CHAPTER II.

OF THE ORIGIN OF THE RIGHT.

THE right to window lights may be acquired in three ways, by occupancy, by express agreement, and by implied agreement.

This division is given in Lord Hardwicke's judgment in The Fishmongers' Company v. The East India Company (a), where he says, "If the house were built on the old foundation, it would entitle the plaintiffs to their lights as an ancient messuage; but if on the new foundation, then the party must show a new agreement, or something to import one." And it is again given by him in another judgment in which he says, " Whoever comes into this Court, on such a right, must found it either on defendant's building so as to stop ancient lights, for which he has prescription (notwithstanding that he must lay a particular prescription), or else on some agreement, either proved, or reasonable presumption thereof (b).

Each of these modes of acquisition will form the subject of a distinct section.

SECTION I.

Of the Acquisition of the Right by Occupancy. It has been laid down in the preceding chapter, that light and air are things in which no permanent property (a) 1 Dick. 163.

(b) Morris v. Lessees of Lord Berkeley, 2 Ves, sen. 452.

can be gained, but that every man who has the opportunity may make use of and enjoy them, and may occupy them so long as the opportunity continues. But from the earliest period of English law of which any record remains, such occupancy when continued without interruption for a certain time, (which time has differed much at different epochs,) has drawn with it a right to the continuance of the same enjoyment, and has imposed on the owner over whose land the access of light and air has been enjoyed the obligation of not making such a use of his land as to interfere with that enjoyment.

In the earliest ages of the English law, the right to window lights by occupancy was gained by prescription, by showing the enjoyment of the window lights since the beginning of legal memory.

In a case in the reign of Henry the Sixth, it was said by Markham, J.: "If I have a house by prescription upon my soil, and another erects a new house upon his own soil next adjoining, so near to my house that it stops the light of my house, this is a nuisance to my house; for the light is of great comfort and profit to me"(a). And to the same effect were the expressions of Whitlocke, C. J.: "Like to the case where a man hath a house and windows in it, and another stops the light, then he may have an action upon the case; but true it is, that he shall not only count for the loss of the air, but also he ought to prescribe that time out of mind light had entered by those windows" (b).

(a) 22 H. 6, 15; Vin. Abr. Nuisance, G. pl. 10.

(b) Sury v. Pigot, Poph. 166; Tudor's Leading Cases in Conveyancing, 127; et vide the declarations in the cases of Bland v. Moseley, cited 9 Rep. 58a, and Hughes v. Keeme, Yel. 215.

This time out of mind, time during which the memory of man had not run to the contrary, was ultimately settled to begin with the commencement of the reign of Richard the First, A. D. 1189 (c). It was so settled with the object of quieting possession, by excluding proof of a different state of things at an earlier date.

But as time went by, and the distance from that fixed epoch increased, this object was no longer accomplished, and enjoyment which had been had for many years was defeated by proof of its commencement subsequently to that date. So in a case in the 30th and 31st year of Elizabeth, after the plaintiff had obtained a verdict for the obstruction of his ancient lights, it was moved by the defendant in arrest of judgment, "that there upon the declaration appeareth no cause of action; for the window, for the stopping of which the wrong is assigned, appears upon the plaintiff's own showing to be of late erected, scilicet, in the reign of Queen Mary. The stopping of which by any act upon my own ground was holden lawful and justifiable by the whole court. But if it were an ancient window time out of memory, &c., there the light or benefit of it ought not to be impaired by any act whatever, and such was the opinion of the whole court" (d). Another report of the same case states that it was agreed by all the justices, "that if two men be owners of two parcels of land adjoining, and one of them doth build a house upon his land, and makes windows and lights looking into the

(c) By inference from 3 Edw. I. c. 29, which fixed that as the period within which the demandant in a writ of right must have alleged seisin. 2 Roll. Abr. 269; Prescription M., pl. 14.

(d) Bowry v. Pope, 1 Leo. 168.

other's lands, and this house and the lights have continued by the space of thirty or forty years, yet the other may upon his own land and soil lawfully erect a house or other thing against the said lights and windows, and the other can have no action, for it was his folly to build his house so near to the other's land; and it was adjudged accordingly” (e).

This rule was found to operate more and more harshly as the period which had elapsed since the commencement of the time of legal memory became longer. In 1623, the Statute of Limitations, 21 Jac. I., c. 16, was passed. The first section of this enacted, "that no person who has any right or title of entry shall enter but within twenty years next after his right or title shall accrue."

As no person could enter after that lapse of time, it followed that none could after that lapse maintain an ejectment, as this action is founded on an entry, real or fictitious. Accordingly, adverse uninterrupted possession for twenty years became a bar to an ejectment, and sufficient to give a man a title on which he could recover in ejectment. By a natural analogy the same length of time which conferred a title to land or to a house, was considered sufficient to confer a title to an easement belonging to the house (ƒ).

But in cases both of prescription and of occupation

(e) S. C. nomine Bury v. Pope, Cro. El. 118.

(f) "Twenty years was sufficient to give a man a title in ejectment, on which he might recover the land itself; and he saw no reason why it should not be sufficient to entitle him to any easement belonging to the house." Lewis v. Price, 2 Wms. Saund. 175a. per Wilmot, J. "If my possession of the house cannot be disturbed, shall I be disturbed in my lights?" Dougal v. Wilson, 2 Wms. Saund. 175a, per Wilmot, C. J. and so Cross v. Lewis, 2 B. & C. 686; 4 D. & R. 234.

for twenty years, the right to window lights was, in theory, considered as arising originally from agreement between the parties, the owners of the dominant and the servient tenements. Twenty years uninterrupted enjoyment of window lights, therefore, did not operate as an absolute bar incapable of being overturned by contrary proof; but it was presumptive proof from which the jury were directed to find the existence of an agreement.

So Lord Mansfield said, "The enjoyment of lights with the defendant's acquiescence for twenty years, is such decisive presumption of a right by grant or otherwise, that, unless contradicted or explained, the jury ought to believe it; but it is impossible that length of time can be said to be an absolute bar, like a statute of limitation; it is certainly a presumptive bar which ought to go to a jury. Time immemorial itself is only presumptive evidence" (g).

So also in a case where the plaintiff's lights had been enjoyed for more than twenty years, the defendant offered evidence that twenty-five years before the then owner of his premises had granted liberty to the plaintiff's predecessor to put out a particular window, and argued that it must be presumed that this was the only grant ever made to the plaintiff or his predecessors. Although the judge, Gould, J., thought the grant had nothing to do with the windows for the obstruction of which the action was brought, he considered the point a proper one to leave to the jury, if the counsel for the defendant wished it (h). And in another case, the plaintiff, who was a tenant for a term (g) Darwin v. Upton, 2 Wms. Saund. 175b, c. (h) Ibid.