Once an easement has been abandoned, it is abandoned forever. The court considered the issue as regards rights of light, and alterations made after the right had been indefeasibly acquired.
Cotton LJ said: ‘In my opinion the question to be considered is this, whether the alteration is of such a nature as to preclude the Plaintiff from alleging that he is using through the new apertures in the new wall the same cone of light, or a substantial part of that cone of light, which went to the old building. If that is established, although the right must be claimed in respect of a building, it may be claimed in respect of any building which is substantially enjoying a part, or the whole, of the light which went through the old aperture. ‘
Bowen LJ said: ‘Mr Barber endeavoured to persuade us that no right could be enjoyed after the lapse of twenty years if there had been any fluctuation in the measure of the access and use of the light during the twenty years. I cannot myself see that the statute warrants any such view. I should have thought that if there has been a use, for ten years out of the twenty, of a small window, which is enlarged during the remaining ten years of the twenty to double its size, the only right acquired in the twenty years was the right to have arrive for the use of your house the minimum portion of the pencils of light which had passed through this smaller structure; because you could not be said to have enjoyed the larger amount of light for twenty years when you had enjoyed it for ten years only – and I should pause for some time before coming to the conclusion that a man after using the smaller access of light for twenty years through the windows had lost his right to all access whatsoever merely because at some time during that period he had fruitlessly attempted to acquire an enjoyment of more. … What the person who has acquired the right is entitled to is not the window but the free access of such an amount of light as has passed through that window.’
Judges:
Cotton LJ, Bowen LJ
Citations:
(1886) 31 ChD 554
Cited by:
Criticised in part – Colls v Home and Colonial Stores Ltd HL 2-May-1904
The courts below had concluded that the defendant had infringed the plaintiff’s right to light, and had awarded an injunction.
Held: the appeal succeeded. The House set out the requirements for establishing the existence of a right to light. . .
Cited – CGIS City Plaza Shares 1 Ltd and Another v Britel Fund Trustees Ltd ChD 13-Jun-2012
The claimants asserted a right of light either by prescription or under lost modern grant. The defendants argued that alterations in the windows arrangements meant that any prescription period was restarted.
Held: ‘the Defendant is not correct . .
Lists of cited by and citing cases may be incomplete.
Land
Updated: 04 May 2022; Ref: scu.463813
