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Colonial Cases

Ince v. Thorburn, 1886

[land law, Shanghai]

Ince v. Thorburn

Judicial Committee of the Privy Council
Source: North China Herald, 17 April 1886

  This appeal was head on the 24th February before the Lord Chancellor and Lords Justices Blackburn and Hobhouse.  Mr. Myburgh, Q.C. and Messrs. Harwood and Stephenson, Solicitors, appeared for the appellant, and Mr. Gifford, Q.C., and Mr. Methold, instructed by Messrs. Johnson and Master, appeared for the respondent.  
  This case decides the validity of Land Regulations, and that they are binding on British subjects, and also settles the question of the beach grounds at Shanghai, and decided that the public have a right to use them as such, but that the ownership thereof remains in the land renter, who must not exercise any right of ownership inconsistent with the enjoyment by the public of such rights. &c., the judgment delivered by Lord Justice Blackburn was as follows:-
  In this case several questions have been argued with regard to which, with two exceptions, their Lordships do not feel any difficulty.  It seems to be perfectly clear that the power which is conferred by the authority of the Orders in Council which have been mentioned enabled Sir John Bowring, then Superintendent of Trade in China, to agree to regulations such as were actually agreed to, and the first question is whether he did really pass these regulations, and whether they are regulations for the peace, order, and good government of British subjects within this particular district of China.  Upon that there has been a great deal of argument addressed to their Lordships to endeavor to show that these regulations were not passed by Sir John Bowring as Superintendent and no doubt there was necessity apparently that these regulations, when passed by him as Superintendent, should be printed and exhibited for a certain time, so that all people might know of them. As to that, their Lordships think there is no ground for disputing that, in point of fact, all that was necessary was done.  It was said that it was not proved to have been done, but their Lordships think there is quite sufficient evidence to show that it was, and they think that after it had been decided, as long ago as 1865 in the case of Keswick v. Wills, that these regulations were valid, and there having been no impeachment of that decision since, they ought to advise Her Majesty that these regulations were validly made.
  Then there was an attempt to say that here was no evidence that this piece of land in question was within the locality affected by the regulations, and that there was no evidence to show that it was beach ground.  As to that, it seems perfectly plain, when the proceedings in 1872 about rating the land ae looked at, that both parties - that is to say, the council, whom the plaintiff represents, and the defendant - were asserting rights against each other, upon the ground that the land in question was within the locality, and that it was beach ground.  These are questions pf fact. And their Lordships therefore think that the Chef Justice was quite justified in coming to the conclusion that these facts were proved.
  Then there come two questions, and two questions only, in which there is really considerable difficulty.  The first of these questions is, what does this 5th Article of the Regulations of 1854 mean? There is little doubt that it is not very artificially drawn in any point of view.  It begins with the words:- "It is clearly understood and agreed to," and an attempt was made to show that it was not an enactment but an agreement with the foreign renters; but their Lordships think it clearly was intended to enact "that land heretofore surrendered by the various foreign renters to public use, such as roads and the beach grounds of the rivers within the aforesaid limits, shall remain dedicated to the same uses, and as new lots are acquired, such pats thereof as are beach ground shall be held under and subject to similar uses."
  The first question that arises upon that is, what are the public uses to which the beach ground was subject? It is certainly not to be found here, but their Lordships think it must be taken, and they will so advise Her Majesty, that these uses were those to which breach ground - that is, the sides of  the rivers -in is strict s held subject, such as probably to beach boats, to have access to the river, and the things of that nature, and that the land being subject to such public uses as those would not deprive the person in whom the beach ground was vested, by having taken a lease from  the Emperor of China, of the property, but it would oblige him to respect those public uses, and consequently would prevent the exercise of many of the rights of property. If it had stopped there I do not think there would have been found much difficulty in putting that construction upon it.  Then comes what their Lordships take to be a separate enactment altogether.
  "And due provision shall be made for the extension of the lines of road at present laid down, as means of communication in the Settlement.  To this end the Committee of Roads and Jetties" - it is now a different committee under the new regulations - "appointed by the residents within said boundaries, will, at the beginning of each year, together examine the map and determine what new lines of road are necessary."
  Then comes what their Lordships construe as a fresh enactment and regulations:- "And land subsequently required to be rented shall only be granted with the proviso, expressed or understood, that the renters shall surrender the beach ground aforesaid, if any, and the land required for such roads."
  Now there is considerable difficulty in construing those words, but the sensible meaning to be put upon them their lordships think is this - that every renter who in future takes land shall take it with the condition, expressed or implied; that as soon as he acquires the land it shall be subject to these public uses.  They do not think it can ever have been meant to require that the renter should subsequently exercise some deed or some instrument to create these uses.  He takes it subject to these uses ab initio from the time he gets it.
  Then it says:- "And in no case shall land surrendered as aforesaid, either heretofore or hereafter, be resumed or shall any act of ownership be exercised over the same by the enters thereof, notwithstanding they shall pay the Chinese Government ground rent reserved thereon."  Their lordships think that must be taken, construing it reasonably and, sensibly, as meaning no act of ownership inconsistent with the public use over the thing which has been granted to him.
  Then comes a provision which is certainly very difficult indeed to construe. "Provided always that no act of appropriation or dedication for public use of the said beach ground or ground for roads, other than those already defined, shall, contrary to the will or interest of such individual renters, in any case, be sanctioned or held lawful under these regulations."
  If that provision were construed to the full extent to which it is possible that the words might be said to go, that nothing without the consent of the renter shall pass the property at all, of affect the property already dedicated, it would be a proviso enacting that the previous enactment should be null and void, that is to say, the proviso would eat up the previous enactment.  Some construction and some sense must be given to it.  Their Lordships do not say it is easy to define what that construction should be, but they think it must be subject to this, that the dedication to the public use of the beach grounds, to the extent to which beach grounds go, is valid and effectual to give rights to the public as far as the public have those uses over the beach ground, and consequently hat there is jurisdiction as far as that goes to prevent, at the suit of the plaintiff acting for the committee, anything being done which is inconsistent with or obstructive of those rights.  
  The question of what those rights are, and to what extent those uses go upon the beach ground, has not been fully entered into before the Chief Justice, who was much more familiar with them and much more competent to require such evidence as might be required, but it is assumed throughout that those rights over the beach ground which the public have were inconsistent with the building upon it; and that is all that was prohibited.  
  Now, that being so, the only other remaining ground which their lordships have to consider is whether or not the previous proceedings in 1880 operate so as to prevent the public committee represented by the respondent from setting up against Mr. Ince the right they now have, on the ground that at that time, when there was a suit in respect of a trespass committed, and which ended in a consent decree, the matter becomes res judicata, or that for some other reason the respondent is precluded from setting up this claim. The fact that they did act in that way and did bring an action is evidence against the parties, but it is not by any means evidence which is to outweigh the rest of the evidence showing that it is beach ground.  The question whether or not it would stop the parties and bind them seems to depend greatly upon this, whether when we look at the proceedings and the way in which they arose, and the judgment which went by consent, there is an adjudication between these parties on a right to the ownership of the land subject to the regulations. There was no adjudication then as to public uses.  That was not a question raised in the case, and it does not seem to their lordships that there was any adjudication such as would bind the parties on the question now under consideration,, as to whether this was beach ground and whether the public had uses over the beach ground incumbent with allowing the appellant to build upon it.  
  That disposes of all the points which have been raised, and for these reasons their lordships will humbly advise Her Majesty that the judgment below should be affirmed and the appeal dismissed with costs. - L. & C. Express.

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