Professional Documents
Culture Documents
April 5, 1890.]
CT,. OF APP.]
MYERS V. CATTERSON.
[Vol. LXII., N.
s.-205
[CT. OF Apr.
This freehold and leasehold property subsequently became vested in the defendant, Samuel
Prince Catterson.
In the autumn of 1887 the defendant erected
APPEAL YRO31 THE CHANCERY DIVISION.
some buildings on part of this land situated on
Light - Implied obligation- Railway arch
the north-eastern side of the railway, opposite to
Obstruction-M1andatory injunction- Prescrip- the plaintiff's messuage, and about eighty-two
tion Act.
feet distant from the railway.
In 1863 a railway company granted land with a
The defendant also blocked up the arch No. 88
house on it to -.. , together 'with all the rights, by means of a black wooden hoarding. The
easements, and appurtenances thereto belonging. adjoining arch, No. 89, had been blocked up
The railway was eight feet fromz M.'s house, and
many years previously.
was carried past it on a viaduct, the arches of
Both these arches had been for some years used
which were fifty-eight feet long. Light came
for storing engines, tanks, boilers, and other
to certain windows of M.'s house through two of
heavy machinery.
the archways of the viaduct. In 1872 the railThe plaintiff alleged that by reason of the
way company conveyed the fee of some surplus blocking of arch No. 88 the access of light to his
land on either side of the line, and gave a long
window had been obstructed, and he claimed a
lease of the archways to the predecessor in title
mandatory injunction for the removal of this
of C. In 1887 C. blocked up one of the arches hoarding at the west end, and damages for the
by placing a wooden hoarding on the side nearest obstruction by the building at the east end of the
to M.'s house, and thereby caused a diminution arch.
qf the light to M.'s windows.
By his defence the defendant denied the right
Held (affirming the decision of Kekewich, J., 61
to access of light through the arch, and pleaded
L. T. Rep. Ar. S. 236), that there was an implied
that, even if there was any such right, no appreciobligation by C. not to interfere with M.'s access
able amount of light came through the arch.
of light: and that, as this obligation was not
It was also pleaded that the plaintiff was
restricted by any reasonable presumption on the barred by laches and acquiescence.
part of M. that the arches would be blocked up, a
The plaintiff died after the commencement of
mandatory injunction must be granted to pre- the action, and it was continued by his wife.
vent the continuance of the obstruction.
Evidence was adduced on the part of the plaintiff to the effect that the sitting-room window
By an indenture of the 31st Dec. 1863, the London,
was materially darkened by the erection of the
Chatham, and Dover Railway Company granted
hoarding, and that the room was rendered less
to the plaintiff Solomon Iyers (who'had since
died), the fee simple of a piece of land at Newcomfortable for habitation.
ington Causeway, Surrey, and the messuage
On the other side expert evidence was adduced
thereon, No. 89, Newington Causeway, with all
to prove that no light that could be estimated
rights, easements, and appurtenances thereto
The witreached the window from the arch.
nesses detailed experiments which were made in
belonging.
This messuage was continuously occupied by
the arch.
The action came on for trial before Kekewich, J.
the plaintiff and his wife, partly as a shop and
in July 1889, and his Lordship decided that there
partly as a private dwelling-house.
It was
situated on the south-western side of the London,
was an implied obligation by the defendant not to
interfere with the plaintiff's access of light; and
Chatham, and Dover Railway, and was eight
feet distant therefrom.
that, as this obligation was not restricted by any
The railway was carried on a viaduct past the
reasonable presumption on the part of the plaintiff that the arches would be blocked up, a mandasaid house, and two of the windows in the house,
tory injunction must be granted to prevent the
namely, a sitting-room and a kitchen window,
continuance of the obstruction. His Lordship
looked on to, and derived some light through,
also directed an inquiry as to damages: (61 L. T.
two of the arches of the railway.
These arches or tunnels were fifty-eight feet
Rep. N. S. 236.)
long.
From that decision the defendant now appealed.
On the 19th Dec. 1872 the railway company
Neville, Q.C. and Russell Roberts for the
granted a lease of a piece of ground and seven of
appellant.-The recital in the conveyance of 1863,
the arches to Isaac Jacobs, for a term of fifty
that the land retained was required for the puryears; but subject to any rights of light to
poses of the railway, is inconsistent with the
which the owner or occupier of the messuage on
notion of an implied grant to the plaintiff of a
the west side of the railway was entitled.
right to light, and the plaintiff is not entitled
In consequence of a question as to light the
under the Prescription Act by reason of the
rent was reduced from 2501. to 2251.
interruption of his enjoyment of the light in
By an indenture of the 3 1st Dec. 1872 the
1872. The plaintiff must be taken to have known
railway company conveyed to Lewis Isaacs (as that these arches would be blocked up,
as there
trastee for Jacobs) the fee simple of certain
is a universal practice among railway companies
surplus land belonging to them on both sides of
to let such arches:
the railway, and by an indenture of even date
Birmingham, Dudley, and District Banking Comgranted to him a lease of the arches for 1000
pany v. Ross, 59 L. T. Rep. N. S. 609; 38 Oh. Div.
years. subject to the prior lease.
295.
Owing to a question again arising as to the
Then we submit, also, that a man cannot claim
plaintiff's right of light, the purchase money was
access of light through another man's building;
reduced from 19001. to 15351.
and this arch is a building for that purpose. But
(a) Reported by W. 0. BIsS, Esq., Harrister-at-Law.
if there is any such right, the expert evidence
Vol. LXII., N. S., 1586*.
APP.]
[April 5, 1890.
MYEs V.CATTIRSON.
[CT. or APr.
April 5, 1890.]
CT. oF
AP.J
As
APP.]
[April 5, 1890.
MYERS V. CATtERSON.
[CT. OF APP.
April t, 1890.j
TE LAW 'IMS.
CT. oF APP.1
TURNOCK V. SARTORIS.
[CT. OF APP.
him the ho use and gave him the windows, nevertheless did intend to carry out the line in the
way in w hich I presume was most convenient to
their interests. He was told that they required
the remainder of the land for the construction
of the railway. Now, to what extent did that
modify the implied obligation which the law
would infer? I think it would modify it to
this extent: that the -vendor would no longer be
bound to leave the window lights intact, but he
would have a right to diminish the light to the
windows, and to interfere with the enjoyment of
the land so granted, so far as he was required
to do so for the purpose of constructing the
line, but no further. Unless you had some
further fact or some further notice-something
further to modify the intention of the parties
to the transaction-of course the broad rule
applies, that the person who gives a thing to be
enjoyed, intends that it is to be enjoyed, and
has no right afterwards to do anything which
defeats the enjoyment to which he has consented,
and which is the creature of his own gift. I
think, therefore, that the appellant's argument
breaks down in this, that, although it is clear
that the purchaser of this property could in
no way complain of the railway company
constructing their line, and interfering with
his windows so far as the construction of
their line did interfere with them, yet if the
matter was one which went beyond the construction of the line, then the ordinary presumption of
the law would not be ousted so far as that was concerned. It seems to me that what has been done
by means of this hoarding is certainly not for
the purpose of the construction of the line, but
goes beyond it. We put itonthebroadgroundthat
a vendor cannot derogate from his own grant, and
he is bound to allow such convenient use of the
premises which he gives to be held as is consistent with such notice. He is bound to allow
the premises which he has granted to be enjoyed so far as they reasonably can be enjoyed,
limiting the enjoyment only by that class of user
of his own land which he must be taken to have
desired. So much for the law of the case. The
appellants seem to me to fail upon that. I only
wish to say something more about the position in
which the parties stand. This, to my mind,
although I daresay the room is no doubt of some
value in the eyes of the owner, is a very small
affair. Kekewich, J. sums up this litigation in
these words: He says he has distinct evidence of
the answer to be given to the question. The
question is, whether this little sitting-room,
"otherwise dark, lighted only otherwise by means
of a passage eight feet wide, and always dark
and ill-lighted, will be rendered less comfortable
for the ordinary use and occupation of the sittingroom by persons in the plaintiff's condition of
life." The question was, whether the use of a
sitting-room like that has been interfered with by
the hoarding, and that interference is the subjectmatter of this litigation-litigation wbich has
gone through the court below, and comes to us
accompanied by printed notes of the evidence to
the extent of 120 pages. I have no doubt the
parties now attach importance to the way in
which we decide this case. But the misfortune
is that, however we decide it, we cannot decide
in this action the exact way in which that railway
arch is to be used in the future, and the exact