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.
(p) See s. 3, and Roberts v. Macord, (1832) 1 Mo. & R. 230; Potts v. Smith, (1868) 6 Eq. at p. 318; 38 L. J. Ch. 58. In Harris v. Be Pinna, (1886) 33 Ch. D. 238; 54 L. T. 38, 770, Chitty, J., held that a timber stage was not a building within the Act; but the C. A. left the point undecided. As to an advertisement hoarding, see Foster v. Fraser, 1893, 3 Ch. 158; 63 L. J. Ch. 91; Boyce v. Paddington Borough, 1903, 2 Ch. 556. In Clifford v. Holt, 1899, 1 Ch. 698; 68 L. J. Ch. 332, a greenhouse, and in A.-g. v. Queen Anne Mansions Co., (1889) 60 L. T. 759; 37 W. R. 572, a memorial chapel were held to be such a building; and see D. of Norfolk v. Arbuthnot, (1880) 5 C. P. D. 393; 49 L. J. C. P. 782; Cable v. Bryant, 1908, 1 Ch. 259.
(q) Tapling v. Jones, (1865) 11 H. L. C. at p. 320; 34 L. J. C. P. 342, overruling Renshaw v. Bean, (1852) 18 Q. B. 112; 21 L. J. Q. B. 219; Hutchinson v. Copestake, (1860) 8 C. B. N. S. 102; affirmed 9 ib. 863; and Newson v. Pender, (1884) 27 Ch. D. 43; 52 L. T. 9; and acquire, in respect of the enlarged light, the prescriptive right which he originally had only in respect of the smaller one; and will in the meantime be able to prevent any obstruction, on the part of the owner of the servient tenement, which may interfere with the acquisition of the right.
The mere fact that an owner of ancient lights has enlarged them, does not disentitle him to an injunction to restrain obstruction (x). It follows from this doctrine (which is the logical consequence of holding that an alteration is not per se an abandonment of the easement) that if the owner of a small ancient light enlarge it, and it cannot be obstructed without blocking the access of light previously enjoyed, he will after the lapse of the statutory period see Andrews v. Waite, 1907, 2 Ch. 500; Cable v. Bryant, sup. Cf. Bailey and Son, Ltd. v. Holborn and Frasoati, Ltd., 1914, 1 Ch. 598, 602.
(r) Moore v. Rawson, (1824) 3 B. & C. at pp. 337, 341; 3 L. J. (O. S.) K. B. 32; Oppenheimer v. Alexander, (1892) 36 Sol. J, 769.
(s) Ecclesiastical Commrs. v. Kino, (1880) 14 Ch. D. 213; 49 L. J. Ch. 529; Staight v. Bum, (1869) 5 Ch. 163; 39 L. J. Ch. 289; Oppenheimer v. Alexander, sup.; and see Scott v. Pape, (1886) 31 Ch. D. 554, 575; 55 L. J. Ch. 426; Smith v. Baxter, 1900, 2 Ch. 138; 69 L. J. Ch. 437; Andrews v. Waite, 1907, 2 Ch. 500.
(t) Curriers' Co. v. Corbett, (1865) 2 Dr. & S. at p. 358; 12 L. T. 169; but see Cherrington v. Abney, (1709) 2 Vera. 646; and Aynsley v. Glover, (1874) 18 Eq. 544; 10 Ch. 283.
(u) Newson v. Pender, (1884) 27 Ch. D. 43; 52 L. T. 9; Pendarree v. Munro, 1892, 1 Ch. 611; 61 L. J. Ch. 494; Smith v. Baxter, and Andrews v. Waite, sup.
(x) Aynsley v. Glover, (1874) 18 Eq. 544; 10 Ch. 283; Parker v. Stanley, (1902) 50 W. R. 282; and see Staight v. Burn, (1869) 5 Ch. 163, 167; Dyers' Co. v. King, (1870) 9 Eq. 438; National Provincial Ins. Co. v. Prudential Ins. Co., (1876) 6 Ch. D. 757.
The doctrine that an easement of light acquired under the statute is to a particular cone of light (y), is no longer Law, it having been held by the House of Lords that the right acquired under the statute is not in the nature of a proprietary right to particular pencils of light, but a right that the light previously enjoyed shall not be interfered with to such a substantial extent as to amount, in effect, to a nuisance (z). The measure of what is sufficient light is not different in manufacturing districts from that regarded as sufficient in residential districts. "The standard of lighting required to survive in order to eliminate the existence of a nuisance seems to me an absolute standard," said Russell, J., in Hortons Estate Ltd. v. James Beattie, Ltd. (a). "The human eye requires as much light for comfortable reading or sewing in Darlington Street, Wolverhampton, as in Mayfair."
Where a building has been rebuilt it sometimes happens that although there has been no abandonment, the person claiming the right to light may be unable to enforce it, for want of evidence as to the right which he claims (b).
Time will commence to run in favour of the acquisition of a right to light or air from the time a building is externally structurally complete and before the apertures have been furnished with sashes or glazed (c).
Time from which right may be claimed.
(y) Scott v. Pape, (1886) 31 Ch. D. 554; 55 L. J. Oh. 526.
(z) Colls v. Home and Colonial Stores, 1904, A. C. 179; Jolly v. Kine, 1907, A. C. 1; Davis v. Marrable, 1913, 2 Ch. 421; Paul v. Robson, (1914) 83 L. J. P. C. 304; Semon v. Bradford Corp., 1922, 2 Ch. 737.
(a) 1927, 1 Ch. 75, 78.
(b) Scott v. Pape, sup., per Cotton, L. J., at p. 570; and see Fowlers v. Walker, (1882) 51 L. J. Oh. 443; Pendarves v. Munro, 1892, 1 Ch. 611; 61 L. J. Ch. 494; cf. Smith v. Baxter, 1900, 2 Ch. 138; 69 L. J. Ch. 437.
(c) Collis v. Laugher, 1894, 3 Ch. 659; 63 L. J. Ch. 851.
The fact of the servient owner being a corporation or other person incapable of granting the right will not prevent the statute running against him (d).
Right may be acquired against person incapable of granting it.
The question to be determined being whether the obstruction complained of is a nuisance, the answer must depend (as in the case of other nuisances) to a large extent on circumstances, e.g., whether the building is in town or country. "The uncertainty of the test may also be described as its elasticity. A dweller in towns cannot expect to have as pure air, as free from smoke, smell, and noise, as if he lived in the country, and distant from other dwellings; and yet an excess of smoke, smell, and noise, may give a cause of action, but in each of such cases it is a question of degree, and the question is in each case whether it amounts to a nuisance which will give a cause of action" (e). If the property has been used for the whole of the statutory period for a special purpose requiring an extraordinary amount of light, and the use of such an extraordinary amount is known to the owner of the servient tenement, it would seem that the owner of the dominant tenement will be protected (f). There is no rule, that, if access of light is interfered with to an extent which will diminish the angle of light below 45°, there is material interference; but the fact that an angle of 45° will be left is prima facie evidence against there being substantial interference (g).