Obstruction of light to greenhouse–Greenhouse a ‘building’ within Prescription Act 1832–Access of light affected by neighbours’ caravan and close-boarded fence alongside boundary adjacent to greenhouse–Evidence of disastrous effect on tomatoes and pot plants–Extent of light to which dominant owner entitled–Specially high degree of light for normal use of greenhouse can be acquired by 20 years’ user to the knowledge of servient owners–Prescriptive right can be acquired to something more than illumination, namely, to all the beneficial effects of light including that of the sun’s rays on the process of plant growth–Prohibitory and mandatory injunctions granted to protect access of light to greenhouse
This was an
appeal by the plaintiffs, Hubert Allen and Marjorie Allen, his wife, against
the refusal of Vice-Chancellor Blackett-Ord (of the County Palatine of
Lancaster) to grant injunctions to restrain the defendants Tyrell Sandiford
Greenwood and Lilian Alice Greenwood, his wife, from keeping a caravan and a
close-boarded fence along the boundary of 15 Woodtop Avenue, Rochdale, Greater
Manchester, in such a position as to cause a nuisance and obstruction of light
to the plaintiffs’ greenhouse in their garden at 13 Woodtop Avenue.
H E Francis QC
and A W Simpson (instructed by Blackhurst, Parker & Yates, of Lancaster)
appeared on behalf of the appellants; P V Baker and B C Maddocks (instructed by
Brierley & Hudson, of Rochdale) represented the respondents.
Giving the
first judgment at the invitation of Buckley LJ, GOFF LJ said: This is an appeal
from an order of Vice-Chancellor Blackett-Ord dated October 6 1977, whereby he
refused relief by way of prohibitive and mandatory injunctions in respect of
the alleged obstruction of light to the appellants’ greenhouse and dismissed
the action.
The appellants
have occupied 13 Woodtop Avenue, Rochdale, since September 1954, first as
tenants, and since December 1974 as owners in fee simple. As the photographs
show, it is a pleasant detached house with a spacious garden. The respondents
are owners in fee simple of a comparable house and property, no 15 to the
south, which they purchased in 1966 and have occupied ever since. The level of
the appellants’ garden is some 26 or 28 in lower than the respondents’ and the
respondents’ land is supported by a low retaining wall commencing a little to
the east of the greenhouse, with a low brick-built pillar. The appellants’
greenhouse is of the following agreed dimensions. It is 16 ft long, 9 ft 6 in
wide, 6 ft 9 in to the eaves, and then it has a pitched roof with the ridge 3
ft above that. It is built right up against the retaining wall. In fact that
wall forms one of its walls. Two of the other three are built up to, or perhaps
bonded into, the retaining wall to form a level support, and the glazed
structure rises directly above these four walls. So on the south side the frame
of the glass is actually resting upon, or secured to, the retaining wall
itself. That wall belongs wholly to the appellants; it is not a party wall.
It is clear
that the greenhouse was built soon after the erection of no 13 some time
between 1939 and 1941, and user of it for the ordinary purposes of a greenhouse
for at least 20 years next before action brought was duly proved. The
appellants complain of an infringement of a prescriptive right to light to
their greenhouse, founding their claim on section 3 of the Prescription Act
1832, which is in these terms:
When the
access and use of light to and for any dwellinghouse, workshop, or other
building shall have been actually enjoyed therewith for the full period of 20
years without interruption, the right thereto shall be deemed absolute and
indefeasible, any local usage or custom to the contrary notwithstanding, unless
it shall appear that the same was enjoyed by some consent or agreement
expressly made or given for that purpose by deed or writing.
There was in
this case no such consent. Prior to 1969 there were certain buildings or
structures on the respondents’ land, in addition of course to their house.
There was an air-raid shelter a little to the west of the greenhouse, and a
shed to the east of the greenhouse. After the war the air-raid shelter was put
to use as a coal bunker. Mr Hubert Allen, one of the appellants, gave evidence
at the trial. He was cross-examined, suggesting that these buildings or
structures had obstructed the light to the greenhouse, but there was an open
space of some 20 ft between the air-raid shelter and the garden shed, and it
became clear that those structures did not cause any obstruction and that line
was not pursued. In that year, 1969, the respondents caused the air-raid
shelter, or coal bunker, and the garden shed to be removed. For a time they had
a car-port to the west of their garage–that is, further away from the
greenhouse–and that did not cause any obstruction. At this time they also had a
wall built across their land from the pillar to the house, and laid out the
part of their property to the east of that wall as a patio, leaving an open
tarmac space in front of the greenhouse. So there was still no obstruction.
Indeed, there was no trouble of any kind until May 1974, when the respondents
applied for planning permission to erect a two-storey extension at the rear of
no 15. Notice of that application was given to the appellants by the borough
planning officer. Mr Allen inspected the plans and formed the view that such an
extension would interfere with the access of light to the greenhouse and to his
sitting-room. He, therefore, instructed solicitors, who wrote to Mr Greenwood
on August 7 1974, saying:
Mr Allen has
inspected the deposited plans and finds that if the proposed extension is
carried out it will cause a serious diminution of the access of light to our
client’s greenhouse and some diminution of light to his sitting-room. The
buildings on our client’s land have been erected long enough to have acquired a
right to light and, therefore, we trust that you will not proceed with the
extension in such a way as to infringe the rights of our clients. Mr Allen has
felt it necessary to lodge a formal objection to your application.
We trust that
it will not be necessary for our clients to take any further steps to enforce
their rights and we shall be glad to hear from you that the matter can be
amicably disposed of.
There was no
reply to that letter, but shortly afterwards the respondents started to park
their caravan immediately alongside the greenhouse. Prior to that it had been
parked to the west of the old car-port; that is, between the car-port and the
road, where, of course, it was not an obstruction to the greenhouse.
On August 28
1974 the respondents put in posts, or supports, for a fence very close to the
greenhouse. That fence, which is close-boarded and creosoted, was finished by
September 1 from a point at the east end of the greenhouse nearly, but not
quite, up to the west end. The fence was built to a height which, having regard
to the difference in level of the two properties, brought it about 18 in above
the eaves. The appellants’ solicitors wrote a further letter on September 6
1974 in the following terms:
Further to
our letter of the 7th August 1974 we are now informed that you have erected a
boarded fence on the boundary of your property adjacent to that of our client’s
the top of which in part by reason of the difference of levels extends 9 ft
above the level upon which our client’s greenhouse stands and is at a distance
of approximately 5 in from it.
This fence
naturally interferes very seriously indeed with the access of light to the
greenhouse.
We have
already pointed out to you that our client has acquired a right to light by
prescription in view of the fact that the greenhouse has occupied its present
position for a period considerably in excess of 20 years.
Unless
therefore the fence in its present form is removed our client will institute
proceedings for an order to enforce its removal without delay.
We must
therefore request you to advise us within the next 7 days that this will be
done.
On receipt of
that letter the fence, so far as it was immediately opposite the greenhouse,
was dismantled, but the caravan was then again placed alongside the greenhouse.
Between October 1974 and February 5 1975 the fence was restored and extended
right to the west end of the greenhouse and approximately 5 1/2 ft beyond. When
first restored it came only up to eave level, but it was later raised to 18 in
above, when the appellants’ gardener placed boxes of seeds and young plants at
about eave level to get as near to the light as possible to prevent them from
getting drawn up.
The position,
therefore, when the action commenced was, and it still is, that there is this
fence from the east end of the greenhouse to a point some 5 ft 6 in beyond it
on the west, only about 6 in away from the glass, with the caravan parked close
up to the fence.
It was clear
from Mr Allen’s evidence that the greenhouse had been used at all material
times in the ordinary normal way in which such an appurtenance would be used in
a private garden. He was asked: ‘What use–since 1954 when you went into
occupation of the house–have you made of the greenhouse?’ and he answered: ‘I have invariably grown
tomatoes during the summer. We have raised our own plants from seed.’ Then the learned Vice-Chancellor asked: ‘Do
you mean tomato plants?’ and Mr Allen
answered: ‘Tomato plants. Sometimes we have bought tomato plants; sometimes we
have raised them from seed. Then we have geraniums, and we raise cuttings and
so forth. Indeed, we are accustomed also to grow pot plants for the purpose not
only of being able to see them in the greenhouse, but also when required to be
able to take them inside the house. My wife is fond of plants and flowers
inside the house, and I am myself for that matter. Of course, the greenhouse
has served a useful purpose in that sense.’
Then counsel went on: ‘You have mentioned so far tomatoes, geraniums and
house plants? (A) Yes. (Q) Do you raise any
plants other than tomatoes from seeds?
(A) Oh, yes, a whole range of biennial-type bedding plants that one
raises from seed in the spring. (Q) What sort of plants? (A) Stocks, antirrhinums, various kinds of
marigold, zinnias, violets, pansy–the red ones that are rather tender; that
sort of plant, you see.’
He also gave
evidence of the disastrous effect of the obstructions and he said:
Some things
do not like too much light, I can put ferns there, but it is no use trying to
grow flowers there, so, in effect, I am in difficulty now cultivating flowers
in pots in that greenhouse, which I was able to do earlier, prior to the
existence of the fence. It used to be nice to walk into the greenhouse and see
flowers, and also it used to supply the house with flowering plants.
In reply to a
question from Mr Francis: ‘What about seedlings?’ Mr Allen said:
We are able
to grow some, but we are still somewhat deprived, because we cannot; we used to
erect a temporary bench at the southerly side to put the seed trays on before
they germinated, and just for a short time after germination. There is no point
in that now. Virtually speaking, the southern half of my greenhouse is useless
for what were previously its normal functions. In respect of my seedlings, when
I grow them I have to bring them towards the centre of the greenhouse more than
would have been necessary. The result is that there is a greater depth between
the seed pans and the glazing, and there is a greater tendency for them to be
drawn, and be less sturdy plants.
and then the
learned Vice-Chancellor summed up his evidence by saying:
What it boils
down to is that you say that half of your greenhouse is really very little use.
to which Mr
Allen replied:
Yes.
He was
cross-examined, but the cross-examination did not shake him, and the learned
Vice-Chancellor found as follows:
The result, of
course, is totally to exclude all sunlight from the south except to a small
extent when the sun is high, and roughly half of the greenhouse gets no sun at
all . . . I accept the evidence of Mr Allen, which was very fairly given, that
the use of the greenhouse for the purposes for which he was expected to use it,
namely growing tomatoes and pot plants, has been seriously interfered with.
He further
found:
. . . there
is, of course, plenty of light left in the greenhouse for actually carrying out
any operations. If you want to pick the tomatoes, or pot some plants, or indeed
if you want to get away from the family and read a book, there is plenty of
light for those purposes in the greenhouse.
The learned
Vice-Chancellor further held:
Here, of
course, the structure was obviously a greenhouse, but there is no evidence that
the owners of the servient tenement, the successive owners, knew the precise
use which was being made of it. Some plants require more light than others. . .
. There is ample light left in the greenhouse, I find, for everything except
the special purpose of growing certain plants.
It is to be
observed that he did not say that there was anything special about the plants;
nor indeed was there. So the ratio decidendi of the learned
Vice-Chancellor’s decision is that a greenhouse is a building which by its
nature requires special light and there is no nuisance, although that purpose
be defeated, so long as there is enough light to work in the place, though the
work be rendered useless or seriously less effective, so long as there is
sufficient light to use it as if it were a living-room in a house, and not a
greenhouse–at all events, unless the servient owners have some particularly
detailed knowledge of the user, which the Vice-Chancellor described as
‘precise.’
Such being the
facts, the first question which arises is whether a greenhouse is a ‘building’
within the meaning of section 3 of the Prescription Act 1832, and Clifford
v Holt [1899] 1 Ch 698 is an express decision that it is. The
respondents reserved the right to argue in this court that it was not, but they
have not done so and I proceed on the basis that it is. Also, a greenhouse is
not to be regarded simply as a garden under glass, but as a building with
apertures, namely, the glass roof and sides: see Gale on Easements, 14th
ed p 239.
Accordingly,
the appellants submit that they had, by the time they commenced their action,
acquired a right of light to the greenhouse, and they say ‘The law will protect
the dominant owner in the enjoyment of so much light as, according to the
ordinary notions of mankind, he reasonably requires for all ordinary purposes
for which the building is adapted,’ and further that the evidence shows, as it
does, that the user throughout the 20 years has been the normal and ordinary
use of a greenhouse in a private garden. Therefore, they submit, they are
entitled to such light as is reasonably required for the continuation of that
use, as being light required for the ordinary use of that type of building.
Alternatively, they say that as they have in fact so used the greenhouse for
the full period of 20 years, they are entitled to such light as is required for
the normal use of the green-house, even though that use should be regarded as
one which calls for a specially high degree of light.
The
respondents, on the other hand, say that the appellants are, at the least,
claiming a specially high degree of light, which they cannot have because, it
is submitted, one can only prescribe for light which is required for ordinary residence,
or ordinary business, in the tenement in question; and they say that ordinary
business means a business requiring an ordinary amount of light, not
necessarily to be measured by the business in fact being carried on there or
the business for which the tenement is adapted. But their objection goes much
deeper than that, for they say that in any event one can only prescribe a right
to light, whether ordinary or special in degree, for purposes of illuminations,
not a right to the direct rays of the sun, or to heat, or to other beneficial
properties from the sun’s rays. In effect they submit that the appellants are
out of court because of the Vice-Chancellor’s finding, which I have read, as to
the amount of light remaining in the greenhouse. They argue that the appellants
are not claiming light for human purposes or activities, but for its beneficial
effect upon the plants or, looking at it another way, for the purpose of
carrying out some chemical process. By analogy with a factory or workshop they
submit that there is no actionable wrong if there be enough light to enable the
workman to see what he is doing, even if he is carrying out some process which
itself requires light, and there is insufficient to make it work.
The starting
point for the resolution of these contending arguments must be in the case of Colls
v Home & Colonial Stores Ltd [1904] AC, 179, which does, as it seems
to me, establish the basic principle that the measure of the light to which
right is acquired, of which it has to be seen whether there is such diminution
as to cause a nuisance, is the light required for the beneficial use of the
building for any ordinary purpose for which it is adapted. I think this emerges
clearly from the speech of Lord Davey, with which Lord Robertson agreed, and
from that of Lord Lindley. Lord Davey, at p 198, approved a passage from the
judgment of James LJ in Kelk v Pearson (1871) 6 Ch App 809, which
is in these terms:
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.
and now come
the important words–
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.
Lord Lindley,
at p 208, approved a similar passage in the case of City of London Brewery
Co v Tennant (1873) 9 Ch App 212, and Lord Lindley said:
That
doctrine, as stated in (the case I have just mentioned) 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. 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.
Those passages
do, in my judgment, tie the measure of the light to the nature of the building
and the purposes for which it is normally adapted.
Mr Baker
relied considerably on a dictum of Bray J in Ambler v Gordon
[1905] 1 KB 417, at p 422, where he said: ‘I think that the word ‘ordinary’ is
used solely with reference to light, and an ordinary user or ordinary business
means a user or business which in fact requires only an ordinary amount of
light,’ and he submits that there is only one standard, which does not vary
with the type of building. That case, of course, is not binding upon us, and I
confess for my own part that I do not wholly understand the conception of ‘an
ordinary amount of light’ in the abstract. It seems that what is ordinary must
depend upon the nature of the building and to what it is ordinarily adapted.
If, therefore, the building be, as it is in this case, a greenhouse, the normal
use of which requires a high degree of light, then it seems to me that the
degree is ordinary light. Therefore, subject to the respondents’ argument, to
which I shall refer as the overriding argument, and which I shall consider
later in this judgment, that the light of which the appellants have been
deprived is not, on the findings, required for illumination but for the process
of raising and growing plants, I would hold that in the case of a greenhouse,
light required for its normal use is ordinary and is, therefore, acquired under
the Act by 20 years’ enjoyment.
But lest I be
wrong on that, I turn to consider, still subject to the overriding argument,
whether assuming it is a specially high degree of light, the right to it is
acquired by 20 years’ user to the knowledge of the servient owners. The learned
Vice-Chancellor said that the case of Ambler v Gordon is ‘a clear
decision that no claim of right by prescription for an extraordinary amount of
light lies when the servient owner is unaware of the use being made of the
dominant tenement.’ That I accept and
apply, but the learned Vice-Chancellor went on, as I have already read, to say
that there was no evidence that the owners of the servient tenement knew the
precise use which was being made of it. In my judgment, however, with all
respect, that was an error. It is an irresistible inference from the
photographs that the respondents and their predecessors, owners successively of
no 15, must have been fully aware at all times of the way in which the greenhouse
was being used. As Buckley LJ said in argument, the contrary is inconceivable.
There is no suggestion in this case that the greenhouse is now, or ever has
been, used for any exotic purpose. The problem, therefore, is whether a right
to a specially high degree of light can be acquired by known enjoyment of that
specially high degree for the full period of 20 years. Strangely enough, there
is no decision on this question, although there are conflicting dicta.
The first is
that of Vice-Chancellor Malins in Lanfranchi v Mackenzie (1867)
LR 4 Eq 421, where he said at p 430:
I intend to
decide this case on broad general principles, and my view of the law is this,
that if there be a particular user, and the quantity of light claimed for that
is such as would not belong to the ordinary occupations of life, a person who
claims that extraordinary quantity of light cannot establish his right to it
unless he can show that he has been in the enjoyment of it for 20 years. If a
man cannot establish a right within 20 years to an ordinary quantity of light,
how can he establish in a less period the right to an extraordinary
quantity? All he can establish is the
right to the quantity of light he would be entitled to for ordinary purposes.
If he has been in the enjoyment of an extraordinary user for 20 years, that
would establish the right against all persons who had reasonable knowledge of
it.
Lord Davey,
however, threw some doubt upon that in Colls’ case at pp 203 and 204,
where he said:
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. Vice-Chancellor Malins 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.
In Ambler
v Gordon [1905] 1 KB 417, Bray J went further and specifically disagreed
with Vice-Chancellor Malins, saying at p 424: ‘I am, however, prepared to go
further, and to hold that even 20 years’ enjoyment to the knowledge of the
servient tenement will not give a larger right.’
With all
respect to Lord Davey, who after all merely reserved his opinion, and to Bray
J, I would adopt Vice-Chancellor Malins’ dictum. It is clear that a right to a
greater degree of light than such as is normally obtained by prescription could
be the subject of a valid grant, and in my judgment, therefore, it is capable
of being acquired by prescription. That being so, provided it is enjoyed for
the full period of 20 years to the knowledge of the servient owners, I fail to
see any ground upon which it should be held not to have been acquired by
prescription.
Of course,
where the operation which needs special light is carried on indoors it may be
very difficult in fact to prove sufficiently precise knowledge, but here the
user was completely obvious. The learned Vice-Chancellor, Blackett-Ord, decided
this point against the appellants, as I have already observed, on the ground
that there was no evidence that the owners of the servient tenement knew the
precise use which was being made of the greenhouse, but with all respect to
him, in my judgment the evidence was amply sufficient to prove knowledge, and
sufficient knowledge.
In my
judgment, therefore, the crux of this case at the end of the day is the
overriding argument, which I must now consider. The respondents argue on this
as follows:
(1) In Colls’ case the House of Lords was
seeking to limit, or restrict, the extent of the right to light, so as to
prevent undue restrictions on the development or improvement of surrounding
land or buildings, and the court should be very chary of any extension of the
right;
(2) That although the standards prescribed by the
speeches in Colls’ case are expressed in terms susceptible of a wider
interpretation, in their context they must be taken as referring to
illumination only;
(3) That in all cases, at least since Colls’,
the right to light has been tested or measured in terms of illumination only.
They refer, for example, to Mr Waldram’s calculations and the theory of the
‘grumble point’ (see Charles Semon & Co v Bradford Corporation
[1922] 2 Ch 737 at pp 746 and 747) and to the case of Hortons Estates Ltd
v James Beattie Ltd [1927] 1 Ch 75, where the question was whether the
extent of the right to light should vary according to locality, and Russell J
said, at p 78: ‘. . . the human eye requires as much light for comfortable reading
and sewing in Darlington Street, Wolverhampton, as in Mayfair.’
Mr Maddocks on
their behalf, in his supporting argument, referred also to Warren v Brown
[1900] 2 QB 722 at p 725, where the test was stated to be ‘all ordinary
purposes of inhabitancy or business,’ and to the test applied by this court in Ough
v King [1967] 1 WLR 1547, ‘ordinary notions of contemporary
mankind.’ These, however, I think, are
at best neutral and possibly tell the other way, since a green-house is
perfectly normal and ordinary in private gardens. So far as the last case is
concerned, however, Mr Maddocks relied upon the fact that this court approved
of the county court judge having had a view, which again, he suggests, points
to illumination as the test, though that I take leave to doubt.
(4) That in no case since Colls has the
right to light been established, save on the basis of what is required for
illumination.
That is true,
but in Lazarus v Artistic Photographic Co [1897] 2 Ch 214
Kekewich J expressly extended the right to light for photography, which is not
simply illumination but extra light required to effect a chemical process. That
case was wrongly decided, because he held that such a right could be acquired
though the special light required for the purpose had been enjoyed for part
only of the 20 years, but nevertheless it has, I think, some value as a
negation of the respondents’ argument. Moreover, in Colls’ case itself,
at p 203, Lord Davey instanced a photographic studio. True, he was there saying
that one could not increase the burden on the servient tenement by changing
over to such user within the 20 years, but at least he clearly envisaged a
claim to light for such a purpose as a possibility.
(5) A distinction must be drawn between the heat
and other properties of the sun and the light which emanates from it, and the
respondents say that, having regard to the Vice-Chancellor’s findings, the only
complaint that the appellants can have is loss of heat or radiant properties,
and they postulate the example of a swimming pool, part of which is
fortuitously warmed by sunlight coming through a south window. They say, and I
have no doubt rightly, that the owners could have no cause of action against
one who, while leaving fully adequate light for the complete enjoyment of the
swimming pool, so shaded the sun as to deprive it of this chance warmth. That,
I think, is a very different case from the present.
(6) That in reality or in substance the injury
here is not deprivation of light, but of heat or other energising properties of
the sun and it is the plant life and not the human beings who are deprived.
I do not think
this last point is in any case wholly accurate, as plants need light as well as
heat, but it seems to me, with all respect to the learned Vice-Chancellor and
to counsel, to lead to an absurd conclusion. It cannot, I think, be right to
say that there is no nuisance because one can see to go in and out of a
greenhouse and to pot plants which will not flourish, and to pick fruit which
cannot properly be developed and ripened, still less because one can see to
read a book.
The appellants
answer all this simply by submitting that they are entitled, by virtue of their
respective right to light, to all the benefits of the light, including the rays
of the sun. Warmth, they say, is an inseparable product of daylight, and they
stress the absurd conclusion which I have already mentioned, to which the
contrary argument inevitably leads. This reply commends itself to me, and I
adopt it. So the overriding argument, in my judgment, does not prevail, and
for the reasons I have already given the appellants are right, both on their
primary and their alternative case, and I would allow this appeal.
Subject to any
observations of my brethren or of counsel, I would grant an injunction on the
following lines: restraining the defendants by themselves, their servants,
contractors, workmen or otherwise from continuing to keep the caravan and fence
in such a position on the defendants’ property as to obstruct or diminish the
access of light to the southerly and south-easterly walls and glass roof of the
said greenhouse to such an extent as to cause a nuisance. Secondly, a mandatory
order that the defendants do forthwith remove the said caravan and fence from
such a position as so to obstruct or diminish the access of light to the said
southerly and south-easterly glass walls and glass roof of the said greenhouse.
I desire,
however, to add one important safeguarding proviso to this judgment. On other
facts, particularly where one has solar heating (although that may not arise
for some years) it may be possible and right to separate the heat, or some
other property of the sun, from its light, and in such a case a different
result might be reached. I leave that entirely open for decision when it
arises. My judgment in this case is based upon the fact that this was a
perfectly ordinary greenhouse, being used in a perfectly normal and ordinary
manner, which user has, by the respondents’ acts, been rendered substantially
less beneficial than it was throughout the period of upwards of 20 years before
action brought, and if necessary upon the fact that all this was known to the
respondents and their predecessors for the whole of the relevant time.
ORR LJ:
agreed.
BUCKLEY LJ
delivered a concurring judgment, in the course of which he said:
In the case of
an easement of way, the extent of the use to which a claim can be established,
whether on foot only or with animals or vehicles, depends, whether under the
doctrine of lost grant or prescription, on the nature of the user which has
been enjoyed as of right for a sufficient period. By analogous reasoning it
seems to me that the same principle should apply to an easement of light. If in
any case it could be shown that a use of the dominant tenement for a period and
in circumstances justifying the implication of a lost grant has been such as to
make an exceptional amount of light necessary for the particular use to which
the tenement has been put, I can see no reason why a lost grant of such an
exceptional amount of light should not be presumed. If in any case it can be
shown that there has been such a use of the dominant tenement for 20 years or
upwards before action brought, I see no reason why a prescriptive right should
not be obtained in respect of the dominant tenement to such an exceptional
amount of light as may be necessary to the satisfactory enjoyment of that use;
but the use, to demonstrate a claim as of right to the exceptional amount of
light, must be one which, according to ordinary notions, reasonably requires
such an exceptional amount of light and must be known at all material times to
the occupier of the servient tenement. Whether the use must be continuous
throughout the period is not a question which arises in the present case, for
it is not disputed that in this case the greenhouse has been used by the
occupiers of no 13 as an ordinary domestic greenhouse throughout the 20-year
period.
Accordingly, I
agree with Goff LJ that if the plaintiffs’ claim is not good on the basis of
the ordinary use of light for a building of the character of a greenhouse, it
succeeds as a claim to an extraordinary amount of light enjoyed as of right to
the knowledge of the occupiers from time to time of no 15, throughout the
period of upwards of 20 years before action brought.
The court made an order for an injunction in the
terms proposed by Goff LJ. The appeal was allowed with costs in the Court of
Appeal and below. Leave of appeal to the House of Lords was refused.
