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torts:wrongs-to-right-to-air-light

Wrongs to easement : Right to free access of light and air

According to English law it is doubtful whether a right to the free access of air can be gained except by express grant.1) But a right to the free access of air through a particular aperture may be acquired by implied lost grant, or by immemorial user.2)

Light and air resemble each other in many particulars. The principles regarding the right to free access of light closely resemble those relating to the free passage of air. Under the English law the rights to light and air are acquired differently. Right to light is acquired under the Prescription Act which necessitates an enjoyment without interruption for a full period of twenty years, to confer the right. Whereas the right to air can be acquired at Common law. The Indian Easements Act places light and air on the same footing.3)

Right to the free access of air

An owner or occupier of land or buildings has no natural right to free passage of air over open adjoining land. Such a right cannot be acquired as an easement or by a lost grant.4) A right to have air come over a neighbour's land in a particular channel to a particular place may be established by immemorial user; but in the absence of actual contract, no one can claim a right to have the general current of air over his neighbour's property kept uninterrupted.5)

Every owner of land has a natural and Common law right that the air which passes over his land shall not be polluted by other persons, and any person who pollutes it, without an acquired right, is guilty of a wrongful act6), but an adverse right to pollute the air which passes from the land of one person to that of another may be acquired, and when acquired is an easement.7)

Indian law: Access and use of air to and for any building may be acquired under the Indian Easements Act, V of 1882, if it has been peaceably enjoyed therewith, without interruption, for twenty years (section 15). The right to air is co-extensive with the right to light.8)

The extent of a prescriptive right to the passage of light and air to a certain window, door or other opening is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespectively of the purposes for which it has been used.9)

Where an action was brought to prevent the owner of adjoining land from building so as to interrupt the passage of air to the plaintiff's mill, it was held that no such action lay10); and it was so held where an action was brought to restrain the defendant from building so as to obstruct the access of air to the plaintiff's chimneys.11)

Indian law: There is no right as a right to the uninterrupted flow of south breeze as such.12) The owner of a house cannot by prescription claim to be entitled to the free and uninterrupted passage of a current of wind. He can claim no more air than what is sufficient for sanitary purposes.13)

Infringement

The right to the purity of air is not violated unless the annoyance is such as materially to interfere with the ordinary comfort of human existence.14)

Indian law: Where the easement disturbed is a right to the free passage of air to the openings in a house, damage is substantial if it interferes materially with the physical comfort of the plaintiff, though it is not injurious to his health.15)

Right to free access of light

To establish right to light it requires an uninterrupted user for at least twenty years with the acquiescence of the owner of the servient tenement.16) But where the person obstructing the light is a mere trespasser the owner can have action against the obstructer even though the owner has not obtained by prescription an easement of light.17)

Thus, the right to light is not a natural right (ex jure naturae) incident to the ownership of windows, but an easement to which title must be shown:

  1. By grant or covenant, express or implied.
  2. By prescription under the Prescription Act in England, and the Indian Easements Act (V of 1882, s. 15) in India.
  3. By reservation (express or implied) on the sale of the servient tenement.

The right thus acquired is an absolute and indefeasible right to the enjoyment of the light, without reference to the purposes for which it has been used. It can only be claimed in respect of a building; the use of an open piece of ground for a purpose requiring light will not create aa easement against an adjacent owner.18)

An existing right to light is not lost by enlarging, rebuilding, or altering, the windows for which access of light is claimed so long as the ancient lights, or a material part thereof, remain substantially capable of continuous enjoyment.19) Where a new building has been erected on the site of one in respect of which a right to the access of light had been joined, then, in order to entitle the owner of the new building to access of light, it must be shown that some defined part of aa ancient window admitted access of light through the space occupied by a defined part of an existing window.20) If a person opens new lights, these may be obstructed with impunity ; but an existing; right is not lost by interruption which is not continuous in time and quantity, but temporary and of fluctuating amount.21)

Infringement

In the case of light, it is not every possible, every speculative, exclusion of light which is the ground of an action; but that which the law recognises is such a diminution of light as really makes the premises to a sensible degree less fit for the purposes of business.22) The merely taking off a ray or two will not be sufficient. There must be a substantial privation of light, sufficient to render the occupation of the house uncomfortable, and to prevent a person from carrying on his accustomed business as beneficially as he had done prior to obstruction. In considering what would be a substantial diminution and substantial damage, it is held that the proper point of view is to pay regard, not to what some person having fantastic or peculiar views might choose to regard as a substantial diminution or as substantial damage, but to the views of persons of ordinary sense and judgment. And, in particular, in considering whether a house has been substantially injured, it is proper to have regard to the ordinary uses by way of habitation or business to which the house has been put, or might reasonably be supposed to be capable of being put.23)

The defence that no material injury will be done to the plaintiff, and there would be ample light remaining for the business carried on by him will not hold good. It is not necessary that the obstruction of light should be injurious to him in the trade in which he is now engaged. The right to light is an absolute indefeasible right without reference to the purpose for which it has been used. And no person will be allowed to interrupt it, unless he can show that, for whatever purpose the plaintiff might wish to employ the light, there would be no material interference with it by the alleged obstruction.24)

There is no difference as to the easement of light between sky lights and other windows.

Special purpose

A person who is in the present enjoyment of an access of light to his premises for a special extraordinary purpose, such as photography, may obtain an injunction against interference with it though he may not have been in the enjoyment of it for that special purpose for the whole of the statutory period.25) Under an implied grant of light sufficient light for ordinary business purposes alone is granted and not light for special purposes, e.g., wool-sorting.26)

Indian law: No damage is substantial unless it materially diminishes the value of the dominant heritage, or interferes materially with the physical comfort of the plaintiff, or prevents him from carrying on his accustomed business in the dominant heritage as beneficially as he had done previous to instituting the suit.27) An easement of light to a window only gives a right to have buildings that obstruct it removed so as to allow the access of sufficient light to the window.28)

The Court will look not merely to the use to which rooms, in a dwelling house from which light is obstructed, are actually put at the time of the obstruction, but also to the use to which they may be put for all reasonable purposes of occupation. It is immaterial whether the light is admitted through a window or a door.29)

The 45 degree rule

It was supposed for some years that a building does not constitute a material obstruction in the eye of the law, or at least was presumed not be such, if its elevation subtended an angle not exceeding 45 degrees at the base of the light alleged to be obstructed, or, as it was some times put, left 45 degrees of light to the plaintiff (i.e., in other words, when opposite to ancient lights a wall is built not higher than the distance between that wall and the ancient lights). But now it has been conclusively ruled that no such rule exists.30) It has been decided that there is no rule of law that ancient lights may be interfered with by a building provided that it leaves them an angle of 45 degrees of light; but in judging of the probable effect of a proposed building upon ancient lights the Court may not unreasonably regard the fact that an angle of 45 degrees will be left as prima facie evidence that there will be no substantial interference, and may require this presumption to be clearly rebutted by satisfactory evidence.31) But in this case Vaughan Williams, L. J., has said : “I wish to add for myself that, so far as the rule of 45 degrees is concerned, I doubt very much whether that rule, as the law is now settled, can be regarded even as a rough measure of the right of the owner or occupier of ancient lights”.

Indian law: The Calcutta High Court has said that the “45-degree rule” is not a positive rule of law, but is a circumstance which the Court may take into consideration, and is especially valuable when the proof of the obscuration is not definite or satisfactory.32)

The defendants proposed to erect a building in the City of London on the opposite side of the street to that on which the plaintiff's premises were situate. The new building would deprive the plaintiffs of a substantial amount of light, causing them real damage, though light enough would be left for the ordinary purposes of the occupancy of the premises as a place of business, and though the selling and letting value of the premises would not be affected thereby. Held, that the plaintiffs were entitled to an injunction.33) Where the owner of a building with ancient windows overlooking the defendant's premises pulled down the building, and erected another with a blank wall without any windows, and fifteen years afterwards the defendant erected a building next this blank wall, and the plaintiff then opened windows in the blank wall in the place where his ancient windows formerly stood, and brought an action against the defendant for the obstruction to the light and air caused by the defendant's new building, it was held that the windows thus opened could not claim the privileges of the ancient windows which had formerly existed on the same spot, that these privileges had been lost by manifest disuse, and that the action was not maintainable.34) The owner of a building having windows with moveable shutters, which are opened at his pleasure for the admission of light, acquires a prescriptive right to light.35) The fitting of windows with stained glass does not deprive the owner of the right to the free access of light.36)

Indian cases: Where a, person, who has a right to light from a certain, window, opens a new window, or enlarges the old one, the owner of an. adjoining house has a right to obstruct the new or enlarged opening, if he can do so without obstructing the old, but if he cannot obstruct the new without obstructing the old, he must submit to the burden.37) Where the plaintiff had for over twenty years carried on the business of manufacturing a particular kind of cloth in a certain house, and the defendant built in the neighbourhood of that house in such a manner as to render the plaintiff's house practically useless for the purposes of his manufacture, it was held that the plaintiff was entitled to an injunction and not merely to damages.38)

Remedy

In cases of infringement of light and air an injunction may be granted to prevent the obstruction. In order to obtain an injunction a plaintiff must establish substantial injury suffered or threatened. There is no standard or fixed amount of light to which alone a plaintiff is entitled. He must not be fanciful or fastidious : he must recognise the necessity of give and take in matters of this nature. But there may be real damage to the owner or occupier of a building used for particular purposes or reasonably adapted for particular purposes, although there would be no real damage if the building were not used or reasonably adapted for such purposes. The application of these principles is far more easy when the building which is complained of has been erected and damages only are claimed; but they have to be applied when the plaintiff comes for an injunction before the building has been erected. It is the duty of the Court to arrive at the best conclusion it can upon the effect which the proposed building, if erected, would produce, and if the Court is satisfied that in that event the plaintiff would have a good cause of action. the plaintiff is entitled, as a matter of right, to an injunction to prevent the defendant from interfering with his ancient light; or, in other words, to restrain the defendant from committing a wrongful act.39)

Indian law

In cases of light, Courts ought not to interfere by way of injunction when obstruction of light is very slight and where the injury sustained is trifling, except in rare and exceptional cases.40) But where the defendant is doing an act which will render the plaintiff's property absolutely useless to him unless it is stopped, in such a case, inasmuch as the only compensation, which could be given to the plaintiff, would be to compel the defendant to purchase his property out and out, the Court will not, in the exercise of its discretion, compel the plaintiff to sell his property to the defendant by refusing to grant him an injunction and awarding him damages, on that basis.41)

Between these two extremes, where the injury to the plaintiff would be less serious, where the Court considers the property may still remain with the plaintiff and be substantially useful to him as it was before, and where the injury is one of a nature that can be compensated by money, the Courts are vested with a discretion to withhold or grant injunction, having regard to all the circumstances of the particular case before them.42) In some cases mandatory injunction also will be granted. Courts will grant such injunctions where a man, who has a right to light and air which is obstructed by his neighbour's building brings his suit and applies for an injunction as soon as he can after the commencement of the building, or after it has become apparent that the intended building will interfere with his light and air.43) Before granting a mandatory injunction the Court should be satisfied that a substantial loss of comfort has been caused and not a mere fanciful or visionary loss.44) But when a plaintiff has not brought his suit or applied for an injunction at the earliest opportunity, but has waited till the building has been finished, and then asks the Court to have it removed, a mandatory injunction will not generally be granted.45)

1) , 5)
Chastey v. Ackland
2)
Bass v. Gregory
3) , 8) , 12)
Delhi and London Bank v. Hem Lall Dutt
4) , 11)
Bryant v. Lefever
6)
Bliss v. Hall
7)
Flight v. Thomas
9)
Indian Easements Act, s. 28(c)
10)
Webb v. Bird
13)
Barrow v. Archer
14)
Crump v. Lambert
15)
Explanation III to s. 33 of the Indian Easements Act
16)
Elliot v. Bhoobun Mohun
17)
Dhuman v. Muhammad
18)
Potts v. Smith
19)
Tapling v. Jones
20)
Pendarves V. Munro
21)
Presland v. Bingham
22)
Parker v. Smith
23)
Warren v. Brown
24)
Yates v. Jack
25)
Lazarus v. Artistic Photo. Co.
26)
Corbett v. Jones
27)
Explanations I and II to s. 33 of the Easements Act.
28)
Bala v. Maharu
29)
Ratanji v. Edalji
30)
Thud v. Debenham
31) , 39)
Home and Colonial Stores Ltd. v. Colls
32)
Delhi & London Bank v. Hem Lall Dutt
33)
Home and Colonial Stores v. Colls
34)
Moor v. Rawson
35)
Cooper v. Straker
36)
Attorney General v. Queen Anne's Mansion Co.
37)
Provabutty v. Mohendro Lall
38)
Yaro v. Sana-ullah
40) , 43)
Dent v. Auction Mart Co.
41)
Holland v. Worley
42) , 45)
Ghanasham v. Moroba
44)
Dhonnumal v. Bhagwan Das


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