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Colonial Cases

Saunders v. Bell, 1884

[leases]


Saunders v. Bell


Supreme Court for China and Japan
Rennie CJ, 17 March 1884
Source: North China Herald, ? March 1884

17th March 1884
Before Sir Richard Temple Rennie, Chief Justice.
WILLIAM SAUNDERS v. FREDERICK H. BELL.
  Mr. Dowdall appeared for the plaintiff, and Mr. Wainewright for the defendant.
  The pleadings were as follows:-
  The petition of William Saunders, of Shanghai, photographer, the above named plaintiff, shows as follows:-
- By a deed of lease dated 1st day of April 1883 made between George and Samuel Wills of the one part and the plaintiff of the other part after reciting that the said George and Samuel Wills were renters of a lot of land registered at the British Consulate at Shanghai, and the lot of land registered as aforesaid and therein together described as bounded on the south by the Bund and the river (meaning thereby the Woosung River which is now called throe Soochow Creek, with all rights easements and appurtenances are expressed to be demised to the plaintiff for ten years from the date of this lease.
- About the date of the  said lease the plaintiff entered into possession of the land and premises intended to be thereby demised and he has (subject to rights of way of the public over part now known as the North Soochow Road and over a landing place and the bed of the Creek to low watermark) thence continuously occupied and had under his control the said land and premises including accretions as from time to time made thereto by alluvion and by the Creek narrowing until lately interrupted by the defendant.
- By another deed of lease dated the 16th of August 1876 made between Howell Wills of the one part and the plaintiff of the other part the same premises were by a description referring to them as being those in possession or under the control of the plaintiff demised to him for seven years and three months from the 1st of October 1876 with the usual covenant for quiet enjoyment.
- By another deed of lease dated the 23rd of October 1882 mad between the same parties as the last mentioned lease the same premises were demised to the plaintiff for fifteen years from the 1st of January 1884.
- The plaintiff will produce the said deeds and asks leave to refer to the whole of the contents.
- The plaintiff has from time to time since the date of the last-mentioned lease for the purposes of the business of a photographer carried out by him on the demised premises used the said landing place and foreshore for loading and unloading materials and stores and other goods.
- The plaintiff has also from time to time during the last-mentioned period taken mud from the foreshore for filling in other places of the said land and stored goods and built sheds upon and made use of the foreshore in various ways and places and from time to time repaired steps at the said landing place and repaired the pathway to the low water mark.
- The defendant has lately by himself or his workmen entered upon the said foreshore and driven a row of piles in the bed of the Creek upon the front or in front of the plaintiff's premises about thirty yards outside the said landing place and has heaped mud on the foreshore so that the plaintiff cannot so conveniently as he could before use the said landing place and so that the plaintiff is deprived of the control he had before over the foreshore.
- The defendant intends to fill up the space between the piles and the bank of the Creek thereby covering up the whole of part of the said foreshore and landing place and though he may provide another landing place it will be further from the houses on the plaintiff's land and the drop from the shore to the water will be greater.
- The plaintiff contends that the foreshore is included in the demise to him.
- The plaintiff contends that during his leasehold term, in the premises the defendant cannot have or acquire any right to possession of accretion by alluvion or otherwise to the premises.
-  The plaintiff contends that independently of his leases he has acquired by long use a right to use the said landing place and the foreshore of the Creek to low water.
- The defendant is now the plaintiff's landlord of the premises and derives his title through the said George, Samuel and Howell Wills.
The plaintiff therefore prays:-
That it may be decreed that the defendant do forthwith remove the piling and other obstruction upon and in froint of the said foreshore and premises.
That the defendant may be decreed to pay to the plaintiff Tls. 100 for damages.
That the defendant may be decreed to pay to the plaintiff the costs of this suit.
That the plaintiff may have such further or other relief as the nature of the case may require.
  In answer to the said petition the said defendant says as follows:-
-The defendant admits that the materials contained in the 1st paragraph of the petition are true.
- With reference to the 2nd paragraph of the petition defendant admits that from the date of the lease in the said petition referred to until the termination of the said lease the plaintiff was in possession of the land and premises intended to be thereby demised and (subject to the rights in the said paragraph mentioned or referred to) occupied the same land and premises or had the same under his control but save as aforesaid the defendant denies all the statements contained in the said paragraphs.
- With reference to the 3rd paragraph of the petition the defendant admits that by a deed of lease dated the 16th of August 1876 made between Howell Wills of the one part and the plaintiff of the other part the said Howell Wills demised to the plaintiff certain premises by the description following, namely:-
  All that piece or plot of land situated at the junction of the Hwangpoo and Seward Road and numbered 2, 3 and 4 on the Municipal Plan of the Hongkew Settlement of Shanghai together with the dwelling house and the outhouses pertaining thereto erected upon the said piece of land and fronting to the said Hwangpoo Road the whole premises being at present in his possession or in his occupancy or under his control,"
to hold for seven years and three months from the 1st of October 1876 with the usual covenant for quiet enjoyment but save as aforesaid the defendant denies all the statements contained in the said last-mentioned paragraph.
- The defendant admits the truth of the statements contained in the 4th paragraph of the petition.
- The defendant denies the statements contained in the 6th and 7th paragraphs of the petition and says that if the plaintiff used the landing place and foreshore therein mentioned and performed the act therein mentioned he so used the said landing place and foreshore and performed the said acts (so far a such use and performance respectively were known to the said Howell Wills or to the defendant) by the leave and license of the said Howell Wills, or of the defendant.
- With reference to the 8th paragraph of the petition the defendant admits that he has lately by his workmen driven a row of piles in the bed of the Creek in front of the plaintiff's premises some distance outside the said landing place and that he has heaped mud on the foreshore but save as aforesaid he denies all the statements contained in the said last-mentioned paragraph.
- The defendant admits the truth of the statements contained in the 9th and 13th paragraphs of the petition.
- The defendant says that the several contentions put forward by the plaintiff and stated in the 10th, 11th and 122th paragraphs of the petition are unfounded in fact and in law.

A Jury had been applied for, and a number of Jurymen appeared in answer to the summons.
  His Lordship said - You have applied for a jury in this case, Mr. Dowdall.  I have glanced at the pleadings and I must confess I don't see what the jury will have to do in the matter; and it would be a pity to keep five gentlemen sitting here to listen to a legal argument on the effect of leases.
  Mr. Dowdall said that had occurred to him, but he would like to state what questions he thought might go to a jury; and if his Lordship was satisfied to undertake them he had no objection.
  His Lordship - What occurs to me at any rate is that this is practically a species of application that would be made to the Chancery Court in the old days, or now to the Chancery side of the High Court of Justice; and, as I understand the practice in such cases, the case would be heard before a Judge, and if there was any issue of fact, that would be reserved to be tried by a jury separately.  It seems to me that in the first instance we had better discuss the general question of law and the application for relief, and leave any question of fact to be tried hereafter, and we may summon the jury of it is found to be necessary.
  Mr. Dowdall agreed that that would be the best way; but he had given notice for a jury at the outset because if he had not done so it would be impossible to get one.  The consideration of a written contract was of course for the Court alone, but, as stated in "Chitty on Contracts," the meaning of words and surrounding circumstances must be first ascertained by the jury;  the jury were bound to taken into consideration of the subject any additional words or circumstances that might be referred to.  In this present case there were very few words in the lease to consider, and as they stood they appeared to be very simple; and if extraneous circumstances were not to be considered there would be very little for the Court to do in the matter.
  His Lordship -That will be found out as the case goes on, but in the first place we will deal with the legal documents without putting the jury in the box.  If, as the case progresses, certain issues of fact require to be decided, on which it is desirable to know the opinion of a jury, we will adjourn the hearing for that purpose and summon a jury for a future day.
  Mr. Wainewright confessed he was unable to imagine what his learned friend wished His Lordship to leave to the Jury.
 His Lordship - I think we may relieve the jury of their attendance here today; after the case progresses we can summon them for a future day if necessary.
  Mr. Dowdall having agreed,
  His Lordship (addressing the group of jurors) said - Well, gentlemen, we need not trouble you to attend further today; if you are required to attend again, notice will be given.
  The Jurors then retired.
  His Lordship continued - I am only too glad to have a jury to assist me to settle an issue of fact, but to keep five gentlemen here listening to the technical terms of half a dozen legal documents and the arguments based upon them would hardly be fair.
  Mr. Dowdall then read the petition, and extracts from the answer of the defendant.  He said the first question was whether the plaintiff's present lease included the foreshore.  The question to be decided would be whether the lease included the land to the edge of the creek, and, if it did include that, whether the fact of its including land to the edge of the Creek entitled the plaintiff under Chinese law, or under English law, to some right to any accretion which might accrue during his term, excluding the defendant from such accretions to the end of the plaintiffs term.
  His Lordship asked if that was not the whole question.
  Mr. Dowdall said no; the next question was whether the lease included the land up to the edge of the creek, which was bounded by a road; and the second question was whether, if it included the land up to the edge of the creek, the plaintiff was entitled to some interest in the accretions formed by the creek.  Of course it would be a question of evidence whether the landlord was entitled to these accretions, and the tenant's right would be subject to that.  The question would be first whether the landlord was entitled by virtue of his ownership of the adjoining land, to these accretions, and secondly, whether the tenant was entitled to the use of them during the term of his lease.
  The third question was whether the plaintiff had not acquired by long usage a right to use the landing place; the fourth was whether he was entitled to an injunction; and the fifth whether he was entitled to damages.  He quoted "Chitty on Contracts" and cited several cases to show that he was entitled to call evidence as to extraneous facts, apart from the consideration of the interpretation to be placed upon the provisions of the lease.
  His Lordship understood Mr. Dowdall to mean that for the purpose of investigating these extraneous facts a jury was required.
  Mr. Dowdall said he only wished to submit that there were facts to be tried.
  His Lordship thought it would be more convenient for Mr. Dowdall to proceed with the case, putting in the documents on which he relied.  Then, when they came to the extraneous facts, they would decide whether it was necessary to have a jury or not.  For his part he was strongly inclined to think that it was not worth troubling a jury at all, and he thought they might say they would do without a jury.  It appeared to him that even if Mr. Dowdall proved his right to produce evidence as to these extraneous facts, there would be very little dispute about them one way or the other.
  Mr. Dowdall said he was not in favour of a jury any more than his Lordship; but at the same time he thought there would be considerable dispute as to the facts.
  His Lordship said in any case he thought it would be better to go on with the case.  Then, if necessary, they could do as the Chancery Court did in old days and reserve certain questions of fact to be tried by a jury.
  Mr. Dowdall and Mr. Wainewright assented to this arrangement.
  Mr. Dowdall then said the plaintiff was now holding a piece of land on the Soochow Creek under a lease, the last mentioned in the petition, dated the 23rd October, 1882. He then read the lease; which was "supplemental and intended to be annexed to a deed of lease (hereinafter called the principal deed)," and referred to "the piece or plot of land comprised in and demised by the principal deed," namely the lease of 1876. The lease of 1882 referred to the defendant as "attorney for the owner of the property."
  His Lordship -Do I understand that Mr. Bell in this case is simply the attorney of the owner of the property?
  Mr. Wainewright - He has become the registered owner of the property since the lease was granted.
  Mr. Dowdall, continuing, said the lease which he had read referred to another lease, dated the 10th August, 1876, in which the parcels were described as follows:-
All that piece or plot of land situated at the junction of the Whangpoo and Seward Roads, and numbered 2. 3 and 4 on the Municipal Plan of the Hongkew Settlement of Shanghai, together with the dwelling house and the outhouses pertaining thereto erected upon the said piece of land and fronting to the said Hwangpoo road, the whole premises being at present in his possession or in his occupancy, or under his control.
The plaintiff had held the property for a long time previous to that, under a lease dated 1st April, 1863.  In that lease the parcels were described as follows:-
All that lot, piece or parcel of land, registered as No. --- aforesaid, and more particularly described in the printed copy of the official translation of the title deed to the same thereto annexed, with all rights, easements and appurtenances, together with all erections and buildings which at any time hereafter during the term hereby granted shall be erected and built on the said lot of land hereby demised or any part thereof, and all rights, easements and appurtenances whatever appertaining thereto.
The lease was dated 1st of April, 1863, but was not signed till 10th June, 1863, and there was a note written on that date by Mr. Underwood:- "The No. of this is 3 as per Mr. Medlin's plan, and the boundaries are: East, lot No. 2, Farr & Co. West, No. 4; North, Joss House; South, Bund and the River."
  Mr. Dowdall then asked Mr. Wainewright to produce the original title deed.
  Mr. Wainewright said he had not got the title deed - at least, not in his capacity of defendant in this action.  The title deed was in the hands of a mortgagee, fort whom he held it as agent.  But he contended that the title deed had nothing to do with the present case, and that the plaintiff was therefore not entitled to ask for it.
  Mr. Dowdall said the title deed was referred to in the lease of 1864 which he had just read, as to some extent describing the property.  The defendant had admitted that there was an original title deed, and he called upon him to produce it.
  His Lordship said the title deed appeared to bear upon the case as describing the property.
  Mr. Wainewright said he had not got it in his capacity as defendant in this suit; the defendant had not got it in his capacity as landlord; and he had had no notice to produce it.
 His Lordship said in that case the question narrowed itself to one of the length of the notice. The deed would have to be produced somehow.
  Mr. Wainewright contended that the deed was not material to the case.  It had nothing to do with the present lease; the lease which referred to it was a lease which expired years ago.
  His Lordship said it appeared to him that all the leases were incorporated together - one referred to the other.
  Mr. Dowdall said he understood that it would be contended by the defendant that there was no connection between the first and second leases.  The lease of 1882 referred to the leased of 1876; but he admitted that the lease of 1876 did not directly refer to the lease of 1863.  However, the lease of 1876 referred to "the whole premises in his possession                        or in his occupancy or under his control." Now the premises in his possession were those which he held under the lease of 1863.  The lease of 1876 did not say how much land it referred to; it did not describe the property definitely.
  Mr. Wainewright said the lease of 1876 did describe it by reference to a plan.
  Mr. Dowdall said the plan did not show that it referred to land at all; it possibly only referred to houses.  The property was not definitely described at all in this lease of 1876; it might be a thousand mow or one mow; the lease left it an open question.  He would therefore have to bring extraneous evidence to explain it. The lease referred to land "at present in his (plaintiff's occupation," and he (Mr. Dowdall) would have to bring extraneous evidence to show what land was in the plaintiff's occupation at that time, and consequently what land it was intended to demise.  He proposed therefore to prove the lease of 1864 and the title deed as extraneous evidence showing what property was in the plaintiff's occupation when the lease of 1876 was made.
  Mr. Wainewright contended that the lease of 1876 was really the only lease to which the Court had to look, the present lease being merely an extension of that of 1876.  If his Lordship would look at the lease of 1876, he would see that the description given there of the premises leased was perfectly to show what those premises were.  There was no ambiguity about it; nothing could be clearer than the description given. It described the property as "that piece or plot of land situated at the junction of Whangpoo and Seward Roads, and numbered 2, 3 and 4 on the Municipal plan of the Hongkew Settlement of Shanghai." The inference from this was that the property was bounded on one side by the Whangpoo Road and on another side by the Seward Road.  The boundary towards the Creek is the Whangpoo Road and not the River.  The whole of the property was at that time in the occupancy of the plaintiff.  The lease was apparently not drawn by a lawyer, and the words "or under his control" were probably surplusage; but he (Mr. Wainewright) considered that property "under his control," as distinguished from property "in his occupancy; was intend to refer to property which had been sub-let by the plaintiff, in distinction to that which he was actually occupying.
  The description of the premises was, he contended, perfectly unambiguous, and the plaintiff had no right whatever to go back to a former lease.  The plaintiff had got a lease which he was holding under at the present time - that of 1882 being a mere prolongation of that of 1876 and he had no right to travel beyond that time.  The title deed which was referred to only in the first lease had therefore nothing to do with this case, and he (Mr. Wainewright) objected to produce it.
  Mr. Dowdall said the lease of 1876 did not say how much land there was, or on what side of the junction of Whangpoo and Seward Roads it lay.  It did not say what lands were in the occupancy of the lease; it only referred to numbers on the Municipal plan; and these numbers, as his Lordship would see when the plan was produced, did not help them a bit.  He should be able to show that the lines on that plan did not at all coincide with the boundaries of the land at that time in the occupancy of the plaintiff.  Mr. Dowdall then again quoted from "Chitty on Contracts" and cited further cases in support of his contention that he was entitled to produce extraneous evidence to show that if there was a latent or a patent ambiguity in the lease, he was entitled to produce extraneous evidence as to his meaning.
  His Lordship took it to be quite clear that if there was an ambiguity in the lease Mr. Dowdall was entitled to refer to other documentary or parol evidence.   
     Mr. Wainewright said the ambiguity must be an ambiguity connected with the subject matter of the suit and he contended that there was no such ambiguity in the lease of 1876; It would be a mere waste of time to call evidence, for instance, as to whether a cook-house in the rear was or was not included in the lease.  The question was as to whether or not the foreshore of the Soochow Creek was included in the lease; and submitted that there was no ambiguity in the lease on this point and therefore extraneous evidence was unnecessary.  He admitted that the lines in the plan showing the boundaries at the rear of the premises, might be a little confused; but the boundaries in the front, facing the Soochow Creek, were perfectly clear.
  His Lordship said it was clear from the plan that the Whangpoo Road was not in the plan; but it was not so clear whether the foreshore was included.
  Mr. Wainewright thought any conveyancer would say that there could be no doubt that when a piece of land was described as at the junction of two roads, it must be bounded by those two roads.
  His Lordship - Would that prevent the lease from acquiring right over a portion of the property to and annexed to it, as it were?
  Mr. Wainewright - Yes, my Lord; certainly.  There is nothing said in the lease about appurtenances even.  There is nothing but the simple statement that it is shown on the plan and is bounded by these roads.
 His Lordship- Suppose these buildings had rights attached to them to take water from the creek half-a-mile off, for instance, those rights might go with the lease I apprehend.
  Mr. Wainewright - If they were rights to which they were entitled apart from the lease altogether, certainly. But here there cannot be an easement belonging to the land.  It would have to be an easement apart from the lease and there cannot be an easement.  I take it for granted that my learned friend is not going to prove that there was an easement attached to this land before 1863, because the petition says he has acquired the right by long usage.
  His Lordship - He claims that the land acquired this right by reason of his occupancy.
  Mr. Wainewright - He could not acquire an easement, as against his landlord, by occupancy.  If he is tenant of one piece of property he cannot acquire an easement of another piece of property belonging to his landlord.
  His Lordship, after examining the Municipal plan of Hongkew said he did not feel inclined to take that as conclusive as to the boundaries.
  After some further discussion,
  His Lordship said - My impression is, Mr. Wainewright, for the moment at any rate, whatever conclusion we may come to the title deed must be produced.  I am clearly of opinion that it is safer to admit it for the present; I think Mr. Dowdall has laid sufficient foundation for ordering it to be produced, though it is possible that I may hereafter find it necessary to reject from my mind anything out of it.
  Mr. Wainewright - It will throw no light on the matter; I can answer for that.
  Mr. Dowdall - Then we have got so far, that some extraneous evidence is to be admitted.
  His Lordship - I do not think so. It is merely a reference made from one document to another.
  Mr. Dowdall - Then I will try to explain the reasons why extraneous evidence of other circumstances should be taken.
  After further discussion his Lordship consented to hear evidence.
  Mr. Dowdall stated the facts that he proposed to give in evidence.  He said in 1863 a circular was sent round in Shanghai stating that this land was to be let, and the plaintiff then entered into negociation with Messrs. W. R. Adamson & Co., who were agents for the owners.  At the same time, an advertisement was published in the Daily Shipping and Commercial News, in which the land was described as "Water-frontage lots on the Hong-que side."  Then the lease of 1863 was made. It was dated the first of April; but it did appear to have been signed till the 10th June; because there was some further description of the premises written on the second page signed by Mr. Underwood, who was then, he believed, chief of the firm of Adamson & Co, agents for the landlords.  The lease referred to the property as being "that mentioned in the Chinese title deed," and it gave an extra description of the land by saying it was bounded on the south by the bund and the river.  Taking these things together, it was to be inferred that at the time the plaintiff got a lease of land with a water-frontage. He entered into possession of it, and he would state that he used foreshore for carrying materials over, that he made a path over it and steps on it, and that he brought boats alongside as he was entitled to do by this lease.  This went on a long time without his rights to the frontage being interfered with in anyway and when the mud silted up he repaired his path and put in new steps.  
  The lease expired in 1873, and negociations were entered into for the renewal of it. But there was some difficulty owing to the owners of the property or those who were interested in it, being infants and to there being some doubt as to the persons in whom the power was vested of renewing the lease.  It was therefore agreed that the plaintiff should go on his old terms until a new lease could be made.  Then came the lease of 1876, and here arose the question as to what land was demised by that lease.  After the lease of 1876 was made the plaintiff still made use of the foreshore, and at one time he let part of the land to a tenant on the terms that he should be allowed to use the foreshore for the purpose of carrying on his business of repairing boats.  The plaintiff had frequently had boats removed from in front of his property and kept it clear; his occupancy or use of the foreshore dated back for twenty years, and had been continued up to the present time.
 His Lordship asked if the plaintiff claimed an exclusive occupation of the foreshore?
  Mr. Dowdall said yes; subject to the right of the public over the roadway.  And in addition the plaintiff claimed, as one of the public, a right of way over the foreshore.
  Mr. Wainwright objected that it was not stated in the petition that the plaintiff claimed as one of the public.
  Mr. Dowdall said that in the petition the plaintiff claimed that independently of his lease he had acquired by long use a right to use the landing place and foreshore. If, however, this was not clear enough, he would ask his Lordship's permission to insert the words "as one of the public."
  M. Wainewright submitted that the plaintiff could not as one of the public, claim a right as against his Landlord.
  William Saunders was then called and examined by Mr. Dowdall.  He said he was a British subject, plaintiff in this suit, and by profession a photographer, carrying on business at 3 Whangpoo Road, which was on the premises referred to in this suit.  He held the property under a lease from Mr. Wills, dated the 23rd October, 1882, to which was annexed a previous lease, dated 10th August, 1876.  He originally became acquainted with the property, he believed by means of a circular, issued by W. R. Adamson & Co., in 1863 and he entered into negociations with Mr. Underwood, of that firm.
  A volume of the Daily Shipping and Commercial News, of 1863, was handed to the witness, who said he recognized an advertisement which appeared in the issue of the 17th April as referring to the property in question.  The advertisement read as follows "To Let, on Ground Lease, for a period of ten years (for European residents only) water-frontage lots on the Hong-que side, adjacent to the 'Astor House.' Apply to W. R. Adamson & Co."
  His Lordship - What do you call the paper? I have never heard of it before.  Is it a Shanghai paper?
  Mr. Dowdall - It was a Shanghai paper, published every morning.
  The Plaintiff, continuing his evidence, said the original lease was finally settled about the 10th of June, 1863; but he took possession about the end of March in that year.  What he went into possession of was a piece of land, with a bungalow, and rights of water-frontage.  The bungalow was very old and delapidated, and I was not to be mentioned in the lease.  He (plaintiff) was to build a new house of the value of 3,000 Pounds.  He commenced building as soon as possible after entering into possession and he built up a rough mud jetty or landing-place, and landed all his materials there for building the new house.  He commenced that landing place and pathway about May or June, 1853, and they existed in nearly the same place at the present time - not exactly the same, because the Municipal Council had bunded out the foreshore, and the pathway might be a little to the right or left of the old situation.  About twelve years ago the Council took up his (plaintiff's) old bunding, made the road wider, and bunded out for about ten or twelve feet, and a new pathway and steps were made over the slope.  He had from the first exercised the right of ordering away boats which came to repair alongside the foreshore opposite his premises; and two years ago he built a workman's shed on the foreshore. It was about sixty or seventy feet long by forty wide; it remained there for nearly a year.  He had also continually taken mud from the foreshore.  
  Mr. Wainewright - Is that used in photography? (Laughter.)
  At noon, the Court adjourned till 1.45 p.m.
  The Plaintiff was then re-called and further examined by Mr. Dowdall.  Mr. Dowdall handed him a copy of the Municipal plan of Hongkew, and asked him to mark off the boundaries of his premises on that plan. The plaintiff did so.  He said the plan did not show where the road known as Broadway now runs.  That road, was made about twelve years ago - perhaps longer.  It was certainly before 1876.  His (plaintiff's) lease of 1876 described his property as Lots 2, 3 and 4 on the Municipal plan; but Lot 4 included part of Broadway, and consequently the plan did not accurately describe the eastern boundary of the property.  It did not more accurately describe its southern boundary.  The eastern boundary, when the lease was renewed in 1882, was on the west side of Broadway, as in 1876, and would thus run through lot 4.  Up to the time when the defendant interfered with a plaintiff's right to the foreshore, no one had questioned his right to it. He frequently requested the police to order boats to move away and they always did so.  Just before Christmas last, a boat came there for repairs.  He told a policeman to order it away; but the men would not take it away.  Plaintiff then saw Inspector Fowler at Hongkew Police Station, and the boat was ordered away.  A tenant who rented a house from him asked him if he would allow boats to be repaired on the foreshore, and he gave him permission to have them repaired there.
  When he took the property in 1863, his business was the same as now - that of a photographer.  There was a great advantage having an open frontage for that business; in fact, it was very valuable.  It would do him great harm if the foreshore were built on.  It would stop the view.  If, for instance, a Taotai's procession, or any other procession passed over the bridge he could photograph it. He produced a view which he took six years ago; it had been worth $500 to him.
  Mr. Wainewright - Does not this refer to an injunction to restrain building? The building would not interfere with the view; this is premature.  We shall have another action, perhaps.
  The plaintiff, continuing, said another advantage was that the premises at present commanded a full view of the river, and he could get a great deal more rent. An open southern frontage was a great advantage.
  Mr. Wanewright - I will admit all this to any extent.  We should all like a large open space in front of our houses.
  The Plaintiff, continuing, said Mr. Underwood, as agent for the owners, Charles Wills and Samuel Wills, signed the original lease in 1862. When he got possession in 1863 about two thirds of the river road - it as then called the Hongkew Bund - was made.  He first put down stone steps on the foreshore about twelve years ago.  He built a rough landing in 1863, and then put some rough stone steps down some twelve years ago, because the mud was always washing away.  He kept these steps in repair until about four years ago.  Then, four years ago, the facing of the bund was mud, and was continually washing away, and the Municipal Council faced the slope, from the bund to the foreshore with rough stones.  Plaintiff told the Municipal Council that the steps must not be interfered with.  The Surveyor said "I suppose if we make good permanent steps you will have no objection?"  Plaintiff said, "Of course not," and new steps were put down exactly on the line of the old ones.  
  He had no discussion with anyone else belonging to the Municipal Council about his rights to the foreshore.  He never asked for permission from the council to erect scaffolding.  In 1882 Plaintiff applied to the council for permission to fence in the pathway on Broadway next to his property, and at the same time he mentioned to Mr. Clark, the Municipal Surveyor, that he was going to erect a shed for the workmen on the foreshore. Mr. Clark said, "I do not think he Council will grant you a permit for that" and Plaintiff replied, "I am not asking for a permit, because I consider I have a right to build it without a permit." No permit was granted or asked for; but he built the shed and was not interfered with.  When Mr. Underwood left, he believed, Mr. Bell succeeded him as agent - in about 1865 or 1866.  Mr. Bell had been once or twice; but he had been here principally since then.  The 1863 lease expired in 1873.  Plaintiff was at home in the latter part of 1871 and saw Mr. Bell at home about its renewal, and it was arranged that the lease should run on till 1876 upon the same terms.  
  The 1876 lease contained more land than the 1863 leas.  There was one lot which he had used for a garden from 1862; it was not included in the lease; but he was allowed to use it on condition that he should give it up if I should be let.  It was never let, and he had possession of it ever since.  This piece of land was included in the lease of 1876, and that was the only difference between the property demised to him by the original lease and that demised to him by the lease of 1876.  He had always occupied the whole of the land; but one part was not formally leased to him.  At the date of the 1876 lease there were more buildings on the land than those described in the lease.  There was a row of cottages in the rear of the big house.  They were marked on the Municipal plan.  They were old and were to be pulled down; they were past repairing.  He had no legal adviser as to the forms of any of the leases.  Mr. Bell asked him if he had any objection to Mr. Wainewright drawing up the lease of 1882, and Mr. Wainewright drew it up. Plaintiff had no idea he was giving up any part of the property h had formerly occupied when negotiating for new leases; quite the contrary. The leases were looked upon by him as renewals; it was never suggested to him that he was giving up any part of the property. The landlords never exercised any rights over the foreshore till they commenced building a few weeks ago.  They had now blocked up the pathway to the river and partly covered the steps. There had been negotiations between him and the defendants to settle the matter.
  Mr. Dowdall put in some letters which had passed between the parties in negotiating for a settlement of the difficulty.
  Mr. Wainewright said any offers which were made were made without prejudice, and he thought it was not usual to read or refer to offers made without prejudice.  However, he had no objection to the letters being read.
  Several letters were then put in.
  The Plaintiff was then cross-examined by Mr. Wainewright.  He explained that when he said he entered into possession of the rights of foreshore he meant that he built a landing-place. There was a road in front of the bungalow in 1863; but it had been widened since then.  It was widened from the Creek side. He did not get any compensation from the Council for giving up part of his foreshore for the purpose; he did not ask for any, because the widening of the road was a decided improvement. He believed that the part of the Broadway from the Garden Bridge to the present Seward road was called Seward Road in 1863; and he had no doubt that when the lease mentioned land "at the junction of Whangpoo and Seward Road it meant the road now called Broadway.  The road now called Broadway was made more than twelve years ago, and it cut through that piece of land which he was occupying on sufferance, and which was not mentioned in the lease he then held.   The foreshore was wider at the present time than it was in 1863; but he could not say how much.
  The pathway which he made over the foreshore was formed of rough stones which he put down for the water coolies to walk over when fetching water.  The boats which he ordered away were principally Chinese boats; but some were foreign boats.  The mud which he took from the foreshore was partly for filling in the ground when building; but chiefly for gardening purposes as plaintiff was fond of flowers.  No complaint was ever made to him about his carrying away the mud either by the Consuls or by the Chinese authorities or by anybody else.  He never had any conversation or discussion at any time with Mr. Bell about the foreshore until this question turned up the other day.
  Re-examined by Mr. Dowdall, the plaintiff said the numbers 2, 3 and 4 in the Municipal Plan of Hongkew did not at all indicate he extent of the property demised to him.  The lines on the plan did not at all correspond with the boundaries of his property.
  A number of letters were put in by Mr. Wainwright and Mr. Dowdall. One of these was a letter from the defendant to the plaintiff, dated 11th May 1876, referring to the lease which was concluded in August of that year.  The letter was as follows:-
Dear Sir, - In reply of your letters of the 8th and 10th inst., and in reference to the conversation we held respecting the premises now in your occupation and the Garden Lot adjoining, the most favourable terms I feel justified in offering to you now are as follows:-
  To lease to you the whole Lot, comprising your present premises and the Garden Lot, for the term of seven years, at rental of Three Hundred Pounds (300) per annum, on precisely the same conditions as hose of your existing lease - giving you the power to erect what buildings you desire - subject to my approval or that of the representative of the landlord for the time being - all repairs, as heretofore, must be defrayed by you, and any buildings erected must be handed over at the expiration of the term in good order and condition.
  As to your present house I must remind you that by the terms of your lease you are bound to keep it in thorough order and I do not therefore understand your proposal for the landlord to restore it, as at any time it has been in my power to call upon you to effect the necessary repairs.
  In event of your acceptance of this offer you can have immediate possession of the whole lot - the additional rent to be paid only from the 1st October next.
  Thomas William Kingsmill was then called.  He said he was an architect practicing in Shanghai.  He had been acting as architect for the defendant in connection with the bunding of the Soochow Creek, partly in front of the defendant's house.  The property occupied by Mr. Saunders was registered in the name of Mr. Bell, but here were Chinese interested in it to a considerable extent.  He remembered mentioning to Mr. Saunders hat a member of the Council had suggested that the foreshore in front of Mr. Saunder's house be used for the erection of wash-houses.
  Cross-examined by Mr. Wainewright, the witness said that suggestion was never entertained; it was a mere remark thrown out by a Municipal Councillor.  If Mr. Saunders had said that it would not injure his property, Mr. Bell might have considered the suggestion; but no offer was ever made; it was a mere suggestion.  Witness had been in Shanghai in the autumn of 1863, and he had been tolerably familiar with the locality in which this property was situated since 1868; but he had never heard anything about Mr. Saunders having rights over the foreshore in front of his property.  He had had to survey that part of the Soochow Creek when he was putting in the foundations for the present Garden Bridge.  He put in coffer dams in front of the plaintiff's premises, and the plaintiff did not object in any way.  Looking at the Municipal Plan of Hongkew, wins aid he should take lots 2, 3 and 4 to include the whole of the plaintiff's property.  Where a portion of a lot was cut off to form a road, the lot would still be known by the same number; but the numbers were only put on for convenience or reference; they did not make much use of hem.  It was a common thing in his experience for people to take mud from the foreshore, whether the foreshore belonged to them or not; and if he saw a coolie go down to the water's edge with a bucket for water he should not conclude that the foreshore at that point belonged to the man who employed the coolie.
  Re-examined:-
  Mr. Dowdall - You say the numbers on the plan are only convenience numbers; is it not possible to distinguish the boundaries by them?
  Witness - No.
  His Lordship - Taking these numbers on the Municipal Plan do they give you any idea of the size or boundaries of the property?
  Witness - No. They were put on the plan at home, I think, by Mr. Hanbury; and afterwards the Municipal Council employed me as far as possible to correct the boundaries.
  His Lordship - As a matter of fact, do these numbers give you any idea of the size or boundaries of the lot?
  Witness - No; they are only put on for convenience.
  His Lordship - I understand you to say, Mr. Kingsmill, that these Municipal numbers, 2, 3 and 4, would not give a correct idea of the quantity of land comprised in the complainant's lot, or his boundaries?
  Mr. Kingsmill - That depends upon the map.  I see that these particular plots are marked.  The western and northern boundaries are marked correctly.
  His Lordship - Supposing I had bought a piece of land which I was told was marked Nos. 2, 3 and 4 in the Municipal Plan; should I, by taking the plan, be able to verify what I had bought?
  Witness - yes, I think so in this instance; but in some instances you would not.
  Mr. Dowdall asked Mr. Kingsmill whether he could identify the boundaries of the lot marked 131.
  The witness said in that instance he could not identify the boundaries; but in some instances he could. The numbers were put down simply as an index number; but in some cases it was possible to identify the boundaries.
  His Lordship, after examining the plan, confessed that he was unable to distinguish the boundaries by means of the numbers.  He asked whether if he wished to separate lot 2 from lot 3 and lot 3 from lot 4 could he do it by the map?
  The Witness said he could not do that.  The plan did not show the boundaries between the three lots, but it happened to show the boundaries of the piece of land comprising the three lots taken together. The three numbers taken together showed very fairly the property demised to Mr. Saunders.
  Mr. Dowdall pointed out that it was possible to travel on the map from the piece of land comprising these three numbers into an adjoining lot without crossing a line.
  The Witness said there was a slight gap in one of the lines; but he imagined that that was a mere error in transferring the map to print.
  Mr. Wainewright said the break in the line was about the size of a pin's head.
  Mr. Dowdall said there was a very considerable break in the line.
  Charles Christian Grant, of the I. M. Customs service, called by M. Dowdall, said he remembered being employed by the plaintiff in 1863 to look after some building operations on the land occupied by the plaintiff.  He remembered that they erected a kind of landing place to facilitate the carrying up of materials, and for the coolies to walk over.
  Mr. Dowdall then asked that the case might be adjourned long enough to give him time to obtain the attendance of a witness as to Chinese law.  He had applied though H.B.M.'s Consul, to the Mixed Court Magistrate, but the Magistrate had refused to attend.
  The case was adjourned till Friday next.

Source: North China Herald,  30 May 1884


LAW REPORTS.
H.B.M.'s SUPREME COURT.
Shanghai, 27th May, 1884
Before Sir Richard Temple Rennie, Chief Justice.
W. SAUNDERS v. F. H. BELL.
  The hearing of this case was resumed from the 17th March.  The Plaintiff, who is the leaseholder of certain premises facing the Soochow Creek, claimed that the foreshore on front of his premises was included in the demise to him, and that he had also acquired by long usage a right to use this foreshore and a landing place;  and he prayed that the defendant, who is the registered owner of the property, might be ordered to remove the piling and other obstructions which he had placed upon and in front of the said foreshore and premises, to pay to the plaintiff Tls. 100 for damages, and to pay the costs of the suit.
  Mr. C. Dowdall appeared for the plaintiff, and Mr. R. E. Wainwright for the defendant.
  A Chinese witness who gave the name of Yu was called by Mr. Dowdall.
  His Lordship suggested that it would greatly expedite matters if the Rev. Dr. Yates, who was present in anticipation of being called as a witness for the plaintiff, would act as interpreter. Dr. Yates consented to act as interpreter.
  Yu was accordingly examined through Dr. Yates.
  Mr. Dowdall - What is his official position?
  Dr. Yates - He is connected with the Shanghai Magistrate's office.
  Anything to do with managing water? Is he the department of the Magistrate's office where they manage the water-ways? - He knows something about water, but he is not in that department.
  Mr. Wainewright - About what? - about drinking water.
  Mr. Dowdall - About the regulations as to water-ways.
  (To Dr. Yates) Will you ask him if he knows anything about the law regarding water-ways?
  Dr. Yates - He says he knows Chinese law.
  Mr. Dowdall - When accretions occur on the banks of a tidal creek, do they belong to the owner of the adjoining land, or to whom do they belong?  How is it got possession of by anybody?  Does the owner pay taxes for it, and generally what right has he to it?
  Dr. Yates - The witness gives his answer as applicable to the Chinese and also as applicable to the Foreign Settlement.  When there is any accretion of land the man who owns the water-frontage has the right to the accretion.  He must go to the Magistrate and register and pay a nominal tax. - The owner of the lot has the right to any accretion on his frontage; but he must g to the magistrate's office and register.  When he makes his registry and gets his certificate of the extension of his land he must pay a tax on it; but it is comparatively a nominal tax; it is not the same as for available land, until the accretion is appropriated - used.
  His Lordship - It is nominal in the first instance?
  Dr. Yates - Yes, in the first instance, or until it is appropriated - utilized; then he must pay the full tax.  When it is raised sufficiently high to be used for building or other purposes, then he pays more.
  Mr. Dowdall - Suppose that the land up to the Creek was held by someone other than the owner, under a lease, and that the tenant had been in possession for a long time - say twenty years, - and there were ten more years to run. Who would then be entitled to go on this foreshore?
  His Lordship - You ask him, in point of fact, whether the landlord or the tenant would be entitled to this foreshore?
  Mr. Dowdall - Yes.
  Dr. Yates - He says the man who has a lease of the property would have control of it to the end of his term.
  Mr. Dowdall - If a footpath in China is used for a term of twenty years without interruption, can the owner of the land across which the footpath goes shut it up at will?
  Mr. Wainewright - I do not think you should put the words into his mouth.
  Mr. Dowdall - Very well.  I will put it in this way.  How long does it take to give the public a right of way over a footpath?
  Dr. Yates - He says that when a road is made and used for any term of years in China they cannot shut it up, if it is yielded.
  Mr. Dowdall - How long would the public require to use a road before they satisfied the authorities that they had got possession of it? - He says that a road that is a road cannot be stopped up, after being used. But if it is a made road, a family road, a road to water, made for convenience, it can be shut up at any time.  He says there is no time.  A thing is known as a road, or it is known as not a road.
  Mr. Wainewright - That is precisely similar to English law.  No length of time is necessary to dedicate a way to the public.
  Mr. Dowdall - Put it this way to him.  Suppose a man lets a piece of land to me near the water his own land coming between the land he lets to me and the water; and for twenty years he allows me regularly to go over his piece of land which is between the land let t me and the water.  Should I acquire any right to continue to go over that land till the end of my lease or up to any time; or can the landlord shut it up and prevent my having access to the water  during the remainder of the lease?
  Dr. Yates - He says the tenant could not be forbidden the use of it, once the landlord had leased this property to him, and the accretion in front of it is for him to use, and he has a right to the use of it.  It cannot be closed during his term.  He has a right to the use of the accretion, and the owner cannot obstruct his use of it during the term of his lease.
  Cross-examined:-
  Mr. Wainewright - What are the duties of this man in connection with the Shanghai magistrate?
  His Lordship - What do you call him?
  Dr. Yates - I take him to be, according to his statement, simply one of the hands in the Magistrate's yamen.  When there is a case of litigation, it matters not what it is, it comes before him.  He is one of the runners - one of the assistants - in the office of the Magistrate's assistant.
  Mr. Wainewright - Then he is not in the magistrate's office; he is in the assistant's office.  He is a runner's runner.  He is an underling.
  Dr. Yates - He is one of the clerks.
  Mr. Dowdall - I understand that he is the clerk - that whenever a case comes in, it is brought to him.
  Dr. Yates - No. There are many men in the office and they are very much on the same plan as the coolies in the Settlement - today it is my job, tomorrow it is your job and the next day it is another man's job.  They take their turn at the work.
  Mr. Wainewright - Has he anything to do with the magistrate's land office work?
  Dr. Yates - No; there is another class of men in that office.
  Then hat he has been telling us is simply what he thinks is the case? - He says he spoke what he did from what he knows of Chinese law, or rather custom - Chinese law, he says.
  He says that if land accretes on a water-front lot, the owner of the lot has to go to the magistrate's office and register the accretion and pay a nominal tax on it.  Will you be kind enough to ask him whether that is the same in the case of foreigners?  Suppose a foreigner holds a piece of land bordering on the water, does that hold good with the foreigner the same as with the Chinaman? - He says a foreigner would have to go to the Tao-tai.
     What would he have to pay to the Tao-tai? - He says it is a fixed rate - he does not exactly remember what.  He thinks it is Tls. 180 a mow.
  Oh! He thinks a foreigner would have to pay Tls. 180 a mow for the accretion? - Yes; he thinks that is what would be required in the Tao-tai's Office.
  And does the foreigner pay whether he makes use of the land or not? - He says if he does not go and register he does not have to pay it.
  But if he registers he must pay that amount? - Yes.
  If he does not register has the foreigner any right to use that accretion? - He says the owner of the property cannot use it, but the lessee can.  It is his right to use it if he wishes, because it is added to the lot.
  I have not asked him anything about the lease.  Can an owner use an accretion before he has registered and paid for it? - He says if he has not leased it he can use it; if he has leased it he cannot use it.
  What is the use of going to the Tao-tai and registering it if he can use it just the same without registering it? -He goes back to the old point and says that if he has leased the property then he cannot use it.
  Ask him to forget all about leasing. Ask him whether a foreigner can use the accretion before he has registered it? - He can use it without having registered it and paid the tax; but when it is found out by the magistrate he will be called in and fined and forced to register it.
  Does that apply to the foreigner in the Tao-tai's yamen? He says the law is the same.
  Then a foreigner may be fined by the Tao-tai in the same way? - Yes.
  Ask him, please, suppose he had a piece of land and I used it - walked over it every day - for twenty years, to carry water to my piece of land, should I then have a right to go on doing so whether he liked me to or not? He has a piece of land; I have another piece of land adjoining it.  I walk across his piece of land to get water.  Can he prevent my doing so at the end of twenty years? - He says the Chinese have no law as to that.
  His Lordship - As to what?
  Mr. Wainewright - As to acquiring a right by usage. - (To Witness) - Suppose he says, "Well, I won't have this man carrying water over my land any more," can he prevent my doing do, after a number of years?
  Dr. Yates - He says that if you used it for a long time without objection the owner cannot close it up without consultation, and some agreement.
  Mr. Wainewright - Does he call twenty years a long time? - He says ten years is a long time, twenty years is a long time, a hundred years is a long time.
  Is it at all a common thing for Chinese to grant leases for twenty or thirty years? - Yes, it is common.  If a man wants to build houses he must have a long lease.
  Suppose he was landowner and he registered an accretion, and paid the Taotai or the Magistrate some money for it, would he think he was bound to let his tenant use that accretion - supposing the land was let - without the tenant paying him any extra rent or anything else? - He says it is a matter of arrangement. If the owner of the property has registered this accretion and wishes to use it, he may consult with the tenant and he may use it if the tenant consents to it; but he cannot otherwise make use of it until the end of the lease.  Sometimes the tenant pays something.
     Suppose the land-owner pays for this accretion, has the tenant a right to use it without paying anything to the landlord? - He says if a man leases a piece of property, in his writing it has boundaries.  The boundary may be the river; then he has a right to use it down to the river and he must not pay anything.
  If his writing gives the boundary as the river, then he need not pay anything? - Yes.
  Does that apply to land which is held by foreigners under a title deed? - He says it is the same.  If a man has a piece pf property with boundaries down to the river he has a right to use it down to the river.
  Mr. Wainewright - Then if the Chinese title deed says that the boundary is the river has not the foreign owner a right to the accretion without paying anything for it?  If the Chinese Government grants him a title deed stating that the land is bound by the river, is he not be entitled to the accretion without paying anything to the Tao-tai - without paying the Tls. 180?
  His Lordship asked Mr. Wainewright if he had many more questions, as his Lordship was unable to sit any longer at present.
  Mr. Wainewright said he had several more questions to ask.
  Mr. Dowdall intimated that if Mr. Wainewright could finish with the witness at this hearing, he (Mr. Dowdall) would not call any more witnesses, but would close his case.
  Mr. Wainewright said in that case he would not put any more questions.  He asked for an answer to his last question.  Would it not be equally for the foreigner who had a title deed which stated that the property was bounded by the river to take the accretion without paying anything for it?
  Dr. Yates said the witness replied no, because the land was made up.
  Mr. Wainewright said his object was to show that the witness's exposition of the Chinese law on the subject landed him in an absurdity.
  The case was adjourned.

Source: North China Herald, 6 June 1884
 

LAW REPORTS.
H.B.M.'s SUPREME COURT FOR CHINA AND JAPAN.
Shanghai, 3rd June, 1884.
Before Sir Richard T Rennie, Chief Justice.
W. SAUNDERS v. F. H. BELL.
  The hearing of this case was resumed from the 27th May.
  The Plaintiff, who is the leaseholder of certain premises facing the Soochow Creek, claims that the foreshore in  front of his premises is included in the demise to him, and that he has also acquitted by long usage a right to use this foreshore and a landing placer; and he prays that the defendant, who is the registered owner of the property, may be ordered to remove the piling and other obstructions which he has placed upon and in front of the aid foreshore and premises, to  pay to the Plaintiff Tls. 100 for damages, and to pay the costs of the suit.
  Mr. C. Dowdall appeared for the plaintiff and Mr. R. E. Wainewright for the defendant.
  Mr. Dowdall said in opening the case he had only mentioned cases bearing upon one point.  There were several cases upon other points which he intended to cite in his reply, and he proposed to mention them now.  He proceeded to mention a number of cases, giving merely the titles and the references.
  His Lordship said he had never understood and always opposed the doctrine which prevailed in this Court, that every case upon which Counsel proposed to rely should be mentioned in advance.  He believed the practice was introduced by Mr. Robinson, but he had never heard of it being done anywhere except in this Court.
  Mr. Dowdall said he was only following the practice that prevailed here.
  His Lordship said cases mentioned in this way were of no interest to him and he was not going to read them; it as only a matter between counsel, and Mr. Dowdall might as well give Mr. Wainewright a list of the cases which he proposed to cite.  This practice had grown up in this Court, and he could never see the reason of it.  He believed it was the invention of Mr. Robinson, who used to say that cases were sprung upon him and that he was entitled to know what cases were to be relied on by the counsel for the plaintiff.  So far as the Court was concerned, unless the cases were taken seriatim, and the passages read and their application pointed out, the Court had nothing to do with them.  It was not to be supposed that counsel was to tell the Court that there were so many cases which applied to the matter in dispute, and that the Court had better read them at its convenience. - His Lordship proceeded to explain his views on the point at considerable length.
  Mr. Wainewright did not feel quite sure that the course was a mistaken one.  At home, he believed, the counsel for the defendant always had an opportunity of knowing what points of law his op0onent was going to rely upon.  They were mentioned in the opening.
  His Lordship - Yes, but the Counsel reads the passages and states the points of law on which he relies.  He does not merely give a list of the cases.
  Mr. Wainewright - Quite so, my Lord.
  His Lordship -It is the duty of Counsel in opening a case where points of law are involved, I think, to cite his authorities briefly and succinctly, reading the passages on which he intends to rely.
  Mr. Dowdall then handed to Mr. Wainewright a list of the cases which he intended to cite in his reply.
  Mr. Wainewright then proceeded to open the defendant's case.  He said - May it please your Lordship, I take it that as regards the defendant it perhaps is not so much incumbent upon him to go into the law in his opening as it is upon the plaintiff.  I shall have the opportunity of dealing with the law when I have taken the evidence. My case here is that the plaintiff by the terms of his lease is not entitled to any rights whatever over the foreshore in dispute, and that he has not and could not acquire any such tights as against his landlord.   I shall comment, of course, upon the terms of the lease, and I shall give evidence of what was the intention at any rate of the lessor when the lease was granted.  Mr. Saunders has stated certain things about his negociations for the lease - that is, the lease of 1876, because the lease of 1882 is a mere extension of it.  The lease of 1876 defines he premises, and Mr. Saunders has given some evidence of what he intended should be included.  I shall give evidence that the other parties to the lease had no such intentions whatever; they never dreamt that Mr. Saunders had any such idea in his head until this question of bunding came up a few months ago, and this claim was made.
  His Lordship - There comes the question of law, as to how far evidence of intention is admissible, to contradict the terms of the lease.
  Mr. Wainewright - On that point I contend that where the terms of the deed are clear and unambiguous, you cannot travel out of the deed to find the intentions of the parties.  The deed speaks for itself, and as long as there is no latent ambiguity in the deed you cannot ravel out of it. - He then quoted Woodall's Landlord and Tenant, 12th ed., p. 125; and Addison on Contracts, 7th ed., pp. 164-166.  He would contend that there was no ambiguity whatever in the lease.  The petition of the plaintiff said that "By another deed of lease, dated the 16th of August, 1876, made between Howell Wills of the one part and the plaintiff of the other part, the same premises were by a description referring to them as being those in possession or under the control of the plaintiff demised to him. .  .  .  " That, he said, was a mis-statement of fact and violation of the language of the lease altogether.  The lease of 1876 was practically clear and unambiguous in its language, and the premises were described thus:-
  "All that piece or plot of land situated at the junction of the Hwangpoo and Seward Roads, and numbered 2, 3 and 4 on the Municipal Plan of the Hongkew Settlement of Shanghai together with the dwelling-house and the outhouses pertaining thereto, erected upon the said piece of land and fronting t the said Hwangpoo Road, the whole premises being at present in his possession or in his occupancy or under his control." The latter phrase, "or under his control," had been explained by her fact that previous to 1876 the plaintiff occupied a piece of garden-ground which was not in is original lease, as it had been leased to another man; but he plaintiff, previous to1876, had used the ground as a garden, and it was included in his lease of 1876.
  The deed of 1876 contained no ambiguity whatever, and although Mr. Saunders might now find it convenient to say that he always intended that the lease should include the foreshore, the lease did not include the foreshore, and the other party to the lease never dreamt that the lease included it; and Mr. Saunders's recollection of his intention could not overrule the intention of the other side; as the intention to effect a deed must be the intention of both parties.  Mr. Bell, who was the lessor at the time, and Mr. Maclean, who made the lease, would tell the Court that they had no idea that they were including any foreshore, and never dreamt of any such thing.  He admitted that the first lease described the property as bunded by "the bund and river," whatever that might mean.  The word "bund" was used loosely; sometimes it meant a road; and sometimes the boundary of a road; they talked of "bunding" by driving piles or laying a stone facing; and they also talked of "the Bund" as a road.  It was a very vague term used in China.  To say that the property was bunded by the bund and the river was exceedingly ambiguous; and that boundary, he would show, if it mean anything, mean that the river and bund were one and the same thing - that there was no foreshore really, or that it was so small as not to be appreciable.
  His Lordship - I take it, and Mr. Dowdall will perhaps agree, that probably the holders of the original lots, neither lessors nor lessees, landlords nor tenants, ever thought about foreshore at all.
  Mr. Dowdall - I hope I will show that the foreshore was thought of and written about.
  His Lordship - Will you be able to satisfy me that in entering originally into possession of these premises you had any contemplation of having this foreshore added to the property?
  Mr. Dowdall - I hope to show that the words used were that I was taking "a water frontage lot."  It is no desirable for me to go into that matter now; but I hope to be able to satisfy you that I was taking land down to the water's edge.
  His Lordship said, if he might express an opinion on the subject, he thought that probably Mr. Saunders and all the other land owners in the early stage of the Settlement took bund-lots contemplating that they would have a water-front lot, and be able to go down to the water; but he did not think that any of the original bund-lot holders, either in the English Settlement or in Hongkew, even contemplated utilizing the foreshore, or even the possibility of probability of an accretion.  He was not opinionated on this point, but that idea passed through his mind.
  Mr. Wainwright then pointed out that Mr. Saunders was claiming the foreshore from the western extremity of his property to the Bridge, although he admitted that up to the time of making the new lease, he had no lease for the piece of land next the bridge, and therefore he could not have acquired any rights to the foreshore opposite the ground originally leased to Farr, and subsequently leased to the plaintiff. They had been treated to a certain amount of Chinese law, and he would be able to produce a venerable Professor of Chinese law.
  His Lordship - How can Chinese law apply?
  Mr. Wainewright - I submit that Chinese law has nothing to do with the case; the lex locii has nothing to do with it whatever.
  His Lordship - You have a lease drawn up here between two British subjects, with the formalities and language which British law requires, and if you are hoping to control that or affect it by Chinese law it may enhance the difficulties of construction.
  Mr. Wainewright - By calling a witness as to Chinese law, the Court is asked to sanction the proposition that two British subjects may make a contract according to Chinese law with regard to a piece of property which to all intents and purposes is under the control of British law.  Were a Chinaman a party to it, the lex locii might come in.
  His Lordship - As between two British subjects very curious results might follow if we bring Chinese law into it.
  Mr. Wainewright - I submit Chinse law has nothing whatever to do with the matter; but I intend to call a Chinse witness to contradict everything my learned friend's witness said on the subject - and if a third were called he would contradict them both.  But there is no such thing as Chinese civil law; it varies with the locality.  China has an extensive criminal code; but civil law there is none. - He then quoted Goddard on Easements, and Grayford v. Moffat, L.R. 4 Ch. Ap. p.143, and Russell v. Harford, L.R. 2 Equity, p. 507, to show that the plaintiff could not acquire an easement over the ground as against his landlord.  He then said he would show that the ownership of the foreshore which Mr. Saunders claimed lay in the Crown of China.
  His Lordship - As I understand, that foreshore did not exist at the time the lease was made.  It is simply an accretion, about which, according to Chinese law, something has to be done before lawful possession can be taken of it.
  Mr. Wainewright - We are actually under an engagement with the Taotai to pay a sum of so much a mow for this foreshore if the bun ding is completed.
  His Lordship - Did not the witness who was here the other day say something to the effect that it would be the right of the tenant to take up the foreshore?
  Mr. Wainewright - He did; but that I shall contradict.  As regards the general principle, there is a case in this Court which came before one of your predecessors, Sir Edmund Hornby - Reg. v. Reynolds and Holtz.  The Court held that all accretion to land held under a title deed was the property of the Crown of China.  Therefore I say that the tenant cannot possibly have a better title to that than his landlord.
  His Lordship - Where is it reported?
  Mr. Wainewright - It is only reported in a pamphlet.  I believe I have the only copy extant.  It was lent to me by a gentleman in the Consular Service, and I took care never to return it - (laughter) - and I have it now. The pamphlet was printed at the Herald office, and the case may be reported in the Herald for 1865, but I have not seen it.
  His Lordship - I have never read the case.  It must have been before I came to Shanghai.
  Mr. Wainewright - It was, I think.  The counsel in the case were Mr. Myburgh and Mr. Robinson. - Well, my Lord, that is my position, shortly, and now I will call my witnesses.
  Peter Maclean was then called.  He said he was a British subject carrying on business as a merchant in Shanghai.
  Mr. Wainewright - Were you at any time agent - had you anything to do with the Wills estate at any time?
  Witness - Yes; I was agent under Messrs. Adamson, Bell and Co.
  Including the property leased to Mr. Saunders? - Yes.
  Could you tell me the dates when you commenced and when you terminated your connection with this matter? - Not exactly. When my connection - or rather the connection of my firm - commenced, I was at home.  It was at the beginning of 1866, I think.
  And I continued until - ? - Until about 1876, to the best of my recollection.
  Mr. Wainewright handed the witness the lease of 1876. He asked - Do you recognize that?
  Witness - yes.
  That is a lease with Mr. Saunders? - Yes.
  Who prepared it? - I did.
  Now just look at the description of the premises.  What did you intend that to include? - The land within the boundaries stated.
  Did you intend to include any foreshore - any land on the water-side of the Huangpoo Road? - I do not think I could have intended anything of the kind.
  Have you any recollection on the subject? - No; except that I prepared this lease on the same lines as one which I prepared for the land on which the Astor House is situated.  To the best of my recollection the specific boundary of both was to be the road.
  His Lordship - I thought you said you could not bring parole evidence on this point?
  Mr. Wainewright - Quite so; but evidence having been given on the other side that he did intend to include the foreshore, I ask whether he did.
  Witness - They were founded upon running leases, and were to be prepared on identical lines.  In each instance the boundary was to be the road.
  His Lordship - Were any lawyers employed in either case?
  Witness - None that I know of, in this case.
  Mr. Wainewright handed the witness another lease. He asked - Had you anything to do with that lease?
  Witness - Yes. This lease, I think, was prepared by Mr. Robinson, if I mistake not.  It was corrected and supervised by myself.
  Just look at the boundaries of the premises there.  How are they bounded on the south? - By the Soochow Creek and the Huangpoo River.
  What were those premises used for? - I do not recollect.
  Mr. Wainewright - This lease is a lease of some ground which is used for a timber-yard, and there the foreshore is included.  I put it in to show that the phraseology differs completely.
  Witness - I was wrong when I said that Mr. Robinson made the lease.  I made it out myself.  It was prepared by me and written by Mr. Groom.
  Mr. Wainewright - Was that intended to include the foreshore?
  Witness - Yes, it was.  There was a timber-yard upon it.
  Mr. Wainewright - This lease is dated 1877 - (To witness) - While you were agent for the property had you any knowledge of the use which Mr. Saunders was making of the foreshore? Were you aware that he was using the foreshore?
  Witness - No.
   Did you ever have any communication with Mr. Saunders on the subject of the foreshore? Did he ever address you, or you him, on the subject while you were agent? - I cannot say.
  Do you recollect at all? - No, I do not think he ever did.  I do not know, but I do not think so.
  Cross-examined:-
  Mr. Dowdall - Do you know, Mr. Maclean how Mr. Bell became entitled to this foreshore?
  Witness - I suppose in the usual way.  Anybody is entitled to the foreshore who takes a bund lot.  I suppose he acquired it by his title deeds; I do not know.
  By virtue of his ownership of the adjoining land, perhaps? - I cannot tell.
  Do you think if I wanted hat foreshore I could get it as easily as Mr. Bell - I do not know.  If you like to employ me as a broker I will try. (Laughter.)
  Are you sure you do not know? - I am sure.
  Assuming that he has a title deed coming down to the creek, could I get it as easily? - That is a point of law which I cannot decide; but as I say, if you like to pay me as commission I will try.
  Do you think that I could acquire the foreshore in front of Mr. Saunders's premises as readily as Mr. Bell who holds the title deeds of the adjoining land? -Well, that is just the same question.  I cannot give you an answer.
  Do you know anything about Chinese law? - No, I do not.
  Do you know, from your long experience, how these foreshores are acquired? - It seems to me that this is an accretion to the landlord's property.
  You do not know anything about the law? - No, further than that I understand that if you pay a certain amount to the authorities for any accretion you will get it.
  His Lordship - Mr. Dowdall asks, as I understand, whether the landlord has a preference in acquiring it.
  Witness - I should fancy the landlord would have a preference, but I do not know.
  Mr. Wainewright - I believe as a matter of fact that the owner of the land has, according to the Chinese, a sort of prior right if he likes to take it up and pay the tax and register.
  Mr. Dowdall - Will you please look at the lease of 1876.  Will you please look at the description of the premises there and refer to these words - "together with the dwelling-house and out-houses pertaining thereto, erected upon the said piece of land and fronting the said Huangpoo Road." Were there any other houses on the land except those?
  Witness - There was his own house, and there was small house fronting the road.
  Besides the houses mentioned in the lease were there other houses on the land? - According to the best of my recollection there were two houses fronting the Huangpoo Road, and there might have been one or two behind - servants' offices.  I am speaking from memory.
  And those, I suppose, were to be included in the lease? - Yes.
  When you say in the lease that the land is marked by certain numbers on a plan, what plan do you refer to? - The Municipal plan of the day.
  Did you understand, then, that the land actually demised was marked on the plan by these numbers? I took the numbers either from the plan or from a former lease.  It may have been from a former lease.
  Did you understand that the land demised was described on this plan? I understood that the municipal lots were simply a generalization of it.  The land demised, rented or leased was between these boundaries mentioned.  The municipal plan was a generalization of it.
  Mr. Dowdall - You say that the lease of 1877 to Fing-tai and Chang-ta-mow was prepared by you and written by Mr. Groom?
  His Lordship - That is the timber-yard?
  Mr. Dowdall - Yes. - (To witness) - Do you think Mr. Groom suggested any alterations in it?
  Witness - I do not know, but I am pretty certain he did not.
  It is quite certain I suppose that he did not suggest any alteration in Mr. Sanders's lease? - Yes. He had nothing to do with Mr. Saunders's lease.
  And he did it in the Chinaman's lease? - He may have done so, but I am pretty certain that he did not; because to the best of my recollection the man agreed to take the lease on condition that he was to have a lease of the foreshore.  That is the land below the Astor House.
  His Lordship - That was a special agreement for the foreshore?
  Witness - Yes. In fact before the lease was signed he was storing his wood there, and I made him pay extra for the use of it.
  Mr. Dowdall - Will you take the plan, please, and look at the land numbered 2, 3 and 4 on the Municipal plan.  Is that land included in the lease - Yes, I think that it is.
  Does the plaintiff's lease include all that land marked 2, 3 and 4 on the plan? - To the best of my knowledge it did.
  Do you know where Broadway runs? - I do not know where it begins.  I know the direction of it.
  Is any of the land included in one of those numbers now part of Broadway? - If you give me a recent map I can tell you.
  Do you think that part of No. 4 is now Broadway? - I do not know.  You can go and see for yourself.
  Do you say that part of No. 4 is not Broadway? - I do not say that.  If I knew I would tell you.
  Are you sure that the whole of Nos. 2, 3 and 4 is included in Mr. Saunders's lease? - I do not know whether there is a road taken off.  I would tell you if I knew.
  Can you give me an idea whether Nos. 2, 3 and 4 describe he land leased by Mr. Saunders? - Yes, in a genera; way.
  Can you say whether Mr. Saunders's lease includes more than three-quarters of the land marked No. 4? - I do not know how much is taken off for a road.
  His Lordship - Is this material?
  Mr. Dowdall - It is material in his way.  If Mr. Maclean would only tell us what he knows, it would show that Nos. 2, 3 and 4 do not describe the land leased to Mr. Saunders, or anything like it.  But Mr. Maclean has evidently made up his mind not to answer definitely.
  Witness - I beg your pardon.
  Mr. Dowdall - Then we will try again.
  Witness - I do not know where the road runs.
  Mr. Dowdall - Do you know whether any ground has been taken off for a road since 1876?
  Witness - Yes, there must have been.
  Mr. Wainewright - Since 1876?
  Mr. Dowdall - It is bad enough to have a witness who will not answer, without having another to prompt him.
  Witness - I do not know where the road runs.
  T. W. Kingsmill was then called.
  M. Wainewright - This witness has already been called.  He is such a useful man that we both want to have him. - Mr. Wainewright handed the witness a plan, and asked - Is that a plan you prepared?
  Witness - Yes. It is a tracing from two Municipal plans.
  Made in your office? - Yes.
  Have you examined it to see whether it is correct? - Yes.
  Does that show the land originally leased to Farr? - Yes.
  Does it show how much was cut off for Seward Road? - It is not exactly correct, but it shows it very clearly.
  That land was taken out of the lot numbered 4 on the Municipal plan, was it not? - Partly out of 4, and partly out of 5.
  Part of it was out of No. 4? - Yes.
  And the rest of 4 is held by Mr. Saunders, is it not? - Yes.
  Does that plan show the boundary lines between lots 2, 3 and 4? Does it show the boundary lines between the land leased to Mr. Saunders? Can you show on that plan the place where what Mr. Saunders calls his steps are? - Yes. They are not quite correct on that plan, but they are correct in a larger plan.
  Mr. Wainewright - Then produce the larger plan.  I know you are anxious to produce it.
  The Witness produced a larger plan.
  Mr. Wainewright - That shows accurately the boundaries between Mr. Farr's original lot, and Mr., Saunders's original lot, and also the position of the steps? - Yes.
  Cross-examined:-
  Mr. Dowdall - Can you tell me Mr. Kingsmill, how Mr. Bell acquires this foreshore?
  Witness - He has not acquired it, as I understand.  There has been a good deal of discussion about it.
  Mr. Wainewright - Mr. Bell will be here, so he will be able to tell.
  His Lordship - We do not know that he has acquired it.
  Mr. Dowdall - Is it a fact that Mr. Bell has not acquired the foreshore, or any right to it?
  Witness - Ay the moment I do not know.  It is in judice.
  You do not know whether he has acquired the foreshore in front of Mr. Saunders's premises or not; is that the answer? - Yes.
  Do you know whether he put up any piles or not? - Yes, he did.
  What did they cost? - I mean in a round sum - within Tls. 500?
  Witness - Do you mean in front of the entire property?
  Mr. Dowdall - What expense did he go to on the foreshore that you do not know whether he has acquired or not?
  Witness - Upwards of Tls. 5,000.
  Has he claimed that foreshore? - Yes.
  And on what does he found his claim? - On his title deed and his special arrangement with the Chinese authorities.
  Did he make application to the Chinese authorities for leave to bund the foreshore in front of the Astor House and Mr. Saunders's property? - He did. - I do not think he asked for leave to do it in front of Mr. Saunders's, he was rather called upon to do it.
  He asked leave to bund up to the front of Mr. Saunders's'? - No; he was requested to bund in front of Mr. Saunders's.
  Will you please look at the Municipal plan and will you just look at the places where on a former occasion you said there was a break in the line which bounds the land numbered 2, 3 and 4. Will you just look and see what the scale is and say, please, what the width of the break is? - About eight or ten feet.
  Look at it again please, and say if you think it is a printer's error or not? - There was no line put there because there was no wall there, I suppose.
  His Lordship - What is the object of this?
  Mr. Dowdall - I want to show that these lines are not boundaries of the land at all.  I think it is a most important point that the plan does not indicate the land demised in two or three points. - (To witness) - Do you think it was a printer's error, or do you think the line was not put in the map because there was no wall there?
  Witness - It is not a printer's error; it was apparently an error in the survey.  I believe there was some kind of a fence there, but they did not think it necessary to nark it in the map.
  Was this land for a road cut off before or after 1876? - Before 1876.  It was cut off in [187?] at all events.
  How much land does the piling in front of Mr. Saunders's premises take in? - About 130 feet by 160 feet - a trifle over three mow.
  Can you tell me what would be the value of it when it is bunded? - About Tls. 6,500.
  A mow, or for the whole? - A mow.  But do not ask me to give a valuation of it now.  I do not know what the value of ground is at the moment.
  That would be Tls. 19,500 for the lot.  Now when the bunding was contemplated, and it was proposed to bring it up to the bridge, did you think it would run to Tls. 19,500 in proposing to carry it on in front of Mr. Saunders's premises? The ground was such an intangible shape that they did not see much prospect of bringing it up to the nominal value.  We did not care particularly about carrying it out in front of Mr. Saunders's because we knew it would be a useless piece of ground because it would be such an inconvenient shape.
  You are sure it was not because there as any question of Mr. Saunders's rights over the foreshore? - Yes, I may say I am perfectly certain of that.  The question of Mr. Saunders's rights was never raised until afterwards.
  Re-examined:-
  Mr. Wainewright - You have the area of the whole of the bunding above the bridge.  What is the area of the bunding in front of Mr. Saunders's original premises?
  Witness - You mean exclusive of Farr's footage? - About 1 now2 5 fun.
  When you talk about Tls. 6,500 a mow, do you mean in spite of this irregular shape? - No; the land would not sell for that.  But under certain conditions - for instance, if we could alter the shape of it, if there were changes of the road, and so on - it might be availed of.  At present I certainly would not put it down at that.
  Mr. Wainewright asked the witness what he estimated that the present value was.
  His Lordship did not see any use in going any further into the question of the value of the land.
  Mr. Wainewright did not press the point.
  The Court adjourned till the afternoon.
  On the Court r-opening,
  Chin Ya-pao was called by Mr. Wainewright and examined through the Court interpreter.  He said he was an employee of the China Merchants Co.
  Mr. Wainewright - Will you ask him whether he has any knowledge of Chinese law?
  Witness (through interpreter) - Yes.
  What are his means of knowledge of Chinese law? Has he studied it, or how does he come to know Chinese law? - I have studied law, and I was employed in a Chinese yamen.
  In Shanghai?" - At Canton and Hoihow.
  Mr. Wainewright - When a man owns land which is bounded on one side by a river, and land forms outside by the filling up of the river, whom does that land belong to?
  The Interpreter, after putting the question, said he could not understand what the witness said.  The witness spoke the Mandarin Dialect.
  His Lordship said there were several people in the Consulate who could speak Mandarin.  He thought it would be a great assistance if they could get Mr. Giles, H.B.M.'s Vice-Consul, to interpret.  He requested the Clerk of the Court to ask Mr. Giles if he would kindly attend or send an interpreter.  In the meantime Mr. F. H. Bell, the defendant, took his place in the witness-box, but after two or three questions had been put to him, Mr. Giles arrived, and the examination of Chin Ya-pao was continued, Mr. Giles acting ad interpreter.
  Mr. Wainewright - If a man owns a piece of land bordered on one side by a river, and land makes out - forms - on the side of the river, whom does that belong to? What interest, of any, has the owner of the property in the accretion?
  Mr. Giles - He says it is the property of the State.
  What has the owner of the land to do in order to acquire that accretion? - He must petition the local authorities, give them the measurements of the ground, and state his willingness to pay the ordinary ground rent, and so on.
  Suppose that the owner of the lot - the original lot - has leased that lot for a term of years to a tenant, and the owner acquires this accretion - that is, he goes through these formalities, he applies to the authority and pays the tax and becomes owner of the made land - what interest, if any, has he tenant of the shore lot in the accretion?
  Mr. Dowdall objected to the question as being in the nature of a leading question.
  His Lordship thought the question might be put in a shorter form.  He would put it this way - Supposing the owner of a front lot has leased it, does the tenant acquire any rights to the accretions or any privilege in regard to them?
  Mr. Giles - He says it is entirely the property of the original owner, and the tenant has nothing on earth to do with it.
  Mr. Wainewright - Then it is in the power of the land-owner, when he acquires the accretion, to let it to another person?
  Mr. Giles - He can let it to someone else.
  Mr. Wainewright - According to Chinese law, if a man is in the habit of using a path over another man's land, does he after using it for a number of years, acquire a right to use it, so that the landlord can not prevent his using it?
  Mr. Giles - He begins his answer by saying - "In the case of land that has houses on it - "
  Mr. Wainewright - No houses.
  Mr. Giles - He acquires no rights however many years he may walk across it.  The owner has a right to stop it when he likes.  He says you may walk backwards and forwards over a man's land as many years as you like, and when he chooses to stop you he can.  That is when there are no houses.
  Supposing there were houses? - He says you cannot walk through a house.
  That is what occurred to me.  But supposing there are houses dotted about? - It is entirely at the option of the owner of the land to shut it up when he likes.
  Cross-examined:-
  Mr. Dowdall - He says he was in the yamen of the Taoitai at Canton and Hoihow.  Will you ask him what position he had in those yamen?
  Mr. Giles - It is not Hoihow and Canton; it is Chao-chou Fu, in the Canton Province; that is Swatow.  He was the Taotai's Secretary.  At Ningpo he was occupied with foreign affairs, in the Foreign Bureau that they have there.
  How long has he been in Shanghai? How long has he been in the China Merchant's employ? - He has been backwards and forwards to Shanghai for many years, but he has only actually lived here for two years.
  How long has he been in the service of the China Merchant's Co. in Shanghai? - He has been connected with them for a long time, but only actually employed by them for three years.
  Then I suppose he has not been in the Tao-Tai's Yamen or any official position in Shanghai at all? - No.
  What position does he occupy in the China Merchant's office, relatively to Mr. Tong King-sing and Mr. Tong Mow-chee? Is he above them or below them? Those two gentlemen you mention are managers of the business; he is merely an employee.  I said to the witness, "Then they are above you?" he said, "Oh yes, of course."
  Ask him if he knows the foreshore that is in question in this suit? He knows something about it.
  Does he know to whom it belongs" He says it belongs to the owner of the land alongside it; as opposed to the tenant of that land.
  But whom does the land alongside it belong to? Can he give me the names of the owners? - He does not know.
  Have any of the managers of the China Merchant's Co. got an interest in it? - He does not know.
  If an owner of land adjoining a creek lets it to a tenant for ten years, and mud washes up, can the owner of the land then go and take possession of the mud and exclude the tenant from access to the creek? - He says under all circumstances some access to the river must be left. No matter whether he builds houses or jetties or what not, he must leave the tenant access to the river.
  He talks about footpaths, and he said they might be shut up by the owner of the land at any time.  Suppose there is a regular road which has been used for twenty years, can that be shut up by the owner of the land over which it goes? - It depends entirely upon whether it is a public road or a road which people chose to make for their own private convenience.  A public road no one can interfere with; but a private road the owner can shut up when he likes.
  His Lordship - You cannot acquire any rights by what we call "prescription"?
  Mr. Giles - No.
  Mr. Dowdall - What makes a public road?
  Mr. Giles - A public road is a piece of ground that is not included in the title-deeds of the estates at all - specially excluded.
  Are there any law-books containing this law? - He says these customs are all well known.  There are no actual books in which you will find them.
  Re-examined:-
  Mr. Wainewright - H says that the owner who lets land bordering on a river must leave his tenant access to the river.  I want you to ask him, please, is the owner of land which has formed out of the river unable to raise that land or to do anything with it so long as the tenant has a right to go over it? Is he bound to leave it untouched - not to raise it or anything, so long as the tenant has a right of way to the river?
  Mr. Giles - He said before that you may build houses on it; but you must leave access.
  His Lordship - Is the tenant entitled to a view of the river? Can he object to the landlord setting up on the foreshore a building which would intercept his view?
  Mr. Giles - He says that is no business at all of the tenants', so long as he has access to the river.
  His Lordship - Has he owner of the river-lots a prior claim to the foreshore over anyone else?
  Mr. Giles. - Yes. It is only when the original owner of the land says he does not want anything to do with it that anyone else can come forward.
  His Lordship - That is what I thought.  But how soon is the landlord bound to take it up and pay rent for it?
  Mr. Giles - The question of possession would not arise until the land became of some value.  The land would silt up, and at a certain moment it would suggest itself as being of value.
  His Lordship - How soon is he bound to take it up and pay rent for it? Supposing I have a bund lot; I am not in a hurry to take it up.  Somebody else takes it up; he is met with the difficulty that I have the first claim.  Can he force me to take it up at once or let him take it up, or can I wait as long as I please?
  Mr. Giles - He says when any person makes a claim for it, the owner is bound to say at once whether he wants it or not.
  Frederick Bell, defendant in this suit, was called and sworn.
  Mr. Wainewright - Mr. Bell, you are the registered owner of the land which is let to Mr. Saunders?
  Witness - Yes.
  How long have you had any business connection with the land let to Mr. Saunders? - Since July 1865.
  Before you became the registered owner, what was your connection with the property? - I was agent for the proprietors.
  When did you become the registered owner? - A few months ago.
  Is that (handing the witness a paper), a lease to Mr. Saunders? - Yes. It is a lease from George and Samuel Wills to Mr. Saunders, dated the 1st April, 1863.
  Mr. Wainewright - I only put that in to show there is not the same endorsement on it as the copy put in by the plaintiff. - (To witness.) - As a matter of fact, did Mr. Saunders ever rent the whole of one of the lots registered at the Consulate?
  Witness - No, only a small portion.
  Are these (handing papers to the witness) the title deeds of the whole of the Wills estates? - Yes, these two.
  Are these the only title deeds of the estates in Hongkew - Yes.
  Since you have had to do with the property have there been any other title deeds than these two? - No.
  Is this (handing a plain to the witness) a plain of the property, including Mr. Saunders's lot? - Yrs.
  Where does that come from? Had you that in your custody? - Yes.
  When? - Always.
  Ever since you took up the management of the property? - Yes.
  His Lordship - Is it a plan of the whole property?
  Witness - No, only the front portion.
  Mr. Wainewright - (To witness) - The lease to Mr. Saunders refers to "Mr. Medlen's plan." Have you found any plan but that one which has any trace of belonging to Mr. Medlen's plan?
  Witness - No, that is the only one.
  Mr. Wainewright - The lease of 1863 refers to Mr. Medlen's plan but it also refers to a plan with numbers, which this is not.
  Witness - This is a copy of Mr. Medlen's original plan.
  And you cannot find the original? - No.
  Now before the lease of 1876 was made, did you have any negociations with Mr. Saunders with reference to that lease? - Yes.
  (A number of letters which passed between plaintiff and defendant about the time of the signing of the lease of 1876 were put into the defendant's hands, and identified by him.)
  Mr. Wainewright asked the witness what he meant by the words "present premises: which he had used in one of the letters.
  Witness - The premises which he then occupied, and the garden-lot adjoining, which he had been allowed to use.
  What were the premises he then occupied? - Howe were they bounded? - By the wall in front of his house - his photography establishment and some houses he had built.
  Did you understand that it included any foreshore? - Certainly not.
  At that time did anything pass between you and Mr. Saunders verbally or in writing with reference to the foreshore? - No.
  When did you first hear about Mr. Saunders's claim to the foreshore? - After we began the building.
  Previous to that were you aware that Mr. Saunders was using the foreshore in any way? - No.
  And I understand you to say you never intended to let the foreshore to him.  As a matter of fact had you taken any steps to acquire the foreshore when you made the building? - Yes. Arrangements were made by the American Consul with the Taotai that we should be allowed to bund out.
  That was Mr. Denny? - Yes.
  Have you to pay anything for it? - Yes.
  What? - Tls. 40 a now and the usual ground rent.
  And did you understand how the area was to be calculated on which the payment was to be made? - It was to be measured after we had finished.
  From where to where? - From the outside of the present road to the edge of the bund. - I do not think the exact line to a few feet has been settled, but it would be from the outer edge of the present bund to the outer edge of the new bund.
  (Some further letters which had passed between himself and the plaintiff were then put into the witness's hands, and he was asked to read them.)
  Mr. Wainewright asked - Do you still say you did not contemplate any foreshore being given in the lease?
  Witness - Yes.  I understood that the boundaries were distinctly defined, and that there was no foreshore at all. It never entered my head that the letting was to include the foreshore.
  Cross-examined:-
  Mr. Dowdall - Are the managers of the China Merchant's Co, or any of them, interested with you in this?
  Witness - Yes, individually - and others not connected with the China Merchants' Co.
  Have do you found your claim to this foreshore? Do you claim it in respect of your ownership of this adjoining land to the foreshore? - Yes, from my land being bounded by the river.
  Mr. Dowdall - You will see in your letter of the 11th May you say "The most favourable terms I feel justified in offering to you now are as follows:- To lease to you the whole Lot, comprising  your present premises and the Garden Lot, for the term of seven years at a rental of 300 Pounds per annum, on precisely the same conditions as those of your present lease." Mr. Saunders, I understand, held his premises under the lease of 1863, or under permission to continue under that lease.  Did you in any way indicate to him that you intended to describe the premises so that he should have less than the premises he had under the previous lease?
  Witness - No.
  Mr. Dowdall - Then I see in a letter of the 12th May, 1876, Mr. Saunders talks about a "renewal of the lease;" and in your letter of the 12th May you refer to a conversation you had "concerning the renewal of the lease of your premises." Did you represent that the new lease was not to be a renewal, or did you always represent it as a renewal?
  Witness - It was always represented as a renewal.
  Mr. Dowdall - Did you know that Mr. Saunders had a carpenter's shed on the foreshore for eight or ten months?
  Witness - No, I did not.  Was that at the time he was building?
  Mr. Dowdall - Yes.
  Witness - I cannot say that I did.
  Mr. Dowdall - It was a large building fifty or sixty feet long.  You never saw it?
  Witness - I cannot remember seeing it. He may have had buildings on the foreshore.  We used to have them on the bund here, in front of the English Settlement.  When we were building it was constantly done.  The whole bund here was covered with buildings at one time.
  Did Mr. Saunders ever have a lawyer to look over or draft the leases that were made with him to you knowledge? I do not think so; I fancy not.
  And did you have legal advice upon the drafts of the leases you made with him? - No, I do not think so. - The last one, of 1882, was made by a solicitor.  That was an extension for fifteen years of the previous lease.
  Re-examined:-
  Mr. Wainewright - When you say Mr. Saunders might have had a carpenter's shed on the foreshore while he was building, do you mean before the lease of 1882 or after?
  Witness - Before.
  But after the lease of 1876? - Yes.
  Supposing you had seen a shed there, and it was for the purpose of building houses on your land - for the purpose of improving your property - I suppose you would not have objected to it, would you? -No.
  Mr. Dowdall has got it from you that you did not intend that Mr. Saunders's letting by the lease of 1876 should comprise anything less that his lease of April, 1863, comprised any foreshore? - No.
  There was nothing in the copy you had which described it as including the foreshore? - Nothing in the copy I had ever gave me any idea that any foreshore was included.
  Mr. Wainewright said this was all the evidence he had to produce.
  The case was adjourned till Thursday morning, the 5th inst., at 9.30 o'clock.
5th June.
  Mr. Wainewright rose to reply for the defence.  He proposed to begin by making a few observations upon the leases under which the plaintiff had from time to time held the property in connection with which this dispute had arisen.  With regard to e lease of 1863, the first lease, all he had to say was that it was exceedingly vague as regards the description of the premises; in point of fact there was no description.  It referred to the Chinese title deed; but there were two title deeds of the Wills estate, one of which referred to an area of eighty-four mow and the other to an area of one mow.  The lease did not say which of the title deeds it referred to; and in point of fact the description in the body of the lease was an absurdity; it was useless, it being impossible to gather from it exactly what the land was which was let to Mr. Saunders in 1863.  But there was an endorsement on a blank page of the lease, purporting to be signed by Mr. Underwood, as agent for the lessors.  This note was as followed 'Memorandum. The number of this is 3 upon Mr. Medlen's plan. The boundaries are: East, Lot No. 2, Farr and Co., West, ditto, Farr and Co., North, joss house; South, bund and the river."  That was the only description of the bounds, and the south boundary was given no doubt, as the "bund and the river."  What was meant by "bund and the river" it was difficult to say; but it looked as if there was no foreshore at all when the lease was made - as if the bund line and the river line was the same thing.  It did not say whether any foreshore was included or not, it looked as if there was no foreshore at all, or very little.  He thought, therefore, that very little was to be derived from the lease of 1876.  In the lease of 1873, however, there was, he contended, a full and clear and unambiguous description.  It described the premises as "all that piece or plot of land situated at the junction of the Huangpoo and Seward Roads, and numbered 2, 3 and 4 on the Municipal plan of the Hongkew Settlement of Shanghai, together with the dwelling-houses and the outhouses on the said piece of land and fronting to the said Huangpoo Road, the whole premises being at present in his possession or in his occupancy or under his control." He submitted that the description was perfectly definite and sufficient, so far as the present suit was concerned.  It was true that one or more of the numbers on the map appeared to be on the sites of houses, but everyone who had used these maps knew that the numbers really referred to the land round the houses, and not to the houses themselves.  It was in evidence that at the time when the lease was made, a portion of the land which had bene cut off to form Seward Road, but it was notorious that when a portion of a lot was cut off in this way no change was made either in the Consular registry or in the number on the map.  The fact that lot 4 at the time the lease was made, was smaller than it had been some years before was nothing to the proposal. It had been attempted to make something of the fact that there was a break in the boundary lines in the rear of the premises; but it was clear enough where the boundary  ran, and there was nothing whatever in  that.
  His Lordship said he never had been able to see what turned upon that.  He never could see Mr. Dowdall's points, unless Mr. Dowdall wished to show that the description of the boundaries was incomplete, and therefore evidence ought to be admitted.
  Mr. Dowdall intimated that that was exactly what his point was. That was all he sought to show.
  Mr. Wainewright, continuing, contended that the description was perfectly definite and unambiguous and therefore the plaintiff was not entitled to travel out of the lease.
  His Lordship pointed out that Mr. Wainewright had raised no objection to the plaintiff producing oral evidence of the intention of the parties, and had even produced oral evidence himself.
  Mr. Wainewright contended that really no oral evidence had been given on behalf of the plaintiff to which he could object, and said he had sought to protect himself in case his Lordship decided that oral evidence was admissible.
  His Lordship had understood Mr. Saunders to give evidence to the effect that he intended to take, and thought he did get, the foreshore.
  Mr. Wainewright thought if his Lordship referred to his notes he would find that Mr. Saunders had made no such statement with regard to the lease of 1876.
  His Lordship said he did not find it in his notes, but he had certainly been under the impression that Mr. Saunders said so.
  Mr. Wainewright, continuing, argued that if he could satisfy his Lordship that there was no ambiguity in the lease, his Lordship ought to dismiss from his mind all the oral evidence that had been given of the intention of the parties.  But even if oral evidence was admitted, he contended that the weight of that evidence was in his favour.  The lessors' agent, the present defendant, had stated most positively that he never intended to include the foreshore, and Mr. Maclean, who made the lease, had stated that he never had any such intention.  The lease of another part of the estate, in which the foreshore was included, had been produced, and there it was expressly stated that the foreshore was included; but in this case, there was no doubt that the boundary was intended to be the road.  Some evidence had been given as to the terms on which the plaintiff originally took the premises, and an advertisement had been produced in which "water frontage lots" were offered.  "Water frontage lots was, however, a very vague and loose term.
  The defendant had at present a "water frontage," in the sense that he had a lookout over water; but it did not follow that the owner of the land was therefore to be precluded from dealing with a valuable piece of land, and adding to his estate by purchasing ground in front of the defendant's premises.  But even if the plaintiff originally had a strip of foreshore, that strip of foreshore was now inland, nearly ten or twelve years ago, according to the plaintiff's own evidence, the Council bunded out ten or twelve feet.  He believed that his learned friend would call his Lordship's attention to a number of cases dealing with the right to waste pieces of land on the side of a turnpike road, and to the doctrine that if a man buys a piece of land by the side of a road or river in England he is supposed to take to the middle of the road or river; but Mr. Wainewright contended that these cases were inapplicable here.  As regards the earlier lease of 1863, he contended that the boundary was the road, and not the river; but possibly, if it had been in England, the plaintiff might have been held to taker to the middle of the river.  In China, however, it was different, because although he held that Chinese law could not be imported into this case in the  sense of applying Chinese law to the  tenure of a British subject, at the same time there was no doubt that the ownership of the soil of rivers in China had an important bearing on the case.  The English law which gave the tenant or purchaser the soil to the middle of the river did not apply in China, because the whole soil of navigable rivers in China belonged to the Crown.  He then cited the case of Reg. v. Reynolds and Holtz in which the decision was given that a foreigner holding land in China was only entitled to so much land as the title deed granted to him, and if accretions grew out of a river beyond the original boundary of the land, the owner had no right to them by virtue of his title deed, though he might have a certain right of pre-emption.
  His Lordship thought it might be different if there were no measurements given in the title deed.
  Mr. Wainewright said with regard to the rest of the Chinese law two witnesses had been called who contradicted each other so completely that it was like the Kilkenny cats - they ate each other up and there was nothing left of the law between them.  But on one point - that the land-owner had to do something in order to obtain his right to the accretion - they were both agreed; and they had the evidence of Mr. Bell that he had agreed with the Taotai through Mr. Denny, the U.S. Consul, to pay Tls. 40 a mow for the land. Then came the question as to whether the plaintiff had obtained any rights over the land by usage.
  His Lordship said he might say at once that he did not see any evidence of this. There was no evidence, to his mind, that the plaintiff had exercised any rights over the land mire than anybody could exercise whether he was the owner or not.
  Mr. Dowdall reminded his Lordship that the plaintiff had built a carpenter's shop on the foreshore.
  His Lordship said they all knew that carpenters' sheds had been put up over and over again on the English bund, the only extra formality being that application for permission had been made to the Municipal Council.
  Mr. Wainewright said at any rate they had it in evidence that the landlord did not know of this usage being made of the foreshore.  He then contended that in any case the plaintiff could not claim any right over that part of the foreshore in front of "Farr's Lot," which only came into the plaintiff's possession under the lease of 1876.
  Mr. Dowdall then rose to reply upon the case.  He submitted that the endorsement on the lease of 1863, in which the southern boundary of the premises was described as the "bund and the river," was distinctly a part of the lease.
  His Lordship asked Mr. Dowdall whether he relied upon the terms or the lease or upon evidence as to intention.
  Mr. Dowdall said he relied on both.  Continuing, he argued that the "bund and the river" meant that the boundary was the edge of the river.  He thought it had been stated in that way because "bund" alone might mean either the road or a row of piles.  It appeared to be a recognised fact that the Chinese title deed included the foreshore, subject to the payment of rent and other things; and he contended that it was apparent that under the lease of 1863the tenant was to have possession of a plot of land running down to the river in the same way as the landlord held a plot of land running down to the river. The tenant had the same sort of a holding of land running down to the river as the landlord had under his Chinese title deed.  The Municipal plan did not show with any distinctness the boundaries of the land.  The lines printed on that plan on the side of the land towards the place where Broadway now is was not the boundary of the plaintiff's land at all, and in another place there was no line at all; and the line towards the creek was no more the boundary than the line towards Seward Road. Then the lease said that the land was at the junction of the North Soochow and Seward Roads.  That amounted practically to nothing because Seward Road ran right across North Soochow Road to the bridge, and land described as at the junction of the two roads might reasonably extend to the creek.  Then Mr. Wainewright suggested that the plaintiff was not entitled to travel outside the lease; but he (Mr. Dowdall) would cite cases in which leases with similar expressions were allowed to be used.  He did not understand the position of his learned friend with respect to the Chinese law.  At the last hearing, Mr. Wainewright had said that it was ridiculous to suppose that Chinese law had any bearing on the case, and he (Mr. Dowdall) agreed with him.
  His Lordship pointed out that it was Mr. Dowdall himself who had first produced evidence as to Chinese law.
  Mr. Dowdall said he did this as a protection.  He did not know what view the Court might take on the subject.
  His Lordship was of opinion that Chinese law did apply to some extent.  The land was held under Chinese title deed, and Chinese law was applicable, as showing what the Chinese title deed included.
  Mr. Dowdall said in that case the Chinse evidence was before the Court.  His witness had said distinctly that the owner of the land was entitled to the accretion on his intimating to the authorities his willingness to do certain things, and the witness said that the lessee was also entitled to it.  The witness for the defence said the lessee was not entitled to it; but he asked his Lordship to compare those two witnesses as to credibility.  The plaintiff's witness did not appear to have any connection with the plaintiff; but the defendant's witness was in the employ of the China Merchants' Company, one of the managers of which was jointly interested with the defendant.  So that other things being equal, he submitted that his witness was more entitled to credence.
  His Lordship said the defendant's witness was a very intelligent person.
  Mr. Dowdall said they were both intelligent men.  The defendant's witness showed a great intelligence as to what was the defendant's view of the case; but beyond that he did not show more intelligence than the other. After the opinion his Lordship had expressed, he (Mr. Dowdall) would say nothing upon the question as to whether the plaintiff had acquired a right to the foreshore by usage.
  His Lordship said it was impossible for a judge in a place like this not to import into a question of this kind a little of his own knowledge.  He knew that it was a common practice of persons in the Settlement to use the foreshore in a limited way.  It was a common practice to put up work-sheds on the bund - not only in front of their own lots, he believed, but even in front of other people's lots.
  Mr. Dowdall said he did not know that, but as his Lordship had made up his mind on the point he would say no more about it.  Mr. Wainewright had suggested that Mr. Saunders had not said it was his intention that the lease of 1876 should include the foreshore.  Mr. Saunders might not have said it in so many words, but he was asked to mark out his premises on the plan and he drew the line down into the river.  Mfr. Saunders also said that in 1863 went into possession under both lease of the land and foreshore, and he said that he continued in possession of it, and never intended to give up anything.  Under the lease of 1876, Mr. Saunders was in possession of the land down to low water mark, and he contended that the words in the lease of 1876, "the whole premises being at present in his possession or in his occupancy or under his control," were equivalent to "Being the whole premises at present in his possession or in his occupancy or under his control."
  His Lordship said he did not see that there was any evidence that the foreshore had ever been in the plaintiff's occupancy.  He saw no evidence that Mr. Saunders had ever used the foreshore more than anybody else could.
  Mr. Dowdall said the foreshore was under the plaintiff's control, inasmuch as he sent away native boats and allowed a tenant to use part of the foreshore for building boats.
  His Lordship - I do not see that the plaintiff has ever been in possession of the foreshore in the sense of giving him any rights to it.  You see Mr. Dowdall what I would say in regard to that is that you learned gentlemen here, arguing the case of the plaintiff and the defendant, have unquestionably gone very much outside the leases.  I must confess that I thought the plaintiff had given more direct evidence as to his intention than I find in my notes; but it is clear to me that you have gone very much outside the leases.  Having done so, I have come to a very clear conclusion which I do not think will be easily affected. Then comes the question how far technical authorities you may cite - Mr. Wainewright has cited none - will affect the conclusion I have arrived at.  It seems to me that it would require cases very much in point to make me alter this conclusion.  I have, of course, as you have presented the caser to me, to look at the wording of the leases; I have then to look at the surrounding circumstances of which you have given evidence, and which by agreement between yourself and Mr. Wainewright ought to be taken into consideration.  Looking at the terms of the leases and the surrounding circumstances I entertain very little doubt about the conclusion which I shall arrive at.  Can there be any cases in point about these circumstances? If so, I shall be very glad to hear them.  
  Mr. Dowdall - I have not even told your Lordship the points on which I hope to succeed.  I do not understand that your Lordship wishes to stop me, and in my opinion these cases do bear upon it.
  Mr. Dowdall then proceeded to argue further that the words in the lease of 1876 "the whole premises being at present in his possession, etc.," should be read "being the whole premises in his possession, etc.," citing :Chitty on Contracts"  in support of his contention.  This being so, the parcels of the lease of 1876 give the plaintiff land down to the water's edge, and the lease of 1882 - the present lease - adopted the parcels of the lease of 1876. He proceeded to cite several cases to show that waste land on the opposite side of a road to a piece of property was deemed to be included in the lease of hat property.  He then cited a case to show that where accretions formed to mortgaged property the mortgagee became entitled to hold then, and he argued that similarly a leaseholder would be entitled to hold them.  He then quoted a number of s with regard to right-of-way.  In conclusion he said that the plaintiff had made every reasonable attempt to come to an agreement with the defendant.  He had offered to pay eight per cent per annum on the cost of the bunding if it were used as a garden only.
  His Lordship, in giving judgment, said - Well, the prayer of the petition in this case, I think, is for an injunction and $100 damages.  Now the question I have to decide is one which I do it think it is necessary for me to reserve judgment upon at all.  I find here that the plaintiff claims an injunction against the defendant ad $100 damages,  He rests his case upon the construction of these three leases and upon the surrounding circumstances,  Now taking the literal construction of these three leases I an far from satisfied that the plaintiff would be entitled under them to the use of the foreshore, or to the exclusive use of the foreshore.   But when I look at the surrounding circumstances and find what the Chinese law is - because evidence on it has been given by both sides, and in certain respects entirely agrees - finding what the Chinese law is, looking at the surrounding circumstances, and inferring what I believe to be the intention of the parties, I do not think the plaintiff has made out any case for the relief he asks.  Certainly he has given no evidence of his having sustained any damage.  
  Of course it is very difficult for a judge who has been a long time in a place like this, who has had cases of this sort more or less often before him, to dissociate from his mind, and to put away, his knowledge of surrounding circumstances.  At any rate I cannot help having a strong conviction that in a lease which is made of what we call a bund lot there is no intention of leasing the accretions which may come up.  It seems to be clear that this is so in this case, and there is absolute evidence of the intention on this point given by both Mr. Bell and Mr. Maclean.   I think therefore that I am entitled to come to the conclusion, and I do come to the conclusion as a matter of fact, that there was no intention on the part of the lessors here to lease or to give any exclusive rights over the foreshore to the plaintiff; and that being so I think he has failed to prove his case.
  To my mind also he has entirely failed to prove that he has suffered by what has been done.  I beg it to be distinctly understood that in giving this judgment, I offer no opinion as to the plaintiff's right to a view of the river, and air and light from the river, or to his right to a proper lading-place.  If at any time hereafter, his light and air should be interfered with or his view of the river interrupted, I apprehend that this Court may possibly be entitled to give him very complete and efficient relief.  As it is, I do not find that point raised.  He simply comes to prevent his landlord from taking possession of and utilizing that which according to Chinese law, as given in evidence by both the plaintiff and the defendant, he has the full right to use.  I do not think therefore he has made out any case for relief in this Court.  
  The petition therefore will be dismissed with costs, without prejudice to the plaintiff's right to apply to this Court hereafter should his view or his light and air be interfered with.

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