CO129-238 - Governor Des Voeus - 1888 [7-8] — Page 442

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(17.)

(Opinion by the Attorney General.)

I have considered the questions raised by Mr. PRICE in his minute of June 28th 1888, and more particularly paragraplis 5 and 6 of that minute. Those paragraphs are as follows:--

5. Briefly recapitulated the Government contention has always been that the foreshore is the property of the Crown absolutely, that the Crown has the right to reclaim the sea, at the public expense, in front of the premises of any marine lot-owner and to interpose fresh building sites between those premises and the sea, subject to the payment of such compensation to the lot-owner as may be due him for losses or injury accruing by the interposition of such new lands and of buildings erected thereon.

6. As set forth by Mr. FRANCIS, Q.C. the contention of the marine lot-owner (doubtless put into his head by Mr. FRANCIS himself) is that in granting him a marine lot-lease for 999 years the Crown has invested him for that term with an indefeasible right (by way of easement ), of direct access to High Water Mark, from which access the Crown has no legal power to cut him off. He contends that the shore may silt up from natural causes, or it may-with the concurrence of himself-be reclaimed by the Government, and that the land thus silted up or artificially formed may be absolutely the property of the Government, but that the Government, cannot without trespass on the legal rights acquired by him under his marine lease, utilize such land for building or put it to any other uses. -

I am of opinion that the contention of the Government as described in para- graph 5 of this minute is, with the exception of the bare statement that the foreshore is the property of the Crown, erroneous in point of law, and that the opinion of Mr. FRANCIS as stated in paragraph 6 though it would be correct if taken to apply only to such of the so-called marine lots as have an actual frontage along the sea- shore is not correct when applied to the great majority of so-called murine lots, which have, as I am told, frontages abutting not on the sea-shore but on the existing Praya road. That road is Crown land, and completely cuts off the lots from the shore: it makes them in fact road-side lots and not sea-side lots, They are not riparian property, that is to say property with a water frontage, and it appears to me that their owners have not as such any of the strict legal rights of riparian owners.

But although the owners of these lots have not as such the strict legal rights of riparian owners I think that the Government would still be bound to consider their position with a view to fair compensation for the injury that their property would suffer by the carrying out of the proposed works. These lots being very near the sea and separated from it only by a road-way have obviously a special value, and pay higher Crown rent in consequence and to remove them from the neighbourhood of the sea by carrying the reclamation out in front of them and building thereupon would greatly lower that value.

The difference between the two cases is that whereas in the former the Gov- ernment in carrying out a reclamation would be committing an actionable wrong and subjecting itself to a claim for unliquidated damages, in the latter it would not be interfering actionably with any legal rights and would be free to pay compen- sation rather as a matter of grace and equity and upon such terms as it might consider fair having regard to the interests of the public and of the lot-holders respectively.

2nd July,

1888.

EDWARD L. O'MALLEY,

0

SIR,

(Pier Owners to Colonial Secretary.)

HONGKONG, 5th July, 1888.

We have the honour to request that you will bring the following circumstances to the notice of His Excellency the Governor.

1. On perusing the recent despatch addressed to the Honourable C. P. CHATEK on the subject of the proposed Praya Reclamation Scheme, we fail to notice any reference to the privately owned wharves which now occupy positions along the foreshore, and which, in the progress of events must necessarily be destroyed, should the Scheme be carried out.

2. From the very inception of the idea up to the present time, it has been understood that compensation in full would be given to the owners of such wharves before demolition, and the expense included in the general cost of the works: moreover, it was believed that wharf-owners would be granted permission to erect piers attached to the new sea-wall, (in positions corresponding to those they now occupy) adapted for the carrying on of their business, provided that such structures should be deemed suitable to the new state of things by the Surveyor General. We venture to think that the justice of such a course will, after due consideration, be admitted by the Government.

3. It is true that whenever permission to erect a wharf has been granted, the applicant for such permission has been required to sign a guarantee that he will remove the said wharf at his own expense, if called upon to do so by the Govern- ment and we fully admit the general propriety of this practice, which places wharves in their correct position as encroachments on Crown property; at the same time we would respectfully submit that the spirit which dictated such restrictions never presupposed a condition of affairs such as the present. We can well imagine the Government informing a wharf-owner that the public convenience demanded the erection of a public wharf on his site, or that his frontage must be filled in, and the land used for the erection of public works or buildings, and in such a case exception could not well be taken, even though the individual loss might be heavy.

4. The present circumstances however are widely different from the above, inasmuch as the Reclamation Scheme stands upon a basis of "profit;" it is reason- able to suppose that if the value of land reclaimed did not greatly exceed the cost of reclamation, the undertaking would never have received serious consideration.

5. The profit estimated to accrue on the whole, amounts we observe, to the gigantic sum of $5,764,593.00, and without further argument, we would venture to suggest that it is an injustice, and an act akin to confiscation, to utterly destroy the existing property of one section of the community for the sole purpose of increasing the, in any case, enormous gains of another.

6. The proposed system of conducting the reclamation, appears to us to put the Scheme on an entirely different footing to what would obtain if the Govern- ment accomplished the work themselves. For the work, as proposed, becomes more of a private than a public character, seeing that individuals reap the major pecuniary On these grounds it may, with force, be urged benefit, and not the Government. that the destruction of our wharves is not a public necessity and therefore hardly comes within the pale of the guarantees given on their erection.

7. We are aware that, in strict accordance with the law, the Government have the power to insist on the fulfilment to the letter of the guarantees, but, under the circumstances, the equity of the case should surely be considered, and we venture to hope that the matter when represented to His Excellency the Governor, will induce him to carefully weigh the point we have raised which being compara- tively of inferior importance, may have only received passing notice.