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	England and Wales High Court (King's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (King's Bench Division) Decisions >> Moore v Rawson [1824] EWHC KB J28 (01 January 1824) URL: http://www.bailii.org/ew/cases/EWHC/KB/1824/J28.html Cite as: [1824] EWHC KB J28

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KING'S BENCH

107 ER 756

1824

Before:

Abbott C.J.
Bayley J.
Holroyd J.
Littledale J.

_____________________

Between:

MOORE

-and-

RAWSON

_____________________

Judgment
 


Case for obstructing lights. Plea, not guilty. At the trial before Hullock B., at the last Spring Assizes for the county of Derby, it appeared, that the plaintiff was seised in fee of a messuage and building, with a yard, garden, and appurtenances, situate at Ripley, in that county, in the occupation of a tenant from year to year. The defendant was the owner of other messuages and premises next adjoining the plaintiff's, on the northern side thereof. The plaintiff's messuage was an ancient house, and adjoining to it there had been a building formerly used as a weaver's shop. The old shop had ancient windows, for the convenience of light to the weavers who worked looms there. About seventeen years ago the then owner and occupier of the premises took down the old shop, and erected on the same site a stable, having a blank wall next adjoining to the premises of the present defendant. This building had latterly been used as a wheel-right's shop. About three years ago, and while the plaintiff's premises continued in this state, the defendant erected a building next to the blank wall, and the plaintiff then opened a window in that wall, in the same place where there had formerly been a window in the old wall, and the action was brought for the obstruction of this new window by the building so erected by the defendant. The learned Judge directed the jury to find a verdict for the plaintiff, but reserved liberty to the defendant to move to enter a nonsuit. A rule nisi having been obtained accordingly,

Vaughan Serjt. and N. R. Clarke shewed cause. Every man, prima facie, is entitled to enjoy all the light and air which come to his own land. The enjoyment of lights for twenty years, in a particuler mode, is presumptive evidence of a grant by the owner of the adjoining land of the privilege so to enjoy the light. Here, the former owners of the plaintiff's premises enjoyed the light for that period, they must therefore be taken to have had a grant from some person capable of making it; and that being so, the right which was once vested in the owners of the plaintiff's premises, could not be divested out of them, except by a release of the right so granted to them, or by a non user of the right for such a length of time as would warrant the presumption of a release. If, therefore, there had been a non-user for twenty years, a release might be presumed, but a non-user for a less period does not warrant such a presumption. In Lethbridge v. Winter (1 Campb. 263), a gate had been erected in a place where a similar gate had formerly stood, but where, for the twelve years preceding, there had been none. It was contended for the defendant, that from suffering the gate to be down so long, and permitting the public to use the way without obstruction for so many years, the plaintiff, and those under whom he claimed, must be considered as having completely dedicated the way to the public, and that the gate could not be replaced. The plaintiff recovered a verdict, and the Court of King's Bench refused to grant a rule nisi to set it aside. This is an authority to shew, that a party does not lose his rights by a mere non user for twelve years.

Denman and Reader, contra. Light, air, and water are prima facie publici juris, but individuals may acquire a right to them by occupancy or enjoyment, and if the right is acquired by enjoyment, it may also be lost by a discontinuance of it. The period of enjoyment necessary to give an individual an exclusive right to enjoy light, air, and water, is fixed by the municipal law of the country, and, by the law of England, that period is twenty years, but as the right is acquired by enjoyment, it may be lost by non user, unless the party who has appropriated to himself the light, air, or water, at the time when he discontinues the use, does some act to indicate to others his intention to resume it within a reasonable time. Here, the plaintiff or the former owner of his premises did no act of that kind. On the contrary, the erecting of the blank wall on the site of that which formerly had the windows, indicated an intention not to resume the enjoyment of the light in the mode in which they formerly had it. It is true, that twenty years being the fixed period necessary to give an exclusive right to enjoy the light in a particular mode derogatory to the rights of others, it has been usual to direct juries in such cases to presume that such right has been transferred to the owner of the property who has so enjoyed it, by the owner of the adjoining land, by an instrument adapted to convey such right. Now the right to the light being incident to the land itself, the right to enjoy in a particular mode a portion of the light which prima facie belongs to the owner of the adjoining land, and which he may appropriate to his own use, is an easement annexed to the land, and must be transferred by deed. In ordinary cases, where the enjoyment of the light in the particular mode has continued down to the very time of the obstruction complained of, it has been usual to presume a deed of grant from the person who had the fee simple of the adjoining land, such a deed alone being consistent with the facts of the case. But the facts of this case do not make it necessary to presume that there was any such grant. It is consistent with those facts that the owner of the land adjoining the plaintiff's may have entered into a covenant with the former owners, to allow them, or those deriving title under them, the enjoyment of the light in the mode in which it had been formerly enjoyed for a term of years, determining at the time when the former owner of the plaintiffs premises built the blank wall. Such a deed is consistent with the enjoyment proved, and the jury ought not to be directed to presume any other deed than that which is necessary to account for the enjoyment. In Barker v. Bichlardson (4 B. & A. 579), where lights had been enjoyed for more than twenty years, contiguous to land which within that period had been glebe land, but was conveyed to a purchaser under 55 G. 3, c. 147, it was held, that no valid grant could be presumed, inasmuch as the rector, who was mere tenant for life, could not grant the easement.

Abbott C.J. I am of opinion that the plaintiff is not entitled to maintain this action. It appears that many years ago the former owner of his premises had the enjoyment of light and air by means of certain windows in a wall of his house. Upon the site of this wall he built a blank wall without any windows. Things continued in this state for seventeen years. The defendant, in the interim, erected a building opposite the plaintiff's blank wall, and then the plaintiff opened a window in that which had continued for so long a period a blank wall without windows, and he now complains that that window is darkened by the buildings which the defendant so erected. It seems to me that, if a person entitled to ancient lights pulls down his house and erects a blank wall in the place of a wall in which there had been windows, and suffers that blank wall to remain for a considerable period of time, it lies upon him at least to shew, that at the time when he so erected the blank wall, and thus apparently abandoned the windows which gave light and air to the house, that was not a perpetual, but a temporary abandonment of the enjoyment; and that he intended to resume the enjoyment of those advantages within a reasonable period of time. I think that the burthen of shewing that lies on the party who has discontinued the use of the light. By building the blank wall, he may have induced another person to become the purchaser of the adjoining ground for building purposes, and it would be most unjust that he should afterwards prevent such a person from carrying those purposes into effect. For these reasons I am of opinion, that the rule for a nonsuit must be made absolute.

Bayley J. The right to light, air, or water, is acquired by enjoyment, and will, as it seems to me, continue so long as the party either continues that enjoyment or shews an intention to continue it. In this case the former owner of the plaintiff's premises had acquired a right to the enjoyment of the light; but he chose to relinquish that enjoyment, and to erect a blank wall instead of one in which there were formerly windows. At that time he ceased to enjoy the light in the mode in which he had used to do, and his right ceased with it. Suppose that, instead of doing that, he had pulled down the house and buildings, and converted the land into a garden, and continued so to use it for a period of seventeen years; and another person had been induced by such conduct to buy the adjoining ground for the purposes of building. It would be most unjust to allow the person who had so converted his land into garden ground, to prevent the other from building upon the adjoining land which he had, under such circumstances, been induced to purchase for that purpose. I think that, according to the doctrine of modern times, we must consider the enjoyment as giving the right; and that it is a wholesome and wise qualification of that rule to say, that the ceasing to enjoy destroys the right, unless at the time when the party discontinues the enjoyment he does some act to show that he means to resume it within a reasonable time.

Holroyd J. I am of the same opinion. It appears that the former owner of the plaintiff's premises at one time was entitled to the house with the windows, so that the light coming to those windows over the adjoining land could not be obstructed by the owner of that land. I think, however, that the right acquired by the enjoyment of the light, continued no longer than the existence of the thing itself in respect of which the party had the right of enjoyment; I mean the house with the windows; when the house and the windows were destroyed by his own act, the right which he had in respect of them was also extinguished. 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 shew 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 prima facie cease. If he shew an intention to build another mill or another house, his right continues. But if he pulls down the house or the mill without shewing 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. In this case, I think, the building of a blank wall is a stronger circumstance to shew 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 shew 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 shewing 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 shewn 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. It is said, however, that as he can only acquire the right by twenty years' enjoyment, it ought not to be lost without disuse for the same period; and that as enjoyment for such a length of time is necessary to found a presumption of a grant, there must be a similar non-user, to raise a presumption of a release. And this reasoning, perhaps, may apply to a right of common or of way. But there is a material difference between the mode of acquiring such rights and a right to light and air. The latter is acquired by mere occupancy; the former can only be acquired by user, accompanied with the consent of the owner of the land; for a way over the lands of another can only be lawfully used, in the first instance, with the consent, express or implied, of the owner. A party using the way without such consent would be a wrong doer; but when such a user, without interruption, has continued for twenty years, the consent of the owner is not only implied during that period, but a grant of the easement is presumed to have taken place before the user commenced. The consent of the owner of the land was necessary, however, to make the user of the way (from which the presumption of the grant is to arise) lawful in the first instance. But it is otherwise as to light and air. Every man on his own land has a right to all the light and air which will come to him, and he may erect, even on the extremity of his land, buildings with as many windows as he pleases. In order to make it lawful for him to appropriate to himself the use of the light, he does not require any consent from the owner of the adjoining land. He therefore begins to acquire the right to the enjoyment of the light by mere occupancy. After he has erected his building the owner of the adjoining land may, afterwards, within twenty years, build upon his own land, and so obstruct the light which would otherwise pass to the building of his neighbour. But if the light be suffered to pass without interruption during that period to the building so erected, the law implies, from the non-obstruction of the light for that length of time, that the owner of the adjoining land has consented that the person who has erected the building upon his land shall continue to enjoy the light without obstruction, so long as he shall continue the specific mode of enjoyment which he had been used to have during that period. It does not, indeed, imply that the consent is given by way of grant; for although a right of common (except as to common appendant) or a right of way, being a privilege of something positive to be done or used in the soil of another man's land, may be the subject of legal grant, yet light and air, not being to be used in the soil of the land of another, are not the subject of actual grant; but the right to insist upon the non-obstruction and non-interruption of them more properly arises by a covenant which the law would imply not to interrupt the free use of the light and air. The right, therefore, is acquired by mere occupancy, and ought to cease when the person who so acquired it discontinues the occupancy. If, therefore, as in this case, the party who has acquired the right once ceases to make use of the light and air which he had appropriated to his own use, without shewing any intention to resume the enjoyment, he must be taken to have abandoned the right. I am of opinion, that as the right is acquired by mere user, it may be lost by non-user. It would be most inconvenient to hold, that the property in light and air, which is acquired by occupancy, can only be lost where there has been an abandonment of the right for twenty years. I think, that if a party does any act to shew 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 rebuilding 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 shew 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 blank wall instead of that in which the ancient windows were; for he then indicated an intention never to resume that enjoyment of the light which he once had. Under those circumstances, I think that the temporary disuse was a complete abandonment of the right.

Rule absolute.