Sessional_Paper_1887-1888 — Page 376

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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 paragraphs 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, ut 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 aceruing 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 marine 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. Ther 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.