Flight and Others against Thomas
| Jurisdiction | England & Wales |
| Judgment Date | 03 February 1840 |
| Date | 03 February 1840 |
| Court | Court of the Queen's Bench |
English Reports Citation: 113 E.R. 575
IN THE COURT OF QUEEN'S BENCH.
S. C. 3 P. & D. 442; 10 L. J. Ex. 529. Affirmed in House of Lords, 8 Cl. & F. 231; 8 E. R. 91 (with note).
[688] in the exchequer chamber. (error from the queen's bench.) flight and others against thomas. Monday, February 3d, 1840. Under stat. 2 & 3 W. 4, c. 71, sects. 3 and 4, a party is prescript!vely entitled to the access and use of light, if his enjoyment commenced twenty years next before the bringing of an action in which the right is contested, provided such enjoyment has not at any time been interrupted, and the interruption acquiesced in, for a ..^-*. 77. 576 FLIGHT V. THOMAS %1 AD.ft B. 689. whole year. The clause of sect. 4, requiring that the interruption, to bar a prescriptive title, shall have been acquiesced in for more than a year, is not limited to obstructions preceded and followed by portions of the twenty years, but applies also to an obstruction ending with that period. Therefore a prescriptive title to the access and use of light may be gained by an enjoyment for three hundred and thirty days, followed by an obstruction (not acquiesced in) for thirty-five days. [S. C. 3 P. & D. 442; 10 L. J. Ex. 529. Affirmed in House of Lords, 8 Cl. & F. 231; 8 E. R. 91 (with note).] Case. The first count of the declaration stated that the plaintiff (below), before and at the time of the committing, &c., was, and from thence hitherto hath been, and still is, lawfully possessed of a certain messuage or house with the appurtenances, situate, &c., in which said messuage or house, during all the time aforesaid, there were, and still of right ought to be, divers, viz. three, windows through which the light and air, during all the time aforesaid, ought to have entered, and, until the committing, &c., did enter, and still of right ought to enter, into the said messuage or house, for the convenient and wholesome use, occupation, and enjoyment thereof: yet defendant* (below), well knowing, &c., but contriving, &c. to injure plaintiff, and to deprive him of the use, benefit, and enjoyment of a certain one of the said windows, and to annoy and inconvenience him in the use, possession, and enjoyment of the said messuage or house with the appurtenances, heretofore, viz. on 1st January, A.D. 1832, wrongfully and injuriously erected and raised, and caused and procured to be erected and raised, a certain wall and building near to the last mentioned of the said windows ; and afterwards, viz. on 1st February in the year afore-[689]-said, wrongfully and injuriously erected and raised, and caused, &c., a certain other wall and building near to the said last mentioned of the said windows; and wrongfully and injuriously kept and continued the said walls and buildings so there respectively wrongfully erected and raised for a long time, viz. from the respective times of raising and erecting the same until the time of the commencement of this suit: by means of which said premises the said messuage or house, during all the time aforesaid, was and is greatly darkened, and the light and air were and are hindered, &c. First plea to the first count, except as to the parts mentioned in the introductory part of the second plea, not guilty. Second plea to the first count, as to erecting part of the first wall mentioned, and thereby preventing light and air from entering through part, viz. the middle part, of the said window, near to which, &c., actionem non, because defendants say that, at the time of their erecting, and causing, &c., the said part of the said wall and building, the said part of the said window in this plea mentioned had been made, and had existed and been enjoyed, and the access and use of light and air through and by means of the said part of the same window and the opening and space thereof had been enjoyed, for a certain short space of time only, and for a less period than twenty years, that is to say, for nineteen years and a part of another year, only : and that the said part of the said wall, &c., in this plea mentioned, was kept and continued from the said time of the raising and erecting thereof continually until the commencement of this suit and hitherto; and that the space or period of one year did not elapse from the said time of the raising [690] and erecting of the said part of the said wall, &c. before or until the commencement of this suit: and that, at the time of the erecting and raising of the said part of the said wall, &c., viz. on 1st January, A.D. 1832, and from the time of such last mentioned erecting and raising continually until the commencement of this suit, plaintiff had notice that defendants had erected and raised the said part of the said wall, and thereby prevented the light and air from entering into the said house through the said part of the said window : and that, at the time of the said erecting and raising and causing to be, &c. the said part of the said wall, in manner, &c., and continually from thenceforth until the commencement of this suit, the light and air ought not to have entered through the said part of the said window into the said house for the convenient or wholesome use, occupation or enjoyment thereof, save for and by reason and means of the premises in this plea in that behalf aforesaid ; without this, that the light and air ought to have entered through the said part of the said window in this plea mentioned, in manner, &c...
To continue reading
Request your trial
-
Yard v Ford
...third section, provided the action be brought after the expiration of twenty years, and before the interruption has continued for a year. 11 A. & E. 688, Flight v. Thomas. 3 P. & D. 442, S. C., affirmed in Dom. Proc. 8 Cl. & F. 231. Whether it is another consequence of this construction tha......
-
Hunt v Peake
...9th ed.), Hide v. Thornborough (2 C. & K. 250), Dodd v. Holme (1 Ad. & E. 493), Arkwright v. Gell (5 M. & W. 203), Flight v. Thomas (11 Ad. & E. 688), Partridge v. Scott (3 M. & W. 220), Gayford v. Nicholls (2 Com. L. Eep. 1066), Balstm v. Bensted (1 Camp. 463), Acton v. Blundell (12 M. & W......
-
Benison against Cartwright
...in an interruption must be asserted by bringing an action. In (a) 8 CI. & F. 231. Affirming the judgment of the Exch. Ch., 11 A. & E. 688. K. B, li. -24 738 BBNN1SON V. CART WRIGHT B B. & S. 13. that case Parke B., in delivering the judgment of the Court, pp. 242-3, adverted to the apparent......
-
Fellowes against Clay, Clerk
...and unjustly defeated. The question then is, whether the statute gives (a) April 18th. (b) May 25th. Before the same Judges. (g) 11 A. & E. 688. Affirmed in Dam. Proc. Flight v. Thomas, 8 Clark & Fin. 231. (u) Cro. Eliz. 216. See S. C. 1 Gwill. 163; cited also in Wright v. Wright, 1 Gwill. ......