Richard Reeves Smyth and Patrick Joseph Smyth v The Dublin Theatre Company, Ltd

• Jurisdiction: Ireland
• Judgment Date: 30 March 1936
• Date: 30 March 1936
• Court: High Court (Irish Free State)

Smyth v. Dublin Theatre Co., Ltd.

RICHARD REEVES SMYTH and PATRICK JOSEPH SMYTH

Plaintiffs

and

THE DUBLIN THEATRE COMPANY, LIMITED

Defendants.

Easement - Ancient lights - Business premises - Diminution of light - Sufficiency of quantum left - Reasonable requirements - Nuisance - Damages.

Held by Meredith J., following the principles laid down in Colls v. Home and Colonial Stores Ltd., [1904] A. C. 179, and the authorities approved in that case, and interpreting the term "ordinary light" in a commonsense manner, that a plaintiff is not claiming more than ordinary light because he claims a reasonable amount of direct light where he may expect to find it in a room laterally lighted, and that the deprivation of such direct light may be taken into account in considering the effect of a deprivation of light by an obstruction on the servient tenement. If so much latitude be not given to the expression "ordinary light" the flexibility of the legal principle stressed in Colls v. Home and Colonial Storesis lost and a rigid standard set up by experts is introduced.

The plaintiffs were the owners in fee of certain premises in which they had for many years carried on the manufacture and repair of cotton and jute bugs and the colour printing of same. The said premises had been re-built by them in or about the year 1903. In May, 1934, the defendants demolished a theatre, their property, and constructed a new theatre of a much greater height upon the site. The light which the plaintiffs' premises had enjoyed was diminished as a result, and the plaintiffs alleged that their business suffered in consequence. The plaintiffs brought an action claiming an injunction to restrain the defendants from permitting to remain any portion of the said theatre which had caused or would cause a nuisance or illegal obstruction to the access of light to the windows of the plaintiffs' premises.

Held, on the evidence, that the plaintiffs were entitled to damages in respect of the nuisance affecting the access of light to their premises and an enquiry as to the amount of damages, the plaintiffs not having pressed their claim for an injunction.

Trial of Action.

The facts as set out in the statement of claim were as follows:—

"1. The plaintiffs are the owners and occupiers of the premises, Nos. 14 and 14a Hawkins Street and Nos. 1 and 2 Poolbeg Street, in the City of Dublin, in which they have for many years carried on the manufacture and repair of cotton and jute bags, and the colour printing thereof.

2. The said premises have sixteen windows facing south into Poolbeg Street and two skylights on the roof of the said premises, and the plaintiffs were and are entitled by prescription under the Prescription Act, 1832, to the access and use of light to and for the said premises through the said windows and skylights.

3. The defendants have erected and still maintain a theatre which obstructs and materially diminishes the light coming through the said windows and skylights, and have thereby rendered the plaintiffs' premises dark and unsuitable for their business."

The plaintiffs claimed:—1, an injunction restraining the defendants from permitting to remain any portion of the said theatre which has caused, or will cause, a nuisance or illegal obstruction to the access of light to the said windows or skylights or any of them; and 2, an enquiry as to the damage sustained by the plaintiffs by reason of the wrongful acts of the defendants in the erection of the said theatre.

The defendants in their defence admitted that the said premises had the windows, as mentioned in the statement of claim, facing south into Poolbeg Street and two skylights on the roof of the said premises, but they pleaded that the access and use of light to and for the said premises through the said windows and skylights had not been enjoyed therewith for the period of twenty years within the meaning of the Prescription Act, 1832, sects. 3 and 4.

They further pleaded that the alleged enjoyment of light during the statutory period of twenty years was interrupted by buildings existing during the said period on the land upon which the theatre referred to in paragraph 3 of the statement of claim had been erected, and that the plaintiffs had submitted to and acquiesced in the said interruption for more than one year from the time of their having notice of the said interruption and of the defendants and their predecessors in title being the persons who had erected and were maintaining the said existing buildings.

The defendants admitted that they had erected and still maintained the theatre, but they denied that the said theatre obstructed or materially diminished the light coming through the said windows or skylights or any of them, and they also denied that they had thereby or at all rendered the said premises dark or unsuitable for the plaintiffs' business.

They further denied that the said theatre obstructed or diminished the light coming through the said windows or skylights or any of them required for any ordinary purpose, or that the main theatre interfered with or obstructed or diminished the access of light to and through the said sixteen windows and two skylights or any of them as enjoyed by the plaintiffs during the said period of twenty years.

The defence then continued as follows:—

"9. If the said theatre has obstructed or diminished the light coming through the said windows or skylights the defendants say that the plaintiffs stood by and acquiesced and impliedly assented to the erection of the said theatre with full knowledge that the same when completed would obstruct and diminish the light as aforesaid.

10. In further answer to the plaintiffs' claim for an injunction the defendants (whilst denying that any portion of the said theatre has caused or will cause obstruction to the access of light to the said windows or skylights, or any of them) say that the removal of any portion of the said theatre will cause them such expense and necessitate the performance of works of such magnitude and difficulty as will occasion great and undue hardship upon the defendants, and they will submit that, if, contrary to the defendants' contention and belief, the said theatre causes any obstruction to or diminishment of the light formerly coming through the said windows and skylights, damages are an adequate remedy to the plaintiffs.

11. As to the plaintiffs' claim for damages, the defendants whilst denying liability, bring into Court the sum of £250 and say that that sum is enough to satisfy the plaintiffs' claim for damages."

The plaintiffs in their reply having joined issue with the defendants on their defence, proceeded as follows:—

"The plaintiffs say that prior to the erection of the theatre and on many occasions while the building thereof was in progress, they notified the defendants of the obstruction which would be caused to the plaintiffs' ancient lights, and warned the defendants that the plaintiffs would insist on their legal rights, but the defendants notwithstanding such warning and the protests of the plaintiffs persisted in the erection of the theatre in such manner as to cause the nuisance and illegal obstruction of light complained of."

At the trial of the action a number of witnesses were examined, whose evidence is sufficiently stated for the purpose of this report in the judgment of Meredith J.

Cur. adv. vult.

Meredith J.:—

This action has been brought for a mandatory injunction and for damages in respect of an alleged interference with the plaintiffs' ancient lights resulting from the erection of the new Theatre Royal. The claim for an injunction was not pressed, and it is clear that, under all the circumstances of the case, damages would be the appropriate remedy, and so it is only that claim that need be considered.

The plaintiffs are the owners and occupiers of...