s clean sheep There was a double line of fence, as he thought one would not be efficacious in keeping the flock clean Read was not dead when the fence was erected If he had known that the road from Davis’s house to Papawhero was to be the boundary he should have said so Mr. Hurrey now asked leave to make an explanation with respect to the last four lines of the agreement. The reason for putting them in was that they anticipated trouble in the Taruheru block, and consequently they would have the same in Makauri. Read had offered him £5O if he could get Wi Brown to take the rents, and he told him that if he would allow \\ i Brown to come up to the road he would do so. The Court: Air. Hurrey had given his evidence in a very straightforward manner. He had said he was acting as trustee to Wi

Brown. The Court ruled that the fence wm the dividing line. Mr. Tucker thought he could ofler some terms which he thought Mr. Brassey would accept. The case was adjourned until Saturday morning. Mr. Brassey asked whether, if they could get a majority of the Natives, would the Court proceed with Makauri. The Court said the case had got so complicated that it must refuse to entertain the matter.