*

*
*

one of the bones of contention being the frontage to the River Piako. In almost all the receipts for instalments on land on the Piako the River Piako is named as the eastern boundary, but now they one and all denied and ridiculed the idea of their ever having sold the land right down to the river, especialy while the old claim had been so long unsettled (meaning Webster's). I found that my insisting on the fulfilment of their agreement with regard to boundaries would, as far as the River Piako was concerned, be mere waste of time. I accordingly proceeded with the survey. I had one continued discussion with the natives with regard to Webster's claims, but they were always most consistent in ignoring entirely the boundaries as laid down in any documents to which I had access. From all that I have seen, I am inclined to think that the natives are in the right-at any rate, far more so than the Europeansin this instance. The land included in Webster's claim that was retained by them south of Pouriuri amounts to about three thousand acres (3,000 acres). Out of this I have since purchased and paid for finally about twelve hundred acres (1,200 acres). The river frontage in the block surveyed begins where the surveyor's line meets the river beyond Te Areiriri. The last-mentioned purchase brings the frontage nearly two miles further north.

With the difficulty as to the particular grant issued to Webster for land at the Piako is connected the general question as to the validity of all the grants issued by Governor Fitzroy under the land claims ordinance, and this brings me to the consideration of the proceedings of

THE THIRD COMMISSION.

In order to facilitate and hasten the settlement of the land claims, Governor Fitzroy arranged that grants should be issued to the claimants, giving the areas in such grants according to the quantity estimated by the claimants themselves. In some cases the boundaries described in the grant did not include the given area, and in other cases they included more.

The Point Rodney claim (305G) and the Waiheke claim (5051) are instances of both. In 305G there was a surplus, but in 3051 the area described as containing 1,187 acres proved on survey to contain 885 acres only. The original claimant and grantee was not wronged in such case, as he was granted the actual land he claimed to have bought from the natives; but the derivative purchaser, who bought from the grantee a specific acreage, suffered considerably by the transaction; still he ought not to have bought in such case without having a survey made, notwithstanding the difficulty of obtaining it for want of a sufficiency of surveyors in the colony at that time.

Grants, according to Governor Fitzroy's directions, were issued for lands unsurveyed and imperfectly described. In the notice published in the Gazette of the 23rd May, 1844, announcing his intention, the reason adduced for the issue is the impossibility of getting the land surveyed without causing such delay as would be ruinous to the parties interested. These grants are full of defects, such as recitals entirely the reverse of the fact, stating, for instance, the quantities of land conveyed were those awarded by a commissioner, while, in fact, the grant conveyed double or treble the quantities; or that recommendations had been made, while, in fact, the claims had never been heard by a commissioner. Some of these purported to convey more land than had been originally claimed, and most of them contained no particular description of the specific portions of land intended to be conveyed.

On the 16th August, 1856, "the land claims' settlement act, 1856," was passed for the purpose, among other things, of correcting the Crown grants issued under the previous exising ordinances, and the validity of which grants had been disputed on various grounds.

The act repealed all of the former ordinances but re-enacted all the provisions of the ordinance of 1841 which were not unsuitable for the purpose of settling outstanding claims, whilst additional powers were enacted for the purpose of calling in and cancelling or repealing all Crown grants previously issued and of issuing corrected grants in lieu thereof. But the act prohibited the reconsid

eration of any case disallowed by any previous commissioner, or that had been withdrawn by the claimant.*

All claimants, whether original or derivative, were required to have the exterior boundaries of their claims surveyed and plans sent in to the commissioner, together with their grants and all documents and deeds relating to the alienation of any claim by an original claimant. A survey-allowance was made of 18. 6d. per acre, and, in respect of court fees, to be received in land within the claim at an estimated price of 10s. per acre.

Mr. F. D. Bell (now Sir Francis D. Bell, agent-general for the colony in London) was the sole commissioner under the act. He held courts all over the colony to receive the evidence of claimants and others. All the grants issued under the ordinances were surrendered to him, together with all documents relating to the land described in such grants. He also had all the original native deeds and other documents placed before the first commissioners, together with their original reports and the evidence taken by them in each case. An exhaustive examination of every claim was made by Mr. Commissioner Bell, and thereon he made his awards, which were all confirmed.

A general report of his proceedings was presented to the general assembly, and printed in the appendix to the journals in 1862, D.-No. 10; and in the year following the appendix to such report, showing in detail the award in each claim, was printed in the appendix to the journals 1863, D.-No. 14.

The awards made by Commissioner Bell in Webster's claim are shown in the following table, in which is also shown, for the purpose of comparison, the vast difference between the area of the several claims as estimated by Mr. Webster, and awarded under the second commission previous to survey, and the actual area as discovered on survey:

Synopsis of the awards made by the third commission in Mr. Webster's land claims, exclusive of the claim at the Great Barrier Island.

In consequence of this prohibition the third commission took no cognizance of the claims Nos. 305D, 305E, 305F, 305L, 305H, 305J, and 305M.

+ Commuted for scrip, at 158. per acre = £1,599 108.

Commuted for scrip, at 78. 6d. per acre-£549. Issued 18th February, 1880, to trustees under will of Sir S. Donaldson.

§ Exclusive of 24,269 acres separately granted in respect of the Great Barrier claim. Inclusive of allowance for survey and in respect of court fees paid.

Thus it will be seen that in the Piako claim, 16,754 acres being granted and only 7,500 acres admitted by the natives to have been sold by them to Webster, the entire difference between the two acreages had to be provided out of the Crown estate.

In the examination of Mr. Webster's claim 305K, for 5,000 acres at Piako, Commissioner Bell found that almost all Mr. Webster's titles for land in his other claims had become mixed up together with his titles in 305K, and also with the titles of derivative purchasers from him in his several claims, in joint or sepaate mortgages to the same parties in Sydney. For the disentanglement of this confused web the commissioner prepared an elaborate abstract of title, showing the various transactions which had occurred from time to time in respect to these lands; and, as this very valuable document throws a great light upon the nature of Mr. Webster's land transactions generally in New Zealand, an extract therefrom is printed here:

IN THE COURT OF CLAIMS.

[Extract from the award made by Commissioner Bell in the matter of the grants issued 1st May, 1844, to the extent of 12,674 acres at Piako, in the claim Webster, 305K.]

On the 18th December, 1843, Commissioners Godfrey and Richmond reported, in Claim 305K, that William Webster had made a bona fide purchase of a tract of land on the west bank of the River Piako, which was estimated by the claimant to contain 80,000 acres, and they awarded a grant for the maximum of 2,560 acres. By a further report of the same date, after stating that a total quantity of 7,541 acres had been awarded in the separate claims of Webster, they recommended that amount to be reduced in the aggregate to the maximum grant of 2,560 acres.

There were a great many derivative claims from this one, 305K, but in all of them the commissioners reported that, as the maximum grant had been awarded to Webster, no grants could be recommended to them, viz:

1. Peter Abercrombie, one-half, or

2. Henry Downing..

3. John Johnson...

4. Vincent Wanostrocht..

5. Jeremiah Nagle and J. Wrenn. 6. A. Devlin

7. George Russell

8. Felton Mathew and G. Cooper

9. Charles Abercrombie.

10. Robert Abercrombie

11. William Abercrombie 12. W. Drake.

13. R. G. Dunlop.

14. J. Gibbes.

15. Thomas Jeffrey

16. W. Liddell. 17. John Mackay

18. John Wrenn..

Acres. 40,000

1, 280 5,120 1,000 600

5, 020 2,560 10, 240

These were derivative from Peter Abercrombie, who had bought half of the Claim 305K. Each claimant bought one-tenth of Abercrombie's half, and was to have one mile frontage to the Piako.

On the 10th of April, 1844, the claims of Webster having been brought before the executive council, a minute of the council was passed, authorizing Mr. Robert A. FitzGerald (whom Governor Fitzroy had appointed a commissioner under the land-claims ordinance) to recommend an extension of the award to Webster; and in pursuance of that authority Commissioner FitzGerald, on the 22nd of April, 1844, recommended that Webster should receive grants to an amount not exceeding 18,000 acres, which recommendation was approved by Governor Fitzroy. The reasons given for this extension were, that the outlay by Webster amounted to the sum of £7,787; whereby, according to the scale of computation by the schedule to the land-claims ordinance, he might be considered as having paid for 50,904 acres; that even limiting his outlay to the mere payments made to natives, he would be entitled to 17,950 acres: and that having made sales on the faith of all his valid purchases being recognized by the Crown, he would, unless treated with great liberality by the governor, be overwhelmed with law

suits and subjected to great losses. Under these circumstances Commissioner FitzGerald recommended that there should be granted

To Webster himself, in claims 305, 305A, 305c, 305G, 3051, 305K
Henry Downing, in 305 305C, 305K

Peter Abercrombie, in 305, and 305K

David E. Monroe, in 305c..

Felton Mathew

John Johnson

Vincent Wanostrocht

J. Nagle and J. Wrenn
Arthur Devlin

George Russell

Making a total of

Acres.

5, 000

845 5, 125 550

2, 560

One-fourth of the amounts they pur-
chased from Webster

1, 280 250

150

1, 255 640

17, 655

On the 25th April, 1844, the governor "fully approved of all these recommendations, and engaged to sign grants for the various parties when laid before him." On the 1st May, 1844, accordingly, the following grants were issued in respect of claim 305K, the subject of this decision:

To Peter Abercrombie, one-eighth of his 40,000 acres
Henry Downing, one-fourth of his 1,280 acres...
John Johnson, one-fourth of his 5,120 acres.
V. Wanostrocht, one-fourth of his 1,000 acres.

J. Nagle and J. Wrenn, one-fourth of their 600 acres
Arthur Devlin, one-fourth of his 5,020 acres.
George Russell, one-fourth of his 2,560 acres
Felton Mathew, one-fourth of his 10,240 acres.

And to William Webster himself...

Making a total of...

Acres.

5,000 320

1, 280 250

150

1, 255 640 2, 560

11, 455

1, 219

12, 674

The whole of these grants contained the same description of boundaries and were on that account, as well as for other reasons, obviously void for uncertainty. They were accordingly called in by the Attorney-General, by notice dated 20th June, 1859, published in the New Zealand Gazette, and were all produced except the grant to Nagle and Warren for 150 acres. By an order dated 29th February, 1860, and published in the New Zealand Gazette of 1st March, 1860, the last-mentioned grant was adjudged void, and the others have also been adjudged void by orders severally enfaced thereon and cancelled. One of them, the grant to John Johnson for 1,280 acres, had been purported to be "corrected" by an indorsement, pursuant to the quieting titles ordinance of 1849; but the "exception" in it (as in all grants) of the land claimed by the native chief Takapu, not having been defined, pursuant to the twelfth clause of that ordinance, the correction appeared to me of doubtful validity, and I have not therefore excepted Johnson's grant from the general cancellation of all the grants issued in 305к.

No claim has been made before me under either of the grants to Nagle and Wrenn, or Vincent Wanostrocht. The grant to Arthur Devlin has been conveyed to Stuart Alexander Donaldson, of Sydney, and a new grant applied for in the latter's name accordingly; and all the other grants have been assigned to Frederick Whitaker and Theophilus Heale, of Auckland, who applied for the new grants in their names. The following is an abstract of the various conveyances and assignments under which the original claim has now devolved on these parties:

I. STUART A. DONALDSON.

Grant to A. Devlin for 1,255 acres. By deed dated 13th October, 1848 (attached to the cancelled grant), Arthur Devlin conveys the land comprised in this grant to S. A. Donaldson in consideration of £3,000.

II.-WHITAKER AND HEALE.

1. Grant to George Russell for 640 acres. By deed dated 13th April, 1855 (attached to the cancelled grant), George Russell conveys the land comprised in this grant to F. Whitaker and T. Heale in consideration of £200.

2. Grant to Henry Downing for 320 acres. By deed dated 14th June, 1854 (attached to the cancelled grant), Downing conveys the land comprised in this grant to Thomas Henry in consideration of £112; and by deed (indorsed) dated the 14th January, 1860, Henry conveyed the same to Whitaker and Heale for £112.

3. Felton Mathew, grant for 1,560 acres.-F. Mathew died on the 26th November, 1847, having made his will on the 22nd July, 1847, bequeathing and devising all his property, real and personal, to his wife, Sarah Louisa Mathew, absolutely. By deed dated 16th January, 1860 (attached to the cancelled grant), S. L. Mathew conveys the land comprised in the grant to Whitaker and Heale in consideration of £1,024.

4. Grant to John Johnson for 1,280 acres. John Johnson died on the 28th July, 1848. By deed dated 17th February, 1854, John Grant Johnson (his son), after reciting the death of John Johnson, and that by his will, 17th July, 1848, he devised this land to the conveyor, conveys the same to Thomas Henry in consideration of £453: and by deed dated 14th January, 1860 (indorsed on the preceding, and attached to the cancelled grant) Henry conveys the same land to Whitaker and Heale for a consideration also of £453.

5. Grant to William Webster for 1,219 acres. By deed dated 15th August, 1844, after reciting four grants-viz, for 400 acres at Taupiri (305c); 1,187 acres at Waiheke (3051); 1,944 acres at Point Rodney (305G), and 1,219 acres at Piako (305K)-Webster conveys all the four pieces of land to John Campbell, of Sydney, in consideration of £4,000. (Deed attached to the cancelled grant.) By deed dated 20th April, 1854 (also attached), John Campbell conveys the same parcels to Ranulph Dacre in consideration of £350. By deed dated 7th August, 1854 (also attached), Dacre and his wife convey the land at Piako to Patrick Dignan in consideration of £609 10s. By deed dated 20th September, 1854 (also attached), Dignan conveys it to Thomas Henry for the same sum of £609 10s., and by deed dated 14th January, 1860 (indorsed), Thomas Henry conveys it to Whitaker and Heale in consideration of £600.

6. Grant to Peter Abercrombie for 5,000 acres.—In this case Whitaker and Heale are the last transferees of a variety of mortgages, made to secure a sum of money stated to amount to no less than £35,000; and, as the legal estate is vested in them, not (as under the preceding conveyances) in fee simple, but subject to the equity of redemption, I think it advisable to append the following abstract of title deeds, showing the devolution of William and Peter Abercrombie's claims at Piako, etc., to Whitaker and Heale, through Campbell and Smith and the Bank of Australasia:

(1) 8th October, 1845. William Abercrombie to Robert Campbell and Andrew Blowers Smith (conveyance).-After reciting the grant, 1st May, 1844, of 5,000 acres at Piako, to Peter Abercrombie; and reciting the grant, 1st May, 1844, to Peter Abercrombie of 125 acres at Coromandel Harbour; and reciting that William Abercrombie was entitled to the greater portion of those two allotments, and that the same were granted to Peter Abercrombie as a trustee of such portions for William Abercrombie; and reciting that William Abercrombie was entitled to 150 acres at Kopu, in the Thames, and that it was intended to grant the same to Peter Abercrombie as a trustee for William Abercrombie, and reciting that William Abercrombie also claimed to be entitled to 15,000 acres at the Thames and 25,000 acres at the Great Barrier; and reciting that, by a mortgage dated 24th August, 1843, William Abercombie and John Mackay, his partner in trade, had conveyed to Robert Campbell and Andrew Blowers Smith all their lands, etc., whatsoever and wheresoever, and the personal estate of Abercrombie and Mackay, subject to a proviso for redemption, to secure certain debts and advances, with power of sale in case of default; and reciting that there was still s large sum of money remaining due from Abercrombie and Mackay to Campbell and Smith, the exact amount whereof was not ascertained, and that Campbell and Smith were desirous that the same should be still further secured by an assignment of Abercrombie's interest in the above-mentioned allotments: Witnesses that, in consideration of the moneys to them due by Abercrombie and Mackay, William Abercrombie conveys and assigns to Campbell and Smith all his interest in the lands granted by the two above-recited grants; and also the 150 acres, 15,000 acres, and 25,000 acres, and all his right, claim, etc., both at law and in equity, to any of said lands: Subject to the same provisos for redemption, etc., as were contained in the said mortgage of 24th August, 1843.

[NOTE. It is not necessary to recite the mortgage of 24th August, 1843, here; but I have examined it and find the preceding recital of its contents to be correct.]

(2) 13th February, 1846. Peter Abercrombie to Robert Campbell and Andrew Blowers Smith (mortgage).—After reciting the same two grants, dated 1st May,