Right to light and air when an easementary right.

This is an appeal preferred against the decree and judgment of the learned Subordinate Judge of South Kanara, in A.S. No. 203 of 1946, confirming the decree and judgment of the learned District Munsiff of Kasargod in O.S. No. 503 of 1944.

The established facts are: The plaintiffs have constructed a shop and a building in 1930 and adjoining their premises there was vacant poromboke land. Defendants have occupied this poromboke land and have put up a building, a portion of which they are using as a coffee hotel. There is no dispute that this was long subsequent to the construction of shop and building by the plaintiffs. In putting up that building, the defendants who are trespassers upon the poromboke property have done the following things. They have interfered with the walls of the plaintiff’s shop and building in order to raise their roof. In addition they have so put up their roof that they have practically cut off light and free air which used to enter the plaintiff’s upstairs through the windows U and R; they have also constructed an oven in room L-2 and the smoke and offensive smell emanating therefrom gets through these windows into the upstairs of the plaintiffs’ shop making the upstairs uninhabitable and constituted an unmitigated nuisance. Therefore they came to Court with this suit for mandatory and permanent injunction in regard to the obstruction of light and air. The contention of the defendants was that the plaintiffs have not acquired an easementary right for light and air and that they were within their rights in doing what they had done. Both the Courts have found that the plaintiffs’ version regarding the facts set out above is true and that the plaintiffs interfered with, in their natural right of enjoying the light and air and are entitled to the injunction asked for. Hence the appeal by the defeated defendants.

The sole point for determination before me is whether in order to maintain the suit the plaintiffs should have proved that they had acquired an easementary right to light and air.

In my opinion, the plaintiffs are not bound to show that they have acquired an easementary right in order to obtain the reliefs asked for by them and which has been granted. Here are my reasons.

The right to light and air as pointed out by Peacock in the law relating to easements in British India (3rd Edn.) may be either a natural right forming one of the incidents of property or it may be an easement. It is unnecessary for the purpose of this appeal to go into the question whether the popular amalgamation of both these rights in the phrase "light and air" is accurate or inaccurate. It is enough to point out as mentioned in Combe’s Law of Light, page 15, that that phrase is misleading and these two easements though very similar are acquired under different circumstances. That both of them constitute an adjunct to and are inherent in land ex jure naturae and exist prima facie in all cases as between the landowner and his neighbour and secondly that they can be acquired as an easementary right cannot be disputed.

The distinction between natural rights and easements is drawn by Peacock on Easements (3rd Edn.), at page 24, as follows:

"Natural rights are by law annexed to, and are inherent in land ex jure naturae, of natural right and exist prima facie in all cases as between a landowner and his neighbour, otherwise, as Mr. Goddard says in his work on Easements (7th Edn., page 3) ‘no man would be assured that his land would not at any moment be rendered useless by a neighbour’s act otherwise lawful, or a neighbour might deprive a landowner of the benefit of certain things which in the. course of nature have been provided for the common good of mankind.

Further, natural rights are rights in rem, that is, enforceable against all who may violate them, and they are either affirmative, as rights to do something or negative, as rights which every owner of immoveable property has, that his neighbour shall not disturb the natural c