Obstruction of ancient lights — Extension being built on property adjacent to plaintiff’s premises — Plaintiff contending that he objected — Whether plaintiff acquiesced or submitted to loss of light — Appeal by defendant allowed
The plaintiff, D, was the owner of a dwelling-house, “Hillcot”, Crowborough, Sussex. He brought an action for obstruction of ancient lights against his neighbour, the defendant, T, owner of the adjacent premises, “Hilldown”. Both houses had been acquired in 1970. In 1977 T had submitted an application to Wealdon District Council for an extension consisting of a new bedroom, shower room and garage to be added to T’s house on the south-eastern side adjacent to D and affecting light to a second bedroom of D’s house. The plans were passed in December 1977. D swore that he was never notified by the council although the council records showed that the neighbour on the other side did receive a notification of T’s plans from the council. The extension did block off some light which affected D from the autumn of 1978. D claimed that he had objected at the time but did not go to the council’s office to see the plans. There was a lull in the building operations and the work was not completed until 1981. D complained to the council and an officer inspected the premises. D then saw his solicitor in February 1982 and left the matter to rest with him. In answer to T’s counsel under cross-examination, D said: “They [Triplow] said it was nothing to do with me. I complained about both the door and the light. I am not a lawyer … The loss of light came afterwards when I went to the solicitor, that is when it came up.” D’s legal aid certificate materialised in 1982 to 1983 and the actual summons was served on T in August 1984. The defence contended that the plaintiff had acquiesced for more than one year after the interruption.
The judge found as a fact that there had been an interruption as from November 1980 to 1984, a period of almost four years prior to the issue of the summons. He concluded, however, that: “D had proved on the balance of probability that there had been in excess of 20 years uninterrupted use of light and … that after November 1980, he did not acquiesce in the defendant’s actions in reducing the light to the second bedroom. As a matter of law his legal inaction …does not preclude him now from taking action nor indicate acquiescence since he was unaware of his lawful rights …”. T appealed.
The Prescription Act 1832 provides that: “Where the … use of light … shall have been actually enjoyed for a full period of 20 years without interruption, the right thereto shall be deemed absolute …” (section 3). “No act … shall be deemed to be an interruption … unless the same shall have been … submitted to or acquiesced in for one year …” (section 4).
Held The appeal was allowed.
1. It was admitted on both sides that the question of submission/acquiescence was a question of fact. However, the finding of submission/acquiescence was an inference from the findings of fact: see Benmax v Austin Motor Co Ltd [1955] AC 370. In Coghlan v Cumberland [1898] 1 Ch 704, it was stated that: “Even where … the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case … The Court must then make up its own mind … and not shrink from overruling [the judgment] if on full consideration, the court comes to the conclusion that the judgment is wrong.”
2. In Glover v Coleman (1874) LR 10 CP 108, acquiescence was defined as not an “active agreement but what may be called a tacit or silent agreement”. While opposition would be manifested by some act of opposition, “submitted to was something intermediate …”.
In the instant case, there was no evidence on record of complaint within the period of 12 months from the creation of the interruption. There were no findings of fact as to acquiescence/submission/ opposition during February 1982 to August 1984, once D had passed the matter to a lawyer. That conclusion did not satisfy section 4 of the Prescription Act 1832. On the contrary, D had acquiesced in, or submitted to, the interruption to light for a period greater than 12 months.
Derek Holwill (instructed by Cripps Harries Hall, of Heathfield) appeared for the appellant, Mr Triplow; and John Reddish (instructed by Cooper & Burnett, of Tunbridge Wells) appeared for the respondent, Mr Dance.
