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opened ; but there is a new title acquired to this restriction ; and,
as it is possible that the two windows may come into different
hands, so that the owner of the land, if he wishes to buy up the
rights to the lights, may be forced to bargain with two persons

Frinoiple of
loss of ease-
ment by en-

Tapling y.

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Priooiple of
lorn of ease-
meat by en-

Tapling y,

[instead of one, some inconvenience may arise from this ; but it
is remote and slight, and indeed it requires some ingenuity to
discover that any inconvenience can arise from the double title
to the same restriction. The real hardship upon the owners of
adjoining land is in cases where privacy is of value ; there, if an
old privileged window of such size and extent as to be an annoy-
ance is to be respected, it may deprive the owner of the land of the
power of obstructing new windows of such size and extent as to
destroy his privacy altogether, and not only annoy him, but,
as I have already pointed out, seriously affect the value of his
property. Still, though this is a great damnum, it is no injuria.
No action lies for it ; no injunction in equity can be obtained to
prevent it.

*' Now, the supposed plea, if good, must be supported on
analogy to those which excuse a trespass to real property, on the
ground that it was necessary for the purpose of abating a nuisance
erected or maintained by the plaintiff, or an assault or imprison-
ment, as necessary to prevent the plaintiff committing a wrong,
&c. In such a case, the plaintiff's right to the possession of
his close, or to his personal liberty, is neither destroyed nor
suspended; but the defendant is excused because the interference
with that right was necessary to prevent an injury to himself by
the plaintiff.

" * The reason,' says Blackstone (3 Comm. 6), speaking of the
abatement of a nuisance, ' why the law allows this private summary
method of doing oneself justice, is, because injuries of this kind,
which obstruct or annoy such things as are of daily convenience
and use, require an immediate remedy, and cannot wait for the
slow progress of the ordinary forms of justice.' This assumes
that what is to be redressed in a summary way is an injury
which might be redressed by the ordinary course of justice. It
would be a strange anomaly if we were to say that we do not
approve of the old-established doctrine that a mere invasion of
privacy is no injury, and, though admitting that this doctrine is
so well established that no Court can grant any redress, we were to
support the defendant if he takes the law into his own hands, and
excuse him if he interferes with a legal right of his neighbonr's,
provided it is done for the purpose of protecting his privacy.
"Would a plea be good, justifying a trespass on the plaintiff's
land for the purpose of obstructing this new window, if it could
not otherwise be done ? Or, if the plaintiff happened to have a

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[private right of way from his door, could the owner of the servient
tenement justify obstructing this right of way, if a new light were
thrown out above the door, and that new light could not be
obstructed without obstructing the right of way ? I suppose it
will scarcely be said that such pleas would be good ; indeed, Lord
Campbell himself, in Remhaw v. Beauj confines the right to
obstruct the new window to cases in which the party in doing so
commits no trespass. But why should the defendant be excused
from interfering with the right of the plaintiff to light to his
window on the third floor by an act of the plaintiff which would
not excuse or justify an interference with any other right of the
plaintiff, such as his right to the exclusive possession of his own
land, or his right of way, if he had it ? It is true that the act of
the plaintiff has been that of opening new windows, and the right
of the plaintiff which is interfered with is in respect of an old
window. So far there is something in common — * there are lights
in both.' But, in every other respect, they are as distinct as any
other rights, as will be seen from this supposed case. The fourth
and fifth stories here might have been separate tenements at the
time when the new windows were thrown out, and afterwards
within the twenty years, have come into the same hand as the third
floor. I take it that, if such had been the case, the defendant
would have as much excuse for interfering with the third floor
window to prevent the plaintiff from continuing and maintaining
the new windows as he now has ; but it would then have been too
obvious for dispute, that the right infringed was a right wholly
distinct from that which would at the end of the twenty years be

The same arguments are further developed by Baron BramweU,
who shows the impossibility of extending the doctrine to two
adjoining houses belonging to different owners. The judges who
decided Blanchard v. Bridges and Renshatv v. Bean did not intend,
he says, to overrule Chandler v. Thompson.

This judgment was affirmed in the House of Lords.

The Lord Chancellor (Lord Westbury), after citing the third
section of 2 & 3 Will. 4, c. 71, which enacts that, after twenty
years' enjoyment of the access of light to a dwelling house, the
right thereto shall be deemed absolute and indefeasible, observed
that the right to light now depended upon positive enactment,
and did not require, and therefore ought not to be rested on, any
presumption of grant, or fiction of a licence having been obtained

Principle of
loss of ease-
ment by en-

Tapling y.

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Prindple of [from the adjoining proprietor. " The right is declared by the
mentbyen- statute to be absolute and indefeasible: and it would seem,
croachm ent. therefore, that it cannot be lost or defeated by a subsequent
Tapiinff v. temporary intermission of enjoyment not amounting to abaadon-
ment. Moreover, the absoh^te and indefeasible right which is the
creation of the statute is not subject to any condition or qualifica-
tion, nor is it made liable to be affected or prejudiced by any
attempt to retard the access or use of light beyond that which,
having been enjoyed uninterruptedly during the required period,

is declared to be not liable to be defeated If my

adjoining neighbour builds upon his land, and opens numerous
windows which look over my gardens or my pleasure-grounds, I
do not acquire from this act of my neighbour any new or other

right than I before possessed The * invasion of privacy

by opening windows ' is not treated by the law as a wrong for
which any remedy is given." He could not accept the reasoning
on which the decisions in Remhaw v. Bean and Hutchimon v.
Copeatake were founded. " Upon examining the judgments in
those cases, it would be seen that the opening of the new windows
is treated as a wrongful act done by the owner of the ancient
lights, which occasions the loss of the old right he possessed;
and the Court asks whether he can complain of the natural con-
sequence of his own act. Thus two erroneous assumptions are
involved in or underlie this reasoning : first, that the act of
opening the new windows was a wrongful one ; and secondly, that
such wrongful act is sufficient in law to deprive the party of his
right under the statute." His Lordship's opinion was, that the
appellant's wall, so far as it obstructed the access of light to the
respondent's ancient unaltered window, was an illegal act from the

Lord Cranworth gave similar reasons for his judgment, and
expressed his dissent from the reasoning in Renshaw v. Bean,

Lord Chelmsford said that he did not see that the appellant's
case would be benefited if it were established, contrary to the
express words of the statute, that the right to the enjoyment of
light rested on the footing of a grant. He stated the law to be
that the right acquired by user must necessarily be confined to
the exact dimensions of the opening through which the access of
light and air had been permitted. As to anything beyond, flie
parties possessed exactly the same relative rights which they had
before. The owner of the privileged vrfndow did nothing unlawful

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[if he enlarged it, or made a new window in a different situation.
The adjoining owner was at Kberty to build upon his own ground
BO as to obstruct the addition to the old window, or shut out the
new one ; but he did not acquire his former right of obstructing
the old window, which he had lost by acquiescence, nor did the
owner of the old window lose his absolute and indefeasible right
to it, which he had gained by length of user. The right continued
unintemiptedly until some unequivocal act of intentional abandon-
ment was done by the person who had acquired it, which would
remit the adjoining owner to the unrestricted use of his own
premises. " It will, of course," he said, " be a question in each
case whether the circumstances satisfactorily establish an intention
to abandon altogether the future enjoyment and exercise of the
right. If such an intention is clearly manifested, the adjoining
owner may build as he pleases upon his own land ; and, should
the owner of the previously existing window restore the former
state of things, he could not compel the removal of any building
which had been placed upon the ground during the interval. For
a right once abandoned is abandoned for ever." But a person,
by endeavouring to extend a right, could not manifest an intention
to abandon it; he evinced his determination to retain it, and
acquire something more. And the enlarging an ancient window
would be no cause of forfeiture, because the act was not unlawful.
He thought Remhaw v. Bean could not be supported.

While the appeal in Jonen v. TapUng was still pending, three
oases were decided which illustrate the principle there discussed.

The first of these in chronological order was Binckes v. Pa%h (c).
The plaintiff's windows on the ground floor had existed in their
present state for more than twenty years before action brought ;
but he had, about ten years before the action, altered his windows
on the first floor ; and it was apparent that, at the distance of
ten feet, no obstruction of the new part of the upper windows
could have been effectual which did not also obstruct the old
parts and the windows on the ground floor. The defendant
erected a building which was a material obstruction to some of
the ground floor windows, but no material obstruction to the
altered windows ; and this building was finished and roofed in.
On action brought, the defendant contended that, by reason of
the alteration of the upper windows, he had a right to obstruct

Prinoiple of
loss of t-ase-
meDt by en-

Tapling v.

Bineket y.

(e) (1861), 11 C. B. N. S. 324.


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Principle of
loss of eaae-
ment by en-

Binek^B y.

Y. Bott,

Curriert* Co
y. Corbett.

Easement of
light not lost
by enlarge*
ment of

[every window the obstraction of whieli was neceBsarj to reach the
usurped light. But the Court, while admitting that this might be
the effect of Remhaw t. Beariy supposing the defendant to have
had an intention of reaching the usurped light, held that on the
fact he had no such intention, and decided against him. The
true mode of meeting the contention was, said Byles, J., "to
distinguish between the absolute right to block the ancient
window and the conditional right dependent on another enter-
prise which has not yet been undertaken by the defendant, and
perhaps never will be."

The second of the cases referred to was Weatherley v. Rokh (d),
which was a suit to restrain an interference with five lights which
were alleged to be ancient. But it appeared that one of the
windows in question was new, that two others had been recently
shifted, and that it was impossible to block up the new and
altered windows without obstructing the remaining ones. Wood,
V.-C, following and approving Remhaic v. Bean^ which was not
then overruled, held that the defendant's obstiniction was lawful
But, upon the plaintili's submitting to block up the new window
and to restore the altered windows to their former state, the Vice-
Chancellor granted an injunction to protect the ancient windows
when so restored, and ordered the plaintiffs to pay the costs of
the suit.

The third case is CnrricvH Co. v. Corbett {e)y where a house
which had been burnt down and rebuilt, with windows differing
somewhat in shape from the ancient ones, was held not to have
lost its right to Ught, — a decision which, although doubtless in
accordance with Tapling v. Jones, would be difficult to reconcile
with Reiishaw v. Bean,

The decision of the House of Lords in Tapling v. Jones, which
has been uniformly followed since it was given (/), has put an end
to the doctrine that an easement of light may be lost by an
Hlteration in the size of a window (at any rate unless the effect of

[d) (1862), 1 H. & M. 349.

{e) (1865). 2 Dr. & Sra. 355 ; see 11
Jut. N. 8. 719.

[f) Cf. Martin v. Headon (1866), L. R.
2 Eq. 425, at p. 433 ; Statght v. Burn
(1869), L. R. 6 Ch. 163; Aymhy v.
Glover (1876), L. R. 10 Ch. 283; jV>ir-
«o#iy. Finder (IS84), L. R. 27 Ch. Div.
43 ; Scott V. Pape (188o), L. R. 31 Ch.
Dir. 654 ; Smith v. Baxter, [1900] 2 Ch.

138. The decision in Heath t. Buehnail
(1869), L. R. 8 £q. 1, so far as it rests
(if it rests at all) on the view that an
alteration which would not disoDtitle a
dominant owner from claiminfir damages
for obstruction might nevertheletf ^re«
yent him from obtaining an iojanction,
cannot be relied upon: see Staight r.
Bum, ubi sup.

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[the alteration is to decrease the size of the window), whether that Principle of

doctrine be founded on abandonment or on forfeiture. ment by en-

In Colh V. Honie and Colonial Stares, Ltd, (</), the conflicting ^^°*^ ^^^ *

authorities were examined, and it was laid down that in order to CoU*' Case,

constitute an actionable obstruction of ancient Ught it is not enouffh f ^«°* ^^.

, deoroase in

that the light is less than before, but the obstruction must amount size of
to an actionable nuisance. window.

It follows that, since the law has been settled by that decision,
any increase in the size of an ancient window will not increase the
burden on the servient tenement, but on the contrary such increase
will be to the advantage of the servient tenement, in that any
obstruction which would be a nuisance to the window with its
increased capacity for admitting light, would, d fortiori, have been
an obstruction to the ancient window in its original form.

The question which would now appear to arise for consideration
is whether the easement will be lost by the alteration of an ancient
window so as to decrease its size. Since the explosion of the doctrine
that a right to light acquired by prescription confers the right to
all the light passing through the window, and the establishment
of the principle that the obstruction must be such a substantial
interference with the access of the light as to amount to a nuisance,
it is obvious that the position with regard to increasing the burden
on the servient tenement is exactly the opposite to that which it
would have been if the authorities to the effect that the right
acquired was co-extensive with the enjoyment during the period of
prescription had been accurate. Whereas under these authorities
any increase in the size of an ancient window would impose an
additional burden on the servient tenement, under the law as
laid down by Colls^ Case such an increase in size would have the
opposite effect, and an increased burden on the servient tenement
would result from a decrease in the size of the window.

It would seem dear that, after an alteration in an ancient window
whereby its size was decreased, the dominant proprietor would not
be entitled to prevent the erection of buildings which, though
obstructing the altered window, would not, before the alteration,
have caused an illegal obstruction within the rule laid down

iSf) [1904] A. C. 179 ; above, p. 324.

35 (2)

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Principle of [in Colh* Case, This principle was appKed in Ankerson v.
I088 of e"-^

mentbyen- Connelly {h),
croaf-hment. j^ j^q^^ q^q ^^i easement of light had been acquired for the dominant
Effect of de- tenement in respect of windows of small dimensions. The dominant
of window, tenement was very amply lighted by means of light other than
Anker$ony. that which came through the ancient windows. The dominant
^^' proprietor subsequently pulled down the dominant tenement and
re-built in such a way as practically to exclude the whole of the light
other than that coming through the ancient windows. The plaintifEs,
owners of the servient tenement, erected an obstruction which pre-
vented any access of light to the ancient windows, which obstruction
the defendant, the owner of the dominant tenement, pulled down.
The plaintiffs thereupon brought an action against him for a declara-
tion that he was not entitled to any easement over the plaintiffs' land
for light and air. The evidence showed that the effect of the re-
building of the dominant tenement was to destroy at least three-
fourths of the light it had originally enjoyed, so that, as altered, the
obstruction erected by the plaintiffs would most materially interfere
with the access of light to the ancient windows, wherejw before the
re-building it would not have caused such an interference as would,
since the decision in ColW^ Case, have justified an injunction. It
was held that the effect of the re-building was to impose an
increased burden on the servient tenement, and that, it being
impossible to sever the original right from the increased burden,
the easement was lost altogether. In the judgment of Sir GoreU
Barnes, President, the following passage occurs: — "The result,
therefore, is that before these alterations on the dominant tenement
the erection which the plaintiffs put up would not have been a
legal (♦) interference with the rights to light of the dominant
tenement ; and although, as matters now stand, some light would
in fact be cut off by blocking up the space which is left after the
alterations which have been made by the defendant, the alterations
cannot in fact affect the plaintiffs' rights, because they had that
right before to block up to that extent. If once you determine the
fact that the plaintiffs were entitled prior to these alterations to
erect the obstruction to such a height as they did against the
building in question, then, as they have done nothing beyond that
which they were entitled to do, they could not now be enjoined

(A) [1906] 2 Ch. 664 ; [1907] 1 Ch. 678.
(i) Sic ; qy, iUeg'al.

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[from doing it ; and it follows almost logically and as a matter of Prindple of
course, if they have a right to block up this gap which is left and mont by en-
cannotbe restrained from doing it, that what the defendant has in <^'^^^''^^-
fact done is to give up and destroy all rights that he had, because Ankerson v.
after what he has done he cannot claim any right at all." '"^ ^'

Alterations may be made, not only in the size or area of a Alteration of
window, but in its plane and inclination ; and the question, ^^ow.
whether an alteration of this latter kind would suffice to extin-
guish an easement of light, was not concluded by TapUng v.
Jones^ and has been much discussed. It is now settled that
alterations of this kind stand on the same footing as alterations
of size, and do not, unless they are of such a character as
substantially to change the nature of the easement (A), amount to

Thus, in National Provincial Plate Glasit Company v. Prudential ^ionai
Assurance Company (/), it appeared that a building belonging to Fiau Gltus
the plaintiffs, and containing ancient lights on all the floors, had ^J^^^^
recently been pulled down and rebuilt ; and that the old dormer Aiturance Co.
window of three faces, which lighted the ground floor, had been
converted into a skylight partially co-extensive with the old
window, but of a different shape. The defendants having
obstructed the access of light to this skylight, the plaintiffs
brought their action. On the motion for an injunction until the
hearing, Jessel, M. E., while refusing the interlocutory injunction
on the ground that the obstruction was complete before action
brought, expressed his opinion that the easement of light formerly
belonging to the ground floor window had not been lost ; for,
although the plane or direction of the glass had been altered, the
aperture remained substantially the same {m).

On the action coming on for trial. Fry, J., came to the same
conclusion, and awarded damages for the obstruction of the ground
floor window. " It is said that the access of light to the dwelling-
house must be identical, and that the right claimed and the
enjoyment which has existed must be of access of light through
identical apertiures. Now in its breadth that proposition is not

{k) Seebelow, p. 554. but it appeared on the hearing that

(/) (1877), L. K. 6 Cb. D. 767. these windows were not affected by the

(m) His Lordship also thoaght that defendant's building, and the case can-

the windows in the upper floors, which not therefore be regarded as a decision

had been set back about fire feet ei^ht on this point. See and consider the

inches, were no loneer the same win- cases next quoted.

dows 80 as to retain their right to light ;

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Principle of

I088 of ease-

ment by en-


Alteration of
plane of

FlaU OUut



Auttranee Co,

Bamet v.

[true, becaiise the case of Tapling v. Jones has shown that you may
destroy the identical aperture hy taking away the surrounding
lines of that aperture and yet leave your right to light intact.
Furthermore, I find nothing whatever in the statute which refers
expressly to a window or aperture. I find in the statute a refer-
ence to the access of light, and in my view the access of light
might be described as being the freedom with which light may
pass through a certain space over the servient tenement ; and it
appears to me that wherever for the statutory period a given
space over the servient tenement has been used by the dominant
tenement for the purpose of light passing through that space, a
right arises to have that space left free so long as tiie light passing
through it is used for or by the dominant tenement (n). I oome
to that conclusion for this reason : — that you do not want a statute
to give you a right of access in your own premises to light through
your own aperture. The statute is wanted to assure your right in
the space over the servient tenement.

" But then it is said that the cases have to a large extent pro-
ceeded upon the form and size of the aperture or window ; and
that is perfectly true, because of course the opening in the dominant
tenement is the limit which defines the boundaries of the space
over the servient tenement. It is for that reason that in all the
cases the Court has had regard to the aperture in the dominant
tenement by means of which the space over the servient tenement
has been useful to the dominant tenement."

To the same effect is Barnes v. Loach (0), where it appeared
that, on the settlement of a question of boundary, a wall containing
ancient windows had been set back, and windows had been made
in the new wall of the same size and in the same relative positions
as those in the old wall, but in a different plane ; and, on a special
case being stated, a Divisional Court (Cockbom, C. J., and Lopee,
J.) held that the right to light remained.

It was held in the same case that the dominant owner had not,
by erecting a wall and a window in it, outside and at an angle
with an ancient window, lost the easement of light attached to the
ancient window.

(«) Since Colh v. Home and Colonial
Stores, Ltd,, [1904] A. C. 179, expres-
sions to this effect must not be taken
literally, but must be taken to refer to

Online LibraryAlan WeissOur emperors have no clothes → online text (page 64 of 75)