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The Pamphlet Collection of Sir Robert Stout: Volume 32

Memorandum of Lease

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Memorandum of Lease.

I, William Aitchison, of North Molyneux District, in the Province of Otago, Settler, being registered as Proprietor of an estate in fee simple, subject however, to such encumbrances, liens, and interests as are notified by memorandum, underwritten or endorsed hereon, in that piece of land situated in the Kaitangata District, containing by admeasurement, eight hundred and fifty eight acres and four poles, be the same, a little more or less, being country sections, marked respectively, fourteen, fifteen, sixteen, seventeen, eighteen, nineteen, and twenty, block nine on the map of the said district, comprised in certificate of title, volume 3, folio 191, DO hereby lease to The Kaitangata Coal Mining Company (Registered) hereinafter called "the Lessees," All and singular the coal mines, beds, or seams of coal, situate and lying at, upon, and underneath the said parcel of land; And Also full and free liberty, license, power, and authority to dig, sink, work, drive, and make such mines, cuttings, quarries, pits, shafts, adits, trenches, soughs, drifts, leats, and water gates, as the lessees, their successors or assigns shall think proper, in and upon any part or parts of the said parcel of land for the procuring of coal in or from the said beds, or seams of coal, or any of them, and for avoiding and carrying off water, foul airs, and slyth therefrom : And Also, to make use of such ground room, heap room, and pit room, as shall be necessary for laying the coal that shall from time to time be got out of such pits, or the stones, gravel, earth, and other refuse and rubbish which shall from time to time be brought to the surface in the course of working the said beds or seams of coal: And Also, to take, lead, and carry away with carts, waggons, and other carriages, all the coal raised and got out of the said mines, through, over, and along all or any parts or part of the said parcel of land, the most convenient way or ways to any place or places where the same shall be delivered; And Also, in and upon the said land, to make, fix, or place any roads, ways, or bridges, as occasion shall require: And Also, in and upon such part of the said parcel of land, not exceeding in admeasurement two acres, as the lessees, their successors or assigns, shall under this, or the lease hereinafter mentioned, collateral herewith select to make, set up and build, and also to pull down and re-erect, all such fire and other engine houses, stables, dwelling houses, cabins, huts, sheds, walls, jetties, and other erections as page 16 shall from time to time be necessary or convenient for the working all or any of the said beds or seams of coal, or for getting or procuring the coal therein or therefrom, or for converting the same in any manner for use, or for laying up, or stacking the same, or for more effectually exercising all or any of the liberties, powers, and authorities hereinbefore granted : And Also, for the purpose of making any such roads, bridges, engine houses, stables, dwelling houses, cabins, huts, sheds, jetties, walls, and other erections as aforesaid, to dig, take, and lead away any stone or other materials, convenient, or suitable for those purposes, Together with full power, license, and authority to cut down, remove, and carry away all such timber for firewood, or for the necessary purposes of the mines from any part of the said parcel of land as may be necessary for the proper working of the said mines, and for domestic use by the miners, and also for building such houses, huts, bridges, jetties, or sheds as aforesaid upon the land : Together with the use of all waters and water-courses, arising or running within the said parcel of land, with liberty to divert and turn such waters and water-courses, and to cut or place any leats, channels, or races for conducting or conveying the same in, through, or over any part or parts of the said land for the purpose of more effectually exercising and enjoying the liberties, powers, and authorities hereby granted; Excepting always and reserving unto the lessor, his heirs and assigns, or other the tenant or tenants, occupier or occupiers for the time being of the said parcel of land, and their workmen and servants free liberty and authority, with or without horses, cattle, carts, waggons, and other carriages to pass and go along, upon, and across the roads, waggon-ways, and tramways, bridges, and jetties, which may be constructed on the said parcel of land, or in connection therewith, at such time or times as he or they shall think proper, he or they doing or causing no injury nor obstruction to the property or works of the lessees, their successors or assigns: And Also, excepting and reserving unto the lessor, his heirs or assigns, and his or their agents, workmen or servants, free liberty and authority at all convenient times to enter upon the said mines and premises and to view the state thereof, and to inspect, examine, and measure the said mines, pits, shafts, or seams, and premises, and to use the tackle, ropes, or other conveniences within or upon the said mines, pits, shafts, or jetties, or belonging thereto, as often as he or they shall think proper for the purposes aforesaid; To Be Held by them, the said lessees, their successors and assigns as tenants for the space of eighty-four years, computing from the twenty-third day of October, one thousand eight hundred and seventy-two, at the yearly rental (subject however to the provision for a reservation of royalty hereinafter con- page 17 tained) of one hundred pounds sterling, by equal quarterly payments on the twenty-third day of January, the twenty-third day of April, the twenty-third day of July, and the twenty-third day of October in each year: Together with a rent in the nature of a royalty at the rate of one shilling for every ton of coal mined and carried away during such quarter of a year, such rent to be paid on the days hereinbefore mentioned, subject to the following covenants, conditions, and restrictions. That if the rent ascertained and paid as for royalty in any quarter of a year, shall exceed the sum of twenty-five pounds, then for such quarter of a year, the annual rent, other than royalty hereinbefore reserved, shall not be payable, it being the true intention of the parties hereto, that the lessor, his heirs or assigns, shall in any event receive, as and for a minimum rent, at the rate of one hundred pounds per annum, whether or not coal may be raised or mined, so that if the royalty shall, in any quarter of a year, exceed the sum of twenty-five pounds, then the minimum rent shall merge in the royalty, and the lessor, his heirs or assigns, shall not receive in any one quarter, both rent and royalty together. And that the lessees, their successors or assigns, shall and will pay or cause to be paid, the rent hereinafter reserved at the times and in the manner hereinbefore mentioned or appointed for the payment thereof : And Also, all present and future rates, taxes, charges, or assessments and outgoings whatsoever payable or chargeable, whether by or on the landlord or tenant in respect of the said mines and premises hereby leased: And Also, shall and will in all cases, pay or cause to be paid unto the lessor, his heirs or assigns, for the benefit of him and them, and his and their tenants respectively, such sum or sums of money as may be agreed upon or (in case of difference or dispute) as shall be determined by arbitration, in manner hereinafter mentioned by way of compensation for any injury or damage which may be done by them or their agents, servants, or workmen, to growing crops and artifical grasses and buildings upon the said land: And Also, that it shall and may be lawful for the lessor, his heirs or assigns, to recover the amount of the compensation agreed upon or awarded by the arbitrators, by distress upon the leased premises, in the same manner as the annual rent hereinbefore reserved may be recovered: And Also, shall and will from time to time, and at all times during the term hereby granted, fence and defend, with proper and suitable posts, rails, fences, or walls, all pits, shafts, adits, or holes, which shall be made or sunk by them upon the said parcel of land, or any part thereof: And Also, shall and will during the said term, do as little injury or damage as possible to the surface of the said land, or the buildings, walls, fences, or other property thereon, and shall not, nor will injure or endanger the houses or buildings of the lessor, his heirs or assigns, page 18 or his or their tenants, by undermining the foundations of the same, or any of them; And Also, shall not nor will, during the said term, without the consent in writing of the lessor, his heirs or assigns, first obtained, get or procure stone, or timber from any part of the said parcel of land, except stone, for use on the said land or timber for use in the mines, or for jetties or fences, and buildings, or for firewood for domestic purposes, nor remove the same from the said land without the like consent: And Also, shall, and will, before the expiration of the said term fill up all pits, shafts, and adits sunk and made by them unless the lessor, lis heirs or assigns shall be desirous that the same shall be left open, and of such, his or their desire, shall give three calendar months' previous notice in writing to the lessees, their successors, or assigns, and shall, and will, during the whole of said term, work the mines in a proper manner according to the rules of good mining, and keep the shafts and mines or drives supported with sufficient and proper supports, and keep all roadways, bridges, jetties, and watercourses in good repair, and keep correct plans of the workings : And Also, shall and will keep a proper book or books with checks for the entry of all coal mined and removed, and will on the first day of each month deliver to the lessor, his heirs, or assigns, if he or they shall so require, a full, true, and correct account of the tonnage of all coals mined and removed during the month; And Also shall permit the lessor, his heirs, or assigns, at any time upon demand for that purpose made, to inspect the said books and make copies of, or extracts therefrom : And Also, shall and will at the end or other sooner determination of the said term peaceably and quietly leave, surrender, yield, and give up the leased premises unto the lessor, his heirs, or assigns: And Also, shall and will peaceably and quietly permit and suffer the lessor, his heirs, or assigns, and his and their agents, servants, or workmen at all convenient times to enter upon the leased premises, and view the state thereof, and to inspect, examine, and measure the mines, pits, shafts, engines, jetties, and buildings on the leased premises, or in connection therewith, and for the purposes aforesaid, to use the tackle, ropes, buckets, and other conveniences within the said mines, pits, shafts, or jetties, or belonging thereto, as often as he or they shall think proper: And Also, that when and so often as any injury shall have been done by the lessees, their successors, or assigns, or their agents, servants, or workmen to growing crops, artificial grasses, buildings, or fences as hereinbefore mentioned, the sum or sums of money to be paid as compensation for such injury or damages shall be ascertained as follows, that is to say : That the lessor, his heirs, or assigns or agent shall (either of his or their own accord, or at the instance and request of any tenant or occupier of the buildings, fences, or property page 19 so injured or damaged as aforesaid) by notice in writing to be given to the lessees, their successors, or assigns, claim a compensation for such injury or damage, and each of the parties shall within ten days after such notice shall have been delivered appoint an arbitrator to ascertain the sum or sums to be so paid as a compensation, and if the lessees, their successors, or assigns shall neglect within the said ten days to appoint their arbitrator, then the arbitrator named by the lessor, his heirs, or assigns, shall appoint an arbitrator to act for the lessees, their successors, or assigns, and the arbitrators so appointed as aforesaid shall appoint a third person to act with them, and the determination of such three persons, or of the majority of them, as to the sum or sums to be so paid as a compensation shall be binding and conclusive on both the said parties. And It is Hereby Agreed between the parties hereto that if the lessees, their successors, or assigns shall be desirous of determining the said term of eighty-four years at the end of the first twenty-one years, or forty-two years, or sixty-three years of the said term, and of such their desire shall deliver to the lessor, his heirs or assigns, or leave at his or their usual place or places of abode not less than six calendar months' notice next before the expiration of such twenty-one, or forty-two, or sixty-three years, and shall pay and discharge all arrears of rent and perform all and every the conditions hereinbefore contained, and on their part to be fulfilled, then and in such case at the end of such twenty-one, or forty-two, or sixty-three years, as the case may be, the said term hereby granted shall absolutely cease and determine: And Also, that if the lessees, their successors, or assigns shall be desirous of determining the said term of eighty-four at any time during the said term, and of such their desire shall deliver to the lessor, his heirs, or assigns, or leave at his or their usual place or places of abode not less that six calendar months' notice before such determination shall take place, and shall pay and discharge all arrears of rent, and perform and fulfil all and every the conditions hereinbefore contained, and on their part to be performed and fulfilled, and shall pay to the lessor, his heirs, or assigns a sum of five hundred pounds sterling as compensation then, and in such case at the end of six months from the time when such notice shall have been delivered, or left as aforesaid, the said term of eighty-four years, hereby granted, shall absolutely cease and determine : And Also, that the lessor, his heirs, or assigns, and his and their tenant or tenants, occupier or occupiers, for the time being, of the land hereby leased, shall not, nor will, during the term of this lease, cut down any timber on any part of the said parcel of land except for mining, agricultural, or domestic purposes, nor remove the same from the said land : And Also, that the lessees, their successors, or assigns performing the conditions herein contained may at any page 20 time within thirty days after the expiration of this lease remove the machinery and trade fixtures from the said land. And it is Hereby Expressly Declared that if the rent hereby reserved shall be in arrear for twenty-one days after any day whereon the same ought to be paid, or if the lessees, their successors, or assigns shall neglect to work, or shall abandon the said mine for sixty consecutive days, or in case of the breach or non observance of any of the conditions herein contained, and on the tenant's part to be fulfilled, then and in either of the said events or cases wherever, the words "six calendar months" occur throughout sub-section two of section fifty-six of the "Land Transfer Act, 1870," the words "twenty-one days" shall, for the purpose of this lease, be substituted therefor, so that said sub-section which is implied herein shall, in the reading and construction of this lease, be read and construed as if the said words "twenty-one days" had been inserted therein instead of the aforesaid words "six calendar months." And it is Hereby Declared that this lease shall be collateral with a certain deed of lease bearing date the twentieth day of May, one thousand eight hundred and seventy-four, made between the said lessor of the one part and the said lessees of the other part, whereby the lessor demised to the lessees, their successors, and assigns part of section four, block three, North Molyneux District, in the Province of Otago aforesaid, for a term commensurate with the term hereby granted, at the same rent and subject to like covenants and conditions as are herein contained, and that this lease and the said deed of lease shall be read and construed as one lease, and that there are not two separate rents, but if the rent on one lease shall be paid, the rent purporting to be payable by the other lease shall not be enforcable or enforced. And it is Hereby Lastly Declared that the necessity for two leases has been caused by reason that the land comprised in the said deed of lease has not been brought under the provisions of the "Land Transfer Act, 1870," and the lands comprised in this lease have been brought under the provisions of the said Act.

The Kaitangata Coal Mining Company, (Registered), DO hereby accept this lease of the above described lands to be held by them as tenants, and subject to the conditions, restrictions, and covenants above set forth.

Dated this eighteenth day of August, one thousand eight hundred and seventy-five.

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The Common Seal of the Kaitangata Coalmining Company (Registered) was hereunto affixed in the presence of L.S. T. T. Ritchie, Reginald Macdonald Directors.

Signed by the above-named Wm. Aitchison as lessor, this eighteenth day of August, one thousand eight hundred and seventy-five, in the presence of William Aitchison.

Robert Grigor, Surveyor, Balclutha.

The Standard Fire and Marine Insurance Company of New Zealand, mortgagees of the land above described, hereby consent to this lease.

The Common Seal of the Standard Fire and Marine Insurance Company of New Zealand was hereunto affixed in the presence of L.S.

Charles Reid, Manager of the said Company.

Memorandum of Mortgage. No. 645. William Aitchison to The Standard Fire and Marine Insurance Company of New Zealand.

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Ferguson & Mitchell, Printers, Princes Street, Dunedin.