125
0.0
ENCLOSURE 2
2:765
Dated 20th December
December 1894
Extract from the "Hongkong Daily Presz' dated 30th,June,
THE QUEEN
1900.
and
Chan Kwai Chin
& another
Copy.
Counterpart
Agreement
Of a piece of Ground situate at
Lantão
registered in the Land Office as Lantai Marine Lot. No 2.
Registered vot XXXVII Job
NEROKA & Co, Government Printers, Hongkong.
SUPREME GOURT.
29th June.
BEFORE SIR JOHN CARRINGTON, C.M.G. (CHIEF JUSTICE) AND HIS Hosove, T. SERCOMBE SMITH (PUIANE JUDGE).
THE SHELL CASE-THE JUDGMENT FOR DEFENDANT. Judgment was given in the Shell Case. The Chief Justice said-By their petition the plaintiffs alleged that by, an agreement dated the 20th December, 1899, the Crown agreed to lease to them a piece of ground covered by the sea and registered in the. Land Office of the Colony as Lautao Marine Lot No. 2 for a term of five years from the 7th October, 1899, at the annual rent of $300, and that one of the conditions of the agreement was that the plaintiffs should use the said premises for the purpose only of search. ing for and obtaining coral or shells from the bed of the sea. They further alleged that on the 12th January, 1900, the defendant trespassed apon the said premises and took therefrom coral and shells, the property of the plaintiffs, and con- verted them to his own use. And they claimd damages of $100 for the trespass and version.
con-
4s
By his answer the defendent set up several defences, the principal of which, and the one most relied on at the hearing, was that, from a time exceeding the limits of living memory, Chinese fishermen had, without hindrance and in exercise of their lawful rights, taken by dredging the natural products of the sea, well from the leased premises as from the adjacent and surrounding waters and the land beneath such waters; that the said premises are situate within the district leased to Her Majesty the Queen by His Majesty the Emperor of China by and subject to the conditions contained in the Convention dated the 9th June, 1898; that it is a term of the Convention that there shall be no expropriation of the inhabitants of the leased district; and that the defendant waS au inhabitant of the said district and had a right to take the natural products of the sea. including coral and shells," from the said pre. misus.
At the hearing the facts of the case were forthe| most part not in dispute. The plaintiffs seem to have been engaged in the business of procuring dead shells, dredged up from the waters of the sea. for the purpose of lime-burning for soone time before they obtained the agreement for a lease which is referred to in their petition. This agreement-which, by the way, purports to be executed by the plaintiffs, but is not so j executed-was intended to place them in posses- sion, for the purposes already mentioned, of a submarine area, measuring nearly three miles in length by about a mile and a half in breadth -inclusive, however, of a considerable island.--- close to the little island of Chan Kung, on the eastern side of the large island of Lantao. It is admitted that this area is within the limits of the territorial waters of the leased district. From
this ace the plaintiffs took marine shells for use in their business, by means of junks and boats engaged by them for the purpose. They also gave permission to the owners of other junks and boats to take shells from the leased promises, on condition of their being paid one Caudareem per pioul for all shells so taken, Finding their alleged exclusive rights of dredg ing invaded by others without permission obtained from them, the plaintiffs in January last made complaint to the Police authorities, with the resulf that on the 12th January Ser geant Kerr, of the Water Police, found five junks dredging for shells within the limits of the
area unler lease. Of one of thess junks the defendant was the owner and master. After ascertaining that the junks were dredging without the permission of the plaintiffs. Ser- geant Kerr took the junks with the persons on Board of them to the Police Station at Tsim Sha Tsui. There it was found that the junks had on board greater or less quantities of dead marine shells, the defendant stating that his junk carried 14 piculs. Mr. Slade admitted that these shells had been dredged up by the defendant from the leased promises to be used in the burning of lime. The persons in charge of the junks were charged with stealing the shells, but in the result they were discharged at the Polica Court, and their junks and the shells in question were subsequently delivered up to them. Civil proceedings were then instituted against them by the plaintiffs, and it was arranged between the parties that the alleged exclusive right of the plaintiffs should be tested in the pressut sait.
At the hearing, eridence was given by Mr. Bruce Shepherd, the Land Officer, that daims had been made at the Land Office in respect of similar leases to the cns now in question, alleged to have been granted by the Chinese authorities. It was said that these claims had been substantiated by documentary evidence-grants by the Chinese Government- which had been lodged in the Land Office. Mr. Shepherd said that these claims had been noted, but there had been no recognition of them beyond the receipt of rent in respect of thom. The documents spoken of were not produced, and no further evidence was forthcoming as to their authenticity, their terms, or their effect. In these circumstances I am unable to think that there is any satisfactory evidence before the Court to show that, prior to the cession of the leased district, the Chinese Government claimed and exercised the right of granting within the district leases of a similar character to that the validity of which is now challenged in this suit,
On the other hand, in the course of the hear ing the parties agreed upon and filed the follow- ing admission of fact: It is admitted that Chinese fishermen have been in the habit of dredging for shells and coral, for the purposes of lime-burning, from Lantao Marine Lot No. 2 openly and believing themselves entitled as of right so to do, without interference by any one, from the limits of living memory until the granting of the lease of the above Lot."
I am satisfied by the evidence before the Court that the defendant is a Chinese fisher- man and also that he was, at the time of the alleged trespass, an inhabitant of the leased district. Further, I find that, as such fisher- man and inhabitaut, he was, at the time of the execution of the agreement, in the enjoy- ment without hindrance, in common with other Chinese fishermen, of what he and they believed to be a right to win from the leased premises coral and shells and to appropriate them to his own use as material for lime-burning.
The parties, then, standing in this relation to one another so far as the facts are concerned, it remains to determine what are their legal re- lations as arising out of these facts.
By the Order of the Queen-in-Council of the 20th October, 1998, it was declared that the territories within the limits and for the term described in the Convention should be part and parcel of the Colony. Apart then from the question raised by the defence of the pre- existent right to dredge for and remove marine shells from the leased premises, it may be taken-although, as will be seen here- after, the matter is not free from doubt- that it was competent for the Crown to let the submarine area in question to the plaintiffs, subject, however, to the rights of free naviga
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