No apology is needed for reverting to the extremely important decision. given by his Honour Judge Skinner Turner last Tuesday in what is commonly known as the Ancient Lights case. For the matter is one vitally affecting the interests of the community in general. To recall as briefly as possible the main features of the case, there are in Peking Road two adjacent lots of land 11ic, now occupied by the Buitish Foreign Bible Society, and 117 held by Messrs. kinson Dallas. Prior to 1868 they were one lot, but in that year the land was split up, and the piece known as 117c, with a house upon it, was transferred to a British subject, lot 117, on which there never has been a house, to a non-British purchaser. Now the owners of 117 wish to build on it in such wise, admittedly, as would seriously interfere with the light and air of the house on 117c; and the owners of this lot claimed an easement in this respect to restrain such building. As everybody knows, they lost their case. It would be abstird to attempt to summarize the learned judge's reasoning in half-a-dozen lines. But the fundamental consideration appears to be this: that whereas in English law, such an easement might be taken as being implied at the time of the transfer in 1868, a house then existing on the land, no such implication could be assumed in respect of land in China where, in the absence of any express provision to the contrary, the law of the country must be held to apply. And Chinese land law, though containing other provisions to safeguard the owner from his' neighbour, says nothing about light and air.
A further consideration which also evidently weighed strongly with his Lordship was the impossibility of declaring a right, of which the principal value would be that it ran with the land and remained binding on every owner, no matter what his nationality. As Shanghai is constituted to-day it is more than difficult, it must prove in practice impossible, to assert the application of the English law of real estate. That law, which is in effect the outcome of the old feudal system, contains infinite refinements and delicacies]. of principle. To a great extent the American law of real estate is the same as the English, only such provisions being dropped as were found to be unsuited to the newer country: trid if there were nobody in Shanghai but British and Americans, or if it were possible to enact that a piece of land once held by a British subject could never be transferred to any but a British subject, the English law might be applied without serious: difficulty. But where any piece of Jand may be owned by an Eng-morrow and a Jugo-Slav next week, there is no such possibility, and no means of contriving any provision in a deed of conveyance which should run with the land and remain equally binding on all owners. It is remarkable that no such case as the one just decided has ever before come into the Supreme Court. The probable explanation is that difficulties of this kind were previously disposed of by common consent, on the sound principle of letting sleeping dogs lie. But Tuesday's decision has awakened a whole pack of potentially nasty curs. Virtually, there appears no power to prevent any landowner from making himself obnoxious to his neighbours in any way he likes.
Two points, however, in the Judge's decision should' specially he mentioned. Express contracts are known in China, which no doubt Chinese courts would enforce as to building, that it shall not exceed a certain height or go beyond a certain line. And if Chinese law admits so much as this, obviously designed for the protection of a neighbour's light, might it not be amended to include other kinds of protection of property? At any rate might not the Chinese Govern. ment be induced thus to amplify it by special enactment? For there is this second point also mentioned by his Lordship, that "the introduction of European houses into China must have brought other ideas into existence and the growth of Western civilization and the springing up of new institutions must lead to new ideas." In other words, we are making history fast in Shanghai and the law which did well enough in 1868 will not serve in 1920, still less in another ten or twenty years. And this consideration is emphasized by the fact that the Settlement is distinctly limited and a great.many more people and interests and enterprises are crowding into it than it was ever designed to contain. Our object in drawing attention to this ques. tion is not so much to do anylishman to-day, a Dutchman tom thing for the central district, which is probably past praying for, as to protect the outer parts. The French Council has, we believe, been able to protect certain roads by refusing the intending perpetrators of nuisances gas, water, electricity and police protection. But this eminently practical solution of the problem by a most practical race appears to be unworkable in the International Settlement. The only visible remedy is to get Chinese law amended and expanded; and we think the various Chambers of Commerce might well combine in approaching the Consular Body to this end.
Text read from the printed page and cleaned; old type leaves the occasional error.