THE LAW

OF

WINDOW LIGHTS.

CHAPTER I.

OF THE NATURE OF THE RIGHT TO WINDOW LIGHTS.

But

THE right to window lights is commonly described as the right to the unobstructed lateral transmission of light and air over the land of an adjoining owner. while this definition gives an account sufficient for ordinary purposes of the character of the enjoyment, it affords no explanation of the legal character of the right.

Light and air are in the English, as in the Roman, law res communes, things in which no permanent property can be acquired (a). Every one may use and

(a) Liggins v. Inge, 7 Bing. 682. "However, there are some few things which, notwithstanding the general introduction and continuance of property, must still unavoidably remain in common, being such wherein nothing but a usufructuary property is capable of being had ; and, therefore, they still belong to the first occupant during the time he holds possession of them and no longer. Such, among others, are the elements of light, air and water."-Steph. Black. 4th edit. vol. I, p. 160.

"Communia omnium sunt naturali jure aër, aqua profluens, mare, et

B

enjoy them whenever he has the opportunity so to do, no one can acquire a future property in them. The right then cannot consist in a title to the possession of the light and air which in all future time will pass over a given space. But it must consist in some obligation, in some manner imposed on the owner of that space, to refrain from so using it as to interfere with the light and air which will pass over it to the tenement to which the right is annexed. Of this obligation we shall be able to form a clearer notion by a short examination of the respective rights of the owners of two adjoining pieces of land, previous to the acquisition of any right by the one and the imposition of any obligation on the other.

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Every owner of land, with a few unimportant exceptions, is owner also of all the space superincumbent upon that land. Cujus est solum, ejus est usque ad cœlum" (b), is a maxim of the English law. And an interference with the space superincumbent on a man's land is an injury for which the law gives a remedy (c). Every man may deal with his land and the space above it in such manner as he thinks fit, so that he do no injury to his neighbour or to the public. He may erect on his land a house with as many windows as he pleases; and he may build this house on the very extremity of his land, close to the land of his neighbour. By so

per hoc littora maris, quæ omnia in nostro dominio esse, ne natura quidem patitur, quandoquidem iis omnes utuntur."-Warnkoenig, Institutiones Juris Romani Privati, 1834, sec. 270.

(b) Co. Litt. 4a. The exceptions are persons who own one story of a house - a not uncommon tenure of chambers in the Inns of Court. (c) Baten's case, 9 Rep. 53b, 54a, and cases there cited; Norris v. Baker, 1 Rolle's Rep. 393; Pickering v. Rudd, 4 Camp. 219; Fay v. Prentice, 1 C. B. 828.

doing he confers no new right, and inflicts no injury on his neighbour (d). It is true that the windows of this building may command a view of his neighbour's gardens or pleasure grounds, or even of the interior of his house, may so invade his privacy, and consequently lessen the value of his property. But this is not considered by the law as a wrong for which any remedy is given.

"The Court," said Turner, L. J., "has nothing to do with the diminution of the value of a house caused by its windows being overlooked, and its comparative privacy destroyed” (e).

In Chandler v. Thompson (f), Le Blanc, J., said, "that though an action for opening a window for obstructing a man's privacy was to be found in the books, he had never known such an action maintained, and he had heard Eyre, C. J., say that such an action did not lie, and that the only remedy was to build on the adjoining land opposite the offensive window." And the observations of Blackburn, J., and Lord Westbury, C., in the recent case of Jones v. Tapling, are decisive on the point. The former said, "It is quite true that the opening of a new window looking into the grounds of another may not only annoy that neighbour, but may often affect the value of his property. But the law of England considers that no injury” ( g).

(d) Moore v. Rawson, 3 B. & C. 332, per Littledale, J.; Jones v. Tapling, 12 C. B., N. S. 826; 31 Law J. Rep. N. S., C. B. 342, per Bramwell, B.

(e) Johnson v. Wyatt, 2 De G. J. & S. 18; 33 Law J. Rep. N. S., Ch. 394.

(f) 3 Camp. 82.

(g) 12 C. B., N. S. 842; 31 Law J. Rep. N. S., C. B. 354.