Row) were used by the defendants as a café for the sale of tea, coffee, and Three per cent on annual value, £550 ... ... ... £16 10 0 0 18 0 30 0 0 £47 8 0 The defendants attributed one-half of this charge to the Walbrook premises and one-half to the Budge Row premises, and charged the plaintiff with one-half of the above rate. The plaintiff objected to pay for the water used for trade purposes, and maintained that that was not within the terms of the covenant. The New River Company's Act 1852 incorporated the Waterworks Clauses Act. 1847, and provided (Section 35) that the company should at the request of the owner or occupier of any house or part of a house in any street within their limits furnish water for domestic purposes at a certain percentage on the annual value of the house, with a further special charge for water-closets and fixed baths. Section 40 empowered the company to supply water within their limits for other than domestic purposes by agreement. It was conceded that the definition of water rate in the general Act of 1847 was wide enough to include the charge in dispute, but it was contended that the term as used in the covenant had a more restricted meaning. Mr. Justice Kekewich held that the covenant extended to the charge made for water used for trade purposes. The plaintiff appealed. The COURT allowed the appeal. Lord Justice LINDLEY said that the question was whether the plaintiff under her covenant was bound to pay so much of the water rate as was charged for trade as opposed to house purposes. It was said that the plaintiff was liable for all water rate, but the concluding words of the covenant were important as showing the nature of the charge intended. Those words were, "Now or hereafter to be imposed or assessed upon the said premises or on the lessor or lessees in respect thereof." It was not strictly correct to speak of a water rate as being imposed upon the premises, but it was reasonably clear that the water rate referred to in the covenant was the rate payable under Section 35 of the special Act, and did not include any water rate for trade purposes. The learned Judge had given too little attention to the concluding words of the covenant, and had gone wrong in consequence. Lord Justice A. L. SMITH concurred. Lord Justice RIGBY also concurred. He said it was not the right way to construe this covenant to go to all the general and special Acts of Parliament to ascertain the meaning of "water rate," and then proceed on the assumption that the parties to the deed were aware of all these statutory provisions.—(T. L. R. [1897], C. A., vol. xiii., p. 278.) (818.) BROOMFIELD v. WILLIAMS. [MARCH 12TH, 1897.] Light-Right to-Grant-Derogation—Building on Adjoining Land— Conveyancing Act 1881 (44 and 45 Vict., c. 41) Section 6). This was an appeal from a decision by Mr. Justice Kekewich, dated December 8. The facts were as follows:-The defendant and another on March 25, 1896, as beneficial owners conveyed to the plaintiff in fee a plot of land with a house recently erected thereon, known as Rothesay, Mostyn Avenue, Llandudno, which had windows upon its western side overlooking an adjoining plot of land then belonging to the defendant. In the conveyance was the following exception: "Except nevertheless and reserving to the vendors, their heirs and assigns, and other the owners and occupiers for the time being of the land shown on the said plan contiguous or near to the piece of land hereby conveyed marked building land, a right of way." There was no reservation in express terms of any right of the defendant to build upon the vacant land. Upon the plan which was annexed to the deed was shown a vacant piece of land which the plaintiff's windows overlooked, and upon it were written the words "building land." Shortly after this conveyance to the plaintiff the defendant commenced to build, and had since completed two houses upon his vacant land, and the erection of these houses seriously and materially interfered with the access of light to the plaintiff's kitchen window, which was one of the western windows in his house. Thereupon the plaintiff brought the present action for an injunction and damages. It was established at the trial that the plaintiff at the date of his conveyance knew that the defendant intended to build upon his vacant land a pair of houses similar to those already built in the row in which the plaintiff's house was situate; but one ground of complaint on the part of the plaintiff was that the new houses built by the defendant were not like the previous houses in the row, and in particular that a space of 4 ft. 9 in. between the house and the boundary wall was not left. The learned Judge was of opinion that the plaintiff had no cause of action against the defendant, and accordingly dismissed the action. The plaintiff appealed. The appeal was heard on February 23 and 25. The COURT allowed the appeal. Lord Justice LINDLEY said,—This is an appeal by the plaintiff against the dismissal of his action with costs. The plaintiff bought a house with windows in it from the defendant, who was the owner of an adjoining piece of land on which he intended to build, as the plaintiff knew. The conveyance to the plaintiff contained a plan showing the land granted, and also a piece of land adjoining marked "building land," but the conveyance contained no reservation of any right to enable the grantor so to build on the adjoining land as to darken the windows in the house which he sold and conveyed to the plaintiff. His Lordship referred to the conveyance and to the plan, and also to the Conveyancing Act 1881, Section 6 Clauses 2 and 4, and continued: The reference to the plan and description in it of the adjoining land as "building land" does not show any intention to exclude the operation of Section 6 of the Conveyancing Act 1881 (44 and 45 Vict., c. 41), for it was quite possible to build on that adjoining land without darkening the windows of the house conveyed. Consequently the conveyance in the house must be read as if the words in Section 6, Clause 2, of that Act were contained in the conveyance-i.e., as if the conveyance contained the words "together with all lights appertaining to or occupied or enjoyed with or reputed as part of" the house, and as if such lights were conveyed with it. I do not myself lay much stress on these words; they probably add little, if anything, to the conveyance of the house as it was at the date of the conveyance. But from one point of view they may be important, as will appear presently. Having regard to the conveyance and to the foregoing circumstances, I was surprised to find that there could be any doubt as to the right of the plaintiff to enjoy the lights conveyed to him unobstructed by his grantor. It was quite new to me to have to consider in such a case what was reasonable or not. But so much was made of The Birmingham, Dudley, and District Bank v. Ross (38 Ch. D. 295) and Myers v. Catterson (43 Ch. D. 470), that I desired to look again at those cases in order not to make any mistake. Those cases throw no doubt at all upon the principle that a grantor cannot derogate from his own grant. But they show the importance of ascertaining accurately what has been granted in any particular case to which the principle has to be applied. In those cases the grantor had not sold or conveyed a house built by himself with windows for the admission of light. The house had been built by the grantee on vacant land which he had agreed to buy, and the conveyance came afterwards, when the vendor had no equitable interest in the property conveyed. The question then arose what lights the purchaser was entitled to. In the Birmingham case the circumstances showed that the purchaser had bargained for and had obtained special protection against obstruction, and was entitled to no more. In Myers v. Catterson it was held that the purchaser was entitled to all the light which his vendors could give him, but that they being a railway company, could not fetter themselves by granting rights to light which would prevent them from exercising their statutory powers and performing their statutory duties. It was contended that these cases had shaken the law previously established by Swanborough v. Coventry (2 Bing., 305) and older authorities. But I do not so understand them. On the contrary, Lord Justice Cotton, in 38 Ch. Div., 310, and 43 Ch, Div., 477, distinctly recognises the principle on which they were decided. They were also recognised as law in Wheeldon v. Burrows (12 Ch. Div.) and Allen v. Taylor (16 Ch. Div., 355). Some passages were read from the judgment of Lord Justice Bowen which, if taken by themselves and apart from the facts of the case before him, would favour the defendant's view, but he certainly never intended to throw any doubt on the above authorities. If this were a case of an implied grant, and not, as I think it is, a case of express grant, the defendant would still be in the wrong. The grantor cannot throw on the guarantee the onus of showing the limit to be set on rights incidental to the enjoyment of the property granted. If such rights are to be limited in favour of the grantor, it is for the grantor, and not for the grantee, to show what those limits are. Even if Section 6, clause 2, of the Conveyancing Act does not apply by R reason of the words "building land" on the plan, I should still hold, on the authority of Swanborough v. Coventry and the older decisions, that the grantee had a prima facie unrestricted right to light as against the grantor, and that the burden of setting limits to such right lay on the grantor. As the plaintiff does not complain of the defendant's building except so far as it injures him by being nearer than 4ft 9in. to the boundary wall the defendant will have the benefit of this limitation of his claims. In my view it is a concession; but in the other view the plaintiff's own evidence may be regarded as the extent to which the defendant has succeeded in limiting the right of the plaintiff to the light of his west windows. In any event, the defendant has exceeded his right, and the following will be the proper wording of the judgment. Allow the appeal and discharge the order. Declare that the defendant was not entitled so to build on his land adjoining the plaintiff's house as to create any material obstruction to the light which came to the kitchen and other windows on the west side of the plaintiff's house at the time of the grant thereof by the defendant to the plaintiff. And the plaintiff not claiming any damages by reason of any obstruction to such windows which would have been caused by the defendant's house if it had been set back 4 ft. 9 in. from the wall bounding the plaintiff's land on the west side thereof, inquire what damages the plaintiff has sustained by reason of the obstruction of the light of the said windows occasioned by the defendant's house not being so set back, and order the defendant to pay such damages when ascertained. Liberty to apply. Defendant to pay the costs of the action and of the appeal. Lord Justice A. L. SMITH, after stating the facts substantially as above set out and observing that he did not found his judgment upon there being any express grant of light, said :-The question arises as to what is the obligation on the part of a grantor to a grantee under such circumstances as the present. I have no doubt of this, that a grantor in such circumstances cannot build upon his own land in such a way as to block out altogether the light passing over his own land to the windows of his grantee, for this would frustrate the very object of the grant—viz., that the grantee should be able to use his house as a house. His Lordship then referred to Terrant v. Goldwin (2 Ld. Raymond, pp. 1,083 and 1,093), Myers v. Catterson (43 Ch. D., 481), Swanborough v. Coventry (9 Bing., 309), Wheeldon v. Burrows (12 Ch. D., 31), and Allen v. Taylor (16 Ch. L., 355), and continued as follows :-There being this prima facie right of a grantee in circumstances such as exist in the present case not to have his lights interrupted by his grantor, how when the grantee brings an action against the grantor for derogating from this right can the grantor show that what he is doing does not give a cause of action to his grantee when a material interruption to the lights is established? In my opinion it can only be by the grantor showing that the prima facie right of the grantee is in some way limited and restricted. The burthen of proof is upon the grantor, and if he does not show that this prima facie right which the grantee has in some way cut down, and if a material diminution of the grantee's light by what the grantor has done upon his own land is established by the grantee, he is entitled to judgment. When the cases of the Birmingham Banking Company v. Ross (38 Ch. D., 295) andof Myers v. Catterson (43 Ch. D., 470) are examined it appears that the above statement of the law is not impugned, and that each of these cases was decided upon the ground that the grantor was able to show that this primâ facie right of the grantee was limited or restricted or in other words, the grantor was able to show what was the implied obligation which he, in fact. undertook when he sold to the grantee. In the one case, (the Birmingham Banking Company v. Ross) it was shown that it was perfectly well known to each party when the sale took place that the land was to be built upon by the corporation, i.e., the grantors, as they liked, subject only to this, that there was to be a passage of the width of 20 ft. between the buildings of the grantors and the house of the grantee, and that this was the measure of the grantee's protection. In the other case, Myers v. Catterson, the grantors (the railway company) established that the grantee knew at the date of the conveyance to him of his house that the grantors required the remainder of the land for the purposes of the construction of this railway, and it was held that the obligation which the grantors (the railway company) undertook towards the grantee was limited by this, that the company might utilise their land for that purpose, but for no other, and that this was the measure of the grantee's protection. This is what I understand Lord Justice Cotton was pointing to when in Birmingham Banking Company v. Ross he said: "But when the question is as to an implied obligation we must have regard to all the circumstances which existed at the time when the conveyance was executed which brought the parties into that relation from which the implied obligation results." In the present case how does the defendant displace the prima facie case of the plaintiff the grantee? If he could have shown nothing whereby to cut down the prima facie right of the grantee not to have his light interfered with by the grantor, I should have thought that the defendant could not materially have obstructed the plaintiff's light, but the defendant has been able out of the plaintiff's own mouth to establish this, that at the date of the conveyance to him he knew right well that the defendant was about to build upon his own land and that all he required was when the defendant erected his proposed buildings that the passage should be left unbuilt upon by the defendant between his buildings and the plaintiff's house. In these circumstances the defendant, by the plaintiff's own admission, has established that his right to build upon his vacant plot was only limited to this, that the defendant was not to build any house substantially higher than those already erected in the row, thnt he was not to build over the part which was to constitute the passage, and that this was the only obligation which he undertook to the grantee when he executed the conveyance to him. The defendant has shown that the plaintiff's primâ facie right is not an unrestricted right to the passage of light over the whole of the defendant's land, and that the defendant's right to build his proposed houses upon his own land was only restricted as above mentioned. This restriction the defendant has not observed, and consequently he is liable in this action, and in the circumstances of this case the declaration proposed by my brother Lindley is the proper declaration to make. Lord Justice RIGBY gave judgment to the like effect.-(T. L. R. [1897], C. A., vol. xiii. p. 278.) |
