PUBLIC RECORD OFFICE
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Reference :-
mimi C.O. 885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC-
COPYRIGHT PHOTOGRAPH-NOT TO
No. 81, 23/6/91.
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the townships of Port Stanley and Port Darwin, and suburban lands, and lands reserved for public purposes, and lands of which the freehold had been sold by the Govern-
ment.
That it had been stated, and might be assumed for the purpose of the reference, that the Surveyor General in estimating the acreage of the " stations" comprised in the leases made his measurements in nautical miles, but computed the acreage at the rate of 640 acres to the square mile, thereby giving an excess of one-seventh over the actual acreage, and also made a large allowance for mountains and ponds, and that consequently the lessees were in the occupation of considerably larger quantities of land than those stated in their leases, and the rents reserved by the leases were considerably less than the rents which ought to have been reserved according to the rates prescribed by the Ordinances. That that error was known to the late Governor of the Colony in 1882, and was reported by him to the Secretary of State in a Despatch of the 25th of August 1882.
That a demand for grazing leases had arisen in the Colony, and that the Governor in a Despatch an extract from which was enclosed had proposed that a general survey of the Colony should be made, and that the lessees should be required either to give up any land which should be found on survey to be occupied by them in excess of the quantities stated in their leases, or to pay additional rent for such excess of land at the rate per "section" prescribed by the law.
That the lessees on the other hand contended that they were entitled during the continuance of their leases to hold the whole of the lands now occupied by them at the rents reserved in the leases, and that on the expiration of the leases to have, on giving the notice required by section of Ordinance 9 of 1882, new leases of the same lands (except any part which the Government might decide to sell or to reserve for public purposes) granted to them for 21 years at rents at the rate of 201. for every "section" of 6,000 acres of the quantity stated in the existing leases, and that they supported their contention on the grounds that the quantities stated in the leases were stated by the Surveyor General, and that the manner in which he computed those quantities had been known for many years to the Government.
That it was submitted, however, that no laches or acquiescence of the Government could entitle a lessee to take advantage of an error in the lease by which he was enabled to occupy land on payment of a lower rent than the rent prescribed by
statute.
That in 1890 the Falkland Islands Company proposed to purchase the freehold of the lands comprised in twelve leases held by them, and described in the leases as containing quantities amounting in the aggregate to 97,128 acres at the price of 38. per acre, payable by instalments with interest on the unpaid purchase money.
That that proposal, having been referred by the Governor to the Secretary of State, was approved by him on the terms that the purchase money (14,5691.) should be payable in the following instalments, viz. :-2,2841. 128. on the 1st of January 1891, the same amount on the 1st of January 1892, and ten instalments of 1,000l. each on the 1st of January in each of the years 1893-1904. with interest at 2 per cent. on the unpaid balance for the time being, the rents to cease from the 1st of January 1891. That copies of the correspondence with the Company on the subject were enclosed for reference.
That as the Ordinance No. 4 of 1871 precluded the sale of country lands for less than 48. per acre, an Ordinance was enacted by the Colonial Legislature on the 29th of December 1890 authorising the sale to the Falkland Islands Company at the rate of 3s. per acre of the country lands then held on lease by the Company and described in the schedule to the Ordinance containing 97,128 acres. That the Ordinance also empowered the Governor, with the sanction of the Secretary of State, to sell to other lessees of country lands on similar terms the lands leased to them.
That the Falkland Islands Company duly paid the first instalment of their purchase money on the 1st of January 1891.
That the Falkland Islands Company contended that the Government had sold, and was bound to convey to them, the whole of the lands comprised within the boundaries defined in their leases for the sum of 14,5691. whatever might be the actual acreage of those lands, and that they supported that contention mainly on the ground that, before the contract for sale, the Government had been made aware of the system of measurement adopted by the Surveyor General, by which the estimate of acreage as stated in the leases was arrived at.
That it was contended on the other hand on behalf of the Colonial Government that the Company were bound to pay for the land purchased by them at the rate of 28. per
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acre according to the actual acreage, and that if it should be found upon a survey that the actual acreage considerably exceeded the acreage as stated in the leases and in the schedule to Ordinance 9 of 1890, the Government was entitled either to a proportionate increase of the purchase money, or to grant only so much of the land comprised within the boundaries described in the leases as contained the acreage stated in the leases, and to have the boundaries rectified for that purpose.
That Mr. Wingfield was to enclose extracts from correspondence with the Falkland Islands Company in which would be found a statement of their views both as to the rights of the lessees generally and to their own rights in respect of their purchase under Ordinance 9 of 1890.
That Mr. Wingfield was also to enclose an extract from the Colonial Office letter to Captain Packe of the 13th of November 1883 referred to in the Company's letter of the 4th of September 1891.
That the questions upon which your Lordship desired to be advised were:- 1. Whether, if a survey proved that the quantity of land occupied by any lessee and comprised within the boundaries defined in his lease exceeded the quantity which was stated in the lease, and upon which the rent reserved by the lease was computed at the rate prescribed by the Ordinance under which the lease was granted, the Colonial Government was legally and equitably entitled (a.) to have the lease rectified either (i.) by correcting the statement of the acreage of the land leased in accordance with the survey and increasing the rent in proportion to the increased acreage, or (ii.) by altering the boundaries of the land leased so as to include only the quantity of land stated in the lease and covered by the reut reserved at the statutory rate; (b.) to claim and recover back rent in respect of the quantity of land occupied by the lessee in excess of the quantity stated in the lease.
2. Whether, in the case of a lease in which the boundaries were not completely defined, but were stated as extending for a specified distance from a given, point, if the survey proved that the lessee had assumed a more extended boundary, the Colonial Government was legally and equitably entitled (a.) to resume possession of any land occupied by the lessee beyond the boundaries stated in the lease as ascertained by survey; (b) to recover back rent for the use and occupation of such land.
3. Whether, upon the expiration of a lease, the Colonial Government was legally and equitably entitled in granting a new lease to the former lessee under section 2 of Ordinance 9 of 1882, (a.) to comprise in the new lease so much only of the land comprised within the boundaries defined in the old lease as was ascertained by survey to contain the number of acres specified in the old lease; and (b.) to lease to any other person or persons the surplus of such land; or (c.) to comprise in the new lease the whole of such land, and to reserve a rent at the rate of 20. for every 6,000 acres of the actual quantity of such land as ascertained by survey.
4. Whether the Colonial Government was legally or equitably bound to sell and convey to the Falkland Islands Company the whole of the land comprised within the boundaries defined in the leases specified in the schedule to Ordinance 9 of 1890 for the sum of 14,1597., or was legally and equitably entitled either to sell to the Company for that price so much only of those lands as should be found on survey to contain 97,128 acres, or to sell the whole of those lands at the price of 38. per acre according to the actual acreage as ascertained by survey.
That Mr. Wingfield was to request that we would favour your Lordship with any further observations which we might think would assist you in dealing with the case.
We have taken the matter into our consideration, and, in obedience to your Lordship's commands, have the honour to
That in our opinion-
Report-
1. The Colonial Government are not, in the circumstances mentioned in the first question, legally or equitably entitled to either of the remedies suggested.
2. In the case mentioned in the second question the Colonial Government would not be so entitled if it appeared that the lessee had occupied no more land than, according to the practice and interpretation at the time of the granting of the lease, he was entitled to occupy.
3. The Colonial Government is not entitled to adopt either of the alternative suggested in the third question.
4. The Colonial Government are bound to sell to the Company the whole of the land for 14,1591.