Phipps and Pears owned houses that were very close together. Phipps did not insulate the wall of his house that bordered on Pears' house because it was given sufficient insulation from the neighbouring house. Pears decided to tear down his house. Phipps' house suffered damage from the weather, and he sued stating that he had a prescriptive right to be protected by the weather.
- Is there an easement known to the law as an easement to be protected from the weather?
Appeal dismissed with costs.
Denning is not taken with the appeal. He states that this is very close to the idea that there exist no easements over the use of air or the blocking of light on one's property. This is essentially asking the court to recognize a new negative easement that would disallow the defendant to tear down his house, which is nonsensical. Denning states that there is no easement to be protected from the weather, and the only way for the Phipps to protect himself would be to enter into a covenant with his neighbour, which would be enforceable in contract law.
- The courts are hesitant to adopt new types of negative easements, particularly when they severely limit a civil right of the defendant.
- There are two types of easements: positive easements which give the owner of land a right to do something on or to his neighbour's land, and negative easements which give an owner of land a right to stop his neighbour from doing something on their own land.