This section is from the book "Modern Buildings, Their Planning, Construction And Equipment Vol3", by G. A. T. Middleton. Also available from Amazon: Modern Buildings.
A third class of cases is where the owner of house and land sells them separately and simultaneously to different purchasers. In such cases it has been held that the rights of the purchasers are practically the same as if the house had been sold first and the land at a later date. Thus the purchaser of the house gets a permanent easement for his windows in the house, and the purchaser of the land acquires it subject to the burden of that easement.
If two or more houses are sold simultaneously to different purchasers, and each house enjoys light coming over the ground of the other, an easement of light is impliedly granted to each, so that neither purchaser can block the light of the other.
Sometimes it happens that an owner desires to divide up his property after his death, and he provides for the severance of houses and land by his will. In such cases it has been held that the will operates as a simultaneous conveyance of the house and land to two devisees, and the devisee of the house would take it with a right to enjoy the window light substantially as it had been in testator's lifetime, and the devisee of the land would take the land subject to the burden of an easement in favour of the windows of the house.
It may be taken as a general rule that, when house property or land is conveyed by deed, all manifest and apparent easements are to be taken to be conveyed with the property, so far at least as it is in the power of the vendor or grantor to grant them to the purchasers.
A conveyance under the Conveyancing Act will carry not only all easements over properties which were servient to the property conveyed at the time of conveyance, but also such quasi-easements as might have been enjoyed over the land of the vendor unless such quasi-easements be specially excepted and reserved.
The expression quasi-easement as here used means such advantage in the nature of an easement as one portion of the vendor's estate may enjoy with reference to another portion.
Acquisition of right to light by prescription is in these days governed by the Prescription Act, which came into operation at the commencement of the Michaelmas term, 1832.
The portions of the Act which have any relation to light are the Preamble and Sections 3, 4, 5, and 6, the exact text of which is as follows :-
"Whereas the expression time immemorial or time whereof the memory of man runneth not to the contrary,' is now by the law of England in many cases considered to include and denote the whole period of time from the reign of King Richard the First, whereby the title of matters that have been long enjoyed is sometimes defeated by showing the commencement of such enjoyment, which is in many cases productive of inconvenience and injustice," for remedy whereof be it enacted. . . .
" Section 3. 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'.
"Section 4. That each of the respective periods of years herein before mentioned shall be deemed and taken to be the period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question, and that no act or other matter shall be deemed to be an interruption within the meaning of this statute unless the same shall have been or shall be submitted to, or acquiesced in for one year after the party interrupted shall have had or shall have notice thereof, and of the person making or authorising the same to be made.
"Section 5. And be it further enacted, that in all actions upon the case and other pleadings, wherein the party claiming may now by law allege his right generally, without averring the existence of such right from time immemorial, such general allegation shall still be deemed sufficient; and if the same shall be denied, all and every, the matters in this Act mentioned and provided, which shall be applicable in the case, shall be admissible in evidence to sustain or rebut such allegation, and that in all pleadings to actions of trespass, and in all other pleadings wherein, before the passing of this Act, it would have been necessary to allege the right to have existed from time immemorial, it shall be sufficient to allege the enjoyment thereof as of right by the occupiers of the tenement in respect whereof the same is claimed for and during such of the periods mentioned in this Act as may be applicable to the case, and without claiming in the name or right of the owner of the fee, as is now usually done ; and if the other party shall intend to rely on any proviso, exception, incapacity, disability, contract, agreement, or other matter herebefore mentioned, or on any cause or matter of fact or of law not inconsistent with the simple fact of enjoyment, the same shall be specially alleged and set forth in answer to the allegation of the party claiming, and shall not be received in evidence on any general traverse or denial of such allegations.
"Section 6. And be it further enacted, that in the several cases mentioned in, and provided for by this Act, no presumption shall be allowed or made in favour or support of any claim, upon proof of the exercise or enjoyment of the right or matter claimed, for any less period of time or number of years than for such period or number mentioned in the Act as may be applicable to the case and to the nature of the claim.
" Section 10. And be it further enacted, that this Act shall commence and take effect on the first day of Michaelmas term now next ensuing."
It will be seen that the general object of the Act was "for shortening the time of prescription in certain cases." The Act was not intended to, and did not in fact, alter the substantive law concerning the nature and extent of rights to light, although at one time it was thought that it did, but it has provided means and prescribed circumstances and conditions under which rights to an easement of light may be acquired.