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Colonial Cases

Browett v. Municipal Council, 1899

[local government]


 

Browett v. Municipal Council

Court of Consuls, Shanghai
Goodnow, Knapfe and Warren, 11 July 1899
Source: North China Herald, 17 July 1899


 

LAW REPORTS.

COURT OF CONSULS.

Shanghai, 11th July.

Before John Goodnow, Esq., U.S. Consul-General (President); Dr. Knapfe, Acting Consul-General for Germany; and P. L. Warren, H.B.M.'s Acting Consul-General.

BROWETT v. MUNICIPAL COUNCIL.

   This case arose out of an action between the same parties - Mr. H. Browett and the Municipal Council - which was tried before the Court last year, judgment being given in May. Mr. F. Ellis (Messrs. Browett & Ellis) appeared for the Plaintiff, and Mr. Hanson (Messrs. Dowdall, Hanson and MacNeill) for the Council.

   The petition of the Plaintiff was 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, elected by the Ratepayers of Shanghai aforesaid in pursuance of the powers vested in them by the Land Regulations for the Foreign Settlements of Shanghai aforesaid north of the Yangkingpang.

   [3.] - The Plaintiff has been since the 16th day of January 1888, and still is, the registered proprietor of all that piece or parcel of land situated within the boundaries of ground set apart for the location of Foreign Renters at Shanghai aforesaid and known and registered in the books for the Registration of Land kept at the United States Consulate General at Shanghai aforesaid as lot number 112, the title deed whereof is also numbered 112.

   [4.] - The Plaintiff is desirous of inclosing by means of a fence that northern portion of the said lot.

   [5.] - The Plaintiff has applied to the Defendants for a permit to erect such fence but the Defendants have refused and still refuse to grant such permit.

   The Plaintiff therefore humbly prays this honourable Court:

   [1.] - That the Defendants may be ordered to grant forthwith to the plaintiff such permit as aforesaid, and

   The Plaintiff further prays for an order:

   [2.] - That on the Defendants failing to grant such permit as aforesaid that he the plaintiff shall be at liberty and have the full right and power to erect such fence without obtaining the permission of the defendants.

   [3.] - That the Defendants may be ordered to pay the costs of this action.

   [4.] - That the Plaintiff may have such further or other relief as this honourable Court may think fit.

   The answer of the Defendants was as follows:

   [1.] - They admit the allegations contained in paragraphs 1. 2. 4, and 5, of the Petition. 

   [2.] - They admit the allegations contained in paragraph 3 except that they say that on the 16th day of January 1888 the plaintiff became the owner of only part of the land which is now included in the Consular title deed for U.S. Lot No. 112.The plaintiff acquired the remainder of the land namely the northern portion of the said lot in the year 1890.

    [3.] - The land originally included in the title deed for the said lot No. 112 was first acquired from the native owners in the year 1862, and the portion acquired by the plaintiff in the year 1890 and now included in the lot was beach ground in the year 1862 and therefore became on its acquisition by the plaintiff subject to public uses under Regulation V of the Land Regulations of 1854 and can only be held by him subject to such uses.

   [4.] - The enclosure by a fence of the northern portion of the said lot as proposed by the plaintiff will seriously interfere with if not totally prevent the exercise by the public of all public rights over the northern portion of the lot and the defendants claim therefore that they were right in refusing to grant a permit for such fence.

   The Defendants therefore pray that the petition of the plaintiff may be dismissed with costs.

   Mr. Ellis in opening the case for the plaintiff said - May it please your Honours, the nature of the relief as will be seen by the petition asked for by the plaintiff from the Court is an order to the Defendants to grant to the plaintiff a permit to erect a fence on the northern portion of Lot No. 112, of which he is the registered proprietor and in the event of the defendants failing to grant such permit that he, the plaintiff, may be at liberty to erect such fence without obtaining the permission of the defendants. As the defendants practically admit all the allegations set out in the plaintiff's petition, it will not be necessary to examine Mr. Browett as to these facts, but I shall have to call Mr. Browett to prove certain correspondence which passed between him and the defendants, the outcome of which are the present proceedings. 

   Now, your Honours, in order to enable you to follow, and I hope to appreciate the arguments which will be offered for your consideration it will be necessary for me to refer very briefly to the points raised and decided by this Court in a last year suit where the present parties were the parties and where the land which formed the subject-matter of this suit. In February of last year a petition was filed by the plaintiff against the defendants in which he prayed for a perpetual order and injunction to restrain the defendants from entering upon the land or any part or portion of it, and also from dumping or depositing, or otherwise dealing with garbage thereon. To this the defendants made answer that having for over 20 years uninterruptedly used this land for a garbage yard they were not now trespassing; [they] denied that the use of the land as garbage yard constituted a nuisance; and lastly, they maintained that the land the subject-matter in dispute was beach-ground and became on the acquisition of the same by the plaintiff subject to public use under Art. 5 of the Land Regulations of 1854.  The points which the Court on the occasion of the first suit had to decide were these:

   [1.] - Were the defendants, their contractors, servants, workmen, and agents committing a trespass by going on the land?

   [2.] - Were they committing a nuisance by depositing garbage? And

   [3.] - Was the land in question beach-ground, and therefore subject to public use under Art. 5 of the Land Regulations of 1854?

As your Honours will see from the report of the case, and which report I understand is in the possession of the Court, a great deal of evidence was laid before the Court by both parties on these three points. Subject to correction by my learned friend, I think I am right in saying that the evidence given, and the arguments brought forward on behalf of the plaintiff without any possible doubt satisfied the Court on the first two points, viz., that by the defendants their contractors, servants, workmen and agents going on the land they were committing a trespass; and secondly, that the dumping of garbage was a nuisance the abatement of which the plaintiff was entitled to.

 Was also determined by the Court and   I most respectfully submit to your Honours that the third point, and which is the gist of the defendant's case in the present suit, was determined by the Court as I will show you later on, and except for the pleasure of listening to a learned argument from my learned friend on the construction of Art. 5 I think I must characterise it as extremely unfair that the plaintiff should be compelled to come here to seek the relief which he now asks for in his petition. 

   But how and why does the plaintiff again come before this Court? As your Honours will see by referring to the judgment in the former suit, the Court said, "and it will remain with the parties to agree on a fair compensation to be paid to the defendants for the buildings and stone pavement of the slope." Evidence will be given that on the 8th of May this year, the year's grace having expired the plaintiff wrote to the Council for the permit referred to in the petition which was refused, and he was informed at the same time that he was "founding a claim to exclude public rights by putting a strained construction upon the order of the Court of Consuls." I say that he comes here solely to get this order for a permit and not to have the judgment reviewed. You will also note your Honours that in this judgment that the Court orders that a fair compensation should be paid to the defendants for the building and stone pavement of the slope. This was will be proved was attempted, but the Council refused to entertain any question of compensation as they maintained that they required the ground for a public landing-place. Hence these proceedings.

   The point therefore which this Court is asked to decide today is this, viz., Whether the defendants are justified in refusing to grant the permit asked for on the ground that the land in question was beach-ground when acquired by the plaintiff and therefore subject to public uses by virtue of Art. 5 of the Land Regulations of 1854. It will be my duty to show you that the defendants are out of Court altogether on this point that they have no legal locus standi, that this is an attempt to have the kernel of their case on the former suit in which they failed adjudicated on for a second time, which must be frustrated at all costs. Why do I say this and how do I prove my statement?

   The President asked under what article of the Land Regulations it was contended that it was necessary to ask for a permit.

   Mr. Ellis said it was not very clear, but so far as he could understand the articles, which were at times very ambiguous, it was under Article 9.

   Mr. Hanson remarked he had not looked into the question.

   The President - It is rather essential. If you cannot compel Mr. Browett to ask for a permit he can build a fence without your permission.

   Mr. Hanson - In that case we should have taken Mr. Browett before the British Court for an injunction, but we thought that as the case has already been before the Court, it would be better to have the whole question settled here. Therefore it was arranged that Mr. Browett should apply for a permit, and we should refuse, and he should then ask for the question to be raised.

   Mr. Warren remarked that if the Court decided it in Mr. Browett's favour the Council could still take him before the British Court.

   The President - Do I understand you to say that if the Court were now to order the council to give this permit, then the Council need not do it, and if Mr. Browett put up his fence you would take him into the British Court?

   Mr. Hanson - No. The Council I am quite sure is quite prepared to rest upon the decision of the Court of Consuls, and if the Court days Mr. Browett is entitled to fence in the land I suppose we could go no farther.

   Mr. Ellis, after reading some remarks made by the President of the Court in the former suit continued:-  On this ruling the question of "public uses" to which land as held under Article 6 was brought before the Court  it was argued  I think I may say with truth, at great length both by myself and the Counsel for the defendants - and it was dealt with  and I maintain decided by this Court in its judgment. Now I submit to your Honours that I have shown you by quoting this passage of the judgment that the question of "public uses" and how far those public uses should restrict the plaintiff's right of property. Was there to be any restriction? I submit to your Honours, that the Court was of opinion that there should be no restriction, for if for a moment it could be argued that the judgment of this Court meant that there was to be reservation of any such rights as those claimed by the defendants, would the Court have ordered - for that is what I suggest the words used amount to - that compensation should be paid to the defendants for the building an stone pavement of the slope? Would there be any sense in such a suggestion? Why should the plaintiff pay any money for the benefit of the public and enjoy no advantage? - except as a member of the public.  But I do maintain that there was one right reserved by the Court - but that reservation was in favour of the plaintiff - I mean the right of "private ownership." The decision of the Court, your Honours, is final. There is no appeal from it, and therefore the plaintiff is entitled to the relief he asks for.

   Mr. H. Browett, the plaintiff, examined by Mr. Ellis, put in two letters he had received from the Municipal Council, dated the 11th and 18th of May, which have already been published in the Council Minutes.

   Cross-examined by Mr. Hanson he said that since the order of the Court of Consuls, boundary stones had been put down to the lot in question. They were laid down by the officials in his presence. The putting of a fence around the lot would certainly prevent anybody from going on to the land as in the case of any other private property. His intention was to enclose it like other people's land. In September last he was on the land and he told his clerk to inform boatmen who were landing cargo there not to do so, as it was his land. He also told some coolies who were fetching water that they could not go on the land.

   Mr. Gilbert Davies, architect and surveyor, put in a plan of the land in question. As for people who wanted to land cargo, there was a path there belonging to the Council 8 feet wide, and only that morning he saw a junk about 40 feet long with a plank out to the stone pavement, landing cargo. On the other side of the bridge there was a strip about 28 feet wide belonging to the Council giving access to the water.

   Cross-examined - He did not know whether the Council intended to widen the bridge.

   This closed the Plaintiff's case.

   Mr. J. C. Hanson, for the defendants, said - There is only one remark made by my friend Mr. Ellis that I have to take exception to, and that is when he said it was most unfair on the part of the Council to bring his client here again. I think that remark was quite uncalled for.  One of the chief purposes for which the Council is elected is to act in the interests of the public, and if it believes that the interests of the public are being interfered with by the plaintiff, then it is its duty to come here and try to protect those interests; and that is all it is doing, in this case.

   The Council's contention is that this land is beach-ground, and upon its acquisition by the plaintiff was subject to public use under the Land Regulations of 1854, and could only be held subject to those uses. We say also that the fencing in the way proposed by the plaintiff would prevent the public exercising the public rights they have, and therefore the Council was right in refusing to grant a permit; and we also say that we are not estopped in these proceedings by the previous judgment of the Court.  Taking the question of that judgment first, the plaintiff's petition in that case stated that: "The defendants by their contractors, 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 .  .  .  The entering upon the said lot of land .  .  .  is a trespass .  .  .  and nuisance to the plaintiff and the tenants of the house on the said lot of land." There ought to be no question I think as to this order, which has been most carefully drawn up, because the Court defines there the point which was at issue in the case.  The Court says in its judgment: "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 portion of the land as a garbage yard." There they distinctly state what is the point to be decided. I submit that the proper construction to be put upon this order is that the defendants were to be restrained from entering upon the land for the purpose of dumping garbage. There was nothing in the order which says the land is not subject to public use, and the public have no rights over it. It does not go into that at all; all it says is that the purpose for which the Council was using it at that time was not a public use, and it did not have the right to use it for that purpose under the Land Regulations or by the length of time it had been so used. 

   With regard to the question whether the land is beach-ground or not, I find it is most distinctly referred to in the title-deed as "foreshore," and there is no question it was beach-ground at the date of the Land Regulations in 1854, from evidence given in the previous case.  As to the question of the Land Regulation 6 applying to the land, Mr. Ellis in his previous case put forward a good many objections and reasons why it should not come within that regulation, but I think the question which he raised on that point must be regarded as a chose juge since the Ince case. 

   The Ince case was almost on all fours with the present case. Mr. Ince, who had a lot of land on the Soochow Creek, proceeded to bund and build on some land which was not included in his original title-deed. The Council applied to the British Court to restrain him. The action was heard and took about four days in hearing, and Mr. Ince had the advantage of being represented by Mr. Wainwright, who was one of the ablest lawyers who has ever been out here, and the result was the Court found that Mr. Ince was subject to this regulation and an injunction was granted against him. The case came before the Privy Council on appeal, and the judgment of Sir Richard Rennie was upheld.  It is true that the Privy Council said that there is some vagueness in this regulation, as no doubt there is in the meaning of the words "public uses," but they said that the public had a right of access to the water from the land, and from the land to the water.

   Mr. Ellis had raised another point, that in order to make article 5 of the Land Regulations of 1854 available for its purpose, the Council had to do something, viz., examine the plan; but this provision about appropriation for roads is an entirely separate enactment from that as to dedication of beach-ground. As a matter of fact the Council is not asking for relief on the ground that it is required simply for a road, though in all probability it would want a portion of this frontage for a road. The reason at present is that if the plaintiff is not restrained it will prevent access to the river.

   The President - You say that if the fence is put up it will destroy access to the river but there are other points of access?

   Mr. Hanson - But we say this land is subject to public use, and to give access to the river at that particular point. The Council is not trying to take away any of Mr. Browett's property, or confiscating anything which belongs to him. Its contention is that when M r. Browett acquired this land he acquired it with certain restrictions as to its use, and it is not taking anything away. He never had this absolute right to the property. It is really Mr. Browett who is trying to take away the rights of the public, which attached to the ground when he acquired it. Mr. Browett is a gentleman who would be described as "learned in the law" and he must have known the Land Regulations, the decision in the Ince case, and the restrictions there were on the land when he acquired it. 

   Another of Mr. Ellis' arguments is that it is not right to make the Regulations operative in this case alone, and not in other cases. I am afraid it cannot be denied that many years ago some of the earlier Councils were rather slack in looking after public rights in beach-ground and in enforcing public rights in every case, where they might have been enforced, and possibly the usual results of such want of vigilance have followed.  Where people entrusted with the duty of looking after public rights are slack in exercising their functions, there are always people ready to take advantage of such lack of vigilance, and it is possible in former years the public may have lost rights. But because the Council may not have been so active as it might have been in former years is no reason why public rights should not be upheld now. In the present case, if the contention of the council is correct that this land is beach-ground within the meaning of the Regulations, it is quite clear that the fencing of the land would altogether extinguish the rights of the public, and the Council would be greatly neglecting its duty if it allowed this proposed fencing to pass unchallenged. It is hardly necessary for me to point out how quickly the Settlement is extending; how very much cramped we are; and how important it is that every foot of public space should be kept open. Certainly the Council would not be doing its duty if it did not preserve to the public every spot of open ground it is entitled to. It has been said that for the purpose of providing access to the river it is not necessary that the whole of the lot should be taken. I am not prepared to deny that merely for providing for access to the river a strip of day 30 or 40 feet wider would not be sufficient. But there are other uses to which in the course of time, or even now, the land might be put; for instance, it might be made a small open grass plot or small garden. I will also point out that under the regulations the while of the land is subject to public use, and that in no case can the Council surrender any part of it without the consent of the public. But no part of the land is offered by the plaintiff as a means of access to the river, and he asks that he may be allowed to fence in the whole. I think it is quite clear that whatever may be the meaning of the words "public uses" it is quite clear that the fencing of the land will deprive the public of the access to the river which they now possess, and which has existed for many years.

   Mr. C. Mayne, Engineer to the Municipal Council, in reply to Mr. Hanson said the present Chekiang Road bridge was a very old one and in bad condition. It was one of the main roads to the railway and when renewed would have to be wider.

   By the President - The Council has not ordered a new bridge to be put up. And it did not figure in the estimates.

   The President ruled that the witness could not testify  as to what the intentions of the Council might be.

   Witness, continuing, said the roadway of the bridge at present was only 14 feet wide. On the Hongkew side of the creek the road was 40 feet wide, and it would be advisable when erecting a new bridge to make it that width. If that were done, with the correct approach to the bridge, it would absorb practically the whole of this ground.

   The President - Where is the nearest landing-place if you cannot land there

   Witness - At the Fukien Road, about 800 feet lower down.

   The President - Do not boats lie there?

   Witness - I don't think so.

   The President - Well, you look again, because I have seen them there.

   Witness - It is very likely; they may.

   This concluded the evidence.

   Mr. Ellis - As I told your Honours this case really rests within the four corners of the original judgment, and I most respectfully ask you to consider that judgment very carefully. Mr. Hanson brought before your notice that this order made by the Court of Consuls only dealt with the question of garbage. I submit that that could not possibly have been the intention of the Court in considering this case, because, as I submit, if the question of nuisance was the only question which the Court had to consider the order would have been worded in a very different way. It would not simply have directed that at the end of the year this dumping of garbage was to cease. The Court has taken into consideration the right of the public to come there because in the judgment it says, the Municipal Council, "their contractors, servants, workmen, and agents be restrained from entering upon Lot No. 1122, or any part or portion thereof, and also from dumping or depositing .  .  .  garbage thereon." I am sure that the Court of Consuls would never have thought that the Municipal Council was going to engage itself in the indelicate task of dumping garbage. With regard to the contention that the Ince case was a similar one to this, that I am inclined to agree with. The circumstances as far as I can make out were that Mr. Ince surrendered a piece of land to the public, and it was the foreshore or beach-ground which had accrued that he claimed belonged to him.

   The President said the question before the Court was not as to the ownership of property, but whether Mr. Browett had a right to use the land absolutely as his own, or whether it was practically under the control of the Municipal Council, and public property.

JUDGMENT.

In the above case evidence and arguments were heard on July 11th, 1899.

   In the suit between the same parties decided on May 9th, 1899, with reference to the same piece of land, it was held by the Court of Consuls that those who framed the Land Regulations had in mind that ground should be surrendered to the public use for the purpose of roads and jetties. When and where these are necessary, the demands of the public for them can be satisfied by no other arrangement.

   In the present case no evidence was brought before us to show that the land in question (part of Lot 112 U.S. Consulate) is needed or desired for a public road. "The lots adjacent are in full use at the present time by their owners with the assent of the Municipality." No claim is made that this particular piece of ground is necessary in order that the public may have access to the water, but only the statement is made that this land, if left open, may be used as a convenient place for some boat-owners to load and unload cargo.

   Certainly sufficient time has been given to the Council to show the necessity (if there be any) of this piece of land for a public jetty. The plaintiff cannot be required to hold his land vacant indefinitely least at some future undetermined time it may be wanted.

   Wherefore the Court of Consuls, all members concurring, find that the defendants shall grant such permit to erect the fence desired and otherwise to allow the plaintiff the absolute enjoyment and use of all lot 112 U.S. Consulate as his property, and further, that the defendants shall pay the court costs of this case.

Shanghai, 11th July,1899.

JOHN GOODNOW, WILHELM KNOPFE, PELHAM WARREN.

Attested by T. G. Carvill, Clerk to the Court.

 

Source: North China Herald, 24 July 1899

MISCELLANEOUS ARTICLES.

THE BROWETT FORESHORE CASE.

19th July. 

III

In concluding our articles on this subject we have now to consider the consequences to the community and to its future administration arising directly from the judgment given by the Court of Consuls. Those of our readers who have pursued the matter thus far will, we feel convinced, realise that although the question at issue is of a somewhat technical nature, ill-suited to discussion in hot weather, yet the public rights involved are too valuable, too dearly bought and safeguarded in the past, to allow of their being allowed to lapse for lack of the necessary interest and united action in the matter. Let us look this judgment squarely in the face.

  Let us consider what it means, not in regard only to that much-disputed piece of lawyer's land, known as U.S. Lot 112, but in regard to the inevitable results on the whole future of the Settlement. Let us, to this end, repeat once more the remarkable statement on which the judgment itself is admittedly based:

"It was held by the Court of Consuls that those who framed the Land Regulations had in mind that beach-ground should be surrendered to the public use for roads and jetties when and where necessary and the demands of the public for them can be satisfied by no other arrangement."

  Now, what does this statement, if accepted as final, imply? It means that either the entire extent of foreshore now subject to "public uses" must revert and become the private and exclusive property of any adjacent riparian owner who may elect to apply for a permit to fence it in for building purposes, or else that the Municipality will be forced into endless and very costly litigation in the attempt to protect, at great disadvantage, the public rights in every particular case. It is possible that in so large a community as this there may exist a very limited number of individuals to whom such a prospect may not be without its allurements, but we feel certain that the great majority of Ratepayers, landowners included, will regard it with dismay and do everything in their power to avoid it. It is inevitable, human nature and the value of Shanghai land being what they are, that no riparian owner, however public-spirited, would be likely to forego for any great length of time the exercise of private rights over foreshore land, whenever and wherever these might be legally obtainable. It is also obvious, if the judgment of the Court of Consuls means anything, that under it  

Certain Bund lot-holders might lay claim to fence in and build up to high water mark, since no road can be considered necessary thereon and since the necessary jetties could be left accessible and undisturbed. Similarly, under this judgment, Mr. Ince could resume occupation of the Chinese Garden foreshore - whereon neither road nor jetty exists - and cover it with godowns or Chinese tenements; and so on, through a long list of dreadful possibilities, too absurd for serious contemplation, yet following logically from the dictum of the Court of Consuls.

  As we have endeavoured to show, this latest interpretation of the Land Regulation VI makes the necessity for the surrender of beach-ground dependent upon the need shewn for roads and jetties, the admission of the need being presumably left to the individual opinion in each case that may arise, to be decided in manner undefined, or in other words, by process of law. 

  As the rivers and beach-grounds in the Settlement are notoriously addicted to the habit of taking to themselves accretions, the result of the judgment would either entail a continual removal of existing roads or their gradual exclusion from river rights. This intricate subject, however, we need not now stop to discuss. The addition of the words, "and which the demands of the public can be satisfied by no other arrangement," as contained in the judgment, in themselves open up a field of future litigation calculated to keep the legal talent of Shanghai busily employed, and the public purse depleted for many years to come. As it stands the judgment is utterly impracticable, and we feel it therefore to be a matter of surprise that, with the Privy Council's decision as a recognised precedent, by which at least H.B.M.'s Consul-General might have been guided, the verdict comes to us with the unanimous concurrence of the Court. 

  We are equally surprised that a matter of such urgent importance to the entire community should have been disposed of in the course of a single afternoon - for the judgment was delivered on the very day of the pleadings - and we can only express the hope that this Court, naturally unversed in many matters of local tradition and precedent, adjudicated the question thus lightly under a mistaken sense of its importance, which latter the pleadings failed sufficiently to emphasize. If this should prove to be the case, it is possible that a petition to the Court for a re-hearing, framed either by the Council or by a number of Ratepayers, might afford some satisfactory solution of the impossible position in which the public rights are now placed.

  If this is impracticable, however, it remains for us to face the situation and to consider its future bearings. That the existing local system would before long come to require revision and adjustment is an opinion that has for some years been gaining ground in many quarters, and today some modification of the judicial system appears inevitable. The constitution of the Court of Consuls, as established in 1860, is given in the following extract from a Memorandum drawn up and signed by the Ministers of the then Treaty Powers:

  "In reference to the question discussed  by the Consuls relative to a provision for  enabling individuals to sue the council, the undersigned sanction provisionally, and as an experiment, subject to further modification  if found expedient, the third proposal brought  under the consideration of the Consuls in their meeting of the 13th of July, 1869, by which  a Court to be styled the 'Court of Foreign Consuls' shall be established at the beginning of each year by the whole body of Treaty Consuls, and instructions will be given accordingly."

  From this it will be observed that the Court was established as a provisional measure with a view to enabling private individuals, of any of the several extraterritorialised nationalties here represented, to being suit against the cosmopolitan council.; but the provision, like many of the rough and ready measures of those early days,  was even then defective, and is now utterly inadequate to the objects for which it was intended.  More than that, in the fact that no provision exists in the constitution of the Court  for appeal to a higher tribunal, and it is in direct antagonism  to the spirit and letter of one of those Land Regulations which presumably form the basis on which its judgments rest afford the reason for its existence. 

  For under Art. XXVII of our Code it is laid down that the Council, as representing the ratepayers, shall enjoy all the rights and privileges with private litigants possess. Now since every private individual sued by the Municipality either before the Supreme Court, or any Consular Court, enjoys the right of appeal, it is obvious that without a similar privilege, the public rights are placed in a position of great disadvantage.  The Land Regulations have been recognised by formal act of the Powers concerned as the Charter of Shanghai's local government; they may not be altered or amended without the consent of the Diplomatic Representatives at Peking; it is, therefore, only reasonable and equitable that when a judgment given by the Court of Consuls entails an infringement of the public rights contained under any specific Regulation, that judgment should, at least, be liable to revision (where the matter is of admitted importance to the community) by the Representatives of the Treaty Powers.

  To some it may appear doubtful whether the Council appointed by the Ratepayers to administer the Settlement's affairs in conformity with the Land Regulations is justified, without the express sanction of a Ratepayers' Meeting, in giving effect to a decision, which distinctly infringes the public rights.  The question involves far-reaching issues of equity and law upon which we have no wish to enter here; but as an instance of the effects of the present system and of the recent judgment, we may observe that many British Land Renters, holding titles from H.B.M.'s Consular Land Office, have been compelled to accept officially the restrictions of Land Regulation VI in the matter of beach-ground and land for public roads on their property, and that a system by which, by the action of another Court, exempts British subjects from the liabilities imposed on them at their own Consulate, is foredoomed to failure.

  We are not aware whether it is the intention of the Council to take any steps in regard to the immediate question which confronts the body politic in the recent case of "full and absolute enjoyment and use of all Lot 112, U.S. Consulate, as his property." If action in this particular matter be considered expedient in view of its dangers as a precedent, there would appear to be three courses open: first, an appeal to the Court of Consuls for a re-hearing; then, application to the Diplomatic Body at Peking for a revision of the judgment on the ground of its unconstitutionality; finally and if both these should prove to be impracticable, suit might be brought, by one or more Ratepayers, against the registered owner of U.S. Lot 112 in his own, i.e., the British, Court to obtain restitution of the public rights. 

  But whatever action may be considered expedient in the present case, we are of opinion that a modification of the existing judicial system should be sought for at an early date, which should provide a recognised method and right of appeal from the Court of Consuls to Peking in all cases where the Council, after due interval, shall consider the matter one  calling for such appeal in the public interest. Such modification may reasonably be asked for in accordance with the terms of the Diplomatic Body's Memorandum, above quoted. 

  It must be apparent that in the event of a suit, brought in the Supreme Court to recover for public uses the foreshore of U.S. Lot 112, resulting in a decision contrary to that now delivered by the Court of Consuls the situation would thereby be rendered if possible more chaotic than it is at present. Desperate ills, however, require desperate remedies, and when all is said, there is nothing in the existing nature of things to prevent any private individual from obtaining a re-hearing of any case tried before the Court of Consuls: for he can presumably obtain, on technical grounds, recourse to his own Court in the capacity of defendant.

  We have dealt with this matter at length, being convinced if its urgent importance to the community. It will rest with the community to show whether the public rights involved are sufficiently appreciated to  be worth discussion or defence.

 

Source: North China Herald, 17 July 1899

 

THE BROWETT FORESHORE CASE.

15th July.

It is possible that many Ratepayers, and especially those whose residence in Shanghai does not extend over any great number of years, may have read the report of the trial in the above case and mentally set it down as a somewhat trivial matter, whose issue could have but little interest for the average "plain man." Older residents, however, and more particularly those who have jealously watched over the gradual growth of the commonweal, who have devoted time and care to safeguarding its rights and to establishing, tant bien que mal, its civic foundations, these recognise clearly the fact that no heavier blow has been struck at the fabric of our local Government than that contained in the judgment given in the Court of Consuls on Tuesday last.

  That our complicated and unique system of government rests on peculiarly light foundations, we know; that our Regulations afford no satisfactory or solid basis for permanent administration, had been sufficiently demonstrated in the past. The entire system, built up of expedients, compromises, and temporising makeshifts, has worked satisfactorily enough, when all is said, until now, but the fact is chiefly due to the bonne entente which has always existed among the several nationalities here represented and to the existence in Shanghai's earlier days of a certain spirit of easy going camaraderie in public affairs, something of which is being gradually lost in the rapid development and competition of today. With the ever-growing population, the Model Settlement has to face new conditions, incurs new risks and responsibilities, and for this very reason requires every protection that legislation can afford for the safeguarding of vested interests, public and private. With the greatly increased value of property in our midst and in the absence of full and conclusive definition of its rights and liabilities, it was inevitable that legislation should, in due season, result; inevitable, too, that as it proceeded, the latent inadequacy of our system should be exposed. Under happier auspices it is possible that the defects in the machinery of our form of local government, remaining inactive, might possibly have continued unchallenged for some time to come, but the judgment now given in the Browett foreshore case has suddenly brought us face to face with the precarious condition of our body politic in a manner which cannot but give food for anxious thought. We realise at a glance how impossible from the outset was that well-meaning "experiment" adopted in the form of the Court of Consuls in 1869, and we perceive how vitally essential it is that such a Court dealing with the weighty issues of today and of the future, should be, not a tribunal from whose judgments there is no appeal, but a Court of first instance only. With our perception of these things there is also a feeling of grateful surprise that the revelation has been spared us for so long; but the risk to the best interests of the commonwealth from a continuance of the existing system, had become one which it is impossible to regard with equanimity. It is evident that as the community grows, the value of its public rights gains correspondingly in importance. That the founders of our Settlement recognised this fact and attempted to provide for it, is apparent from the spirit, if not from the oft-disputed letter of Land Regulation VI. The text of that Regulations has already formed the subject of much discussion and litigation, and in the most notable instance, the Ince case, H.M.'s Privy Council was appealed to in regard to the public rights over all beach-grounds and foreshores, with the result that these were admitted and partially defined. At the present moment another test case, that of the "Council v. McMurray," is under appeal to the Privy Council, with the object of defining the extent of the public rights under the same Regulation, to compulsory acquirements of land for roads. (It should be noted, en passant, that in both these questions the foreign renter is presumably aware of the legal liabilities under which road-land or foreshore ground is purchased, and that the exercise of public rights over these cannot therefore be held to bear heavily on any but the native seller.)

  In endeavouring to obtain a clear definition of the public rights in these far-reaching matters a considerable amount of money and much time has been expended. The questions involved are in themselves extremely intricate and delicate, calling for the exercise of the highest legal ability and involving issues of the most vital importance; yet in the present case, which itself has been before the public in one form or another for several years, we find one of these rights, one which has been successfully upheld by the highest Court in Great Britain, lightly thrown away at a summer morning's sitting of the Court of Consuls!  And from this judgment, be it observed, there exists under the present system, no right of appeal.  It is here that the crux of the position lies and with this point we propose to deal fully later on. We have no desire to criticise the individual members of the Court, unless it be for the almost indecent haste with which the judgment was given a few hours after the pleadings; no member of the Consular Body is responsible for the system which places men without special legal training or local knowledge, in the peculiarly anomalous position of having to express a final and binding decision on intricate legal questions whose solutions affect the welfare of a great community.  The position had always been recognised as unique; it will require to become obsolete before any degree of stability in the matter of public and private rights can be attained.

  The Browett case decision is of such momentous importance to the community that we propose to deal with it in a further article, regarding, first, those points therein which appear to us to be arbitrary and contrary to the character of our civil privileges, and second, the immediate effect of the judgment itself upon the present and future interests of the Settlement. Finally we propose to consider by what means, if any, the position may be remedied, so that the rights of future generations of Ratepayers may be defined and protected.

 

Source: North China Herald, 9 October 1899

COURT OF CONSULS.

Shanghai, 3rd October.

Before John Goodnow, Esq., U.S. Consul-General, President; Dr. Knapfe, Acting Consul-General for Germany; and P. L. Warren, Esq., H.B.M.s Acting Consul-General.

BROWETT v. MUNICIPAL COUNCIL.

This was an application for a re-hearing of the action between the Municipal Council and Mr. H. Browett, which was before the Court last year, and again in July last, when judgment was given in Mr. Browett's favour.  Mr. J. C. Hanson (Messrs. Dowdall, Hanson and McNeill) on behalf of the Municipal Cou8ncil now applied for a re-hearing of the case, and Mr. F. Ellis (Messrs. Browett and Ellis) opposed.

  Upon the Court assembling,

  Mr. Hanson said - This is a motion which the Council have brought for a re-hearing of the case that came before this Court on the 11th of July last, and in which judgment was given the same day. The application for a re-hearing is contained in a letter which was written by the Chairman of the Council to the Court on the 15th August last, which I will read:

Municipal Council,

15th August 1899.

  GENTLEMEN, - On behalf of the Municipal Council, I have the honour to address you in the matter of the judgment given by your Honourable Court on the 11th July in the suit of Browett v. the Council, and respectfully to request that the Court may be pleased, in the interests of the Foreign Community of Shanghai, to hear a motion for rehearing of that suit. 

  This request is made by my colleagues and myself as the result of most careful and deliberate consideration, and because the Council is fully convinced that that step is called for by a proper sense of the responsibilities due to the ratepayers of Shanghai, with whom ultimately rests the advancement of the community's well-being and good government, recognising the great importance of the issues involved, will appreciate the motives with which this request is made.

  The Council would request the Court of Consuls to approve a motion for re-hearing of the above suit:

  Firstly, on account of the far-reaching results, which, in the Council's opinion, must inevitably follow, with protracted litigation and uncertainty of issue, from the present judgment. It is well-known to the Court that the matter of public and private foreshore rights, in no place a simple matter, and here complicated by peculiar local conditions, is one which has given rise at Shanghai to considerable litigation in the past. For many years past and until quite recently, as the result of the Privy Council's judgment in the Ince case, the matter stood as one where further questions might possibly arise, but wherein nevertheless certain mutual rights, affecting the public and riparian owners respectively had been tacitly held, by residents of all nationalities, to be sufficiently established. The recent judgment of the Court, by a redefinition of the intents and effects of the Land Regulation 6, opens up, by similarity of treatment, questions of such vital importance to the community as a whole, that the Council feels in duty bound to make every legitimate effort to have the position unmistakable defined, and to obtain further consideration for the immediate question at issue, in all its bearings.

  Secondly, and more particularly, the Council make this request because, in the present suit before the Court, the Council was not prepared for the construction placed by the Court upon the former judgment given in regard to the same suit (viz. that of 9th of May,1898), a construction, which, the Council respectfully submits, is not to be borne out by the actual wording of the former judgment. It was in fact only after judgment had been given in the second suit that the Council knew that such was the construction of the first decision, and for this reason the Council's Legal Adviser was not in a position to argue, and did not in fact argue the point at the hearing.

  It is no doubt within the knowledge of the Court that after the former judgment was delivered last year, the Council, finding it in certain points to be ambiguously worded, endeavoured to obtain some explanation of the doubtful passages, and the recorded result of the unofficial enquiries then made was such as to reassure the Council as to the intention of the judgment in regard to the effect thereof upon the most important public rights involved. It is in great measure because of the interpretation thus placed on the former judgment - an interpretation which is fully sustained by a Memorandum, dated 3rd inst., which the Council has now received from Mr. Mansfield, H.B.M.'s representative in last year's Court, - that the Council proceeded with the present case, and that the important questions eventually raised in the second judgment were not argued by the Council's legal Adviser.

  A copy of Mr. Mansfield's Memorandum is herewith enclosed.

  Thirdly, and finally, the recent judgment is apparently based to a certain extent upon a misapprehension of the true facts of the case with regard to the adjacent lots. The judgment states:

"The lots adjacent are in full use at the present time by their owners with the assent of the Municipality."

The Council is, however, prepared to show that this is not the case. In the first hearing, Counsel for the Plaintiff was stopped by the President of the Court from going into the question as to how the adjacent lots were treated, and consequently at the second hearing the Council's Legal Adviser did not think it right to adduce any evidence on this point or to go into the question.

  The Council is convinced that if the motion for rehearing is granted by the Court, it will be possible to satisfy the Court that good and sufficient grounds exist for such rehearing.

I have, etc.

[Addressed to members of Court individually.]

Judgment on the Court of Consuls.

  As regards the first ground - namely, the importance of the subject, I do not think I need say anything. I will proceed to the second ground - namely, that until after such judgment was given the Council were quite unprepared for the interpretation which was put on the judgment given in the first case. The Judgment of July last was based almost entirely on the interpretation stated to have been given in Article 6 of the Land Regulations by the first judgment. The last judgment reads:

In the suit between the same parties decided on 9th May, 1898, with reference to the same piece of land, it was held by the Court of Consuls that those who framed the Land Regulations had in mind that ground should be surrendered to the public use for the purpose of roads and jetties. When and where these are necessary, the demands of the public for them can be satisfied by no other arrangement.

  The effect of that interpretation of course is that beach ground can only be acquired for public use where it is shown that it is absolutely necessary and required for public use for either roads or jetties, and when the demands of the public can be satisfied in no other way. That is to say, the construction put upon Article 6 is that before any foreshore land or beach ground can be claimed by the Council as being subject to public use, the onus lies upon the Council to show that that particular piece of land is necessary for the public use and that the demand of the public can be satisfied by no other arrangement.

  It is that construction which the Council say is quite a novel one, and for which they were quite unprepared. And the object of asking for the re-hearing is that they may have an opportunity of arguing whether that is a proper meaning of the Land Regulations or not. 

  Of course, your Honour, it is somewhat invidious for me to come before the Court and criticise any order made by the Court, but I think it will be admitted by my friend on the other side that the judgment in the case of May,1898, was in certain important points rather ambiguous. After that judgment was given the Council, noticing there were ambiguities in it, desired us to ask the Court as to the full meaning of the order, so that they might know exactly their position. But we were informed by the Court, as a Court, could not officially give any further explanation about the meaning of the judgment.

  The President - Informed by whom?

  Mr. Hanson - By the Secretary of the Court, Mr. Burrows.

  The President - I desire to state, right here, no application was made to the Court of which I was a member at that time for any further explanation of the judgment. Your statement this morning is the first I have heard about it.

  Mr. Hanson - I was not in that suit myself, but my partner, Mr, Dowdall, was, and I certainly understood from him he made application to Mr. Burrows.

  The President - As I was a member of that Court I desire to put it on record no application was made to the Court in that matter, nor did any application come to myself as one of the members.

  Mr. Hanson - I cannot say of my own personal knowledge, but to show you that there was an unofficial enquiry made of one of the members of the Court. An interview was had with Mr. Mansfield as to the meaning of the order and what he understood to be the meaning of the order was placed on record by Mr. Anderson, one of the members of the Council, for the benefit of the Council who would be in office in the following year, and a note of that interpretation is recorded in the minutes of the  Council and is confirmed by a letter which we recently received from Mr. Mansfield as to the meaning of the order. I do not suggest that that letter from Mr. Mansfield or any member of the Council is evidence as to the meaning of the judgment, but it is evidence to show that when we came to the Court on the last occasion we were entirely unprepared for this interpretation which has been put on the judgment, and we ask therefore to have an opportunity of arguing upon the judgment and the meaning which has been placed upon the Regulation. 

  In the second place we say that the construction which has been placed upon the first judgment by the judgment of the 11th of July,1899, is not actually borne out by the first judgment. Of course as to this we have to look at the wording of that judgment. Before I go on to that first judgment I would like to refer to the words of the article in the Land Regulations. (Regulation read.) It will be seen that this article refers to two kinds of surrender for public use; one, of land required for roads, and in that case it must be shown that roads are necessary, and certain things have to be done before land can be so acquired; the other of beach ground. But there is nothing said as to any necessity being shown in the case of the surrender of beach ground. It simply says that all the lands which are beach ground shall be surrendered for public use. See how the judgment of May,1898, deals with that. After reciting all the facts of the case it goes on:-

The defendants having admitted 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 portion of the land as a garbage yard.

The Court there defines the point to be decided by the Court.

  The provisions of Article 6 of the Land Regulations of 1865 and those in Article 6 of 1869 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 in 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 word "public use" admit of neither a wide nor a restricted interpretation.

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

  The demand 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 Settlement 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 access to the water at convenient places, and, if, in the Land Regulations, the surrender of beach ground of the rivers is expressly 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 use" as used in Regulation 5 of the Land Regulations of 1854:-

"Their Lordships think that it must be taken that these 'uses' were those to which beach ground, that is the sides of the river in this district, is held subject, such as probably to beach boats, 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 the garbage yard be located at a particular spot within the Settlement and, even admitting that there be extreme difficulty in otherwise disposing of the garbage of the Settlement, 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 riverine lot of land within the Settlement, or by providing for the carrying of the garbage in carts out of the Settlement. 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 Settlement 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 with the interest of public weal, provisions are enacted with such an exceptional purpose as that of restricting owners of land in the full enjoyment of their ownership, these provisions must not be interpreted in such a wider sense than is absolutely warranted by the bearing of the words used and the apparent end aimed at by the legislature.

  The Court then goes on to grant an injunction. I submit that in none of the part I have read is there anything to show that the proper construction of this Article 6 is that the land can only be acquired for public use when it is shown to be absolutely necessary, except where it is required for a road. The object for which we are now asking to acquire part of the land is for access to the river. There is nothing in this judgment which shows it is necessary for us to show that we want this land and that it is absolutely necessary to have this land, and that the demand for it can be satisfied by no other arrangement. The Court in this judgment quotes apparently with approval the decision in the case of Ince v. Thorburn, which was heard in 1886. In that case there was nothing whatever said as to the land in that case being necessary to the public use; what they did decide in that case was that mere fact of land being foreshore, and being acquired subsequent to the passing of the Land Regulations it became, directly it was acquired, subject to the public use. It was held in the Ince case that directly the foreign renter acquired the land it was subject to public rights of access to the river. In that case there was not a single word or scrap of evidence given as to the foreshore being necessary, or being required by the public for any road or jetty. The only evidence given was that it was foreshore land acquired after the passing of the Land Regulations, and that therefore it became directly it was acquired, subject to right of access to the river, and as a matter of fact no road has been made there; there was already a road behind it, and there never has been any public jetty there. That case was a particularly strong case, because not only had the plaintiff in the case been allowed by the Municipal Council to remain in possession of the foreshore for a considerable period, but some members of the Municipal Council, some years before they brought this case, having attempted to knock down a fence which had been erected on the land, and an action being brought against them in the British Court for trespass actually submitted to a decree against them and paid damages. Here the plaintiff allowed the Municipal Council to remain in possession of the land for years after he had purchased it. 

  Of course this Court is a perfectly independent Court and not bound by any decision of any other tribunal in the sense that Courts of other countries are bound by the decisions of their Superior Courts, but I think it will be admitted that  it is desirable that when a particular question  has been thoroughly argued out by both sides  before a tribunal of the highest competence, that, when the same question comes up before another Court, that Court should not put another construction on it without very strong reasons. These Regulations we have to work under here are very ambiguous and sufficiently difficult to work under as it is, but they would be unworkable if we have different constructions put on them by each separate tribunal. 

  Another reason why we apply for a re-hearing is that there is apparently some misapprehension as to the facts of the case in the last judgment.  It is stated: "The lots adjacent are in full use at the present time by their owners with the assent of the Municipality." Apparently, that is put in the judgment as being some reason for the decision. I think I shall be able to show you that that statement is not correct.  Anyone who was walking along that land there and seen how the land is used, may get that impression, but I may say that it is not the case.  Take the next lot adjoining to Mr. Browett's lot, on the other side.  Although the foreshore of that land is used it is not used with the assent of the Municipality, but by the tacit consent of the local Chinese authorities. The reason is that the foreshore of that lot has not been measured in the lot, which is therefore in exactly the same position as Mr. Browett's lot before 1890.

  The President - Is that the lot that stands in your name?

   Mr. Hanson - It stands in Mr. Cowie's name, and we are the agents of his representatives.  I shall be able to give evidence myself, if necessary, on that point. I may say that under a notice recently exhibited in the Shenko office we recently applied for shenko of that land, but at present it is in exactly the same position as Mr. Browett's land was before he acquired it in 1890. With regard to the adjoining lots I shall be able to show from the records of the Consulate, that those lots do not go right down to the water's edge. There has been a space reserved between the water's edge for a municipal road. Some of the lots are registered in our name, and I shall be able to obtain the exact particulars from the Consulate. I shall be able to give evidence of all the lots between the Fukien and Chekiang Roads, with the exception of one piece of land for which there is no foreign title deed, as it is a temple property and not under Municipal control. But, as regards the other lots, provision has been made in the title-deeds providing sufficient space for access to the river. It may be asked why I did not give evidence in the first case. The reason was that I did not consider it would be proper to do so, as my learned friend, Mr. Ellis, was stopped when asking questions about the condition of the other lots. Here Counsel proceeded to read extracts from the proceedings at the first hearing.  With regard to another point, the last judgment says:-

  "No claim is made that this particular piece of ground is necessary that the public may have access to the water, but only the statement is made that this land, if left open, may be used as a convenient place for some boat owners to land and unload cargo. Certainly sufficient time has been given to the Council to show the necessity (if there be any) of this piece of land for a public jetty."

  I admit, if the Court holds that the meaning of Article 6 is such as it has been said, we cannot show the necessity of this land either for a road or a public jetty. We can show it is convenient, but we cannot show it is a necessity.   We have, however, before the Court more than a mere statement that the land may be used as a convenient place, etc.  for in Mr. Browett's own evidence he stated he found people going across the land to fetch water from the creek and also landing at this particular place from boats and he warned them off, showing that it is convenient for people going to the water or coming from the water to the land. Although we are not prepared to show that it is absolutely necessary, we have shown, at any rate, that it is convenient, but all that it is necessary for us to show is that it is beach ground, and therefore subject to rights of access to the river by the public. 

  The is one other point. The first judgment May, 1898, says:-

  "Now it is a universally recognised principle in the law of all nations, that is, in the interest or public weal, provisions are enacted with such an exceptional purpose as that of restricting owners of land in their enjoyment of their full rights 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."

  By reason of this principle the Court granted the petition of the plaintiff. No objection can be made to that statement of law, but it makes a difference I think how that principle should be applied, whether these provisions are made before the owner acquired their land or afterwards. Of course if the State allows people to buy land and then afterwards steps in and limits the full enjoyment of this land any such provisions must be very strictly construed; but not necessarily so when these provisions are made before they acquired such ownership. In such a case the person buying the land knows he does so subject to certain restrictions, and consequently there is no hardship.  Article 6 of the Land Regulations was in force before and not after the plaintiff acquired the land, so that Mr. Browett when he bought the land knew what the restrictions were. I have referred to this point because I cannot help thinking that there is some feeling in the mind of this Court that the plaintiff has been rather hardly treated, and that the Council have been trying to take away some of his property. But he knew what those restrictions were. One of which is that the land was subject to a right of access to the river by the public. What is the effect of the present judgment if it is allowed to stand as it is?

  Wherefore the Court of Consuls, all members concurring, find that the defendants shall grant such permit to erect the fence desired and otherwise to allow the plaintiff the absolute enjoyment and use of all of lot 112 U.S. Consulate as his property.

  That is to say that the Court holds that the plaintiff can hold his land as his absolute property, and can build upon it right down to the water's edge, or do anything he likes, and destroy all access to the road or roadway. The judgment will not only cut off the public from all right of access from the creek to that particular spot, but it will also prevent the public from enjoying the right of access which they at present have to these other adjoining lots, because there is no other means of access except by this lot. Not only does this judgment affect Mr. Browett's land in particular, but also the rights of the public over all foreshore, because it is not a decision as to this particular plot of land, but as to the general principle how Article 6 is to be construed, and it is a matter therefore of great importance. It is on these grounds I ask the Court to grant a re-hearing. I should like to put in some evidence as to these adjoining lots before Mr. Ellis replies.

  Mr. Warren - I think if you put in evidence it is a re-hearing, and not a motion as to whether a re-hearing should be granted.

  The President - If the Court decides to grant a re-hearing then the Court will hear your evidence. You have specified in your argument certain evidence which you propose to bring if there is a re-hearing. We do not want to hear that now.

  Mr. Hanson - I should like to put in the original of that letter from Mr. Mansfield referred to in the Council's application.

  The document was put in.

  Mr. Ellis - I must admit I have experienced in this case a very great difficulty, and that is as to whether Mr. Hanson has really shown the Court this morning any ground for it to consider this question at all for the third time. 

  What is our position and what has been our position since the commencement of the litigation in this suit? On the first case, we came forward with a prayer which, if nothing else, was perfectly clear, and in the relief it asked for. We said that the defendants, their servants, their workmen and their agents, were trespassers on the land. We not only said that but we also said that they were committing a nuisance on the land. My learned friend is perfectly right that in the judgment in the first suit it might appear that the Court only took into consideration one point, and that was the question of the nuisance. But I will ask you to look at the whole judgment and especially at the latter portion of it. There the Court distinctly considered the two points as to trespass and as to the nuisance, and dealt with the two points accordingly.

  It said with regard to the perpetual injunction asked for that they should not go on the land, nor at any future time throw garbage there. And in a very important part of the judgment it said what the plaintiff should do. It distinctly ordered him to pay compensation to the defendants for such improvement as they had made on the property. In the former hearing of the case, it was dealt with most exhaustively in every shape and form and with the interpretation the Court should put on the Land Regulations under the circumstances of the case. Mr. Dowdall, who appeared then for the Council, also dealt with the construction of the Land Regulations. There could be no doubt that every opportunity had been given to the Council for them to thrash the question out. In that case the Council were trespassers; they were committing a nuisance, as was contended at the time. The plaintiff was in absolute possession of that piece of land and he took certain proceedings in accordance with the Land Regulations. He wanted to fence in the land and applied to the Council for a permit.  This was refused. He then came to the Court to apply for an order. On that occasion this matter was dealt with by Mr. Hanson exhaustively. I do not therefore think it is necessary for him, to go over the same grounds. 

  Mr. Hanson must show and convince the Court that the judgment was wrong and how it was wrong. On the occasion referred to Mr. Hanson dealt with the different points. I must say that with the exception of the few words about adjacent land Mr. Hanson on this occasion went over the same grounds and apparently, in my opinion, he did not make any further progress to show that the Court was wrong. 

  The Court apparently wanted to know why in this case they should not consider that the plaintiff was entitled to absolute right of his property. It would look for some reason why those rights should be interfered with.  I submit that the Court cannot bring itself to pass any other  construction on the Land Regulations than it has done on a former occasion, when it was decided that the plaintiff in this case should be left in the absolute enjoyment of his property. I will deal with the grounds which have been brought forward by the Council in urging a re-hearing. The first Mr. Hanson dealt with very shortly. He said it was apparent to everybody. I am quite prepared to admit that. "On account of the far-reaching results," they say. How does that concern us? The Court has been in a position all through this case -

  The President remarked that the Court knew its own position, and it was not necessary for Mr. Ellis to go on with that point.

  Mr. Ellis - The Council say that they were not prepared for the construction placed upon a former judgment. I submit that that cannot be taken as a serious ground for asking the Court to come to another decision. There has not been the slightest impediment, or attempt on the part of this Court or a former Court to prevent the defence putting their case from every point of view for the consideration of the Court. 

  If anyone is to complain it is the plaintiff who was stopped by the Court and told not to go into the treatment of the adjacent property. This was not brought forward at the second hearing and it cannot be brought forward now. It may appear to him very unfortunate that he had not an opportunity of dealing with it in the way he would have liked. But there must be some finality to these proceedings. I submit that that cannot be entertained as a good ground for the re-consideration of the judgment of the Court made in the case.

  With regard to that portion comprised in the second ground - "It is no doubt within the knowledge of the Court that after the former judgment was delivered last year, the council, finding it in certain points to be ambiguously worded, endeavoured to obtain some explanation of the doubtful passages, " and so on. I submit that the Council are not entitled to any relief at the hands of this Court whatever. There was an opportunity for them at the time and I think if pressed I might be able to bring evidence to show that the other person whose name has been placed at the end of this letter was at that time under some doubts as to the construction of the judgment. If that was so it was incumbent upon the Council to bring the matter before the Court when it was in a position to sit in its original form, not to leave the matter until a long time had elapsed, and until two members are absent. I contend that the explanation given by Mr. Mansfield cannot be looked on or cannot be considered by this Court in any shape or form. 

  The Council having been dilatory in bringing the matter forward, by way of an application for a re-consideration to be placed on the judgement of the Court, have, so to speak, allowed such a right - if it can be called a right - to pass away by default. 

  As to the third point, of course, that is a matter I cannot say very much on. I think I shall be in a position to show that the Court was practically, if not absolutely right in saying that the lots adjacent are in full use at the present time by their owners. If the matter is pressed I think I can show that the Court, far from being, as stated in this letter, under a misapprehension, was apparently very correctly informed. On these grounds and for these reasons I submit that the applicants in this case are not entitled to ask for a re-hearing.

  The Court reserved its decision.

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