George v Thomas et Al
| Jurisdiction | Trinidad & Tobago |
| Judge | Tiwary-Reddy, J. |
| Judgment Date | 01 January 2009 |
| Neutral Citation | TT 2009 HC 296 |
| Docket Number | HCA No. 502 of 1994 |
| Court | High Court (Trinidad and Tobago) |
| Date | 01 January 2009 |
High Court
Tiwary-Reddy, J.
HCA No. 502 of 1994
Mr. R. Sowley instructed by Mr. Anand Singh for the plaintiff.
Mr. D. Warner for the defendant.
Real property - Right to access and use of light — Whether defendant's wall obstructed flow of light through plaintiff's window.
The plaintiff seeks damages for obstructing the access of light to her premises situate at No. 169 Kitchener Avenue. Barataria (No. 169). She claims that between May 1989 and August 1990 the defendant erected a wall on the western side of the plaintiff's dwelling house thereby impeding the flow of light through the plaintiff's windows. The defendants deny the erection of a wall during the aforesaid period and maintain that the said wall was erected in 1974 with the plaintiffs consent. The defendants contend further that certain renovation works undertaken by the plaintiff herself diminished the flow of light to her premises.
It should be noted at the outset that the plaintiff claimed inter alia, special damages for earnings and a reduction in the market value of her property to the extent of $50,000.00. However no evidence was led in support of these matters.
- (a) Whether the plaintiff has established a right to access and use of light through the window on the western side of No. 169, pursuant to the Prescription Ordinance Chap. 5 No. 8. (b) Whether the defendants erected a wall along the parties' common boundary during 1989 – 1990 and the height of this wall. (c) Whether the defendants, by erecting the wall, obstructed or diminished the flow of light to the plaintiff's said window. (d) Further, whether the plaintiff suffered any disturbance or diminution in the use and/or enjoyment of her premises as a result of (c) above. (e) Whether the defendants' conduct amounted to an actionable nuisance. (f) Or, whether the plaintiff, by her own actions, diminished the flow of light to her said windows.
The plaintiff, Patricia Huggins-Jack and Elaine Clarke testified for the plaintiff while the second defendant and Victor King, a builder gave evidence for the defendants.
The plaintiff, a retiree, testified that in 1972 she purchased and commenced occupation of No. 169, a National Housing Authority (NHA) house which then consisted of two bedrooms. The eastern side of the house consisted of a pantry, a sitting room and the first bedroom while the western side consisted of a bath and the second bedroom. The defendants' house known as No. 168, was situate on the western boundary of the plaintiff's house. In 1974 the defendants erected a wall along the parties common boundary line. This the wall was “breast high” and allowed the plaintiff to see and converse with the defendants. The distance between the wall and the eave of the plaintiff's house was eight feet.
In 1980 the plaintiff renovated her home by enlarging the sitting room and pantry and constructing two additional bedrooms. An extra bedroom was constructed beyond the bedroom adjoining the sitting room while the other was added to the second bedroom on the western end. Three years later, the plaintiff completed a covered walkway with its roof ending at the defendant's wall. The walkway started from the top of the last window in the added bedroom and ended at the front of the house on Kitchener Avenue. In cross-examination the plaintiff denied that the roof of her own walkway diminished light to the rooms on the western side of her house.
Sometime after the plaintiff's renovations, the defendants raised a portion of their wall to construct a room where palm reading and card cutting was carried on. According to the plaintiff:
“The raising of the wall at this stage did not disturb me. The raised part of the wall started from the opposite end – the back of the house and reached as far as the wash sink outside of the original bedroom, which is next to the pantry. The wash sink is located outside the house on the outside of the bathroom. The raised part of the wall did not pass my bathroom. The raised part of the wall did not start from the northern end of my lot. The new bedroom on the left side had two windows. It was a corner bedroom. One of these windows faced the western boundary. There is one window in the original bedroom and over-looks the defendant's property. The window is in the centre of the room. There are two windows in the added bedroom. One is facing my back wall and the other faces the defendants' property. The wall is raised from part of the window in the added bedroom straight along the original bedroom.”
As a result the plaintiff was unable to see the defendants' house save for the upper part of the defendants' window. Eventually the defendants ceased palm reading and card cutting and started to rear chickens in the said room. But this ceased after the plaintiff complained to the NHA.
During June and July 1990, the plaintiff went abroad on vacation for a month. On her return she discovered that the defendants' original wall had been raised once more. The new raised area was joined to the earlier raised area to facilitate construction of a church (a mourners room) by the defendants. This newly raised portion was done without the plaintiff's knowledge and consent. It occupied the distance from the plaintiff's wash sink and continued past the pantry towards the road. The height of the wall blocked the plaintiff's entire view of the defendant's house. According to the plaintiff:
“This wall starting from the back or rather the side of the house began from part of the first window in the added bedroom and went right down past my gallery. The building is raised so that when I stand in my pantry and look towards the church I can only see the sky. If I step back a little further into my sitting room I can see just the centre roof of the defendants' house because the roof is built like a cone so I just see the centre. The entire wall is now the same height. I cannot see the top of the defendants' house.”
The plaintiff said the effect of this was that her rooms became darkened, especially the original bedroom in which she did her sewing. Further, she could only sew if her lights were on and she had to use a fan because this room became very hot and dark. Consequently, the plaintiff was obliged to reduce the volume of private sewing jobs that she undertook resulting in a loss of income.
In cross-examination the plaintiff admitted that she had hired someone to erect two sheets of galvanise side by side on the plaintiff's side of the defendants' wall, which extended almost to the height of the defendants' card cutting room. The plaintiff accepted that one of the reasons she objected to the additional structure erected by the defendants was to prevent the defendants from offering prayers in that area.
Patricia Huggins Jack had known the plaintiff since 1979. She recalled that when she first visited the plaintiff's house in the early 1980's the wall between the plaintiff and the defendants was a low wall, measuring approximately three feet, just below ‘breast height’. Ms. Jack admitted that she visited the plaintiff about 2-3 times a year at No. 169 from the early 80's to the early 90's. According to her:
“Between my first visit in the early 80's right up to the early 90'.s there was no structure on the defendants' side attached to the wall.”
On the occasions when Ms. Jack stayed with the plaintiff they would both converse in the sewing room. However, Ms. Jack admitted that there was a window covered with heavy drapes in the sewing room.
With respect to the covered walkway, Ms. Jack agreed that:
“There is a walkway on the outside going towards the back of the house. That walkway is covered with galvanise sheets. These sheets extend from the plaintiff's house, very close within inches, to the defendants' house. The plaintiff's galvanise goes to a few inches from the defendants' roof on that side. The defendants' wall is higher than the plaintiff's galvanise.”
Further, after the wall was raised the plaintiff had replaced the heavy drapes with light drapes because the sewing room had become hot and darkened and was uncomfortable. As a result the plaintiff and Ms. Jack used this room less frequently. Some two months prior to the trial Ms. Jack had visited the plaintiff and noted:
“The wall on the left side is not low because you cannot see over it. At present the wall is a little higher by the pantry/sewing room area than the rest of the wall. That higher part of the wall was not there when l first visited the plaintiff”
Elaine Clarke, a neighbour, knew the plaintiff since 1972, when the latter moved to No. 169. She remembered that a wall was built between the plaintiff's and the defendants' homes sometime after 1972. The first wall, located west of No. 169 was about three feet high. A few years later and after the plaintiff's renovations an additional wall was built on top of the original wall. Ms. Clarke recalled that the entire length of the additional wall was not built at the same time. The front part near the gallery was constructed first followed by the remainder.
Ms. Clarke was familiar with the plaintiff's sewing room. She observed that:
“…after the additional wall went up, you couldn't even see the top of the house next door. You could only see the sky. The sewing room was dark. You can't get breeze or see the outside as you should … Before the second wall went up the room was dark, but you could have made out to sew or see a little glare. After the second wall went up you could only see the sky.”
Ms. Clarke also noted that there were galvanise sheets about two sheets high at the end of the wall on the plaintiff's side.
The Second defendant testified that from 1972 both defendants and their two children lived next door to the plaintiff at No. 168...
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