to Pews.

Of the Right 1871). But if the right was claimed as appurtenant to an ancient messuage the claim would, before the Prescription Act, 1832, be rebutted by proof that the pew began to exist within time of legal memory (Griffith v. Matthews, 5 T. R. 296; see Crisp v. Martin, 2 P. D. 15). In an action for disturbing the possession of a pew of which there had been uninterrupted enjoyment for thirty-six years, but which had been an open pew before that period; the jury were directed to presume a title after so long a possession (Rogers v. Brookes, 1 T. R. 431, n.; see Halliday v. Phillips, 1891, A. C. 228; see, however, Morgan v. Curtis, 3 M. & R. 389). A pew in a parish church was claimed in respect of an ancient messuage; and it was proved that, so far as living memory extended, the pew had been one of three pews adjoining all claimed under one and the same claim of right, viz., in respect of the said ancient messuage: it was held, that proof of repairs done to one of the pews, not that in question, was evidence as to all (Pepper v. Barnard, 12 L. J. Q. B. 361). The pew must be claimed as appurtenant to a messuage in the parish, otherwise a baro possession of the pew for sixty years and more is not sufficient title to maintain an action for disturbing the enjoyment thereof, but a prescriptive right or faculty must be proved (Stocks v. Booth, 1 T. R. 428). Where the action is brought against a stranger, the plaintiff is not bound to state in his declaration that he has repaired the pew, though it is otherwise when the action is brought against the ordinary; in which case a title or consideration must be shown in the declaration and proved, as the building or repairing of the pew (Kenrick v. Taylor, 1 Wils. 326; Ashley v. Freckleton, 3 Lev. 73; see Fiske v. Rovitt, Lofft, 423; Com. Dig. Action upon the Case for Disturbance (A. 3); Gibs. 197, 198).

Who can sue.

Priority in a

pew.

Remedy in the Chancery

Division.

(6)

Vaults.

The grant of part of the chancel of a church by a lay impropriator to A., his heirs and assigns, is not valid in law, and therefore such grantee cannot maintain trespass for pulling down his pews there erected (Clifford v. Wicks, 1 B. & Ald. 498). But the churchwardens have not, as against the incumbent of a church, a joint possession of it, so as to disable him from maintaining trespass against them for pulling down pews; and a chapelwarden of a parochial chapelry has not, by virtue of his office, any authority to enter the chapel and remove the pews without the consent of the perpetual curate (Jones v. Ellis, 2 Y. & J. 265). The perpetual curate of an augmented parochial chapelry may maintain trespass for breaking and entering the chapel and destroying the pews (Ib.).

As well priority in a seat as a seat itself in the body of a church may be claimed by prescription, as belonging to a house, by the inhabitants of it, who have repaired the seat time out of mind (Carleton v. Hutton, Noy, 78; Gibs. 221). The right to sit in a pew may be apportioned (Harris v. Drewe, 2 B. & Ad. 164). As to a licence by a pew owner to the churchwarden to divide the pew, see Adams v. Andrews (15 Q. B. 284).

It seems that a bill in equity would not lie to be quieted in the possession of a pew, though there was a decree for it before the ordinary (Baker v. Child, 2 Vern. 226). See Cardinall v. Molyneux (7 Jur. N. S. 854), as to proceedings against an incumbent who removed pews and substituted chairs in the church.

A man may prescribe that he is tenant of an ancient messuage, and ought to have a separate burial in a particular vault within the church (Com. Dig. Cemetery (B.)). It seems that the same rules are applicable to vaults as to pews (Bryan v. Whistler, 8 B. & C. 293; see Francis v. Ley, Cro. Jac. 366; Gibs. Cod. 542).

Rights to
Light.

VIII.-RIGHTS TO LIGHT.

(1) Acquisition of Right to Light...99.

(2) Nature and Extent of Right to Light...101.

(3) Effect of Alteration of Ancient Lights and of Unity of Owner

ship...102.

(4) Abandonment of Right to Light...102.

(5) Remedies for Disturbance of Right to Light...103.

(6) Privacy and Prospect...106.

(1)

Before the Prescription Act, 1832, the modes of acquiring by user the Acquisition of easement of light were (1) by prescription at common law, (2) by pre- right to light. suming a lost grant. The act has provided an additional mode, but the By prescripformer modes still exist (Aynsley v. Glover, 10 Ch. 283). With regard to tion. the mode of claiming light under the Prescription Act, see the note to sect. 3 (ante, p. 11), and as to claiming light by presuming a lost grant, see the note, ante, pp. 21, 24.

With regard to prescription at common law, the enjoyment of lights Prescription for twenty years, without any obstruction from the party entitled to at common object, has been long held to be a sufficient foundation for raising the law. presumption of an agreement not to obstruct them (Cross v. Lewis, 2 B. & C. 686; Darwin v. Upton, cited 3 T. R. 159; 2 Wms. Saund. 175). The doctrine has been thus stated:-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 own land, buildings with as many windows as he pleases, without any consent from the owner of the adjoining lands. After he has erected his building, the owner of the adjoining land may, 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 his light without obstruction, so long as he shall continue the specific mode of enjoyment which he had been used to have during that period (Moore v. Rawson, 3 B. & C. 240; see Blanchard v. Bridges, 4 Ad. & Ell. 192).

The acquisition of a prescriptive right may be prevented by the servient owner erecting a hoarding during the period of enjoyment. Such a hoarding may be erected by a railway company (Bonner v. G. W. R. Co., 24 Ch. Div. 1; disapproving on this point of Norton v. L. & N. W. R. Co., 9 Ch. D. 623; see Myers v. Catterson, 43 Ch. Div. 470).

A right to light may be acquired by express grant (Booth v. Alcock, By express 8 Ch. 667). A verbal agreement for such a right may be enforced when grant. there has been part performance (McManus v. Cooke, 35 Ch. D. 681).

Where a landlord had demised premises including lights to A. and subsequently granted a lease of the adjoining premises to B., it was held, that the landlord could not have blocked up the lights, and that B. could stand in no better position (Davies v. Marshall, 1 Dr. & Sm. 557). The words of a grant, however, must be restricted to what a grantor has power to grant at the time; thus, where A. demised a house with lights to B. for 21 years having at the time an adjoining house for a shorter term, and subsequently acquired the fee of the adjoining house, he was held entitled after the expiration of the shorter term to obstruct B.'s lights (Booth v. Alcock, 8 Ch. 663; Godwin v. Schweppes, 1902, 1 Ch. 932). Where a house is demised to a person known to sustain a special character (e.g., a diamond merchant), the landlord cannot obstruct any light necessary to the tenant's enjoyment of the house in that

Rights to
Light.

Implied grant of right to light upon sale of house by owner of adjoining land;

sale of land by owner of adjoining house;

character (Herz v. Union Bank, 2 Giff. 691; compare Aldin v. Latimer, 1894, 2 Ch. 437; Grosvenor Hotel v. Hamilton, 1894, 2 Q. B. 836). A special right to light may be created by covenant, in which case an injunction will be granted without regard to amount of damage (Leech v. Schweder, 9 Ch. 463); but the ordinary covenant for quiet enjoyment accompanying a grant of light does not enlarge the rights of the grantee (Ib.; see Potts V. Smith, 6 Eq. 311). The effect of a grant of light contained in a lease was controlled by a collateral agreement (Salaman v. Glover, 20 Eq. 444). As to the grant by a railway company on a sale of its surplus lands, see Myers v. Catterson (43 Ch. Div. 470).

As a man cannot derogate from his own grant, it is well established, that where the same person possesses a house, having certain lights, and also the adjoining land, and sells the house retaining the land, there, although the lights be new, neither the vendor nor any one claiming under him can build upon the adjoining land, so as to obstruct those lights (Palmer v. Fletcher, 1 Lev. 122; Robinson v. Grave, 29 L. T. 7; compare Wheeldon v. Burrows, 12 Ch. Div. 31, ante, p. 78; and Aldin v. Latimer, 1894, 2 Ch. 437, post, p. 107). The principle was applied where the vendor was a mortgagee selling under his statutory power of sale (Born v. Turner, 1900, 2 Ch. 211). The same principle applies where at the time of the grant the erection of a particular building is contemplated by both parties, though no building has been actually erected (Bailey v. Icke, 64 L. T. 789); but not where there is merely an intention on the part of the purchaser to build which is known to the vendor (Blanchard v. Bridges, 4 Ad. & Ell. 176; see Robinson v. Grave, 29 L. T. 9). The principle was held not to apply where the vendor had contracted to sell the adjoining land before the sale of the house (Beddington v. Atlee, 35 Ch. D. 317, 328; see Davies v. Thomas, 1899, W. N. 244). ~ A., the owner of two adjoining houses, granted a lease of one of them to B., and afterwards leased the other to C., there then existing in it certain windows. After that B. accepted a new lease of the house from A.: it was held, that B. could not alter his tenement, so as to obstruct the windows existing in C.'s house at the time of his lease from A.: though the windows were not twenty years old at the time of the alteration (Coutts v. Gorham, 1 M. & M. 396; see Cox v. Matthews, 1 Ventr. 237; Jacomb v. Knight, 11 W. R. 585; Warner v. Macbride, 36 L. T. 360; Riviere v. Bower, 1 Ry. & M. 24). The extent of the implied grant of light must be measured by circumstances existing at date of the lease and known to both parties (Birmingham Banking Co. v. Ross, 38 Ch. Div. 295; Corbett v. Jonas, 1892, 3 Ch. 137; Godwin v. Schweppes, 1902, 1 Ch. 926). And where A. on taking a lease of a building knew that the adjoining land was being laid out for building and stipulated for a passage twenty feet wide adjoining the demised building, there was no implied grant (Birmingham Banking Co. v. Ross, sup.). the mere reference in A.'s conveyance to the adjoining land as building land" would not alone prevent an implied grant. The burden of setting limits to the right lies on the grantor (Broomfield v. Williams, 1897, 1 Ch. 602; see Pollard v. Gare, 1901, 1 Ch. 834; and see note to sect. 6 of the Conveyancing Act, 1881, post).

But

On a sale by a railway company of surplus land with a house thereon, the company can only obstruct the lights by railway constructions, not by a hoarding (Myers v. Catterson, 43 Ch. Div. 470). So in the case of a lease of part of a building estate, the lessor's right of obstructing lights on the demised premises is confined to building on the adjoining land. He cannot erect a hoarding (Wilson v. Queen's Club, 1891, 3 Ch. 522).

Where a person owning a house with ancient lights looking over the adjoining land, and also owning the adjoining land, sells the land retaining the house, the purchaser may obstruct the lights, there being no implied reservation in favour of the vendor (Curriers' Co. v. Corbet, 2 Dr. & Sm. 360; White v. Bass, 7 H. & N. 722; see Tenant v. Goodwin, 2 Ld. Raym. 1093; Rosewell v. Prior, 6 Mod. 116; Canham v. Fisk, 2 Cr. & J. 128; Ellis v. Manchester, &c. Co., 2 C. P. D. 13; Master v. Hansard, 4 Ch. D. 718; Wheeldon v. Burrows, 12 Ch. Div. 31). If, however, on a

sale of land adjoining a house to be built by the vendor, it is agreed that an outer wall of the house may stand within the verge of the lands sold and shall have in it windows overlooking such lands, and if the house be erected accordingly, the purchaser cannot afterwards obstruct those windows (Russell v. Watts, 10 App. Cas. 602).

Rights to

Light.

Where a person owning a house with lights looking over adjoining land and also owning such land, at the same time sells the house to A. and the land to B., both purchasers being aware of the simultaneous conveyances, B. cannot obstruct the lights of A. (Allen v. Taylor, 16 Ch. D. simultaneous 355; see Rigby v. Bennett, 21 Ch. D. 567; Compton v. Richards, 1 Price, sale of land 27; Swansborough v. Coventry, 9 Bing. 305). The same principle was and house. applied to the devise in a will of the house to A., and the adjoining land to B. (Phillips v. Low, 1892, 1 Ch. 47; Barnes v. Loach, 4 Q. B. D. 494); and to successive mortgages of plots of land comprised in one building scheme, the mortgagees having notice of the scheme (Russell v. Watts, 10 App. Cas. 590).

An equitable right to light claimed under a contract did not bind a Cases as to purchaser for value without notice of the servient tenant (Prinsep v. contracts. Belgravian Estate, 1896, W. N. 39). The mere fact of there being windows in an adjoining house which overlook a purchased property is not constructive notice of any agreement giving a right to the access of light to them (Allen v. Seckham, 11 Ch. Div. 790). A contract for the sale of a house with windows looking over the land of a third person implies no representation that the windows are entitled to light over that land (Greenhalgh v. Brindley, 1901, 2 Ch. 324).

(2)

The access of light referred to in the statute "may be described as being Nature and the freedom with which light may pass through a certain space over the extent of servient tenement; and whenever for the statutory period a given space right to light. over the servient tenement has been used by the dominant tenement for the purpose of light passing through that space, a right arises to have that space left free so long as the light passing through it is used for or by the dominant tenement. The opening in the dominant tenement is the limit which defines the boundaries of the space over the servient tenement" (per Fry, J., National Co. v. Prudential Co., 6 Ch. D. 765; see Scott v. Pape, 31 Ch. Div. 554). "The right conferred or recognized by the statute 2 & 3 W. 4, c. 71, is an absolute indefeasible right to the enjoyment of the light without reference to the purpose for which it has been used. Therefore, even if the evidence satisfied me, which it does not, that for the purpose of their present business a strong light is not necessary, and that the plaintiffs will still have sufficient light remaining, I should not think the defendant had established his defence unless he had shown that for whatever purpose the plaintiffs might wish to employ the light, there would be no material interference with it" (per Lord Cranworth, Yates v. Jack, 1 Ch. 298; approved by Jessel, M. R., Aynsley v. Glover, 18 Eq. 549; and by Lord Chelmsford, Calcraft v. Thompson, 15 W. R. 387. See also Moore v. Hall, 3 Q. B. D. 182; Warren v. Brown, 1902, 1 K. B. 15; Home Stores v. Colls, 1902, 1 Ch. 302; and the rulings stated p. 104, post). There is no distinction between the right to light in town and country (Martin v. Headon, 2 Eq. 425). Skylights will be protected (Harris v. Kinloch, 1895, W. N. 60).

The doctrine as to the acquisition by prescription of an extraordinary Light for speamount of light laid down in Lanfranchi v. Mackenzie (4 Eq. 421), and cial purpose. Dickinson v. Harbottle (28 L. T. 186), and referred to by Field, J., in Dalton v. Angus (6 App. Cas. 760), has been disapproved of in the C. A. (Warren v. Brown, 1902, 1 K. B. 15). See further Mackey v. Scottish Widows Co., I. R. 11 Eq. 541 (case of a seed merchant); Cartwright v. Last, 1876, W. N. 60 (a dentist); Theed v. Debenham, 2 Ch. D. 165 (a sculptor); Parker v. First Avenue Hotel Co., 24 Ch. D. 282 (a photographer). Moore v. Hall (3 Q. B. D. 178) decides that a prescriptive right to light cannot be protected for a special purpose, unless the light has been used for that or a like purpose or there is a reasonable

Rights to
Light.

(3)

Alterations of

probability of its being hereafter applied to such purpose. But it is not necessary that there should have been a user of the light for the special purpose during the prescriptive period (4.-G. v. Queen Anne's Co., 60 L. T. 761; Lazarus v. Artistic Co., 1897, 2 Ch. 214; Warren v. Brown, 1902, 1 K. B. 15). As regards implied grants of special light, see the case where the court protected a special light for a diamond merchant so described in his lease (Herz v. Union Bank, 2 Giff. 686); but not for a woolbroker, a business not immediately contemplated at time of grant (Corbett v. Jonas, 1892, 3 Ch. 137).

The owner of an ancient light may pull down the building with a view ancient lights. to restoration without interfering with his right to light (Eccl. Commrs. v. Kino, 14 Ch. D. 213); and may change the purpose for which the building is to be used (Scott v. Pape, 31 Ch. Div. 569). Such an owner may also make alterations in the framework and glazing of his windows without losing his right (Turner v. Spooner, 1 Dr. & Sm. 467). With regard to an alteration in the plane of the window it has been laid down by the C. A. that no such alteration will destroy the right so long as the owner of the dominant tenement can show that he is using through the new apertures in the new building the same or a substantial part of the same light which passed through the old apertures into the old building (Scott v. Pupe, 31 Ch. Div. 554; see Newson v. Pender, 27 Ch. Div. 71; see further National Co. v. Prudential Co., 6 Ch. D. 757; Blanchard v. Bridges, 4 Ad. & Ell. 176; Barnes v. Loach, 4 Q. B. D. 494; Bullers v. Dickinson, 29 Ch. D. 155). In the case of an alteration, accurate evidence as to the position, &c., of the old light should be preserved (Fowlers v. Walker, 42 L. T. 356; 51 L. J. Ch. 443; Scott v. Pape, 31 Ch. Div. 554; see Pendarves v. Monro, 1892, 1 Ch. 611). But evidence of the owner's intention to preserve ancient lights is not necessary (Smith v. Baxter, 1900, 3 Ch. 138).

Unity of ownership.

(4) Abandon

For the older doctrine as to the effect of an alteration of ancient lights, see Chandler v. Thompson (3 Camp. 80); Garratt v. Sharpe (3 Ad. & Ell. 325); Martin v. Goble (1 Camp. 322); Cherrington v. Abney (2 Vern. 646). Where there is an ancient light and other lights are added, and an obstruction is raised against the added lights, which from their position cannot be obstructed without also obstructing the ancient light, the House of Lords has decided that such obstruction is illegal (Tapling v. Jones, 11 H. L. C. 290; see Frechette v. La Compagnie, 9 App. Cas. 185). This decision overrules the older cases to the contrary effect (Renshaw v. Bean, 18 Q. B. 112; Hutchinson v. Copestake, 9 C. B. Ñ. S. 863; Binckes v. Pash, 11 C. B. N. S. 324; Davies v. Marshall, 1 Dr. & Sm. 557; Cooper v. Hubbuck, 30 Beav. 160; Weatherley v. Ross, 1 H. & M. 349).

The doctrine of Tapling v. Jones applied to an injunction as well as to damages (Staight v. Burn, 5 Ch. 163; see contra, Heath v. Bucknall, 8 Eq. 1).

An union of the ownership of the dominant and of the servient tenements for different estates does not extinguish an easement of this description, but merely suspends it so long as the union of ownership continues; and upon a severance of the ownership the easement revives (Simper v. Foley, 2 J. & H. 555).

The intention to abandon a right to light must be clearly established ment of right. (Greenwood v. Hornsey, 33 Ch. D. 471). Non-user, which would not establish abandonment, may prevent the acquisition of a right (Smith v. Baxter, 1900, 2 Ch. 146). Completely shutting up windows with bricks and mortar for above twenty years will destroy the privilege of light (Lawrence v. Obee, 3 Campb. 514). And the right may be lost by nonuser for a less period than twenty years, unless an intention of resuming the right within a reasonable time be shown when it ceased to be used. As where a person, entitled to ancient lights, pulled down his house, and erected a blank wall in the place of a wall in which there had been