Right to lights how acquired.

7. OF THE RIGHT TO LIGHT AND AIR.

A right to the enjoyment of light and air may commence by mere occupancy. Every man on his own land has a right to all the light and air which will come to him; and he may erect, even on the extremity of his land, buildings with as many windows as he pleases, without any consent from the owner of the adjoining lands. After he has erected his building, the owner of the adjoining land may, within twenty years, build upon his own land, and so obstruct the light which would otherwise pass to the building of his neighbour. But if the light be suffered to pass without interruption during that period to the building so erected, the law implies from the non-obstruction of the light for that length of time, that the owner of the adjoining land has consented that the person who has erected the building upon his land shall continue to enjoy his light without obstruction, so long as he shall continue the specific mode of enjoyment which he had been used to have during that period. It does not, indeed, imply that the consent is given by way of grant, for light and air, not being to be used in the soil of the land of another, are not the subject of actual grant; but the right to insist upon the non-obstruction and non-interruption of them more properly arises by a covenant which the law would imply not to interrupt the free use of the light and air. (Per Littledale, J., 3 B. & Cr. 340. See 2 B. & Cr. 691.)

Romilly, M. R., said, "The principle is this: if a person opens a window letting in light and air from the land of his neighbour, who allows it to be enjoyed for twenty years, that person acquires a right to that easement over his neighbour's land, just as he would in the case of a footpath or carriage way, or any other easement. In such cases the law presumes a grant and a right to that easement so acquired, but limited to the extent to which he has for twenty years enjoyed it. Thus, in the case of a footpath, the right is limited to a footpath, and cannot be extended to a carriage road; and in the case of a window, the light is confined substantially to that which has been enjoyed, and the window cannot afterwards be enlarged so as to acquire a more extended right." (Cooper v. Hubbuck, 30 Beav. 163.)

It was held by Lord Ellenborough, C. J., that a party who had granted a parol licence to erect a skylight could not, after expense had been incurred, recall the licence, and treat the party to whom it had been granted as a trespasser for doing such act. (Winter v. Brockwell, 1 East, 308; see Wood v. Lake, Say, R. 3, ante, pp. 61, 62.)

In whatever way precisely the right to enjoy the unobstructed access of light and air from adjoining land may be acquired, (a question of admitted nicety,) still the act of the owner of such land, from which the right flows, must have reference to the state of things at the time when it is supposed to have taken place; and as the act of the one is inferred from the enjoyment of the other owner, it must in reason be measured by that enjoyment. The consent, therefore, cannot fairly be extended beyond the access of light and air through the same aperture (or one of the same dimensions and in the same position), which existed at the time when such consent is supposed to have been given. It is considered that convenience and justice both require this limitation; if it were once admitted that a new window, varying in size, elevation or position, might be substituted for an old one, without the consent of the owner of the adjoining land, it would be necessary to submit to juries questions of degree, often of a very uncertain nature, and upon very unsatisfactory evidence. And in the same case, a party, who had acquiesced in the existence of a window of a given size, elevation or position, because it was felt to be no annoyance to him, might be thereby concluded as to some other window to which he might have the greatest objection, and to which he would never have assented, if it had come in question in the first instance. The case of Chandler v. Thompson, (3 Camp. 80,) is not at all inconsistent with this reasoning. (Per Pattesen, J., Blanchard v. Bridges, 4 Ad. & Ell. 191, 192.) There may appear to be some hardship in holding that the owner of a close who has stood by, without notice or remonstrance, while his neighbour has incurred great

expense in building upon his own adjoining land, should be at liberty, by subsequent erections, to darken the windows, and so destroy the comfort of such buildings. Yet there can be no doubt of his right to do so at any time before the expiration of twenty years from their erection, and this with good reason, for it is far more just and convenient that the party, who seeks to add to the enjoyment of his own land by any thing in the nature of an easement upon his neighbour's land, should first secure the right to it by some unambiguous and well-understood grant of it from the owner of that land, who thereby knows the nature and extent of his grant, and has a power to withhold it, or to grant on such terms as he may think proper to impose, than that such right should be acquired gradually as it were, and almost without the cognizance of the grantor, in so uncertain a manner as to create infinite and puzzling questions of fact to be decided by litigation. If a party, who has neglected to secure to himself the unobstructed enjoyment of light and air to a new window by previous express licence or covenant, relies for his title to them upon any thing short of an acquiescence of twenty years, the onus lies upon him of producing such evidence as leads clearly and conclusively to the inference of a licence or covenant. And if a deed be not necessary for that purpose, it is obviously advisable to have it. (Blanchard v. Bridges, 4 Ad. & El. 194, 195.) In an action for obstructing ancient lights, the facts stated in a special case were as follows:The plaintiffs and defendants possessed premises opposite to each other, in the city of London. The plaintiffs' premises, in which the windows had been used for more than twenty years, having been burnt down, the plaintiffs rebuilt them, but in the newly-erected building the windows were placed in different situations, were of different sizes, and altogether occupied more space than those in the old building; some parts of the new windows were connected with some parts of the old ones, but a great portion of the old and new windows did not coincide. In the special case it was stated that "the defendants could not have obstructed the passage of light to such portions of the windows of the plaintiffs' new building as were new, without at the same time obstructing the passage of light to such portions of the plaintiffs' windows as were in the sites of the old windows to the extent stated in the declaration." It was held by the Exchequer Chamber, affirming the judgment of the court below, that as none of the new windows occupied the same position as any one of the ancient windows did, no right was acquired in respect of any of them against the plaintiffs. (Hutchinson v. Copestake, 9 C. B., N. S. 863; 31 L. J., C. P. 19; 8 C. B., N. S. 102.) In Hutchinson v. Copestake, 9 C. B., N. S. 867, Crompton, J., said he wholly dissented from the doctrine supposed to have been laid down by the Master of the Rolls, in Cooper v. Hubbuck, 30 Beav. 160; 7 Jur., N. S. 457, that a party having several windows in a house could put out an intermediate new window between two old ones, where no apparent detriment to the owner of the servient tenement appeared to arise therefrom. Crompton, J., thinks that the right to restrict the owner of the adjoining land from building on his own land, gained by user or grant, must be confined to the subject-matter of such user or grant, and that the restriction on the owner of the servient tenement must be substantially the same, according to the rule as laid down in Blanchard v. Bridges, 4 Ad. & Ell. 176; 5 N. & M. 567. He does not think that the owner of the old lights can say, "this new window I now put out will occasion you no harm, as you could not build so as to affect any of my new lights before, and this new one will not abridge your power of building." The new light is not one of the windows to which the original assent was given, and it may be that the owner of the servient tenement would not have chosen to acquiesce if the window had been in the situation of the new window. (Hutchinson v. Copestake, 9 C. B., N. S. 867, 868.)

Where an owner of the dominant tenement has exceeded the limits of the right which he has acquired to the access of light and air, by opening an additional window, leaving his ancient windows unaltered, he has not necessarily lost or suspended his admitted right; but the opening of the additional window justifies the owner of the servient tenement in obstructing the ancient windows, if the doing so is unavoidable in the exercise of his

right to obstruct the new window. (Binckes v. Pash, 11 C. B., N. S. 324; 8 Jur., N. S. 360; 31 Law J., C. P. 121; 10 W. R. 424.) This case was held to be distinguishable from Renshaw v. Bean, 18 Q. B. 121, post, p. 130, on the ground that in the latter case the windows, the right to which was held to be suspended, if not lost, had been so much altered that they could not properly be regarded as the same windows as those in respect of which the right had been gained, so that in truth the ancient windows, and the right claimed in respect of them, might well be regarded as having ceased to exist. (11 C. B., N. S. 336, 339, 340.)

A. being possessed of a house of three storeys, in Wood Street, Cheapside, with a window in each storey, lowered and enlarged the windows in the first and second floors, and added two new storeys to the building, with the windows therein. The altered windows on the first and second floors each occupied in part the space before occupied by the ancient windows, the window on the third floor remained as it had always been. B., in rebuilding his premises opposite, obstructed the whole of the windows of A.'s house, it being impossible (as found in a special case) to obstruct the new lights without at the same time obstructing the old ones. A. thereupon stopped up his new windows, and restored the old ones to their original state, and then required B. to remove the obstruction, which he refused to do it was held by Bramwell, B., and Blackburn, J., that the original obstruction was not justifiable, controverting the principle laid down in Renshaw v. Bean, 18 Q. B. 121, and adopted in Hutchinson v. Copestake, 9 C. B., N. S. 803. It was held by Wightman, J., and Crompton, J., that the original obstruction was justifiable, but that the defendant was bound to remove it upon the abandonment by the plaintiff of the usurped lights. It was held by Pollock, C. B., and Martin, B., that the obstruction being lawful at the time of its erection, its continuance was not unlawful. The judgment of the court of Common Pleas, (11 C. B., N. S. 283,) was, therefore, affirmed. It is said that a writ of error is now pending in Parliament. (Jones v. Tapling, 12 C. B., N. S. 826-863.)

The enjoyment of lights for twenty years, without any obstruction from the party entitled to object, has been long held to be a sufficient foundation for raising the presumption of an agreement not to obstruct them. (2 B. & C. 686; Darwin v. Upton, cited 3 T. R. 159; 2 Wms. Saund. 175.) Before the stat. 2 & 3 Will. 4, c. 71, s. 3, ante, p. 15, the acquiescence of lessees or tenants for life in the enjoyment of lights did not bind the landlord or reversioner, unless they had knowledge and acquiesced for twenty years, and a presumption against the owner of lands was not so easily inferred in the case of light as in cases of rights of way or common, where the tenant suffered an immediate injury. Thus it was held that an enjoyment of lights for more than twenty years, during the occupation of the opposite premises by a tenant, did not preclude his landlord, who was ignorant of the fact, from disputing the right to such enjoyment, although he would have been bound by twenty years' acquiescence, after having known that the windows were opened. (Daniel v. North, 11 East, 370.) The tenant cannot merely by his own admission bind the landlord; (Reg. v. Bliss, 7 Ad. & Ell. 554;) nor can he do so by declarations. (Papendick v. Bridgwater, 5 Ell. & Bl. 166; see p. 177.) Since the act 2 & 3 Will. 4, c. 71, where the right to light is acquired against an owner of a leasehold interest, it is also acquired against the owner of the reversion. (Simper v. Foley, 2 Johns. & H. 555.) Pollock, C. B., said it may be, since the prescription act, that if a man opens a light towards his neighbour's land, the reversioner may have no means of preventing a right thereto being acquired by a twenty years' enjoyment, unless he can prevail upon his tenant to raise an obstruction, or is able to procure from the other party an acknowledgment that the light is enjoyed only by consent. (Frewen v. Phillips, 11 C. B., N. S. 455.) So where lights had been enjoyed for more than twenty years, contiguous to land which, within that period, had been glebe land, but was conveyed to a purchaser under the 55 Geo. 3, c. 147, it was held, that no action would lie against such purchaser for building so as to obstruct the lights, inasmuch as the rector, who was tenant for life, could not grant the easement, and therefore no valid grant could be presumed. (Barker v. Richardson, 4 B. & Ald. 579.

See also Cross v. Lewis, 2 B. & Cr. 686.) It will be observed, that by the act 2 & 3 Will. 4, c. 71, s. 3, ante, p. 15, an absolute right to light may be acquired by an enjoyment without interruption for twenty years, as the eighth section of the act, providing for possession during particular estates, does not extend to lights. And since that statute a right to lights may be established upon an enjoyment for nineteen years and a fraction, provided the action be brought before the interruption has continued for the full period of a year. (Flight v. Thomas, 3 Per. & D. 442; 11 Ad. & Ell. 668; 5 Jurist, 811; 8 Cl. & Fin. 231; ante, p. 15.) Hence it follows, that the legislature contemplated such an enjoyment as could be interrupted by the adjoining occupier at least during some part of the time. (Harbidge v. Warwick, 3 Exch. R. 557; ante, p. 16.)

As a man cannot derogate from his own grant, it is well established, that where the same person possesses a house, having the actual use and enjoyment of certain lights, and also possesses the adjoining land, and sells the house to another person, although the lights be new, neither the vendor nor any one claiming under him can build upon the adjoining land, so as to obstruct or interrupt the enjoyment of those lights. (Palmer v. Fletcher, 1 Lev. 122.)

In 1855, the owners in fee of a house and adjoining land granted to trustees a lease of the land for ninety-nine years, and they covenanted to build upon it according to a plan. In 1856, the owners conveyed the reversion in fee of the lands to the trustees; in 1857, the owners conveyed the house in fee to a person under whom the plaintiff obtained possession. The defendant subsequently, with the authority of the trustees, built upon the land so as to obstruct the light and air which, for upwards of twenty years, had come to the windows of the plaintiff's house. If he had built according to the plan in the lease, the obstruction would not have been to the same extent. Until the lease was granted, there had never been any severance either in the title to, or possession or occupancy of, the land and house, and the same had been occupied and used together by the proprietors for upwards of fifty years: it was held, that the plaintiff could maintain no action against the defendant for building on the land so as to obstruct the light and air which formerly came to the windows of the plaintiff's house. (White v. Bass, 7 H. & N. 722; 8 Jur., N. S. 312; 31 Law J., Exch. 283. See Tenant v. Goodwin, 2 Ld. Raym. 1093; Cox v. Matthews, 1 Ventr. 237; Rosewell v. Prior, 6 Mod. 116; Compton v. Richards, 1 Price, 27; Swansborough v. Coventry, 9 Bing. 309; 2 M. & Scott, 262; Canham v. Fisk, 2 Cr. & Jerv. 128.) And upon the same principle, where several adjoining portions of land, on which the building of houses had been commenced, were sold, and by the conditions of sale were to be finished according to a particular plan within the space of two years: it was held, that a purchaser of one of the lots could not, by erecting an additional building at the back of his house, obstruct the light from the windows of another purchaser, who has built his house according to the plan; (Compton v. Richards, 1 Price, 27;) for the lots were sold under an implied condition, that nothing should be done by which the windows for which spaces were then left might be obstructed. (Ib.) And where the plaintiff purchased a house A., and the defendant at the same time purchased the adjoining land, upon which an erection of one storey high had formerly stood, although in the conveyance to the plaintiff his house was described as bounded by building ground belonging to the defendant: it was held, that the defendant was not entitled to build a greater height than one storey, if by so doing he obstructed the plaintiff's lights. (Swansborough v. Coventry, 9 Bing. 305; S. C., 2 M. & Scott, 362.) A., the owner of two adjoining houses, granted a lease of one of them to B., and afterwards leased the other to C., there then existing in it certain windows. After that B. accepted a new lease of the house from A.: it was held, that B. could not alter his tenement, so as to obstruct the windows existing in C.'s house at the time of his lease from A.; though the windows were not twenty years old at the time of the alteration. (Coutts v. Gorham, 1 M. & M. 396.) So where the owner of a house divided it into two tenements, and demised one of them to the defendant: it was held he was liable to an action on the case for obstructing the windows in the house at the time of the demise,

Right to lights, how lost.

Action for obstructing lights.

although of recent construction, and there was no stipulation against the obstruction. (Riviere v. Bower, 1 Ry. & M. 24.)

Completely shutting up windows with brick and mortar for above twenty years will destroy the privilege of light. (Lawrence v. Obee, 3 Camp. 514.) And the right to the use of light and air, which a party has appropriated to his own user, may be lost by mere non-user even for a less period than twenty years, unless an intention of resuming the right within a reasonable time be shown when it ceased to be used. Thus, where a person, entitled to ancient lights, pulled down his house, and erected a blank wall in the place of a wall in which there had been windows, and suffered such blank wall to remain about seventeen years, and the defendant erected a building against it, when the plaintiff opened a window in the same place where there had formerly been a window in the old wall: it was held, in an action for obstructing the light of the new window, that it must, at least, be shown that at the time of the erection of the blank wall, and the apparent abandonment of the former lights, it was not a perpetual, but a temporary abandonment of the enjoyment, with an intention to resume it within a reasonable time. (Moore v. Rawson, 3 B. & C. 336; 5 D. & R. 234.) And it was said by Littledale, J., that if a man pulls down a house, and does not make any use of the land for two or three years, or converts it into tillage, he may be taken to have abandoned all intention of rebuilding the house, and consequently, that his right to the light has ceased. But if he builds upon the same site, and places windows in the same spot, or does anything to show that he did not mean to convert the land to a different purpose, then his right would not cease. (Ib. 341. See ante, p. 124.)

The plaintiff was owner of a house in which there were ancient windows. His predecessor blocked them up, and they continued blocked up for nearly twenty years. The defendant purchased the adjoining land, and proposed to build upon it. The plaintiff, by way of asserting the right to the light, re-opened his ancient windows. The defendant obstructed them. On the trial of an action for this obstruction, the judge directed the jury that, if the right to light had once been acquired, it continued unless lost and he directed them, if they thought the right had once been acquired, to find for the plaintiff, unless they thought his predecessor had, in blocking up the windows, manifested an intention of permanently abandoning his right to the light, or unless they thought that the windows had been kept so closed as to lead the defendant to alter his position in the reasonable belief that the windows had been permanently abandoned. The plaintiff having had a verdict: it was held that the defendant had no ground to complain of this as a misdirection. (Stokoe v. Singers, 8 Ell. & Bl. 31; 3 Jur., N. S. 1256; 26 L. J., Q. B. 257.)

It was questioned whether the manifestation of an intention to abandon the windows communicated to the owner of the land would destroy the right, until the owner of the land altered his position in reliance thereon. (Ib.)

When a party has acquired a right to the use of light, an action on the case lies for obstructing it. (9 Rep. 59 a; Boury v. Pope, 1 Leon. 168.) In order to sustain such an action, it is not necessary to show a total privation of light. If the plaintiff can prove that by reason of the obstruction he cannot enjoy the light in so free and ample a manner as he did before, it will be sufficient. (Cotterell v. Griffiths, 4 Esp. N. P. C. 69.) To sustain an action on the case for darkening the plaintiff's windows, it is not sufficient that a ray or two of light should be obstructed. The question is, whether, in consequence of the obstruction, the plaintiff has less light than before, to so considerable a degree as to injure the plaintiff's property in point of value or occupation. (Pringle v. Wernham, 7 Carr. & P. 377; Wells v. Ody, Ib. 410.)

Rights to air and light are bestowed by Providence for the common benefit of man, and so long as the reasonable use by one man of this common property does not do actual and perceptible damage to the right of another to the similar use of it, no action will lie. A man cannot occupy a dwelling and consume fuel in it for domestic purposes without in some