Tisdall v McArthur & Company (Steel and Metal) Ltd, and Mossop

• Jurisdiction: Ireland
• Court: Supreme Court
• Judgment Date: 01 January 1951
• Docket Number: (1949. No. 204 P.)
• Date: 01 January 1951

Tisdall v. McArthur and Co. (Steel and Metal), Ltd., and Another.

PATRICK J. TISDALL

Plaintiff

and

McARTHUR & CO. (STEEL AND METAL), LTD., and A. R. MOSSOP

Defendants.

(1949. No. 204 P.)

Supreme Court.

Ancient lights - Acquisition of right to - Presumption of lost modern grant - Whether doctrine applicable to easement of light - Daylight passing through glass roof on servient tenement before reaching dominant tenement - Whether long enjoyment of such light by dominant tenement capable of creating easement of light - Prescription Act, 1832 (2 & 3 Will. 4,c. 71), s. 3.

The plaintiff was the occupier under a monthly tenancy of certain premises in the city of Dublin the ground floor portion of which was used by him for carrying on his business as merchant. The defendant company was the occupier of the adjoining premises, which were held by it for the unexpired residue of a term of years and were used by it for the purposes of its business. On one side the premises of the plaintiff were lighted through windows which looked on to a covered yard the property of the company. The roof of this yard was partly of glass and light after passing through this glass into the yard found its way through the windows into the premises of the plaintiff.

The company, in spite of a refusal of permission by both the plaintiff and the latter's landlord, proceeded through the second-named defendant, who was a builder, to block up the windows, thereby depriving the plaintiff of the light from the glass roof hitherto enjoyed by him. The plaintiff instituted proceedings claiming an injunction to restrain the company and the builder from so obstructing his light.

Upon the evidence the Court found that the two premises had been erected early in the nineteenth century, that until about the year 1900 the yard had been unroofed. Subsequent to the erection of the roof and for more than twenty years prior to the institution of the action the plaintiff's windows had been receiving a substantial quantity of light from the sky through that portion of the roof which was constructed of glass.

The company contended, firstly, that by reason of the light having to pass through a glass roof on the servient tenement before reaching the plaintiff's premises it did not constitute natural light and could not be the subject of prescription under s. 3 of the Prescription Act, 1832, and, secondly, that since the passing of that Act the doctrine of the presumption of a lost modern grant no longer applies to an easement of light.

Held, by Kingsmill Moore J., that the defendants were not entitled to succeed on either ground and that the injunction should be granted.

Observations in Tapling v. Jones, 11 H. L. Cas. 290, explained.

Held by the Supreme Court, without deciding whether the doctrine of lost modern grant applies to the easement of light, that the user of light which the plaintiff had enjoyed for upwards of twenty years, notwithstanding that before being received by him the light had passed through the glass roof in the defendants' premises, fell within the provisions of s. 3 of the Prescription Act, 1832, and that the appeal must therefore be dismissed.

The meaning of "without interruption" in s. 3 of the Prescription Act, 1832, considered.

Plenary Summons.

The plaintiff was a merchant, trading as "The Dublin Equipment Company," at Number 14 Merchant's Quay in the City of Dublin, portion of which was held by him as a monthly tenant under an agreement in writing, dated the 3rd March, 1933. The premises so occupied by him consisted of the front office and store on the ground floor, a store on the first floor, and a small wareroom on the second floor. The first-named defendants, McArthur and Co. (Steel and Metal), Ltd., held adjoining premises, Number 15 Merchant's Quay, for the residue of a term of fifty years from the year 1908 created by an indenture of reversionary lease, dated the 22nd July, 1891. The premises of the plaintiff were lighted on one side through windows which looked on to a covered yard, the property of the first-named defendants. The roof of the said yard was partly of glass, and light, after passing through the glass, found its way through the windows into the plaintiff's premises. Both premises had apparently been erected early in the nineteenth century, and until a date not later than the year 1900 the yard had been unroofed. Subsequent to the erection of the roof and for a period of more than forty years prior to the commencement of these proceedings the windows of the plaintiff's premises had been receiving a substantial quantity of light from the sky through the glass of the roof. On the 14th February, 1949, the first-named defendants employed the second-named defendant, A. R. Mossop, who was a builder, to brick up the windows, thereby obstructing the flow of light through the windows to the plaintiff's store. The plaintiff thereupon issued a plenary summons against both defendants, claiming 1, an injunction to restrain them, their contractors, servants and agents from building or continuing to build so as to be a nuisance to the plaintiff or to obstruct or diminish the access of light and air to the windows or any of them on the plaintiff's said premises; 2, an order that the defendants should pull down forthwith the construction in course of erection in so far as it constituted a nuisance to the plaintiff; or, alternatively, 3, damages.

The plaintiff subsequently moved for an order of interlocutory injunction and the hearing of the motion was by consent deemed to be the trial of the action.

The evidence at the hearing was on affidavit only, no oral evidence being given.

From this judgment the defendants appealed to the Supreme Court (1).

Kingsmill Moore J. , after referring to the facts, continued as follows:—

It is admitted that for over twenty years before the institution of these proceedings light from the sky had been passing through the glass portion of the roof of the company's yard and then entering the plaintiff's windows. If the glass portion of the roof were removed a person looking out from these windows would have an uninterrupted view of the sky through the aperture so caused. It is also admitted that the light was not enjoyed by virtue of any written consent or agreement. It would appear at first sight that the light so enjoyed by the plaintiff was completely secured to him by s. 3 of the Prescription Act, which enacts "that when the access and use of light to and for any dwelling-house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible . . . unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing." But it is argued for the defendants that the Prescription Act did not create any new kind of easement but only altered the methods of acquiring easements already recognised by law—a proposition which is not contested—and that English law has never recognised the possibility of an easement of light other than light coming directly from the sky, and not transmitted through, or reflected by, any man-made medium. There is no direct authority either for or against the proposition that an easement cannot be acquired to light transmitted through glass. The plaintiff says that the reason for the absence of authority is that the right to such an easement has never been contested. The defendants explain the absence of authority by saying that such a right has never been asserted. I should have thought that the question

must have arisen on many occasions. With the increasing congestion of cities it is often necessary to provide for the access of light through light wells or small courts and I believe that I have on more than one occasion seen such wells or courts covered with a glass roof. It is clear that the matter may become of importance but apparently it is left to me to decide it as a problem of first instance.

Various reasons were suggested why such a right could not exist. It was suggested that in some way the whole nature of light was altered by its passage through glass, a proposition which would seem to involve some novel theories in physics. Light may be reflected, refracted or blocked, but the light which emerges from one side of a pane of glass is essentially the light—or part of the light—which impinged on the other side. I dismiss all the arguments based on physics.

Next it was sought to draw an analogy between transmitted and reflected light and to show by authority that no easement could be acquired in reflected light. I am not convinced of the perfection of the analogy, nor do I think that the authorities establish the proposition for which they were quoted. In Dent v. Auction Mart Co.(1) the defendants were proposing to build in such a way as to obscure the ancient lights of the plaintiff, but they argued that by the use of white tiles the direct light, which had been obscured, could be adequately replaced by reflected light, The Vice-Chancellor held that this was no answer. "A person who wishes to preserve his light has no power to compel his neighbour to preserve the tiles, or a mirror which might be better, or to keep them clean, nor has he covenants for these purposes that will run with the land, or affect persons who take without notice; and, therefore, it is quite preposterous to say, 'Let us damage you, provided we apply such and such a remedy.'" In Staight v. Burn(2), a similar case, Giffard L.J. said:—"It has been suggested that if the wall is allowed to stand, although there will not be the same direct light, there will be a great amount of reflected light. The answer to that is, that the plaintiffs are entitled to have a light of the same nature as they have had." In both these cases it was held that a servient owner could not at his own volition take...