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the right which he had in respect of them was also extiDguished.
If, indeed, at the time when he pulled the house down, he had
intimated his intention of rebuilding it, the right would not then
have been destroyed with the house. If he had done some act to
show that he intended to build another in its place, then the new
house, when built, would in effect have been a continuation of the
old house, and the rights attached to the old house would have
continued. If a man has a right of common attached to his mill,
or a right of turbary attached to his house, if he pulls down the
mill or the house, the right of common or of turbary will prim&
facie cease. If he show an intention to build another mill or
another house, his right continues. But if he pulls down the

Cessation of

Moor$ y.

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Cessation of

Moore ▼.

house or the mill without showing any intention to make a similar
use of the land, and, after a long period of time has elapsed, builds
a house or mill corresponding to that which he pulls down, that is
not the renovation of the old house or mill but the creation of a
new thing, and the rights which he had in respect of the old house
or mill do not, in my opinion, attach to the new one (c). In this
case, I think, the building of a blank wall is a stronger circum-
stance to show that he had no intention to continue the enjoyment
of his light than if he had merely pulled down the house. In that
case he might have intended to substitute something in its place.
Here he does, in fact, substitute quite a different thing — a wall
without windows. There is not only nothing to show that he
meant to renovate the house so as to make it a continuance of the
old house, but he actually builds a new house different from the
old one, thereby showing that he did not mean to renovate the old
house. It seems to me, therefore, that the right is not renewed, as
it would have been if, when he had pulled down the old house, he
had shown an intention to rebuild it within a reasonable time,
although he did not do so eo instanti."

Littledale, J. — " According to the present rule of law a man
may acquire a right of way, or a right of common, (except, indeed,
common appendant,) upon the land of another, by enjoyment.
After twenty years' adverse enjoyment the law presumes a grant
made before the user commenced, by some person who had power
to grant. But if the party who has acquired the right by grant
ceases for a long period of time to make use of the privilege so
granted to him, it may then be presumed that he has released the
right. ... I think that, if a party does any act to show that he
abandons his right to the benefit of that light and air which he
once had, he may lose his right in a much less period than twenty
years. If a man pulls down a house and does not make any use
of the land for two or three years, or converts it into tillage, I
think he may be taken to have abandoned all intention of rebuild-
ing the house ; and, consequently, that his right to the light has
ceased. But if he builds upon the same site, and places windows
in the same spot, or does any thing to show that he did not mean
to convert the land to a different purpose, then his right would
not cease. In this case I think that the owner of the plaintiff's
premises abandoned his right to the ancient lights, by erecting the

(f) CrossUy v. LightowUr (1867), L. R. 2 Ch. 478 ; poet, p. 661.

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blank wall instead of that in whioh the ancient windows were ; for CeMation of

he then indicated an intention never to resume that enjoyment of —

the light which he once had. Under those circumstances I think itTtownl
that the temporary disuse was a complete abandonment of the

In Lawrence v. OJ^^(rf), Lord Ellenborough held that, where ^^^reneey.
an ancient window had been filled up with brick and mortar for
twenty years, the case stood as if it had never existed.

" Suppose a person," said Tindal, C. J., in delivering the judg- ^»^^*»« ▼•
ment of the Court in Liggina v. Inge (e), " who formerly had a mill
upon a stream, should pull it down, and remove the works, with
the intention never to return, could it be held that the owner of
other land adjoining the stream might not erect a mill and employ
the water so relinquished; or that he should be compellable to
pull down his mill, if the former mill-owner should afterwards
change his determination, and wish to rebuild his own P In such
a case it would, imdoubtedly, be a subject of inquiry by a jury,
whether he had completely abandoned the use of the stream, or
left it for a temporary purpose only " (/).

In Hale v. Oldroyd{g)j the plaintifE had a right to a flow of ^^^^
surplus water to an ancient pond. Instead of using the water to
supply that pond, he had during thirty years past ufied it to
supply three more recent ponds. It was held, he had not aban-
doned or lost his right to the flow of water by such user. Eolfe,
B., said, '* If the plaintiff had even filled up the (old) pond, that
would not in itself amount to an abandonment, although, no
doubt, it would be evidence of it." [And Parke, B., said, " The
use of the old pond was discontinued only because the plaintiff
obtained the same or a greater advantage from the use of the
three new ones ; he did not thereby abandon his right, he only
exercised it in a different spot, — and a substitution of this nature
is not an abandonment."

In Stokoe v. Singers (A), it was held that, where the owner of ^sima-J'
a house had blocked up ancient windows, and kept them so for
nearly twenty years, he had not lost the right of light, the jury
finding that he did not ^^so close up bis lights as to cause the

{d) (1814), 3 Camp. 614; 14 R. R. (/) \^e& Croasleyv.Lightowler [\%Q1),

830 L. B. 2 Ch. 478 ; posVp. 661.]

„ ^ is) (1845), 14 M. & W. 789 ; 69 R. R.

(e) (1831), 7 Biog. 693 ; 33 R. R. 616, 824.

Preface VI. (h) (1867), 8 E. & B. 31.

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Stokoe V.

•ioners t.

Material qnee-
tioo, intention
to renounce

[adjoining owner to incur expense or loss on the reasonable belief
that they had been permanently abandoned," nor so as "to
manifest an intention of permanently abandoning the right of
using them " ; but the Court did not express any opinion upon
the question whether the mere closing up of the lights, so as to
manifest an intention of permanently abandoning them, would
destroy the right, unless the adjacent owner acted upon that
intention ; and there appears to have been some difference of
opinion between the judges upon this question.

In Ecclesiastical Commissioners v. Kino (A:), it appeared that,
by virtue of an Act of Parliament and an Order in Council, the
church of St. Dionis Backchurch in the city of London had
become vested in the Commissioners upon trust to pull down the
church, dispose of the materials, and sell the site. The church
having been pulled down, but not yet sold, the defendant com-
menced to build upon the adjoining land some buildings which
would have obstructed the access of light to the ancient church
windows had they still been subsisting. Hall, V.-C, refused
an injunction ; but, on appeal, the defendant was resfxained from
** obstructing the lights of any building to be erected on the site
of the church, so far as such lights occupy the same position as
the lights of the church." The Court of Appeal thought that the
Commissioners, though not themselves empowered to rebuild, were
entitled to sell the land with all its advantages, including the
right to rebuild so as to resume the enjoyment of the ancient
lights. " It appears to me," said James, L. J., " that, where a
building in which there are ancient lights has been taken down,
though the actual enjoyment of the light has been suspended,
there is nothing to prevent the owner from applying to the Court
for an injunction to restrain an erection which would interfere
with the easement of the ancient lights, where the Court is satis-
fied that he is about to restore ihe building with its ancient
lights. That was so decided by Lord Justice Giffard in Staight v.
JBt/r» "(/).]

It appears from these cttses that the law has fixed no precise
time during which this cessation of enjoyment must continue ; —
the material inqiiiry in every case of tids kind must be, whether
there was the intention to renounce the right. [There is a legal

(*) (1880), L. B. 14 Ch. DiT. 213.

(0 (1869), L. B. 5 Gh. 168.

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[inference, however, at any rate in cases where the dominant Cessation of
tenement has been pulled down and rebuilt, that the owner — — 1-

intends to preserve his rights ; and accordingly it has been held
in a case in which a building was rebuilt before a right to light
had been acquired under the Prescription Act, but whilst it was in
course of b^ing so acquired, that evidence of the intention to pre-
serve ancient lights upon a rebuilding is unnecessary (w).] From
the language of the judges [in the cases before Stokoe v. Singers']^
it does not appear to be necessary that the servient owner should
have done any act after the change had taken place in the
dominant tenement to assert the freedom of his tenement from the
easement ; but it is suflBcient if the consequence of the change be
an entire cessation of enjoyment, accompanied by an intention [on
the part of the dominant owner] to relinquish the right. In
point of fact, in one of the cases above cited, the owner of the
servient tenement had, during the cessation of enjoyment, done
an act which he could not lawfully have done had the easement
existed, and the owner of the dominant tenement had taken no
steps to remove the obstruction ; yet no stress was placed upon
these circumstances. [And the dicta in Stokoe v. Singers j in which
such an act is treated as essential in order to make out the loss of
the easement, have never been followed.]

By the civil law an urban servitude could not be lost by mere Civil law re-
abandonment on the part of the owner of the dominant, unless, Sot^^done
during the cessation of enjoyment, some act was done by the by servient
owner of the servient tenement evincing an intention of defeating
the servitude —as if a man having a window should have stopped
it up during a certain time, a previously acquired easement of the
passage of light would not have been lost, imless the owner of the
servient tenement had done something during the interval to
obstruct the passage of light : so, too, in the case of an easement
tigni immittendi, mere removal of the beam was not suflBcient to
defeat the right, unless the owner of the servient tenement stopped
up the hole in which the beam was placed («) ; and, on the same
ground, by no lapse of time would the right be lost during which,

(m) Smith T.Baxter, [1900] 2 Ch. 138. Colonial Stores, Ltd., [1904] A. C. 179,

Thitt decision was based upon a passage it does not appear tJiat the decision in

in the judgment of Cotton, L. J., in Smith y. Baxter ia ik&rehy aSected. See

Scott V. Fape (1886), 31 Ch. Div. 664 ; Andreujt v. Waite, [1997] 2 Ch. 600,

but, thoogh the judgments in this case 609.

were oriiioified m Colla v. Eom$ and in) Haeo antem jura similiter, ut rus-

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Oessfttion of

Alteration bj



owing to the delay in rebuilding the servient tenement, the ease-
ment could not be exercised (o).

Although, however, there appears to be no [sufficient] authority
in our law for requiring any such act as the condition of the ex-
tinction of an easement, yet such an act, unopposed by the owner
of the dominant tenement, as in the case of Moore v. liawson,
would be almost conclusive evidence that there was no intention to
preserve the easement.

A question of much greater difficulty arises in those cases in
which there has been no actual cessation of enjoyment, but the
mode of enjoyment has been more or less altered; and where,
instead of an intention to relinquish the right, an attempt has been
made to usurp a greater right than the paurty was entitled to, [or
to enjoy it in a different manner (j^)].

Assuming that the encroachment confers no new right, two
questions arise : — 1st, whether a valid easement still subsists to the
extent previously enjoyed ; and, 2ndly, if this be determined in
the negative, whether the party is still at liberty to restore his
tenement to its former condition, and recur to its former mode of

The first question may be considered with reference to two
distinct classes of easements: — those which require for their
enjoyment a permanent adaptation of the state of the dominant
tenement; and those which depend upon repeated acts of man,
and require no permanent alteration in the dominant tenement, as
rights of way, or to draw water (g).

ticoram quoque praediorunii certo tem-
pore non uteodo pereunt ; nin quod
hceo dissimilitudo est, quod non omni-
modo pereunt non utendo ; sed ita si
Ticious simul libertatem usucapiat,
Teluti si sedes tuee ledibus meis serriant
^*ne altius tollantur/' ** no lumioibus
mearum eedium officiatur '' ; et ego per
statutum tempus fenestras meas prse-
fixas habnero vel obstruxero ; ita demum
jus meum amitto, si tn per boo tempus
sedes tuas altius sublatas habueris ;
alioquin ai nihil novi feceris, retineo
servitutem. Item si "tigni immissi"
sdes tuee serritutem debeut, et ego
exemero tignum, ita demum amitto jus
meum, si tu foramen undo exemptum
est tignum obturayeris et per constitu-
tum tempus ita habueris; alioquin, si
nihil noYi feoeris, integrum jus meum

permanet. — Dig. 8, 2, 6, de serr. pned.

(o) Si cum jus haberes immittendi,
vicinus statuto tempore sedificatum nou
habuerit, ideoque nee tu immittere
poteris, non ideo magis servitutem
amittes; quia non potesrt; videri usnoe-
pisse vicinus tuns libertatem aedium
suarum, qui jus tuum non interpellaTit.
— Dig. 8, 6, 18, § 2, quem. serr. amit.

{p) E.g., by altering the plane of t
-window or the course of a stream (aod
cf . Mercer v. Dentie, [1904] 2 Ch. 634 ;
[1905] 2 Ch. 638). Thin method of
alteration is distinguishable from mere
encroachment; but the cases are so
much intermixed that it is impossible to
separate them iu statement.

(q) This question is discussed with
reference to the latter class, post, p. 566.

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With respect to those easements which require for their enjoy- Alteration by
ment a permanent adaptation of the state of the dominant tene- ment. "
ment, it is extremely diflScult to reconcile the [earlier] decisions, ^^here
or to extract any clear or intelligible principle from them ; but it dominant
appears [even in the earlier cases] to be admitted that, if the permanently
alteration in the mode of enjoyment is such as clearly not to *^'^®^^-
render the easement more onerous on the owner of the servient
tenement, the right remains unimpaired ; [on the other hand it
may be considered as settled that any alteration in the dominant
tenement which imposes an additional burden on the servient
tenement, will certainly suspend the right, and may destroy it
altogether ('/).

The cases are numerous, but it will be well to go through them
in their order.]

In Cherrington v. Abney (r), a bill was filed for an injunction to Cherringtm y.
prevent stoppage of lights ; there being six lights in an old house, "^^'
it was insisted, that "in the new they should have but the same
number of lights, and of the same dimensions, and in the same
places, or else may stop up and blind them.

"So must not make more stories, more lights, nor in other

" It is certain they cannot alter the same to the prejudice of the
owner of the soil — ^as if before so high as they could not look out
of them into the yard, shall not make them lower, and the like ;
for privacy is valuable.

" One trial had another granted."

[The above dicta can no longer be relied upon as good law.

In East Ifidia Company v. Vincent {h)^ Lord Hardwicke said: Eatt India Co,
"If I should give an opinion that lengthening of windows, or ^' ^•'*^^'*^-
making more lights in the old wall than there were formerly (^),
would vary the right of persons, it might create innumerable
disputes in populous cities, especially in London ; and, therefore.

(q) See Anherton v. Connelly^ post, dominant tenement is not entitled to all

p. 648. the light coming through the windowt*,

(r) (1709), 2 Vernon, 646, cor. King, but only so much as is necessary to

jj^ C. render the occupation of the dominant

{g\ (mO) 2 Atk 83 tenement reasonably comfortable, the

\ f \ * Jf ' ' enlargement of windows in the dominant

{t) It must be borne in mind, in con- tenement would not increase the burden

sideriog the cases cited, that tiince it has imposed on the servient tenemeut, but

been setded by the decision in Colls y. would have the contrary effect; see post,

Mome and Colonial Storet, Ltd., that the p. 547.

G. 34

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Martin y.

Alteration by [I Jo not give an absolute opinion, but I should rather think it does

encroach- , i.1 • r j. »n

ment. ^ot vary the right. J
Cottereliv. In Cotterell v. Griffiths {u)^ it appeared that the plaintiff's

'**'^' • windows had never been completely opened until a short time

before the action wa^ brought, but there had been blinds sloping
upwards without giving any view over the defendant's promises.
Lord Kenyon ruled that, the defendant having by his act made
the plaintiff's windows darker than they were when the blinds
were up, the action was sustainable.

In Martin v. Gobk (x)y where a building having been used for
upwards of twenty years as a malthouse was converted into a
dwelling-house, M'Donald, C. B., held that " the house was entitled
to the degree of light necessary for a malthouse, and not for a
dwelliug-house; the converting it from one to the other could not
affect the rights of the owners of the adjoining ground ; no man
could, by any act of his, suddenly impose a new restriction upon
his neighbour." [This decision was expressly dissented from in
Moore v. Hall (t/), hut the decision in Colk y, Home and Colonial Stores,
Ltd, (s), having settled that the easement of light is and always
has been a question of nuisance or no nuisance, it would seem that,
unless the building, though used as a malthouse, was so well
lighted as to enable it to be converted into a dwelling-house without
the addition of any new windows or any increase in the size or
form of the existing windows (upon which point the report is
silent), the decision might be supported on the ground that the
question of whether or not an obstruction was a nuisance must be
decided by reference to the easement acquired by the former enjoy-
ment (fl), and that the addition to or alteration in the windows on
the conversion of the building into a dwelling-house would increase
the burden on the servient tenement (6). The concluding words
of the passage above quoted were cited, apparently with approval,
in Colk V. Some and Colonial Stores^ Ltd."]

In Chandler v. Thompson (c), it appeared "that there had been
for many years a small window in the place in question. About

Chandler v.

(m) (1801), 4 Esp. 69.
[x] (1808), 1 Camp. 332.
(y) (1878), L. R. 3 Q. B. D. 178.
[z) [1904] A. C. 179; see above,
p. 324.

(«) See the judgment of Lord

Chelmsford in TapUng y. JomSf post,
p. 544.

{b) Colls V. Eome and Colonial Stores,
Ltd, (ubi sup.), per Lord Idndley at
p. 211 ; and see per Lord Davey, •*
pp. 201, 202.

(c) (1811), 3 Camp. 80; 13R,R.756.

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three years before the action was brought the plaintiff consider- Alteration by
ably enlarged it, both in height and width, and put in a sash ment.
frame instead of a leaded casement {(I). The defendant, who was chandlery.
the owner of the adjoining ground, then covered several inches of Thompson.
the space occupied by the old window, but still admitted more
light to pass through the new window than the plaintiff had
enjoyed before the alteration.'* Le Blanc, J., ruled, "that the
whole space occupied by the old window was privileged, and that
it was actionable to prevent the light and air passing through as
it had formerly done. That part of the new window which
constituted the enlargement might be lawfully obstructed; but
the plaintiff was entitled to the free admission of light and air
through the remainder of the window, without reference to what
he might derive from other sources."

In Garritt v. Sharp (^), it appeared that, for upwards of twenty Oarritt v.
years, the building in question had been a bam, on the side ^^'
of which, abutting on the defendant's premises, were several
apertures, about one or two inches wide, through which light tmd
air passed to the barn, the only other opening being the bam door:
the plaintiff's case was, that these openings were made for the
purpose of admitting light and air ; the defendant contended that
they had been caused by decay and wear, by the boards shrinking.
In 1833 the plaintiff turned the bam into a malthouse, stopped
some of the crevices, and converted others, by cutting, into
windows, to which he put lattices. The defendant then erected a
wall which prevented the access, not only of any additional light
which might have been obtained by the alteration, but also, as
the plaintiff alleged, of that quantity which came into the building
in its original state. The defendant (as was stated on the motion
for a new trial) offered evidence to show that the alteration
in the mode of admitting light to the plaintiff's building was
injurious to the defendant's adjoining property; such evidence,
however, was not received. Tindal, C. J., left it to the jury
to say, whether the apertures were originally placed there on
purpose to admit light, and whether the defendant had obstructed
any portion of the light (/) admitted; and in case of their find-

(d) See note (/), p. 529. (/) The word " originally " seems to

have been omitted here ; there was no
{e) (183o), 3 A. & E. 326 ; S. C, 4 question that tome light had been ob-
K. k M. 834. fitructed.


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Alteration by ing in the affirmative on these questions, he directed them, if

ment. " the light now fell short of the quantity hefore enjoyed hy

Garriu v. ^he plaintiff for the use of his bam, to give damages for such

Sharp, diminution. The jury found for the plaintiff. A new trial was

moved for — first, on the ground of misdirection, on which it was

contended, that " the proof given respecting the apertures in the

bam did not entitle the plaintiff to any enjoyment of windows

which admitted light more extensively, and in an entirely different

manner; and that no licence for such an enjoyment could be

presumed from the licence, if proved, to have crevices in the wall

of the bam." The rejection of evidence above mentioned was also

relied on as a ground for a new trial.

The Court granted a new trial, principally, as it should seem,
on the ground that, " although the point was made, yet the jury
were not required by the judge to consider whether the plaintiff
had essentially varied the manner in which the light was enjoyed."
In the concluding part of the judgment is the following passage:
" It is enough to say, that a party may so alter the mode in which
he has been permitted to enjoy this kind of easement as to lose
the right altogether; and, in this case, some part, even of the
plaintiff's proofs, made it proper that the opinion of the jury
should be taken upon that subject."

[The decision did not proceed on the enlargement only, and
possibly not at all. It was suggested in argument that the manner
of introducing light was entirely altered; and Lord Denman
observed that, while the old openings could not overlook the
neighbouring premises, the windows might. But it may be doubted
whether this could be a sufficient reason for depriving the dominant
tenement of the easement of light; and probably the decision
could not now be relied on as a precedent.]

In Blanchard v. Bridges (/), the alteration of the windows, upon

Online LibraryAlan WeissOur emperors have no clothes → online text (page 62 of 75)