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THE HONGKONG DAILY PRESS, WEDNESDAY, NOVEMBER 3RD, 1990,
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THE ANCIENT LIGHTS" CASE and no building has been erected on Lot
IN SHANGHAI
Hatric for defendant
His Lordships said:
11 since the transfors nearer than the AN INTERESTING JUDGMENT.
building now shown on Ex. 3. «. There is ng avidence of any claim of the right now Judgment, was delivered by Mr. Skinner sought to be established ever having.
been Tarber, Acting Judge, in H.M. Supreme en before, even though there have been Court at Shanghai last week in the some 13 transactions with these ploss and icient fights case of Tam Wa and covenant for light or air was inserted the British and Foreign Bible Society in the agreement of 1007. versus Atkinson and Daling which had been
Kaur asked to imply an intention; which arguest before the Court at considerable if not actually there will be taken by law length at preglous sittings.
to be there in the mind of the transferor in Mr. R. N. MacLeod appeared for plain-1ess to grant a coscient o
of light and oir tiffs and Messes. D. McNeil Reader in favour of Lot 1170, over Lot 117. And admitted that it is by Chinese Lan that this has to be determined. It is The claim to the action is a novel one conceded that there is no mention of any in this Court, and it is somewhat rub ensinent in any known Chinese Lan, prising, when the building conditioàs of this but it is urged that the rule of Chinese Settlement "are vo-sidered, that the matter Law in (1 quots here from the preface to has never beru a subject of litigation before. translation of Chinese Supreme Court It is a chain to an easement of light and decisions): "Civil cases are decided as air: " for "an injunction to "restrain the cording to express provisions of law; it owners for the time being of one piece of the absenco of express provisions then land from so buikkung as to interfere with according to custom, and in the absence of tàu hjorument of those adv tug bị thu
custom, then according to legal principles." adjoining faed.
This claim is not base? This is stated to be a rule enugeinted by on any custom that has been expressly the Supreme Court. Here' therefo stated in the course of the case; nor it express provision of law; there is no claimed on any doctrine of prescription claim of custom; I am, therefore, driven that it has been acquired by user during to legal principles, and am asked to take any given anniber of years. The claim is it that those legal principles are the same based solely on the fact that at one time in Chinese-Law as in English Law It! alf the land bcaged to one owner and that be transferred a piece with a Douwe
it prior to or sundtanissly with a transfer of the twuse upon it other pine which had no
agreed that there may be, and are, express agreements as to light in China: rements not to build above a certai height or beyond a certain line: and I The property in question is situate in doubt not. shat such agreements would be "Peking", Road. The "plaintiffs, both enforced like any other contrnet in the British subjects, are, the registered overChine Courts just as in England there is and their traus,ering of the pine with the
choose (referred to hereafter ay Lot 1175.) (no legal objection to the creation of novel and the defendanta jako British subjects, contractual rights over Inad: it is there- are the registered owners of the adjoining for urged there can be piece (referred to hereafter as Let 1171.
ng theoretical
The plaintiffs' house in built close up to objection to an implied agreement to thes an agreed boundary line and has some 8 same effect; that rights of way are well. windows looking over the defendants' land, know and ways of necessity are implied.. seme on the ground floor, some on the first
floor and some on the second floor. A well Any the introduction of European houses built up close to the agreed boundary line isty Chino muss have brought other ideas on the defendants' side would undoubtedly into extence here than existed when no block both light and air to the plaintisch hosts had been built and the growth
windows, and might "easily constitute. nuisance within the meaning of the Eng. fish cases on the subject and therefore be the subject of an Injunction. This case | has been brought to determine what rights,
if any, the parties huye; /
of Western civilisation, and the springing up of now institutions must lead to new ideas and there is therefore nothing to prevent the application of a doctrine such assetaimed here as it is thoroughly in The Judge proceeded to trace the history word with legal principles, or the prin- of the plots of land concerned in the case ciples of natural justice. With much and coming to the question of law said of this I agree, but it is very far from What is the law which should guide my
leading me to the conclusion that in 1868, decision in this cause? The Law of Nations or only 20 years after the Treaty of Nasking Interánt anal Law is it must be promised, formally opened the port of Shanghai and a_party fly Law of England. Now the Law gave foreigners the right to lease land there, of Nations ny laid clear by the Chinese, law would imply a theory Wheaton and, we may assume, all
of implied grant of a right of light a authorities, declares that the mode of transfight in itself unknown to Chinese Statute fers of immoveable property to be law or (as far as I know) custom and governed by the law of the place in which theory which must have been a develop that property. Is-sitopred." From this ment of English fax to meet the necessities we echelnde va general rule that land of the country, for it is to be remem transfers in China must be governed by bed that at common law there is in the law of China; and I hesitate the les England no right of light at all Etory to adopt this view. In pracice, as it has maa is presumed to know the law and been fully confined by an opinion of the law applicable to rights in land, n high authority that of the British Law bed teen publicly stated in 1863, was the Uffieera of the Crown Them were con- law of Ching. 1 can, I think, hardly bo suited about twelve years ago; and I now pretented at the tranferor in 1884 with rend thebatification which was issued that pronounceivent of the law fresh in thereon by H.31. Minister at. Hongkong, his mind, intended or can be presumed by of which place be was at the time Gov. the law to have intended to make such ernor -
grant as is claimed here as against himself or a non-British subject: a grant of a right which admittedly oven to this day is not mentioned in any of the sources from which we derive our knowledge of Chinese Law; and which might, I suppose, have been entered on the Register-where certain conditions are mentioned-but
not there.
From the Hongkong Government Gazelle of the Ish March, 1956
GOVERNMENT: NOTIFICATION
Diplomatic Department. MA question has arisen as to the Law by which contracts entered into with
1.1. subjects on Chinese Territory by But the matter can be looked at in an. Chinese subjects for the cession of pro- other way. It is argued that the maxim perty in China are bound to observe the that a man cannot derogate from his own rules and principles of Public or Inter-grant is as applicab.o in Chinese Law as national Law as they are settled and in English law. That may well be so. It conceived by the common consent of of course on the application of this European nations,
maxim that the Law of England implies Tu all questions that may come before a grant such as is claimed here. But in any British Tribunal in China, relating considering an obligation arising by im to ownership or occupation of houses or plication of law from the application of lands, being within the dominions of the the maxim and only obtaisable by Emperor of China, the law and custom outside the document of conveyance, it is looking of China, if they can be ascertained, necessary to consider all the circumstances must govern the decision, unless by the existing at the time of the grant and kowa terms of the contract the law or usage to the grantee. This is clearly laid down of some other country be imported into is the judgment of the Court of Appen! it; and if in any such case the Chinese In Birmingham District Banking Co. v. law cannot be ascertained, the devision Hoss (38, Ch. Dir. p.295) and especially in must be governed by principles of natural the judgment of the inte Lord Bowen (then justice..
There is no pretence for the Bowen, LJ.). It may be that in Eng introduction of the English law of real land on a severance à presumption arises in favour of some grant of this nature," an universal principle of Law but that presumption be rebutted
way in Europe that in all questions respect showing that the circumstances are not by ing immoveable property, the lex loci rei ordinary circumstances; or it is a question silae prevails; and we think it both right of drawing the proper inference after, a and useful that the same rule should be consideration of all the facts. Here wo acted on la the administration of justice bare-s developing Bottlement with Euro
..!
in China.” administration of Justice pess houses being erected on land confined That decision was published in Shanghai to the occupation of Europeans. The under date 8th September, 1908, prior to Peking Road was obviously a rond intended the transfers of that year which form the for building purposes it is interesting basis of the claim in this cause, that it is not mentioned as one of the The case is put to me thus: In English boundaries of the original Lot 117 "In Law au easement of light only arises by 1568 one grantee (of the dominant tene grant, either express, implied or prestimoat) was a British subject, the other (of ed. The implied groot arises when the the servient tenement) was not: and this owner of a land and house transfers the is a most important matter in considering hous retaining the lead adjoining it. this matter in an extraterritorial country. The law the implied a grant of light, a There is nothing in the document of trans necessary accommodation of the house befer to suggest that any other obligations has granted, over the land which he has existed save those mentioned in the original retained. And this is so, even when the title deed and I should hesitate to hold same time at all events when each party inference to be drawn from theso Facts is owner transfers to different persons at the pader those circumstances that the right knew of the other transfer. I have not that the grantor intended to give a right to consider the case of an express grant or of light to the British transferce as against Argument is based solely on an implied ever way I take it, I come to the same of a presumed grant in this case the the other, a non-British transferee. Which grant Intake the plaintiff's case as conclusion, that the plaintiff has failed to Presented by him: there was a house with make out his cases and there must be judg built up to the tent side in 1509. it was best for the defendants with costs Lordship
boundary when then the question of costs his severance came. The owner of the whole said it seemed to him this case was one to a British subject, at the same time as fore he thought some higher scale should land transferred the piece with the boue which was extremely important and there. be transferred the land without a buildize be adopted. He had already certiñed for to a non-British, subject. The lots. bave two counsel and he would fix the scale on never since been united is one ownership, that exceeding $10,000.
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