The History of Tasmania (Vol. 1&2). John West

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СКАЧАТЬ gave one side-line 32 acres, written over an erasure. An investigation took place: a record book kept in Hobart Town shewed a similar erasure. The same entry had been preserved at New South Wales, and there it was 22 acres: the holding party was innocent; but his title was invalid. Still more extensive erasures were discovered in a valuable property; the entire description had been changed and another substituted. At Richmond, two persons selected land adjoining each other: their grants had been exchanged, and he who was thus deprived of the most valuable, resorted to a chancery suit for its recovery. At Norfolk Plains a great many farms were located and occupied for a number of years. They commenced their measurements from opposite points, and each farm gradually approximated. When their lands were surveyed by the grant deeds, every owner found that his side-line advanced upon his neighbour, until at last the central proprietor saw his estate absorbed. In Oatlands, two properties were measured according to the common practice: the side-lines were guessed at; one cultivated, and the other sold his property; but when measured, the improver of his estate discovered that his homestead, and nearly one hundred acres of his land fell by description to his neighbour.

      At Bagdad Rivulet, a surveyor measured eight grants adjoining. All the bearings given in the grants were mistaken: to adjust them, one would lose the back of his farm and take his neighbour's, who would go on the next location and obtain a well cultivated farm.

      To have confirmed all former titles would have been obviously unjust. In 1823, a location was given, but abandoned. Sorell advised a settler that came after to take the land, which he did. For fourteen years he lived there, and spent £3,000: the original owner re-appeared with a Brisbane grant, as a claimant of this property.

      Colonel Arthur adopted Stephen's recommendation in 1831, and announced in the Gazette, January following, its approval by the secretary of state.

      All existing grants being invalid, the settlers depended on the justice of the crown to perfect their titles. The royal warrant of the king authorised the renunciation of claims founded on the informality, and deeds drawn in the king's name, containing the same conditions as the governors' grants, were offered at 5s. Now, however, the grants contained a true description of the land, and the name of the rightful possessor. The loose system of conveyancing, formerly expressed rather the intention than the act of transfer. Property had been subdivided, especially in the town: these parcels, however small, were now conveyed direct to the actual owner, subject to their proportion of quit rent. Possession and reputed ownership, were taken as a title. Those whose property was in excess, or less than their description, had their proportion of quit rents adjusted. The governor threatened with resumption lands obtained by exhibiting false pretensions to capital, or alienated before the period prescribed, or by collusive sheriff's sales. Oblivion was granted to breaches of conditions, when not fraudulent, on payment of 6d. per acre fine. Commissioners, James Simpson and George Frankland, Esqrs., were appointed to carry out this admirable plan (1832).

An act, constituting the caveat board a court of equity and good conscience, was passed in 1835. The gentlemen who framed it held the board, "in the sacred light of a court," although the concurrence of the governor was necessary to render its decisions valid. Commissioners were appointed to examine on oath. They were empowered to obtain a verdict from a jury in a special case: by appealing to the judge of the supreme court, they could submit a feigned issue for trial. In clear cases, however, after three months' notice, they were permitted to adjudicate. The decisions of this board have usually satisfied the public: they have been nearly always confirmed, and have prevented boundless litigation.[174]

      Many surveyors were employed, who acted in the several districts (1838). The survey of 100 acres was effected for £5, of 2,000 for £20. The list of locations being published, the surveyor-general held a movable court, to identify and arrange the boundaries. It was part of his duty to mediate between the contending parties. These preliminaries being settled, the commissioners issued grants to such as made good their claim.

      The proof of intention on the part of any officers, by custom entitled to grant occupation, has commonly barred the rights of the crown; but for this, a large amount of practical injustice must have been inflicted. Such was the only form in which grants could be distributed, when the country was just occupied, and the science of mensuration and accounts almost unknown.

      To this, the case of the heir-at-law of Major Abbott is nearly a solitary exception. Being about to retire from office, Major Abbott applied for a reserve of 210 valuable acres at Launceston, and 3,000 acres elsewhere. On the recommendation of Sorell, then lieutenant-governor, who stated minutely the land desired, Sir Thomas Brisbane ordered the ground to be marked off as "crown reserves:" and Sorell, being just superseded, wrote on the order with a pencil the name of Abbott. Several persons at Launceston regretted the alienation of land useful to the township, and petitioned accordingly. Their views were favored by Arthur, and the claim of Abbott was supported by Sorell. Lord Bathurst ordered the grants in question to be given. Arthur, however, again appealed, and the decision in favour of Abbott was cancelled; but the 3,000 acres, reserved in the same terms and at the same time, were confirmed. Major Abbott through life maintained his right to the Launceston reserve, and devolved its prosecution on his son; for twenty years he contested his right with the agents of the crown. During the litigation its value has ranged from £2,000 to £8,000.

On an appeal to the secretary of state, Lord John Russell referred the claimant to trial by jury. He erected a house on the ground: this a chain gang was employed to destroy. He brought his action for trespass, which the law officers met by a demurrer. On his application for a deed of grant, a caveat was entered by Major Wentworth. Two of the commissioners decided in Abbott's favour, and the third, Dr. Turnbull, against him. The usual course was to issue grants on the decision of the major part: this the governor refused, and the case was once more referred to the secretary of state. In 1849, Earl Grey declared that the governor had exercised a sound discretion in refusing the advice of the caveat board,[175] and thus finally negatived the claim.

      The intention of Sorell in favour of Major Abbott is clear: the provisional reserve of the land in his behalf is clear also. The views of Sir Thomas Brisbane are not so indisputable; but they probably changed on a remonstrance being offered by Arthur. The official answer to Sorell's application was a description of the reserve solicited, unaccompanied with demur or question: it was understood by Sorell to mean approval; and, but for subsequent interference, a grant would have issued of course. Where no corruption can be suspected, actual or ultimate value is certainly no equitable objection to perfect a claim founded on the custom, and created by the authorities of the time.

      Except the grants claimed under the Downing-street regulations, lands were bestowed at the discretion of the governor, to the extent of 2,650 acres. Many received still larger quantities at different times. The arrest of robbers, the cultivation of flax or hops, the capture or conciliation of the aborigines, and losses by fire, were occasions for the governor's benevolence: other and less respectable causes were attributed, and scarcely require enumeration.

      The large discretion of the governor was asserted by Sir George Murray. Mr. Hall, the editor of the Monitor, had been refused a grant by Darling, while others were freely indulged. He complained; but was told by the secretary of state (1829), that the governor could judge most correctly of an applicant, and that his decision would be usually held final.

      The collection of quit-rents has baffled the agents of the crown: at first, the amount was too small to repay the trouble of collection, and for both colonies, in 1824, did not exceed £400 per annum.

      A large number of grants in Van Diemen's Land became liable in 1831, and notice was given that payment would be enforced. The settlers of Cornwall, led by Messrs. Bryan, Joseph Archer, and Gleadow, signed a petition to the crown, which complained that the exaction was partial and oppressive. The governor promised to forward the memorial, but stated that he had no ground to expect that the СКАЧАТЬ