This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
(z) Suiters' Co. v. Jay, (1842) 3 Q. B. 109; 11 L. J. Q. B. 173; Truscott v. Merchant Taylors' Co., (1856) 11 Ex. 855; 25 L. J. Ex. 173; Cooper v. Hubbuck, (1862) 12 C. B. N. S. 456; 31 L. J. C. P. 323; and see Yates v. Jack, (1866) 1 Ch. 295; 35 L. J. Ch. 539; Curriers' Co. v. Corbett, (1865) 2 Dr. & S. 355; 12 L. T. 169; Heath v. Bucknall, (1869) 8 Eq. 1; 38 L. J. Ch. 372.
(a) Perry v. Barnes, 1891, 1 Ch. 658; 60 L. J. Ch. 345; Wheaton v. Maples, 1893, 3 Ch. 48; 62 L. J. Ch. 963; nor will a lost grant be readily presumed against the Crown; held, in Wheaton v. Maples, it could not be presumed since 1852.
(b) Clark v. London School Board, (1874) 9 Oh. 120; 43 L. J. Ch. 421; Luke of Bedford v. Dawson, (1875) 20 Eq. 353; 44 L. J. Ch. 549; London School Board v. Smith, (1895) W. N. 37; Emsley v. N. E. R. Co., 1896, 1 Ch. 418; 65 L. J. Ch. 385; and see Kirby v. Harrogate School Board, 1896, 1 Oh. 437; 65 L. J. Ch. 376; and Badham v. Marris, (1880) 45 L. T. 579; 25 L. J. Ch. 237, n.; Barlow v. Ross, (1890) 24 Q. B. D. 381; 59 L. J. Q. B. 183 (eases under s. 20 of Artizans' Dwelling Act, 1875); Wigram v. Fryer, (1887) 36 Ch. D, 87.
(c) Ellis v. Rogers, (1885) 29 Ch. D. 661; 53 L. T. 377; and see Bird v. Eggleton, (1885) 29 Ch. D. 1012; 54 L. J. Ch. 819; London School Board v. Smith, sup.
(d) Truscott v. Merchant Taylors' Co., (1856) 11 Ex. 855; 25 L. J. Ex. 173, per Coleridge, J.; Tapling v. Jones, (1865) 11 H. L. C. 290; 34 L. J. C. P. 342, Lord Westbury's speech.
It does not appear, even in cases to which the provisions apply, that the Act has altogether superseded the Common Law; but the claimant has the option of proceeding either under the statute or the Common Law (f). The enjoyment of the easement of light need not be as of right, so that proof of a parol licence is immaterial (g); nor is there any reservation of the rights of reversioners (h); and, so as there be no submission to or acquiescence in (i) an adverse interruption, an unbroken continuity of enjoyment is not necessary to establish the right. Thus, if after the statutory period has commenced to run, but before the twenty years have elapsed, there is an interval during which the owner of the dominant tenement, or his occupying tenant, is also in the occupation of the servient tenement, the operation of the statute is for the time suspended, but revives on the severance of the unity of occupation; and the statutory period may be made up partly of the period immediately prior to the unity of occupation and partly out of the period immediately succeeding it (k). But the enjoyment of the access of light must have been in the character of an easemmt, distinct from the enjoyment of the land sought to be affected; so that sixty years' enjoyment of lights looking out upon a garden which the owners of the house had held during that period as tenants from year to year, is insufficient to confer a title (I). Where the right to light is acquired against the owner of a leasehold interest in the servient tenement, it is acquired also against the owner of the reversion (m). And in the same way, where it is acquired by the owner of a leasehold interest in the dominant tenement it is acquired as an easement attaching to the inheritance (n), even though the lessees hold under the same landlord. And it has been held that where two adjoining tenements are held by different lessees under a common landlord and one lessee has enjoyed the access of light in respect of his tenement over the other tenement for twenty years without interruption, he acquires an absolute right to light, which enures in favour of such lessee and his successors not only against the adjoining lessee but also against the common landlord (o).
(e) Aynsley v. Glover, (1875) 10 Ch. 283; 43 L. J. Ch. 777. And see Smith v. Baxter, 1900, 2 Ch. 138, 146; 69 L. J. Ch. 437.
(f) Lanfranchi v. Mackenzie, (1867) 4 Eq. 421; 36 L. J. Ch. 518.
(g) Mayor of London v. Pewterers' Co., (1842) 2 Mo. & R. 409; Flight v. Thomas, (1840) 11 A. & E. 688, 695; 10 L. J. Ex. 529; and see Plasterers' Co. v. Parish Clerks' Co., (1851) 6 Ex. 630; 20 L. J. Ex. 362.
(h) S. 8.
(i) Glover v. Coleman, (1874) L. R. 10 C. P. 108; 44 L. J. C. P. 66; Presland v. Bighorn, (1889) 41 Ch. D. 268; 60 L. T. 433; and see Smith v. S., (1875) 20 Eq. 500; 44 L. J. Ch. 630.
(k) Ladyman v. Grave, (1871) 6 Ch. 763; 25 L. T. 52. It is different in the case of easements other than light; sec Damper v. Bassett, 1901, 2 Ch. 350, 354; Gale, 10th ed. p. 187, note (m).
In order to establish the right there must be some building in respect of which it can be claimed (p); but when once acquired, it will not be lost by an enlargement or alteration of the ancient windows (q); nor by the destruction of the dominant tenement, whether by some casualty or by the voluntary act of its owner, unless there is evidence of an intention to abandon the right; as, e.g., by not rebuilding the house within a reasonable period (r). The owner of the site of a demolished building, which formerly enjoyed the right, can restrain a neighbouring owner from building so as to interfere with such light as he would be entitled to on rebuilding on the vacant site (s); and it is not essential that on rebuilding the new windows should be identical in dimensions or situation with those which previously existed. It is sufficient if there is no material change in the nature or in the quantum of the servitude imposed (t), and if the area of the new window is substantially coincident with the area of the old (u).
Whether right lost by enlargement or alteration of ancient windows.
(l) Earbidge v. Warwick, (1848) 3 Ex. 552; 18 L. J. Ex. 245.
(m) Simper v. Foley, (1862) 2 J. & H. 555; 5 L. T. 669; Ladyman v. Grave, sup.
(n) Robson v. Edwards, 1893, 2 Ch. 146; 62 L. J. Ch. 378; Wheaton v. Maples, 1893, 3 Ch. 48, 65; 62 L. J. Ch. 963.
(o) Fear v. Morgan, 1906, 2 Ch. 406; 1907, A. C. 425.