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1915 Supreme(SC) 8
Privy Council
Lord Sumner, Lord Parker of Waddington , Justice Lord Shaw of Dunfermline, JJ.
Attorney-General of Southern Nigeria -Appellant
Versus
John Holt and Company (Liverpool), Limited and other -Resopndent
On Appeal from the Supreme Court of Southern Nigeria
Decided On : 09-02-1915
Companies, Ommanney , Rendall, Sutton, A.T. Miller, Tomlin , Whinney, A.R. Pennington , Liverpool, Crooks and Co., Stevens, Alsop, Agents , Medley, Roscoe , Emery, Field, P.O. Lawrence
Natural accretion gradually adds to riparian land, but artificial reclamation does not transfer ownership of the foreshore. However, such reclamation does not extinguish existing riparian rights, and long-term, non-trespassory occupation for public benefit may be maintained against the State.
Headnote:(A) Property Law - Doctrine of Accretion and Riparian Rights - Natural accretion, defined as a slow, gradual, and imperceptible increase of land by the action of the sea, adds to the ownership of the adjoining riparian land, regardless of specific measurements in the title. Artificial reclamation, however, does not result in the transfer of ownership of the foreshore to the adjoining landholder. (Paras 23-35)
(B) Easements - An easement requires the existence of a dominant and servient tenement, where the holder of the right acknowledges the ownership of the land in another. Possession of land claimed as an owner, rather than as a holder of a right over another's land, cannot form the basis of an easement. (Paras 46-48)
(C) Prescription and Possession - Long-continued possession of artificially reclaimed land does not automatically vest ownership in the possessor unless the statutory period for prescription is met or a lost grant can be presumed. However, where reclamation was done for public benefit and with implied government permission, such possession may be maintained against an injunction for trespass. (Paras 49-56)
(D) Riparian Rights - The reclamation of foreshore by a frontage owner does not operate as an abandonment of riparian rights, such as rights of navigation, annexed to the land. These rights persist even after the land ceases to be subject to the tide. (Paras 58-60)
Facts of the case:
The respondents occupied several plots of land abutting a lagoon and had artificially reclaimed portions of the foreshore by building walls and stores over a period of thirty to fifty years. The government subsequently constructed a public road over this reclaimed land, cutting off the properties from the water. The government sought a declaration of absolute right to the land and an injunction for possession, while the respondents claimed rights based on their titles and long-term occupation.
Findings of Court:
The court found that the land was artificially reclaimed rather than naturally accreted, meaning the doctrine of accretion did not apply. It further found that the respondents did not hold an easement because they occupied the land as owners. While ownership did not vest through prescription, the long-term, non-trespassory occupation for public benefit prevented the government from summarily excluding the respondents.
Issues: Whether artificial reclamation of foreshore vests ownership in the adjoining landholder; whether such occupation constitutes an easement; and whether the reclamation of foreshore extinguishes the riparian rights of the frontage owner.
Ratio Decidendi: Natural accretion adds to riparian land, but artificial reclamation does not transfer the solum of the foreshore to the landholder. An easement cannot be claimed where the party acted as the owner of the land. However, riparian rights are not abandoned by reclamation, and long-continued possession based on implied permission and public utility protects the possessor from being treated as a trespasser.
Result: Appeals allowed.
Legal Category Hierarchy
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property law
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land law
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riparian rights
- accretion and alluvion
- foreshore rights
- easements
- prescription
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riparian rights
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land law
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practice and procedure
- equity and possession
Lord Shaw of Dunfermline:-
These are two appeals and two cross-appeals, all consolidated, against two judgments pronounced by the Full Court of the Supreme Court of Southern Nigeria on 22nd April 1911, varying the judgment of Osborne, C.J., pronounced on 14th March 1910. For the sake of convenience the Attorney-General for Southern Nigeria is hereinafter referred to as "the Crown" and the opposite parties us "the respondents."
The proceedings relate to certain lands in the district of Olowogbowo, in the island of Lagos, which became a part of the Colony of Southern Nigeria. The lands consist of five plots, all of which are situated on the shore of the lagoon. As commerce has developed, these lands, and especially the frontage thereof to the sea, have become of considerable value. They adjoin each other; and in the view which is to be taken of these appeals the facts as to the different plots may be sufficiently stated as follows : The respondent firm of Holt and Company were in occupation claiming as freeholders of (1) William's land and (2) Dunkley's land, and as tenants of the executors of the Reverend James White, who were the freeholders of (3) White's land. The respondents MacIver and Company were in the occupation of (4) George's land and (5) Johannsen's land as tenants of the free-holders of these respective plots. The whole premises were occupied for the purpose of the respondents' respective businesses as African merchants.
In regard to the possession and occupancy of the properties, the admitted facts are these: A wharf was built from George's land in or before the year 1859, a pier was built from Johannsen's land prior to the year 1861, and a pier was also built from Dunkley's land soon after that year. The respondents, it is further admitted, built stores, sheds, and other works at different dates upon the land adjoining the waterside, and in particular upon not inconsiderable portions of the solum of the land in question in the case, namely, that which had been foreshore, i.e., land between high and low water marks at ordinary spring tides. The respondents and their predecessors used the foreshore and land for storage and for the purposes of their business; and the wharf and piers already mentioned were also used by them in connection with their trade.
While upon the one hand there seems little doubt that for about half a century continuous use and possession were had- of the kind and nature just described- and that, as trade developed, additional buildings and erections were put upon the ground, yet upon the other hand, it is admitted that this use and possession cannot be established for a period of sixty years.
To complete the general statement of the facts, it may be mentioned that a retaining wall was built to protect Dunkley's land prior to 1879, and that this retaining, wall was continued in front of William's land in the years 1886-88. Further, as was stated on the appeal to the Full Court, there was no public right of way over the foreshore. In the years 1907,-1908 the Government of the island began the construction of a public road along the waterside of the lagoon. The road was continued over the lands in dispute in the present case. By this means the five plots belonging to the respondents have been cut off from the waters of the lagoon, and from their wharves and piers. By the construction of the road so made some of the stores, buildings, and sheds erected by the respondents or their predecessors have been destroyed, and the use and possession of the respondents' lands have been in an important degree subverted. It became accordingly, necessary to determine the nature of the rights of parties so as to settle the basis upon which compensation shall be made.
The form of proceedings is by way of information. It is only necessary to look at the prayer of these to observe the startling consequences which would result to all the respondents' properties, should that prayer be granted as it stands, for it is pray
