Birmingham Corporation secured development of a large area by building agreements which granted leases on completion of the buildings to their builders. One builder, Daniell, erected a building to a height of 48 feet, and assigned his interest under his lease to the claimants. At the time of the lease there was only a low building on the land the other side of the road, but the land was part of the area the subject of the building scheme. Another builder, the defendant Ross, subsequently commenced erecting a building 80 feet high on the other side of the road to the claimants’ buildings. The claimants sought an injunction to restrain interference with their right to light. Kekewich J. dismissed the action.
Held: The court dismissed the appeal. (Cotton LJ) Referring to the Act said that the light claimed could not be said to be a light, within the meaning of the section, enjoyed with the house. When the lease was granted it was obvious to both parties that this was a large tract of land bought by the corporation for effecting an improvement and to be built on. The light then enjoyed could not be considered as enjoyed within the meaning of the section because both parties had no expectation of the continuance of that light. A light enjoyed by a person under the statute must be ‘that which he has enjoyed under circumstances which would lead to an expectation that the enjoyment of that light would be continued, and that it would not be simply precarious’ . referred to the implied obligation of a grantor not to interfere with his grant and said ‘But when the question is as to an implied obligation we must have regard to all the circumstances which existed at the time when the conveyance was executed which brought the parties into that relation from which the implied obligation results; I quite agree that we ought not to have regard to any agreement during the negotiations entered into between the Plaintiffs and the corporation; except in this way; if we find that any particular space in fact was left open at the time when the lease was granted, and that that open space was contracted to be left open during the negotiation which took place, and is not referred to in the lease, we must have regard to the fact of that open space being left, and we must have regard to the fact that by agreement between the parties the lessor had bound himself not to build upon that space; and also we must, in my opinion, in determining what obligation results from the position in which the parties have put themselves, have regard to all the other facts which existed at the time when the conveyance was made, or when the lease was granted, and which were known to both parties.’ On the facts Cotton L.J. found that Daniell knew of the building scheme and so he found no interference with the claimants’ rights. (Lindley L.J) Considered it as at the time of the grant ‘I think [counsel for the claimants] was quite right in saying that we are not to go into the preliminary negotiations which resulted in the final lease. They might be important, and perhaps would be necessarily important, if we were considering whether the lease should be rectified or not, but for the purpose of construing the lease all such considerations as those ought to be disregarded. But the state of the property is all important; and what was being done with it is all important.’ He referred to the building scheme and concluded that the easement of light impliedly granted by the lease was of such amount as would come over the corporation’s land to Daniell’s house after the corporation had built what it liked on the other side of the street. (Bowen L.J) Daniell’s knew that houses were to be built on the other side of the street and that once they were built above the level of the house in existence there must be some interference with his lights and that there was no stipulation as to the height of the house to be built there, the only protection to his light being the width of the road.
Judges:
Cotton, Lindley, Bowen LJJ
Citations:
(1888) 38 Ch D 295
Statutes:
Jurisdiction:
England and Wales
Cited by:
Cited – P and S Platt Ltd v Crouch and Another CA 25-Jul-2003
The claimant sought a declaration that certain easements had been included by implication in a conveyance of part of land to him.
Held: Since the easements were capable of subsisting at law, and existed as quasi-easements at the time, and did . .
Explained – Wright v Macadam KBD 1949
The court considered the exceptions to the rule that a right in fact enjoyed with property will pass on a conveyance of the property by virtue of the grant to be read into the conveyance by virtue of section 62. One exception was if the right was . .
Cited – Hair v Gillman 2000
. .
Cited – British Leyland Motor Corporation Ltd v Armstrong Patents Co Ltd HL 1986
The claimant’s product was made from drawings. The drawings were protected as copyright artistic works. They were reproduced in a three dimensional form by the claimant’s own products. Someone who copied the claimant’s products indirectly copied the . .
Lists of cited by and citing cases may be incomplete.
Land, Contract
Updated: 29 April 2022; Ref: scu.185828
