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Colonial Cases

R v. Reynolds and Holtz, 1865

[nuisance - interference with river - riparian rights]

 

R. v. Reynolds and Holtz

Supreme Court for China and Japan
1865
Source: The North-China Herald, 30 September 1865

 

SUMMARY OF THE WEEK.

An important case, that of H.B.M. Consul on behalf of the Chinese government, versus E. A. Reynolds, Esq., came before the Supreme Court on the 28th instant.  Circumstances occurred, however, which caused an adjournment sine die.

 

Source: The North-China Herald, 21 October 1865

H.M. SUPREME COURT.

Before SIR EDMUND HORNBY,

Chief Judge.

September 28th, 1865.

            REGINA versus E. A. REYNOLDS and A. HOLTZ.

Counsel for the prosecution, Mr. MYBURGH.

Counsel for the defence, Mr. ROBINSON.

MR. MYBURGH, in opening the case for the prosecution, said that it was a case of no common importance, involving momentous legal questions, and affecting the interests and prosperity of the port.  The case came before the Court in a summons forwarded upon an information laid by the Harbour Master, Mr. Hockly, against the defendants who were co-owners of a lot of land on the Putong side of the river. The charges against the defendants were that, by those acts which were set out in the summons, they were causing the diversion of the accustomed channel of the river Wangpoo, and otherwise interfering with it, to the impediment and damage of the free navigation of the river and against the rights and interests of the Emperor of China.  These charges the Chinese government had conceived it their duty to lay against the defendants in the interests of its own subjects as well as of those who by treaty are enjoying privileges in the port.

The defendants, in certain correspondence which had passed between themselves and H.B.M. Consul, had admitted that they had imbedded casks in the mud on the river bank and had bunded in the frontage of the river, and that the mole or jetty in course of construction was their work.  But they claimed to have a right to place and erect these obstructions, which the prosecution asserted were a nuisance.  No such right, he (Mr. M.) contended, existed. The defendants were lessees, according to their title-deed, of twenty mow of land, and by payment of land-tax to the Emperor of China, acknowledged him as lord of the soil.  They have clearly no unconditional right even to the land mentioned in the title-deed, and they hold their land subject to the law of China as it affects the tenure of land.  Of the law in this particular case the Court was bound to take cognizance.

The case of the defendants appeared to be that as the owners of twenty mow of land which by title-deed was stated to be bounded on one side by the river, they have become entitled to the land formed between their property and the river by natural deposit and otherwise, and amounting to, as he would shew by the evidence of Mr. Knevitt, the surveyor, to 75 mow.  The defendants did not dispute the law of England as it affected the right of the crown in cases similar to this, but denied that the law of China gave rights to the crown co-extensive with that given by English law.  The question of right involved the consideration of the lex loci rei ciae, which would be proved by the Chief Magistrate of Shanghai to give a land-holder no more than the quantity of land in the title-deed, and, in the case of land situated on the water-side,. To give to the Emperor of China all alluvial deposit however formed, and all land between high and low water marks.  Assuming, however, that the defendants possessed the land claimed by them as far as low water mark, he would refer to the valuable maxim, siv utere tuo at alienum non laedas.  Here by these acts they had not only injured the property of their neighbors but were interfering with the rights of the state.  The defendants might say that the obstructions did not amount in law to a nuisance.  He would refer on this point to Black., vol. IV, p. 336, where it was defined what in law constituted a nuisance.  He (Mr. M.) also submitted that, independently of the question of right and the application of Chinese law, a nuisance had been committed within the meaning of cases decided in our own courts.  He referred to the cases of the King v Ward, 4 Ach. Wll. 384, where it was also held on indictment for erecting an embankment in the water-way, it was no defence that although the work was a nuisance in some ways it was a benefit in others.  This plea, however, he believed would not be set up by the defendants.

Upon the point of the application of the lex loci he would refer to [Story] on the Conflict of Laws, p. [759].  The King v Lord [Grosvenor], 2 Starkie's [III], was a case analogous in fact to the present.  The witnesses for the prosecution would prove the charges and shew clearly how the rover was diverted and obstructed and its safe navigation impeded.  Upon these facts the prosecution asked for a conviction and an abatement of the nuisance.

(Court adjourned.)

(October 13th)

C. CARROLL said, I am interpreter in this Consulate.  This deed comes from the archives of the Consulate.  It is a title-deed, issued from this office, in English and Chinese, for land rented to Mr. James Hooper by the proprietor Chang Quai-fung, in the 16th of January 1856, and measuring twenty mow.  It is bounded on the north by the Wangpoo River; on the south by Chinese property; on the east by a public road; and on the west by the Wangpoo Rover.  On the 26th of February 1862, Mt. Hooper transferred the entire lot to Mr. Holtz.  It was again transferred on the same day to Messrs. Holtz and Reynolds.  There is no other transfer mentioned in this title-deed.

This is a letter from Mr. Consul Winchester to Messrs. Reynolds and Holtz\, dated Sept. 12th, 1866.  (Letter read.)  This is the Taotai's letter to H.B.M. Consul.  I have made an official translation of it.  (Translation read.)  I believe H.B.M. Consul received an answer from Mr. Reynolds to his letter.  This is the answer, dated Shanghai, Sept. 13th, 1865. (Read.)

To Mr. ROBINSON: - The translation of the Taotai's letter is not quite literal.  It is literal except that it omits recitals of former correspondence which are given in a condensed form in the original.  The portion omitted runs as follows:-

The Taotai states that he received a dispatch from H.B.M. Consul saying that Messrs. Dent & Co. had enquired whether or not foreign merchants who had rented ground on the Putong side, if afterwards other ground rises up, can take in such land and use it as part of their ground rented; and if such can be done what are the limits of measurement.  They request the Consul to enquire into this.  The Consul in reply has stated that he has examined into the case and I (the Consul) find that in my office no despatch has been received from you and I have therefore no grounds to decide upon.  I therefore beg of you to examine minutely and to send me an answer, that, this case being decided, we may have a precedent.  On receipt of this I (the Taotai) note what you say about not having received any despatch relative to the application of Messrs. Dent \& Co.  I have no received any despatch from the former Consul about this application from Messrs. Dent & Co. 

But formerly in reference to encroachments injurious to the river made by Reynolds of the Fuh-lee hong, I have received orders from the Tsung-li yamen to the effect that they have communicated with the British Minister and that he has issued orders to the former Consul, Markham, strictly prohibiting the above.  Now if the land mentioned by Messrs. Dent & Co. is the same as that referred to by the Tsung-li board it should be treated in accordance with the prohibition.  If it is another piece of land we should wait until the officers deputed have examined and decided upon the course of the river, and we shall act accordingly.  At the same time I deputed the Shanghai magistrate and the Wei-yuen Chen to examine and report, and I inform you that I have done so. 

Now, according to the report of the Shanghai magistrate Wang and the Wei-yuan Chen, they went, on the 3rd day of the 7th moon, with Mr. Interpreter Carroll and a person who was requested to come from Messrs. Debt & Co.'s, to examine the ground.  The person from Messrs. Dent & Co. having arrived on the spot, stated that Messrs. Dent & Co. had no land at Putung and had not requested a commission to extend their limits.  They then asked these two Chinese how it was that this did not agree with the Consul's first statement to the effect that Messrs. Dent & Co.'s application was produced by damage to the river caused by the land jutting out at Mr. Reynolds's property.

The dispatch was received on the 11th September.  It is dated the 10th.  It is written by the Taotai acknowledging receipt of a letter from H.B.M. Consul in which the despatch from Messrs. Dent & Co. was mentioned, but saying that H.B.M. Consul had no records to go on.  The draft of that letter may either be in English or Chinese. I am not certain in which.  No one desired me to omit the first part of the despatch.  I took that responsibility on myself.  Captain Lewes was the person who went from Messrs. Dent & Co.

WANG, magistrate of Shanghai, said: - I am acquainted with the laws of China.  According to those laws, land bought or rented is specified as to extent in the Title Deeds, and cannot be added to.  If any increase be made it belongs to the Crown.  It is punishable to deposit anything in a river between high and low water marks.

To MR. ROBINSON: - I have taken possession of land thus formed, and sold it again either to the original owner or to other people.  In case the ground is made to rise by construction, it would not be sold to the original owner, and he would besides be punished.  I have acted in cases of Chinese property but I have not heard of any case of the kind in the foreign settlement.  If such land rose outside Chinese owned land the Mandarins could build a wall thereon, but houses could not be built and let to others.  If the title-deeds mentioned that the land was bounded by the river the crown could also build a wall.  In fact the land having already risen it would no longer have river frontage.  It a wall were built between the property and the river, the quantity of land mentioned in the title-deed would still be accorded to the owner inside the wall.  I don't know of any case in which foreigners have extended land by deposit, and have insisted on using the extension.  If such a case arose the Taotai would be the person through whom any remonstrance would be made.  Such cases might have occurred in the Taotai's Yamen without my knowing it.  Transferring of land between Chinese goes through me, but where foreigners are concerned, the Taotai has to look after it.  If land is taken by the Mandarins no compensation is made.  If land is washed away the land tax is escaped, but if land is added it belongs to the government.  This is laid down in the laws relating to the Board of Works, and in the Ta-tsing-liu-li.

The COURT reminded Mr. Robinson that the charge against the defendants was that they had created an obstruction between high and low water marks, not that they had illegally taken possession of land.

MR. ROBINSON thought that it was necessary to prove whether Mr. Reynolds was or was not trespassing.  If not he was only doing what he had a right to do on his own land.

Examination continued: - Persons putting up jetties are punishable if such jetties are not on their own land.  Land is mentioned in the title-deeds according to the number of mow.  I have never seen a deed in which, irrespective of measurement, land was granted to low water mark.

F.  H. KNEVITT said: - I am an Architect and Land Surveyor.  In April 1864, I was called on by Messrs. Reynolds & Holtz to survey their land.  I made the survey.  This plan is made on that survey.  The measurement was 80 mow, 1 fen, 6 li, 8 how.  The lot was bounded by a wooden jetty on the North, a bamboo fence on the South, the river on the West, and a very irregular line on the East.  I swear to the correctness of the plan.

The plan (D) was put in.

To MR. ROBINSON: - 6,600 feet I calculated to each mow.  The usual figure is 6,600 in buying and selling land, not 7,260.  I don't know of any instance in which land on other parts of the river has largely increased.  I have surveyed land in which there may have been more or less land than in the title-deeds.  The boundary on the East was principally a foot-path.  I made the whole of the West and North-west boundary the river. In making my calculation I measured to low water mark.

TO THE COURT: - The amount of solid land never covered by water, would, I should think, be about 63 mow of 6,600 feet each.

J. M. HOCKLY, R.N., said: - I am an officer in Her Majesty's Navy, and Harbour Master of the port of Shanghai.  I have been Harbour Master since May 1st 1862.  My duties are to berth vessels, see that they are properly moored and carry out the Harbour Regulations as agreed to by the Treaty Consuls.  As conservator of the Yang-tsze I perform the duty of preventing the placing of obstructions.

I know the Putung point.  I know the defendant, Mr. Reynolds, occupied land at Putung.  The point is not now in the same state as when I assumed office.  It has been increased by the placing of barrels in the vicinity of the point.  Those barrels were placed by Mr. Reynolds.  When first placed on an average they were 50 ft. from low-water mark, and 80 feet from high-water mark, ordinary tides.  They were at first put on top of the mud, and stones put in them to keep them in position.  The placing of these tubs tended to increase the deposit, by the tidal stream being checked, and the water being thus prevented from going over the smooth surface of the bank where it would have left a natural deposit on the top. The tubs caused a deposit to fall outside.

When I noticed the tubs I complained (E) to Messrs. Reynolds and Holtz.  That complaint was made in writing. (Certified copy of letter handed in).  It was dated May 11th, 1863.  In it I protested "against bunding-in land below high-water mark, &c."  In reply I received a letter (F) dated 30th May, 1863. (Read.) It stated that the casks were within low water mark and that defendants were going to enter into a contract to build a jetty.  The tubs were not removed.  I then write Messrs. Reynolds & Holtz another letter (G) dated June 5th, 1863, reiterating former objection.  No notice was taken of the second letter.  These tubs were removed last September.  The continuance of the tubs increased the point 154 feet in the first year.  In the second year it made about 40 feet.  To that extent therefore the river has been narrowed.  On the Putung side the right bank of the upper reach has extended in like manner as the point.  The flood tide striking the point causes an eddy tide above it, and that causes a deposit to form.  In the lower reach the same effect is produced by the ebb tide. (Witness then explained his views more fully by demonstrating them upon a chart of the river).  I can't tell the extent of the bank produced.

The extension of the bank of the river increases the chow-chow water around the point.  The chow-chow water has increased since Mr. Reynolds put down the tubs.  Vessels coming to their anchorage in the upper reach are therefore unmanageable through the effects of the chow-chow water.  Previous to this obstruction there was some difficulty experienced by vessels in rounding the point but that difficulty has since increased.  Mr. Reynolds has lately placed an obstruction of the bank of the river at Putung - a jetty formed of mud and stones.  I was absent when it was commenced but the first letter with reference to it was written on the 24th of August. (Letter from the Deputy Harbour Master to Mr. Reynolds, read). The obstruction was continued, however, until this Court was adjoiurned in the 28th ulto. 

Since my appointment, application to build jetties or wharves has been made to me previous to their being commenced.  The jetty at present extends to low water mark.  I consider the same effect will be produced as by the casks.  A deposit will be formed outside the jetty increasing the mud flat.  The chow-chow water is always worst at the last two hours of the ebb tide.  It is caused by the ebb tide coming down with great strength on the Putung side, where it meets with the obstruction of the Putung point; a large quantity of water then recoils from the point and passes off towards the centre of the stream.  On the other side of the river the last two hours of the ebb tide coming down the Soochow creek takes the same direction as the flood tide.  This stream passes up to abreast of the Custom House.  It then meets with the ebb tide passing down the river.  This water then passes off to the centre of the stream and meets with the water that has recoiled from the Putung point.  The consequence is that the three bodies of water meeting from different directions causing the whirling motion which is called chow-chow water.  The chow-chow water has increased both in intensity and extent.  I suppose it has extended 50 feet further up the river and farther down also.

To Mr. Robinson: - I arrived in September 1861.  When I arrived there was a point.  There was a junk sunk about 300 feet below the point.  The junk caused some deposit.  I took steps to remove the junk but did not succeed.  The matter was referred to the Chinese authorities and the consul.  I never found it impossible to pass in a boat between where the junk lay and the shore.  By my position as conservator of the Yang-tsze I was entitled to write the letter dated May 11th to Mr. Reynolds.  I also wrote to the Taotai.  I took no other steps.  I don't think there has been less deposit this year than during any year for the past five years.  I do not think that in other places in the river the surveys made in 1863 are useless; I think they may be trusted.  There has been a large natural deposit at Dow's Wharf, about two miles down the river, where the bend is not so sharp as here.  I do not think it follows that the sharper the point, the greater will be the deposit.  The striking of the tide upon the point has not had the effect of wearing it away.  It has had this effect further down, which is also partly caused by the steamers passing.  The plan put into my hand by you shews the shape of the land.  Even if the Putung Point was not there, I as a sailor, think the chow-chow water would still exist.  I have not heard the Municipal Engineer express an opinion on the subject.  It is probable that two bodies of water meeting from opposite directions would cause an eddy.  The ebbs from the Soochow creek and the Wangpoo do not meet at right angles.  The eddy is caused by the meeting of three bodies of water.

When I became Harbour Master I sounded at Putung point.  I have not now got those soundings, but they may be found in the English Government Chart of 1862.  In May 1863, at average high water, there was about four feet of water over the tubs.  I consider that Mr. Reynolds has impeded the navigation of the river by narrowing the channel and increasing the chow-chow water.  I first saw the tubs in May 1863.  The letter of August 24th, I did not accompany by the Consular Notification of March 10th, 1863, relative to enforcement on the subjects of all nations alike.  I did not think it necessary to do so.  Mr. Collier's jetty is a boat's jetty, and he did not apply to me for permission to build it.  It extends to low water mark.  I wrote to Mr. Collier on the subject.  Mr. Collier gave some explanation of the matter, but I forget the circumstances now.  Howard's Wharf was built before I became Harbour Master.  It extends a very little below low water mark.  It was finished just before I got the appointment.  The American Consul was written to on the subject, but no change has ever been made in it.  The Municipal Council jetty opposite may also cause a deposit.  The Taotai consented to its being erected.  It is not such an obstruction as the jetty at Putung.  I think the mud flat opposite the Consulate is caused by natural causes and the bad state of the jetties which obstruct the stream. The increase of the French bund is 100 feet.  I think in the course of time there will be a natural deposit outside.  I do not think this will affect the course of the river, as the stream is straight there.  About three-quarters of a mile below the point the Lord Lyndhurst lay.  She was there from six to nine months certainly.  As conservator of the river I have never made any representation for the removal of the bar at Woosung.  It won't be necessary as the water has deepened a foot during last year.

To Mr. MYBURGH: - With the extent of the point the bank extending across the river from the point to Dent's wharf, has increased.  Mr. Medhurst's Notification refers only to ships' wharves.  I have always endeavoured to enforce the Consular Notification when ships' wharves were to be built.

G. RAPATEL said: - I am first Lieutenant of the La Place.  I came here about the 1st of August, 1865.  I know the Putung Point.  I have walked there twice.  I noticed when there that there was a wharf in course of construction.  I believe that the wharf is very bad for the direction of the water.  If the jetty be allowed to remain, the depth of water will decrease and the mud inside the jetty will extend outwards.  Itwill also cause the increase of the point, and this will interfere with the navigation of the river.

To Mr. ROBINSON: - I think the point will be found to increase rapidly in size.  (The witness at great length explained his views as to how the jetty affected the growth of the point). If the jetty were removed I believe the point would still increase.  The Putung Point itself is the cause of the deposit, but you increase Putung Point by placing obstructions.  (Some letters bearing on the case were then read by Mr.  Bate, but he was unfortunately almost inaudible.)

D. PARTRIDGE said: - I am commander of the Receiving Ship Lady Hayes.  I have commended her for three years.  She is anchored opposite Jardine's.  I have been in and out of Shanghai since 1843.  I know the Putung Point.  Ever since I knew it I noticed an increase in it.  I remember when the tubs were put on the point, but don't know whether they were above or below high water mark.  I have not noticed a greater increase in proportion since the tubs were pout there.  I have noticed a great increase in the chow-chow water during the past year.  I know this from pulling across in a boat and our ship going round and round.  It always did this but did so more than usual during last spring tides.  A jetty has lately been constructed opposite the iron godowns on the Putung Point.  I don't know what effect it will have; I have not troubled my head about it.

To Mr. ROBINSON: - I attribute partly the swinging of my ship to the greater quantity of water at spring tides.  I did not notice that the increase of the Putung Point had any effect on the navigation of the river.  I consider all jetties a disadvantage to the river.

S. A. VIGUIER said: - I was formerly in the French Navy as first class midshipman.  I am now in the Harbour Master's office.  I, by order of the Harbour Master, made this plan of the river.  I took the soundings marked therein myself.  I know Mr. Reynolds's property.  I know the boundaries. (Witness then proceeded to give further particulars with regard to the land on the point.)  In measuring the land I did so according to the Consular Notification regarding measurement.

To Mr. ROBINSON: - Opposite the Putung Point the water is very deep.  Opposite the point it ranges in depth from one to ninety feet.  Since February 1864, except along the bank, the soundings remain nearly the same.  The Putung Point has increased but I have noticed little difference in the soundings along the bank off the point.  In mid-channel, below Lindsay's Wharf, my soundings are much deeper than in the Government Charts.  Abreast of the New Dock the river has deepened.  Off Putung Point the water deepens very rapidly.  At 200 feet from the point I think there are 31 feet of water.

To Mr. MYBURGH: - I have made a calculation of the extent to which the river has narrowed.  The river narrowed 315 feet from the point across to Howard's jetty, during 1864.  (Witness then shewed the exact shoaling of the river at different places since 1864.)  The deepening of the channel is caused by the narrowing of the banks of the river.

Mr. ROBINSON objected to the new question raised, and he was allowed to elicit the following additional evidence:-

To Mr. ROBINSON: - The narrower the channel the less will be the facility for navigation.  In 1863 I measured the distance from the barrels to low water mark.  Ity showed an average of 45 feet.  In 1865 it showed an average of 160 feet.  I do not know whether the land I measured is Mr. Reynolds's land or not.

J. CLARK said: - I am civil engineer to the Municipal Council.  I have lately devoted some attention to improving the river Wangpoo.  I know Putung Point.  I know what is called the chow-chow water.  The removal of the point I at one time suggested.  The point keeps out a vast volume of tidal water; it lessens the water in the upper reach and causes the banks in the river to increase.  An obstruction would check the course of the stream and interfere with the navigation of the river.

To Mr. ROBINSON: - My experience here extends over two years and a half.  I find that the chow-chow water has increased much of late.  I believe the whole of the land that Shanghai is on has been reclaimed from the river.  I do not know that within the last six or seven years the site of Hongque has been reclaimed from the river.  The chow-chow water is worst at about ¾ ebb.The tide strikes upon the North bank of the Soochow creek and flows round the front of the English settlement, meeting the water of the Wangpoo in a different direction.  The meeting of the water causes chow-chow water and a deposit upon the outside edge.  If 100 feet were taken off the Putung Point, the chow-chow water would, having more space, be lessened but not done away with.  I think the Soochow creek is the great cause of the chow-chow water.  I propose to cut 700 feet off the point.  So long as the chow-chow water exists so long deposit must be produced.  The new jetty built by the Municipal Council cannot prove an obstruction but a similar jetty on the Putung Point must do so, as it would tend still more to increase the point.

To Mr. MYBURGH: - My scheme is that the course of the Soochow Creek should be diverted in order to do away with the chow-chow water.  To improve the river and to admit the greatest possible amount of tidal water, I propose cutting off 700 feet from the point.  With the Soochow creek running as at present the extension of the point must increase the chow-chow water.

(Court adjourned.)

(October 14th.)

Captain H. W. BURNET, HM.S. Manila, said: - I have been in command of the Manila for about two years and nine months.  Shanghai has been my headquarters.  I know the Putung Point.  It has extended greatly since I first came here.  I have noticed a row of casks placed on the bank.  I have seen them covered at high water, when pulling round the point.  The effect of the casks being placed there would be to increase the point, by causing a greater deposit round them.  I know what is called the chow-chow water.  The extension of the point would tend to increase it.  (Witness explained his views upon the chart).  The existence of the chow-chow water impedes the navigation of the river.  I have lately noticed the construction of a mole or jetty in the vicinity of the point.  It is made of stone and extends to low water mark. If it were allowed to remain, I should think the banks in the neighbourhood would grow.  The tide would thus cause a deposit to settle.

To Mr. ROBINSON: - The casks were not flush with the lands when I saw them first.  I don't know why the casks were put there.  I have not seen them for a long time, and therefore am not in a position to say whether they are still there.  Before the flood has actually made there is a flood under-current.  Were the point not there, there might be a little chow-chow water but not so much.  I don't know whether there is chow-chow water at Woosung.  I don't know how far the mole is off the head-land.  I do not tbhink it is parallel with the course of the stream.  I have not examined it.  If the river were bunded down for half a mile the point might grow; I can't say.  I don't think the jetty would cause the land to grow on the lower side of the point.  I don't recollect a junk lying off the point.

To Mr. MYBURGH: - I do not think the extension of the point itself would cause the bank to increase in the Lower Reach.

(This closed the case for the prosecution.)

MR. ROBINSON, in opening the case for the defendants, said that he quite agreed with the Counsel for the prosecution, that this was a case of considerable importance, but on grounds somewhat different from those assigned by him.  His learned friend thought the prosperity of this port was imperiled by the action of the defendants, while he (Mr. R.) thought it more likely to be benefitted by what they had done.

Leaving aside the pecuniary interest of the defendants, the case involved the application of the criminal law of England to Englishmen in China.  Now, he might say that this was scarcely a case to enlist the sympathies of Englishmen, or of an English court of justice.  These proceedings were supposed to be taken at the instigation of the Chinese authorities, but the portion of the Chinese dispatch of which the defendants had heard a translation for the first time in Court the day before, clearly shewed that they had been suggested to the Chinese authorities by private landlords.  If the Chinese were really sincere in this case, why did they leave an obstruction like the sunken junk for years off this very point?  Why did they not clear away the Lord Lyndhurst? Why did they not improve the bar down the river, and place buoys and erect light-houses?  It was therefore most improbable that they would have prosecuted Mr. Reynolds if left to themselves. 

He would now come to the charge so far as he could pick it out of the evidence, and which he understood to be:-

That the defendants on the 12th September 1865, and divers other days previously, did, and still were filling in with earth and stones as portion of the river between high and low water mark, thereby causing a diversion of the channel, to the impediment and  danger of the navigation of the river.

His first answer to this would be that it was not a fit subject for as criminal charge because the defendants had acted under the bona fide impression that they were only doing what they had a strict legal right to do.  The learned Counsel quoted, in support of that proposition, passages from the 4th vol. of Steph. Blackstone, p. 210, and Archbold's Criminal Pleadings, p. 100.  It was unnecessary for him to call the attention of the Court to the 6th Article of the new Order in Council, or to Rule 339 of the new Rules, but he submitted that a proceeding if this act was never contemplated by the framers of the Order in Council.  The offence, if it existed, was one against the sovereign rights of the Emperor of China, and therefore a prosecution at the suit of the Queen of England was bad.Again, it was dangerous to allow such proceedings to be taken here without some restraint equivalent to trhe application for leave to file a criminal information in En gland. Mischievous or vindictive persons might avail themselves of such a proceeding to harass and annoy innocent persons.  For these reasons he submitted this charge ought not to be sustained. 

His next answer would be, that no part of the offence charged which did not arise within six months from the date of laying the information, could be entertained by the Court.  In support of this he referred to the 11 and 12 Vic. C. 43, s. 11., and Oke's Magisterial Synopsis, p. 97.  It was in evidence that the casks had been lain down in 1862, and that since then nothing had been done beyond the erection of the jetty.  Then as to the offence charged he should submit it had no e existence.  No alteration of the channel had been proved, and the line of low water was everywhere the same as at Mr. Reynolds' [property.  An inspection of the ground would at once satisfy the Court that the deposit there was not greater than elsewhere, and Mr. Reynolds could not therefore be accused of causing it. The real cause of the deposit was to be found in the natural configuration of the river, and that this was so was confirmed by Mr. Clark, one of the witnesses for the prosecution.

The same effect was seen on the other side of the river, opposite the British Consulate, upon which ground there were no buildings.  Here Mr. Robinson quoted an extract from Dr. Lamprey's paper entitled "Notes on the Geology of the Great Plain," pp. 12 and 141, read before the Royal Asiatic Society.  It was absurd to talk of this jetty being an impediment to the navigation.  If so, every jetty in the place was.  It was parallel to the stream and inside the strength of the tide, and more than 100 yards from the head-land.  One of the witnesses for the prosecution had proved that the navigation channel was deeper now than some years ago.  There had never been any depth of water over the land in question, therefore no prejudice existed now, and as regarded the extension of the point Mr. Reynolds objected to it as much as any one, and had been constantly digging it away.  But the natural causes were too strong, and produced similar effects at every sharp bend in the river, as for instance near Messrs. Dow & Co.'s wharf. Vessels did not experience any more difficulty in rounding the point now than before, and the mole erected by Mr. Reynolds could not in any way increase the point.  It would be proved that the junk which was allowed to be there for years did cause a considerable deposit there, and for this the Chinese authorities were responsible.  On these grounds therefore he submitted that nothing in the shape of an obstruction was proved to have been caused by the defendant.

Fourthly, he submitted that in all cases, and particularly here at Shanghai, every man having land bounded by the river has a right to protect himself against its encroachments. (Chitty's Burns' Justice, vol. V, pp 363 and 364.)  The Chinese know well what foreigners buy land for, and do not therefore expect them not to take precautions to keep their land from being overflowed, and the land belongs to the purchaser down to the low water mark.  Fifthly, assuming for the sake of argument that the defendants had not a strictly defined legal right to do what they have done, he (Mr. R.) would submit that any injury which had arisen or could arise therefrom was too insignificant in its nature, too uncertain in its cause, besides being sanctioned by time and example, to admit of its being made the foundation of a criminal charge.  The question was whether the acts of the defendants amounted to a public nuisance or not.  In England this question would have to be decided by a jury.  R. v Betts, Arch: Crim: Pl:, 767, and R. v White, Roscoe Crim: Evid:, 767.  These casers also shewed that an obstruction in a navigable river was not necessarily a nuisance, while the witnesses called for the prosecution, who disagreed among themselves, and those for the defence, might fairly represent the opinions of a jury. As to what obstruction amounts legally to a nuisance he would refer the Court to the case of R. v Rendall cited in Roscoe Crim: Evid:, p. 359.

Lastly, he (Mr. R.) could not imagine why a set should be made against this particular mole when others which run equally to low water mark, and some beyond, were neither objected to nor removed.  There were numberless obstructions on the Shanghai side of then river between high and low water mark, and if they were not nuisances why was Mr. Reynolds' mole?  The Putung Point had grown into a particular shape and was the result of natural causes which could not be avoided, except at vast expense. (Mr. R. then proceeded to analyze at some length the evidence for the prosecution.)

Wang's evidence might be dismissed as he knew nothing of the application of Chinese law to foreigners.  Mr. Knevitt only proved that the defendants' land now exceeds the quantity in their title-deed, which was not a criminal offence.  Mr. Hockly's great point was that the tubs checked the stream.  An inspection of them would shew that this was impossible.  Mr. Hockly had objected in the beginning of 1863, and wrote to Pekin on the subject, and answers were received from Prince Kung and Sir F. Bruce, but no steps were taken either by the Consular or Chinese authorities.  In 1864 Sir Harry Parkes was applied to by Mr. Hockly, but he did nothing, after personally inspecting the property.  And now at the end of 1865 this charge is brought.  After allowing the defendants to proceed all this time the Chinese ought not to be allowed to complain.

Mr. Hockly, again, stated that the tide striking upon the Putung Point rebounded and caused the chow-chow water.  But Mr. Clark the engineer, another witness for the prosecution, differed toto caelo from the Harbour Master, and said that the chow-chow water was produced by the tide striking the North shore of the Soochow creek, on the other side of the river.  It was only natural to think that Mr. Clark was as good a judge as Mr. Hockly.  The latter thinks if there were no Putung Point there would be no chow-chow water; the former, that the same result would be obtained of there were no Soochow Creek.  Assuming the latter opinion to be correct, the defendants are surely not responsible for the existence of the Soochow Creek. Monsieur Rapatel's evidence was not worth much, as he had only been acquainted with the river for about a month.  The evidence of Captain Partridge and Monsieur Viguier was in favour of the defendants, that of the latter proving that there had been little change in the soundings for some time, except for the better.

C.  E. KOFOD said: - I have navigated this river for many years.  I am acquainted with the Putung Point and the buildings on it.  I don't think these erections impede the navigation of the river.  The point is more extensive now than before, but why I am not able to judge.  There is not so much chow-chow water as in past years.

To Mr. MYBURGH: - There would be an eddy to leeward of an obstruction across trhe river.  There would be slack-water to leeward.  If the mass of water were charged with mud a deposit would, I should imagine, be caused.  If the construction extends to low water mark, provided the tide does not go over it, it will cause a deposit.  I have been in Shanghai for nine years.  I have not noticed any greater increase in the extent of the point during the past two years than previously.  Formerly there was a shoal off the point but then it was covered.  I have some idea of what 154 feet is.  I think the shoaling increased more in 1863 than in any other year.  I think inside of Mr. Reynolds' jetty a deposit will be caused, but not outside.  I mean to swear that the chow-chow water has not increased.  On an average is has decreased.  I do not know it to be the opinion of most men that it has increased.

To Mr. ROBINSON: - I recollect the junk sunk off Putung Point.  I think a deposit was likely to form between the junk and the shoal.

--- DOBBYN, master of the Bunker Hill, said: - I know the Putung Point.  I have been on the river for five years and a half.  I do not consider that it is more difficult to navigate than it was five years and a half ago.  I think the chow-chow water is less than it was five years and a half ago.  I have noticed this decrease within the last two years.  I think the increase of Putung Point is caused by the natural deposit of the river.  I don't think the jetty is any impediment to the course of the river.  It may be an impediment to small craft but not to ships.

To Mr. MYBURGH: - I noticed tubs placed on the point by Mr. Reynolds.  They were laid on top of the mud and placed pretty close together.  They were not far enough out to cause any diversion of the tide.  I have lately seen what is left of them.  They were filled up from behind by coolies.  I do not think that these tubs would cause any further deposit.  If a solid mass in a tidal stream extends far enough into the water it will cause a deposit.  I don't think the barrels were placed eighty-eight feet from high water mark.  I saw them placed.  On the point, with an ebb tide, were the barrels fifty yards outside high water mark I don't think they would cause any deposit.  I account for the chow-chow water by the three directions the streams take when meeting.  I have seen the same thing in other rivers.  The Putung Point is difficult to round, often dangerous.  The point is now nearly an acute angle.

To Mr. ROBINSON: - The mud was taken from below high water mark to fill up behind the barrels.  The point is not more difficult to round now than it was three years ago.

G. COBB, master of the Wild Deer, said: - I was here in 1857.  My vessel was anchored nearly opposite Jardine's.  The chow-chow water was then very violent; the vessel used to s wing very violently round and round.  I was not here again until last year.  I could see no apparent change in the intensity of the chow-chow water.  I do not tbhink it is worse now than in 1857.  The Putung Point existed in 1857.  It was not difficult to get round, with a steamer.  I do not tbhink it is more difficult now under the same circumstances.

G. BENNETT, master of the Receiving Ship Wellington, said: - I have been here for about seven years and a half.  I purchased some land in 1861, situated above Mr. Reynolds'; jetty, on the same side; I bought it for Sassoon & Co. from Mr. Reynolds.  It became necessary to measure the land.  It was measured in the presence of the Tipao and Mr. Alabaster.  There was a great deficiency in mow according to the title-deed.  The Tipao went down as far as he could in the mud when measuring.  There was a trifling difference there and he had to go further out and put the bamboo measure five or six inches into the water.  This land was measured down to low water mark.  After I bought it negotiations were entered into for bunding the land.  The project was abandoned because it was too expensive.  I don't think the erections on Mr. Reynolds' land impede the navigation of the river.  I think the river is as easy to navigate now as it was seven years ago, I have had to shift my vessel out twice, in consequence of the shoaling on this side of the river.

To Mr. MYBURGH:- I have paid so little attention to the point and bunding that I don't know anything about it.

W. GAMBLE, Superintendent of the American Presbyterian Mission Press, said: - Some time since I purchased a parcel of land here.  The land I purchased was on the Shanghai side and was bounded on the East side by the river, and on the West, North and South by streets.  In the course of time I reclaimed land from between high and low water mark by filling in.  I have got the original deed.  I asked the Chinese authorities for a fresh deed consolidating the land I had bought with the land I had reclaimed.  They objected, saying that the measurement of the land in the new deed was more than in the old deed.  Chinese officers inspected the ground in consequence.  I pointed out that I had reclaimed the land.  They then issued a fresh deed for the whole including the land reclaimed between high and low water mark.

W. BELL said: - I am engaged as pilot on board the Labordonnais and have had four years experience on this river.  I know the chow-chow water off Putung Point.  I think it is less now than it was four years ago.  I do not consider the Putung Point more difficult to navigate round than then.  I think the chow-chow water is caused by the water of the Soochow Creek striking the tide of the Wangpoo.  I remember the vessel sunk off Putung Point.  I think it was calculated to produce a shoal inside it.  I do not consider Mr. Reynolds' jetty an impediment to the navigation of the river.

To Mr. MYBURGH: - I can't say what is the cause of the formation of the bank at this side of the river.  A structure run out at right angles from the bank would cause a deposit on the far side.  If the obstruction extend as far as low water it will cause an increase of the bank to low water.  I have seen Mr. Reynolds' mole.  It is solid and runs at right angles to the bank.  This mole would cause a deposit on either side according to the tide.  The turn from the Upper to the Lower Reach is sharp and dangerous.  Narrowing the river from the point to Howard's jetty would not make navigation more dangerous.  I can't say whether the extension of the point will increase the banks in the Upper Reach.  If you go far enough inside the point you will have slack water.  Three tiers of vessels may lie in a line and swing with safety in the space between the man-of-war anchorage and the Putung Point.  That leaves no room to spare.  If the river narrows there will not be sufficient room for three tiers.

To Mr. ROBINSON: - The jetty is not within the effect of the tide.

CAPT. BROWN, of the Sailor's Home, said: - I am familiar with the river Wangpoo, the Putting Point, and the chow-chow water.  The chow-chow water is caused by the sudden depth in that part of the river, and the meeting of the two sides.  I consider the chow-chow water infinitely less than formerly.  The jetty is not acted upon by the strength of the tideway.  I think it much less difficult to go round the point now than formerly, particularly on the flood tide.  I remember a junk being sunk off Putung Point in 1862.  Between the junk and the river a dry bank formed within ten months after she sunk.  It was formed on the starboard bow of the junk.

TO THE COURT: - This side has had more deposit than at Putung.

F. JENKINS said: - In 1861 I bought some land at Hongque.  The boundary was from low water mark.  The title-deed states 10 mow, more or less.  I reclaimed some land.  I built a wharf out from the land about 250 feet from the bund line.  There are fourteen feet at the end of the wharf at low water.  I have never received any intimation from the Chinese authorities regarding the erection of this wharf.  I know the Chinese authorities sent a dispatch to the Consul objecting to its erection.  The Consul never communicated with us and the wharf is there now.  I know that a portion of the Hongque was reclaimed from where the river once flowed.  The site of Jardine's Godowns and several other places were under water within my remembrance.  The wharf was commenced between February and May 1862, and finished about July or August.

To Mr. MYBURGH: - I let this property to Drake & Co.; I think in December 1862.  I don't know whether or not there was any communication between the Consul and Drake & Co. on the subject of the wharf.

TO THE COURT: - There is a solid mole of about 100 feet in the wharf.

E. J. DESLANDES said: - I have been four years and a half in Shanghai.  I know the Putung Point and the chow-chow water.  I think the cause of the chow-chow water is the ebb from the Soochow creek and the Wangpoo meeting.  I think the chow-chow water is much less now than before.  I do not consider Mr. Reynolds' jetty and obstruction to the navigation of the river.  It is out of the tide.  I don't consider the river round the point more difficult to navigate than formerly.

To Mr. MYBURGH: - I have often crossed the chow-chow water in my boat and find that it is less in strength than formerly.  I do not notice much difference in its extent.  I remember the Acorn's former position.  I do not know that she was taken away on account of the increase of the chow-chow water.  I think all the jetties in Shanghai, more or less, cause an increase in the banks.  There is less tide at Mr. Reynolds' jetty, on account of the bend in Jardine Matheson's wharf, than on the Shanghai side.  The chow-chow water has always extended to the Lady Hayes.  An eddy is a recoil more or less.  Both ebbs meet and the flood strikes the point and come right across the river.

T. KINGSMILL said: - I am an architect, and have paid great attention to the waters of the Wangpoo.  I am acquainted with the Putung Point and the erections upon it.  The chow-chow water is caused by the sharp bend in the river, the water being deflected from it; but I do not think the point itself has anything to do with it.  If there were no point a point would be formed there.

J. McLEAN said: - I have been a pilot for six years.  I am acquainted with the Putung Point and the chow-chow water.  I consider the chow-chow water much less than it used to be.  It is not so difficult to navigate round the point as formerly, the chow-chow water being less.  I remember a junk having been sunk off the point.  It increased the point materially.

A. DUPRE, French Consular Architect, was then put in the witness-box.  He coincided in the views which Mr. Kingsmill had expressed.

E. A REYNOLDS said:- I placed certain casks on Putung Point, as I intended to erect godowns on the point, and wished to carry a large quantity of mud from the front to the rear, causing it to be some three or four feet higher than the outer level. Finding after some months that the action of high water constantly washed away what we had raised, in order to keep this mud from washing back we  dug a trench on the outside of what we raised, and placed water-casks in that trench.  They were not placed at right angles to the point.  Since then we have repeatedly carried mud back to the rear.  Without any further action of ours the constant rise and fall of the ride caused the casks to be completely covered.  When we first put the casks there the low water line, in the months of February and March, was 150 feet outside the casks.  I got the mud which I put behind the casks from this space of 150 feet outside.  The quantity of silt is a great nuisance to us - we don't know how to manage it.  Coolies have constantly been employed in digging it away.  The jetty is distant from the headland not less than one hundred yards.  The front of the jetty is in the fair-way of the stream.

To Mr. MYBURGH: - Last Sunday week the jetty was fifteen feet within low water mark.  We intend to apply for permission to carry it 150 feet further out so that a frigate may come alongside.  I should have continued completing my jetty had my counsel not agreed to cease operations, on the occasion of the former adjournment.  I did not want to extend it further, 20 mow of land is the quantity mentioned in the tile-deed.  In March of any year we might have ten or fifteen mow more than in September.  I have been some twenty years in Shanghai and have never found high water mark yet.  The whole of the premises of E. A. REYNOLDS are flooded in the month of September.  I hope there is a good deal more than sixty-three mow there now.  The place was filled in by us before the casks were placed there.  I don't think that there has been any gain on the land side of the casks.  We have lost land washed back on to the point.  If we had taken the casks away the point would have extended further.  I have never applied for permission to build a jetty.  I did not know to whom to apply.  I know the Consular Notification mentioned yesterday.  The Harbour Master is mentioned therein, as the person to whom such application should be made.

To Mr. ROBINSON: - The land was bought on the understanding that if it lessened or increased it would not make any difference.  I have been here since 1857.

Mr. ROBINSON then said that was the case for the defendants and proceeded to sum up shortly the evidence adduced for the defence.  He thought that evidence must carry conviction with it.  A number of practical men familiar with the river for many years had proved that there was no great difficulty in navigating the river now than before the erection of the works complained of.  Mr. Bell's evidence shewed there was a navigable channel with room for three tiers of ships to lie abreast.  They were all of opinion that the works of the defendants were n o obstruction.  Mr. Jenkins had proved that Mr. Hockly's memory was deficient when he said he did not see Messrs. Howard & Co/'s wharf built.  Various causes had been suggested both by the practical and scientific evidence, sufficient to account for the increase of Putung Point, respecting which both Mr. Kingsmill and Monsieur Dupre, the engineer to the French Consulate, differed from the prosecution.  Under these circumstances it was clear that the defendants had done nothing to render themselves liable to a criminal charge and were entitled to the judgment of the Court in their favor.

Mr. MYBURGH in reply said he thought the case for the prosecution as opened by him had not been in any way affected by the answers and arguments of his learned friend.  It was a source of satisfaction to him to find that Mr. Reynolds' counsel did not underestimate the importance of the case and that in this they agreed.

The suggestion made by Mr. Robinson, that the prosecution against Mr. Reynolds was instigated by private individuals and not by the Chinese government, was without foundation.  No doubt the interests of individuals had been affected by the acts complained of, but it was equally true that the Chinese authorities were impressed with the mischief caused to the river by the acts of private individuals, and had felt it to be their bounden duty to bring Mr. Reynolds before the Court.  He regretted much that Mr. Reynolds should be the person pounced upon to be made an example to others, but it was absolutely necessary that it should be settled definitely whether landholders were to be permitted to act as Mr. Reynolds had done.  He (Mr. M.) would now proceed to consider the points raised by the defence.

First, it had been contended that the charges were not criminal because Mr. Reynolds had acted under the impression that he had a clear legal right to do so.  This right had been disputed from the first by Mr. Hockly who had, in 1862, protested against the placing of the casks on the bank.  By the law relating to the tenure of land in China he was entitled to exercise rights of ownership over the quantity of land mentioned in his title-deed and no more.  After the protest his right was a moot point, viz: that supposing his client to be entitled by right to every mow of land within the boundaries mentioned in the title-deed, he was not permitted by law to use his own so as to cause an inconvenience to the public.  This prosecutor contended he had done, and that this amounted to a nuisance. 

He would ask, in reference to the objection that the prosecution was bad because it was in the name of the Queen - in whose name a prosecution against a British subject for a criminal act was to be commenced and carried on.

It was true that a legion of witnesses had been called for the defence, giving it as their opinion that the effect of the acts complained of was not such as it was asserted to be by the prosecution.  He had no hesitation in saying that had the prosecutors gone amongst the pilots and ship-masters on the river, an equal number would have been found holding opinions contrary to those elicited that day.

He would leave it to the Court to say whether the opinion of the two naval officers and of Mr. Hockly were not more reliable than those of the other class referred to.  Mr. Clark agreed with the two officers, for he stated that although the Soochow Creek was one of the causes of the chow-chow water, the extension of the Putung Point tended seriously to decrease it.

In reference to the jurisdiction of the Court he contended that in this case it existed beyond a doubt de jure and de facto.  The charges against Mr. Reynolds were offences against the law of England and cognizable by an English Court alone.  In his opening speech he had argued that the Court was also bound to take cognizance of the law of China, by which any obstruction or encroachment upon a public highway was punishable and removable.  He referred to Sir George Staunton's Translation of the Penal Code of China, p. 473, sec. 485.  The objection that the offences charged had not been committed within six months previous to laying of information, was bad.  The laying of the tubs was a continuing offence, for they were not removed until three weeks back.  The mole was recently commenced and still exists. The authorities could only refer to acts commenced and completed more than six months back.

Mr. Robinson contended that no impediment to navigation or diversion of the stream had been caused. He (M r. M.) would not assert that it had actually been diverted, but the river was injured through a bank having sprung up, while for a space of 104 feet the public were debarred from the use of the river.  This, he submitted, was a nuisance.  He would quite the case of Rex v Lord Grosvenor, 12 Starkie's, III, in which it was held that the mere narrowing of the River Thames by the construction of wharves was a nuisance.  The case from Burns' Justice quoted by Mr. Robinson was not applicable in this instance, because the law with regard to fresh water rivers is not applicable to navigable rivers; in the case of the latter the sovereign of England is owner between high and low water mark, and the same law is in vogue in China.

The first point to be considered was whether the extension of the point had caused an increase in the chow-chow water.  Even should the Court rule that it had not, the extension of the point must still be regarded as a nuisance because it narrows the river, en dangers the navigation and must cause further inconvenience to the public.

The next point was whether the mole erected on the bank would cause an unusual deposit of mud, and so increase the point.  If, then, the recent erections amount in law to a nuisance he would ask that the defendants be ordered to remove them.

 

JUDGMENT.

This case comes before me in the shape of a summons, founded upon an information under oath of the Harbour Master of the Wangpoo River and Conservator of the Yangtsze River, calling in fact, though not in form, upon Messrs. Holtz and Reynolds, to show cause why they should not be punished for, and restrained form, depositing earth and stones upon, and thereby filling in a portion of the River Wangpoo, between high and low water mark, contiguous to land in their occupation, which it is said, caused a diversion of the accustomed channel of the River, otherwise interferes with its natural course, to the impediment and danger of the free navigation of the  said River, and is besides opposed to the rights and interests of His Imperial Majesty the Emperor of China.

A good deal was said in the course of the trial, about the form in which this case was brought into court.  It was urged that the Defendants had no sufficient notice of the nature of the acts complained of, and that it was a great hardship on them the H. B. Majesty's Consulate should, on the invitation of the local authorities, be a party to such a prosecution.

With reference to the first assertion, I am distinctly of opinion that the answer of the Defendant Reynolds to the letter of the Consul, entirely rebuts any presumption that might arise from the wording of the summons, for it is impossible to conceive that so full and complete an answer could have been given to a case had not the Defendants not been fully aware of the exact nature and extent of the charge against them.  However defective therefore the summons may have been originally, it is clear that the defendants have not been damnified thereby and their answer and appearance has cured any such defect as that complained of.

I pass now to the second objection, and confess my surprise that it has been made, since were it to be allowed to prevail, the result would be either that the Government of China would be without redress in cases in which British subjects were the wrong-doers, or the Emperor would be bound to appear as a suitor in a Foreign Court in his own soil.  Now, to my mind, it is perfectly clear that Her Majesty in obtaining by treaty from the Emperor of China, the right to retain on Chinese soil such an exclusive jurisdiction over her subjects, has implicitly under-taken that she will compel her subjects to respect the laws of China, as well as the laws of their own country, and by such a procedure also as will not subject the sovereign power to the indignity of appearing on its own soil in the character of a suitor in a Foreign Court, to compel the respect due to such laws.  I think it must be held by those who are bound to carry out the conditions, both express and to be implied, under which the exclusive jurisdiction I have referred to, was granted, that Her Majesty has undertaken upon the complaint to Her Consular officers, to enquire into, and when found reasonable an d just, to remedy any evils and wrongs so complained of.

Another objection urged by the Counsel of the Defendants, was that the complaint had not been made within six months of the act complained of.  The answer to the objection is simply that the act complained of is a continuing act.  The real substantive answer raised by the Defendants, however, may be thus stated:-

1st, That they acted under colour of a reasonable right, believing the soil upon which the alleged obstruction is raised to be their property, wither by express grant, by implication, by usage, or by the custom under which persons holding property bounded by a river have the right to low water mark.

2nd, That to whomever the soil upon which the mole or jetty is raised belongs, it is not in itself an impediment to the navigation of the river.

If, however, by the first point, it is supposed that men are not amenable for their acts, so long as they are committed under what is called "a colour of reasonable right," this is an unquestionable delusion.  All that the authorities mean by the use of these terms is simply this, that where a man has done an act which upon consideration  of all the circumstances he was justified in assuming he had a right to do, the Court will leave those whose rights he may thus unwittingly have infringed, to their civil remedy against him; and if, in the case before the Court, the parties whose  rights it is alleged have been in fringed by the acts of the Defendants, had been private parties, in all probability the Court might, on the Defendants showing that the had some reasonable ground for believing that they had the right to do what they had done, have left the complainants to their civil remedy.  But the charge made is not made by private individuals, not has it reference to private rights, but it is made  for having caused a public inconvenience, besides having infringed upon the rights and interests of His Imperial Majesty.  But even if the Defendants has succeeded in shewing that the land on which this Mole or Jetty is constructed ought by reasonable implication of law to be considered as their property, still it infringed the rights of the public to the full and free navigation of the River, they would have no right so to use even their own property as to cause such a public inconvenience.

I pass now to the consideration of the circumstances under which the Defendants set up "a colour of a reasonable right," to consider the land upon which the Mole or Jetty is constructed as their own property and part and parcel of the land bought by them.

The lease under which Messrs. Holtz and Reynolds hold their land described the latter as "measuring in area twenty now," and as being bounded on the North by the Wangpoo river, on the South by Chinese properties, on the East by a public road, and the West by the Wangpoo river, and the purchase money is fixed at so much cash, being at the rate of 46,612 cash per mow, while the annual rent reserved to the government is equally fixed per mow, namely at 1,500 cash per mow.  It is proved in evidence that the defendants are actually in possession of above 86 mow, and that of this space there is about 53 mow of solid land unaffected by tides, &c.  It is not pretended that the construction is built upon any portion of the 20 mow, neither is it pretended that the defendants have paid one cash additional rent for the additional ground now actually in their occupation, and as a matter of fact it is true that the mole complained of is built between high and low water mark, or that the soil between high and low water mark is their property.  The latter supposition is entirely set at rest by the fact that their Title Deed or lease is for 20 mow, and for 20 mow only, and that they have more than double that amount of dry land without encroaching on the soil or bed of the river between high and low water marks, and the evidence they have brought forward is that it is a customary  right, and one sanctioned by usage for all persons having a portion of their property bounded by a river such as the Wangpoo to do what they like with the soil of the river  between high and low water marks, does not certainly bear out this asserted custom or usage right. 

The first wirness produced was Captain Bennett; he says that he bought land  for Messrs. Sassoon, and that on measuring it with the assistance of a Chinese official, it was found that there were not the  quantity of mow as dry land stated in the Title Deed, and so that to make up the quantity they had  to include a portion of the soil between high and low water marks, but how this is evidence of a customary right to consider land between high and low water  marks the property of the owner of the adjacent dry land, double the amount of mows mentioned in the Title Deed, is I confess, beyond my comprehension.  If this evidence establishes anything, it establishes this, that the Chinese law looks to measurement, and to measurement only, and that when the quantity of land mentioned in the Title Deed is not to be found high and dry, it presumes that a portion of the quantity has been covered by water, and therefore wades as it were, into the water to find it.

The next witness on this point is a Mr. Gamble, of the American Mission Press.  He tells us that he reclaimed some land between high an d low water marks, and that he applied for a Deed granting him the land he originally held and the land reclaimed, that the Chinese authorities at first refused on the ground that the new measurement that he sought to place on the Deed was more than that of the old Deed, - that they came and inspected the land in consequence, and that ultimately they granted him the extra measurement.  In other words, they did that which it is competent for all authorities to do, - namely, yielded to a request made; but surely this cannot be held to be evidence of a right such as that contended for by the Defendants in the present case. In deed, I have very little doubt but that had Mr. Reynolds followed the example of his witness, and asked, there would have been little, and ultimately perhaps no difficulty in his obtaining the same favour as was granted to Mr. Gamble.

Mr. Jenkins, a third wirness, states that his Title Deed expressly mentioned land to low water mark, and his evidence is therefore quoted beside the question, for it would be absurd to say that because Mr. Jenkins has a grant of land to low water mark, therefore another person who has no such grant, but on the contrary has only a grant of a limited quantity of land which is beyond high water mark has an implied grant to low water mark.  To put the same argument with different facts:- Because I buy land bordering a River, and also the right to fish on the river, therefore anyone who buys land similarly situated, is to be considered as having bought the same right, although it is not included in his purchase, and although he has not paid the price if it.

The second portion of the answer of the Defendants has reference to the acts complained of being an impediment to the free navigation of the river.  The evidence of the prosecution goes to show that whatever impediment is raised on the bank of the river in the shape of a solid construction, which causes on either or both sides of it a deposit, is an obstruction to the navigation, because it tends to narrow the river, by altering the character of the bank.  Some of the witnesses were of opinion that any erection which trended to increase the Outing Point, tended to increase the chow-chow water, which in itself constitutes a great impediment to the safe navigation of the River. The evidence adduced on the part of the Defendants, on the contrary, went to show that notwithstanding the increase of the point, the chow-chow water had decreased.  The  witnesses called by them all declared that this mole could have no practical influence on the navigation of the river, one wirness modifying his opinion to the extent that it could have no influence of the navigation of large ships, however much it might possibly affect cargo-boats and sampans.

The Law, however, is clear on the subject.  The amount of inconvenience or of impediment is not the criterion of whether the act done is wrong or punishable.  So long as an inconvenience to the navigation of a navigable river is caused or likely to be caused either on the bank or in the stream, it matters little the amount of the danger caused, or of the impediment produced.  It is an interference with the rights of the public, although it may be perhaps in some cases of an almost imperceptible character.  Thus it has been held that narrowing a river is such a wrongful interference with it, although such narrowing may not perceptibly interfere with the navigation of the River, and it cannot be denied that placing earth and stones between high and low water, thereby altering the character of the bank, and converting its natural slope into a raised bank, is an interference, for it tends to, if it does not actually prevent boats drawing but little water, such as sampans, from navigating over it at high water and lessens the amount of slack water.  It is no answer to say that practically sampans and such boats have still ample space left.

No one of his own proper motion has the right on a navigable river to establish himself judge of what is sufficient space or not left to the Public, or what is or is not an interference with the navigation of a river.  He has no right to take upon himself to convert the space between high and low water mark, by raising it into dry land at high water mark or even to diminish the depth of the water over it at high water. If he so raises it as to make it dry land, he narrows the river, because he converts what was water at high water mark into land, or if he raises it, so as to diminish the depth of the water, he interferes with the navigation of such boats as might be prevented by reason of the diminished depth of water from traversing it.

In Law this is an interference and a nuisance.  This is the Law of England, and I have equally little doubt it is the Law of China.  Indeed it is so evidently founded on common sense, that an individual should be restrained from doing anything he likes with what is not his, and which if permitted might injure the interests of the Public, that it hardly requires consideration, whether it is the Law of China or not, for it must be, as it appears to me, Law everywhere and in any State which pretends to Government of any kind.  But after consulting the Books of the Law for the Government of China, I am decidedly of opinion that the 37th Chapter, which relates to Highways, had reference equally to Rivers that are navigable, and in this view I am supported by authorities who have greater knowledge and better opportunities than I have had of forming an opinion.

I think it is clear that from what I have said the Defendants have failed in their attempt to justify their acts.  It is clear that the land on which the mole is built is not their land.  It is equally clear that the mole itself is what the Law considers an obstruction, in other words, a nuisance.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School