Some Easement Types
Cases Right of Light
Scott v. Goulding Properties
[1973] IR 200
Supreme Court
WALSH J. :”
29 Feb.
This is an appeal brought by the defendants against the judgment and order of Mr. Justice Teevan dated the 31st July, 1968, awarding a sum of £1,700 damages to the plaintiff against the defendants for diminution of access of light to the plaintiff’s dwellinghouse, No. 11 Lad Lane, Dublin, which had been caused by the erection of a building on the south-east side of the plaintiff’s dwellinghouse by the defendants.
The plaintiff’s premises are a mews premises which were converted into a residence by the plaintiff. The defendants’ premises, which are the cause of the complaint, comprise a very substantial building erected in three sections. The centre section is a twelve-storey structure which is 124 feet high and is flanked on either side by three-storied sections which are 40 feet high. The defendants’ premises are directly opposite the plaintiff’s residence, being about 20 feet from the entrance gate to her premises and about 40 feet from the main wall of her residence. The total cost of the erection of the defendants’ premises was in the region of £600,000. Before the defendants commenced the building operations, they received a letter on the 9th May, 1967, from the plaintiff’s solicitors advising them that their proposed structure would almost certainly diminish the light being received by the plaintiff’s residence. The letter advised the defendants that the plaintiff was about to have light measurements taken and it offered the defendants the facility of taking similar measurements at that time. An assurance was sought that no buildings would be put up which would interfere in any way with the light to the plaintiff’s premises or the amenities thereof. The letter contained a warning that, if the defendants proceeded with their building in spite of the letter from the plaintiff’s solicitors, the plaintiff would take such steps as might be necessary to protect her interests. The letter also enquired if the defendants would permit the plaintiff’s solicitors to have a set of the working drawings for the benefit of the plaintiff’s light expert,s. No reply was received to that letter and a further letter was sent on the 19th May asking for a reply to that of the 9th May. On the 26th May a letter was written by the defendants’ solicitors acknowledging the receipt of the letter from the plaintiff’s solicitors and declaring that the defendants were quite satisfied that their proposed building would not cause any material interference with the light enjoyed by the plaintiff’s premises. From the evidence given in the High Court it was abundantly clear that the defendants did not carry out any inspection of the plaintiff’s premises before they settled upon their building plans and did not avail of her offer to have the light measurements made before the building commenced.
The learned High Court judge found that the light to the plaintiff’s premises had been interfered with by the defendants’ structure and that it was a serious interference with the plaintiff’s right to light and that it was of a character which of necessity must continue. The interference in the main resulted from one of the lower sections of the defendants’ structure, but to some degree it was also caused by the twelve-storey structure. In the course of the evidence it was stated that it would cost about £10,000 to remove the third floor of the offending low structure and that, if the high block was to come down, it would cost between £60,000 and £70,000. The learned trial judge refused an injunction and awarded £1,700 damages. Against this verdict the defendants have appealed, first, on the ground that the learned trial judge erred in law in awarding damages to the plaintiff for the obstruction of access of light to windows which did not enjoy ancient lights. The defendants also complained that the damages assessed were repetitive and covered the same items under alternative headings and, furthermore, that the plaintiff was not entitled to damages which the judge awarded and included in the sum already mentioned for loss of amenity in addition to damages based on the diminution of the value of the property as a result of the obstruction of the light. It was also claimed that the damages awarded were excessive.
The first ground of appeal raises the most important point in this case. It was found as a fact, and was not disputed, that some of the windows and apertures whose light had been diminished by the defendants’ buildings had been only made in the residence when the plaintiff converted them subsequent to the year 1959. Other apertures and windows clearly enjoyed the right of ancient lights. It was also clearly established that the defendants’ buildings had diminished the light to the apertures which enjoyed the ancient lights as well as the light to the more recent apertures. The plaintiff has undoubtedly suffered damage both to her ancient lights and to what I would call, for the sake of brevity, her modern lights. It is abundantly clear that no cause of action would arise without the damage to the ancient lights. Once the cause of action has arisen, the net question is whether the plaintiff is also entitled to receive damages in respect of her modern lights as the diminution of light in that quarter is the direct result of the unlawful act of the defendants in infringing the plaintiff’s ancient lights. The learned trial judge found that she was so entitled.
Successive editions of Salmond on Torts support the learned trial judge’s view of the law. The most recent edition of that work (15th) was produced under the distinguished editorship of Professor R. F. V. Heuston; it states the law as follows at p. 717:” “It sometimes happens that damage which is in itself damnum sine injuria is caused by an act which, by reason of some other kind of damage also caused by it to the same person, is wrongful and actionable at the suit of that person. For example, a building which wrongfully obstructs the ancient lights of an adjoining building may at the same time obstruct other windows in that building which have not yet acquired legal protection. In such cases the damages recoverable for the wrongful act include compensation for the whole loss so caused, even though part of that loss is in itself damnum sine injuria: Griffith v. Richard Clay & Sons Ltd. 18 Again the protection of privacy, or redress for purely economic loss carelessly caused, is often dependent on some other cause of action: Jackson v. Watson & Sons 19; Campbell v. Paddington Corporation. 20 This has been aptly called the ‘parasitic’ element in damage.” The law is stated in somewhat similar terms in Mayne and McGregor on Damages (12th ed.) at para. 110 et seq. The principle of law involved is the ability to recover damages for what is termed a secondary interest where a separate liability in respect of a primary interest has been established. These paragraphs give examples of the various types of cases where damages for interference with the secondary interest were held to be recoverable and the types where they were not. Cases of infringement of rights to light fall within the former.
Dealing with the question of whether or not he should grant an injunction, the learned trial judge used the following words:” “This is not a case for an injunction for a number of reasons; the principal one being that, having regard to the amount expended by the defendants, the plaintiff does not press for an injunction. The other reasons are that it would be excessively costly and oppressive to compel the defendants to reduce the height of the offending part or parts of their building; and that it cannot be said that the defendants arrogantly proceeded in disregard of the plaintiff’s rights for they acted on professional advice in a case where there is, as we now know, a wide divergence of expert opinion. Nevertheless, there has been a serious interference with the plaintiff’s right to light and the defendants have created a nuisance which of necessity must continue.” If an injunction had been granted in the case, the order would have restrained the defendants from erecting their building so as to darken, injure or obstruct any of the ancient lights of the plaintiff and also from permitting to remain any building already erected which would cause any such obstruction. On the facts of this case the juxtaposition of the ancient and the modern lights was such that an injunction in those terms to remove the infringement of the ancient lights would also remove the cause of the diminution of light to the modern openings. Is the plaintiff then to be in a worse position because she is awarded damages instead of an injunction? It was urged on behalf of the defendants that the answer should be in the affirmative, even though the reason why the injunction was not granted in this case was to save the defendants the appalling cost which would fall upon them if an injunction had been given.
There can be no question that the defendants were fully aware of the effect which their building would have upon the light which the plaintiff was receiving in all the openings, both old and new, and it is clear beyond doubt that the defendants could not plead, nor have they endeavoured to plead, that the damage was such as they could not have foreseen.
The point of law at present under review was expressly dealt with in Griffith v. Richard Clay & Sons Ltd. 21 In that case the defendants had erected a building on the side of a street opposite to the plaintiff’s two houses which fronted on the other side of the street. The plaintiff’s windows facing the street were ancient lights. He was also the owner of a piece of land immediately to the rear of and adjoining his houses. The whole site occupied by the plaintiff’s buildings was in such a dilapidated condition that they would soon have had to be demolished and, as the neighbourhood was no longer residential, the property would have been suitable as a site for a warehouse or a factory; it was submitted that the value of the building site as a whole was diminished by the obstruction to the light in front. It was held in that case that the damages recoverable by the plaintiff were not limited to the depreciation in the value of the house but extended to the diminution in value of the whole of the plaintiff’s premises, considered as one building site. This affirmed the decision of the trial judge in the Chancery Division. In the course of his judgment in the Court of Appeal, Cozens-Hardy M.R. stated at p. 296 of the report that if the plaintiff had obtained an injunction “it is clear that that injunction, by virtue of these ancient lights, would have prevented the defendants from building any part of that which is opposite to the plaintiff’s houses above what is called the line shewn on the model. That would have enured for the benefit of the whole site, and it would have been competent without doubt for the plaintiff to have utilized this site in the only way in which a sensible man of business would use it, namely, by treating it as a whole . . . Well, it is said that that may be so as to an injunction; it may be that in that indirect way the plaintiff could have got protection for the whole of this building site; but further it is said that that has nothing whatever to do with a case in which no injunction is asked for. It was asked for in the writ and statement of claim, but no injunction was asked for at the hearing, and it is said that the considerations to which I have alluded have no application to a case where merely damages are asked for. Well, I ask myself, why not? A wrongful act has been committed by the defendants: what damage has the plaintiff suffered?”Having considered the judgment of Lord Esher in London, Tilbury and Southend Railway Co. and the Trustees of Gower’s Walk School 22, he went on to say at p. 299:” “I therefore think that this is a case in which we are at liberty to consider not merely what damage has been done in respect to these ancient lights in these ancient buildings, but also to consider what is the damage which the plaintiff has suffered by reason of the wrongful act of the defendants in creating a nuisance by interfering with the ancient lights.”
The question is also answered in the same way by Buckley L.J. in giving his judgment in that appeal. At p. 301 of the report he said:” “Suppose a man had a warehouse bounded by a large and high blank wall on the road having in it only one window, say for the purpose of lighting a counting-house on the ground floor. The owner of that building might open any number of windows ” modern windows ” in his blank wall, but in respect of these he would not be entitled to sue. Suppose a man on the opposite side of the road raised his building, and it was found that there was a legal nuisance to the one small ancient window. The owner would be entitled, under proper circumstances, to an injunction. If he obtained an injunction his injunction would operate to protect not only the one ancient window in the counting-house, but also in fact although not as of right any modern windows which might have been opened in the wall. Suppose he failed to get an injunction, but got damages, what damages would he be entitled to? He would be entitled to damages measured by the depreciation of the building, not with the one little window on the ground floor only, but with all the other windows. That would be the extent to which he had been injured, and it seems to me as matter of principle that that would be the proper measure of damages.” He goes on to point out that the fallacy of the argument to the contrary stems from the assumption that the action is brought for the pecuniary value of the access of light to each particular room through each particular window. He points out that that is not so and that the action is not in respect of that but in respect of the injury to the house as a whole. The thing to be ascertained is the injury to the house as a whole by reason of the infringement of the right to light to certain of its windows. At p. 302 of the report he said:” “What is the house as a whole? The house as a whole does not mean merely those rooms which look to the front. It includes rooms which look to the back . . . the whole property is to be taken into consideration in determining what is the amount of the damage sustained.”He also approves of what Lord Esher said in the Tilbury Case. 23
In the third judgment of the Court of Appeal in Griffith’s Case 24 Kennedy L.J. was also of the same opinion. He said also that he could not accept the argument that, in assessing damages, only the diminution of light to the ancient lights is to be taken into account; he said that the value of the premises as a whole is to be regarded and that the damages should represent the injury to the premises as a whole resulting from the unlawful act or nuisance of the defendant. He said that it is correct to say that the wrongful act is actionable in so far only as it has affected the ancient lights. At pp. 304-5 of the report he said:””But directly the wrong has been inflicted it produces, as a natural and necessary consequence the deprivation of the advantage which the protection of the ancient lights gave to the owner of the property to which those lights belong.”In the present case it is clear that so long as the ancient lights were protected the modern lights were also protected.
The Tilbury Case 25 was one where a railway company in exercise of powers erected a warehouse which obstructed the lights of the windows of the plaintiffs’ building. The plaintiffs’ building was a new one which they had erected on the site of a former building which had ancient lights. The position of certain portions of the windows in the new building coincided with that of the old windows while others occupied wholly different positions. The matter was approached on the basis of whether, at common law, the damages could extend to the modern windows as well as the old, and also on the basis of the provisions of s. 16 of the Railway Clauses Act, 1845, which would have extended to both. Lord Esher M.R. founded his judgment on the common-law point and at pp. 329-30 of the report he stated:” “On this point the rule seems to me to be that where a plaintiff has a cause of action for a wrongful act of the defendant the plaintiff is entitled to recover for all the damage caused which was the direct consequence of the wrongful act and so probable a consequence that, if the defendant had considered the matter, he must have foreseen that the whole damage would result from that act. If that be so, and a person puts up buildings, the inevitable consequence of their erection being to obstruct ancient and modern lights, should he not be taken to have foreseen that in obstructing the one he would obstruct the other? If that were proved in a common law action the plaintiff would be entitled to damages for the whole of the consequences of the wrongful act of obstructing ancient lights, which would include damage to the new as much as to the old lights. If so, it seems to me obvious that compensation must be given under the statute to the same extent.” Lord Esher took the view that s. 16 of the Act of 1845 would give the plaintiff everything he was entitled to by way of legal damages; he went on to say that, even if there was some damage which would not be included in the legal damages, the additional damage would be included in the statutory provision. It is clear, however, that he expressed the view and decided the case on the equation of the two in that particular instance. The other two judges in that case based their decisions on the provisions of s. 16 of the Act of 1845 rather than on the common law.
Lord Esher’s view of the damages recoverable at common law was approved and adopted by Cozens-Hardy M.R. and the other two judges in the Court of Appeal in Griffith’s Case. 26 Those two judges, Buckley and Kennedy L.JJ., were also two of the three members of the Court of Appeal in Horton v. Colwyn Bay and Colwyn Urban Council. 27 In that case Buckley L.J. at p. 341 of the report interpreted the Tilbury Case 28 as having decided that a plaintiff who is entitled to sue by reason of a wrong “may in that action recover all the damage he has sustained, including damage which he could not have recovered if this latter had been the only damage done him.” Kennedy L.J. agreed. Horton’s Case 27 dealt with a claim for damages by reason of works carried out under the Public Health Act, 1875, and rejected the claim of a person on whose lands sewers were in part constructed who claimed damages on the ground that the value of his lands would be depreciated by the contemplated user of the sewerage station which was not on his lands but on adjoining land. The plaintiff in that case lost because no actionable wrong had been done to him in the first instance and, therefore, the question of a secondary wrong did not arise. What is notable, however, is the interpretation which Buckley L.J. gave to the decision in the Tilbury Case. 28 In Griffith’s Case 26 Cozens-Hardy M.R. referred expressly to the fact that Buckley L.J. had so interpreted the matter of the common-law case for damages in the Tilbury Case 28, and in their concurring judgments Buckley and Kennedy L.JJ. not only did not disagree with that interpretation but reinforced it. Even if it might be said, as was urged on behalf of the defendants in this case, that the original dictum of Lord Esher in the Tilbury Case 29 was obiter (which it was not) or because of the provisions of s. 16 of the Act of 1845 was unnecessary (which it probably was), the principle was adopted as theratio decidendi in Griffith’s Case. 30
In my view Levet v. Gas Light & Coal Co. 31 is of no relevance to the question under immediate discussion. All that case purported to decide was that where a right to light is claimed under the Prescription Act, 1832, the enjoyment must have been had to and for a building in which there was an aperture which cannot be an ordinary doorway. My view that the case was concerned with nothing else is reinforced by the fact that no mention whatsoever is made of it in the Tilbury Case, 29 Horton’s Case 32 and Griffith’s Case. 30
The principle of law being discussed appeared in a somewhat different context a year before the decision in Griffith’s Case. 30 In Campbell v. Paddington Corporation 33the plaintiff recovered damages for loss of profit which she would have made but for the defendants’ act in erecting a stand which constituted a public nuisance and which obstructed the view of the main thoroughfare from the windows of the plaintiff’s home. The occasion was the funeral procession of King Edward VII. The plaintiff was in the habit of letting seats in her rooms, having windows facing the road, to persons wishing to view public processions passing down that road. It was quite clear that she had no enforceable right to a view from her premises but the defendants were guilty of a public nuisance by the unlawful obstruction of the highway in erecting the stand and, as a result, she was entitled to maintain an action to recover the damages in respect of the loss sustained by her which flowed directly from the unlawful act of the defendants. On appeal from the county court, Avory J. said at pp. 875-6 of the report:” “I agree that the law does not recognize a view or prospect from a house as a right in the nature of an easement which can belong to anybody as of right, and that no period of enjoyment will give a person a right of action against another who on his own land erects a structure or plants trees which obstruct the view or prospect. But that is not this case. This is the case of a person, a corporation in point of fact, not in the exercise of any right, but unlawfully and without any authority, erecting a structure in the public street which seriously interfered with the enjoyment by the plaintiff of her house. That is enough to give the plaintiff a right of action on the case for disturbing her in the enjoyment, use, and occupation of her house; and, moreover, as the wrongful act of the defendants constituted a public nuisance, the plaintiff, having in my opinion established the fact that she has sustained special damage over and above the general public inconvenience, has established a cause of action on this ground also.” At pp. 878-9 of the report Lush J. said:” “In the same way, where a person without having acquired a right of light enjoys in fact the uninterrupted access of light to his windows, he has no legal right to complain of the conduct of another who by an innocent act obstructs that light. In short, in the one case as in the other the person affected has no right in the sense that he has no easement. But in the present case the act of the defendants, apart from depriving the plaintiff of the view or prospect from her windows, was a wrongful act on independent grounds, and not merely in that it deprived the plaintiff of the view or prospect from her house. The defendants begin with an act wrongful in itself; if such an act is the source and origin of loss to the plaintiff, then, provided the loss is sufficiently closely connected with the wrongful act, it is a loss for which the plaintiff is entitled to redress.” He goes on then to discuss other cases in which wrongful acts causing loss of enjoyment of benefits which could not themselves be enforced but which nevertheless furnished grounds for the award of damages when those particular benefits were injured.
In Sheffield Masonic Hall Co. Ltd. v. Sheffield Corporation 34at p. 337 of the report Maugham J. approved the opinion voiced in Griffith’s Case. 35 The passages in Mayne and McGregor to which I have referred contain ample illustrations of the several different types of actions in which damages are awarded for the secondary loss in addition to the primary loss; they even include cases where the further damage is of a type totally different from the primary loss. These include actions founded on negligence, inducing a breach of contract, conspiracy, cattle trespass, seduction and others. For the purpose of this case it is unnecessary to explore these decisions; it is sufficient to say that there is more than ample authority for supporting the proposition in cases where the secondary loss is of the same type or character as the primary loss, that is to say, the same type or character as the damage to the right which is protected by the law.
Apart from the ample authority on the subject, in my view, it is demonstrably correct in principle that this arises in cases of infringements of easements of light because the damages are damages for the injury to the hereditament which enjoys the easement which is the direct result of the unlawful act, not just damages for the particular quantity of light interfered with coming through windows which were protected by a right enforceable at law. Once the defendant by his wrongful act has directly caused the damage complained of, he cannot seek to segregate one part of it from another where the whole of the damage resulting from his act was known and foreseeable by him. In such a case it would be completely contrary to legal principle that he should be permitted by an unlawful act to cause damage with impunity to another. The authorities which I have mentioned remain undisturbed in their support of the application of this principle to the case of ancient lights; I have already cited the most up-to-date text-books on the subject as being a correct statement of the law. I have no hesitation in expressing the view that the learned trial judge was correct in taking the view which he did on this aspect of the case, and that he was correct in principle in awarding damages for the injury suffered by the plaintiff so as to include the damage caused to her residence by the diminution of light not merely through those apertures which were entitled to ancient lights but also in respect of the diminution of the light coming through the modern lights.
I turn now to consider the defendants’ submissions that the damages assessed were repetitive and that the learned trial judge was wrong in allowing damages for loss of amenity in addition to damages based on the diminution of the value of the plaintiff’s residence as a result of the obstruction of the lights. During the course of the evidence at the trial it was submitted on behalf of the plaintiff by her expert that there had been a serious diminution of light. The defendants’ expert was emphatic that the interference, if any, was only marginal and insignificant. There was a clear conflict of opinion on this matter which had to be resolved by the learned trial judge. In addition there was the plaintiff’s own evidence, which the judge fully accepted, to the effect that much of the light to the premises had been diminished. After a careful weighing of the evidence on both sides the learned trial judge was satisfied that the defendants’ building had caused a serious diminution of light. Having considered the evidence and the judge’s assessment and analysis of it, I do not see any reason to disturb his finding on this point.
It was agreed that the conversion of the premises which had been carried out by the plaintiff had been carried out with great taste and discrimination and that the premises had been turned into a residence of considerable charm. It is clearly impossible to abate the nuisance which has been caused by the defendants’ building without removing the offending portions of the defendants’ building which would be an extremely costly matter. The result is, therefore, that the plaintiff’s residence will now suffer a permanent diminution of light and that is bound to affect the value. The total sum awarded by the learned trial judge was £1,700, which is made up of damages for depreciation in the value of the property and for loss of amenity. While the judgment and the order do not reveal the ingredients of the amount, from queries raised during the course of the hearing of this appeal it was ascertained that when the sum had been awarded counsel for the defendants asked the judge how the sum was made up and he was told that £1,500 was for depreciation of value and £200 for loss of amenity. The land valuer called on behalf of the plaintiff estimated that the effect of the diminution of light to the premises would reduce the market value of it by £1,500. The valuer for the defendants offered the view that the diminution of light would have no adverse effect on the market value. The plaintiff’s valuer placed a valuation of £6,000 on the premises if the light had not been diminished, whereas the defendants’ valuer gave evidence to the effect that the premises were worth at least £7,000 even in their existing condition. The defendants’ witness did concede that there had perhaps been some diminution of light caused by the defendants’ building. In the ordinary course of events one would naturally assume that this would reduce the value of a property but the case being made on behalf of the defendants’ here was that this type of property was subject to a special type of demand which was not really very much affected by the diminution of light of the order contended for by the defendants who did not, of course, agree that the diminution of light had been to the extent contended for by the plaintiff. However, one must not lose sight of the fact that the learned trial judge found as a fact that there had been a serious diminution of light and it was not denied by the experts on either side that a prospective purchaser would be affected by such things as the lighting of the premises. I do not see any reason to disagree with the learned trial judge’s acceptance of the evidence of the plaintiff’s valuer on this point. Indeed, bearing in mind the fact that the defendants’ valuer was inclined to put a higher value on the premises in any event, the diminution of light found by the judge to have been caused by the defendants would, if anything, probably cause even greater depreciation in the value of the property. However, there was no cross-appeal by the plaintiff on this point.
In the circumstances I do not consider that the judge’s assessment of £200, in respect of the damages to be awarded for loss of amenity, was in any way unreasonable. The damages awarded for this sum must bear a ratio to the diminution in the value of the property itself. It is true to say that if the plaintiff were to put the property up for sale immediately after the damage had been caused she would have taken the full shock of the depreciation in the value of the property but on the other hand would have suffered comparatively little loss under the heading of amenity loss. However, the longer she stayed in the premises and continued to live in them there would be a certain discount of the figure for the depreciation in the value of the premises but on the other hand, of course, the loss of amenity would appreciate in value so that one might say the longer one stays in the premises the less the depreciation in value may be felt because it is spread over so many years but the greater is the immediate effect of the diminution of light, namely, the loss of amenity. In the result, therefore, whether one takes the figure of £1,700 as being the full figure of £1,500 for loss of value and £200 for loss of amenity or the sum of two figures which bear different ratio to each other depending on how long the plaintiff will stay in the house, I think the total sum of £1,700 is quite reasonable.
If the evidence had been that the plaintiff would never sell but would remain for the rest of her days in the house the judge might very well have awarded virtually the whole of this sum for loss of amenity and the balance for depreciation in value. In a case such as this what the judge has to try to do is to arrive at a global figure which will cover the various contingencies either of immediate sale and little suffering in the sphere of amenities or long tenure with consequent higher amenity loss. If the judge gave full value of the depreciation of the property and also damages for loss of amenity based on a lifetime occupancy there would undoubtedly be a double element in the damages. In the present case there may be some slight overlapping but, in my view, it is of no significance because as the one element decreases the other one increases. As was pointed out by Dixon J. in McGrath v. Munster and Leinster Bank Ltd. 36, the assessment in a case such as this involves taking into consideration not merely the depreciation in the value of the property but such intangible injuries as loss of amenity. One takes a global view of the whole matter and, bearing in mind the possibility of duplication if the relative positions of depreciation in value and loss of amenity are not kept in proper perspective, one fixes a figure to cover the situation which will include both of these to the extent to which they exist or may exist.
There can be little doubt that in this case these premises which were so well and tastefully converted from an old mews to a residence depended a great deal upon the amount of light which was available and on the evidence the judge was quite justified in being satisfied that any appreciable diminution of light, let alone the serious diminution which he found, must adversely affect the value of the premises if offered for sale or the enjoyment of the person who lives in them if he does not offer them for sale. There was ample evidence in this case from the plaintiff, as the occupant, of the effect of the diminution of light on which the judge could find that there was an appreciable disturbance in the enjoyment of the premises and that this would of necessity continue.
Having regard to the fact that this case was mainly concerned with the principles applicable to the law on this subject, I have not found it necessary to go into any detail on the actual changes made in the premises by describing which window was a new window and which was an old one, or the fact that what had hitherto been a doorway with a fan-light has now been converted into a window. As the case was concerned with the overall effect on the premises of the loss of lighting, in my view this was unnecessary. For the reasons I have given I would uphold the order of the High Court and dismiss this appeal.
FITZGERALD J. :”
Prior to her marriage the plaintiff was, and still is, the owner and occupier of the two-storey premises known as No. 11 Lad Lane, Dublin 2, which is a mews at the rear of the house known as No. 11 Fitzwilliam Place. She acquired the mews in 1959. It had been used previously as a coach-house with accommodation for horses on the ground floor and accommodation for the coachman on the upper storey. In addition to the building the plaintiff acquired both the courtyard between the building and Lad Lane and a portion of the garden, some 30 feet in length, at the rear of No. 11 Fitzwilliam Place. On acquiring this property, the plaintiff proceeded to have it converted into a dwellinghouse. Prior to its conversion, the premises had unobstructed light to two windows on the upper floor and to a fan-light over the door on the ground floor and to a glass panel beside this door. These apertures had been in existence for many years”in fact since the original mews were erected”and it is clear that in law they were ancient lights, and the judge so found. That finding has not been challenged on this appeal.
In the course of converting the mews into a dwelling-house, the coach-house doors on the ground floor were removed and replaced by glass which was divided up into a number of frames, including two main windows which occupy the whole aperture previously filled by the doors of the coach-house. In addition, a new window was built to provide light for a kitchen erected on the ground floor. From the time of the renovation in 1959 up to 1967 these two new windows, and smaller panes of glass occupying the coach-house aperture, had the benefit of light save in so far as it may have been obstructed by the 14 foot wall between the courtyard and the laneway. This wall was 21 feet 2 inches from the windows. The light reaching the new windows was unobstructed for some eight years and did not in that time acquire the status of ancient lights.
In 1967 the defendants proceeded to erect a large office building on the opposite side of Lad Lane from the plaintiff’s premises. The defendants’ building had a centre section which was 124 feet high and two wing sections which were 40 feet high. The nearest point of the defendants’ premises is some 20 feet from the plaintiff’s gateway on Lad Lane and some 43 feet from the plaintiff’s new ground-floor windows. The defendants’ building, and particularly one of the 40 foot wing sections, obstructs the light to all the plaintiff’s windows which face the courtyard. In addition to the windows facing the courtyard the plaintiff’s premises enjoy light from windows facing the garden at the back of No. 11 Fitzwilliam Place.
Prior to the erection by the defendants of their building, they were notified in correspondence that the plaintiff apprehended that their proposed building would obstruct light to the plaintiff’s premises and were amply warned that the plaintiff would assert her right to unrestricted light. The defendants proceeded with the building notwithstanding this warning.
The plaintiff resides with her husband in the said mews; she has resided there since the conversion in 1959. On the 12th October, 1967, the plaintiff instituted proceedings by plenary summons claiming an injunction to restrain the defendants from continuing to erect a building which would obstruct and diminish the light coming to her dwellinghouse so as to amount to a nuisance. She also claimed damages and, alternatively, further damages if the building was completed. In her statement of claim she claimed that there were four windows which were ancient lights, viz.,(a) the lounge windows on the ground floor, (b) the kitchen window on the ground floor, (c) a bedroom window on the first floor, and (d) another bedroom window on the first floor. She repeated her claim for an injunction to restrain further building; she added a claim for a mandatory injunction to have the building pulled down; and she repeated her claim for damages. The defendants in their defence denied (a) that any of the windows were ancient lights, (b) that their building diminished the light to the plaintiff’s windows, and (c) that any nuisance would be caused to the plaintiff or that she would be deprived of enjoyment of her dwellinghouse or that her premises would be unfit for use by her in her profession as an author. They further denied that the plaintiff had suffered or would suffer the alleged or any damage and denied that she was entitled to the relief claimed. There does not appear to have been any application made by the plaintiff for either an interim or an interlocutory injunction and the action came for trial before Teevan J. on the 17th and 18th May, 1968. Reserved judgment was delivered on the 31st July, 1968.
The learned judge declined to grant an injunction but awarded a sum of £1,700 to the plaintiff as compensation for damage sustained by her through the diminution of light to her dwellinghouse. The order of the High Court does not indicate that the learned judge, in assessing the compensation, differentiated between the ancient lights and the modern lights. However, the matter is clarified in his written judgment. He appears to have accepted a contention of the plaintiff’s counsel, based on the decision of Peterson J. in Levet v. Gas Light & Coal Co. 37, that the windows now occupying the space which was formerly filled by the coach-house doors had acquired a right to light as if they were ancient lights. The defendants have appealed against the verdict of £1,700 on the ground that the trial judge misdirected himself in awarding damages in respect of obstruction of light to the new windows which were not ancient lights. They further complain that the damages awarded by the trial judge were repetitive in that the plaintiff was not entitled to damages for loss of amenity in addition to damages based on the diminution in the value of her property, and they submitted that the damages were excessive.
It is not disputed that the defendants, by the erection of their new building, have obstructed the light to the windows in the upper floor of the premises which had acquired the status of ancient lights. A wrong having been done to the plaintiff in respect of her ancient lights, the net question on this issue is whether she is also entitled to damages in respect of the obstruction of light to the new windows on the ground floor. It is undoubtedly true that a plaintiff who is the owner of premises which enjoy light through ancient windows is entitled to have the damages measured not merely on the basis of the loss of light to those particular windows but also general damages to be assessed on the basis of loss of amenity and enjoyment of the property and loss of the value of the property. However, the modern text-books appear to take the view that general damages may include compensation for obstruction to the light of modern windows, as if they were ancient windows; this is apparently on the basis that, once the wrongful act of obstruction of the light to the ancient windows is proved, compensation for the obstruction of modern lights (which, of itself, would be damnum sine injuria) can then be granted as what has been called”parasitic damages.” This view appears to be based on Griffith v. Richard Clay & Sons Ltd. 38 The Court of Appeal in that case decided that the damages recoverable by the plaintiff in an action in respect of alleged obstruction of light were not limited to the depreciation in the value of the houses, but extended to the diminution in value of the whole of the plaintiff’s premises when considered as one entity. The decision does not appear to me to establish that obstruction of modern lights can attract damages in the same way as if they were ancient lights. If that were to be the law, a new building of 10 or 15 stories with hundreds of windows would be entitled to have damages assessed in respect of the obstruction to those hundreds of windows if the building it had replaced, perhaps one storey in height, had possessed one window which was an ancient light and the neighbouring owner, in the course of erecting a building on his property, were to obstruct the light to that one window and the hundreds of windows in the new building. In my view, a modern window cannot acquire a right to light which should be protected on the same basis as if it were a window enjoying ancient light.
However, it is quite clear that in assessing damages the judge is entitled to take into account the loss of amenity to the plaintiff in the future use of the premises and is entitled to have regard to the reduction in the selling value of the property if the plaintiff should be disposed to sell it. The learned trial judge does not indicate in his judgment how he obtained the figure of £1,700 which he awarded as damages. It appears, however, that on enquiry being made by the defendants’ counsel the judge indicated that he was allowing £1,500 for depreciation in value and £200 for loss of amenity. Damages for loss of amenity are properly awarded in respect of the injury sustained up to the date of the trial and for such further period, if it can be estimated, as the plaintiff may continue to occupy the premises. In my view, damages for depreciation should relate to loss in selling value in the future if and when the plaintiff decides to dispose of the property. Where there is no definite evidence as to whether or when the plaintiff is likely to dispose of the property, a global figure for general damages has to be awarded without necessarily segregating the figure in compartments for loss of amenity and depreciation on future sale. It appears to me, however, that the amount of £1,700 which the trial judge awarded bears no reasonable relation to the extent of the injury suffered by the plaintiff as a result of the obstruction of light to the ancient windows themselves and the loss of amenity or depreciation in value. Consequently, in my opinion, the appeal should be allowed and the judgment for £1,700 set aside.
MCLOUGHLIN J. :”
I agree with the judgment of Mr. Justice FitzGerald.
Tisdall v. McArthur and Co. (Steel and Metal), Ltd.
, and Another.
[1951] IR 231
Kingsmill Moore J.
KINGSMILL MOORE J. , after referring to the facts, continued as follows:
It is admitted that for over twenty years before the institution of these proceedings light from the sky had been passing through the glass portion of the roof of the company’s yard and then entering the plaintiff’s windows. If the glass portion of the roof were removed a person looking out from these windows would have an uninterrupted view of the sky through the aperture so caused. It is also admitted that the light was not enjoyed by virtue of any written consent or agreement. It would appear at first sight that the light so enjoyed by the plaintiff was completely secured to him by s. 3 of the Prescription Act, which enacts “that when the access and use of light to and for any dwelling-house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible . . . unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.” But it is argued for the defendants that the Prescription Act did not create any new kind of easement but only altered the methods of acquiring easements already recognised by lawa proposition which is not contestedand that English law has never recognised the possibility of an easement of light other than light coming directly from the sky, and not transmitted through, or reflected by, any man-made medium. There is no direct authority either for or against the proposition that an easement cannot be acquired to light transmitted through glass. The plaintiff says that the reason for the absence of authority is that the right to such an easement has never been contested. The defendants explain the absence of authority by saying that such a right has never been asserted. I should have thought that the question must have arisen on many occasions. With the increasing congestion of cities it is often necessary to provide for the access of light through light wells or small courts and I believe that I have on more than one occasion seen such wells or courts covered with a glass roof. It is clear that the matter may become of importance but apparently it is left to me to decide it as a problem of first instance.
Various reasons were suggested why such a right could not exist. It was suggested that in some way the whole nature of light was altered by its passage through glass, a proposition which would seem to involve some novel theories in physics. Light may be reflected, refracted or blocked, but the light which emerges from one side of a pane of glass is essentially the lightor part of the lightwhich impinged on the other side. I dismiss all the arguments based on physics.
Next it was sought to draw an analogy between transmitted and reflected light and to show by authority that no easement could be acquired in reflected light. I am not convinced of the perfection of the analogy, nor do I think that the authorities establish the proposition for which they were quoted. In Dent v. Auction Mart Co. (1) the defendants were proposing to build in such a way as to obscure the ancient lights of the plaintiff, but they argued that by the use of white tiles the direct light, which had been obscured, could be adequately replaced by reflected light, The Vice-Chancellor held that this was no answer. “A person who wishes to preserve his light has no power to compel his neighbour to preserve the tiles, or a mirror which might be better, or to keep them clean, nor has he covenants for these purposes that will run with the land, or affect persons who take without notice; and, therefore, it is quite preposterous to say, ‘Let us damage you, provided we apply such and such a remedy.'” In Staight v. Burn (2), a similar case, Giffard L.J. said:”It has been suggested that if the wall is allowed to stand, although there will not be the same direct light, there will be a great amount of reflected light. The answer to that is, that the plaintiffs are entitled to have a light of the same nature as they have had.” In both these cases it was held that a servient owner could not at his own volition take away direct light from the dominant tenement and substitute reflected light. Giffard L.J. puts his decision on this ground that reflected light is a different light, from direct light. The Vice-Chancellor seems to prefer the ground that there would be no means, apart from covenant, to secure the continuance of the substituted light.
The dominant owner by acquiescing in the obstruction of his original lighting would lose the right to it: and if the servient owner then proceeded to do away with the substituted light before a prescriptive right to its continuance had been acquired, the dominant owner would have no remedy except perhaps a covenant which might be worthless. Christian L.J. in Mackey v. Scottish Widows Society (1) adopts, explains, and amplifies the judgment of the Vice-Chancellor and shows that the same reasoning applies to a case where a servient owner proposes to substitute for direct light, not reflected light, but another source of direct light.
The matter came very indirectly under notice in Smith v.Evangelization Society (Incorporated) Trust (2). The servient owner obstructed an ancient light in such a way as to amount to a nuisance in the physical state of facts which existed at the date of the obstruction: but the deprivation of light would not have been sufficient to amount to a nuisance if the dominant owner had not removed two skylights, which would have given sufficient light to the darkened room and which he was in a position to replace. Counsel for the dominant owner was forced to argue that light from a skylight was less beneficial and of a different nature from light coming through a side window and he cited Giffard L.J. to support his contention that the dominant owner could not be forced by the servient owner to put up with light of a different nature from the light which was being obstructed. To this argument the simple answer which was accepted by both Maugham J. and the Court of Appeal is that there is no essential difference between light coming through a skylight and light coming through a side window. But in the course of his judgment Maugham J., at p. 523, refers to the view of Giffard L.J., that direct light is of a different nature from reflected light, and says:”I agree with the contention of counsel for the plaintiff that reflected light is altogether different from the light pointed to in s. 3 of the Prescription Act, 1832.” This remark appears to be purely obiter.
In the Court of Appeal Lawrence L.J. remarked, at p. 536, that “there is no analogy between reflected light and the direct light coming through a skylight into the room.” He seems to accept that the Courts have drawn a clear distinction between reflected light and direct light, to the extent that a servient owner cannot say, as a justification for his obstruction of direct light, that there is sufficient reflected light left. He does not attempt to analyse the reasons for this conclusion.
These authorities clearly establish the proposition that a servient owner cannot justify an interference with light coming directly to the dominant tenement by showing that he has provided an equivalent amount of reflected light. They do not, in my opinion, establish the proposition that reflected light is of a radically different nature from direct light, or the proposition that an easement can never be acquired by proposition to reflected light; and they certainly do not establish the proposition that an easement cannot be acquired to direct light passing through a glass roof on a servient tenement to the windows of the dominant tenement.
Some assistance may, I think, be derived from Duke of Norfolk v. Arbuthnot (1). A chapel belonging to the Dukes of Norfolk, latterly used only as a burying-place for members of the family, was connected by an interior arch with Arundel Church. Originally, and for many centuries after the construction of the building, light came through the arch from the chapel to benefit the church, and from the church through the archway to benefit the chapel. Of latter years this mutually profitable access of light had been obstructed, first by an ornamental grill, and then by an altar and reredos, which almost completely occluded the light. Certain disharmony having arisen between the vicar and the Duke, the Duke finally built up the arch, and the vicar, after four years, took an action to compel the Duke to remove the obstruction. It was tried first before Lord Coleridge L.C.J., and on appeal before Bramwell L.J., Baggallay L.J. and Brett L.J. A number of reasons were given why the action could not succeed. It was said that the church was not a building within the Prescription Act; that it was doubtful whether, when an arch was built for the common benefit of the two buildings, there could be an enjoyment of light through it sufficient to found a legal right to its continuance; that there had been submission to the interruption for more than a year, and that the prior actions of the vicar and the parishioners had made the right negligible and worthless. Not one of the four judges however suggested that no right could be acquired to the light passing through the arch from the chapel because that light must first have entered the chapel through its own windows. It seems unlikely that so simple and obvious an answer to the plaintiff’s claim would, if sound, have escaped the attention of four such eminent judges. The report does not expressly say that the windows in the chapel were glazed, but the chapel was apparently built at the same time as, and as part of, the church in the fourteenth or fifteenth centuries, and it is reasonable to assume that the windows were provided with glass.
To decide that in no case could a prescriptive right be acquired to light coming through a glass roof would, I think, be adverse to the interests of the community. A man having ancient lights looking into his neighbour’s yard might be quite satisfied with the amount of light reaching them through a glass roof erected over that yard by his neighbour, yet, if the defendant is right, he would, by acquiescing in its existence for a year, lose all rights under the Prescription Act and have to submit to a subsequent building up of his windows. To avoid such a result he would be forced to take proceedings to prevent his neighbour from building a roof to which he did not object and which would be of great value to his neighbour. In the absence of any authority or any convincing argument I refuse to be the first to lay down a proposition which seems to me not required by principle and calculated to work great inconvenience in practise.
When this case was opened I suggested that it might be possible to avoid deciding the question already considered. The physical facts point to the conclusion that for about a century after it was built the rere of Number 14 enjoyed the right of light coming to its windows over the yard of Number 15. From such user it seemed to me that I should assume a lost grant confirming the right to such light, a right which had already become absolute at the time when a roof was first placed over the yard. The light could not be lost by such acquiescence as would imply abandonment, or could be modified by agreement. But it seemed to me that consent to a partial obstruction of the light could not be construed as an abandonment of the right to receive such light as was left, or as an agreement to surrender all right to such light; and that the proper inference was that there had been an agreement to allow a roof to be put over the yard of Number 15 on condition that the central portion was of glass. Mr. Moloney, however, has tried to block this way of escape by arguing, first, that since the passing of the Prescription Act no right to any easement (or alternatively no right to an easement of light) can be claimed under the doctrine of lost grant; and, secondly, that, even if it is possible to support a claim on the basis of a lost grant, the presumption of lost grant should not prevail in the circumstances of this case. The view that a right to light cannot be claimed under the doctrine of a lost grant is not, as far as my researches have gone, accepted by any text-book, but Mr. Moloney has cited several authorities for his contention which must be examined.
He relied chiefly on Tapling v. Jones (1), a decision of Lord Westbury, Lord Cranworth and Lord Chelmsford and so of the highest possible authority. The judgments certainly contain passages which, if read as being of universal application, and if necessary for the decision, seem at first to be entirely in favour of Mr. Moloney’s contention. The Lord Chancellor, at p. 304, after reading s. 3 of the Prescription Act, says:”Upon this section it is material to observe, with reference to the present appeal, that the right to what is called an ancient light now depends upon positive enactment. It is matter juris positivi, and does not require, and therefore ought not to be rested on, any presumption of grant or fiction of a license having been obtained from the adjoining proprietor. . . . This observation is natural, because I think it will be found that error in some decided cases has arisen from the fact of the Courts treating the right as originating in a presumed grant or license.” Lord Cranworth, at p. 310, says:”The right to enjoy light through a window looking on a neighbour’s land, on whatever foundation it may have rested previous to the passing of the 2 & 3 Will. 4, c. 71, depends now on the provisions of that statute.”
To understand this passage it is necessary to look at the pleadings and arguments in the case. The pleadings are set out succinctly at p. 291 and more fully in the report of the hearing before the Court of Common Pleas (2). In the plaintiff’s declaration there is not one word about a lost grant or common law prescription. He pleads only ancient lights, the right to access of light through such ancient lights, and obstruction by the defendant. In his arguments he appears to base his case on the Prescription Act, and it was to meet an argument based on the Prescription Act that counsel for the defendant (who was plaintiff in error) introduced considerations based on the law applicable to a claim preferred on the basis of a lost grant. The Attorney General begins his argument for the defendant (at p. 293) by saying:”The theory of the law as to an easement or a servitude before the Prescription Act, was that some grant might be presumed as its origin. Evidence of uninterrupted user was taken to establish this presumption.” He goes on to argue:”As the statute proceeds on the principle of a grant, the rules which would relate to a grant must be applied to the statutory confirmation of the easement.” This then was the only way in which the matter of a lost grant came before the Courtin an argument that the Prescription Act was a statutory mode of claiming an easement, incorporating the principles applicable to a claim on a lost grant, and that the law applicable to acquisition by lost grant should be considered applicable to a claim under the Prescription Act. This argument the court decisively rejected. Lord Chelmsford was careful to use words which make this clear. At p. 318 he says:”It was argued on behalf of the appellant that under this Act the right to the enjoyment of lights was still made to rest on the footing of a grant. I do not see what benefit his case would derive from the establishment of this position; but it appears to me to be contrary to the express words of the statute.” I think the passages which I have quoted from Lord Westbury and Lord Cranworth should be read as dealing only with the considerations which arise when a case is pleaded and argued on the Prescription Act. Lord Westbury prefaces his remarks by reading s. 3 and saying:”Upon this section it is material to observe. . . .”Lord Cranworth expresses himself more widely but his remarks may also have been intended to refer only to cases where the claim was rested on the Act, and to exclude from the consideration of such claims matters which would be relevant when considering claims based on the doctrine of lost grant. If, however, the learned Lords were purporting to lay down in general terms the proposition that, since the Prescription Act, no claim to light could be based on the doctrine of lost grant, their remarks were clearly obiter. In as far as the pleadings or arguments show no question of a claim based on lost grant arose. It is of interest to note that other opinions expressed by the learned Lords in this case, and not necessary for the decision, are now accepted as incorrect. All the judges assume that a period of twenty years’ enjoyment of the access and use of light creates an absolute and indefeasible right immediately on the expiration of the period of twenty years. It is now accepted law that the effect of s. 4 is to make the period of twenty years not a period in gross but a period next before some action in which the claim or matter to which such period relates is brought in question: Colls v. Home and Colonial Stores, Ltd. (1) per Lord MacNaghten at pp. 189, 190; Hyman v. Van den Bergh (2). The mistaken view of the Judges on this latter point may well have affected their opinions on the question as to whether a claim may still be based on a lost grant. Such a claim need not be based on enjoyment for a period immediately before an action. One argument for holding that the Prescription Act was not meant to take away the right to plead a lost grant is that the Prescription Act, which was passed to facilitate the proof of claims by long user, should not be interpreted as abolishing a mode of proof which was in some ways more convenient, inasmuch as the user under a lost grant need not extend to the point of time immediately before an action.
In Jordeson v. Sutton, Southcoates and Drypool Gas Co. (1)an argument was advanced for the defendant company similar to that which had been advanced for the defendant in Taplin v. Jones (2). It was contended that no right to light could be acquired against the company because it would have been incapable of granting any rights which might be inconsistent with its statutory duty. North J. met this contention by the same reply as was used by Lord Westburythat the right to light under the statute did not require and should not be rested on any presumption of grant, but was a matter of positive enactment. This proposition is undoubted and the case does not advance in any way Mr. Moloney’s argument. But Mr. Moloney does derive support from the words of Farwell L.J., at p. 176 of Van den Bergh’s Case (3). That case was decided by all the Lords Justices on the ground that where it is sought to place reliance on a lost grant this ground of claim must be specially pleaded. But Farwell L.J.carefully prefacing his remarks by the statement that he was speaking for himself alone gave it as his opinion that, since the passing of the Prescription Act, no claim to light could be based on the doctrine of a lost grant, unless the period of user on which the claim to the lost grant was made was antecedent to the passing of the Act. The remarks of Farwell L.J. were individual and not necessary for the decision and, with great respect, I cannot take the same view as he does of Tapling v. Jones (2), for the reasons I have already given. Nor can I accept his view as to the limited nature of the dictum of Mellish J. in Aynsley v. Glover (4).
There seems to me abundant authority for the view that a claim to an easement by long user may be rested on the presumption of lost grant, and that this is so even in the case of an easement of light. Aynsley v. Glover (4) was a case where a right to light was claimed in respect of two cottages which had been standing for seventy-five years at least. For twenty-six years before action brought there had been unity of possession of the dominant and servient tenements. This stood in the way of a claim under the Prescription Act. The Court held that the plaintiff was entitled to succeed on a claim of prescription from time immemorial, there being evidence that the cottages were standing for as long as living memory went back, and no positive evidence as to when they were built. Mellish L.J. says, at p. 284:”It is everyday practice to plead, 1, enjoyment for twenty years before action; 2, enjoyment for forty years before action; 3, enjoyment from time immemorial; 4, a lost grant; and it has always been understood that a right may be supported on the third ground, although it may be incapable of being supported under the first or second. There are no negative words in the statute to take away rights existing independently of it.” And at p. 285 he says:”The statute 2 & 3 Will. 4, c. 71, has not, as I apprehend, taken away any of the modes of claiming easements which existed before that statute. Indeed, as the statute requires the twenty years or forty years (as the case may be), the enjoyment during which confers a right, to be the twenty years or forty years next immediately before some suit or action is brought with respect to the easement, there would be a variety of valuable easements which would be altogether destroyed if a plaintiff were not entitled to resort to the proof which he could have resorted to before the Act passed.” He then proceeded to give judgment on the basis of immemorial prescription. James L.J. agreed with his decision. It seems to me that nothing could be plainer or more categorical than the words of Mellish L.J., and that he meant to indicate a considered opinion that a claim to light could still be grounded both on immemorial prescription and on the basis of a lost modern grant.
Wheaton v. Maple & Co. (1) was a case in which a claim to light was preferred both against a termor and the reversioner on the term, who was the Crown, and this claim was based both on the Prescription Act and on the basis of a lost grant. Kekewich J. held that as the Crown was not mentioned in s. 3 it was not bound by the provisions of the section, but that it was still possible to base a claim against the Crown on the basis of a lost modern grant. In the circumstances he refused to find a lost grant but allowed the claim against the termor under the Prescription Act. The Court of Appeal accepted that a right might be claimed against the Crown on the basis of a lost grant, but, with Mr. Justice Kekewich, refused to find the existence of such grant. The claim against the termor was also refused on the ground that, as the Crown who owned the fee was not bound, there could be no easement for a limited period prescribing against the termor only. This
portion of the decision can no longer be regarded as good law in Ireland since the decision in Hanna v. Pollock (1).
In Harris v. de Pinna (2) Chitty J., at pp. 245, 246, was clearly of opinion that a claim to light could be based upon a modern lost grant in a suitable case. This was also the view of Stirling J. in Smith v. Baxter (3), and of the judges in Ecclesiastical Commissioners v. Kino (4).
I have already referred to Duke of Norfolk v. Arbuthnot (5).There again all four judges who considered the case gave judgment on the basis that a claim to light might be based on the theory of lost modern grant, but refused to find such a grant in fact.
Few cases have been more elaborately considered or considered by more judges than Dalton v. Angus (6). Lord Blackburn, at p. 814 of the House of Lords report, says, in reference to the plea of a lost modern grant:”Lord Tenterden’s Act (2 & 3 Will. 4, c. 71), so far as it went, made that a direct bar which was before only a bar by the intervention of a jury and the use of an artificial fiction of law. But it did not abolish the old doctrine; if it had, old rights even from time immemorial would have been put an end to by unity of occupation for the space of a year. But this was not done: see Aynsley v. Glover (7). I think the law, as far as regards this subject, is the same as it was before that Act was passed.” The same opinion seems to have been held by Cockburn C.J. (8), and by Cotton L.J. (9). It is true that none of those eminent lawyers were referring specifically to an easement of light, but their language is wide enough to include, and was, I think, meant to include, all easements.
I turn next to Irish authority and here it is not necessary to go further than Hanna v. Pollock (1), where all the earlier cases were microscopically examined. It is true, as was pointed out by FitzGibbon L.J., that the views on law therein expressed are but legal exercitations for the decision in fact arrived at by the majority of the Court (Walker L.J. and FitzGibbon L.J.) concluded the matter on any view of the law. Nevertheless the members of the Court, realising the vital importance to the Irish community of the legal questions discussed, considered them with such care and expressed their views at such length and in such detail that those views, even if technically no more than dicta, have greater weight than many formal decisions. The immediate question in debate was whether one termor could acquire an easement of water against another termor by means of the presumption of a lost modern grant. Walker L.J. and Holmes L.J. held that he could, on proof of twenty years’ user. FitzGibbon L.J. dissented from this view though he admitted that such a right could be acquired between termors on proof of forty years’ user, or in cases where there was additional evidence to show that the fee as well as the term was bound. Neither Holmes L.J. nor Walker L.J. deals specifically with the case of an easement to light and the last paragraph in the judgment of Walker L.J. if read by itself could lead to the conclusion that he meant to confine his remarks to easements of way and water. It is, however, clear, if the judgments are read carefully, that those judges were of opinion that the right to an easement of light could be founded on a presumption of a modern lost grant. The Lord Justice expressly disagrees with the views of the Master of the Rolls in Wheaton v. Maple & Co. (1), where he holds that a right to light as between two termors cannot be acquired on the assumption of lost modern grant, and considers these views to be inconsistent with Deeble v.Linehan (2) and Beggan v. M’Donald (3). He evidently considered that in Wheaton v. Maple & Co. (1) the Court should have held that an easement of light as between two termors could be upheld on the presumption of a lost modern grant, and if it can be upheld as between termors then a fortiori it can be upheld on the same presumption between owners in fee. Holmes L.J. is more specific. At p. 704 he says:”The inference from those provisions”(he is dealing with ss. 1 and 2 of the Prescription Act), “as well as from the other sections” (the italics are mine), “is that the statute is confined to amending the common law of prescription, and that this is done by giving a statutory mode of prescription in addition to the methods then existing for establishing rights by evidence of enjoyment.” He goes on to quote with approval the words of Mellish L.J. in Aynsley v.Glover (4), a case of light to which I have already referred.
So far as I know, since Hanna v. Pollock (5) it has always been considered to be settled law in Ireland that any easement can be properly claimed on the basis of a lost modern grant. The balance of English authority seems to me to point to the same conclusion and this also seems to be the view of all the text-book writers whom I have been able to consult. Mr. Combe in his “Law of Light” tentatively supported a contrary view in regard to all easement of light, but he seems to have recanted, for he is the author of the article on easements in the second edition of Halsbury’s Laws of England where it is stated that an easement of light can be sustained on the presumption of lost modern grant.
Accordingly I reject Mr. Moloney’s contention that I am not legally entitled to find that a right to light for the windows of Number 14 had been acquired on the assumption of a lost grant from a competent grantor. The question remains whether I ought so to find. Apart from conclusions to be drawn from the physical nature of the premises I have no direct evidence of enjoyment, and though I know that Number 14 and Number 15 are now held in fee by different owners I have no evidence of the state of the titles at earlier periods.
Number 14 and Number 15 are structurally separate with no connecting door or way and present the appearance of having been two self-contained entities since the day they were built. As far as appearance goes there is nothing to suggest there was ever unity of possession. They are about 150 years oldNumber 14 probably older than Number 15and the windows in question appear of the same age as the building. All the probabilities point to the conclusion that for something like a century the windows of Number 14 enjoyed light coming over the yard of Number 15. It is a fundamental principle of law that a legal origin should be presumed for privileges which have been long enjoyed if a legal origin is possible. The words of Lord Herschell in Philipps v. Halliday (1) have been quoted with approval by judge after judge. He says (at p. 231):”. . . When there has been long-continued possession in asserting a right, it is a well-settled principle of English law that the right should be presumed to have had a legal origin if such a legal origin was possible, and that the Courts will presume that those acts were done and those circumstances existed which were necessary to the creation of a valid title”; and in Attorney General v. Simpson (2), Farwell J. says:”. . . when the court finds an open and uninterrupted enjoyment of property for a long period unexplained,omnia praesumuntur rite esse acta, and the Court will, if reasonably possible, find a lawful origin for the right in question.” The principle has been applied against the Crown, not merely a lost grant but a lost charter being assumed. A somewhat extreme example is to be found in Warrick v. Queen’s College, Oxford (3). If there were documentary evidence before me that at any time during the nineteenth century, and prior to the roofing of the yard of Number 15, Numbers 14 and 15 were held in fee by different owners for a period of twenty years I think I should be not only entitled but bound to find that the right to light for the windows of Number 14 over the yard of Number 15 had been acquired by a lost grant and was an absolute right when the yard was first covered, a date which would appear on the physical evidence to have been not before the conclusion of that century. “But,” urges Mr. Moloney, “such documentary evidence is not forthcoming. Numbers 14 and 15 may have been in one possession. Number 15 may have been held by a termor who would only make a grant binding his term. There may have been express permission given to the owner of Number 14 by the owner of Number 15. The owner of Number 14 may have built Number 15 and sold it without reserving any right to light.” Certain of those assumptions, even if correct, would not necessarily defeat the claim of the plaintiff: Angus v. Dalton (1), per Thesiger L.J., at pp. 172-175; per Cotton L.J. at p. 186. But I do not consider it necessary to examine those hypothetical assumptions in detail. Mr. Moloney has made no attempt to give any evidence of them. He has not produced his title deeds which might be expected to show the nature of the possession of his client’s predecessors in title and whether there had ever been unity of possession or title of the two tenements. If I am in a position to find that for a period greatly in excess of twenty years light coming over one tenement was enjoyed by the windows of the other tenement and that those tenements were apparently in different possessions, the onus shifts to Mr. Moloney to show that there were facts which would prevent an easement of light from being acquired.
In English law possession is prima facie evidence of ownership. (See Pollock & Wright on Possession in the Common Law, at p. 25, r. 8.) All the physical facts are in favour of separate possession and so, in default of any evidence to the contrary, are evidence of separate ownership. I do not think it is my duty to speculate on unlikely possibilities. Accordingly I find that, at the time when the yard of Number 15 was first roofed, there was a complete and established right, founded on a lost grant, to the access of light to the plaintiff’s windows in Number 14 over the yard of Number 15.
What assumption, then, is to be drawn from the apparent acquiescence of the owner of Number 14 in the roofing of the yard of Number 15? That there must have been a partial interference with his light is clear, but acquiescence in a partial interference does not warrant an assumption of complete abandonment. The most probable explanation is that the owner of Number 14 acquiesced in the roofing on the condition that a roof was constructed of such a nature as to give him as much light as he required. I cannot hold that by partially obscuring the light to the windows of Number 14 the owner of Number 15 acquired a right subsequently to obscure that light completely. I hold that there was no total abandonment of that light and (if it is necessary to go further) that there was an agreement to the erection of the roof on condition that it transmitted sufficient light for the purposes of Number 14 through a glazed portion thereof.
Accordingly I grant the injunctions claimed, both on the ground of trespass and of nuisance. I award to the plaintiff the costs of the motion to be treated as the trial of an action. As no damages have been claimed in addition to the injunction I cannot award damages in spite of the unduly assertive actions of the defendants.
From this judgment the defendants appealed to the Supreme Court (1).
MAGUIRE C.J. :
This is an appeal from a judgment and order of Mr. Justice Kingsmill Moore granting to the plaintiff an order that the defendants, their contractors, servants and agents be restrained from building or continuing to build so as to be a nuisance to the plaintiff or so as to obstruct or diminish the access of light and air to the windows or any of them on the plaintiff’s premises at Number 14 Merchant’s Quay in the City of Dublin or so as to trespass on the window sills or any of them on the said premises.
The facts are somewhat unusual. The plaintiff is the tenant of the premises at Number 14 Merchant’s Quay which consist of what was formerly a dwelling-house but which is now being used by the plaintiff for the purpose of his business. The premises in question were found by the trial Judge in his judgment to have been built in the period of Georgian building in the City of Dublin at an approximate date estimated by him to be about 150 years ago.
On one wall of the premises are certain windows which overlook portion of the first-named defendants’ premises which was found by the learned trial Judge to have been at one time an open yard across which light flowed from the open sky to the side wall of the plaintiff’s premises. At some time subsequently a roof was thrown across the open yard. Whether this roof when first erected completely cut off all the light from the sky is not clear, but it has been established in the case that for well over twenty years there has been a roof erected over the yard which consisted to a substantial degree of glass and it is unchallenged that during that period light has flowed from the sky through the glass portion of the roof on to the yard beneath and so to the plaintiff’s windows.
The plaintiff does not deny that the amount of light now reaching his premises is less than that which must have reached them prior to the erection of the roof, and certain measurements taken on behalf of the defendants suggest that only about one-tenth of the light from the sky has been able to reach the plaintiff’s premises since the erection of the roof.
It seems to be clear that if the light which has been reaching the plaintiff’s windows had come through an opening in the roof upon which there had been no glass the plaintiff’s case would be established, but the defendants’ claim that the interposition of glass between the sun and plaintiff’s windows has altered the nature of the light flowing to the windows so as to deprive the plaintiff of any right in law to the enjoyment of a continuance of the flow of such light.
The defendants’ suggestion is that the light is altered in its nature and legal attributes by refraction as a result of its passage through the glass portion of the roof and that a flow of refracted light cannot give rise, however long it may be enjoyed, to any legal right under the Prescription Act, 1832. I am not convinced, however, that light, though refracted, does not remain “light” within the meaning of that Act.
We are told that the matter is free from authority and that may be so. Many reasons may be imagined for the lack of authority. Rarely would a dominant owner tolerate such a substantial interference with his light as was submitted to here. I have little doubt that, when the roof was first put up, an application for an injunction to remove it would have succeeded. The question here however is whether a right to the diminished light can be established.
There is one case, referred to by Mr. Justice Murnaghan in the course of the argument, namely, Radcliffe v. The Duke of Portland (1), in which the effect of the interposition of glass on a stream of light was considered and the decision appears to be material in this case. In that case a glass screen was put up consisting of glass which distorted the light and prevented persons from seeing through it. An injunction was sought to compel its removal but the Court held that the screen did not materially interfere with the flow of light, though it appears that had the erection been made of a substance other than glass an injunction would have been granted.
In the present case the light which reached the plaintiff’s windows in my opinion was “light” within the meaning of s. 3 of the Prescription Act, and the plaintiff is accordingly entitled to a right to continue to enjoy so much of it as he has enjoyed for the past twenty years. Accordingly it is not necessary for me to consider the question which was argued at considerable length on this appeal, namely, whether a right to light can, since the passing of that Act, be properly claimed on the basis of the doctrine of modern lost grant.
The terms of the injunction in the order of the trial Judge are based both on a right to light and a right to air having been enjoyed by the plaintiff. No argument has been addressed to us on the right to air and we have not considered that matter. In my opinion the appeal should be dismissed and the order of the Court below affirmed.
I agree.
This action was tried without pleadings but the plaintiff, who was a monthly tenant, claimed on the basis that his right to light had been enjoyed for some twenty-five years.
The three windows on the plaintiff’s premises with which this action is concerned looked into a building which, formerly an open yard belonging to the defendant Company, has for a considerable period of time been roofed over with a roof composed largely of glass. The plaintiff has proved every requirement necessary to establish his right under the Prescription Act, subject to this, that the light which he enjoyed was light coming through this glass roof. The defendants contend that this fact takes the case outside the Prescription Act.
The argument put forward on behalf of the defendants is that the light has been interrupted within the meaning of s. 3 of that Act. I do not think, however, that light passing through a clear pane of glass can be said to be”interrupted,” and accordingly, even though it passed over the servient tenement in this manner, the light which in fact did reach the dominant tenement was not, in any opinion, interrupted. There is no proof in fact that a sensible amount of light was not enjoyed by the plaintiff throughout the statutory period.
The Duke of Portland’s Case (1) may, as we have been told, be the only reported decision in point, but it does appear to support the plaintiff’s case. I see no reason why light passing through clear glass cannot be the subject of an easement.
The trial Judge gave judgment for the plaintiff on the alternative ground of having found a lost modern grant and his decision has been contested on this matter. If I am correct in holding that the light which the plaintiff in fact enjoyed can be the subject of an easement within the Prescription Act it becomes unnecessary to consider the application in this case of the doctrine of lost modern grant.
O’BYRNE J. :
I have come to the same conclusion but I desire to base my decision entirely upon s. 3 of the Prescription Act, 1832, which provides that “when the access and use of light to and for any dwelling-house, workshop, or other building, shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing.”
So far as this section is concerned only one question arises. The light in which the easement is claimed came to the plaintiff’s building and has been actually enjoyed therewith for upwards of twenty years without interruption. The only question which arises is as to whether this constitutes “the access and use of light” within the meaning of the section.
I agree with the contention of the appellants’ counsel that the word, “light,” is not used in the section in its widest sense and that it does not include artificial light. It must be natural light and therefore the question is whether the light which was enjoyed in this case was such natural light as comes within the section.
Counsel for the appellants say that the type of light enjoyed, being refracted light, was not the type of light contemplated by the section. I know very little about the refraction of light and no evidence was tendered upon the matter, but it is a matter of common knowledge that light does in fact pass through glass and I would have thought that such light, where it was natural light in its origin, continued to be natural light after it had passed through the glass.
In this case the glass, I assume, was put in the roof deliberately for the purpose of letting light through. After the roof with the glass was erected the plaintiff no longer enjoyed the same quantum of light as before, but he did enjoy some light. He claims only that reduced quantum of light.
In my opinion the light so enjoyed by him was “light”within the meaning of the section, and the plaintiff has established his right to the continued use of same without interference. For this reason I am of opinion that the appeal should be dismissed.
BLACK J. :
So much time and learning have been already expended on this case that I do not wish to add unnecessarily thereto.
I agree with the result arrived at by my colleagues and substantially for the same reasons.
I refrain from expressing any view upon the application of the doctrine of lost modern grant and I offer no opinion as to whether the plaintiff could complain if the defendants were to decline to clear away from the glass roof any dirt which might collect there and act as an obstruction to the passage of light to the windows, though I incline to the view that he could not, and that the plaintiff’s right with regard to the maintenance of the flow of light through the roof would extend only to require the defendants not to commit any misfeasance in that regard and that mere non-feasance by the defendants would give no cause of action.
I fully agree with the view of Mr. Justice Murnaghan that the light which the plaintiff enjoyed, notwithstanding
that it was light passing through glass, might give rise to the creation of an easement, but I do not agree that such light was enjoyed without interruption. I am of opinion that the light must have been at least slightly refracted and, therefore, interrupted, but I do not consider that that disposes of the matter in the defendants’ favour, because in my view the word, “light”, as used in the section is capable of including light whether enjoyed without interruption or, as in this case, subject to a measure of interruption, by reason of its passing through glass. Accordingly, it seems to me that it is clear that the plaintiff has enjoyed light, albeit interrupted to the extent to which it passed through glass, for upwards of twenty years.