Skip to Content

Colonial Cases

Browett v. Municipal Council, 1898

[nuisance - town planning]


 

Browett v. Municipal Council

Court of Consuls, Shanghai
Steubel, Goodnow and Mansfield, 1 April 1898
Source: North China Herald, 4 April, 1898


 

LAW REPORTS.

COURT OF CONSULS.

Shanghai, 1st April, 1898

Before Dr. Stuebel, Consul-General for Germany, Senior Consul (President) John Goodnow, Esq., United States  Consul-General, and R. W. Mansfield, Esq., H.B.M.'s Acting Consul-General.

BROWETT v. MUNICIPAL COUNCIL.

   This was an action brought by Mr. H. Browett, Solicitor, of Shanghai, to refrain the defendants from depositing certain garbage or rubbish on certain land which he maintained formed part of his private property.

   Plaintiff's case was conducted by Mr. F. Ellis, while Mr. C. Dowdfall represented the defendant Corporation.

   The petition read as follows:-

   [1.] The plaintiff is a British subject, and a Solicitor of Her Britannic Majesty's Supreme Court for China and Japan, and resides at No. 14 Bubbling Well Road, Shanghai, in the Empire of China.

   [2.] The defendants are the Council for the Foreign Community of Shanghai aforesaid,  in pursuance of the powers invested in them by the Land Regulations for the Foreign Settlement of Shanghai aforesaid, North of the YangKingpang.

   [3.] The plaintiff has been since the 10th day of January, 1883 and still is, the registered proprietor of all that piece of land situated within the boundaries of ground set apart for the location of foreign Renters at Shanghai aforesaid as Lot No. 112, the Title Deeds whereof is also numbered 112, and which said lot, piece, or parcel of land, according to the said Title Deed measures in area 7 mow, 6 fun 7 li and 7 72/100 haou and is bounded on the north by the Shiu-tan of the Woosung Kong, on the south by the Peking Road, on the east by the land of Chien, Chu, Yang and Wong and land registered at the British Consulate General No. 991, and in the east by land of the British Merchant Major, and Chekiang Road.

   [4.] The defendants by their contractors or servants and workmen have for some time past unlawfully and wrongfully entered upon a portion of the said Lot of land and dumped and deposited and otherwise dealt with garbage thereon.

   [5.] The defendants by their contractors or servants and workmen still continue to unlawfully enter upon the said Lot of land and dump and deposit and otherwise deal with garbage thereon.

  [6.] The entering upon the said Lot of land by the defendants by their contractors or servants and workmen is a trespass and the dumping , depositing and otherwise dealing with the said garbage on the said Lot is a nuisance to the plaintiff and the tenants of the houses on the said Lot of land.

   [7.] The plaintiff has requested the defendant to discontinue the acts set forth in the paragraphs numbered 4 and 5 but the defendants have not complied with such request.

   The plaintiff therefore humbly prays this honourable Court:

   [1.] That the defendants, their contractors, servants and workmen and agents may be 

restrained by the perpetual order and injunction of thig honourable Court from entering upon the said Lot of land or any part or portions thereof and also from dumping or depositing or otherwise dealing with garbage thereon.

   [2.] That the defendants may be ordered to pay the costs of this suit.

   [3.] That the plaintiffs may have such further or other relief as this honourable Court may think fit.

   Plaintiff - This petition is filed by Mr. Francis Ellis, Counsel for plaintiff, whose address for service is No. 17A, The Bund, Shanghai.

   The defendants had filed the following answer:

   [1.] The defendants admit paragraphs 1, 2 and 3. 

   [2.] They admit the statements in paragraphs 4 and 5 except as to unlawfulness or wrongfulness and say that they have for over 20 years uninterruptedly used the portion next to the Soochow Creek of the plaintiff's Lot as a garbage yard for loading garbage into boats in ordinary course of public work of the Settlement and neither they nor their contractors or workmen are doing more than that now.

    [3.] They deny the statements in paragraph 6, and submit that if there is any nuisance arising out of the matters complained of the plaintiff has no right to have it abated now.

   [4.] They admit paragraph 7.

   [5.] The plaintiff's Lot was acquired from the native owners in the year 1865; and the part of it which is now used by the defendants was then beach ground and became, on such acquisition, subject to Public Use under Land Regulations V of 1854.

   The Council for the Foreign Community of Shanghai.

J. O. P. BLAND, Secretary.

   Both Petition and Answer were taken as read after which Mr. Ellis opened the case for the plaintiff. He said:

   I appear, your Honours, for Mr. Harold Browett, the plaintiff in this case. The relief which the plaintiff seeks at the hands of this Court is of a twofold character, viz.  That the defendants, their contractors' servants, and workmen may be restrained from entering on any portion of the plaintiff's land, and depositing or otherwise dealing with garbage thereon.  As it is admitted by the defendants that the plaintiff has since the 16th day of January, 1888, been the registered proprietor of all the land comprised in the Title Deed No. 112, it will only be necessary for me to  prove the fact of ownership formally by producing the Title deed and the receipts for the Land Tax, for the inspection of the Court, which I will do at the proper time. 

   I will now confine myself to the proving and establishing of that portion of the statement contained in paragraphs 4 and 5  of the petition which are both admitted by the defendants, and also the proving and establishing of the statement contained in par. 6 of the petition which is denied in toto by the defendants.

  Before however doing this and in order   that you may follow more closely this case, I will state certain facts (which will be borne out by the plaintiff when he gives his evidence) showing how the plaintiff came into the possession of that portion of land on which we contend the defendants have trespassed and are now trespassing and on which this nuisance is committed.  On the 6th of January,1888, that portion of the land which is comprised in the body of Title Deed numbered 112 measuring in area seven mow, and seven fun was transferred at the U.S. Consulate-General to the plaintiff by one Egbert Iveson. The Title Deed was in the ordinary course sent through the U.S. Consulate-General to then Taotai for the purpose of having the transfer duly recorded. The Title Deed was apparently retained in the city for more than a year in spite of repeated applications by the plaintiff through the American Consulate, and he was at length informed that he could not  have the deed unless he consented to purchase from the Chinese Government the accreted land to his lot which accreted land had  been  caused by the silting of the bar of the Soochow Creek. The land was accordingly purchased at a cost of Haikwan Tls. 524.47 and the proper indorsement of the accreted land made on the Title Deed and the same was returned to him by the United States Consul-General. It is accreted land on which the "Trespass" and "the Nuisance" have been and are being committed.

   Now as to the question of "the trespass" referred to in paragraphs 4, 5 and 6 of the petition. The defendants justify their use and occupation of the land in question by saying in par. 5 of the Answer that the plaintiff's lot was acquired from the native owner in 1862 and the part of it which is now used by the defendants was then Beach ground and became on such acquisition subject to public use under Art. 5 of the Land Regulations of 1854.

   One word at this stage of the case as to this Article 6 of the Land Regulations of 1854. - Does this Regulation apply to the locality of the land in question? I am of opinion that it does not. I will refer you to a letter written by Dr. Matthew Yates (a member of the Council many years ago and who was Interpreter to the American Consulate) to the North China Daily News and dated 4th February, 1885.  In this letter Dr. Yates gives his opinion as to the application of Regulation  5 so far as the locality was concerned, and the origin of the word "Foreshore." Here he gives it as his opinion that this regulation had no reference to the Soochow Creek or the Yangkingpang. This statement of Dr. Yates is borne out by the procedure followed at the British Consulate prior to 1854 by the fact that only on the bund lots in the register at the British Consulate is there any indorsement on the land register that the lot is surrendered to public use. I think I shall be able to produce proof of this. With these remarks I shall leave this point.

   The next point to which I will call your attention is to the "Beach ground." I must admit your Honours that I have failed to find any technical definition of this term in any dictionary or legal treatise. This term is I believe generally held to be synonymous with "Foreshore." Taking them to be synonymous terms, what is the meaning of this term? I contend that it means the land between high and low water mark. If the defendants differ from me as to this definition it is for them to give  a definition and support it by authority.

   But I do not admit that the land in question, whatever its nature was in 1862, was when acquired by the plaintiff in 1890 beach ground or foreshore, it was accreted or silt land which had formed on the deed land, it was not land influenced by the rise or fall of the tide. Now to whom does such accreted land belong? Undoubtedly to the Sovereign of the Soil the Emperor of China, and in the case of accreted lands who is the best person with the right to apply for the ownership of such land? Undoubtedly the owner  of the land in front of which the accretion had taken place. He has the sole legal right to call upon the Chinese Government to sell the land to him, because it is attached to his land. And if you require evidence as to this I can bring evidence from the Land Office of the British Consulate. If there was any use of this and by defendants prior to May,1890, it was between the Chinese Government and the defendants.

   Now I will take Article 5 of the Land Regulations of 1854, and I will endeavour to show you how far I understand it can be applied by the Council. Allowing that for the sake of argument that this land is such "Beach ground"as is referred to in Regulation 5.  1stly I say that the framing of this clause is ambiguous and therefore void as against the plaintiff. It provides that land subsequently required to be rented shall only be granted with the proviso expressed or understood that the renter shall surrender the beach ground.  The plaintiff has never surrendered the beach ground and he has never been called upon to surrender it. The proviso is that the Land Renters should do an act which the plaintiff has not done. Before they can fasten upon him the consequences of surrender they must make him surrender. 2ndly, as to the words "public use." The "public users" are not defined. What does it mean? Does it mean that the public can make a nuisance of it to the landholders? I think not. I submit that the "public use" intended here was that of making Roads. Taking this as the basis of my argument I submit that in accordance with this article 5, it would appear firstly that the Committee of Roads and Jetties at the beginning of each year must examine the map and determiner what new lines of Road are necessary, and, 2ndly, that land subsequently required to be rented shall only be granted with the proviso expressed or understood that the renter shall surrender the beach ground aforesaid if any and the land required for such roads.

   Now the construction to be placed on "beach ground" is I maintain the beach ground or foreshore that is accreted beyond the road after being surrendered to public use. Therefore when there was no determination at the beginning of a year for a new road, no road would be required and the beach ground if any would remain in the possession of the riverine owner. I will bring evidence to prove that there has never been any determination on the part of any Committee of Roads and Jetties or Municipal Council since the founding of the Settlement to make a road on the South Bank o*f the Soochow Creek between the Fukien and Chekiang Roads.

   It may be argued that between 1854 and 1869 the Settlement had not sufficiently developed to warrant the Municipal Council acquiring roads in new districts, but it must be borne in mind that the provisions of the article cannot be enforced unless there had been an examination of the map and a determination of a road  at the beginning of a year prior to the land being rented by a foreigner. I will bring evidence as to what road extensions were contemplated by the Council since 1854 which will show that no road extensions were contemplated in the locality of the plaintiff's land. I will go further and show that the defendants have never contemplated constructing a road between the Fuhkien and the Chekiang Roads along the South Bank of the Soochow Creek. And I will also show that the plaintiff's lot has been differently treated to any Lot in either English or Hongkew Settlements similarly situated.

   I come now to the question of the Nuisance referred to in par. 6 of the petition, and on this point I don't think it will be necessary for me to say much. The evidence which I shall offer for your consideration will show you very clearly the nature and extent of the nuisance, and I feel that when you have heard that evidence, you will say that the complaint of the plaintiff is a very proper one.  I am not taking objection to the depositing of garbage only on the ground that the continuance of this state of tings must of necessity produce material injury to the property but more especially on the ground that the nuisance is productive of sensible material discomfort and a serious danger to the health of those living in or near the property. M. Cameron, Sanitary Inspector, whom I will call will tell you how many cart loads of garbage are deposited on this land, and the number of times a day it is done. The medical evidence which I will offer will confirm the fact which must be quite apparent to you that where garbage is allowed to accumulate even for a short space of time - such a thing is highly conducive to the propagation of epidemic disease.

   Now I will direct your attention to a passage in the Municipal Council's Reports for different years past where this nuisance complained of by the plaintiff has been brought to the attention of the defendants. I will refer you to pp. 71 and 72 of the Municipal Report for 1889. From this correspondence you will see that the depositing of the garbage by the council on this land was detrimental to the Creek. Again in 1890 there is a complaint from the Chinese authorities on this matter. I will refer you to pp. 65 and 66 of the Municipal Reports for 1890, and on p. 67 you will see the plaintiff himself protested against the action of the Council. Again in the Council's Report for 1891 to which I will now call your attention, the Taotai writes to the Senior Consul (Mr. Wagner) complaining of the Council having bunded the foreshore requesting the Council to have it removed and the foreshore dug out, and prohibiting in future from depositing rubbish at this place so that the  Navigation of the Creek may not be interfered with - and in confirmation  of the complaint of the Chinese authorities I will call your attention to the Municipal Report for 1894, where it is admitted that  the disposal of the garbage by the Council was causing the Creek to silt up.  One more reference and that the strongest in support of my contention. At the Ratepayers' Meeting held on the 10th of March,1896, Mr. J. L. Scott made the following remarks. (Read Scott's speech.) This evidence I think disposes of the doubt as to the extent of the nuisance raised by the defendants in para. 3 of the Answer.

   I think I have proved conclusively the existence of this nuisance. Having established that to your satisfaction I submit that any attempt on the part of the defendants to show that they have acted with due care and caution either in the manner of carrying on the business which causes the nuisance or in the choice of place can afford them no defence. Again I submit that the mere fact (if it is the fact) that the operations creating the nuisance are not being carried on for profit, but in the interest of a large section of the public makes no difference, the question being simply whether the legal right of the plaintiff has been infringed and not being one of the balance of convenience between the public and the individual. 

   One word more on this part of the case and I have done. The defendants say in par. 2 of the answer that they have for over 20 years uninterruptedly used this portion of the plaintiff's land as a garbage ground. I do not admit the accuracy of this statement and a reference to the Municipal Council's Report 1879, p.83 shows that at this time the Council were not using this portion of the plaintiff's land as a garbage ground. It would seem from the letter that at this time the defendants were in the habit of utilizing a jetty at the north end of the Chekiang Road for depositing garbage previous to its being removed in boats. This same thing I will prove to you is done now on the Jetties along the Chinese Bund beyond French Town and it was only apparently after the jetty was removed and the foot-bridge constructed that the defendants seeing a vacant piece of ground close by proceeded to make use of it not as I contend as a matter of right but as a matter of convenience.

   Now just for the sake of argument even if  they have used this ground for over 20 years, what does it avail them? If this were a Court where the laws of England prevailed my learned friend might raise the question of prescriptive right, but in this Court we are amenable to no such law. Besides the question of 20 years does not concern the plaintiff, since he only came into possession of the property in 1890.

   Harold Browett, sworn, said - I am the plaintiff in this case.

   Mr. Ellis - How long have you been the registered owner of lot 12? - Since 16th of January,1888.

   That is the title deed covering the lot (produced). - Yes.

   Mr. Mansfield - Where did you get the phrase "Shui-tan" from, Mr. Ellis?

   Mr. Dowdall - It is in the Taotai's note at the end of the title deed.

   Mr. Mansfield - Shui-tan means foreshore?

   Mr. Browett - According to the translation made by Mr. Williams, he described it as the low-tide mark of the Woosung River.

   Mr. Ellis - On the title-deed there is an endorsement dated May 21, 1880.

   Plaintiff - Yes.

   Mr. Ellis - Will you tell the Court the circumstances under which the endorsement was made?

   Plaintiff - When the land was transferred to me in 1888 the title deed was in the natural order of things sent  into the city by the United States Consular authorities for the purpose of  having the transfer endorsed by the Chinese authorities. The time being long I made numerous applications to Mr. Emens who was the then U.S. Vice-Consul in charge of land business in the U.S. Consulate and who eventually told me that the Taotai would not allow the title-deed to come out of the city unless I agreed to purchase the accreted land to the north of my lot. I produce a letter which I wrote, but I am sorry to say I am only able to produce the press-copy of the letter to the United States Consul-General. I may say I tried to get the original but I understand it was not to be found. I will read the letter written on October 19th, 1890. (Red.)

   Mr. Ellis - Now why did you comply with the Taotai's demand to buy the accreted land?

   Plaintiff - Well, first of all, one of my reasons was this. That if I did not do so I would lose a valuable boundary to my lot; that is to say a water frontage. And of course it was no fault of mine that my water frontage had been as it were pushed away from me, and of course it was to my advantage to purchase the accreted land. Another reason was this, if I had not done so, it would have been open to any third party to come in and purchase, thereby depriving me of my water frontage and also thus depreciating my property.

   Mr. Ellis - What was the area of the accreted land you purchased?

   Plaintiff - 1 mow, 1 fun, 8 li and 7 72/100 hao.

   Mr. Mansfield - What was the original area?

   Plaintiff - 7 mow 7 fun. When the title-deed was sent to the city for the purpose of having the transfer to me endorsed by the Chinese authorities, the Chinse authorities took the opportunity of investigating the title and in doing so they discovered, which is borne out, of course by the endorsement, that the Chinese title-deed did not cover the area of land as stated in the title-deed, the land being measured including the accreted land. Therefore the lot, together with the accreted land, amounted to 7 mow, 5 fun, 4 li, and 7 72/100 hao, and as stated in the endorsement the boundaries in 1890 were on the north by the Shuitan of the Woosung, on the east by the land of Chien Chu-yeng and Wong, and land registered at the British Consulate-general No. 991, and in the west by the land of the British merchant Major and Chekiang Road. Of course, I may state that I have taken the endorsement up to the present time as the correct translation of the Chinese, and we, of course, go by the Chinese endorsement. I have always understood that the north boundary of my lot extended to the low water-mark of the Soochow Creek.

   Mr. Ellis - Again reverting to this endorsement. Did you on receipt of that consider yourself entitled to the accreted land mentioned in the endorsement.

   Plaintiff - Most certainly.

   Have you paid both Municipal Land tax and Chinese Land Tax on the whole of your lot? - I have.

   Not only on the original lot but on the accreted ground? - Yes, it covers all. The first receipt I have is for August 1st, 1888, wherein the area of my lot is stated.

   Mr. Ellis - I just wanted to bring out, your honours, that plaintiff had paid land tax to the Municipal council as well as to the Chinese, including land comprised in the original title-deed and the accreted land - the land which the Municipal Council say has been surrendered to public use.

   Plaintiff - I have therefore paid a land tax for land which defendants will not let me use. I put in the tax receipts, both Chinese and Municipal.

   Mr. Mansfield - When the accreted land was added to your lot were boundary stones put down?

    Plaintiff - I cannot state that for certain, but I am under the impression it must have been attempted because I have one of my boundary stones in the back premises of my office.

   Mr. Mansfield - Were you present? - No. 

   Mr. Mansfield - Any employee of yours present? - No, except the man who tried to put the stone down. I do not know whether I can produce them now. They were prevented I understand from doing so.

   Mr. Goodnow - Prevented by whom? - By the Police.

   Mr.  Mansfield - At the same time as the Taotai's measurement took place? - No, it would be after. There was no formal putting down of the stones.

   Mr. Mansfield - There are no boundary stones to the north side of your property? - No, none that I know of.

   Mr. Ellis - When did you make the first complaint to the defendant of the trespass they were committing? - In 1890. On 14th June,1890. II wrote to Mr. John McGregor, the Chairman of the Municipal Council. (The letter and reply were read.)

   Mr. Mansfield - Did you ever bring to the notice of the Council before now that the dumping of garbage was a nuisance?

   Mr. Ellis - I think I have already referred to that. There is a letter. It is in the Report of the Council for 1890 page 67. 

(To Plaintiff.) - Have the defendants ever acquired a public road along the south bank of the Soochow Creek adjoining your lot? - No, not to my knowledge.

   Have you ever received any notification from defendants that they intended to construct a road upon the accreted land? - No.

   Have you noticed the lot of land on the South Bank of the Soochow Creek in the same locality as yours? - I have.

   Will you tell the Court what you saw there? - I saw that the lots all as far as I could see to the west of the Chekiang Road buildings and south bank, have frontages right down to the water edge. On the east side of lot 112, the fences in some cases and buildings in others are right down to the water's edge and as to the rest of the lots very nearly down.

   From what you saw did you consider that any if the accreted land of foreshore was apparently dedicated to public use? - Most certainly not.

   Have you surrendered at any time in any shape or form, the accreted land to the defendants? - I have not. And I have never been requested to do so.

   Now would you describe the use to which the defendants have put your land of which you are the registered proprietor. - Well the way in which they are using it now by depositing garbage and manure upon it makes it quite impossible for me to enjoy it. I may say I have been down there on several occasions and have had to pick my way on the land and at the same time hold my handkerchief to my nose, as the odour arising from the manure and garbage was so offensive. I have never seen it free from garbage and manure. It is a personal nuisance to me and to the tenants of the property and also a nuisance on account of the fact that large quantities of garbage fall into the Creek. There is also a nuisance because the garbage boats collect opposite the lot and must interfere with the roadway of the Creek. On one occasion when I went down, on February 10th, 1898, I saw sixteen garbage boats arranged vertically (abreast) in the Soochow Creek, twenty  more boats arranged vertically (abreast) in the rear of the sixteen, and twenty more boats horizontally  in rear of the other. These boats are each I should say about thirty feet long and that is to say they would extend down the creek sixty-eight or seventy feet. It would be utterly impossible for me to have access to the river from my lot.

   Mr. Ellis - That is all I have to ask you.

   Mr. Goodnow - Will you give me the press-copy of the letter you referred to. (Handed to his honour.)

   Mr. Goodnow - In this letter you use the word "accumulations" and "foreshore" in the letter as synonymous terms? - No. I adapted the expression as used in the title-deed. They are not my own words.

   Mr. Goodnow - You say "I have purchased the accumulations or so-called foreshore"? - Yes, those are my words but I use the words "accumulatios or foreshore" because those words are used in the translation of the title deed.

   Mr. Goodnow - Is it the common practice from your knowledge to use the words "accumulations or foreshore" as synonymous terms for covering the same ground? - No, certainly not.

  Mr. Goodnow - Yet you use them here? - I simply used the word "accumulations."

   Mr. Goodnow - You used the term "foreshore" here as meaning "accretions"? - I certainly deny that the accreted land is foreshore.

   Mr. Goodnow - That is the reason why I asked you to define whether in using the terms as synonymous or alike was a common habit at that time.

   Mr. Dowdall - Will you please refer to the title deed, Mr. Browett, and give me the date of it? - March 19th, 1863, being the transfer by Chinamen to foreigners.

   Is that date the original acquisition by foreigners? - Yes. The original owner or purchaser was Mr. H. S. Grew, who purchased it from two Chinese.

   Now, when you were about to acquire that land did you inquire how the frontage happened to be fenced off from the jetty of the lot? - No. I do not think I did.

   Did you enquire how long the Council had been using that frontage and whether they were likely to acquire any right of possession? - No.

   Did it occur to you about getting possession of that foreshore? - No, at this distance of time I am not in a position to state.

   Did you know there was a boundary stone outside the fence with three Chinese characters on it meaning "Public Land Stone"? (Paper with characters on handed to Mr. Mansfield.) - No.

   Did you make any advances to get the land? - That I am not prepared to state.

   You first protested in 1890? - Yes, although I purchased it in 1888 I did not get my title deed back until 1890.

   The Council then in 1890 refused to do anything? - Yes.

   Had you any special reason for delaying until 1898 in asserting your rights? - Well, I had reasons.

   John Black Cameron (sworn) said - I have been Sanitary Inspector to the Council nearly five years. It is part of my duty to see to the disposal of garbage collected in the Settlement. Garbage is collected from the roads twice daily; morning and afternoon, at the present time 6 o'clock in the morning to say 10 o'clock, and from 1 o'clock to about 3.

   Mr. Elli - Do you consider that this land is at any time really free from garbage? - I should say free from garbage every day from 4 o'clock until 6 o'clock the following morning.

   Do you medan to say that it is then absolutely free from garbage? - Absolutely free from garbage.

   But is not manure part of the garbage collected and deposited on this lot? - No.

   Who then deposits manure there? - I believe there is some other person who deposits manure there.

   Have you made any attempt to stop it? - No.

   Can you tell me if the ground there is drained at all? - Yes, there is a sewer that goes right through it and empties into the creek.

   Is there a Sanitary Board at Shanghai? - Yes.

   Have you ever been a member of it? - I have, about two years ago.

   Have you at any time reported to the Board the nuisance arising from the way in which the garbage in the English Settlement is treated? - I have.

   Have you ever made any suggestions as to how the nuisance should be overcome? - I suggested a very proper method of disposing of it by having shutes instead of dumping, in my report to the Council.

   Do you know for a fact that many grave complaints have been made with regard to this nuisance? - No, I heard you read something about complaints.

   You heard me refer to the speech of Mr. Scott, but you do not know from your own knowledge? - No

   By Mr. Dowdall - I made no attempt to stop manure being dumped on the land in question because the party who put the manure there is not a Municipal contractor. The drain does not go really through the ground, it really angles a part. I should imagine the drain to be of Municipal make. The eye of the drain is close up or a few feet from the fence, and the drain from that part of the Soochow Creek at low water mark has evidently been added to it since.

   You suggest shutes? - Yes, on the foreshore of the land.

   Well, suppose you cannot use that land what would you do? - Well, I really don't know what we would do. There is no other place.

   Mr. Mansfield - What is a technical definition of a shute? - The shute I suggest would be  that the particular foreshore be bunded up to the original level and iron shutes be put along the front, so that carts could simply come along, back to the mouth of the shutes, and simply shoot their contents into the boat. We have one, which we have used for possibly two years at the Hongkew Creek. The shute would be a moveable one according to the state of the tide.

   By Mr. Dowdall -  We should be in a very serious difficulty if we could not use this land with or without shutes. A garbage destroyer has been talked of.

   To what extent would that reduce the garbage of the settlement even supposing you got it here? - Well, I presume if a garbage destroyer was got here it would reduce the lot.

   There would not be any refuse? - Well, certainly an amount of refuse of different kinds, but a different kind of refuse to which we remove now.

   Mr. Goodnow - You say garbage is dumped on the ground. Is it night soil - No, only house and stable garbage.

   Brought in waggons? - Yes.

   How many loads are taken there a day? - To that particular lot about 80 or 90 cart-loads per day.

   Are these carts covered waggons? - Some of them are, some are not.

   There must be quite a stench there sometimes? - There is not the slightest doubt there is at tines, but the garbage does not remain there but for a very short time. At certain times I dare say garbage is grubbed u by native countrymen almost before it is taken from the cart. Boats are always there, we have sometimes more boats than we can put garbage into.

   What is the nature of the ground? - Hard ground.

   Is there any artificial covering put over it? - Yes, between high and low water mark it has been paved with granite. Other parts are also macadamised. The depositing of garbage there has been done since I have been Sanitary Inspector and probably twenty years before.

   Mr. Goodnow - Have you ever tried to get another piece of ground? - Yes.

   Dr. Stuebel - From the whole areas of the English Settlement the garbage is put into boats at lot 112, not from the Hongkew Settlement? - No, from Hongkew Settlement it is put into boats  at the Stewart Road bridge.

    Mr. Mansfield - The Council does not collect garbage outside Bubbling Well Road? - Yes, but it does not go to this place.

   Mr. Goodnow - This manure you peak of as being brought there by other than Municipal Contractors, that is outside the number of manure carts you speak of? - Yes, quite a number of stables contract with an old woman to collect their garbage. She gets the manure there, on the Lot 112, puts it into boats and has it carried away. She has about 5 to 6 hand cart loads per day.

   Mr. Ellis - Is it not a fact that this land is visited by a number of natives who come and pick on the ground and so to speak stir up the garbage? - There is a lot of these poor people who come and pick up pieces of matting or anything else, something in the way of rag pickers.

   Do you not think that is likely to stir up the stuff and cause it to fly about and make it more offensive?  -It is only stirred up when it is discharged and is being carried to the boas. At the present moment the garbage from outside the Settlement is taken to Sinza.

   Do you not think it could be arranged to take this garbage from the Settlement there? - No. I do not think the land at Sinza large enough.

   Charles Mayne, sworn, said - I am surveyor to the Municipal Council and have been for eight years. It is the practice of the Council to tax land if it is on the register. I refer to land held by foreigners. Land is taxed on the cadastral area.  As far as I know the Land Regulations apply to the Hongkew Settlement.*

   Mr. Ellis proceeded to question the witness with regard to other lots but was stopped by the Chairman who did not think it in any way affected the case before the Court. They must consider lot 112 separately.

   Mr. Ellis - I cont*end that all landowners should be on the same footing. I submit that this is not a foreshore but accreted land to which we are entitled to have possession and make use of.

   At this stage the Court adjourned for tiffin.

   On re-assmbling

   Mr. Mayne was further questioned by Mr. Ellis - In my opinion it is a very thickly populated neighbourhood. 

   By Mr. Dowdall - I don't know of any other place in the Settlement where the Council could deposit rubbish.

   Dr. William Alexander Duncan called and sworn and examined by Mr. Ellis. - How long have you been in Shanghai?? - Three years.

   Have you inspected the piece of land numbered 112? - I have.

   Now from the appearance of the ground what opinion did you form from a sanitary point of view? - I think the operations must produce a deleterious effect upon the atmosphere.

   What is your opinion as to the population of the neighbourhood? - I should say it is very thickly populated.

   Do you consider as a medical man that garbage ought to come anywhere near a locality where there are so many residents? - No. I do not.

   Did you notice any houses near the garbage yard? - Yes, within twelve feet of it, and on the other side of Chekiang road houses tight up to it.

   By Mr. Dowdall - The residents I should say are chiefly Chinese. I do not know whether they object. Some Chinese would not object to anything in the way if a nuisance. Some people have no nose. (Laughter.)

   Mr. Brenan Atkinson was sworn and examined by Mr. Ellis. Yoy are an engineer and architect in practice here? - I am.

   How long have you been working in Shanghai? - Four years on my own account and upwards of twelve years elsewhere.

   With regard to the article in the Land Regulatiions dealing with boundary stones do you know whether these stones are placed under the supervision of the Council? - No.

   You know this land? - Yes.

   What would you consider the vlaue of it? - I should say about seven thousand taels. That is putting it very low.

   Should you consider this portion in question foreshore? - I should say distinctly not.

   Mr. Ellis - That closes my case.

   Mr. Dowdall - There are three points which I wish to place before the Court as to this land occupied by the Municipal Council. The first is that it was foreshore when it was first acquired by foreigners and by the land regulations of 1854 is held upon trust for public use.

   The second is that the land has been used continuously for more than twenty years by successive Municipal Councils for the conveyance from the Settlement of garbage and I think the Court will consider that this gives a right to us. 

    My third point is that after the Council has been allowed to go on for so many years using this land for the purpose I have specified that whatever relief is given to the plaintiff it ought not to be by way of injunction.  This land was acquired by foreigners in 1862 after the passing of the Land Regulations of 1854 therefore this accreted land is for public use.  In the case against Ince who owned land in the Soochow Creek which was  tried in the British Court where it was decided that as the land was foreshore he could not exercise the rights of ownership as it was dedicated to public use. I will however reserve what remarks I have to make until a future occasion but call my witnesses who will show that the land has been continually used by the council for more than 20 years.

   James Beckhoff was sworn and examined by Mr. Dowdall. - You are inspector of works to the Municipal Council? - Yes.

   You were I believe overseer of roads previously? - I was.

   How long have you been in the employ of the Council? - Since 1870.

   You know the garbage wharf on the Chekiang Road? - I do.

   Will you tell the Court what was going on there 27 years ago? - Well in the first place we raised the land and the ground is now two and a half feet higher than It was then. I know positively that this particular piece of land has been used for depositing garbage on since 1875 or 1876 continuously.

   Mr. Goodnow - Do you know that of your own knowledge? - Yes, of my own knowledge.

   George William Davies was sworn and examined by Mr. Dowdall. - He said in reply: I am a tax collector in the employ of the Council and I remember the garbage wharf since 1872. Garbage was in the first place used for filling up the land and was taken there every day. The landlord made offers to them to fill the land in this way.

   By Mr. Ellis - I have been to the garbage yard on many occasions but I don't remember ever having seen garbage standing on the ground at all times of day.

   Mr. Dowdall - That is as far as I am prepared to go today. I want to call Mr. Kingsmill but he is not here and I do not think there would be time enough.

   After some little discussion as to the adjournment it was decided to postpone the further hearing until Tuesday the 5th instant at 9.30 a.m.

 

Source: North China Herald, 11 April,1898

LAW REPORTS.

COURT OF CONSULS.

Shanghai, 5th April.

Before Dr. Stuebel, Consul-General for Germany, Senior Consul (President), John Goodnow, Esq., United States Consul-General, and R. W. Mansfield, Esq., H.B.M.'s Acting Consul-General.

BROWETT v. MUNICIPAL COUNCIL.

   The Court resumed the hearing at the German Consulate-General, of the action brought by Mr. H. Browett, Solicitor of Shanghai, against the Municipal Council for the Foreign Settlement north of the Yangkingpang to restrain them from depositing garbage or rubbish on certain common land which he maintained formed part of his private property.

   Mr. F. Ellis against represented the plaintiff, and Mr. C. Dowdall appeared for the defendant.

   Mr. Dowdall continuing the case for the defence, called

   Mr. Thomas William Kingsmill, who was examined to the following effect:

   You are an architect, I believe? - Yes.

   How long have you been practising in Shanghai? - Since the latter end of 1863.

   Did you make a map of the Settlement? - Yes.

   And the date of that please? - It was in 1864, and finished in, I think, the early part of 1865.

   Did that include the creek bank and the lot of land in disputer? - Yes. My survey was generally taken and the outlines filled in afterwards. I think it was early in 1865 that the foreshore line was drawn on the map.

   How does the lithograph compare with the original tracing? - It is a very fair representation of the original. It was done with the pantograph. I have the original tracing taken at the time from the original survey and I compared it yesterday.

   Is this the lithograph? - Yes.

   (Document handed in.)

   Will you point out to the Court on this lithograph which you say is accurate, this plot of land and describe the highwater mark at the time you did a survey of the land? - The lot of land is here marked in red, and at the time I surveyed it there was a fence of some sort, seemingly a bamboo fence along that line. In 1865 the low water mark was taken specially, and a couple of mornings I was down with my full surveying staff so as to have an accurate representation. The high- water mark polaced it on the actual bank but I find the present fence has advanced some thirty feet in front of it. 

   I was subsequently employed by the Council to define the boundaries of the plots. As far as I remember there was a passage-way here but one end has been closed now. The land was at this time I believe registered in the name of Mr. Grew and then in the name of Mr. Forbes both successive partners in the firm of Russell & Co. As the partners changed so the registration of the land was changed.

   Mr. Goodnow - The line now is below what was then the high-water mark. - Yes.

   Mr. Dowdall (continuing) - You have pointed out on the map where the fence was in 1856?  - Yes.

   Has the water receded or acceded? - The bank had been actually growing from the side of the creek.

   What do you remember about the early dumping of garbage at this particular point? Will you tell the Court whether you have been moderately well acquainted with this particular lot for some time? - I know the lot but I never paid any particular attention to it except at the time, I was working out the boundaries for the Council. At the time there were a number of old Chinese houses of very inferior description there, and I know I was in treaty to purchase some of the property, but could not come to terms in consequence of their wanting more than I considered the real value.

   Yes, but I am asking about the dumping of the garbage there. What has been the practice? - During the last ten years garbage has been deposited there, and immediately afterwards cleared away in boats.

   Mr. Mansfield - Do you mean by that, that it has been the custom to leave it there some time? - Yes, they simply dumped it there, but it was not immediately taken away.

   Mr. Goodnow - But in the last ten years everything placed there has been immediately take away. - Yes.

   Mr. Dowdall (continuing) - How is the work carried on now? - I think the work is carried on very fairly.

   How does the place compare with other parts of Shanghai?  Would you regard the place as a serious nuisance? - No, there is no serious nuisance about it. The nuisance if anything is caused on the plaintiff's property by others.

   Cross-examined by Mr. Ellis - How many time shave you been down to the garbage yard lately? - I suppose I have been down fifty or sixty times in the last two years. I was interested in some property adjoining it.

   Lately have you been down there? - Yes. I was there on Sunday.

   You have just told the Court that the plaintiff's land causes more nuisance than anybody else's? - Yes.

   Do you know whether this nuisance you speak of is caused by anybody connected with the plaintiff? - I don't know. I have not the slightest idea.

   Might it not be occasioned by those employed by, or allowed to go on the land by the Municipal Council? - No.

   With regard to this plan you have put in did you make this survey personally? - No, only a small portion of it. The survey was carried out under my supervision by a gentleman of the name of Turner but I had a regular surveying staff and we all gave our assistance in completing it.

   I believe you were in partnership with a gentleman named Whitfield? - Yes.

   Now was not this survey made by Mr.  Knevitt? - Mr. Knevitt had nothing to do with this end of the Settlement, but he joined us in the filling in. The survey was made entirely by my firm and in filling it in we took the Northern portion of the Settlement and Mr. Knevitt the southern portion.  Of course I could not make this by myself.

   Is it not a fact that there have been several inaccuracies with regard to this survey?  Have not complaints been made to the Council? - Yes, and every one of them has been in the Southern end of the Settlement.

   Anything to do with this lot? - No, there were two glaring inaccuracies. One was in regard to the Old Cemetery and the other at the southern end of the Honan Road. With these exceptions the survey is extremely accurate. I constantly use it myself for rights of way and things of that sort.

   Have you not had great experience in acquiring foreshore? - Yes.

   Did you obtain those accretions or foreshore from the Chinese Government? - Yes.

   And were you registered the owner of the lots where you obtained them? - Yes.

   Did you consider when you obtained the Consular title deed for these accretions, that they belonged to the Municipal Council? - They don't, as a matter of fact, belong to them and under the Land Regulations they don't, but they are for public use. The ground belongs to the registered owner but the right over the accretion is subject to public uses.

   What do you consider are public uses? - Anything that will relate or tend to the advantage of the community where there is no private right concerned. I will give you an example where I had to surrender a portion as owner of an adjoining lot.

   How much have you surrendered? - Thirty feet.

   Did they claim that as a matter of right or as a matter of arrangement? - As a matter of right.

   You surrendered thirty feet? - Yes, that was all I was asked for.

   Mr. Dowdall - I want to put in one letter. This is from the plaintiff to the secretary of the Municipal Council, dated 21st January,1898. In it he says: "I am not addressing the Council on behalf of the community with regard to this question as a nuisance, but as an individual landowner asserting his rights over his own property."  I take it, your Honours, that I am not required to prove the Land Regulations of 1854?

   The Chairman, - No, certainly not.

   Mr. Dowdall - Well, may it please your Honours, I have made an epitome of the evidence on the heads I mentioned in my opening and I think it will not be wasting time if I mention the heads of that epitome to the Court.

   First of all I submit that this land comes under Regulation five of the Land Regulations of 1854 and for this reason lands acquired thereafter are subject to public use. I submit it does not matter in the least how the beach ground is acquired, whether there was any extensive beach ground or whether it was acquired afterwards, and I don't think it makes any difference whether the owner of that particular lot paid for his beach ground or bought new beach ground, so long as I can satisfy the Court that it comes under the description of beach ground and, as such, is held by the owner of the lot as his property but upon trust for public uses.

   Now my first point will be to show that what the Council occupy or pass over as this garbage wharf comes under this description. The plaintiff in his evidence gave the date of the deed of transference from the Chinese owners in 1862 that is after the Land Regulations of 1854 and before those of 1869. The Taotai's endorsement when Mr. Browett paid for this additional property is referred to as foreshore. To further show that it was foreshore I will refer to some evidence which was given which will show clearly that the water washed over this land when the Council filled it in. In his evidence Mr. Beckhoff in reply to Mr. Goodnow's question as to how far off high water mark comes up says "up to the fence before we raised the land." The Mr. Davies after speaking about the disposal of the garbage says afterwards the Council raised the land above high water mark. I submit then that this does show that it was beach ground and I don't think the mere fact of the Council raising the ground above high water mark can make it cease to be beach ground within the meaning of Regulation 5 of the Land Regulations of 1854, and it seems to me that the making of a wharf at this place for public purposes was well within the meaning of the Land Regulations of 1854, which state that the beach grounds were to be held in trust for public purposes and appointed a Committee of Roads and Jetties, the nearest thing you can have to a wharf.

   Now I come to my second point, and I submit also that it is a very strong point. This is that the Council has used the land so long that they cannot now be disturbed in claiming the use of it. As to the evidence on that point Mr. Beckhoff said that in 1874 or 1875 when the Council decided to use this particular portion of the foreshore he says there was a small fence there and then he mentions the boundary stone and the fence on the eastern side of the garbage wharf. The fence I take it was open to the road and open to the river and he says that fence on the eastern side must have been put up in 1871. Mr. Davies says it was, "in April,1876, that I believe we first put garbage there and the boats took it away." I mention these points in support of my suggestion that twenty years' use has been made of the ground. Then Mr. Davies speaks of raising the ground and putting chips upon it. This I hope will satisfy the Court that there was twenty years' use of the land.

I have mentioned before the English definition of a nuisance taken from Smith's Manual of Common Law as given in the seventh edition, page 8. It says "a nuisance is something done which prejudicially and unwarrantably affects the enjoyment of the rights of any person."

   As to my third point that any relief that was given should not be by way of injunction, I have added now for the consideration of the Court that this is no case for any relief at all, and certainly not by way of injunction. This is a relief given only where prompt action is required and where no other relief would avail. I submit moreover that no relief is called for in this case as the plaintiff bought the land with a full knowledge of the circumstances. The plaintiff in his evidence admitted that he did not enquire how long the Council had been using that frontage or whether they were likely to acquire the right of possession. He added that at that distance of time he was not in a position to state that it occurred to him about getting possession of that foreshore.  I think the inference is that when he acquired this lot the foreshore was not taken into consideration as a valuable part of it. I also submit in opposing relief being given, and that it is not called for, there is no such nuisance as entitled the plaintiff to relief. Mr.  Maybe in his evidence said that the nuisance was not so bad as that caused by the filatures. Then he said that he had known garbage deposited at home in as close proximity to foreign homes as this is. Mr. Cameron in his evidence says he has not heard of any complaints. Dr. Cooper said he had only been in Shanghai three years so that his evidence is not by any means definite or conclusive.

   Now the plaintiff sues as he is entitled for a private nuisance to himself. Paragraph six of the petition says: "The entering upon the said Lot of land by the defendants by their contractors or servants and workmen is a trespass and the dumping, deposition and otherwise dealing with the said garbage on the said Lot of land." And that coupled with the letter I have read in which he states that he writes as an individual landowner asserting his rights over his own property, shows clearly that he is claiming a private nuisance. He is suing on behalf of himself and the question I submit will be one between himself and the Municipal Council. It is not to be inferred for a moment that the inhabitants of the district would be prepared to join with him in such an appeal.

   I will just refer very shortly to the Ince foreshore case and how very like it it to this case. It was tried in the English Court, the plaintiff being Mr. Henry Alexander Ince and the defendant Mr. Thorburn, secretary to the Municipal Council. It related to foreshore on the same side of the Foochow Creek as this foreshore only lower down, and therefore of more importance. Mr. Ince who had fenced it in was proceeding to build on it when the Council brought this suit against him. The Court held that it was subject to public uses and not to be used in the way he was proposing. Amongst other defences set up was that it was not foreshore, and if it had been was not then. But the decision of the Court which was confirmed by the Privy Council at home, held that It was foreshore and held subject to public use and this notwithstanding the fact that it had never been surrendered by abny actual deed of surrender to public use. With these few words I will leave the case in Your Honours' hands.

   Mr. Ellis then replied for the plaintiff.

   He said - It now becomes my duty, your Honours, to address you by way of reply on the whole of this case, and in doing so I hope to show you by the brevity and conciseness of my remarks that I have profited by the adjournment so kindly granted to my learned friend and myself on Friday last. I will reverse the order which I adopted in opening my case and will first deal with the question of the nuisance. I have proved by the evidence given on behalf of the plaintiff that a nuisance of a grave character exists, so I will say no more on this point, but I must say one word on the line which my learned friend has taken regarding this. He said that "he hoped the Court would consider that according to the law of civilised nations a use of land of 20 years or more will give a person who had been using it the right to continue to do what that person had been doing, but I submit that in the absence of any special legislation affecting the subject matter that you cannot introduce is the English Law of Real Property or the law of any other country.  It being a universal principle of law that in all questions respecting immovable property the lex loci rei sitae prevails.  The defendants' counsel had attempted to enlist the sympathy of the Court when justifying the use made of the property by saying that it would be very difficult to get another suitable place on which to go and deposit the garbage. Such an argument must be futile if you are satisfied of the existence of the nuisance. Reference was made in Mr. Mayne's evidence to garbage destructors for the purpose of burning the garbage and he was asked by my learned friend why a garbage destructor was not got. Mr. Mayne replied: "Because I am not satisfied with any in the market to burn this refuse properly. It is very difficult to burn." 

   Now I would like to call your attention to Mr. Mayne's report for 1896 contained in the Municipal report for 1897 where he gives a different reason from this. It appears that a destructor to do the work could be got by the Council paying a little more money. 

   My learned friend in his opening suggested that the relief prayed for was not in the proper form, and that instead of asking for a perpetual injunction the plaintiff should have asked for damages. Your Honours, the plaintiff does not ask for damages, because he does not want temporary relief, he wants the full enjoyment and possession of this land and this can only be obtained by an order of this Court ordering the defendants to cease depositing their garbage on this land and to quit the said land forthwith. 

   And now as to the question of "trespass." My learned friend in his opening used these words: "And one would have thought a prudent purchaser would have inquired as to the use made of the land outside the fence and whether it would have been worth while paying purchase money for it." Why should he have inquired as to the use made of the land?  It belonged to the Emperor of China whose sovereignty the plaintiff acknowledges by applying to the Chinese authorities for a Title Deed. The defendants in making the use they have done of the land have simply been availing themselves of the indulgence accorded to them by the Chinese authorities. But they never had any legal right to this land and there is no evidence before the Court that they took any steps to acquire it and the Chinese authorities have proved this by granting a foreign Title Deed to the plaintiff.

   Now from the evidence given by Mr. Mayne I have established the fact that no Committee of Roads and Jetties or Council have since 1854 done anything in accordance with article 5 of the Land regulations indicating their intention or determination of making new roads. Now article 5 of the Land Regulations on which the defendants rely, clearly enacts that "the Committee of Roads and Jetties appointed by the residents within the said boundaries will at the beginning of each year together examine the map, and determine what new lines of road are necessary, and land subsequently required to be rented shall only be granted with the proviso expressed or understood that the renter shall surrender the beach ground aforesaid, if any, and the land required for such roads."  Now is there any difficulty in construing these words?  I think not. I submit that the plain construction to be put on them is - what I have already contended, viz. that the Committee or Council, must at the beginning of the year examine the map of the settlement and determine upon what new lines the roads are necessary. In consequence of this examination and determination by the committee, and subsequent to such action, any renter acquiring land on the line of such road acquires it subject to the condition that he shall surrender such land as is required for the road, and supposing that the lot adjoins a river or creek the beach ground or foreshore, i.e. land between high and low water adjoining the road, is surrendered to public use.  And in passing I would like to call your attention to the meaning of the word "surrender" in the regulation as defined by Dr. Winchester, H.B.M.'s Consul, at a meeting of Ratepayers held on the 12th of March,1866; he said that "surrender" as here used did not mean a surrender by deed but a right of way along the river conceded to the public by the lot holders.

   Now if there was no examination of the map by the committee or Council at the beginning of the year and a determination as to the lines of roads, the Regulations did not become operative and the beach ground if any would remain in the possession of the riverine owner. Allowing for the sake of argument that the defendants had examined the map prior to 1890 and determined upon a line of road along the south bank of the Soochow Creek between the Chekiang and Fuhkien Roads, what rights would the public have had under the Land Regulations over the accreted portion of Lot 112?  The plaintiff would have had to surrender such portion of his lot as would be required for the purposes of the road adjoining the Soochow Creek, and the foreshore in front of the road appertaining to the lot in order that the public might have the right of access to the water. The compulsory surrender moreover would be in compliance with a general scheme under which the adjoining owners similarly situated would have to surrender their land for a public road, and the foreshore adjoining the road. If this were done, the plaintiff who had given up his land for a road, and conceded to the public a right of way to the water frontage in front of his lot, would have the same privileges and facilities over his neighbours' lots as his neighbours would have over his. 

   Now assuming that the Regulation had been made operative by the defendants how much land would they have been entitled to take from the plaintiff? At most 30 to 40 ft. wide being part of a general scheme of road extension. The defendants do not admit that there must be a general scheme of road extension, but claim that they are entitled to all the accretion to Lot 112. By the action of the defendants the plaintiff's property has been taken without just compensation, because as I have shown, if the defendants had made the regulation operative in the locality, the plaintiff when called to surrender a certain area off land to the public for a road would have obtained compensation by the use of the road along his neighbours' frontage. In this case there has been no attempt whatever to make that compensation which is clearly implied by the regulations. 

   I now come to the attempt made by the defendants to impugn the Title Deed for Lot 112 which bears the  seal of the Taotai, the same seal which is affixed to the Title Deeds of the whole Settlement and which same seal I take it was affixed to the Land Regulations of 1854 by the then Taotai or Chief Local Authority representing the Chinese Government. This deed is moreover issued under the seal and by the authority of the United States Consul-General. By their action it would appear that the defendants were a sovereign power but they are not, they are simply the authority charged under the Foreign Treaty Consuls with the care of the Settlements, they are not possessed of a dispensing power and thereby justify their action as regards the plaintiff's lot only, leaving the other ninety-nine lots similarly situated alone.

   They cannot blow hot and cold. They must act fairly and either take all the accretions to lots similarly situated or they must act in accordance with the construction of the Regulation I have laid down. If the defendants are right in their contention that irrespective of the fact that they have not made the Regulation operative, that the public are entitled to the entire area of all accretions to lots since 1854 in the English Settlement and since 1869 in the Hongkew Settlement what would be the result of the judgment of this Court to that effect?  It may be argued that no Council would ever attempt to play havoc with the settlement by acting upon such a judgment. But why not? At any time in the future there might be a strong Radical Council in power who may argued on the following lines: The public have been awarded the accreted land for Lot 112. Now let us enforce in discharge of our duty to the public our rights over the accreted land and the Mills, Filatures, Wharves, etc., in the English and Hongkew Settlements.  I therefore submit that the construction the defendants have attempted to put on this Regulation is not only illegal but absurd. It is simply an afterthought to justify an illegal action.

   My learned friend has in his opening referred to the case of Ince v. Thorburn, the secretary of the Municipal Council and he has attempted to present it as being on all fours with the present case. Now, Your Honours, if you will look at the case closely you will see that it was on a different footing - there Mr. Ince had surrendered a piece of ground for public use, and it was the accretion or foreshore or beach ground to this piece of land which the defendant claimed. Quite a different thing. 

   I think, Your Honours, that I have now dealt with the salient points of this case. I leave it therefore in your hands, confident that in considering the case you will carefully guard one of the three absolute rights of the individual, viz. that of property, and that you will not authorise by your judgment the least violation of it - no, not even for the general good of the Community.

   The Court reserved judgment.

 

Source: North China Herald, 16 May, 1898

 

COURT OF CONSULS.

Before O. Stuebel, Esq.,, H.I.G.M. Consul-General; John Goodnow, Esq., Consul-General for the United States of America; R. W,. Mansfield, Esq., H.B.M.'s Acting Consul-General.

JUDGMENT.

   The plaintiff is Harold Browett, a British subject, who is registered in the United States Consulate-General as the owner of a piece of land situated within the Foreign Settlements of Shanghai, known and hereafter described as Lot 112. The defendants are the Municipal Council, elected by the rate-payers of the said Foreign Settlements in accordance with Article IX of the Land Regulations, and, in exercise of the powers which they claim are conferred upon them by the said Regulation, they use the portion of Lot 112 adjoining the Soochow Creek as a Garbage Yard for lading the garbage of the Settlements into boats.

   The plaintiff considers the use of a portion of his land as a garbage yard by the defendants to be a trespass, involving at the same time a nuisance to him and the tenants of the houses on the said lot of land.

   He therefore prays that the defendants, their contractors, servants, and workmen, and agents may be restrained by a perpetual injunction of this Court from entering upon the said lot of land, and also from dumping, or depositing, or otherwise dealing with garbage thereon.  The land known as Lot. No. 1122, which was first acquired by a foreigner from the native owners in 1852, was purchased by the plaintiff in 1888, and the accretion to the foreshore on the Soochow Creek in front of it was purchased by the plaintiff from the Chinese Government in 1890.

   These facts are not disputed by the defendants. It appears, however, from the evidence produced by the defendants, that the portion of Lot No. 112 adjoining the Soochow Creek was used by the defendants as a place for depositing and lading garbage into boats ever since the year 1875 or 1876.

   In order to make it fit for depositing garbage it had to be filled up, which was first done with garbage and mud in April, 1876, and when it was found that the cart wheels stuck on the newly filled in ground, 160 cart loads of granite chips were put on the top in December of the same year.

   In 1891 a low building was made very near low water mark, and a stone slope was laid leading up to the raised ground, all which work was done by the defendants' employees.

   This was the position of affairs at the commencement of this suit.

   A fence of some description existed both before and after 1876, originally following the line of high water mark, and separating the garbage yard of the defendants from original Lot No. 112.

   This fence has, to all appearances, not been aways at the same place, but has been moved, though for a short distance only, towards the Soochow Creek.

   It was erected and kept in repair by the owners or tenants of Lot No. 112.

   Now it is contended by the defendants that the land known as Lot No. 112, having been acquired from the original Chinese owner in 1862, came under Article V of the Land Regulations of 1854 when that portion of it which is beach ground was first used as a garbage yard in 1876.  This Article provides that with lots hereafter accreted, the beach ground shall be held subject to use for public purposes.

   The defendants further claim that by using the land as a garbage yard for over 20 years they have acquired a prescriptive right over it, which the owner of the land is now bound to acknowledge.

   It is also put forward by the defendants that the plaintiff having submitted to the use of the land since 1888 as it is used now, he ought not to have an injunction, as that is a remedy given only when prompt action is required and no other relief would avail, and that also no other relief is called for in this case, as the plaintiff bought the land with a knowledge of the circumstances. From the evidence produced it appears that the beach ground in front of Lot. No. 112, when it was first used as a garbage yard in 1876, did not yet form part of No. 112, but was the property of the Chinese Government and remained such, until it was purchased by the plaintiff in 1890.

   As long however as the land was not foreign owned it did not come under the provisions of the Land Regulations, and if it was used as a garbage yard before 1890, this was done with the tacit consent of the local Chinese authority only.

   The Court is of opinion however that no importance attaches to the question as to the year in which the terms of the Land Regulations - either those of 1864, Article V or those of 1869, Article VI which are practically the same for the purpose of this particular point - were first applicable to the land under consideration.

   The defendants having admitted the plaintiff's right of ownership, the point to be decided by the Court is whether or not power is given to the defendants by the Land Regulations to restrict the plaintiff's right of property by "now" using a  a portion of the land as a garbage yard.

   The provisions in Article V of the Land Regulations of 1864, and in Article VI of those of 1860 are to some extent open to different interpretations, and doubts have been pronounced as to their full bearing in former law suits.

   It seems, however, to be the essential point of the present case to define what is understood to be the meaning of the term "public use" to which certain lands shall be surrendered.

   The words "public use" admit of either a wide or a restricted interpretation.

   A road, where there is a need for it owing to the traffic of a town, benefits every single individual of the community.

   The demands by the public for a road can be satisfied by no other arrangement.

   A road therefore serves the public use in a most prominent way, and to secure a proper system of roads within the Settlements seems to have been the main object in framing the provisions of the Land Regulations in question. In a similar way public jetties constructed on rivers and creeks benefit the community at large by giving them free access to the water at convenient places, and if, in the Land Regulations, the surrender of beach ground of the river is especially mentioned, those who framed these regulations will have had in view the use of these beach grounds for roads and jetties.

   In the case of Ince v. Thorburn heard on appeal by the Lord Chancellor of England and the Lords Justices Blackburn and Hobhouse the finding contains the following words with reference to the expression "public uses" as used in Regulation V of the Land Regulations of 1854:

"Their Lordships think it must be taken that these "uses" were those to which beach ground, that is the sides of the rivers in this district, is held subject, such as probably to beach lots, to have access to the river, and other things of that nature."

   Now there is no doubt an essential difference between the "public use" as applied to roads and jetties and as applied to a garbage yard for Municipal purposes.

   The interest of every individual member of the community does not demand that this garbage yard be located at a particular spot ibn the Settlements and, even admitting that there be extreme difficulties in otherwise disposing of the garbage of the Settlements, it will be a question of expense only to bring about another arrangement to take the place of the present one, either by the purchase of another suitable riverside lot of land within the Settlements, or by providing for the carrying-off the garbage in carts out of the settlements. Another means of disposing of the garbage would be the establishment of a garbage destructor; a practical means that has already formed an object of consideration on the part of the defendants.

   The use of a piece of land within the Settlements for slaughtering cattle at special hours of the day under Municipal control or for storing coal, stone, or other material for Municipal purposes during certain hours of the day before otherwise disposing  of the same would be very much of the same nature as the use of a piece of land for a garbage yard, but in the opinion of the Court it would be difficult to sustain the contention that the Land Regulations would justify the defendants in demanding a free surrender of land for such purposes.

   Now it is a universally recognised principle in the law of all nations, that if, in the interests of the public weal, provisions are enacted with such an exceptional purpose as that of restricting owners of land in the enjoyment of their full right of ownership, these provisions must not be interpreted in a wider sense than is absolutely warranted by the bearing of the words used and the apparent end aimed at by the legislature.

  But it is by reason of this principle that this Court in the case before it grants the petition of the plaintiff and orders that the defendants, their contractors, servants, workman, and agents be restrained from entering upon Lot No. 112 or any part or portion thereof and also from dumping or depositing or otherwise dealing with garbage thereon, and it will remain with the parties to agree on a fair compensation to be paid to the defendants for the bundung and the stone pavements of the slope. Taking into consideration however that the use by the defendants of a portion of the plaintiff's land as a garbage yard was exercised under a "bona fide"  belief that the right existed ever since the plaintiff purchased the land and a long time before that date, and that the public interests demand that the defendants be given time to provide for another arrangement with regard to the  disposing of the garbage hitherto laden in boats on the land of the plaintiff, the order of the Court given above shall not come into force until after one year from the date of this decision. The "bona fides" with which the defendants have acted throughout the time of their using  the land for municipal purposes also justify the Court in holding that the Court fees and costs of these legal proceedings be borne by both parties in equal shares.

(Signed) &&c.

The 9th of May,1898.

 

Source: North China Herald, 16 May,1898

THE BROWETT CASE IN THE COURT OF CONSULS.

13th May.

IN the interest that this case and the judgment ibn it recently delivered by the Court of Consuls have aroused, it has apparently been forgotten that the case itself was before the public eight years ago. On the 19th of May 1890 the then Taotai, Nieh, drew attention to the injury done to the Soochow Creek by the rubbish falling into it from Lot 112, and the Consul-General, Mr. Hughes, passed the complaint on to the Council. Mr. McGregor, the then Chairman of the Council, replied that all precautions would be taken to prevent the injury complained of and the publication of the correspondence woke up Mr. Browett, the owner of Lit 112,  who wrote in to the Council on the 14th of June, 1890, stating that he intended to fence in the portion of his land used as a garbage yard. Mr. John McGregor replied that the land in question was a portion of the foreshore of the Soochow Creek, surrendered for the public use under the Land Regulations, that the Council intended to continue using it as a garbage yard, and would prevent Mr. Browett's fencing it in. That letter was dated the 17th of June,1890, and on the 29th of the same month Mr. Browett wrote again, asserting his rights.

   On the 24th of June Mr. Thorburn, the then Secretary to the Council, wrote again to Mr. Browett, referring him again to the land regulations, and here the matter ended for the time, although there was some farther correspondence with the Taotai with reference to the prevention of rubbish falling into the Creek. The whole of the correspondence will be found in the Municipal Report for the year 1890. We may add that this was one of the questions on which the late Secretary, Mr. Thorburn, was very deternmined, and that he may be said to have left the defence of the public right in the matter, as he understood it, as a legacy to his successor, Mr. Bland.

   After this historical sketch we come to a consideration of the judgment recently given by the Court of Consuls. That judgment has been given in full in our columns, but the full bearing of it may not have been entirely grasped by the general public, who may look upon it as a general defeat of the Council, which it distinctly is not.

   The Land Regulations of 1854 and 1869 provide for the surrender to the "public use" on beach land adjoining lots acquired after those dates. In the famous case of Ince and Thorburn the Lords of Appeal in England declared that although beach land could under these Regulations be so surrendered for "public use," yet certain "rights of ownership" must still be preserved to the owners of the adjacent land, the exact nature of which could only be determined from time to time as occasion demanded. In the same judgment it was clearly stated that the phrase "public use" as it appeared in the Regulations had never been fully interpreted and that the extent of the public rights over land surrendered to its use could only be determined as each individual case arose concerning them. In short the phrases "rights of ownership" and "public use" required more precise definition. In the Ince case an excessive exercise of "rights of ownership" was called into question, and in laying down that such "rights" did not enable the adjacent owner to build over land liable to be surrendered to the use of the public, the Lords of Appeal preserved the rights of the riparian owner. Moreover they assisted in forming that more precise definition of the phrase "rights of ownership" that they had pronounced necessary.

   In the Browett case the aggression lay with the Council when in the exercise of their powers, as representatives of the public, they appropriated the plaintiff's land to public use as a garbage yard. The Court of Consuls therefore rightly turned its attention to the definition which the action of the Council impliedly attached to the phrase "public use."  By their decision they confirmed the rights of the riparian owner as against an improper "public use" of his land, and by excluding use for a garbage yard from uses described as "public," they assisted in a very narked degree in further defining the other of the two phrases which the Lords of Appeal declared to be ambiguous.

   The argument by which the Court of Consuls supported its contention speaks for itself and certainly made any consideration of the other points raised by the parties unnecessary. If use for a garbage yard is not a public used the plaintiff is clearly entitled to redress, and the existence of a nuisance on the hand, or the claim to a title by prescription on the other, would have been unsatisfactory grounds on which to base so important a decision. Many of us have learnt to our cost that unpleasantness alone is but a poor argument on which to claim a nuisance, and on the more serious grounds on which such claims can be supported, there is often a strange divergence of opinion between experts. Again, even the fauintest protest against the occupation of one man's land by another had been held to defeat a title by prescription, the claim to which must be based in "uninterrupted enjoyment," for twenty years. It is hardly necessary to add, as all will have read the judgment for themselves, that roads and jetties are emphasized by the Court as  being plainly for "public use," and the right of the council to claim the surrender of land for such purposes therefore remains in statu quo.

   As business increases and  begets competition in this busy community it is inevitable that questions should arise requiring trade and Municipal usage to be more clearly defined in the public interest, and we hope that they may always receive such impartial and careful consideration as in the present case.

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