Sessional_Paper_1905 — Page 744

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As to the alleged injury to the claimants' business, the contention of the Crown was that the Marine Lot, being by the terms of the lease, bounded by the Praya and not by the foreshore, there was no right of access to the foreshore which could be called proprietary, and consequently, the silting, if it occurred, did not inter- fere with any existing right. The intention of the Crown in granting these Marine Lots for which a higher rent was asked, must have been to create Lots with access to the sun, as distinguished from Inland Lots without such access ; and I think that for the purposes of the leases, the foreshore and the public road, the Praya," must be taken as one. In my opinion therefore the case falls within the principle given in "Cripps on Compensation" (4th Ed.) p. 128-If the physi- cal access from lands or premises to a public highway or navigable river, on which the lands or premises 'immediately abut,' is taken away or rendered less convenient, and the value of such lands or premises is depreciated thereby, the owner is sub- jected to an interference with his proprietary rights, and is entitled to compen- sation."

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If the alleged loss of business in fact occurred, and can be legitimately attri- butable to the alleged silting, if that in fact occurred, this is a proper subject for compensation.

This being so, I answer Question 6 as follows-that the damage, if any, done to the claimants' business, by alterations if any, which may have resulted from the Praya Reclamation Works before these were carried in 1898 in front of the claimants' lot, should be considered an, injury sustained by a lessee, as defined at the commencement of Art. 8 of the Ordinance, for which compensation may be awarded under Art. 8 (6).

Question 7.-The statement of claim includes an amount of $9,763.50 for law costs incurred between January 26th. 1896, and September 7th, 1903, in connection with the compilation of the original claim, petitions to the Secretary of State. the suit before the Supreme Court, dismissed with costs on the 1st December, 1900, the petition to the Privy Council for special leave to appeal, dismissed with costs in 1902, and the petition to the King, with regard to which in 1903 His Majesty had not. been pleased to give any commands. In the event of the award now given being in excess of either that of Gen ral Black on the 22nd November, 1898, or of the offer of $24.367.50 made by the Government on the 9th February, 1904, and declined by the claimants, should these costs or any part of them or the costs of the present proceedings be given to the claimants ?

Answer. In the event of the award now being given being in excess of the offer of $24,367.50 made by the Government on the 9th February, 1904, and declined by the claimants, I am of opinion that the costs of the present proceed- ings should be given to the claimants.

The question whether the costs of any of the previous proceedings should be given to the claimants in the event of the award now to be given exceeding either General Black's award of $15,000, or the offer of the Government of $24,367.50, necessitates a careful analysis of those proceedings.

(a.) The suit in the Supreme Court-Howard and Stephens v. the Attorney General- was a petition to set aside General Black's award. An issue was directed in order to try the question whether the Court had jurisdiction. Judg- ment was given for the defendant with costs.

These proceedings having been wrongly conceived, the costs incurred cannot under any circumstances be given to the claimants.

(b.) An appeal was then presented to Her Majesty the Queen. The answer was that the petition should not have been presented, but that proceedings should be taken before the Supreme Court of Hongkong, if the petitioners were so advised.

(c.) There appears then to have been some further correspondence with the Governinent, with a view of endeavouring to induce it to increase; or at least to reconsider, the award. This proved unsuccessful; and should the award now to be given exceed General Black's award, the costs of this correspondence should be

allowed.