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Duke of Norfolk v Arbuthnot (1880) 5 CPD 390;

44 JP 796; 49 LJQB 782; 43 LT 302

EASEMENT, PRESCRIPTION, PRESCRIPTION AT COMMON LAW,

ENTITLEMENT TO LIGHT, LOST GRANT, DEFEAT OF PRESCRIPTIVE RIGHT

Facts

The parish church, St. Nicholas Arundel, was a cruciform church with a central tower. Part of it, located to the east of the tower, and called Fitzalan Chapel belonged to the plaintiff. The Fitzalan Chapel occupied the place commonly filled by the chancel in the churches. The plaintiff built a wall across the west end of Fitzalan Chapel to separate it structurally from the rest of the church. The defendant pulled down part of the wall, alleging that Fitzalan Chapel was the chancel of the parish church or even if it were not, the parishioners were entitled to the light from it by virtue of either prescription at common law, or lost grant, or s. 71 Prescription Act 1832. The plaintiff – the Duke of Norfolk, and his ancestors, though whom he claimed against the defendant, exclusively owned Fitzalan Chapel for more than 300 years.

Issues

(1) Was Fitzalan Chapel the chancel of St. Nicholas Arundel Church?

(2) Could the pulling down of the wall be justified on grounds that the Church was entitled to access the light from Fitzalan Chapel?

Held

The decision was in favour of the plaintiff.

(1) Fitzalan Chapel was not the chancel of St. Nicholas Arundel Church as the evidence showed that it was owned by the Duke of Norfolk and his family for more than 300 years.

(2) The defendant could not justify the pulling down of the wall on grounds that the Church was entitled to access the light from Fitzalan Chapel neither by virtue of prescription at common law, nor by virtue of lost grant, nor by s. 71 Prescription Act 1832.


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