BILL 64

 

An Act Respecting the Rothesay Common

 

WHEREAS the lands identified by the Provincial Property Identifier as number 441816 are locally known as the Rothesay Common; and

 

WHEREAS the Rothesay Common is owned and maintained as a public park and open space by Rothesay, the town; and

 

WHEREAS the former Village of Rothesay acquired the Rothesay Common by deed from Mary A. Robertson and Grace E. Nichols dated November 29, 1934; and

 

WHEREAS the deed was registered in the Kings County Registry Office on April 23, 1935 in book 25 at page 476 as Number 89355; and

 

WHEREAS the Village of Rothesay became the Town of Rothesay by The Town of Rothesay Act, 5 Elizabeth II, 1956, chapter 127 on March 29, 1956; and

 

WHEREAS Rothesay became the owner of all assets of the former Town of Rothesay by Regulation 85-6 under the Municipalities Act, chapter M-22 of the Revised Statutes of New Brunswick, 1973; and

 

WHEREAS the deed included the following covenants, “And the said Grantees for itself its successors and assigns hereby covenants, promises and agrees to and with the said Grantors their heirs and assigns as follows: 1. That no building shall be erected on the lands hereby conveyed and said lands shall be used and developed as a public park and for no other purpose. 2. That the Grantees its successors and assigns will not by itself or by any other person acting for it with its permission in or upon the said lands sell store or offer for sale any spirituous fermented or intoxicating liquors.”; and

 

WHEREAS despite the covenants there exists a building on the Common constructed in approximately 1967 by the Town Council of the day; and

 

WHEREAS Rothesay acting in the interests of its citizenry and in keeping with the overall objective of the covenants wishes to make improvements to the Common including an artificial ice rink, basketball courts and other recreational facilities so that it may be better used as a public park; and

 

WHEREAS these improvements include the construction of one or more buildings and structures that may be construed to be buildings; and

 

WHEREAS by resolution dated February 10, 2014, the Council of Rothesay has passed a resolution directing that the first covenant in the deed be amended so as to allow the construction of such buildings and structures; and

 

WHEREAS the Council of Rothesay prays that it be enacted as hereinafter set forth;

 

THEREFORE, Her Majesty, by and with the advice and consent of the Legislative Assembly of New Brunswick, enacts as follows:

 

1                  The first of the covenants to the Deed registered as document Number 89355 in book 25 at page 476 is amended as follows, “1. That no building shall be erected on the lands hereby conveyed and said lands shall be used and developed as a public park and for no other purpose, save and except that a building may be erected on that portion of the property circumscribed by a circle with a radius of twelve metres the centre of which is located thirty-two and one half metres from the right of way of Gondola Point Road and twenty-four and one half metres from the right of way of Church Avenue (the “Lands”), the said building to be ancillary to the operation of a public outdoor rink and recreational use of the Lands.”

 

2                  A copy of the deed as amended is attached as Schedule “A”.

 

3                  Despite section 44 and the definition of “instrument” under the Registry Act, the Registrar for Kings County is hereby ordered to register this Act and the amended deed in the Kings County Registry Office with reference to the lands described in deed number 89355 and identified by the Provincial Property Identifier as number 441816 effective with its enactment.

 

SCHEDULE “A”

 

MARY A. ROBERTSON ET AL

TO

THE VILLAGE OF ROTHESAY

DEED

 

No. 89355 THIS INDENTURE made this 29th day of November in the year of Our Lord one thousand nine hundred and thirty-four. BETWEEN, Mary A. Robertson, of the Village of Rothesay in the County of Kings and Province of New Brunswick, Spinster, and Grace E. Nichols of the City of Halifax in the Province of Nova Scotia, Widow, of the first part and hereinafter called the Grantors; AND The Village of Rothesay, an incorporated Village, incorporated under the Villages Incorporation Act of the Province of New Brunswick, of the second part and hereinafter called the Grantees. WITNESSETH that the Grantors for and in consideration of the sum of One Dollar of lawful money of the Dominion of Canada to them in hand well and truly paid by the Grantees at or before the ensealing and delivery of these presents the receipt whereof is hereby acknowledged and the performance of the covenants hereinafter set out to be performed by the said Grantees its successors and assigns the said Grantors have granted bargained sold aliened released conveyed and confirmed and by these presents do grant bargain sell alien release convey and confirm unto the said Grantees its successors and assigns (subject to the covenants and restrictions hereinafter contained). “ALL that certain lot pieces or tract of land situated lying and being in the said village of Rothesay in the County of Kings bounded and described as follows: Commencing on the northwesterly side of the Hampton Road (so called) where a small brook forming the easterly boundary line of lands formerly conveyed to one W. W. Stewart meets said northwesterly side line of said road and thence in an easterly direction or nearly so along the said north westerly side line of said Hampton Road to the southwesterly sideline of Grove Avenue (so called) and thence in a northwesterly direction or nearly so along said sideline of Grove Avenue until said sideline meets the easterly side line of the Gondola Point Road until said side line meets lands formerly conveyed to one Jones and now owned by one Throsby and thence along the northeasterly and southeasterly boundary lines of said Jones or Throsby lands so last conveyed as aforesaid until it meets the northeasterly boundary line of the Rothesay Consolidated School and thence in a southeasterly direction along the northeasterly boundary line of the said Rothesay Consolidated School to a point where the said northeasterly boundary meets the northwesterly boundary line of land conveyed as aforesaid to the said W. W. Stewart and thence in an easterly direction along the northwesterly boundary line of the said W. W. Stewart’s land until the same meets the small brook hereinbefore first mentioned thence in a southerly direction or nearly so following the courses of said small brook until the same meets the northwesterly side of the Hampton Road (so called) at the point or place of beginning.” TOGETHER will all improvements thereon and the rights and appurtenances thereto belonging or appertaining and also all the estate right title right and title interest use possession property claim and demand both at law and in equity of the said Grantors of in to or out of the said lands and every part and parcel thereof with the appurtenances. TO HAVE AND TO HOLD said lands and premises hereby granted bargained and sold or meant mentioned or intended so to be and every part and parcel thereof with the appurtenances subject as aforesaid unto and to the use of the said Grantees its successors and assigns FOREVER. And the said Grantees for itself its successors and assigns hereby covenants promises and agrees to and with the said Grantors their heirs and assigns as follows:

 

1.                 That no building shall be erected on the lands hereby conveyed and said lands shall be used and developed as a public park and for no other purpose, save and except that a building may be erected on that portion of the property circumscribed by a circle with a radius of twelve metres the centre of which is located thirty-two and one half metres from the right of way of Gondola Point Road and twenty-four and one half metres from the right of way of Church Avenue (the “Lands”), the said building to be ancillary to the operation of a public outdoor rink and recreational use of the Lands.

 

2.                 That the Grantees its successors and assigns will not by itself or by any other person acting for it with its permission in or upon the said lands sell store or offer for sale any spirituous fermented or intoxicating liquors.

 

IN WITNESS WHEREOF the said Grantors have hereunto set their hands and seals and the said Grantees have hereunto caused its corporate seal to be hereunto affixed and these presents to be signed by its executing officers the day and year first above written.

 

SIGNED SEALED AND DELIVERED in the presence of:

John C. Belyea as to

Mary Almon Robertson

Wm, L Paysant

 

MARY ALMON ROBERTSON     (LS)

GRACE E. NICHOLS                                           (LS)