EXCURSUS

Section I

Land tenure

water - accession

rights of

The original right of property in land is that of the State not of the Emperor personally, but of the Emperor, under law, as the representative of the State. In some places also land is held by direct grant from the Emperor to military servants

this practice dating from a period some two or three hundred years back, when the Tartar rulers, in disbanding their armies, provided for their old soldiers by giving them grants of unoccupied land. The general, nearly universal, legal tenure is however acquired by cultivation by what we should call 'squatter's right'. Any man may enter upon unoccupied land and cultivate it; and

when he has brought it under cultivation, by going to the District Magistrate, and professing himself willing to pay the annual State ground tax, he can be registered as legal owner — taking out as it is called a hung ch'ior red title-deed, which forms the root of title. He has reclaimed the land, and thereby acquired a right to it, subject to subscription to the general necessities

of government; and so long as he keeps the land under cultivation, and pays his ground tax, it is his. The land may even be allowed to lie fallow.

This right in land confers upon the owner no special eminence. It is no claim to distinction in China to be the owner of 100,000 acres of waste moors. Consequently, what the owner cannot cultivate himself, he lets to others but without the oppressive restrictions which hold in this country. Merely the current value is taken as a deposit, with the right to resume ownership by the return of the sum given. The taxes, the landlord, as registered owner, has to pay, and as they generally far exceed in value the inprovements that the tenant has to make, the latter has no ground for quarrel. The tenant is quite free to sell his

interest in the land by simple deed, on every transfer a tax being of course paid to the Government for authorisation.

The landlord may sell his estate absolutely,

and the purchaser by payment of certain fees not too oppressive then gets a direct

title, and becomes liable for the State tax. Sale with conditions is unknown. The Chinese do not understand legal rights giving ridiculous privileges: a butcher has a right to ask a person to pay for sausages sold, but not to say whether the buyer must fry them or eat them raw so a landlord in China, if he sells, must sell, and not dictate what the purchaser must do with his property.

On such sales of land there are occasionally prepared documents in some sort corresponding to our abstracts of title. But usually merely a simple undertaking (by deed) for responsibility as to ownership and taxes is entered into by the vendor and purchaser. Alienations without such deeds are viewed with suspicion on subsequent sale, and where they are forthcoming it behoves a subsequent purchaser to carefully examine both them and the original hung ch'i.

It may be added in conclusion that entail, in the strict sense, does not exist; but where property is devised coupled with a condition such as the maintenance of ancestral worship it is criminal to alienate it.

Rights of water.

If a man steal the water from a reservoir constructed by the owner of the land to water his field, the owner may seize him as a trespasser, and the fact that he was so will be considered in adjudicating on any injury the owner may do the trespasser. Nay if the trespasser be armed, and in fencing with him, the owner kills him, he will be held harmless (H. A. H. L. vol. XXX. p. 27 also v. Justifiable homicide of trespasser).

Rights by accession.

Reclaimed washes

come under the same category as reservoirs constructed for irrigation purposes; but to acquire property in them, report must be made to the Magistrate of the intention to reclaim, the ground must be measured, and the tax thereon fixed. Should banks form, the owner of the adjoining land can get them added to his property; but he must first have an exact measurement made,