In the Exchequer Chamber
| Jurisdiction | England & Wales |
| Judgment Date | 06 February 1856 |
| Date | 06 February 1856 |
| Court | Exchequer |
English Reports Citation: 156 E.R. 1079
IN THE EXCHEQUER CHAMBER.
Referred to, Dent v. Auction Mart Company, 1866, L. R. 2 Eq. 249; Wheaton v. Maplo and Company, [1893] 3 Ch 48; Colls v. Home and Colonial Stores, [1904] A. C. 179, Fear v. Morgan, [1906] 2 Ch. 406.
[855] in the exchequer chamber. (In Error from the Court of Exchequer.) truscott v. the master and wardens of the merchant tailors' company. Feb 6, 1856.-The custom of London, which enabled the owner of an ancient house to erect a new house on the old foundations to any height, and so obstruct the access of light through his neighbour's ancient windows, is abrogated by the 3rd section of the Prescriptive Act, 2 & 3 Will. 4, c 71 [Referred to, Dent v. Auction Ma-it Company, 1866, L. R. 2Eq. 249 ; IFheaton v. Maph and Company, [1893] 3 Ch 48 ; Colls v. Home and Colonial Stores, [1904] A. C. 179 , Fear v. Morgan, [1906] 2 Ch. 406.] The declaration stated that the plaintiffs were possessed of a school-house and certain buildings and premises, in which were certain windows, to, into, and through which the plaintiffs weie entitled to have the light and air come and enter, and the defendant, by causing to be erected, and by continuing, certain walls and buildings near to the said windows, walls, buildings, and premises of the plaintiffs, obstructed, hindered, and prevented the light and air from coming and entering to, into, and through the same, and in so ample and beneficial a manner as they should have done and otherwise would have done, and darkened and obscured the said windows, buildings, and premises of the plaintiffs, to the great injury, inconvenience, and annoyance of the plaintiffs in the use and enjoyment of the said windows, buildings, and premises, &c. Plea. That the said school-house, buildings, premises, and windows were and are in the city of London ; and that in the city of London, from time whereof the memory of man is not to the contraiy, there hath been and still is an ancient and laudable custom there used and approved of, that if any person or persons or body corporate has or have a messuage or house in the said city near or contiguous and adjoining to another ancient messuage or house, or the ancient foundations of another ancient messuage or house, in the said city, of another person or persons or body corporate, his or their neighbour there, and the windows or [856] lights of such messuage 01 house as first aforesaid are looking fronting, or situate towards, upon, or over 01 ag.iirist the said other ancient messuage or house, or ancient foundations of anothei ancient messuage or house, of such other person or persons or body corporate, his or their neighbour there, so being near, adjacent, contiguous, or adjoining, although such messuage or house as first aforesaid and the lights and windows thereof be or weie ancient, yet such other person or persons or body corpoiate, his or their neighbour, 1080 TRUSCOTT V. THE MERCHANT TAILORS' COMPANY 11 EX. 857. being the owner or owners of such other ancient messuage or house or ancient foundations, so being near, adjacent, or adjoining, by and according to the custom of the said city, in the same city for all the time aforesaid used and approved, well and lawfully may, might, and has used at his or then will and pleasuie, bis 01 their said other messuage or house so being near, adjacent, or adjoining, by building to exalt or erect, or of new upon the said ancient foundations of such other messuage or house so being near, adjacent, or adjoining, to build 01 erect a new messuage or house, to such height as the said owner or owners shall please, against and opposite to the said lights and windows near or contiguous to such other messuage or house, and by means thereof to obscure and darken such windows or lights, unless there be or hath been some writing, instrument, or record of an agreement or restriction to the contrary thereof in that behalf. That, befoie and at the time of the alleged grievances, the defendant was seized and possessed of an ancient messuage and house, and the foundations of a certain ancient messuage and house in the city of London, near, adjacent, contiguous, and adjoining to the said school-house and buildings and premises of the plaintiffs, and towards which the said windows looked and fronted, and being so seised, and there being and having been no writing, instrument, or record of an agreement or restriction to the contiary thereof in that behalf, the defendants, before and at the time of the alleged grievances, accoiding to the said [857] custom, exalted and erected his said ancient messuage and house, and of new upon the said ancient foundations built and erected a new messuage and house against and opposite to the said windows of the plaintiffs, and thereby a little and to a necessary and unavoidable extent obscured and darkened such windows ò qme sunt eadem &c. Replication. That the said access and use of light and air to and from the school-house, buildings, and premises into and through the said windows, which access and use of light and air was so obstructed and injuied by the defendant's acts, had been and was actually...
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