38180
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PUBLIC
RECORD OFFICE
Reference :-
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C.O.
885
15 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
No. 204.
(GENERAL)
LAW OFFICERS to COLONIAL OFFICE.
[Legal Position of Cable Companies who had Landed Cables in Certain Colonies Without Licence, &c.]
SIR,
Colonial Office to General Post Office, 14 November, 1902.
General Post Office to Colonial Office,
29 November, 1902.
Royal Courts of Justice,
October 16, 1903.
We were honoured with the commands of the Secretary of State signified in Mr. H. Bertram Cox's letter of the 12th of August last stating that he was directed to lay before us the correspondence noted in the margin, and to request us to favour him with our report upon the legal position of Cable Companies who had landed cables in certain Colonies across the foreshore and bed of the sea in territorial waters without receiving any formal licence or document in the nature of a Crown Grant setting forth or defining the con- ditions and period for which the permission so to land the cables had been granted.
Colonial Office to Cable Companies, 9 December, 1902,
Colonial Office to General Post Office, 9 December, 1902.
Eastern Extension Telegraph Company to Colonial Office, 29 January, 1903.
Eastern Telegraph Company, 29 Janu- ary, 1903.
Colonial Office to Eastern Telegraph Company, 24 February, 1903.
Eastern Extension Telegrapli Company to Colonial Office, 1 July, 1903.
Eastern Telegraph Company to Colonial Office, 3 July, 1903.
That Mr. Bertram Cox was also to forward for our consideration a copy of a print, dated December, 1901, setting forth the correspond- ence and agreements relating to the landing of cables in various British Possessions. That he was to draw our attention particularly to the cases of Gibraltar and the Straits Settlements.
Print, December, 1901.
That in cases where no landing licence had been granted Mr. Secretary Cham- berlain was, on re-consideration, of opinion that to describe the interest of the Cable Company as being "in the nature of a tenancy at will" was a generalization which was not strictly accurate, and which admitted of misconception.
That it was submitted that in no such case were the rights of the Company in and on the foreshore a matter of tenure. That the Company had no corporeal interest therein, nor could it assert any incorporeal interest therein, for the permission (whether tacit or express) which it had received to place its cable on the foreshore could not extend to create an easement or other interest capable of being created only by deed (Wood v. Ledbitter, 13 M. and W. 838).
That it was further submitted that if the Company had any rights against the Government in a particular case with respect to the foreshore they were rights deduced from the correspondence (or from an actual agreement resulting from the correspondence) which led to the cable being landed on the foreshore, in other words that they were not rights of tenure, but rights of contract.
That the following conclusions would appear to follow:
1. In cases where the Company had contractual rights arising from the corre- spondence or from an agreement, the Company had a right to land its cable on the foreshore in accordance with the terms of its contract.
2. In such a case the grant of a formal landing licence was unnecessary, as the contract implied a licence to land the cable upon certain conditions and for a certain period.
3. In such a case, a licence would theoretically be revocable at will, but in practice, if it were revoked by the Government, the Company would have its remedy in suing on the contract (Wood v. Led bitter, ubi supra).
4. In cases where the Company had simply been permitted to land its cable on the foreshore and no contract was to be deduced from the correspondence, and
no agreement had been entered into, the Company had a mere licence revocable at will.
5. In no case, in the absence of a grant, has the Company any corporeal interest in the soil of the foreshore, or any incorporeal interest therein, which could be the subject of prescription.
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