No. 66

I have the honor to acknowledge receipt of Your Grace's Despatch No
65 of the 26th July last, forwarding for my report copy of a letter
from the Governor of the Hudson's Bay Company complaining of certain
transactions arising out of the Sale by the Agents of the Company of
a certain piece of land at Victoria to a Mr Lowenberg.

2. My Despatch No 50 of the 8th August last, will have revealed
very fully to Your Grace the recent proceedings of the Agents of the
Hudson's Bay Company in respect to lands which had been previously
appropriated as Government and Public Reserves, and will have shewn
how this Government was compelled, although most reluctantly, by
their inconsiderate and really unwarrantable actions, to have
recourse to legal measures, not only to prevent part of the Streets,
Public Park, and Church Reserve from being sold, but actually to
retain in its entirety the very small spot of land upon which the
Government Offices stand. The case of Lowenberg is exclusively
connected with this Government land, and it is clearly disclosed by
the Documents forwarded in that Despatch; but as it is made the
subject of a special and very grave complaint, and as the matter is
but very imperfectly represented in the letter of Mr Berens, I will
recapitulate the actual facts of the case, most of which are
incontestably proved by the affidavits filed with the information of
the Attorney General, certified copies of which were forwarded with
my aforesaid Despatch.

3. A few days before the interference, complained of by Mr
Lowenberg, occurred, I had issued instructions to the Surveyor
General to run a fence round two of the open sides of the Government
Reserve. Upon the evening of the day the work was commenced and
after the Surveyor's men had ceased their work, Mr Lowenberg, it
appears, repaired to the spot with a number of men and proceeded to
the construction of another fence. Mr Tiedeman an employé
of the Land Office warned the men that they were committing a
trespass upon the Government property, and were doing that which
might lead to a breach of the peace. They desisted, and I am told
that thereupon Mr Lowenberg became very violent and assaulted Mr Tiedeman. Mr Tiedeman laid an information against him, and he was
taken into custody. This I believe to be the whole sum and substance
of the proceeding, characterized as an "outrage" upon the part of
this Government, by Mr Berens: but which I, probably, with greater
accuracy might designate as an attempt upon the part of the Hudson's
Bay Company to re-possess themselves of the Government Reserve, Mr
Lowenberg being merely their Agent or instrument in the first step
taken.

4. Mr Berens does not state that the land purported to have been
sold to Mr Lowenberg by Mr Dallas, was a portion of the Government Reserve; he represents it to have formed part of a farm which had
long been under cultivation by the Servants of the Company, and had
been cropped by them for a series of years, and that it
"adjoined" the Government Reserve from which it was
"separated" by a "Ditch or Fence". In 1858 when the Hudsons
Bay Company surveyed off into lots and sold the Town Site of
Victoria, this Government Reserve, consisting of
10 Acres more or less, was laid out and marked with
conspicuous posts upon the ground, some of which remain to this day;
and when the Plan of the Town was made it was duly included therein.
A portion of the Reserve might or might not once upon a time have
been considered to be included within the limits of the Company's
Farm, but if the lines of the Reserve did extend so far back as to
encroach upon the lands of the Farm, they were taken so designedly in
the first instance by the Company's Agents, to the advantage of the
Company, by enabling them to utilize and sell as Town Lots an
increased frontage on the water. Certain it is that the cultivation
of this portion of the Farm, represented by Mr Berens to have
existed, was not continued after the land was laid out as a
Government Reserve. The portion in question was not separated either
by a ditch or fence from the land occupied by the Government, for
neither exists unless indeed a drain or trench, about two feet wide,
to carry off the surface accumulation of water during the winter, can
with consistency be termed a ditch. Mr Berens says
"a proposal had been made to form a street which passed through
the farm and severed this piece from the remainder of the Farm."
The
"proposed" Street was actually
laid out, and lots upon it facing the Government Reserve sold
in 1859; the Map upon which the Lots were exhibited and sold by the
Company containing the lines of the Government Reserve as originally
laid down, the rear line in 1859 forming part of our side of the
"proposed" Street. For convenience and for a better comprehension of
this point I forward a plan of the locality.

5. I cannot believe that Mr Berens could be aware of all these
matters when he penned the letter now under consideration. It would
seem to have been the policy of Mr Dallas, who sold the land, to
deprive both the Government and public of the lands originally
reserved to them, and to restore the power of the Hudsons Bay Company
to deal with the land. The attempt to sell the Public Springs,
Public Park, &ca &ca detailed in my Despatch No 50, afford strong
evidence of this. Your Grace is well aware of the manner in which my
recent application was met for a site for a public wharf and Harbour
Masters Office. The Governor of the Hudsons Bay Company then
instantly repudiated any desire on the part of the Company to
interfere with the requirements of the Public, and I would fain
believe that he will now upon becoming possessed of the real facts of
the case as instantly repudiate this attempt to deprive the
Government of a piece of ground required for public purposes, and so
allotted and marked out in 1858: the more especially as Mr
Berens himself recognizes this Reserve in his letter to your Grace of
the 16th December 1859, wherein he says

The land upon which Governor Douglas is now erecting the new Public
Offices has also been represented by that Gentleman to be Government
property, but I have reason to know that it is part of the land held
by the Fur Trade long prior to the Grant from the Crown.
2
The Company therefore will have a claim upon the Government for
the value of this land.

In 1859 Mr Berens admits this land to be in the possession of the
local Government and simply contends that the Company will have
"a claim" for the value of the land. In 1861 Mr Berens
represents a portion of this same land to be part of a farm
"cultivated" and "cropped" by the Servants of the Company, and only
separated from that farm in imagination by a "proposed" Street.
I have already shewn that the lines of the Government Reserve were
run and marked in 1858, that the Hudsons Bay Company were in
possession of a copy of the official plan of the Town upon which
those lines are traced, and altho' one of those lines now forms part
of the proposed Street (actually laid out in 1859) yet at the time it
had no reference to it, and no other significance than the rear line
of boundary of the Government reserved land. On the contrary I think
the inference may not unfairly be drawn that in laying out the Street
alluded to, in 1859, the situation of the Government Reserve did govern the position and direction of such Street and of the Lots
surveyed off and sold, otherwise it seems remarkable that Lots should
be laid out and sold upon one side of a street only, and that when fresh lots were required, they should be laid out and sold in the rear of those first disposed of; the less remote meanwhile not
only being not sold, but not even
surveyed or exhibited for sale: and at last that this piece of
land, which had it been at the disposal of the Hudsons Bay Company,
could have been advantageously disposed of if put up for sale in Lots
at Public Auction, should be parted with to a private Individual, a
land Agent by profession, without being surveyed and divided in
similar manner to the other side of the Street.

6. The claim for payment of the value of the land which Mr Berens
asserts in 1859, would I conceive be perfectly legitimate if the Company had in the first instance paid for the land, for it would
merely be an equitable refund in a case where the Company had no
power to sell or to purchase; but as the Company have not paid for
it, nor for any portion of the 3084 Acres dealt with by them as
private property, they cannot, I apprehend, sustain any claim for
repayment or re-imbursement on account of any portion of those 3084
Acres required for Public purposes, for whether the private ownership
of those lands be admitted or not, the same principle, I conceive
must govern both them and the other lands of the Colony, viz. that
all such portions as are required for public purposes must remain in
the Crown, and are, consequently, wholly removed from the control of
the Company, whatever general rights and privileges may have been
accorded by the Crown.