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Ancient

light, land, interruption, action, building, house and period

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ANCIENT LIGHTS—How Acquired and Preserved.—Every man on his own land has a right to all the light and air which will come to him ; and he may erect, even on the extremity of his land, buildings with as many windows as he pleases. In order to make it lawful for him to appropriate to himself the use of the light, he does not require any consent from the owner of the adjoining land. He therefore begins to acquire the right to the enjoyment of the light by mere occupancy. IIe having erected his building, the owner of the adjoining land may afterwards, within twenty years, build upon his own land, and so obstruct the light which would otherwise pass to the building of his neighbour. But if the light be suffered to pass without interruption during that period to the building so erected, the owner thereof is entitled to enjoy the light without obstruction for ever. Windows enjoying such a right are called ancient lights. The mode in which this right can be gained is now regulated by the Prescription Act. By this Act, when the access and use of light to any dwelling-house or other building shall have been actually enjoyed therewith for a full period of twenty years without interruption, the right thereto shall be deemed absolute and in defeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by express consent or agreement by deed or in writing. This twenty years is the twenty years immediately before any action which may be brought relating to the light. No inter ruption as above is sufficient unless it shall have been submitted to or acquiesced in for one year after the party interrupted shall have had notice thereof, and of the person making or authorising the same to be made.

The interruption having to be for a full period of one year, the net effect of the Act is to make nineteen years and a fraction a sufficient time in which to acquire the right. Thus an enjoyment for 19 years and 330 days, followed by an interruption of 35 days, just before the commencement of the action, was held sufficient to establish the right. In the case of an unlawful interruption, the owner of the ancient lights should first give notice to the interrupter claiming an abatement. If this notice is not complied with, an action should be commenced for damages, and the writ endorsed with a claim for an injunction. Then, within a week or so, and

without waiting for trial of the action, the plaintiff can move the Court for an interim injunction. When this has been obtained, the whole action will probably be settled, and no further proceedings and trial be necessary. Fresh actions may be brought so long as the obstruction continues. It is doubtful, however, whether a Court would interfere if the interruption had been allowed to exist for a considerable period of time ; say, six years. The right to light cannot be acquired over Crown land, as the statute does not bind the Crown. If the owner of a house and land adjoining sell the house, he cannot, without express reservation of the right, obstruct the lights by building on the land. This is an implied right resulting from the rule of law that no man can derogate from his own grant. On the same principle, if the same vendor had sold the land and retained the house, he could not restrain the purchaser of the land from building thereon, even if its result was to obstruct the lights of the house.

It is no answer to a claim for light, that the window obstructed has no occasion for it; nor that the business carried on in the room is of such a nature as to make diminution in light a matter of indifference ; nor that the premises are unoccupied ; nor that the windows are ordinarily closed with shutters. But damage to some extent milt be proved in order to sustain the action and obtain an injunction ; and ,.in each case the question of damage will be considered in relation to the uses to which the darkened property is ordinarily put. It is important to remember that a right to light cannot be acquired over land in the occupation of the owner of the windows. Thus the owner of a house may have had, during fourteen years, uninterrupted access of light from an adjoining field ; but if he should then become and remain tenant of the field for six years, he would not at the end of that period have acquired his indefeasible right to light. The running of the twenty years would have been suspended during the tenancy of the field, and would not be renewed until such tenancy had been given up.

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