APPENDIX TO REPORT FROM THE LAND COMMISSION OF 1886-87.
33
Mr STEPHENS Surrendered Lot 184 to Government, but he could only surrender what he had acquired from his predecessor in Title, and the Eastern boundary that he had acquired from his predecessor in Title was the line laid down by Mr. DANBY in which his predecessor in Title had acquiesced. So far as the present boundary between Lot 184 and Inland Lot 38 is concerned Mr. STEPHENS has acquired that solely from the Crown, but the Crown could not grant beyond the boundary fixed in the previous Lease. So far as the Western boundary of Lot 185 goes beyond Inland Lot No. 38 it seems to me that the Crown as well as Mr. STEPHENS are bound by the line Mr. DANBY pointed out. Mr. HANCOCK seems to admit that if buildings had been actually standing up to the line fixed by Mr. DANBY be would not have been justified in going beyond the line of buildings. What he in effect says is that the Government wanted 5 feet extra width for Whitty Street, and I found I could get that width and give Mr. STEPHENS the measurements contained in his Lease if I ran his line right up to the existing buildings on Lot 185, which I took to be on the extreme portion of that Lot. This shows the inadvisability of the officers of the Crown running their surveys and acting upon their measurements without communication with the owners of adjoining Lots. I think that if Mr. HANCOCK had been acquainted with all the circumstances of the case be would not have advised the Crown to have granted to Mr. STEPHENS anything beyond the line fixed by Mr. DANBY, and if they could have made no other arrangements, to have advised a smaller increase in the width of Whitty Street. Consequently, upon Mr. DANBY's arrangement, if Mr. HANCOCK be right, the owners of Marine Lot 185 had acquiesced in the line fixed by Mr. DANBY between 186 and 185 to their detriment, and buildings had been subsequently erected on Lot 186 up to that line. The owners of Marine Lot 185 had built up to the line fixed between 185 and 184, and they had pulled down those buildings, and rebuilt, setting their new buildings back from their line advisedly, in order to get light and air. I do not think that under these circumstances the Government, either through Mr. STEPHENS, or as originally entitled to the land in question, can justifiably grant to Mr. STEPHENS any of the ground inside the boundary line laid down by Mr. DANBY between Marine Lots 184 and 185. This being the case I do not think the defendant was justified in pulling down the plaintiff's wall, even although he might, perhaps, have been justified in removing the three inches or so that projected if he could have done so without material injury to the building. I think the amount of damages claimed, viz., $500, a not unreasonable sum, and I consider that the application for restraining the defendant from further trespassing must be allowed, and the line as marked out by Mr. DANBY must be recognised. The plaintiffs will not, however, in rebuilding the wall pulled down, be justified in extending it beyond the limits of the boundary line as now recognised. The judgment will therefore be for the plaintiffs, with costs I may add that the law with respect to acquiescence seems to me to be carefully considered and correctly laid down in Kerr on Fraud, pages 81 to 87.
No. 4.
Appendix No. 4, Continued.
IN THE SUPREME COURT OF HONGKONG.
SUMMARY JURISDICTION,
Suit No. 442 of 1886.
Between the Official Administrator of the Estate of LEUNG KWONG CHI, Plaintiff,
and
Ho YUNG, Defendant.
Judgment of The Honourable James Russell, Puisne Judge, delivered 22nd February, 1887.
The writ in this case was issued on 22nd April, 1886, and claimed "from the defendant the sum of $198, amount of rent of No. 64, Aplichau for three years to the date of issue of the writ." The writ was subsequently amended to "The plaintiff, as the official administrator of LEUNG KWONG CHI, deceased, claims from the defendant the recovery of possession of No. 64, Aplichau, situate on Aplichau Marine Lot No. 7, and he also claims the sum of $198 for mesnę profits."
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