Thomas Tapling, - Plaintiff in Error; Hugh Jones, - Defendant in Error
| Jurisdiction | UK Non-devolved |
| Judgment Date | 16 March 1865 |
| Court | House of Lords |
| Date | 16 March 1865 |
English Reports Citation: 11 E.R. 1344
House of Lords
Lights - Obstruction - Windows - Easements - Invasion of Privacy - Restoration - 2 and 3 Will. 4, c. 71.
Mews' Dig. v. 1131, 1154, 1158. S.C. 34 L.J. C.P. 342; 12 L.T. 555; 13 W.R. 617; 11 Jur. N.S. 309; 20 C.B. N.S. 166. On point (i.) as to right to ancient lights, adopted in Jordeson v. Sutton, Southcoates and Drypool Gas Co. (1898), 2 Ch. 626; (ii.) alterations in windows, distinguished in Heath v. Bucknall, 1869, L.R. 8 Eq. 1; adopted in Newson v. Pender, 1884, 27 Ch.D. 43; and considered in Frechette v. La Compagnie Manufacturiere de St. Hyacinthe, 1883, 9 A.C. 185.
THOMAS TAPLING,- Plaintiff in Error; HUGH JONES,- Defendant in Error [February 17, 20, and 21, March 16, 1865]. [Mews' Dig. v. 1131, 1154, 1158. S.C. 34 L.J. C.P. 342 ; 12 L.T. 555 ; 13 W.R. 617 ; 11 Jur. N.S. 309 ; 20 C.B. N.S. 166. On point (i.) as to right to ancient lights, adopted in Jordeson v. Sutton, Southcoates and Drypool Gas Co. (1898), 2 Ch. 626; (ii.) alterations in windows, distinguished in Heath v. Bwcknatt, 1869, L.R. 8 Eq. 1 ; adopted in Newson v. Fender, 1884, 27 Ch.D. 43 ; and considered in Frechette v. La Compagnie Manufacturiere de St. Hyacinthe, 1883, 9 A.C. 185.] Lights - Obstruction - Windows - Easements - Invasion of Privacy - Restoration - 2 and 3 Will. 4, c. 71. The right to ancient lights now depends on statute (2 and 3 Will. 4, c. 71), and so does not require, and ought not to be rested on, any [presumption] or fiction of a license. Therefore, as the statute declares it to be absolute and indefeasible, it cannot be lost by a temporary intermission not amounting to abandonment, nor can it be forfeited by any attempt to extend the right. " The right to obstruct a new light " is an unmeaning expression. The right is that of a man to use his own land, though his so using it may obstruct the light received through the window of an adjoining house. Invasion of privacy by opening a window which overlooks another man's grounds, is not recognised by law as a wrongful act. The opening of a new window being in itself an innocent act, cannot therefore * The Master of the Rolls had made a similar direction, on the ground that the original testator himself had created the difficulty, 33 Beav. 362. 1344 TABLING V. JONES [1865] XI H.L.C., 291 destroy existing rights in one party, or give new, or revive old rights in another. Consequently, where there was an ancient light, and then others were added, and an obstruction was raised against the added lights, which from their position could not be obstructed without obstructing the ancient light, such obstruction was illegal. Renshaw v. Bean, 18 Q.B. 112, and Hutchinson v. Copestake, 8 Com. Ben., N.S., 102; 9 Com. Ben., N.S., 863, overruled. This was an action for obstructing lights, brought by Jowes against Tapling. The Plaintiff in the first count of [291] his declaration, alleged a right to the access of light and air through certain ancient windows in a building. The count went on and stated for breach that the Defendant by wrongfully building and continuing a wall, prevented such access of light and air. In a second count he alleged a right to the unobstructed access of light and air to the said window, but that the same was obstructed by a wall continued by the Defendant The Defendant pleaded, first, not guilty; secondly as to the first count of the declaration, that the Plaintiff was not possessed of a building in which there were ancient lights; and, thirdly, that the Plaintiff was not possessed of a building with windows, through which the light and air ought to have entered as alleged. The Plaintiff took issue on these pleas. The cause was tried at Guildhall before Lord Chief Justice Cockburn, on the 14th February 1859, when a verdict was taken for the Plaintiff, subject to a case, which was to be settled by Mr. Serjeant Hayes. The case stated in substance the following facts: The Plaintiff was a silk mercer, and at the time of the action carried on business at Nos. 107, 108 and 109, Wood-street, Cheapside. He had been in possession of Nos. 108 and 109 for several years. They were on the west side of Wood-street, and abutted in the rear or eastward, on premises belonging to the Defendant, numbered 1 to 8, and called the Gresham-street property. In 1852 the Plaintiff pulled down Nos. 108 and 109, and erected on their site new warehouses, in doing which he altered the position, and enlarged the dimensions of the windows previously existing, increased the height of the buildings, and set back the rear line of them so as to approach nearer to the Defendant's premises. In the year 1857 the Plaintiff became possessed of No. 107, which up to that time had been a public-house, known [292] as the " Magpie and Pewter Platter," and which possessed ancient windows, entitled to access of light and air from an open space (belonging to the Defendant, and called " Flying Horse-court"), situated between the Plaintiff's and Defendant's premises. On obtaining possession of No. 107, the Plaintiff began to make alterations in it, in order to make the floors of all his premises correspond with each other. He lowered the first and second floors, and lowered the windows in them to agree with the floors. One of the windows was brought down about one foot lower than before; the other was about the same size as the old one, and both occupied parts of the old apertures. One small window in the first floor was blocked up. He also built two additional stories, in the first of which he opened a new window, and in the other he placed a window extending across the whole width of the building. These new windows were so situated that it was impossible for the owner of the Gresham-street property to obstruct or block them without also obstructing or blocking, to an equal or greater extent, that portion of the windows in the new building which occupied (but with an enlarged space) the site of the ancient windows in the " Magpie and Pewter Platter." The Plaintiff's alterations were completed August 1857. At the end of the year 1856 the Defendant had pulled down the buildings then standing on the Gresham-street property in order to erect thereon a warehouse ò and in 1857, after the Plaintiff's buildings had been completed, the Defendant proceeded to erect his warehouse, and built up the eastern wall thereof to such a height as to obstruct the whole of the windows and lights in the premises of No. 107. This wall was completed by the end of October 1857. On the subject of these buildings a correspondence took place between the attornies for the Plaintiff and Defend-[293]-ant, during the months of September H.L. xr. 1345 43 XI H.L.C., 294 TAPLIKG V. JONES [1865] and October 1857 ; each insisted that the other was exceeding his rights, and notices of opposition were mutually given. Before the 4th February 1858, the Plaintiff, by the advice of counsel, caused the altered windows in the building formerly the " Magpie and Pewter Platter," to be restored to their original state as to size and position, and the new windows in the new portion of the building to be blocked up, by filling up the spaces with brickwork. On that day Jones' attorney gave notice to Tapling to pull down the wall he had erected, and " restore Jones' premises to their former light and air." The case found that " the new windows of No. 107 could not have been obstructed in a more convenient manner than by building up a wall of sufficient height on the Defendant's premises." The case was argued before the Court of Common Pleas in Hilary Term 1862, when the judges differed in opinion, Lord Chief Justice Erie and Mr. Justice Williams being in favour of the Plaintiff, Mr. Justice Byles and Mr. Justice Keating in favour of the Defendant (11 Com. Ben., N.S., 283). The last named judge, as the youngest member of the Bench, withdrew his opinion in order that judgment might be entered, and the case taken to a Court of Error. Upon Error in the Exchequer Chamber in the Trinity Term 1862, there was again a difference of opinion among the judges, but by a considerable majority the judgment given for Jones, the Plaintiff below, was affirmed (12 Ib. 826). The present proceeding in Error was then brought. The Attorney-General (Sir R. Palmer) and Mr. Archibald, for the Plaintiff in Error.-The theory of the law as to an easement or a servitude [294] before the Prescription Act (2 and 3 W. 4, c. 71), was that some grant might be presumed as its origin. Evidence of uninterrupted user was taken to establish this presumption. It is clear therefore that the presumption could not be made to extend to a state of things different from that shown by the user to have existed and been allowed. Assuming a grant: a man may grant one thing; he may grant the opening of one window which he has the power to block up, but that does not give the right to open others after the time for recalling the grant for the first has gone by. Nor may the grantee of a window of a certain size, under similar circumstances, make it of a much larger size. The alteration destroys the identity, and puts an end to the presumed grant. As the statute proceeds on the principle of a grant, the rules which would relate to a grant must be applied to the statutory confirmation of the easement. If so, the excess here justifies the erection of the obstruction. A man may protect himself against new easements, and if he cannot do so but by affecting old ones, especially when they have been made use of as the means to procure the new, he may obstruct all. As to such a matter, the act of a tenant will not conclude his landlord, nor even a succeeding tenant, Daniel v. North (11 East, 372) Barker v. Richardson (4 Barn, and Aid. 579). Bright v. Walker (1 Cr. Mee. and R. 211) adopted the same principle after the Prescription Act as had been laid down in those cases before it. And the...
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