THE RIGHT TO LIGHT.

Dominion, Volume 5, Issue 1261, 17 October 1911, Page 2

THE RIGHT TO LIGHT.

—« WILLIS STREET SHOP CONCERNED. Decision o£ the Court of Appeal was delivered yesterday by Sir. Joshua Williams in U>e action in winch tho parties wore Walter Kmart, pawnbroker, appellant, ami itobcrt Lionel licvin, respondent. At the hearing Mr. A. Dunn appeared for the appeilnni, and Mr. 11. 1). beil, K.C., with him Mr. G. H. I'oli, lor the respondent.. Plaintiff in tnu origin;'l action (now the appe.mnt) is tho propi>: .or of a pi tee of land frontiuK on Willii Street and Old Customhouse. Street, which inny bo referred to as Lot 2, and tho defendant (now the respondent) of an adjoining section, which may be referred to as Lot 1. On Lot 2 there is a wooden building occupied by the plaintiff as u shop; the building is built up to tho northern boundary adjacent to Lot 1, and ha* a window which overlooks Lot 1. Plaintiff claimed that the right to light had been acquired to this window in the following way—that in 1808, when the land was under leas;, I from the then freoho.der of Lots 1 and 2, the building was erected, and since that < time the window had had light from over ' Lot 1. The shop was built by the lessee at a time when his lease had only 12 years to run. This lease expired on » January 1, 1879, and a new leaso for 14 i years was issued which, in turn, expired ■ on January 1, ISO 3. Between this date and November 7, ISSIB, when the nex't ' lease was issued, there, were tenancies without leases. On this latter dale the freeholder leased the land to plaintiff for 21 years. Afterwards the freeholder mid botlis Lots 1 and 2 to t'lio delemlant and others, subject to the lenso mentioned, and on April 25, 1908, thess others transferred to plaintiff Lot 2. There was no mention of the lonsc in that transfer except that it was endorsed with n direction to the District land Registrar in the following words: "Please merge outatand- ' ing lease." Subsequently I/ot 1 was transferred to the defendant. The question decided by his Honour the Chief Justice in the Court below was whether the plaintiff was entitled to a declaration by tho Court that ho was entitled to tho light of this window, and to an injunction restraining the defendant from interfering with plaintiff's enjoyment of that light. His Honour held Hint there was notTiing to show that plaintiff had transferred to him any ea.*emeitt, and that therefore his statement of | claim did not disclose a cause of action. From this decision plaintiff appealed on the ground that it was erroneous in point of law. A lengthy judgment of the Court wns read by Sir Joshua Williams, tho Court upholding the decision of the Chief Justice, and holding that no right to light attached to the land. Judgment was aoeordittgly entered for the respondent (TCnhert Lionel Levin), with costs on Hip highest scale. Loavo to appeal to tho Privy Council •.vns granted.