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tion and fishing by the public in the waters covering that aros. These public rights, it may be mentioned, are expressly reserved by the agreement. By virtue of the ageement the plain- tinsare 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 enstom to take coral and shells from this very area, in 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 defenes, and that, in default of his so doing, be must be regarded as a trespasser. The ques- tion then is, do the facts as proved in evidence bave 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-Council, while the alleged right in the defendant und his fellows was in existence at the date of the Order-in-Council and for a long antecedent period. If the rules of English law are applied in their strictness, it would seem alleged right of Chinese fishermen or of the that the inhabitants of the leased district--involving, as it does, a claim of a right to remove what is practically part of the soil of the leased pro- mises cannot be, supported, for it was laid down in Gateward's Case, & Co. Rep. 59 b, that "there cannot be a custom for inhabitants as such, to hare profit apprender in the soil of another." The anthority of this case was recognized in Goodman v. Mayor of Baltash, 7 App. Cas. 633, facts as stated in a special case were that a There the prescriptive right to a several cyster fishery in a navigable tidal river was proved to have been exercised from time immemorial by a borongh corporation and its less299; without any quali fication except that the free inhabitants of 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 Ere in each year, and of catching and carrying away the same without stiut 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 (namely, the free inhabitants of ancient tene- ments in the borough] should make out a right to a profit à prendre in alieno solo, I should be of opinion that they could not do so.
Gate- ward's Case is a conclusive authority against such a claim by such a through a corporation under its corporate title." class, unless made And Lord Cairns said, at p. 643:I think it also clear that a fluctuating and uncertain body cannot claim a profit à prendre in alieno volo.”” But I can discover no good reason for saying that this technical rule should be held applicable in the present case, with the result of defeating the alleged right of Chinese fishermen and of the inhabitants of the leased district. For that alleged right is founded upon a castom which bas had its origin and has grown up under Chinese law, and its absolute validity or other- wise can properly be determined only by reference to the rules of that law.
rules are on this subject we do not know, und What those we cannot therefore apply them to test the alleged right. No evidence with respect to them has been given on the one side or on the other.
But we find the alleged right actively claimed and exercised at the present day, and with a history of peaceful enjoyment reaching as far
i
back as living memory sztends. And while I lay out of view the technical rule to which reference has just been made, and which I can- not believe to be applicable to the circumstances of the present case, I think there are certain general principles of English law which may usefully and justly be employed in estimating the validity of this claim of right. It is well known that our law, in common no doubt with other systems of jurisprudence, has always regarded with favour the long-continued and unquestioned possession or user of property or proprietary rights. I will refer to a few casea in illustration of this position, where the cir- cumstances hore more or less resemblance to the circumstances of the present case.
Before the Prescription Act, 1832, there was a recognized custom of making claim to ease- ments, by which the right was based upon a grant made and lost in modern times, in all cases where the enjoyment had lasted without interruption for twenty years. Although such evidence of title was in theory only presump- tion, yet in practise it was conclusive. And eren since the Act, if a party, instead of de- pending upon the statute-law, relies (as he may do) upon common-law presumption, er a lost grant, enjoyment for a loss period than the statutory aumber of years, when coupled with other circumstances, will warrant a jury in finding a verdict in his favour: Taylor on Evidence, s. 126,
Ia
Hanmer v. Chance. 4 De G., J., and S. 626, which was decided in 1865, the question was ea to
4 custom for copyhold tenauts of
manor to dig and remove sand, etc., from their tenements. Lord Westbury L.C., said, at p. 685:-The law has laid down no rule as the extent of evidence which is required to establish a custom or from which the presumption or inference of the fact of a custom may be rightly drawn. It is the pro- vince of a jury to draw these conclusions of fact, hat in several reported cases the Courts have refused to disturb the verdicts of juries as to a custom in a manor, even when founded on vory slender evidence. . . . The acts of the copy- holders have been open and notorious, and it is hardly to be supposed, if there was no custom, that they would have remained unchallenged by the lord, inasmuch as if unwarranted they would have formed a cause of forfeiture by the copyholders of their tenements, and the lord therefore has always had the strongest interest to take advantage of the acts done." And the Lord Chancellor reversed the decree of Page Wood, V.C., holding that "a jury would be not only warranted but bound upon the evidence of the defendants to find in favour of the custom." In Doc dem. Devine v. Wilson, 10 Moore P.C.C.502, objection was taken to
a Crown grant for uncertanity, and it was beld by the Judicial Committee of the Privy Coun- eil that, in such a case, after long modern pos- session, a supplementary and confirmatory grant might be presumed. This decision was followed in Des Barres v. Shey, 29 L. T. (N. 8.) 592, which was also decided by the Ju- dicial Committee.
In Attorney General for British Honduras r. Bristowe, 6 App. Cas. 143, which was a rare of an information for intrusion relating to land in British Honduras, the opinion of the Judi- cial Committee was thus expressed by Sir Montague Smith: Assuming then the con clusion of fact to be established, as their Lord- ships think it is, that. in the interval which elapsed between the retirement of the Spaniards in 1798 and the assumption of territorial sovereignty by the British Crown, full posLĖS- sion of the land had been taken by the devisees [the predecessors in title of the defendants], and that such possession had been continued by the m and their assignees down to the date of the fil-