CO885-(13-15) — Page 439

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The question is, therefore, purely one of fact: Will the structure erected pursuant to the grant be a nuisance, ie.. a substantial prejudice to the public right of navigation! (A.G. z. Johnson, 2 Wils. Ch. Cases, 101; A.G. v. Burridge, 10 Price, 369.) If it will such a nuisance, the Crown cannot license or authorizo the structure.

This question of fact can only be determined by evidence; but, looking to paragraph 18 of the Attormy General's Report of the 10th September, there would, in our opinion, be considerable difficulty in proving the erection proposed to be a nuisance,

2. We have not the Acts creating or controlling the townships of Hamilton or George's, but, unless the Crown rights over the lands below high-water mark have bee expressly transferred to the local authorities. the fact that the locus in quo is with the townships, will not affect the question.

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3: If the right of free navigation will be substantially prejudiced either withing without the townships. the Crown cannot grant the right to construct or authorize th construction of the structure.

4. There is no difference between the case of wharves projecting from the sho and isolated structures.

5. We cannot answer this question further than we have already in answer to question 1.

We have only to add that, if substantial questions are likely to arise as to interferent with rights of navigation, it is very desirable that the matter should be dealt with: controlled by some general legislation in the Colony.

We have, &c.

RICHARD E. WEBSTER. R. B. FINLAY.

19696.

No. 97.

(CANADA.)

LAW OFFICERS to FOREIGN OFFICE.

MY LORD,

Royal Courts of Justice, October 28, 1895. We were honoured with your Lordship's commands, signified in Mr. Bertie's letter of the 30th ultimo, respecting the application of the United States Government for permission to be represented by counsel at the trials of British sealing-vessels seized in the Behring Sea.

Mr. Bertie was to inquire whether the opinion expressed in our report of the 12th September last was in any way changed by the consideration of the further correspondence which accompanied his letter of the 30th ultimo.

In obedience to your Lordship's commands, we have the honour to

Report-

That, in our opinion, there is no objection to the proposal contained in Sir Julian Pauncefote's telegram of the 23rd September 1895, as to the representation of the United States Government in the cases referred to.

At any public trial, any person who considers that he may be affected by the proceedings may watch the case by counsel; the United States Government are entitled so to watch these cases, and that their counsel should be permitted to examine the pleadings and make suggestions to the Government counsel is, in our opinion, reasonable and quite unobjectionable.

This proposal very different from the former suggestion that the United States Government should be recognized as a party to the litigation, with a locus standi before the Court. This they are not entitled to.

The situation would be altered if the United States Government were to enter. into an agreement to be bound by the result of the trial, and to pay damages to be assessed by the tribunal if the seizure should be held to be wrongful. They would then have an interest in the result of the case, which would make it reasonable that they should be allowed in some form to take part in the proceedings. If such an agreement as to the payment of damages can be arranged, and the United States Government will not consent to it merely on the terms of being allowed to watch the case and make suggestions, it might, perhaps, be carried out by allowing them to employ solicitors and counsel to conduct the prosecution of the suit in the name of the Crown. This would insure that their case would be adequately presented to the Court.

We have, &c.

RICHARD E. WEBSTER. R. B. FINLAY.

• 85965.-27.

25.-11/95.

• No. 91.

PUBLIC RECORD OFFICE

Reference :-

ELEC.O.885

14 PUBLIC RECORD OFFICE, LONDON

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