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June35,1910 Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,
and Mr. Justice Middleton.
GOONAWARDANA u. MOHIDEEN KOTA & CO.
D. C., Kandy, 18,525.
Servitude of lightandair—Prescription—Slight . diminutionof lightand
air—No cause of action arises therefrom.
A right to the servitude of light and air can be acquired byprescription. Battheright which can be so acquired is not aright
to all the lightandair which may have come to thebuildings,not
a right to have itcome absolutely undiminisbed, butonly tohave
so much of it come as is required for the use and .enjoyment of thebuilding. A person has no right to complain merely because theamount which comes to his building is diminished; he must showthat there has been such a substantial diminution as to render hisbuilding appreciably less fit than it was before for occupation or usefor the purpose for which it has been used.
fJjHE, facts are fully set out in the judgments.
Bawa, for the defendants, appellants.
Van Langenberg, for the plaintiff, respondent.
Cur. adv. vvlt,*
June 15, 1910. Hutchinson C.J.—
The plaintiff says that he is the owner of a piece of land at Nawala-pitaya with buildings on it, and that he and his predecessors in titlehave had, for more than ten years before the cause of action arose,
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the free and unrestricted use of light and air from the defendants’ June 15,1920land by a title adverse to and independent of all others, and so he HoTaamsoKhad acquired title to such light and air by prescription; that the C.J.defendants, eleven months before this action, put up on their own chona*land a building whereby the plaintiff’s houses have been deprived of vmdanav.light and air, and have been darkened and rendered unhealthy and Koya&Co.less valuable; and that in consequence of the infringement of hisright to light and air the rent of his houses has fallen. He also saysthat the defendants wrongfully and forcibly opened through thecompound of his (the plaintiff’s) houses a drain for conveying cattledung and other offensive matter from their land to the drain underthe plaintiff’s houses, with the result that his houses are subject tobad smells, and are liable to be damaged by overflow of water in rainyweather. He claims a declaration of his title to the free andunrestricted use of light and air from the defendant’s land, and anorder on the defendants to remove their building and to close thedrain opened by them, and damages. The District Court grantedall that he asked for; and this is the defendants’ appeal.
The plaintiff’s buildings are three adjoining boutiques facing aroad. Through the back or western wall of each of them is a doorleading to a kitchen; and through the back or western wall of eachkitchen is a door leading into a narrow compound, a longitudinalstrip of land 4 feet to 4| feet in breadth; and beyond that,still going westward, is- the defendants’ land. The building ofwhich the plaintiff complains is on the defendants’ land close up tothe plaintiff’s boundary. We are bound by the decision in F. W.
Neate v. Maria de Abrew Hamine 1 to hold that a right to the servitudeof light and air can be acquired under section 3 of Ordinance No. 22of 1871. And if it can be so acquired, there is plenty of evidence thatthe plaintiff has acquired the right to access of light and air to hisbuildings over the defendants’ land. But the right which can be soacquired is not a right to all the light and air which may have come tohis buildings, not a right to have it come absolutely undiminished,but only to have so much of it come as is required for the use andenjoyment of his building. He has no right to complain merelybecause the amount which comes to his building is diminished;he must show that there has been such a substantial diminution asto render his building appreciably less flt than it was before foroccupation or use for the purpose for which it has been used. This,
1 believe, is the Roman-Dutch Law, although I cannot find it veryclearly expressed in Voet (book VIIL) and it is the English Law (Collsv. Home and Colonial Stores, Limited 2).
The Judge inspected the premises. He found that the threerooms at the back of the plaintiff’s three boutiques are occupied askitchens; they have no windows, and are very dark, and the eavescome down as low as the doors. The plaintiff’s compound or
1 (188$) 5 S. C. C. 126.* (1994) L. R. A. C. 179.
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Junel6,l$10 passage at the baok. of the kitchens, on the west, is 4 to 4£HcTom«»oH feet m breadth. The defendants’ building is a half wall 5 feetC.J. high, with four pillars rising above it to a height of 3 feet 9inches, and the roof is of corrugated iron, the ridge'being 11taardana v. feet above the floor; it contained tiles and timber, and was appa-^ohideen^ rently used as a storeroom; the plaintiff called it a oattle shed, andthere is evidence that it was used as a cattle shed for a few days.The Judge noted after his inspection that 44 defendants' buildingappears to me to keep out a certain amount of light and air.’*
The Judge finds that the defendants* building “ has deprivedplaintiff’s boutiques of a certain amount of light and air, and hasdiminished their value to a certain extent.” By “ boutiques ” heappears to mean not the part of the building used as a boutique,but the whole building; for it seems clear from the plan and evidencethat the access of light and air to the parts facing the road could notpossibly be affected by the defendants’ building, and that only thekitchens could be affected. The plaintiff in his evidence says: 44 Thefront part of the boutique is used for selling things, and the backis used as a store. The back portion of the building has chieflysuffered. It did not strike me that a few glass tiles would remedythe defect. I think it would now.” He seems to mean glass tilesin the kitchen roof, for the boutique has an upper storey. He saysthat if the doors are open there will not be so much light in the front.But surely if a few glass tiles in the roof would remedy the defect, orif a window would remedy it, he has no reasonable cause for com-plaint. If he chooses to keep his room like a cave, with no meansfor access of light except through a door,' he cannot prevent hisneighbours from building on their own land, merely because he willnot put in a window which would give him light enough. Withregard to the damage caused to his buildings, the Judge says thatthe evidence is very unsatisfactory; that no books were producedand no tenants called; but he thinks that some damage was caused.That, however, is not enough. For a house may be rendered lessvaluable by the neighbours building on their adjoining lands, andthe owner cannot prevent it, unless the right which he has acquiredto access of light and air has been appreciably interfered with so asto render his house substantially less fit for use and occupationthan it was before. And, in my opinion, the plaintiff has notproved this.
With regard to the drain, the allegation in the plaint (paragraph 7)is that the defendants wrongfully and forcibly opened a drainthrough the plaintiff's compound; the issue as to that was whetherthe defendants are guilty of the nuisance complained of in paragraph7; and there is not a word of evidence in support of it.
In my opinion the decree should be set aside and the actiondismissed. I agree to the order proposed by my brother Middletonas to costs.
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Middleton J.—June I5t 1910
This was an appeal against a judgment declaring plaintiff entitled Qoona-to the free and unrestricted use of light and air from the defendants* «oardana v.land, and ordering the defendants to remove a shed built by them Koya^^Co.along the plaintiff's western boundary and to demolish the drainopened by them, and further ordering the defendants to paydamages and costs. It was conceded by counsel for the appellantsthat plaintiff under his conveyance had obtained all rights as regardlight and air v&ich he claimed, and that such a right may be acquiredby prescription under Ordinance No. 22 of 1871, according to theruling in Neate’s case,1 which is binding on this Court. It appearsfrom the judgments of Clarence and Dias JJ. in that case that underthe Boman-Dutch Law the learned Judges thought it would notbe possible to acquire a negative servitude by prescription. Thepossibility, however, of such a thing is demonstrated in 2 Maasdorp201 and 208t although the difficulty of it as regards such a right asne luminibus officiatwr seems almost insurmountable, and at page 176of 2 Maasdorp is only contemplated by grant. The real question in- the present case was whether there had been such an interferencewith the plaintiff's rights of ancient light and air as would entitlehim to the remedy decreed to him.
As regards the drain, it was contended that no cause of action wasproved, inasmuch as the allegations of opening a new drain had notbeen substantiated, that plaintiff admitted the right of the defendantsto send their rain water over his premises, and that plaintiffs vendorproved (page 15) that the drain always existed. Counsel for therespondent left the question as to the plaintiff’s right in regard tothe drain in our hands practically without argument, and, in myopinion, the arguments of the appellant’s counsel must prevail, onthe grounds alleged that no cause of action is proved as regards thedrain. It is clear, to my mind, that the defendants had from thenature of the adjoining land, and by long use, the right to pass theirrain water over the plaintiff’s land, and the evidence does not showthat the defendants did anything more than concentrate on their ownland the direction of the water, which seems to me to be rather aconvenience than otherwise to the plaintiff. The plaint (paragraph7) admits that there is a barrel drain under plaintiff’s house, and theevidence, in my opinion, does not establish that the defendant didanything more than concentrate, by making a drain on his ownland, the water to that barrel drain. Nor do I think that as regardscattle, manure anything more than an isolated instance of its passagehas been proved, certainly not sufficient to constitute an actionablenuisance. In my opinion the judgment as regards this drain shouldbe* set aside.*
Amongst other issues settled, the third issue was whether inconsequence of the defendants’ acts the plaintiff’s houses have been
Wendt's Reports 188-196-
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June 15,1910 deprived o,f light and airf and have been darkened and renderedunhealthy and less valuable than they were before. In my opinionJ. this issue, even if answered in the affirmative, would not entitle theplaintiff to succeed. The plaintiff may have been deprived of lightwardanav. and air, and his premises darkened and rendered less valuable, andwould not be entitled to succeed in this action.
A building on the opposite side of a wide public road, or even if ahigh one at a further distance, would obstruct the light and air tosome extent of buildings opposite to or in the shadow of it, but thequestion is what amount of obstruction is actionable, and what is theproper remedy, compensation, or a mandatory injunction. Nothinghas been quoted to us from the Boman-Dutch Law as a guidance tothe decision of these questions, but the case of Colls v. Home andColonial Stores, Limited,x has been relied on by the appellants. Tomy mind this is a case which may well form the basis of our decisionon the question before us. I think, therefore, we must considerwhether there has been a substantial privation of light and air enoughto render the occupation of the plaintiff's houses, uncomfortableaccording to the ordinary notions of mankind, or to prevent theplaintiff from carrying on his business as beneficially as before.If actionable, we ought then to apply the ruling of A. L. SmithL.J. in Shelfe v. City of London Electric Lighting Company 2 toascertain whether damages or an injunction shoulxLbe granted.
Regarding the evidence by the light of the first test, we find thatthe buildings alleged to be deprived of light and air were theboutiques and their small kitchens without windows and with smalldoors; that it is admitted that the alleged deprivation might be madegood by glass tiles, but the question' of windows to the kitchen hasnot apparently been considered in the Court below; that the DistrictJudge says that it appears to him that the defendants' buildingkeeps out a certain amount of light and air from the plaintiff'sboutiques, and has diminished their value to a certain extent.
The District Judge further finds that the shed did not exist inits present condition until the defendants recently erected it there.This finding is not contested by counsel for the appellant. Theplaintiff strove to show that he had been compelled to raise the frontroof of his boutiques to get more light, but I find it most difficult,nay impossible, to believe that the erection of the shed in questioncould affect the light or air of the front boutiques, which open intothe four kitchens, mainly effected by doors. I cannot, moreover,understand the plaintiff when he says that even if these doors areopen there will not be so much light in front (page 14/33.) If thedoors are shut, it matters not, it seems to me, whether the defendants'shed is there or not. The plaintiff says the building has darkenedhis houses very much and deprived them of air. His witness; Muttu-sami, says the shed has darkened the boutiques very much, and
(1904) A. C. 179.
(1895) J Ch. D. 987.
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.Ahamado Lebbe says the new shed shuts out light and air, while the Jva*t6,1910carpenter he calls speaks oi raising the verandah in front beoanse MnmuiToxthe houses were dark inside on account of a wall built at the hack of J.the defendants’. None of the witnesses assert that the kitchensOoona-
used as storerooms are rendered so dark as to prevent the plaintiff vmrdanav.from carrying on his business as beneficially as before, and I cannot Koya'^Co.believe the .front boutiques could be affected in any way. I aminclined to think that the real cause of the trouble and complaintmay have been the passage of manure on one occasion from thedefendants’ premises through the plaintiff’s drain. In my opinionthe plaintiff has not established an actionable wrong either as regardsthe building or the drain, and I would allow the appeal, and set asidethe judgment of the District Judge and dismiss the plaintiff's action.
Under the special circumstances of the case, and of the defenceraised by the defendants as to the old building, I would only givethem their costs of the appeal, and would order each party to payhis own costs in the Court below-
GOONAWARDANA v. MOHIDEEN KOYA & CO