Chief Justice Sir John Carrington endorsed this, and added that although the legal right is taken away it cannot but be a point of honour with the Governor to pay full regard to the moral right.
Attorney General Goodman stated before the Full Court, on the 30th March, 1898, that the Government had not said that it would not fairly and rightly assess the damage even if only morally bound, and he recognised the loss of rents as a proper subject of claim for compensation.
The present Chief Justice of Hongkong, Sir F. T. Piggott, who sat as Judicial Assessor on the recent Enquiry stated that in his opinion the case falls within the principle given in "Cripps on Compensation" (4th Ed.) p. 128 and the owner is entitled to compensation for depreciation; and as to loss of rents, he states that if silting occurred this is proper subject for compensation and may be awarded under the Ordinance.
He also states that in his opinion there was in this case a compulsory ejectment from the property which entitles us to the usual 10%, but only on the difference in value of the Property as a Marine Lot and as an Inland Lot; whereas Boyle and Waghorn give the 10%, on the ascertained value of the property.
4.
Thus under the Ordinance as defined by Governor des Voeux, who passed it; by Mr. C. A. Cripps, K.C.; and by the Courts of Law; I submit we are entitled to Compensation for the depreciation of the Property when converted into an Inland Lot by the Reclamation in front of it, and for loss of Rents; and that this depreciation be deduced from the facts in evidence, which are as follow:--
(a) The working account of Howard's Godowns from 1885 to 30th June, 1898, audited by the Colonial Auditor, showing the net rentals and cost of earning,
(b) The statement of the loss of rents, $25,142, from 1st January, 1896, to 10th October, 1899, when the property was sold, showing when depreciation commenced and when it ended.
(c) The cost of buildings, $36,000.
(d) Governor des Voeux's payment to us of $1,700 as the Market value of 339 feet of the land in 1887, being a fraction over $5 per foot.
(e) The offer of $200,000 made to me in writing for the Property in 1888; in reference to which it was stated by Counsel at the Enquiry that the Crown strongly objected to our bringing in oral evidence to prove it.
(f) The Property was sold as an Inland Lot for $110,000 in 1899.
(g) On the 21st August, 1899, Governor Sir Henry Blake offered to allow us to come into the Reclamation Scheme, and place us in the same position as if we had originally joined in the scheme, in lieu of the Award of $15,000 made by Acting Governor General Black, the acceptance of which offer would have given us the land which was sold in 1903 for $133,500, at the rate of $8.78 per foot. We did not accept this offer for the reason that the profit to be derived from the sale of the New Lot would not cover the loss sustained on the Old Lot.
5. Our claim is based upon the value as stated by Messrs. Leigh and Orange, deduced from net rentals $15,406 for 1895, capitalised at 16 years purchase for a Crown Lease of 999 years, with 10% added thereto, less the price $110,000 for which the Property was sold in 1899, showing the difference in value of $172,000, and for the loss of rents $25,142.
Whereas Sir Matthew Nathan without a single fact in support and against the facts in evidence, considers $3 per foot to be the value as the Marine Lot, and at one and the same time takes the value as an Inland Lot at $2 per foot, a difference of $1 per foot, which on 32,481 feet gives a total of $32,481 as depreciation, making with 10% added, the amount of his Award $35,729 only as against our $172,000; and he disallows our claim for loss of rents.
6. It will thus be seen that Sir Matthew Nathan ignores the net rentals from which the true value of the Property can be found. He repudiates Governor des Voeux's value of $5 per foot for the land.
He takes the land alone as distinct from the land with the buildings thereon, as the only subject for compensation, knowing that the land without the buildings has but little, if any, earning power, and allows nothing for the difference in value between the cost of the Buildings $36,000 and the enhanced value of $50,000 as given by the Experts for the Crown, for the reason, as stated by him, that subsequent to the conversion of the Marine Lot into an Inland Lot they were used, and at the present day are used as Godowns, there was practically no difference in their value before and after the conversion; whereas the fact is, that the Western and larger block was converted into an Aerated Water Manufactory, and the net rents had decreased from $15,406 as a Marine Lot to $4,308 for 283 days in 1899, when the property was sold as an Inland Lot; thus his reasons are as unsound as his conclusion that the raising of the sea-bed and silting could have been further affected by the removal of our wooden pier when it was obvious that the reason was the depositing of the pierre perdu and the displacement of 27,000 tons of material as stated by Mr. Leigh.
He leaves out of consideration Governor Blake's offer to give us the new land in lieu of General Black's Award of $15,000, which land was sold at the rate of $8.78 per foot.
He disallows our claim for loss of rents for the reason stated in letter of 20th November last (par. 10) and further adds that he is satisfied that the alteration referred to did not detrimentally affect the property, as net rentals in 1895 were greater than any previous years, evidently forgetting the fact that up to 1895 we had a wooden pier running over the silting into deep water where cargo could be landed at all states of the tide, but after the removal of this pier by order of the Government, rents gradually decreased from $15,406 in 1895 to $4,308 for the 283 days to the 10th October in 1899, when the Property was sold, and this disallowance regardless of the statement of his judicial assessor that if silting occurred, compensation for injury sustained may be awarded under the Ordinance.
That silting did occur is shown by copy of photograph taken in May, 1896, which I have the honour to enclose herewith, I also enclose copy of photograph shewing the Pier before the Reclamation.
7. Having now clearly shown that, under the Ordinance as defined by Governor des Voeux, Mr. C. A. Cripps, K.C., Justice Fielding Clarke, Chief Justice Sir John Carrington, Attorney General Goodman, and Chief Justice Sir F. T. Piggott, the judicial assessor, we are entitled to proper compensation for the depreciation of our Property and for loss of rents caused by the Reclamation; and that the Award of Sir Matthew Nathan is not commensurate with the injury sustained by depreciation, and disallows the claim for Loss of Rents; that it is arbitrary, without a single fact in support, and against all the facts in evidence; and as it will not be contended that the Ordinance sanctions
693
Chief Justice Sir John Carrington endorsed this, and added that although the legal right is taken away it cannot but be a point of honour with the Gov- ernor to pay full regard to the moral right.
Attorney General Goodman stated before the Full Court, on the 30th March, 1898, that the Government had not said that it would not fairly and rightly assess the damage even if only morally bound, and he recognised the loss of rents as a proper subject of claim for compensation.
The present Chief Justice of Hongkong, Sir F. T. Piggott, who sat as Judicial Assessor on the recent Enquiry stated that in his opinion the case falls within the principle given in "Cripps on Compensation" (4th Ed.) p. 128 and the owner is entitled to compensation for depreciation; and as to loss of rents, he states that if silting occurred this is proper subject for compensation and may be awarded under the Ordinance.
He also states that in his opinion there was in this case a compulsory ejectment from the property which entitles us to the usual 10%, but only on the difference in value of the Property as a Marine Lot and as an Inland Lot; whereas Boyle and Waghorn give the 10°, on the ascertained value of the property.
4.
Thus under the Ordinance as defined by Governor des Voeux, who passed it; by Mr. C. A. Cripps, K.C.; and by the Courts of Law; I submit we are entitled to Compensation for the depreciation of the Property when con- verted into an Inland Lot by the Reclamation in front of it, and for loss of Rents; and that this depreciation be deduced from the facts in evidence, which are as follow:--
(a) The working account of Howard's Godowns from 1885 to 30th June, 1898, audited by the Colonial Auditor, showing the net rentals and cost of earning,
(b) The statement of the loss of rents, $25,142, from 1st January, 1896, to 10th October, 1899, when the property was sold, showing when depreciation commenced and when it ended.
(c) The cost of buildings, $36,000.
(d, Governor des Voeux's payment to us of $1,700 as the Market value
of 339 feet of the land in 1887, being a fraction over $5 per foot.
(e) The offer of $200,000 made to me in writing for the Property in 1888; in reference to which it was stated by Counsel at the Enquiry that the Crown strongly objected to our bringing in oral evi- dence to prove
it.
(f) The Property was sold as an Inland Lot for $110,000 in 1899. (g) On the 21st August, 1899, Governor Sir Henry Blake offered to allow us to come into the Reclamation Scheme, and place us in the same position as if we had originally joined in the scheme, in lieu of the Award of $15,000 made by Acting Governor General Black, the acceptance of which offer would have given us the land which was sold in 1903 for $133,500, at the rate of $8.78 per foot. We did not accept this offer for the reason that the profit to be derived from the sale of the New Lot would not cover the loss sustained on the Old Lot.
5. Our claim is based upon the value as stated by Messrs. Leigh and Orange, deduced from net rentals $15,406 for 1895, capitalised at 16 years purchase for a Crown Lease of 999 years, with 10% added thereto, less the price $110,000 for which the Property was sold in 1899, showing the difference in value of $172,000, and for the loss of rents $25,142.
Whereas Sir Matthew Nathan without a single fact in support and against the facts in evidence, considers $3 per foot to be the value as the Marine Lot, and at one and the same time takes the value as an Inland Lot at $2 per foot, a difference of $1 per foot, which on 32,481 feet gives a total of $32,481 as depre- ciation, making with 10% added, the amount of his Award $35,729 only as against our $172,000; and he disallows our claim for loss of rents.
6. It will thus be seen that Sir Matthew Nathan ignores the net rentals from which the true value of the Property can be found. He repudiates Gov- ernor des Voeux's value of $5 per foot for the land.
He takes the land alone as distinct from the land with the buildings there- on, as the only subject for compensation, knowing that the land without the buildings has but little, if any, earning power, and allows nothing for the dif ference in value between the cost of the Buildings $36,000 and the enhanced value of $50,000 as given by the Experts for the Crown, for the reason, as stated by him, that subsequent to the conversion of the Marine Lot into an Inland Lot they were used, and at the present day are used as Godowns, there was practically no difference in their value before and after the conversion; whereas the fact is, that the Western and larger block was converted into an Aerated Water Manufactory, and the net rents had decreased from $15,406 as a Marine Lot to $4,308 for 283 days in 1899, when the property was sold as an Inland Lot; thus his reasons are as unsound as his conclusion that the raising of the sea-bed and silting could have been further affected by the removal of our wooden pier when it was obvious that the reason was the depositing of the pierre perdu and the displacement of 27,000 tons of material as stated by Mr. Leigh.
He leaves out of consideration Governor Blake's offer to give us the new land in lieu of General Black's Award of $15,000, which land was sold at the rate of $8.78 per foot.
my
He disallows our claim for loss of rents for the reason stated in letter of 20th November last (par. 10) and further adds that he is satisfied that the alteration referred to did not detrimentally affect the property, as net rentals in 1895 were greater than any previous years, evidently forgetting the fact that up to 1895 we had a wooden pier running over the silting into deep water where cargo could be landed at all states of the tide, but after the removal of this pier by order of the Government, rents gradually decreased from $15,406 in 1895 to $4,308 for the 283 days to the roth October in 1899, when the Property was sold, and this disallowance regardless of the statement of his judicial assessor that if silting occurred, compensation for injury sustained may be awarded under the Ordinance.
That silting did occur is shown by copy of photograph taken in May, 1896, which I have the honour to enclose herewith, I also enclose copy of photograph shewing the Pier before the Reclamation.
7. Having now clearly shown that, under the Ordinance as defined by Governor des Voeux, Mr. C. A. Cripps, K.C., Justice Fielding Clarke, Chief Justice Sir John Carrington, Attorney General Goodman, and Chief Justice Sir F. T. Piggott, the judicial assessor, we are entitled to proper compensation for the depreciation of our Property and for loss of rents caused by the Recla- mation; and that the Award of Sir Matthew Nathan is not commensurate with the injury sustained by depreciation, and disallows the claim for Loss of Rents; that it is arbitrary, without a single fact in support, and against all the facts in evidence; and as it will not be contended that the Ordinance sanctions
693
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