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.
The extent to which the right may be claimed - quantity of light.
With regard to the question of implied grants and reservations of the right to light on the sale (h) of two adjoining tenements by the common owner, the three following propositions may be stated: - 1. If the owner of a house and adjoining land sell, or contract to sell (i) the house first, he impliedly grants with it the right to light over the adjoining land, and can neither himself obstruct the lights of the house, nor give to anyone claiming under him the right to do so (k); but if the grantee is aware that it is intended to use the adjoining land for purposes inconsistent with the implied grant, his rights are restricted (I), the burden of proof that the grantee was aware of such intention being, nevertheless, on the grantor (m). 2. If the common owner sell, or contract to sell (n), the land first, keeping the house meanwhile, there is no implied reservation of the right to light for the house; and the purchaser of the land may obstruct the light previously enjoyed by the house, whether the house remains in the possession of the original vendor, or has been subsequently sold by him (o). To this rule - that if a vendor wishes to reserve any rights for the property which he retains, he must do so by express words - there is the exception of easements of necessity (p); and under certain special circumstances other rights may be impliedly reserved, e.g., a right of support when one of two adjoining houses is sold (q), or to use a formed road from one tenement to and for the apparent use of the other (r). 3. If the common owner sell the land and house simultaneously, or in such a way that both conveyances are really part of one sale, there is an implied reservation of the right to light for the house (s). And where the simultaneous alienation is effected by the will of the common owner, the fact that the dominant tenement was not at the date of the will in the actual possession of the testator, but was let on lease, does not alter the rule; and the devisee of the servient tenement, and those claiming under him, are not entitled to obstruct the lights of the houses (t). But the onus is on the person claiming a right to light to show that the grantor had power to grant the right claimed (u).
On sale of one of two adjoining tenements by the owner of both.
(d) Jordeson v. Sutton, Southcoates, etc. Co., 1899, 2 Ch. 217; 68 L. J. Ch. 457; and see Slack v. Leeds Industrial Co-operative Soc., 1923, 1 Ch. 431; 1924, A. O. 851.
(e) Per Halsbury, L.c., in Colls v. Home and Colonial Stores, 1904. A. C. p. 185. Compare, however, with this statement the judgment of Russell, J., in Horton Estate, Ltd. v. Beattie, Ltd., 1927, 1 Ch. p. 78.
(f) Lanfranchi v. Mackenzie, (1867) E. R. 4 Eq. 421; 36 E. J. Ch. 518; Colls v. Home and Colonial Stores, sup.
(g) Colls v. Home and Colonial Stores, 1904, A. C. 179, 210; and see the cases mentioned in note (z) on p. 363.
(h) The same principles apply in the case of a voluntary conveyance or devise; Phillips v. Low, 1892, 1 Ch. 47; and see Milner's Safe Co., Ltd. v. G. N. & City Ry., 1907, 1 Ch. 208.
(i) Beddingion v. Atlee, (1887) 35 Ch. D. 317; 56 L. J. Ch. 655.
(k) Palmer v. Fletcher, (1663) 1 Lev. 122; 1 Sid. 167; Cox v. Matthews, (1672) 1 Vent. 237; Tenant v. Goldwin, (1704) 2 Ld. Raym. 1089, 1093; 1 Salk. 21, 360; Rosewell v. Pryor, (1701) 6 Mod. 116; 2 Salk. 460; Browne v. Flower, 1911, 1 Ch. 219; Goddard, 8th ed. 131, 132; Gale, 10th ed. 124.
(l) Birmingham, Dudley and District Banking Co. v. Boss, (1888) 38 Ch. D. 295; 57 L. J. Ch. 601; Myers v. Catterson, (1889) 43 Ch. D. 470; 59 L. J. Ch. 315; Wilson v. Queen's Club, 1891, 3 Ch. 522; 60 L. J. Ch. 698; Pollard v. Gare, 1901, 1 Ch. 834; 70 L. J. Ch. 404; Godwin v. Schweppes, 1902, 1 Ch. 926; 71 L. J. Ch. 438.
(m) Broomfield v. Williams, 1897, 1 Ch. 602, 613; 66 L. J. Ch. 305; Quiche v. Chapman, 1903, 1 Ch. 659; 72 L. J. Ch. 373. Broomfield v. Williams was distinguished in Long v. Gowlett, 1923, 2 Ch. 177, which see.
(n) Beddington v. Atlee, (1887) 35 Ch. D. 317; 56 L. J. Ch. 655.
(o) Tenant v. Goldwin, sup.; White v. Bass, (1862) 7 H. & N. 722; 31 L. J. Ex. 283; Sufield v. Brown, (1863) 4 D. J. & S. 185; 33 L. J. Ch. 249; Carriers' Co. v. Corbett, (1865) 2 Dr. & S. 355; 12 L. T. 169; Ellis v. Manchester Carriage Co., (1876) 2 C. P. D. 13; 35 L. T. 476; Wheeldon v. Burrows, (1879) 12 Ch. D. 31; 48 L. J. Ch. 853; Russell v. Watts, (1883) 25 Ch. D. at p. 565; reversed (1885) 10 A. C. 590, but on the ground that there was an implied contract not to interfere with the lights of the reserved property; and the rule applies where the grantor has only a limited interest, and afterwards acquires the fee; Booth v. Alcock, (1873) 8 Ch. 663; 42 L. J. Ch. 557; Beddington v. Atlee, sup.; Rymer v. Mcllroy, 1897, 1 Ch. 528; 66 L. J. Ch. 336; Quicke v. Chapman, sup.
In every such case a vendor should, by express reservation or re-grant, keep on foot for his own benefit, in respect of the tenement retained, any easement or quasi-easement which he may desire to enjoy, over the tenement sold.
Vendorshould expressly reserve rights required for benefit of tenement retained.
(p) Wheeldon v. Burrows, sup.; Union Lighterage Co. v. London G. D. Co., 1902, 2 Ch. 557; 71 L. J. Ch. 791; Gordon v. Ogilvie, (1899) 15 T. L. R. 239; Nicholls v. N., (1900) 81 L. T. 811; see per Keke-wich, J., in Ray v. Hazeldine, 1904, 2 Ch. 17; 73 L. J. Ch. 537, as to distinction between what is absolutely necessary and what is reasonably required for enjoyment of the land or building as it stands; and see Long v. Gowlett, 1923, 2 Ch. 177; Goddard, 8th ed. 37; Gale, 10th ed. 172.
(q) See Gordon v. Ogilvie, sup.
(r) Nicholls v. N., sup.; Thomas v. Owen, (1887) 20 Q. B. D. 225; 57 L. J. Q. B. 198; and see Brown v. Alabaster, (1887) 37 Ch. D. 490; 57 L. J. Ch. 255; Taws v. Knowles, 1891, 2 Q. B. 564; 60 L. J. Q. B. 641.