Cases - Birmingham, Dudley and District Banking Co v Ross

Record details

Name

Birmingham, Dudley and District Banking Co v Ross

Date

(1888)

Citation

38 Ch D 295

Legislation

Prescription Act 1832

Keywords

Rights of light

Summary

The Corporation of Birmingham granted a lease to the plaintiffs of land on which stood a newly constructed building 'with the rights, members, and appurtenants to the said premises belonging'. The building abutted a passage 20 ft wide, which the Corporation agreed to keep open and, on the other side of the passage, were buildings about 25 ft high. The Corporation then leased the land on the other side of the passage to the defendant, who pulled down the old buildings and constructed a new building which was 80 ft high. All the land was part of a larger building scheme laid out by the Corporation for the improvement of the town. The plaintiff brought an action for a mandatory injunction ordering the defendant to pull down the part of its building which interfered with its right to lights and also an injunction preventing the defendant from constructing his building so as to interfere with the plaintiff's rights to light. The plaintiff argued that there had been an express grant of a right to light, alternatively that such a right should be implied into the lease.

The Court of Appeal held that the lease contained no express right to light. It held that the extent of the light to which the plaintiff was entitled by implied grant must be measured by the circumstances which existed and were known to the parties at the time the lease was made. As the plaintiffs knew that the whole area was to be built on by the Corporation, subject only to a requirement negotiated between the parties that there should be a distance of 20 ft from the plaintiff's land, the plaintiff had no right to light beyond the protection given by the 20 ft passageway. Given the circumstances, there was no derogation from the grant. The plaintiff was not therefore entitled to an injunction.