GISBORNE HARBOR BOARD.

Poverty Bay Standard, Volume I, Issue 214, 20 August 1884, Page 2

GISBORNE HARBOR BOARD.

The ordinary meeting of the Harbor Board was held in the Council Chambers last owning. Present: Captain Porter (in the chair), Messrs. Tutchen, Joyce, Moore, Townley, Lewis, Hepburn, and Brown. The minutes of the previous meeting were read and confirmed. Correspondence. Mr. Locke wrote:— “Wellington, August 14, 1884. “ To the Chairman of the Gisborne Borough Council, Harbor Board, and Conference of Council.—Sir,—l beg to acknowledge the receipt of your communications of August 8, Nos. 1319, 1320, and 1321, and, in reply, to state that every endeavor on my part shall be made to carry out the various suggestions. pointed out. I may state that "l have made inquiries at the Public Works Office in reference to the £750 applied for by the county for the Turanganui Bridge, and read the application in that office, but I was informed that nothing further could be done in the matter until the new Government made their estimates. There shall be no

want of attention to the matter on my part. In regard to the Harbor Bill, I have had an interview with Sir George Grey on the subject, who stated he would work cordially with me in the matter, but that no further steps could be taken until the present crisis in the political affairs was somewhat settled. He also asked me (as he was too busy at presenf) to acknowledge the letter to him from Captain Porter in reference to the above subject.—l remain, sir, your obedient servant, “ S. Locke.” It was resolved that Mi\ Locke be thanked and requested to keep in view the promised grant of £750. Mr. Joyce wished to know if the wharfinger was to devote the whole of his time to the wharf. Mr. Tutchen thought it very necessary to know. Mr. Lewis thought it unnecessary to take any action in the matter, as in the absence of anything specific to the contrary he would understand that he was to devote the whole of his time to the office. The Chairman said if the Board wore dissatisfied with the manner of carrying out the work they could discharge the officer at a fortnight’s notice. Report of Special Committee on Common, Shelton (£• Co. Claim. At the meeting there were present Captain Porter (in the chair), Messrs. Lewis, Jovce, Townley, and Smith. The subject of the foreshore upon which the buildings stand, the conditions of sale, and the letter from Messrs. Graham, Pitt and Bennett, stating that no bid had been made it the auction, were discussed.

I Mr. Rees, who was present, had the position of affairs fully explained to him, and asked to be furnished with all documents relating to the matter. Upon perusing these documents Mr. Rees form 1 an opinion, which was submitted to the Special Committee on Tuesday, 12th August.

Mr. Tutchen moved, and Mr. Moore seconded, “ That the report be adopted.” Carried. Mr. Hees' Legal Opinion. Having perused the correspondence between the Board and Common, Shelton and Co., the various Harbor Acts, and the Bye-laws of the Board, together with the law bearing on the subject. 1 have divided the matter into three questions:— (1) What are the legal and equitable rights of both parties ? (2) What claims (if any) have Common and Co., against the Board arising out of correspondence, and the legal position of the par tie*. ? (3) What remedy is to bo pursued by the Board in vindication of its rights? Having gone through all the correspondence, minutes, and notes and memoranda of certain so-called agreements, with the Acts, bye-laws, grants of the foreshore to the Board, &e., before giving direct answers to the questions put to mo I desire, as this is a matter which for some time has exercised the public mind, to set down the result of my examinations as before mentioned. In the first place I have submitted to me an agreement, dated the 14th day of April, 1882, between Common and Co., and the Borough Council selling out the terms upon which Common and Co. agree to lease from the Borough Council a portion of the foreshore and roadway upon which I am given to understand the buildings now occupied by them stand. It is sufficient for me to point out the 10th paragraph of that agreement, which is as follows :— “ Should the Bill which is being prepared for Parliament vesting the foreshore in the Council fail to become law, then this agreement shall be null and void. As the bill did fail to become law the agreement ywo facto became null and void. As I am instructed Messrs. Common and Co. held the promises by occupation solely. Indeed, without special legislation even the Harbor Board could not obtain a title to any part of the foreshore. The Gisborne Harbor Board Act enables the Governor-in-Council to grant the whole of the foreshore within the limits of the schedule to that Act to the Gisborne Harbor Board, to be held by that body under the provisions of the different Harbors Acts in New Zealand from time to time. The grant made under and in pursuance of the Gisborne Harbor Board Act, vests the property, viz., that portion of the foreshore on which Common and Co.’s buildings stand in the Board, without any conditions or restrictions, save such as may be found in the different Harbor Acts. From the date, therefore, of the grant a complete title existed, and still exists, to the property in the Board. I gather, however, from the circumstances which surrounded this case, that as Common and Co. claimed, through the late Captain Read, some color of right arising out of an alleged permission to erect buildings upon the portion of the foreshore in question, the Harbor Board did not desire to treat those gentlemen as trespassers, but wished to ensure to them the value of the buildings which they had erected and are now in their possession. Whether the Board had any legal power' to do so is not a question submitted to me. Probably both public opinion and the Courts of Law might have decided that under the circumstances, and within certain limits, they were justified in making some allowance for such a private claim against a public body. In pursuance of a desire to meet Common Co. the Board accepted a valuation which was to be paid to Common & Co. by any person who might outbid them at the sale of this property. When the property was offered for sale no bid was made by any person whatever. Had Common and Co. bid the £l5 (the upset price), it is clear the Board must have issued its license to them for the fourteen years, subject to the conditions of sale. It is equally clear that any other persons outbidding Common Co. would have been bound to pay these gentlemen the sum of £1,275. The sale, however, having lapsed, the understanding and agreement (if any), between the parties was rescinded and terminated. And now, as in the former case between Common and Co. and the Borough Council, the parties are again relegated to their legal rights. Having made this statement of the conclusions at which I have arrived, I will now give direct answers to the questions submitted for my opinion. (1) All legal and equitable rights to that portion of the foreshore upon which Common <fc Co.’s store stands are in my opinion held by the Gisborne Harbor Board. The right to the soil carries with it the right to all buildings erected thereon, and the right also to the present possession of the property as well ns to the recovery of mesue profits from the Crown grants.

The right to immediate possession being good as against all the world, the right to recover mesue profits only being available against those who have occupied the property. (2) In answer to the second question, in my opinion Common & Co. have no claims arising either from law and equity against the Board. Whatever claims those gentlemen may have had in the past arising out of agreements made with the Borough Council or the Board fell with the agreements themselves. a No claim can, it seems to me, ba urged against the Board by Common & Co., unless the Board of its own motion chooses to enter into some fresh contract by the terms of which of course it would be bound.

(3) As to the third que tion, what remedy is to bo pursued by the Board in vindication of its rights, I have felt some little difficulty in answering. It is quite possible that under the bye-laws of the Board summary proceedings before the Resident Magistrate or two J.P.’s could, by virtue of the Harbor Acts have been instituted against Common & Co. and probably with success. On the other hand the disadvantage arises of submitting to a local and inferior Court questions of great public importance, in which it is essential to the public interest that such consideration should be given to the questions raised as could be afforded only by a tribunal altogether removed from the influence of local feeling and guided by the widest knowledge of law. I am of opinion that as de facto Common A Co. have been in possession for many years, and as that possession has been assented to continuously by the Board, a claim for instant possession should be made in writing by the Board upon Common & Co., together with a claim for mesue profits, or recompense, for use and occupation since the date of the Crown grants, and in case Common it Co. refuse to give up possession, or neglect to answer the demand so made, within a reasonable time, that a writ of ejectment or possession in the Sup-

reme Court be issued against Common <t Co. by the Harbor Board. The Chairman pointed out that having placed the matter in the hands of a solicitor, the Board had nothing to do but either stop proceedings now or allow the solicitor to go on as he proposed. Mr. Joyce pioposed and Mr. Brown seconded “ That Mr. Rees be authorized to proceed with a view of obtaining possession of the property for the Board.” Mr. Lewis thought the instructions should be made definite—that they should choose one of the two courses proposed by Mr. Rees. The Chairman was sorry for all parties concerned, but he thought Common & Shelton were themselves to blame. The motion was carried unanimously. Mr. Tutchen thought the Board should assess the damage for occupation by Common it Co. since receipt of the Crown grant at £3OO. Mr. Moore seconded.—Carried. Payments. The following amounts were passed:— Rent to 30th June, .£5; Wharfinger, £3; McDeayitt, £2 2s. 6d. ; Ex - wharfinger, £5 10s. Extraordinary Business. Mr. Tutchen thought it necessary to write Common it Co. to the effect that they wore not to remove anything at present on the foreshore occupied by them. Mr. Joyce thought it advisable to adopt that course. Mr. Townley moved, “ That the whole matter be left in the hands of the committee

appointed to confer with Mr. Rees at the former meeting.” Mr. Lewis wished to know whether the committee had the matter in their own hands or had they to bring their proceedings before the Board.

Thu Chairman thought the committee had absolute power. Mr. Tutchen was opposed to that idea. Mr. Joyce did not suppose the committee would recommend anything outside the suggestions made by Mr. Rees. Mr. Brown was sure the committee would not do anything to prejudice the interest of the Board. He thought the matter might bo left in their hands.

Mr. Joyce proposed, and Mr. Brown seconded, “That Mr. Tutchen ba added to the special committee.”—Carried. The Chairman thought it advisable to consider the matter of the shed at the wharf. One of the greatest difficulties the wharfinger had was to be at the wharf and away collecting accounts at the same time. The byelaw on the subject had been a dead letter hitherto.

Mr. Lewis thought they all knew the necessity for the store, but thought it impolitic to push the matter. In a few weeks they would be able to arrange with the Bank for the necessary funds. Mr. Tutchen moved, •• That the banker be applied to for an overdraft of £l6O, for the purchase of Adair’s store.” Mr. Moore seconded. Mr, Joyce thought they could build a suitable store for half the sum. The Clerk pointed out that the committee had already made the recommendation with regard to Adair’s store. , Mr. Joyce moved as an amendment, that the words “ purchasing Adair’s store” be left out. Ho thought it inadvisable to buy this place, when as good a one could be built for £250. Mr. Joyce was alone in voting for the amendment. The motion was carried, only Mr. Joyce voting against it. In reply to a question the Engineer said the state of the river was no worse that it was a month ago. Mr. Lewis had heard from a mariner that the river was much better of late. Mr. Joyce thought something should be cone towards clearing the river. It was high time something was done. He thought the money proposed to be spent on the store would be better spent on the river. The Chairman had information to the effect that the river was much better. The Engineer was directed to report any alteration in the state of the river by next meeting. Notice oj Motion. Mr. Joyce gave notice to move, “ That at next meeting the Board would take into consideration the advisability of making some improvements in the river.” The Chairman stated that a meeting of the Conference would be held on Thursday evening at the County Council Office. This concluded the business.