Murdoch to Rogers (Permanent Under-Secretary)

I have to acknowledge your letter of 20th inst, with one from Sir E.
Head enclosing a report from the Agent of the Hudsons Bay Co in Van
Couvers Island and other documents, relating to the Lot in the Town
of Victoria Van Couvers Island known as Lot Z.

2. The circumstances connected with the sale of this Lot to Mr
Lowenburg [Lowenberg]
have been so repeatedly stated, and are so well known at
the Colonial Office, that it is unnecessary to restate them on the
present occasion. In March 1864 the Duke of Newcastle, (on the
ground that the sale to Mr Lowenburg was covered by the Indenture of
Febry 1862) directed the Governor to admit Mr Lowenburg to
possession of the Land. Against that instruction the Governor
remonstrated on the ground

1st That the Lot in question had formed part of a Government Reserve
set apart by the Hudsons Bay Company several years before the sale to
Mr Lowenburg and that consequently they had no legal authority to
sell it.

2nd That Mr Lowenburg was aware at the time of the purchase that
the sale was invalid, as was proved by his requiring, and the Company
giving, an exceptional guarantee of Title in the conveyance of the
Land to him, and

3rd That the abstraction of the Lot rendered the Government Reserve
comparatively valueless.

3. The documents enclosed in Sir E. Heads letter are intended to
combat these objections.

4. In respect to the first it was stated by Mr Pemberton, the
Surveyor General of Vancouvers Island, that he surveyed the
Government Reserve in question in 1854, & reported it to the
Secretary of the Hudsons Bay Company as then containing 10
Acres—that he again surveyed it "finally" in 1858, when in
consequence of a portion of the original Reserve having been sold in
error the lines were "readjusted"—and that it then also contained 10
Acres—that Lot Z was sold to Mr Lowenburg in the spring of 1861 and
that if that Lot be subtracted from the Reserve its original area
would be pro tanto reduced. In his evidence also before a Committee
of the Assembly appointed to enquire into the Hudsons Bay Company's
claims Mr Pemberton stated that to the best of his belief Lot Z had
formed part of the original Reserve of 10 Acres.

5. In answer to this the Company's Agent, Mr Tolmie, transmits a
Declaration from Mr Tiedman [Tiedeman]
an Assistant in the Surveyor General's
Office (who he says from June 1858 to March 1861, performed the
principal surveying and Map making in the Land Office) to the effect
that the Town Maps of 1855, on which the Reserve was originally
marked off, were not official and were not usually adhered to—that
in 1859 when he (Mr Tiedman) was engaged in making an Official Map of
the Town, since known as "the Official Map of 1858", it was
discovered that a portion of the West Side of the original Reserve
had been surveyed into Town Lots and sold, and that the Colonial
Surveyor Mr Pemberton desired him to
"make up the deficiency of the area by adding to the southern side the
portion of Land marked Z which at that time formed part of the
Companys hay fields"—that Mr Dallas seeing this in progress pointed
out that the Land which he was taking in was not under control of the
Land Office Authorities—but that he was nevertheless ordered by the
Colonial Surveyor to mark the ground as a Government Reserve.
Tracings are also sent of the Maps of 1855 and 1858 to show from
their inconsistencies that no reliance is to be placed on the
former—and it is argued that before 1858 there were in fact no
boundary marks on the ground. A further tracing is also sent showing
the Reserve as originally marked on the Map of 1855 as subsequently
"readjusted" on the Map of 1858—and as proposed to be surrendered by
the Company in 1863.

6. Considering how much must depend on a matter of this nature on
facts that can be ascertained only by inspection of the premises, it
would be useless to attempt from the inspection of tracings such as
are now sent home, to reconcile the differences which those on the
spot appear unable to adjust. I will only point out therefore that
the present declaration of Mr Tiedeman is in direct contradiction to
the statement of Mr Pemberton enclosed in the Governor's despatch of
2nd Febry last, and to his evidence before the Committee of the
Assembly—and that the tracing No 5 which professes to give the
boundary of the Reserve as originally traced and as afterwards
readjusted, would show that at all events a large portion of Lot Z
was included in the Reserve as marked off in 1855—and the whole of
it in 1858.

7. In regard to the alleged exceptional guarantee of Title to Mr
Lowenburg the Agent encloses copies of two Agreements with Mr
Lowenburg for the sale of the Land in question. These Agreements
only undertake that on the completion of payment the Company will
issue to Mr Lowenburg "a good and sufficient deed in the usual
form." I presume, although it is not so stated, that pending the
discussion on the subject no deed has actually been issued—but there
is clearly no stipulation for an exceptional guarantee in the
Agreement with Mr Lowenburg.

8. Thirdly—As to the importance of the Lot to the Reserve both the
Companys Agent and Mr Lowenburg dispute the Governors opinion. They
allege that the boundary of Governor Douglas' property, on which
building leases have been granted & houses commenced, is much nearer
the Government buildings than the boundary of Lot Z—that there is
ample room on the Reserve for additional buildings, and that while
the Reserve is already accessible by two streets, a third, separating
the Buildings from Lot Z, might be easily made—for which Mr
Lowenburg expresses himself willing to contribute one third of the
Land. Upon this point I do not feel competent to offer an opinion.
The arguments of the Companys Agent and Mr Lowenburg appear
reasonable enough, but whether they are a sufficient answer to the
Governor's objection it is for him to decide.

9. In conclusion if, as I understand, the Law Officers have
expressed an opinion that the grant to Mr Lowenburg cannot be
successfully impeached, there is not sufficient in these papers to
lead to a modification of that opinion. The only important fact is
the production of a tracing showing that Lot Z, was included in the
Government Reserve in the Map known as "the Official Map of 1858."
But of that Mr Tiedeman has given an explanation, and the fact, even
if not explained, would not, I apprehend, have been sufficient to
alter the view taken of the case by the Law Officers of the Crown.
Mr Lowenburg in his letter to the Company's Agent offers (with the
consent of his Tenant) to sell the Lot to the Crown for $9500
(£1979.3.4). As he paid the Hudsons Bay Company for it in 1861 only
$1285 (£267.14.2) it is scarcely likely that the Government and
Legislature of Vancouvers Island would be prepared to act on this
proposal.

10. Upon the whole it appears to me that the present papers
contribute nothing towards the solution of the difficulty that has
arisen on this subject.