Odger's English Common Law

572 DISTURBANCE OF EASEMENTS, &C.
years without interruption, the right is declared by the statute to be
absolute and indefeasible. It cannot, therefore, be lost or defeated by a
subsequent temporary intermission of enjoyment, not amounting to
abandonment ; nor will it be affected or prejudiced by any attempt to extend
the access of light beyond that which was enjoyed uninterruptedly during
the required period." x
Thus, where the owner of a dwelling-house containing a window,
which under the statute had acquired an absolute and indefeasible
right to light, opened two . other windows one on each side of the old
window, the indefeasible right did not thereby become defeasible ; for
by opening the new windows the owner of the dwelling-house does no
wrong in the eye of the law to his neighbour, who is at liberty to build up
on his own land so as to block the new windows, though he must not
obstruct the ancient one. In the case of windows " with moveable shutters,
which are opened at the owner's pleasure for admission of light, the right
is gained at the end of twenty years, if he opens them at any time he pleases
during those twenty years, and there is no such interruption of access over
the neighbouring land as is contemplated by section 4." 2 There can be
no prescriptive right to light passing through an ordinary doorway. 3
An enlargement of an ancient window, which substantially includes within
its area the ancient light, will not cause the loss of the easement, nor will
its diminution be evidence of an abandonment as regards the remaining
part. 4 Neither will the easement be lost by an alteration in the plane of
the dominant tenement, either by advancing or setting it back, provided
that the light reaching the new windows be substantially the old cone of
light which entered the windows in their former position ; and generally
the pulling down of a house will not cause the loss of any easements
already attaching to it, if it is intended to rebuild it within a reasonable
time. 6 But if a building has been pulled down and a new one built in
its place, and it cannot be shown that the windows of the new building
are in any way identified with the old windows, the easement will be
lost. 6
(iii.) Lastly, the plaintiff must prove that the defendant
has obstructed or prevented the plaintiff's enjoyment of his
right. A question often arises as to what amounts to an
obstruction. The erection of an iron fence across a right of
way would certainly amount to an obstruction. But the
erection of a stile with convenient steps across a footpath is
no obstruction ; indeed, it is rather an admission of the right.
No action will lie against the owner of the servient tenement
305.
i Per Lord Westbury, L. C. , in T/ipling v. Jones (1866) , 11 H. L. Cas. at pp. 304,
2 Per Kay, J., in Cooper v. Straher (1888), 40 Ch. D. at p. 28.
8 Zeeet v. Gas Light # Coke Co., [1919] 1 Ch. 24.
* Ifewson v. Pender (1884), 27 Ch. D. 43.
6 Luttrel'e Case (1601), 4 Rep. 86 ; Bullers v. Dickinson (1885), 29 Ch. D. 155.
8 Fowlers v. Walker (1880), 49 L. J. Ch. 598 ; (1881), 51 L. J. Ch. 443 ; but
see Ecclesiastical Commissioners v. Kino (1880), 14 Ch. D. 213.