of the junks were charged with stealing the shells, but in the result they were discharged at the Police Court, and their junks and the shells in question were subsequently delivered up to them. Civil proceedings were then instituted against them by the plaintiffs, and it was arranged between the parties that the alleged exclusive right of the plaintiffs should be tested in the present suit.
At the hearing, evidence was given by Mr. Brace Shepherd, the Land Officer, that claims had been made at the Land Office in respect of similar leases to the one now in question, alleged to have been granted by the Chinese authorities. It was said that these claims had been substantiated by documentary evidence-grants by the Chinese Government which had been lodged in the Land Office. Mr. Shepherd said that these claims had been noted, but there had been no recognition of them beyond the receipt of rent in respect of them. The documents spoken of were not produced, and no further evidence was forthcoming as to their authenticity, their terms, or their effect. In these circumstances I am unable to think that there is any satisfactory evidence before the Court to show that, prior to the cession of the leased district, the Chinese Government claimed and exercised the right of granting within the district leases of a similar character to that the validity of which is now challenged in this suit. On the other hand, in the course of the hear ing the parties agreed upon and filed the follow. ing admission of fact:-"It is admitted that Chinese fishermen have been in the habit of dredging for shells and coral, for the purposes of lime-burning, from Lantao Marine Lot No. 2 openly and believing themselves entitled as of right so to do, without interference by any one, from the limits of living memory until the granting of the lease of the above Lot."
I am satisfied by the evidence before the Court that the defendant is a Chinese fisher- man and also that he was, at the time of the alleged trespass, an inhabitant of the leased district. Further, I find that, as such fisher- man and inhabitant, he was, at the time of the execution of the agreement. in the enjoy. 'ment without hindrance, in Common with other Chinese fishermen, of what he and they believed to be a right to win from the leased premises coral and shells and to appropriate them to his own use as material for lime-burning.
The parties, then, standing in this relation to one another so far as the facts are concerned, it remains to determine what are their legal re- lations as arising out of these facts.
[July 7, 1800,
pro-
In Doe dem. Devine v. Wilson, 10 Moore P.C.C.502, objection was taken to a Crown grant for uncertanity, and it was held by the Judicial Committee of the Privy Conn. oil that, in such a case, after long modern pos.......- session, supplementary and confirmatory grant might be presumed. This decision was followed in Des Barres v. Shey, 29 L. T. (N. S.) 592, which was also decided by the Ju- dicial Committee.
-pi
THE HONGKONG WEEKLY PRESS AND
period. If the rules of English law are applied which the presumption or inference of t in their strictness, it would seem that the of a custom may be rightly drawn. It is alleged right of Chinese fishermen or of the vince of a jury to draw these conclusions of fact, inhabitants of the leased district-involving, as it but in several reported cases the Courts have does, a claim of a right to remove what is refused to disturb the verdicts of juries as to a practically part of the soil of the leased pre-custom in a manor, even when founded on very mises cannot be, supported, for it was laid slender evidence.
The acts of the copy. down in Gateward's Case, 6 Co. Rep. 59 b, that holders have been open and notorions, and it is "there cannot be a custom for inhabitants hardly to be supposed, if there was no custom, | as such, to have profit apprender in the that they would have remained unchallenged soil of another." The authority of this by the lord, inasmuch as if unwarranted they Case was recognized in Goodman v. Mayor would have formed a cause of forfeiture by the of Saltash, 7 App. Cas. 633. There the copyholders of their tenements, and the lord facts as stated in a special case were that a therefore has always had the strongest interest prescriptive right to a several oyster fishery in to take advantage of the acts done." And the a navigable tidal river was proved to have been Lord Chancellor reversed the decree of Page exercised from time immemorial by a borough Wood, V.C., holding that “a jury would be not corporation and its lessees; without any quali. only warranted but bound upon the evidence of fication except that the free inhabitants of the defendants to find in favour of the custom." ancient tenements in the borough had from time immemorial, and claiming as of right, exercised the privilege of dredging for oysters in the locus in quo from the 2nd of February to Easter Eve in each year, and of catching and carrying away the same without stint for sale and otherwise. This usage of the inhabitants tended to the destruction of the fishery, and if continued would destroy it. Lord Selborne L.C., said, at p. 641:- If it were necessary that the class to which the appellants belong In Attorney General for British Honduras [namely, the free inhabitants of ancient tene- v. Bristowe, 6 App. Cas. 143, which was a case inents in the borough] should make out a right of an information for intrusion relating to land to a profit à prendre in alieno solo, should in British Honduras, the opinion of the Judi- be of opinion that they could not do so. Gate- cial Committee was thus expressed by Sir ward's Case is a conclusive authority against Montague Smith:-" Assuming then the con such a claim by such a class, unless made clusion of fact to be established, as their Lord- through a corporation under its corporate title." ships think it is, that, in the interval which And Lord Cairns said, at p. 648: I think it elapsed between the retirement of the Spaniards also clear that a fluctuating and uncertain body in 1798 and the assumption of territorial cannot claim a profit à prendre in alieno solo." sovereignty by the British Crown, full posses- But I can discover no good reason for saying sion of the land had been taken by the devisees that this technical rule should be held applicable [the predecessors in title of the defendants), and in the present case, with the result of defeating that such possession had been continued by them the alleged right of Chinese fishermen and of and their assignees down to the date of the fill- the inhabitants of the leased district. For that ing of the information, it becomes unnecessary alleged right is founded upon a custom which to determine the question whether the devisees, has had its origin and has grown up under at the time when the British Crown had an. Chinese law, and its absolute validity or other nexed the territory, had acquired a title to the wise can properly be determined only by land by first occupancy or otherwise, which the reference to the rules of that law. What those Crown was bound to recognize. Their Lord- rules are on this subject we do not know, and ships are by no means prepared to say that such we cannot therefore apply them to test the a title has not been shown, but they think it alleged right. No evidence with respect to unnecessary so to decide, because the facts, sa them has been given on the one side or on the proved and found, establish adverse possession other.
against the Crown for a period exceeding sixty years; namely, a possession commencing before 1817, in or before which period the Crown had certainly assumed territorial sovereignty in Honduras, and continued without disturbance or effectual claim-by the Crown down to the period of the filing of the information.”
But we find the alleged right actively claimed and exercised at the present day, and with a history of peaceful enjoyment reaching as far By the Order of the Queen-in-Council of the back as living memory extends. And while I 20th October, 1898, it was declared that the lay out of view. the technical rule to which territories within the limits and for the term reference has just been made, and which I can- described in the Convention should be part and not believe to be applicable to the circumstances parcel of the Colony. Apart then from the of the present case, I think there are certain question raised by the defence of the pre- general principles of English law which may existent right to dredge for and remove usefully and justly be employed in estimating marine shells from the leased premises, it the validity of this claim of right. It is well may be taken-although, as will be seen here- known that our law, in common no doubt with after, the matter is not free from doubt other systems of jurisprudence, has always that it was competent for the Crown to let the regarded with favour the long-continued, and submarine area in question to the plaintiffs, unquestioned possession or user of property or subject, however, to the rights of free naviga-proprietary rights. I will refer to a few cases tion and fishing by the public in the waters in illustration of this position, where the cir: covering that area. These public rights, it cumstances bore more or less resemblance to may be mentioned, are expressly reserved by the the circumstances of the present case. agreement. By virtue of the ageement the plain- tiffs are prima facie in lawful and exclusive posses- sion of the leased area, subject to the reserved public rights, for the purpose of searching for and obtaining coral and shells from it. The defendant sets up an alleged right by custom to take coral and shells from this very area, în derogation of the exclusive right which the agreement purports to confer on the plaintiffs. It is plain that the onus lies on him to establish this defence, and that, in default of his so doing, he must be regarded as a trespasser. The ques- tion then is, do the facts as proved in evidence have the effect in point of law of establishing this defence ?.
I am unable to see how this question can be determined in accordance with the strict rules of English law. For the leased district became subject to English law by virtue only of a Proclamation of the Governor made under the above-mentioned Order-in-Connoil, while the alleged right in the defendant and his fellows was in existence at the date of the Order-in-Council and for a long antecedent
.
In Johnson v. Barnes, L. R. 7, C. P. 592, which was a case relating to a right of pastur age in the borough of Colchester, Willes, J., at- p. 604, quoted the ancient dictum that anti- quity of time justifies all titles and supposeth the best beginning the law can give them," and continued:-" So that, if evidence be given after long enjoyment of property to the exclu sion of others, of such a character as to establish that it was dealt with as of right as a distinct and separate property, in a manner referable to a possible legal origin, it is presumed that the enjoyment in the manner long used was in pur- Before the Prescription Act, 1832, there was suance of such an origin, which, in the absence a recognized custom of making claim to ease. of proof that it was modern, is deemed to have ments, by which the right was based upon a taken place beyond legal memory," And in the grant made and lost in modern times, in all same case, on appeal in the Exchequer Cham- cases where the enjoyment had lasted without ber, L. R. 8 C, P. 527, Kelly, C.B., said, interruption for twenty years. Although such 530:-" Then we come to what has been made evidence of title was in theory only presump one of the most important questions in the case, tion, yet in practice it was conclusive. And that is to say, supposing that the right actually even since the Act, if a party, instead of de-exercised has always been in fact a right of ex- pending upon the statute-law, relies (as he may do) upon common-law presumption, or a lost grant, enjoyment for a less period than the statutory number of years, when coupled with other circumstances, will warrant a jury in finding a verdict in his favour: Taylor on Evidence, s. 126.
In Hanmer v. Chance, 4 De G., J., and S. 626, which was decided in 1865, the question was as to a custom for copyhold fenants of a manor to dig and remove sand, etc., from their tenements. Lord Westbury L.C., said, at p.. 635:-"The law has laid down no rule as the extent of evidence which is required to establish a custom or from
clusive pasturage, and has always been treated and dealt with as such, is the presumption which would naturally arise from the facts destroyed by the effect of a long and numerous series of documents in which the right is spoken of in ex- pressions indicating a right in the nature of right of common ? I do not think we should be justified in giving this effect to the documents, if the result would be to set aside a right which has been so long exercised in fact, which has been made the subject of so many transactions involving large sums of mon y, and which never been made the subject of complaint remonstrance on the part of thos
It whom it was exercise
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