1905 AMBLER v. GORDON. Bray J. the expressions which are to be found in this special case and in the judgments in Colls' Case (1)—" ordinary user," or "ordinary business," or "ordinary purposes"? I think that the word "ordinary" is used solely with reference to light, and an ordinary user or ordinary business means a user or business which in fact requires only an ordinary amount of light. Is this a question of law or fact? In my opinion it is a question of fact. It must depend upon the evidence in each case, and it cannot be predicated as a matter of law whether an architect's business or any other business is an ordinary business. If I am right in this, I have no power to interfere with the finding of the umpire. I do not think it is even mixed fact and law; but if it were, I feel quite unable to see where the umpire has misdirected himself, or how he has misunderstood Colls' Case. (1) When I look at the facts as stated in paragraphs 4 to 7 of the case, it seems to me that the plaintiffs have a far weaker case than the Home and Colonial Stores had. The width of the street in Colls' Case (1) was about equal to the height of the defendants' buildings namely, 41 feet; here the street averages 60 feet in width, and the height of the main wall is only 50 feet. It is true that opposite, some small parts of the plaintiffs' premises the angle is reduced to 44 degrees or even less; but these are not the parts of the premises where the special light is required. It seems to me that the umpire would have been wrong, even as regards the ground-floor, if he had found that there was an actionable interference, much more so as regards the first-floor. If his findings are to be criticized, the observation I should be disposed to make is that an architect and a cloth merchant must require an extraordinary quantity of light if damages to the amount of 6007. have been sustained by the erection of the cathedral. But, however that may be, I accept the umpire's finding, and, accepting it, I am quite unable to see that the umpire has misdirected himself or misunderstood Colls' Case. (1) In truth, the findings that architects and cloth merchants require a special light and that this light has been interfered with are intended by the umpire to be findings in the plaintiffs' (1) [1904] A. C. 179. favour, which will enable them to raise their second point. Further, it seems to me that the umpire has not intended to state a special case to enable the plaintiffs to raise their first point or to dispute any of his findings of fact. The only point raised is whether, "on the foregoing facts," he is prevented from awarding damages, and I have no right to question the facts. I come now to the second point, which does raise a question of law-namely, whether use or enjoyment of a special light for twenty years gives a right to that special light, and thus enlarges his easement and increases the burden of the servient tenement. It is important to observe that the umpire does not state as a fact that the owners of the servient tenement were aware that the premises were being used for businesses that required special light. It was said by the plaintiffs' counsel that no evidence was given at the hearing before the umpire about it, and that if it is a relevant fact I ought to send the case back to the umpire to find it. I do not agree with that contention. A plaintiff has to prove his case, and if he does not prove a necessary part of his case he must fail. The only fact, therefore, that I have to deal with is the use and enjoyment of the special light for twenty years. Does that give a right to it? Now this most important point was not decided in Colls' Case (1); it was much discussed, but as their Lordships came to the conclusion that there was no sufficient evidence of twenty years' user it became unnecessary to decide it. It is, however, referred to in Lord Davey's judgment, which is also the judgment of Lord Robertson, and is touched upon in Lord Lindley's; but there is certainly nothing in either of these judgments which assists the plaintiff's contention; on the contrary, the inclination of their opinion seems to be against it. There is a dictum in the judgment of Malins V.-C. in Lanfranchi v. Mackenzie (2) distinctly opposed to the plaintiff's contention if knowledge is not to be assumed; and Mr. Bankes was unable to point to any dictum in any case in his favour. The reasons of Malins V.-C. for thinking that no right could be gained in the absence of knowledge seem to me to be (1) [1901] A. C. 179. (2) (1867) L. R. 4 Eq. 421, at p. 430. 2 G.2 2 1905 AMBLER V. GORDON. Bray J. 1905 AMBLER v. Bray J. unanswerable. If the origin of the right to light is a supposed lost grant or covenant, as the cases seem to shew, who would GORDON, presume that the owner of the servient tenement intended to grant a special right beyond the ordinary right, where he was ignorant of the special user or enjoyment? I am, however, prepared to go further, and to hold that even twenty years' enjoyment to the knowledge of the servient tenement will not give a larger right. I think the result of the judgments in Colls' Case (1) is to shew that the test of the right is whether the obstruction complained of is a nuisance. If one turns to the nuisance cases, do we find any trace of a doctrine that a person in bad health or carrying on a delicate trade is entitled to more comfort or freedom from annoyance than ordinary people because for twenty years his neighbours have been aware of his state of health or the trade he was carrying on and have left him undisturbed? I am not aware of any decision which suggests it. Such a proposition sounds absurd. Again, I think in many of the judgments in Colls' Case (1) and in other cases it is implied, if not expressed, that, in measuring the quantum of light to which the owner of the dominant tenement is entitled, the purpose for which he desires to use, or uses, the light should be disregarded, and does not either enlarge or diminish the easement which he has acquired. See especially the judgment of Lord Davey, where he says (2): "It is agreed on all hands that a man does not lose or restrict his right to light by non-user of his ancient lights, or by not using the full measure of light which the law permits. . . . If the actual user is not the test where the use falls below the standard of what may reasonably be required for the ordinary uses of inhabitancy and business, why (it may be asked) should it be made a test where the use has been of a special or extraordinary character in excess of that standard?" So in Yates v. Jack (3) Lord Cranworth rejects the argument of the defendant that the plaintiff's present business did not require a strong light, and for this business there remained a sufficient light. So, again, in Courtauld v. Legh (4) it was held that the (1) [1904] A. C. 179. (3) (1866) L. R. 1 Ch. 295. right was acquired although for a part of the twenty years the house was uninhabited and unfit for habitation. It was well observed by Mr. Waugh in his argument for the defendant that the special user on which the claim is founded is a user on the dominant tenement and not on the servient tenement. The servient tenement is not in any way affected by it. If the true doctrine be that which is laid down in Colls' Case (1), that by twenty years' user all that is acquired is a right to prevent the defendant from building so as to interfere with the light previously enjoyed so materially as to amount to a nuisance, I think it would not be logically consistent with this doctrine to hold that a larger right can be acquired. I think also that to introduce the element of the quantum of user would work inconvenience and introduce uncertainty. If the only right capable of being acquired be sufficient light for the ordinary uses of inhabitancy and business, the owner of the servient tenement knows his exact position; he knows within reasonable limits how high he can raise his buildings, and whether during the twenty years it is worth his while to obstruct his neighbours' windows. If a right to special light be capable of acquisition without his knowledge he cannot know his position, and if he has notice of some special light being required for his neighbour's business he cannot measure the extent with any exactitude. It seems to me altogether unreasonable to presume that any man would have made a grant of such an indefinite easement. On the whole I think both reason and authority compel me to decide this point against the plaintiffs. The last point seems to depend entirely upon the true construction of the agreement of December 1, 1902. Has the defendant by that agreement agreed to pay for actual damage sustained, whether there was an actionable interference or not? Reliance was chiefly placed on the recital and on clause 1. It was said that the recital states that the agreement was a "compromise," which implies concession on both sides, and that if the defendant had not made this concession he had made none. Mr. Waugh pointed out that clause 9 was a concession, and I think he is right. I think this power was given (1) [1904] A. C. 179. 1905 AMBLER v. GORDON. Bray J. 1905 AMBLER 0. GORDON. Bray J. in lieu of the power to grant an injunction. The real question, however, depends on clause 1. Does "interference with or obstruction of light" mean legal or actionable interference or obstruction, or, in other words, is it interference with or obstruction of light to which the plaintiffs were entitled? The recital implies that this was disputed, and this I think was the dispute referred to arbitration. I cannot draw from the words of the agreement any inference that the defendant intended to give up any legal defence. I think the dispute was whether the plaintiffs had sustained legal damage for which any action would lie against the defendant. It remains, therefore, to look again at the findings of the umpire. He has found that sufficient light remained for all purposes of ordinary user. I think that finding was substantially the same as the finding of Joyce J. in Colls' Case (1); and, the House of Lords having held that on that finding no action lay either for an injunction or for damages, I must hold that the plaintiffs are entitled to no damages here, and must direct judgment to be entered for the defendant with costs, so far as I have any jurisdiction to deal with costs Judgment for defendant. Solicitors for plaintiffs: Pitman & Sons, for Herbert Denison, Leeds. Solicitors for defendant: Johnson, Weatherall & Sturt, for J. Watkinson, York. (1) [1904] A. C. 179. F. O. R. |