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Cite as:  AC 179,  UKHL 1
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HOUSE OF LORDS
HOUSE OF LORDS
|- v -
|HOME AND COLONIAL STORES,
My Lords, in this case,
which was tried before Joyce J., the learned judge gave judgment
for the defendant upon the ground that the plaintiffs had
failed to prove any actionable wrong although he found that
the erection of the buildings of which the plaintiffs complained
had appreciably diminished the light which the plaintiffs had
The Court of Appeal, as I understand their judgment, thought this was wrong, and ordered a mandatory injunction to pull the premises down, so as to restore all the light that had been previously enjoyed. If this principle should be sanctioned by your Lordships it would be for the first time that, in this House at all events, such a principle had been determined. I do not deny that authorities may be found for it, some of which have been cited at the bar, but I do not think that the exact question which is now in debate has ever been brought before this House until now.
The question may be very simply stated thus: after an enjoyment of light for twenty years, or if the question arose before the Act for such a period as would justify the presumption of a lost grant, would the owner of the tenement in respect of which such enjoyment had been possessed be entitled to all the light without any diminution whatsoever at the end of such a period?
My Lords, if that were the law it would be very far-reaching in its consequences, and the application of it to its strict logical conclusion would render it almost impossible for towns to grow, and would formidably restrict the rights of people to utilise their own land. Strictly applied, it would undoubtedly prevent many buildings which have hitherto been admitted to be too far removed from others to be actionable, but if the broad proposition which underlies the judgment of the Court of Appeal be true, it is not a question of 45 degrees, but any appreciable diminution of light which has been enjoyed (that is to say, has existed uninterruptedly for twenty years) constitutes a right of action, and gives a right to the proprietor of a tenement that has had this enjoyment to prevent his neighbour building on his own land.
My Lords, I do not think this is the law. The argument seems to me to rest upon a false analogy, as though the access to and enjoyment of light constituted a sort of proprietary right in the light itself. Light, like air, is the common property of all, or, to speak more accurately, it is the common right of all to enjoy it, but it is the exclusive property of none. If the same proposition against which I am protesting could be maintained in respect of air the progressive building of any town would be impossible. The access of air is undoubtedly interfered with by the buildings which are being built every day round London. The difference between the town and country is very appreciable to the dweller in cities when he goes to the open country, or to the top of a mountain, or even a small hill in the country; but would the possessor for twenty years of a house on the edge of a town be at liberty to restrain his neighbour from building near him because he had enjoyed the free access of air without buildings near him for twenty years? No doubt this is an extreme case, but it is one of the extreme cases which tries the principle. The truth is that though there were objections to ask a jury whether the enjoyment talis qualis was such that they might presume a lost grant when nobody supposed that such a grant was ever really made, yet it gave the opportunity of considering what was the extent of the supposed grant, and, if anything so extreme as I have just supposed were claimed, no jurymen in their senses would have affirmed such a grant. The statute upon which reliance is placed in this case illustrates the danger of attempting to put a principle of law into the iron framework of a statute. The statute literally construed by the use of the words " the light" would mean all the light which for twenty years has existed in the surroundings of the tenement which has enjoyed it; yet, singularly enough, there has been a complete uniformity of decision upon the construction of the statute that it has made no difference in the right conferred, but is only concerned with the mode of proof; but, though I quite concur with this construction, which is supported by an overwhelming body of authority, yet I cannot but think the language of the statute has led to some of the decisions which your Lordships are now called upon to review.
Certainly, in the older decisions which have been brought to your Lordships' notice in Mr. Bray's very able argument, the proposition which, as I have said, underlies the judgment now under appeal, finds no place.
Lord Hardwicke, long ago in 1752 - Fishmongers' Co. v. East India Co.(1) - dealing with this very question, the alleged obstruction to light, laid down what I believe to be law to-day. "It is not sufficient," he said, "to say that it will alter the plaintiffs' lights, for then no vacant piece of ground could be built on in the city, and here there will be seventeen feet distance, and the law says it must be so near as to be a nuisance."
Lord Cranworth, in Clarke v. Clark(2), adopted the same test, and his observation, though a subsequent decision of his seemed to throw doubt upon it, has received the assent of some of the most learned judges who ever sat upon the English Bench.
I think that the whole subject has been confused by certain decisions which were dependent on the facts proved, and were incautiously reported as laying down principles of law, when they were, in my view, only intended to be findings of fact in that particular case. At all events, I am prepared to hold that the test given by Lord Hardwicke is the true one, and I do not think a better example could be found than the present case to shew to what extravagant results the other theory leads. The owner of a tenement on one side of a street forty feet wide seeks to restrain his opposite neighbour from erecting a room which, when erected, will not then be of the same height as the house belonging to the complaining neighbour, and the only plausible ground on which the complaint rests is that on the ground floor he has a room not built in the ordinary way of rooms in an ordinary dwelling-house, but built so that one long room goes through the whole width of the house to a back wall, a room which has no window at the back or sides, and which was, therefore, at the back of it, too dark for some purposes without the use of artificial light even before the building on the other side of the street was erected.
I think that no tribunal ought to find as a fact that the building is a nuisance, and, altogether apart from the inappropriateness of the remedy by injunction, I am of opinion that the plaintiffs have no cause of action against the defendant. The
test of the right is, I think, whether the obstruction complained of is a nuisance, and, as it appears to me, the value of the test makes the amount of right acquired depend upon the surroundings and circumstances of light coming from other sources, as well as the question of the proximity of the premises complained of. What may be called 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 becomes a question of degree, and the question is in each case whether it amounts to a nuisance which will give a right of action.
My Lords, I have not thought it necessary to enter into a discussion of the authorities, because I think it has been most carefully and accurately done by Wright J. in Warren v. Brown.(1)
Of course, my Lords, it must be taken that the foundation of this judgment rests upon the finding of fact by Joyce J., that the buildings of the defendant had not so materially interfered with the light previously enjoyed by the plaintiffs as to amount to a nuisance.
It follows that, in my judgment, the case of Warren v. Brown(1) was rightly decided by Wright J. and ought to have been affirmed by the Court of Appeal. It was, however, reversed(2) in accordance with the same views which guided that Court in the case now under review.
For the reasons I have given I have to move your Lordships that the judgment of the Court of Appeal be reversed, and the judgment of Joyce J. restored, and that the respondents do pay to the appellant the costs both here and below.
It is nothing more or less than the right to prevent the owner or occupier of an adjoining tenement from building or placing on his own land anything which has the effect of illegally obstructing or obscuring the light of the dominant tenement. This right in early times was vindicated by an action on the case for nuisance - Baten's Case(1) - in which damages might be recovered and judgment had for removal or abatement of the nuisance. In Aldred's Case(2) Lord Coke says that an action lies for nuisance done to light as one of the three essential requisites of habitation. "An action lies," he says, "for hindrance of the light, for the ancient form of the action was significant, sc. - quod messuagium horridâ tenebritate obscuratum fuit." It was not every diminution of light that would support such an action. The form of the action itself shews that. In later times, when an action for the protection of ancient lights came to be regarded rather as an action for disturbance of an easement than an action grounded on nuisance - as an action to prevent the infringement of a right rather than an action to redress a wrong - the necessity of shewing the gravity of the injury complained of was not so obviously apparent. Still the principle was the same, and it must always be the same. "It is not sufficient," as Lord Hardwicke observed in Fishmongers' Co. v. East India Co.(3)"to say it will alter the plaintiffs' lights. … The law says it must be so near as to be a nuisance."
Probably the most satisfactory statement of the rule to be applied in all cases of ancient lights is to be found in Back v. Stacey(4) and Parker v. Smith.(5) Back v. Stacey(4) was an issue directed by the Lord Chancellor to try two questions: (1.) whether the ancient lights of the plaintiff in his dwelling-house in Norwich had been "illegally" obstructed by a building of the defendant, and (2.) if so, what damage the plaintiff had sustained in respect of the injury. So that if the jury had found that the obstruction complained of was an illegal obstruction the damages would have gone to the whole of the
injury, and not merely to the loss sustained up to the date of the writ. It was contended there that, as it was evident that the quantity of light previously enjoyed had been diminished, the plaintiff was at any rate entitled to a verdict on the first issue, any obstruction of ancient lights being illegal. But according to the report, "Chief Justice Best told the jury, who had viewed the premises, that they were to judge rather from their own ocular observation than from the testimony of any witnesses, however respectable, of the degree of diminution which the plaintiff's ancient lights had undergone. It was not sufficient to constitute an illegal obstruction, that the plaintiff had, in fact, less light than before; nor that his warehouse, the part of his house principally affected, could not be used for all the purposes to which it might otherwise have been applied. In order to give a right of action, and sustain the issue, there must be a substantial privation of light, sufficient to render the occupation of the house uncomfortable, and to prevent the plaintiff from carrying on his accustomed business (that of a grocer) on the premises as beneficially as he had formerly done. His Lordship added that it might be difficult to draw the line, but the jury must distinguish between a partial inconvenience and a real injury to the plaintiff in the enjoyment of the premises."
Back v. Stacey(1) was determined in 1826. Parker v. Smith(2) was heard during the sittings after Michaelmas Term, 1832. It is, I think, the earliest reported case dealing with the question of light after the passing of the Prescription Act, which came into operation on the first day of Michaelmas Term, 1832. It was tried before Tindal C.J. The marginal note states accurately, I think, the effect of the decision in these words: "That diminution of light and air which the law recognises as the ground of an action against a party who builds near another's premises is such as really makes them to a sensible degree less fit for the purposes of business or occupation." It does not seem to have been suggested either by the counsel or the judge that the Prescription Act had
made the slightest alteration in the nature of the right to light or the principle on which the question of an alleged infringement of that right ought to be determined.
To these two cases I would only add the case of Wells v. Ody(1) before Parke B. in 1836. In his charge to the jury the learned judge said that he entirely adopted the law as laid down by Tindal C.J. in Parker v. Smith.(2) And then, after reading a passage from Parker v. Smith(2), he concluded his address to the jury by saying: "The question, therefore, which I shall leave to you is whether the effect of the defendant's building is to diminish the light and air so as sensibly to affect the occupation of the plaintiff's premises and make them less fit for occupation." So much for the right at law.
Courts of Equity had no original jurisdiction in the matter. Their province was simply to grant an injunction in aid of the legal right where there was danger of irreparable mischief, or where an injunction was required to prevent multiplicity of actions. Under Lord Cairns' Act (21 & 22 Vict. c. 27) the Court was empowered, in all cases in which it had jurisdiction to entertain an application for an injunction against the commission or continuance of any wrongful act, to award damages to the party injured, either in addition to or in substitution for such injunction. The Act commonly known as Sir John Rolt's Act (25 & 26 Vict. c. 42) provided that in all cases in which any relief or remedy within the jurisdiction of the Court of Chancery was sought, whether the title to such relief or remedy was or was not incident to or dependent upon a legal right, every question of law or fact cognisable in a Court of Common Law on the determination of which the title to such relief or remedy depended should be determined by or before the same Court. These Acts are superseded by the Judicature Act, and now the High Court has all the jurisdiction of the Court of Chancery and of the several Courts of law. But still, so far as the right in question is a legal right, the Court in the exercise of its jurisdiction must be guided by the principles established at law. And those principles, in my opinion, are
still to be found most clearly and most concisely exhibited in the cases before Best C.J. and Tindal C.J. to which I have already referred.
Although the question thus stated appears tolerably simple, it cannot be disputed that the reported cases on questions of light in recent times are not altogether consistent. There seem to be two divergent views, neither of which, I think, is absolutely accurate. The extreme view on one side is that the right which is acquired by so-called statutory prescription is a right to a continuance of the whole or substantially the whole quantity of light which has come to the windows during a period of twenty years. This view is conspicuous in Calcraft v. Thompson(1), before Lord Chelmsford L.C., and in Scott v. Pape(2), where Cotton L.J. speaks of a "cone of light" and Bowen L.J. of "a specific quantity of light" as a measure of the plaintiff's right. The extreme view on the other side is that the right is limited to a sufficient quantity of light for ordinary purposes.
I think this divergence of view comes from a difference of opinion, consciously or unconsciously entertained, as to the meaning and effect of the provisions of the Prescription Act (2 & 3 Will. 4, c. 71), and, if I am not mistaken, it may be traced to certain expressions, not perhaps sufficiently guarded, which are to be found in judgments delivered in this House in the case of Tapling v. Jones.(3) In that case Lord Westbury, Lord Cranworth, and Lord Chelmsford all assume that a period of twenty years' enjoyment of the access and use of light to a building creates an absolute and indefeasible right immediately on the expiration of the period of twenty years. No doubt s. 3 says so in terms, but s. 4 must be read in connection with s. 3; and if the two sections are read together, it will be seen that the period is not a period in gross, but a period next before some suit or action wherein the claim or matter to which such period may relate shall have been or shall be brought into question. Unless and until the claim or matter is thus brought into question, no absolute or indefeasible
right can arise under the Act. There is what has been described as an inchoate right. The owner of the dominant tenement after twenty years' uninterrupted enjoyment is in a position to avail himself of the Act if his claim is brought into question. But in the meantime, however long the enjoyment may have been, his right is just the same, and the origin of his right is just the same as if the Act had never been passed. No title is as yet acquired under the Act. This point seems to have been much discussed shortly after the Act was passed. It was finally settled in a series of cases at common law, beginning, I think, with Wright v. Williams(1), and including Richards v. Fry(2) and Cooper v. Hubbuck(3), in which there is an interesting controversy between Willes J. and Williams L.J. on the question whether the twenty years' uninterrupted enjoyment under the 3rd section is the period of twenty years before any suit or action, or twenty years before each suit or action in which the point may from time to time arise. The former construction, in which Erle C.J. and Byles J. concurred with Willes J., eventually prevailed.
The question is of little or no practical importance. But the construction established by the series of decisions to which I have referred, in accordance with the express language of the statute, goes, I think, a long way to shew that the view taken by James L.J., Mellish L.J., and Lord Selborne as to the effect of the Act is absolutely correct, and that the qualification suggested by Bowen L.J. in Scott v. Pape(4) is not well founded. It certainly would be strange if the Court had been compelled to hold that the Prescription Act confers on a person whose right is questionable at least to this extent, that it has been actually brought into question, a higher and a larger right than that possessed by a person whose prescriptive claim to the enjoyment of light is so clear as to be beyond all question. The Act neither enlarges the right of the dominant tenement nor adds to the burthen of the servient tenement. Its effect is simply this: when the access and use of the light have been enjoyed for the full period which before the Act
was supposed to be sufficient to support a prescriptive claim and the right is then brought into question, it avoids and extinguishes every adverse plea not founded upon an agreement or consent in writing.
Now, if this be so, it seems to me, in accordance with the opinion expressed by James L.J. and Brett L.J. in Ecclesiastical Commissioners v. Kino(1), and by many other judges, that the direction given by Best C.J. in Back v. Stacey(2) is the direction which a Court exercising the functions of both judge and jury ought to keep steadily in view.
My Lords, having come to this conclusion, I do not propose to trouble your Lordships with any comments upon the mass of cases by which, in comparatively modern times, the question has been elucidated or obscured. It is enough, I think, to refer to what was said in Kelk v. Pearson(3), City of London Brewery Co. v. Tennant(4), and Ecclesiastical Commissioners v. Kino.(1) Speaking for myself, I doubt very much whether it is a profitable task to retry actions which depend simply on questions of fact, or to review and endeavour to reconcile or distinguish a number of cases that naturally enough contain some statements which, taken by themselves and apart from the context, may seem to be contradictory, but which must all proceed upon the same principle. It would only be another link in the embarrassing chain of authority, or, if I may venture to say so, only another handful of dust to be cast into one scale or the other when the claims of opposing litigants come to be weighed in the balance. I think there is much good sense in the observations of Brett L.J. in Ecclesiastical Commissioners v. Kino.(1) "To my mind," said his Lordship, "the taking of some expression of a judge used in deciding a question of fact as to his own view of some one fact being material on a particular occasion as laying down a rule of conduct for other judges in considering a similar state of facts in another case, is a false mode of treating authority. It appears to me that the view of a learned judge in a particular case as
to the value of a particular piece of evidence is of no use to other judges who have to determine a similar question of fact in other cases where there may be many different circumstances to be taken into consideration."
If I may trespass for a few minutes longer on your Lordships' attention, I would rather spend the time in making one or two practical suggestions. I do not put them forward as carrying any authority. But they may possibly be of use to those who have to try such questions as this, if and so far as they appear to be consistent with good sense.
It will be observed that in Back v. Stacey(1) the learned judge told the jury who had viewed the premises that they were to judge rather from their own ocular observation than from the testimony of any witnesses, however respectable, of the degree of diminution which the plaintiff's ancient light had undergone. Now a judge who exercises the functions of both judge and jury cannot be expected to view the premises himself, even if he considers himself an expert in such matters. But I have often wondered why the Court does not more frequently avail itself of the power of calling in a competent adviser to report to the Court upon the question. There are plenty of experienced surveyors accustomed to deal with large properties in London who might be trusted to make a perfectly fair and impartial report, subject, of course, to examination in Court if required. I am not in the least surprised that the plaintiffs in the present case objected to a report from a disinterested surveyor, but in my opinion the Court ought to have obtained such a report for its own guidance.
Then, with regard to giving damages in addition to or substitution for an injunction - that, no doubt, is a delicate matter. It is a matter for the discretion of the Court, and the discretion is a judicial discretion. It has been said that an injunction ought to be granted when substantial damages would be given at law. I have some difficulty in following out this rule. I observe that in some cases juries have been directed to give 1 s. damages as a notice to the defendant to remove the obstruction complained of. And then, if the obstruction was not removed,
in a subsequent action the damages were largely increased. In others a substantial sum has been awarded, to be reduced to nominal damages on removal of the obstruction. But the recovery of damages, whatever the amount may be, indicates a violation of right, and in former times, unless there were something special in the case, would have entitled the plaintiff as of course to an injunction in equity. I rather doubt whether the amount of the damages which may be supposed to be recoverable at law affords a satisfactory test. In some cases, of course, an injunction is necessary - if, for instance, the injury cannot fairly be compensated by money - if the defendant has acted in a high-handed manner - if he has endeavoured to steal a march upon the plaintiff or to evade the jurisdiction of the Court. In all these cases an injunction is necessary, in order to do justice to the plaintiff and as a warning to others. But if there is really a question as to whether the obstruction is legal or not, and if the defendant has acted fairly and not in an unneighbourly spirit, I am disposed to think that the Court ought to incline to damages rather than to an injunction. It is quite true that a man ought not to be compelled to part with his property against his will, or to have the value of his property diminished, without an Act of Parliament. On the other hand, the Court ought to be very careful not to allow an action for the protection of ancient lights to be used as a means of extorting money. Often a person who is engaged in a large building scheme has to pay money right and left in order to avoid litigation, which will put him to even greater expense by delaying his proceedings. As far as my own experience goes, there is quite as much oppression on the part of those who invoke the assistance of the Court to protect some ancient lights, which they have never before considered of any great value, as there is on the part of those who are improving the neighbourhood by the erection of buildings that must necessarily to some extent interfere with the light of adjoining premises.
The common form of injunction which has been in use since the case of Yates v. Jack(1) is not, I think, altogether free
from objection. I think it would be better that the order, when expressed in general terms, should restrain the defendant from erecting any building so as to cause a nuisance or illegal obstruction to the plaintiff's ancient windows, as the same existed previously to the taking down of the house which formerly stood on the site of the defendants' new buildings. If the action is brought to a hearing before the defendants' new buildings are completed, and there seems to be good ground for the plaintiff's apprehensions, an order, I think, might be conveniently made in that form with costs up to the hearing, and liberty to the plaintiff within a fixed time after completion to apply for further relief by way of mandatory injunction or damages, as he may be advised.
With the present case I may deal very briefly. It cannot be disputed that some diminution of light is caused by the defendants' buildings; but such as it is, I think, it is exactly what Best C.J. described as partial inconvenience rather than serious injury. I am satisfied that if the case had been tried at law, before the question was so much embarrassed by the multiplicity of decisions, no jury would have given any damages.
Perhaps I ought to add a word about Warren v. Brown(1),which is referred to in both the judgments below. I cannot say that that case is quite satisfactory to my mind either as dealt with in the Court of first instance or in the Court of Appeal. In the Court of first instance the learned judge who tried the case found a special verdict which is not very easy to understand. The room in which the light has been materially diminished "in its present state is," he says, "better lighted than the ground-floor front rooms in many of the principal streets." I do not see what bearing that fact had on the question at issue. Then, instead of keeping in view the direction which judges over and over again have said ought to be kept in view, the learned judge embarks on an inquiry to determine which of two extreme views is correct. I doubt whether either the one or the other can be accepted as a safe guide without qualification. The Court of Appeal, in their turn, instead of
dealing with the facts of the case before them, combat a particular view which, rightly or wrongly, they attribute to Wright J. I do not think Warren v. Brown(1) helps one much.
I think the appeal ought to be allowed with costs here and below.
are entitled to the full amount of light now enjoyed without appreciable diminution, the plaintiffs would have a good cause of action upon the erection of the defendant's building, though it might perhaps be doubted whether the diminution that would be caused by the defendant's building if and when erected is sufficiently serious to entitle the plaintiffs to an injunction."
On these findings the learned judge, following the judgment of Wright J. in Warren v. Brown(1), which had not then been reversed by the Court of Appeal, held that the action failed and must be dismissed. The Court of Appeal reversed this judgment. The legal grounds of their judgment are contained in a single sentence. "If ancient lights," says Cozens-Hardy L.J., "are interfered with substantially, and real damage thereby ensues to tenant or owner, then that tenant or owner is entitled to relief." By the expression "interfered with substantially" I understand the Lord Justice to mean, "if the amount of light having access to the premises by means of the ancient lights is substantially diminished." This proposition appears to me to assume or imply that the owner of the dominant tenement is entitled to have the full amount of light which has gained access to the tenement by the ancient windows during the previous twenty years maintained without substantial diminution. The "real damage" may be occasioned by an alteration in the internal structure of the dominant tenement which has been made within the period of twenty years, or its adaptation within that period to some special use for which an extraordinary amount of light is required; but nevertheless, if the proposition be sound, the owner or occupier of the tenement is entitled to be protected in the enjoyment of the light required for his altered premises or for the special use to which he has put them. In perfect consistency with this view of the law, Vaughan Williams L.J. expressed a doubt whether the rule of 45 degrees can any longer be applied even as a rough measure.
The question for your Lordships to determine is whether this view of the law is correct, or, in other words, what is the true nature and extent in English law of the easement of light.
It must be regretfully admitted that the numerous decisions on this subject in the Courts are not easily reconcilable, and are not infrequently contradictory. No judgment of this House has been referred to, except that in the case of Tapling v. Jones(1), the decision in which does not directly affect the point now before your Lordships. I do not propose to travel through the long catena of authorities. They were copiously referred to at the bar, and the principal cases are stated and carefully analyzed in the judgment of Wright J. in Warren v. Brown.(2)
My Lords, you will find that in the earlier authorities the obscuration of light to a tenement having ancient lights is dealt with on the footing of a nuisance. In Aldred's Case(3)the "hindrance of light" is treated in the same category as the nuisance of fouling the air by pigstyes. In Fishmongers' Co. v. East India Co.(4) Lord Hardwicke said: "As to the question whether the plaintiffs' messuage is an ancient building so as to entitle them to the right of the lights, and whether the plaintiffs' lights will be darkened, I will not determine it here, for if it clearly appeared that what the defendants are doing is what the law considers as a nuisance, I would put it in a way to be tried. … But I am of opinion that it is not a nuisance contrary to law, for it is not sufficient to say it will alter the plaintiffs' lights, for then no vacant piece of ground could be built on in the City, and here there will be seventeen feet distance, and the law says it must be so near as to be a nuisance. It is true the value of the plaintiffs' house may be reduced by rendering the prospect less pleasant, but that is no reason to hinder a man from building on his own ground."
Consistent with this view is the direction of Best C.J. to the jury in the case of Back v. Stacey(5), which it is not necessary for me to quote at length. In Clarke v. Clark(6) Lord Cranworth stated the question thus: "Whether the obstruction is such as to deprive the party of such a supply of light as he might reasonably calculate on enjoying." After saying
that the plaintiff's rooms were rendered less cheerful, he adds: "But I cannot think that this is such an obstruction of light as to amount to a nuisance. … What the plaintiff is bound to shew is that the buildings cause such an obstruction of light as to interfere with the ordinary occupations of life." In Robson v. Whittingham(1), decided in the following year, Knight Bruce and Turner L.JJ. expressed themselves as entirely satisfied with Lord Cranworth's judgment, and Turner L.J. accentuated his approval by saying that he thought this class of cases had been carried too far before the decision in Clarke v. Clark(2) was pronounced. Nothing that I can say will add to the respect and authority which the opinions of those two learned and experienced judges must command with your Lordships.
It has been thought that the 3rd section of the Prescription Act (2 & 3 Will. 4, c. 71) altered substantially the previously existing law as to ancient lights, and had the effect of conferring on the owner of the dominant tenement, by twenty years' enjoyment, an absolute and indefeasible right to the full amount of the light enjoyed during that period. And it must be admitted that the language of the section lends some plausibility to that opinion. It is, however, not consistent with the language of Lord Cranworth in Clarke v. Clark(2),and the point was expressly determined by James and Mellish L.JJ. in Kelk v. Pearson(3), decided by them in the year 1871.
James L.J. there says: "I am of opinion that the statute has in no degree whatever altered the pre-existing law as to the nature and extent of this right. The nature and extent of the right before that statute was to have that amount of light through the windows of a house which was sufficient according to the ordinary notions of mankind, for the comfortable use and enjoyment of that house as a dwelling-house, or for the beneficial use and occupation of the house if it were a warehouse, shop, or other place of business. That was the extent of the easement, a right to prevent your neighbour
from building on his land so as to obstruct the access of sufficient light and air to such an extent as to render the house substantially less comfortable and convenient." The statute, in fact, has only altered the conditions or length of user by which the right may be acquired, but not the nature of the right.
In the case of the City of London Brewery Co. v. Tennant(1),Lord Selborne expressed his complete adherence to the view of the law taken in the case of Kelk v. Pearson(2), "correcting some impressions which might have arisen from the language used in former cases by some learned judges." This doctrine, however, has not been unchallenged. In an Irish case of Mackey v. Scottish Widows' Society(3), decided in 1877, Christian L.J. criticized in vigorous language the judgments of James L.J. and Lord Selborne, and held that the right is to an average maximum of the light which nature has been shedding upon the window for twenty years before the defendant interrupted it. It is also difficult to reconcile the language used by Cotton and Bowen L.JJ. in the case of Scott v. Pape(4), or the language of the Queen's Bench judges in Moore v. Hall(5),with the decision in Kelk v. Pearson(2) and City of London Brewery Co. v. Tennant(1), though the authority of those cases was not in terms questioned by them.
My Lords, I regard the decisions in Kelk v. Pearson(2) and the City of London Brewery Co. v. Tennant(1) as complementary to, and on the same lines with, Lord Cranworth's judgment in Clarke v. Clark.(6) And so regarding it, I entirely approve of it. Romer L.J., however, in delivering the judgment of the Court in Warren v. Brown(7) seems to have taken a different view of the effect of Kelk v. Pearson.(2) He says: "Since Kelk v. Pearson(2) it is impossible to hold properly that the statutory right is not interfered with merely because after the interference the house comes up to a supposed standard as to what a house ordinarily requires by way of light
for purposes of inhabitancy or business," and he quotes some words used by Mellish L.J. at p. 814 of the report.
I must remark that the particular point which was under discussion in Warren v. Brown(1), and in another form in the present case, was not before the Court in Kelk v. Pearson.(2)There was no question there of a claim for protection in the use of an extraordinary amount of light required for some special purpose, or required by some unusual peculiarity in the internal structure of the building. And I regard what was said by Mellish L.J. as directed to the arguments addressed to the Court in that case. According to any standard short of holding that the right is to all the light which has come through the window, the right to light has a ragged edge to it, and it is impossible to assert that any man has a right to a fixed amount of light ascertainable by metes and bounds. I do not think that Mellish L.J. intended to differ from James L.J., and in the City of London Brewery Co. v. Tennant(3), when James L.J. repeated the substance of what he had said in the earlier case, Mellish L.J., according to the report, contented himself with a simple concurrence.
My Lords, I must trespass on your indulgence for a few moments by adverting to an impression which has been entertained by some distinguished judges, and was the subject of argument at the bar, to the effect that within the space of a few months Lord Cranworth overruled himself. The judgment in Clarke v. Clark(4) was delivered on November 25, 1865, and that in Yates v. Jack(5) was delivered on March 24, 1866. It was thought by Lord Chelmsford in Calcraft v. Thompson(6) that the effect of the later case was to hold the dominant tenement entitled to the whole light that had previously been enjoyed, and Wood V.-C. in Dent v. Auction Mart Co.(7) to a certain extent shared the same impression. There is not a hint in the judgment in Yates v. Jack(5)which indicates that Lord Cranworth thought he was departing
from the law as laid down in his earlier judgment. Both cases were decided and probably reported before Robson v. Whittingham(1); but the Lord Justices, as we have seen, adopted Clarke v. Clark(2) as an authority which had their approval. And if the question at issue in Yates v. Jack(3) be looked at, it will be seen that the argument to which Lord Cranworth's judgment was directed was that it was not necessary for the plaintiffs to have the ordinary quantity of light because the business which they were carrying on required a diminished quantity only. That was the argument to which Lord Cranworth could not accede. So understood, and reading it by the light of Clarke v. Clark(2), I do not dissent from the language used by Lord Cranworth in Yates v. Jack(3): "The right conferred by the statute is an absolutely indefeasible right to the enjoyment of the light without reference to the purposes for which it has been used." Your Lordships were told, and my experience at the bar confirms it, that the order made in Yates v. Jack(3) has been adopted as a common form of order in cases of this description. I think this is unfortunate. It was a very proper order to make in that case, and in nineteen cases out of twenty, or perhaps ninety-nine out of one hundred, where no question arises such as that in the present case, it would be sufficient and appropriate. But it is an erroneous proceeding to deduce an absolute rule of law from the form of an order made in a particular case.
In Lanfranchi v. Mackenzie(4) Malins V.-C. held that a person could not, by using the dominant tenement for a period less than twenty years for some special purpose requiring an extraordinary amount of light in excess of what was required for the ordinary purposes of inhabitancy or business, entitle himself to protection for such extraordinary requirements, and thereby impose an additional restriction on his neighbour's use of his own land. In that case, as in the present one, it was not proved that the extraordinary amount of light had been used for twenty years. "No man," said the Vice-Chancellor,
quoting the words of another judge, "can by any act of his own suddenly impose a new restriction on his neighbour." In their judgment in Warren v. Brown(1) the Court of Appeal dissented from this decision, and their opinion was a logical conclusion from the views which they expressed as to the nature and extent of the easement. My Lords, I do not concur with the opinion of the Court of Appeal, for I think that the case of Lanfranchi v. Mackenzie(2) was rightly decided. I agree with the Vice-Chancellor that it would be contrary to the principles of the law relating to easements that the burden on the servient tenement should be increased or varied from time to time at the will of the owner of the dominant tenement. The easement is for access of light to the building, and if the building retains its substantial identity, or if the ancient lights retain their substantial identity, it does not seem to me to depend on the use which is made of the chambers in it, or to be varied by any alteration which may be made in the internal structure of it. I do not propose to discuss at length the question how far a variation in a tenement will destroy an easement appurtenant to it. The law on that subject is as old as Luttrel's Case.(3)
In the case of Martin v. Goble(4) a malthouse had been converted into a workhouse, and it was held that the house was entitled to the degree of light necessary for a malthouse, not for a dwelling-house. That case has been the subject of much criticism, and I think that some judges have thought that the language of the Lord Chief Baron had a wider scope than it was intended to have. Following the suggestion of Wood V.-C., it may be supported on the ground that (to use the language of Luttrel's Case(3)) the alteration affected the substance and not only the quality of the tenement.
But while agreeing that a person does not lose his easement by any change in the internal structure of his building or the use to which it is put, and that regard may be had, not only to the present use, but also to any ordinary uses to which the tenement is adapted, I think it is quite another question whether he is entitled to be protected at the expense of his
neighbour in the enjoyment of the light for some special or extraordinary purpose. It is agreed on all hands that a man does not lose or restrict his right to light by non-user of his ancient lights, or by not using the full measure of light which the law permits. If that measure be by common law or by the statute the whole amount of light which has had access to his windows, cadit quæstio. But if this view of the law be not accepted, you must introduce that "supposed standard" which Romer L.J. repudiates. If the actual user is not the test where the use falls below the standard of what may reasonably be required for the ordinary uses of inhabitancy and business, why (it may be asked) should it be made a test where the use has been of a special or extraordinary character in excess of that standard? It does seem to me unreasonable to hold that where a man for his own convenience or profit converts two or more rooms of his house into one without making provision for lighting them, or converts a portion of his house into a photographic studio, or puts it to some similar purpose, he can suddenly call upon his neighbour to leave him a supply of light which is rendered necessary only by such alterations, and thereby impose what is in substance and in truth an increased burden on his neighbour. If the action be brought a month before the change it would be dismissed. If it be brought a month afterwards an injunction would be granted. I am of opinion that the Courts have gone too far in this question of lights, and have imposed undue restrictions on persons in the exercise of their lawful right to build on their own land.
In the second argument before your Lordships the leading counsel for the respondents contended that his clients had for more than twenty years enjoyed the access of light over the appellant's land to their ground-floor office in its present condition. I believe that all your Lordships are agreed with Joyce J. that there is no proof to support such a contention. The fact relied on was not put in issue at the trial, and the evidence was not directed to it. If the plaintiffs had intended to claim and rely on a special easement of that description, it was for them to state their claim and prove the facts to support it. It is unnecessary to say, therefore, whether such a claim would be good in law. Malins V.-C. thought it could be sustained if the special user was had with the knowledge of the owner of the servient tenement. I will only say that I see some difficulties in the way, and reserve my opinion.
My Lords, I must apologise for the length at which I have trespassed on your attention. According to both principle and authority, I am of opinion that the owner or occupier of the dominant tenement is entitled to the uninterrupted access through his ancient windows of a quantity of light, the measure of which is what is required for the ordinary purposes of inhabitancy or business of the tenement according to the ordinary notions of mankind, and that the question for what purpose he has thought fit to use that light, or the mode in which he finds it convenient to arrange the internal structure of his tenement, does not affect the question. The actual user will neither increase nor diminish the right. The single question in these cases is still what it was in the days of Lord Hardwicke and Lord Eldon - whether the obstruction complained of is a nuisance. I do not myself think that this rule is difficult of application in practice. In the majority of cases no such questions as those which have been raised in Warren v. Brown(1)and the present case occur. The experience of surveyors who are practically conversant with this matter is entitled to great respect. As Mr. Vigers states in his evidence, they have adopted a working rule for the purpose of advising those who consult them and settling differences by negotiation. The rule of 45 degrees is not, of course, a rule of law, and is not applicable to every case. But I agree with Lord Selborne (City of London Brewery Co. v. Tennant(2)) that it may properly be used as primâ facie evidence.
For these reasons I think that the appeal should be allowed, and the decree of Joyce J. restored with costs here and below.
The language of s. 3 of the Prescription Act (2 & 3 Will. 4, c. 71) shews that in order to acquire a right to a light there must be - (1.) Access and use of light, not access alone. Access here is understood to refer to free passage of light over the servient tenement (see per Fry L.J. in 31 Ch. D. p. 575, and per Kay J. in 40 Ch. D. 26). (2.) Such access and use must be to and for some dwelling-house, workshop, or other building (as to which see Harris v. De Pinna).(1) (3.) Such access and use must be actually enjoyed therewith. (4.) Such enjoyment must be without interruption for twenty years. (5.) If all these are proved, the right to the access and use of light so enjoyed becomes absolute and indefeasible, unless it can be explained by some deed or writing.
Pausing here for a moment, it will be observed that the statute does not in terms confer a right to light, but rather assumes its acquisition by use and enjoyment, and declares it to be "absolute and indefeasible."
Again, your Lordships will observe that nothing is said about
enjoyment as of right; and notwithstanding s. 5 of the Act,
which refers to enjoyment as of right, it was early decided that
as regards light claimed under s. 3 enjoyment as of right need
not be alleged or proved, and that the right, whatever it may
be, is acquired by twenty years' use and enjoyment without
interruption and without written consent: see Truscott v.
Merchant Taylors' Co.(2) and Frewen v. Phillips(3); Simper
As regards use and enjoyment, there are some instructive decisions on unfinished and uninhabited houses, and on windows kept closed by shutters. These decisions shew that a right to light may be acquired in respect of a house which has stood for twenty years without being occupied or even finished so as to be fit for occupation; and that the fact that shutters have been closed for some months at a time does not prevent the acquisition of a right to light through the windows: see Courtauld v. Legh(3); Cooper v. Straker(4); Collis v. Laugher(5); Smith v. Baxter.(6)
These decisions did not, however, turn upon or settle with any precision the amount of light to which a right is acquired by twenty years' user. Nor is the statute clear upon this point. At one time it appears to have been considered that in all cases the size and situation of the aperture through which light had come for twenty years formed both the maximum and minimum measures of the right acquired, without reference to the use and enjoyment of the light which had so come. This view was based on some observations made by Lord Westbury in Tapling v. Jones(7), and on Lord Cranworth's judgment in Yates v. Jack(8), which I will notice presently. Lord Chelmsford took the same view in Calcraft v. Thompson.(9)
But this view was emphatically negatived by the Court of Appeal in Chancery in Kelk v. Pearson (10), City of London Brewery Co. v. Tennant (11), and Leech v. Schweder. (12) In Moore v. Hall (13), however, both Mellor and Manisty JJ. adopted the interpretation thus repudiated, but it does not appear that they were aware of the repudiation.
Kelk v. Pearson (10) shews that in ordinary cases a person
does not necessarily acquire a right to enjoy in future all the light he has had for twenty years. He may have had more than was reasonably required either for domestic or business purposes; and in that case his right to protection is limited to the amount of light reasonably required.
There can be no doubt that Lord Cranworth's language in Yates v. Jack(1), and the head-note to it, and the form of injunction granted, have been regarded as authorities for the view that in all cases the statute confers a right to all the light which has come to a window for twenty years; and there are passages in the judgments of Cotton and Bowen L.JJ. in Scott v. Pape(2) which support the same view. This is to be regretted, as it has tended to unsettle the rule laid down in Kelk v. Pearson.(3) The decision in Yates v. Jack(1) did not, however, really go so far as has been supposed, for the plaintiff's windows were darkened to such an extent as to render the plaintiff's house much less convenient for purposes of business than it was before. The case did not turn on the mere fact that some diminution of light was proved. The plaintiff's right to light was clearly infringed, whether the measure of the light to which he was entitled was all that had come through his windows, or only so much as was reasonably necessary for business purposes. If these facts are borne in mind, nothing will be found in the actual decision which conflicts with the views previously expressed by Lord Cranworth in Clarke v. Clark(4) and adopted by the Court of Appeal in the cases already mentioned.
The common form of injunction in these cases is that adopted in Yates v. Jack(1) and Dent v. Auction Mart Co.(5)It is to restrain the defendants from erecting any building so as to obstruct the free access of light to the ancient windows of the plaintiff as such access was enjoyed previously to the taking down of the house which formerly stood on the site of the defendant's new buildings.
This form is framed upon the supposition that the plaintiff
has established his right to the amount of light which he, in fact, enjoyed before the obstruction complained of. But it by no means follows from the form that every one is entitled to an injunction who can prove that he has been deprived of some of the light which he, in fact, had before it was interfered with. He may have had more than he can acquire a right to have preserved in future. I am, however, under the impression that this inference has been drawn, and that the form has been regarded as strengthening the view of the law repudiated in Kelk v. Pearson.(1)
So to regard the form is, in my opinion, a mistake. The doctrine laid down in Back v. Stacey(2), as I understand it, is the same as that laid down, although in somewhat different language, by the Court of Appeal in Kelk v. Pearson(1) and City of London Brewery Co. v. Tennant(3), and must, I think, be taken as finally established and as good sound law which your Lordships should adopt, notwithstanding the observations in the Irish case of Mackey v. Scottish Widows' Co.(4) That doctrine, as stated in City of London Brewery Co. v. Tennant(3),is that generally speaking an owner of ancient lights is entitled to sufficient light according to the ordinary notions of mankind for the comfortable use and enjoyment of his house as a dwelling-house, if it is a dwelling-house, or for the beneficial use and occupation of the house if it is a warehouse, a shop, or other place of business.(5) The expressions "the ordinary notions of mankind," "comfortable use and enjoyment," and "beneficial use and occupation" introduce elements of uncertainty; but similar uncertainty has always existed and exists still in all cases of nuisance, and in this country an obstruction of light has commonly been regarded as a nuisance, although the right to light has been regarded as a peculiar kind of easement.
If a more absolute standard had been adopted in all cases, certainty would, no doubt, have been gained; but the consequences would frequently have been very oppressive on the
owner of the servient tenement, and far more so than under the old law. The owner of the servient tenement could have done nothing on his own land which, in fact, diminished the light acquired by his neighbour, even if all of it was not wanted for comfortable enjoyment or business purposes. It would follow that the owner of a piece of vacant land opposite to a house in an ordinary street could not build upon it at all after twenty years. The adherence to the old but uncertain standard of comfort and convenience avoids the danger of oppression and extortion, and renders it necessary to take a wider view of each case, especially when an injunction is asked for.
The decision in Kelk v. Pearson(1) has a far-reaching effect. If there is no absolute right to all the light which comes to a given window, no action will lie for an obstruction to that light unless the obstruction amounts to a nuisance. If there is no right of action, a fortiori there is no right to an injunction to prevent a permanent diminution of light unless it amounts to a nuisance. But, in considering what is an actionable nuisance, regard is had, not to special circumstances which cause something to be an annoyance to a particular person, but to the habits and requirements of ordinary people, and it is by no means to be taken for granted that a person who wants an extraordinary amount of light for a particular business can maintain an action for a diminution of light if only his special requirements are interfered with. Some important decisions will be found as to nuisances to persons carrying on delicate trades, or requiring more comfort or freedom from annoyance than ordinary people, in the cases of Walter v. Selfe(2), Crump v. Lambert(3), and Eastern and South African Telegraph Co. v. Cape Town Tramways Co.(4); and as to the character of the neighbourhood, see St. Helen's Smelting Co. v. Tipping.(5)
The expression "right to light" is sanctioned by the Prescription Act, and is convenient; but its use is apt to lead to
error and to forgetfulness of the burden thrown on the servient tenement. This burden, however, ought never to be lost sight of in considering the extent of the right claimed in respect of the dominant tenement.
But the adoption of the more flexible standard of comfort and convenience has introduced difficulties of a serious nature, especially when dealing with places of business, and it is not surprising that different views on this subject should have been taken, and that the decisions upon it should be inconsistent with each other. That they are inconsistent is apparent from the careful review of them by Wright J. in Warren v. Brown.(1)
In applying the rule laid down in Kelk v. Pearson(2) it is impossible to avoid considering how much light is left and where it comes from. But the question to be decided is not how much light is left, but whether the plaintiff has been deprived of so much as to constitute an actionable nuisance. If he has, it is no defence to say that he has as much light left as most other people: see Dent v. Auction Mart Co.(3) Too much weight may have been given by Wright J. to the amount of light left in Warren v. Brown(1), and this may explain the reversal of his decision by the Court of Appeal.(4)
There is no rule of law that if a person has 45 degrees of unobstructed light through a particular window left to him he cannot maintain an action for a nuisance caused by diminishing the light which formerly came through that window: Theed v. Debenham.(5) But experience shews that it is, generally speaking, a fair working rule to consider that no substantial injury is done to him where an angle of 45 degrees is left to him, especially if there is good light from other directions as well. The late Lord Justice Cotton pointed this out in Ecclesiastical Commissioners v. Kino(6): see also Parker v. First Avenue Hotel Co.(7)
As regards light from other quarters, such light cannot be
disregarded; for, as pointed out by James V.-C. in the Dyers' Co. v. King(1), the light from other quarters, and the light the obstruction of which is complained of, may be so much in excess of what is protected by law as to render the interference complained of non-actionable. I apprehend, however, that light to which a right has not been acquired by grant or prescription, and of which the plaintiff may be deprived at any time, ought not to be taken into account. (See the case just cited.)
The purpose for which a person may desire to use a particular room or building in future does not either enlarge or diminish the easement which he has acquired. If he chooses in future to use a well-lighted room or building for a lumber-room for which little light is required, he does not lose his right to use the same room or building for some other purpose for which more light is required. Aynsley v. Glover(2) is in accordance with this view. But if a room or building has been so built as to be badly lighted, the owner or occupier cannot by enlarging the windows or altering the purpose for which he uses it increase the burden on the servient tenement. Martin v. Goble(3), where a malthouse was turned into a workhouse, may, I think, be upheld on this principle; and the observations of Wood V.-C. on Martin v. Goble(3) in Dent v. Auction Mart Co.(4) support this view.
Coming now to the present case, I am clearly of opinion that no injunction, and certainly no mandatory injunction, ought to have been granted. Joyce J. was asked for an injunction and he refused it, and, in my opinion, quite rightly. He came to the conclusion that although there would be a sensible diminution of light and some inconvenience to the plaintiffs, yet they had not established by twenty years' user a right to all the light which they had had, and that the obstruction complained of would not amount to an actionable nuisance, and so infringe the plaintiffs' right. The Court of Appeal, taking a different view of the amount of light to which the plaintiffs were entitled, reversed this decision, and ordered
a partial demolition of the buildings erected by the defendants. For the reasons already given, I have come to the conclusion that this was wrong.
I should stop here were it not that I feel very strongly that in any view of the case it was not one for a mandatory injunction. I am convinced that even if the plaintiffs have a cause of action, the damages which could properly be awarded them would be very small, and to grant a mandatory injunction in such a case as this would be unduly oppressive and not in accordance with the principles on which equitable relief has been usually granted: see the Curriers' Co. v. Corbett(1), Robson v. Whittingham(2), and National Provincial Plate Glass Co. v. Prudential Assurance Co.(3), in all of which an injunction was refused, although the plaintiff's legal right had been infringed. In Warren v. Brown(4) the Court of Appeal only gave damages. The present case is eminently one in which damages would be an adequate remedy, even assuming the plaintiffs could prove a small nuisance for which some damages could be properly given; and where that is the case an injunction, and especially a mandatory injunction, ought not to issue. The general rule that where a legal right is continuously infringed an injunction to protect it ought to be granted is subject to qualification, as was carefully explained by Sir George Jessel in Aynsley v. Glover(5), and more recently by the Court of Appeal in Shelfer v. City of London Electric Lighting Co.(6)
My Lords, the result of the foregoing review of the authorities is not altogether satisfactory. The general principle deducible from them appears to be that the right to light is in truth no more than a right to be protected against a particular form of nuisance, and that an action for the obstruction of light which has in fact been used and enjoyed for twenty years without interruption or written consent cannot be sustained unless the obstruction amounts to an actionable nuisance; and this often depends upon considerations wider
than the facts applicable to the complainant himself. There are elements of uncertainty which render it impossible to lay down any definite rule applicable to all cases. First, there is the uncertainty as to what amount of obstruction constitutes an actionable nuisance; and, secondly, there is the uncertainty as to whether the proper remedy is an injunction or damages. But, notwithstanding these elements of uncertainty, the good sense of judges and juries may be relied upon for adequately protecting rights to light on the one hand and freedom from unnecessary burdens on the other. There must be consideration for both sides in all these controversies.
In this case the Court of Appeal have, in my opinion, gone too far, and the appeal ought to be allowed with costs here and below.
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