Cases - Scott v Pape

Record details

Name
Scott v Pape
Date
(1886)
Citation
31 ChD 554
Legislation

Prescription Act 1832

Keywords
Rights of light
Summary

The plaintiff, who had acquired rights to light over the defendant's land, pulled down his building and constructed a larger building which was completely different in character. Substantial portions of six of the new windows corresponded with three of the old windows in the east wall. This wall had also been brought closer to the defendant's land by between 2 ft 3 in. and 13 in. This also meant that the plane of the new windows was slightly different from that of the old windows. Some years later, the defendant pulled down his buildings and began to build new houses. The plaintiff claimed that the new houses obstructed his rights to light and claimed an injunction restraining the defendant from building so as to interfere with his rights. The judge granted an injunction. The defendant appealed arguing that the plaintiff had lost his rights to light by rebuilding his property and by doing so closer to the defendant's land.

The Court of Appeal held that the 6 windows occupied a substantial portion of the space formerly occupied by the 3 windows in the old building and that, by constructing the new building, the plaintiff had not abandoned or lost his rights to light. Nor did the fact that the wall had been moved forward destroy the right: it still received the same light. The plaintiff was therefore entitled to the injunction. The court reviewed the law relating to alterations in buildings and windows and a number of useful propositions can be derived from the judgment:

  • It is not the structural identity of the building or of the aperture (i.e. the type of window) which is important, but the position and size of the aperture.
  • A right may be lost by such an alteration to the building that the proper inference from the alteration and the conduct of the plaintiff is that it has been abandoned. However, mere alteration or rebuilding of a building will not be enough to demonstrate abandonment.
  • Where a window is reduced in size, the plaintiff retains the right to the portion of light coming through the diminished window.
  • Where a window is enlarged, the plaintiff still has the right to that portion of light which the old window enjoyed.
  • The mere fact of moving back or forward the plane of the wall will not destroy the right. It may do so, if it is substantially moved, so that the light which went through the old window no longer goes through the new window. It will depend on whether the plaintiff can show that the new window uses the same cone of light, or a substantial part of it, as was used by the old window.
  • A plaintiff may have altered his building so much or have so little evidence of the position of the old window that he is unable to prove that he is using the same light as he was using in the old building. In that case, the right would be lost.