1875 MORISON AND OTHERS v. PEARSON AND Otago Waste Lands Act, 1872," lands may be so set aside and dealt with which have been classified as agricultural lands under the 3rd section of the Act of 1873, and which are comprised in runs in respect of which there are subsisting pasturage licenses under the 74th section of "The Southland Waste Lands Act, 1865." It is not necessary for the Superintendent, under the 5th section of the Act of 1873, to have the consent of the Council by way of Ordinance; but he may exercise the power, even while the Council is out of Session, by Proclamation, pursuant to a resolution of the Council made during the Session, after a Message from him to them.-Prendergast, C.J., dubitante. A resolution of the Council in Session requested the Superintendent to set aside various parcels, one being described as “On Run 159, in one or more blocks, an area in the aggregate not exceeding 960 acres." The Superintendent, by Proclamation, set aside 960 acres, more or less, on Run 159, describing the land by metes and bounds. Held per Johnston, J., and Williams, J., That it must be taken that the Council advised and consented to the setting aside of the particular piece of land described; Prendergast, C.J., doubting whether the Superintendent had exercised the powers conferred on him in a sufficiently strict manner. THIS is a special case stated by the parties, without pleadings, for the opinion of the Supreme Court, and by consent, and in pursuance of an Order made by His Honor Mr. Justice Williams, removed into the Court of Appeal, under the 19th section of "The Court of Appeal Act, 1862." CASE. 1. On the 9th day of July, 1873, His Excellency the Governor of the Colony, by an Order in Council bearing that date, and published in the New Zealand Gazette on the following day, by virtue of the powers conferred by the 26th section of "The Southland Waste Lands Act, 1865," and upon the recommendation of the Superintendent and Provincial Council of Otago, raised the price of rural land in the District of Southland from 20s. an acre to £3 an acre; and the price of £3 an acre continued to be the price of rural land in the said District of Southland until the publication of the classification hereinafter mentioned. 2. In pursuance of the powers conferred by the 2nd section of The Southland Waste Lands Amendment Act, 1873," James Macandrew, Esq., as Superintendent of the Province of Otago, duly appointed three Commissioners to classify the unsold rural lands not included within any existing hundred in the District of Southland aforesaid, and of such Commissioners the Chief Surveyor of Southland was one; and such Commissioners, within six months from the day of their appointment, furnished to the said James Macandrew, as such Superintendent as aforesaid, a descrip tion of the boundaries of the land classified by them as agricultural 1875 OTHERS and pastoral land respectively, and the following is a copy of the MORISON and report of the said Commissioners made within the said period of six months, so far as it is material to this case : His Honor the Superintendent, Dunedin. Provincial Government Offices, Invercargill, 10th April, 1874. SIR, We have the honour, as Commissioners appointed under "The Southland Waste Lands Act Amendment Act, 1873," to furnish your Honor, in terms of section 2 of the above-named Act, with the accompanying descriptions of the boundaries of the Crown lands, in the district formerly constituting the Province of Southland, which have been classified by us as "Agricultural and Pastoral" respectively, being the whole of the unsold Crown lands within the said district not included in the hundreds. The area of the land classified as Agricultural" amounts to 204,211 acres, more or less, and of land classified as "Pastoral," to 696,000 acres, more or less. We have, &c., JOHN R. CUTHBERTSON, JOHN H. BAKER, WALTER H. PEARSON, Classification Commissioners under S. W. L. A. A. Act, 1873. DESCRIPTION OF BOUNDARIES. Descriptions of Boundaries of Land classified as Agricultural" and "Pastoral" by the Commissioners appointed under clause 2 of "The Southland Waste Lands Act Amendment Act, 1873." Agricultural Land. * 2,200 acres, more or less, in the Taringatura District, on Run No. 159, bounded on the North by section 133; towards the East by the pre-emptive right on Run 159 and sections 135, 113, and 134; on the South by the south boundary of the said Run 159; and towards the West and North-west by sections 143, 121, and 123. 1,460 acres, more or less, in the Taringatura District, on Run No. 159, bounded on the North by section 164 and part of 163; towards the East by the Dipton Creek; on the South by the south boundary of said Run No. 159; on the West by a line on the meridian of trigonometrical station BB continued 60 chains north of the south boundary of the said Run No. 159; again on the South by a line parallel to the south boundary of Run No. 159; and again on the West by a meridian line about 125 chains west of the east corner of section 164. 1,160 acres, more or less, in the Taringatura District, on Run No. 159, being all the unsold land lying between sections 126, 88, 74, 85, 86, 114, 76, 133, 13, and 123. Pastoral Land. 696,000 acres, more or less, being the whole of the land held under pastoral leases in the Southland District, and such other Crown lands not more particularly defined as "Agricultural land." JOHN R. CUTHBERTSON, JOHN H. BAKER, WALTER H. PEARSON, Classification Commissioners under S. W. L. A.A. Act, 1873. v. PEARSON AND Invercargill, April 10th. 1875 On the 26th day of May, 1874, the said James Macandrew, MORISON AND then being the Superintendent of the Province of Otago, as such OTHERS Superintendent, forwarded to the Provincial Council of Otago a PEARSON AND Message in the words and figures following: v. OTHERS. Message No. 13. The Superintendent submits for the consideration of the Provincial Council the desirability of setting apart the following blocks of land for settlement on deferred payments. [The blocks were described as being in various districts, one of which was the Taringatura District, in which four different parcels were indicated, one being 960 acres on Run No. 159.] May 26th, 1874. A resolution was thereupon passed by the said Provincial Council, in the words and figures following: That this Council having had under its consideration His Honor's Message, No. 13, relative to the setting apart of blocks of land within which licenses to occupy land and leases thereof on deferred payments may be granted, either exclusively or within which the land will be open for license or lease as aforesaid, or for sale on immediate payments, approves of the recommendations therein contained, and respectfully requests His Honor to set apart, in terms of the 5th section of "The Southland Waste Lands Act Amendment Act, 1873 " * On Run 159, in one or more blocks, an area not exceeding in the aggregate 960 acres. The Provincial Council was prorogued on the 15th day of June, 1874; and on the 11th day of July, 1874, and after the receipt by the said James Macandrew, as such Superintendent as aforesaid, of the said Commissioners' report, the said James Macandrew, as such Superintendent as aforesaid, by and with the advice and consent of the Executive Council of the Province of Otago, made and issued a Proclamation, and caused the same to be published in the Otago Provincial Government Gazette of the 15th day of July 1874, and the following is a true copy of the material parts of the said Proclamation: PROCLAMATION Setting apart certain Lands for Occupation on Deferred Payments by His Honor James Macandrew, Esquire, Superintendent of the Province of Otago. Whereas by the fifth section of the Act of the General Assembly of New Zealand, intituled "The Southland Waste Lands Act Amendment Act, 1873," it is enacted that it shall be lawful for the Superintendent, with the advice and consent of the Provincial Council, to set aside lands for sale on deferred payments, such lands to be sold and dealt with in terms of and subject to the conditions and provisions embodied in sections forty-seven to sixty-four inclusive of "The Otago Waste Lands Act, 1872:" And whereas the Provincial Council of the Province of Otago has recommended the Superintendent of the said province to set apart the lands herein- 1875 after specified for alienation on deferred 'payments: Now, therefore, I, James Mac- MORISON AND andrew, Superintendent of the Province of Otago, by and with the advice and con- OTHERS sent of the Provincial Council as aforesaid, do hereby, by virtue and in exercise of v. the powers conferred upon me by "The Southland Waste Lands Act Amendment PEARSON AND Act, 1873," or of every and any power in this behalf enabling me, proclaim, OTHERS. declare, and set apart all those districts or blocks of land specified in the Schedule hereto as districts or blocks within which land may be sold on deferred payments on and after the 29th day of July, 1874: * 960 acres, more or less, in the Taringatura District, on Run No. 159: bounded towards the North by sections 163 and 164; towards the East by the Dipton Creek ; and towards the West, South, and South-west by lines at the base of the Taringatura Hills, to include the required acreage. * Given under my hand, and issued under the public seal of the Province (L.S.) NOTICE. His Honor the Superintendent directs that the following classification of waste lands of the Crown within the district formerly known as the Province of Southland, and not included within any hundred now existing, as agricultural and pastoral land respectively, under the provisions of "The Southland Waste Lands Act Amendment Act, 1873," be published on 29th July, 1876. Dated at Dunedin, on the 11th July, 1874. JOHN LOGAN, 5. The lands comprised in or affected by the Proclamation mentioned and referred to in the third paragraph of this case, to wit 960 acres, more or less, in the Taringatura District, on Run No. 159, form part and parcel of the land classified as agricultural land by the said Classification Commissioners in their report mentioned and set forth in the second paragraph of this case. 6. George Morison, John Morison, and Henry Bannerman Morison, carrying on business as runholders and sheepfarmers at Dipton Station, in the said District of Southland, under the style of Morison and Company, were before and on the 9th day of July, 1873, and have since continued to be, the owners of the said Run 1875 MORISON AND v. OTHERS. No. 159, within the limits of which the said lands comprised in or affected by the Proclamation mentioned and referred to in the OTHERS third paragraph of this case are situate; and the said George PEARSON AND Morison, John Morison, and Henry Bannerman Morison have done no act, nor have they nor have any of them suffered any act to be done, whereby the license of the said run has ceased to operate as a demise of the land comprised therein, or as a license to use the pasturage thereof, and the said license was and is in the words and figures following: Run No. 159. PROVINCE OF SOUTHLAND. License to Depasture Stock. Whereas Henderson Law, of Invercargill, Southland, hath been duly declared to be entitled to depasture stock upon the waste lands of the Crown within the Province of Southland, upon the terms and upon the conditions hereinafter mentioned: Now, therefore, we, in pursuance of the powers vested in us as Commissioners of the Waste Lands Board of the said province, do hereby grant to the said Henderson Law the exclusive license, from and after the date hereof until the 11th day of February, 1881, to depasture stock upon the land situate and bounded as hereinafter described, that is to say:-Run No. 159, bounded on the North by an east and west line running through Taringatura Hill; East by the Oreti River; South by an east and west line, 7 miles and 24 chains north of the Oreti Hundred; West by a north and south line through Cairn Peak; and containing 24,600 acres or thereabouts: Subject, nevertheless, to all the provisions and conditions contained in the Waste Lands Regulations now in force within the Province of Southland. Given under our hands at the sitting of the Waste Lands Board held at Invercargill on the 1st day of March, 1866. W. H. PEARSON, JOHN H. BAKER, DUN. MCARTHUR, Commissioners of the Waste Lands Board. N.B.-The attention of the holder of this license is particularly directed to the 58th clause of the Land Act, in which it is provided that the rent shall be paid in advance to the Receiver of Land Revenue, on a Board day between the 20th day of April and the 1st day of May, inclusive; and every pasturage license not renewed by payment on or before the 1st day of May of the rent due for the ensuing year shall, unless good cause to the contrary be shown, be considered to be abandoned. The provisions of this clause will be strictly enforced, and the Waste Lands Board distinctly announces that no annual notice of the date on which payment of rent falls due, or of the amount, will be given, and that any consequences arising from neglect in punctual payment will fall upon the license-holder. N.B. This license does not include the Dipton Bush. 7. On the 19th day of August, 1874, Archibald Finlayson, Newman Finlayson, and Kenneth Finlayson, respectively, applied under the provisions contained in the 47th to the 64th sections inclusive of "The Otago Waste Lands Act, 1872," embodying |