19012.
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PUBLIC RECORD OFFICE
19
Reference :-
RTC.O. 885
14 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH NOT TO
37
"VANCOUVER BELLE We must point out that the Attorney-General considered that the claim should at present be pressed.
As we have already pointed out, discussion in detail of arguments pro and con can, at present, serve no useful purpose. If it be established that the Russian vessels were ordered to seize all vessels sealing west of a certain line, the Attorney-General's observations would, of course, have far less weight, but at present this cannot be assumed.
The observations by the Colonial Office supply valuable arguments in support of the British case.
We have, &c.
RICHARD E. WEBSTER. R. B. FINLAY.
SIB,
No. 96.
(BERMUDA.)
LAW OFFICERS to COLONIAL OFFICE.
Royal Courts of Justice, October 28, 1895. We were honoured with your commands signified in Mr. Bramston's letter of the Governor, 10th instant, stating that he was directed to invite our consideration of the Despatch No. 93. from the Governor of Bermuda in which the question was raised as to the right of the Crown by its prerogative to authorize the erection of wharves below high-water mark of the navigable waters of the Colony. That a map was sent, as a knowledge of the configuration of the land might be of service.
That it would be seen that the Attorney-General of the Colony was of opinion that grants made in former times by the Crown of land below high-water mark were in derogation of the rights of the subjects at large, and therefore ultra vires. That this opinion was apparently founded upon the case of Gann versus Free Fishers of Whitstable, decided in 1864 and reported 11 House of Lords cases, page 192.
That, there did not appear to be any Colonial law affecting the Royal prerogative, at any rate outside the towns of Hamilton and St. George's; that the various laws referred to by the Colonial Attorney-General would be found in the Acts which accompanied Mr. Bramston's letter.
That, apart from the general question, the special matter which gave rise to the Governor's Despatch appeared to turn upon another point. That the War Depart- inent wished to extend an existing wharf, which was situated on " a small creek, not "navigable for boats of large size, outside the limits of the town, though within the limits of the Port of Hamilton." That it seemed, therefore, questionable whether this was a navigable water to which the principles laid down in Gann versus Free Fishers of Whitstable would apply. That it was desirable, if possible, to avoid having recourse to the Legislature in this instance.
Mr. Bramston further stated that the questions which you desired to submit were— (1.) Had the Crown by its prerogative the power to make grants of the soil below high-water mark and within three miles of that mark under the sea adjoining the islands of Bermuda, and under navigable creeks of the Colony?
(2.) Had the Crown this power within the limits of the towns of Hamilton and St.
George's, or either of them?
(3.) Did the right of the subject to free navigation prevent the Crown from exercising this power outside the limits of the two towns, or within the limits of those towns or either of them?
(4.) If so, was the Crown prevented from exercising that power for all purposes, or might it make grants for the purpose of erecting wharves projecting from the shore?
(5.) Might the Crown lawfully authorize the erection or extension of a wharf at the
locality in question?
We were further honoured with your commands contained in Mr. Bramston's letter Governor,
of the 16th instant, enclosing a further Despatch from the Governor of the Colony Sept. 14,95.
bearing upon the subject, and also the correspondence respecting the North Rock.
In obedience to your commands, we have taken the papers into our consideration, and have the honour to
Report-
That, upon the information before us, we are of opinion that the rights of the Crown in the foreshores and lands below high-water mark in the Bermudas are the same as under the common law in England unaffected by statute. It follows that the Crown can by its prerogative make grants of the soil below high-water mark, and, within three miles of that mark, under the sea adjoining the Islands of Bermuda, and under navigable creeks of the Colony, but such a grant cannot authorize the construction of any works which would substantially prejudice the public right of navigation, thereby occasioning a public nuisance. The erection of a wharf below high-water mark must in all cases to some extent curtail the public right of navigation over the space occupied, but if the interference is trifling, or if the wharf on the whole, and owing to its com- pensating advantages, is not prejudicial to navigation, it does not constitute a nuisance (Reg. v. Betts, 16 Q.B. 1012, Reg. v. Ward, 4 Ad. & E. 384).
0 85965.-75. 23-11/95.