windows, and suffered such blank wall to remain about seventeen years (Moore v. Rawson, 3 B. & C. 336; see Cook v. Bath, 6 Eq. 177). So if a man pulls down a house, and does not make any use of the land for two or three years, or converts it into tillage (Moore v. Rawson, 3 B. & C. 341). After a building is pulled down, the right exists as before, until it is shown to be abandoned (Eccl. Commrs. v. Kino, 14 Ch. Div. 223. It was questioned whether the manifestation of an intention to abandon the windows communicated to the owner of the land would destroy the right, until the owner of the land altered his position in reliance thereon (Stokoe v. Singers, 8 El. & Bl. 31).

As a general rule, a person who is injured by a private nuisance may Remedies for abate it (Jenk. Cent. 260, Cent. 6, Case 57; Penruddock's case, 5 Rep. disturbance of 100 b); but no more of a house which is erected as a nuisance can be right to light. pulled down than is necessary to abate such nuisance (James v. Hayward, Abatement. 1 W. Jones, 221, 222). If a person builds a house so near that of another that it stops his lights, or shoots water upon his house, the person injured may enter upon the owner's soil and pull the house down, provided no person be therein (R. v. Rosewell, 2 Salk. 459; see Perry v. Fitzhowe, 8 Q. B. 757; Lane v. Capsey, 1891, 3 Ch. 411; Thompson v. Eastwood, 8 Exch. 69).

When a party has acquired a right to the use of light, an action lies for Action : obstructing it (9 Rep. 59 a; Boury v. Pope, 1 Leon. 168). A reversioner

may maintain an action (Shadwell v. Hutchinson, 1 Mood. & Malk. 350; by whom see 3 Taunt. 139). The ground upon which a reversioner is allowed to actions may bring his action for obstruction to lights and other easements is, that be brought; if acquiesced in, they would become evidence of a renunciation and abandonment (Bower v. Hill, 1 Bing. N. C. 555; see 1 Wms. Saund. 346 b, n.; Raine v. Alderson, 4 Bing. N. C. 702). And in Young v. Spencer, Lord Tenterden said that if anything be done to destroy the evidence of title, an action is maintainable by the reversioner (10 B. & C. 145), who may in all cases bring an action where a stranger does an act injurious to the inheritance, and rendering it of less value (Jesser v. Gifford, 4 Burr. 2141; see Metropolitan Association v. Petch, 5 C. B. N. S. 504). And if the obstruction be continued, a new action may be maintained, notwithstanding the former recovery (2 B. & Ad. 97). A reversioner can obtain an injunction (Mercers' Co. v. Auction Mart Co., 2 Eq. 238); but he cannot sue for a trifling injury (Cooper v. Crabtree, 20 Ch. Div. 589; Perkins v. Slater, 35 L. T. 356).

The court will restrain the interference with ancient lights, although the plaintiff is not the occupier of the house interfered with, and may have no intention of occupying it (Wilson v. Townend, 1 Dr. & Sm. 324). A tenant from year to year may apply for an injunction (Simper v. Foley, 2 J. & H. 555; compare Inchbald v. Robinson, 4 Ch. 395); but the injunction will be limited to his tenancy (Simper v. Foley, sup.). A tenant from year to year under notice to quit may apply (Jacomb v. Knight, 11 W. R. 812). And a tenant whose lease had expired, but who had agreed for a renewal (Gale v. Abbott, 10 W. R. 748). But where a tenant under an agreement for a lease filed a bill to restrain his lessor from obstructing ancient lights, but did not ask to have the agreement specifically performed, an injunction was refused (Fox v. Purssell, 3 Sm. & Giff. 242). An injunction will not be granted where the title to the property sought to be protected has not been accepted by the plaintiff (Heath v. Maydew, 13 W. R. 199). An executor was held entitled to recover damages for an obstruction to the light of a house of his testatrix (Jones v. Simes, 43 Ch. D. 607).

The owner of the inheritance of a house may maintain an action against against whom his own lessee for obstructing lights (Thomlinson v. Brown, Say. R. 215; actions may see also 4 Burr. 2141; 3 Leon. 109). Such an action may be brought not be brought; only against the party who first erected the nuisance, but also against his lessee or assignee for continuing it (Rosewell v. Prior, 12 Mod. 635; S. C., 2 Salk. 460; 1 Ld. Raym. 713; see also Carth. 456; 1 Keb. 994); but

Rights to
Light.

corporations;

when an

action can be brought.

Possible

dominant

tenement.

after damages have been recovered from the lessor the right of action against the lessee will be barred, as but one satisfaction will be given (12 Mod. 640; Carth. 455) unless there is a continuance of the nuisance. Not only the person who erected the obstruction, and the occupier of the premises where it is erected, but even the workmen and the clerk who superintended the works are liable to an action (Wilson v. Peto, 6 B. Moore, 47). As to making occupiers defendants, see White v. Jameson (18 Eq. 303); Broder v. Saillard (2 Ch. D. 692). Under the Civil Procedure Act, 1833, s. 2 (post, p. 214), an action may be maintained against the executors of the person obstructing (Jenks v. Clifden, 1897, 1 Ch. 694). Compensation can be recovered, under the Lands Clauses Act, 1845, from corporations for diminution of light (Eagle v. Charing Cross R. Co., L. R. 2 C. P. 638; Badham v. Marris, 45 L. T. 579; R. v. Poulter, 20 Q. B. Div. 132; as to compensation for inchoate rights to light, see Barlow v. Ross, 24 Q. B. Div. 381; Re London, Tilbury, &c. R. Co., Ib. 326); and injunctions against corporations were accordingly refused (Clark v. London School Board, 9 Ch. 120; Bedford v. Dawson, 20 Eq. 353; Wigram v. Fryer, 36 Ch. D. 87; see London School Board v. Smith, 1895, W. N. 37). On the construction of a railway act it was held that the company was liable in damages for obstructing light, the plaintiff not being bound to come in under the compensation clause (Turner v. Sheffield, &c. R. Co., 10 M. & W. 425).

"In order to give a right of action and sustain an issue there must be a substantial privation of light sufficient to render the occupation of the house uncomfortable, or to prevent the plaintiff from carrying on his accustomed business on the premises as beneficially as he had formerly done" (Ruling of Best, C. J., Back v. Stacey, 2 C. & P. 465, altered by Wood, V.-C., Dent v. Auction Mart Co., 2 Eq. 245, and adopted as altered, Aynsley v. Glover, 18 Eq. 522; Eccl. Commrs. v. Kino, 14 Ch. D. 224; Home Stores v. Colls, 1902, 1 Ch. 311). Compare the ruling of James, L. J., Kelk v. Pearson, 6 Ch. 811; adopted by Lord Selborne, City of London Brewery v. Tennant, 9 Ch. 218; see Warren v. Brown, 1902, 1 K. B. 15; and the older rulings in Cotterell v. Griffiths, 4 Esp. N. P. C. 69; Pringle v. Wernham, 7 C. & P. 777; Wells v. Ody, Ib. 410; Parker v. Smith, 5 C. & P. 438.

There is to be

In estimating injury to light "the matter to be considered is whether future use of there is any diminution of light for any purpose for which the dominant tenement may be reasonably considered available.” considered "not only the actual present use of the rooms, but any purpose to which it may reasonably be expected that in the future they may be applicable" (Ruling of Cockburn, C. J., Moore v. Hall, 3 Q. B. Ď. 182, in which case Martin v. Goble, 1 Camp. 320, was dissented from. See opinion of Jessel, M. R., to the same effect in Aynsley v. Glover, 18 Eq. 548-551; Jackson v. Newcastle, 3 D. J. & S. 275, to the contrary effect being disapproved; Younge v. Shaper, 21 W. R. 135; Dicker v. Popham, 63 L. T. 379; Warren v. Brown, 1902, 1 K. B. 15; Home Stores v. Colls, 1902, 1 Ch. 302.

Lateral

As to lateral obstructions, see Clarke v. Clark (1 Ch. 16); City of London obstructions. Brewery v. Tennant (9 Ch. 212); Kino v. Rudkin (6 Ch. D. 160); Dicker v. Popham (63 L. T. 379).

Rule as to 45 degrees.

There is no conclusion of law that a building will not obstruct the light coming to a window if it permits the light to fall on the window at an angle of not less than forty-five degrees from the vertical. The amount of obstruction is always a question of fact which depends upon the evidence (Parker v. First Avenue Co., 24 Ch. D. 282). It was said that the fact that forty-five degrees are left unobstructed might be primâ facie evidence that there was not likely to be material injury (City of London Brewery v. Tennant, 9 Ch. 220). But this is doubtful (Home Stores v. Colls, 1902, 1 Ch. 302). The supposed rule was derived from the Metropolitan Building Acts, being there laid down for a different purpose (Eccl. Commrs. v. Kino, 14 Ch. Div. 228; Theed v. Debenham, 2 Ch. D.

in

Rights to
Light.

Injunctions
to restrain
obstruction

An injunction to restrain obstruction to light will not be granted unless substantial damage be proved (Kino v. Rudkin, 6 Ch. D. 160; see Aynsley v. Glover, 18 Eq. 553; A.-G. v. Nichols, 16 Ves. 343; Johnson v. Wyatt, 2 D. J. & S. 25). The damage may be such as is likely to accrue respect of possible future user (Dicker v. Popham, 63 L. T. 379). As to the considerations of convenience and otherwise which affect the to light: granting of an interlocutory injunction, see Newson v. Pender, 27 Ch. Div. 43. On every such injunction the plaintiff should give an under- interlocutory taking as to damages (Graham v. Campbell, 7 Ch. D. 494), on which the injunction; defendant may obtain an inquiry even where the plaintiff has been guilty of no default in obtaining the injunction (Griffith v. Blake, 27 Ch. Div. 474; see Smith v. Day, 21 Ch. Div. 421). As to the effect of the undertaking where the action is subsequently dismissed, see remarks of Jessel, M. R. (Memorandum, 1879, W. N. 74).

substantial injury;

An injunction was refused on the ground that the plaintiff had not injunction proved substantial injury, in Radcliffe v. Portland (3 Giff. 702); Johnson refused where v. Wyatt (2 D. J. & S. 18); Jacomb v. Knight (11 W. R. 812); Curriers' no evidence of Co. v. Corbett (13 W. R. 1056); Clarke v. Clark (1 Ch. 16); Robson v. Whittingham (ib. 442); Lanfranchi v. Mackenzie (4 Eq. 421); Sparling v. Clarson (17 W. R. 518). Injunctions have been granted upon evidence injunction being given of substantial injury in Gale v. Abbott (10 W. R. 748); granted where Stokes v. City Offices Co. (11 Jur. N. S. 560); Yates v. Jack (1 Ch. 295); evidence of Dent v. Auction Mart Co. (2 Eq. 238); Maguire v. Grattan (16 W. R. substantial 1189). And a plaintiff who obscured the light and air to his own dwelling injury; was held not to be thereby disentitled to an injunction (Arcedeckne v. Kelk, 2 Giff. 683; Staight v. Burn, 5 Ch. 163; Bourke v. Alexandra Co., 1877, W. N. 30; see also Dyers' Co. v. King, 9 Eq. 438).

In Leech v. Schweder (22 W. R. 292), Jessel, M. R., gave reasons for inspection refusing to inspect, as a judge, an alleged obstruction to light (see also by judge; Jackson v. Newcastle, 3 D. J. & S. 275). At the trial a surveyor was report by appointed to report (Leech v. Schweder, 9 Ch. 463; Kelk v. Pearson, 6 Ch. surveyor; 810; Cartwright v. Last, 1876, W. N. 60); but the appointment was refused (Home Stores v. Colls, 1902, 1 Ch. 302). The appointment of a surveyor before trial was refused in Stokes v. City Offices (13 W. R. 537); Baltic Co. v. Simpson (24 W. R. 390). See now R. S. C. Ord. 50, r. 4; Ord. 55,

r. 19.

The form of injunction usually adopted by Jessel, M. R., is given in form of Jacobs v. M'Sheehan, 1877, W. N. 86. See also the forms given in injunction; Seton, 6th ed. 562 et seq. The order should not refer to the angle of incidence of light (as in Hackett v. Baiss, 20 Eq. 494), unless there is special evidence (Parker v. First Avenue Co., 24 Ch. Div. 282).

A mandatory injunction may be granted ordering the pulling down of mandatory anything erected after the commencement of an action, or after notice injunction. given to the defendant that his erecting it will be objected to (Smith v. Day, 13 Ch. Div. 651; Kelk v. Pearson, 6 Ch. 809), even where the erection was completed before writ issued (Lawrence v. Horton, 62 L. T. 749), and may be granted on interlocutory application (Daniel v. Ferguson, 1891, 2 Ch. 27; Von Joel v. Hornsey, 1895, 2 Ch. 774). An undertaking in such a case is not essential (Smith v. Day, sup. ; Mackey v. Scottish Widows, I. R. 10 Eq. 113). On the question of granting such an injunction it is important to see if the defendant knew he was doing wrong (see remarks of Jessel, M. R., Smith v. Smith, 20 Eq. 503—505). But there must be no acquiescence on the part of the plaintiff (Gaskin v. Balls, 13 Ch. Div. 324; Baxter v. Bower, 23 W. R. 805). Mandatory injunctions were granted in Myers v. Catterson (43 Ch. Div. 470); Dicker v. Popham (63 L. T. 379); Home Stores v. Colls (1902, 1 Ch. 302). A mandatory injunction was refused where unsubstantial damages had been awarded (Webster v. Whewall, 42 L. T. 868). In the earlier cases it was laid down that a mandatory injunction would only be granted to prevent extreme or very serious damage (Durell v. Pritchard, 1 Ch. 244; Isenberg v. East India Co., 3 D. J. & S. 263; Sparling v. Clarson, 17 W. R. 518; Curriers' Co. v. Corbett, 13 W. R. 1056; see Lawrence v. Austin, 13 W. R. 981;

Rights to
Light.

Damages awarded

Vict. c. 27.

Gort v. Clark, 16 W. R. 569; Dunball v. Walters, 35 Beav. 565). A mandatory injunction was refused in Calcraft v. Thompson (15 W. R. 387); and Stanley v. Shrewsbury (19 Eq. 616). In form a mandatory injunction should in direct words order the building to be pulled down (Jackson v. Normanby Co., 1899, 1 Ch. 438).

Under 21 & 22 Vict. c. 27, s. 2 (ante, p. 82), wherever the Chancery Division can grant an injunction, it may award damages either in addition under 21 & 22 to, or in substitution for, the injunction. This act (the repeal of which by 46 & 47 Vict. c. 49 has not affected the jurisdiction of the court; Sayers v. Collier, 28 Ch. Div. 103; see Elmore v. Pirrie, 57 L. T. 333), has not altered the settled principles on which the court grants injunctions (Shelfer v. City of London Co., 1895, 1 Ch. 287). When a legal right has been established the plaintiff is prima facie entitled to an injunction (Martin v. Price, 1894, I Ch. 285; Shelfer v. City of London Co., sup.; Jordeson v. Sutton Co., 1899, 2 Ch. 217). And in cases of continuing actionable nuisance the jurisdiction to award damages ought only to be exercised under very exceptional circumstances (Shelfer v. The City of London Co., 1895, 1 Ch. 316). Damages may be given in substitution for an injunction where the following requirements exist, viz., where the injury to the plaintiff's legal right is (1) small, (2) capable of being estimated in money, (3) can be adequately compensated by a small money payment, and (4) where the case is one in which it would be oppressive to the defendant to grant an injunction (Shelfer v. The City of London Co., 1895, 1 Ch. 322). And the conduct of the parties may make damages the more appropriate remedy (b.; Senior v. Pawson, 3 Eq. 330). Where the defendant's building is completed before action, damages may be awarded (Martin v. Price, 1894, Ch. 276), even where a mandatory injunction will not be granted (Stanley v. Shrewsbury, 19 Eq. 616; City of London Brewery v. Tennant, 9 Ch. 212; differing from the practice adopted in Durell v. Pritchard, 1 Ch. 244; Curriers' Co. v. Corbett, 4 D. J. & S. 764). In the case of threatened injury it is doubtful whether the court has jurisdiction to give damages instead of an injunction (Martin v. Price, sup.; Dreyfus v. Peruvian Co., 43 Ch. D. 316). For earlier cases as to the effect of 21 & 22 Vict. c. 27, see Pennington v. Prinsop Co., 5 Ch. D. 773; National Co. v. Prudential Co., 6 Ch. D. 761; Krehl v. Burrell, 7 Ch. D. 555; 11 Ch. D. 148; Holland v. Worley, 26 Ch. D. 578).

Covenant.

Acquiescence and delay.

(6)

Privacy.

As to the interference of a court of equity to restrain the erection of additional buildings when a covenant to that effect had ceased to be applicable according to the spirit and intent of the contract, see Bedford v. British Museum, 2 M. & K. 552.

In Dann v. Spurrier (7 Ves. 235), the court proceeded upon the doctrine that it will not permit a man knowingly, though but passively, to encourage another to lay out money under an erroneous opinion of title; and the circumstance of looking on is, in many cases, as strong as using terms of encouragement. This doctrine was applied in the case of an obstruction to light in Cotching v. Bassett (32 Beav. 101), a case depending on the old law as to alteration. A plea of acquiescence was held a good defence on equitable grounds to an action for damages for obstruction of light, and a replication that the acquiescence took place on the faith of the defendant's false representations was a good equitable answer to the plea (Davies v. Marshall, 10 C. B. N. S. 697). An injunction to restrain the obstruction of ancient lights was refused on the ground of delay (Cooper v. Hubbuck, 30 Beav. 160; Cocks v. Romaine, 14 L. T. 390). As to the difference between the acquiescence which will justify the refusal of an interlocutory and of a perpetual injunction, see Johnson v. Wyatt, 2 D. J. & S. 18; Turner v. Mirfield, 34 Beav. 390). Where the plaintiff had submitted for six years to interference with an ancient light, an injunction was refused (Gaunt v. Fynney, 8 Ch. 8).

The opening of a window, whereby the plaintiff's privacy is disturbed, is not actionable; the only remedy is to build upon the adjoining land, opposite the offensive window (Chandler v. Thompson, 3 Campb. 80; see

Air.

9 Rep. 58 b; Cottrell v. Griffiths, 4 Esp. N. P. C. 69). The intrusion Of the Rights upon a neighbour's privacy, even by opening a new window overlooking to Light and the adjoining property, is not a ground for interference either at law or in equity (Turner v. Spooner, 1 Dr. & Sm. 467; see also Re Penny and South Eastern R. Co., 7 Ell. & Bl. 660; and the remarks of Lord Westbury in Tapling v. Jones, 11 H. L. C. 290; and compare Roberts v. Macord, 1 M. & Rob. 230; Potts v. Smith, 6 Eq. 311; ante, p. 11). But a covenant for the protection of privacy was enforced (Manners v. Johnson, 1 Ch. D. 673). An injunction was refused where the application proceeded on a Prospect. particular right to a long enjoyment of a prospect (A.-G. v. Doughty, 2 Ves. sen. 453; see Squire v. Campbell, 1 M. & C. 459; Dalton v. Angus, 6 A. C. 824). So the building of a wall which merely intercepts the prospect of another, without obstructing his lights, is not actionablo (Knowles v. Richardson, 1 Mod. 55; 2 Keb. 611, 612). A covenant, however, not to obstruct a prospect will be enforced in equity (Piggott v. Stratton, 1 D. F. & J. 33; Western v. Macdermott, 2 Ch. 72). The View of shop erection of a building will not be restrained because it injures the window. plaintiff by obstructing the view of his place of business (Smith v. Owen, 35 L. J. Ch. 317; Butt v. Imperial Gas Co., 2 Ch. 158).

IX.-OF RIGHTS IN REGARD TO AIR, AND OF NUISANCES.

No right to the passage of air can be acquired under the Prescription Rights with Act (Webb v. Bird, 13 C. B. N. S. 841; Chastey v. Ackland, 1895, 2 Ch. 402). regard to air. And it has been laid down generally that the access of air to the chimney of a building over the general unlimited surface of a neighbour cannot be claimed as a natural right, or as an easement by prescription at common law, or by lost grant (Bryant v. Lefever, 4 C. P. D. 172; see Harris v. De Pinna, 33 Ch. Div. 238). A right, however, to unobstructed passage of air through a window may be acquired by prescription at common law (Aldred's case, 9 Coke, 58; see Gale v. Abbott, 10 W. R. 748; Dent v. Auction Mart Co., 2 Eq. 252; Chastey v. Ackland, 1895, 2 Ch. 389; 1897, A. C. 155. The right to the passage of air through a defined channel was acquired by lost grant (Bass v. Gregory, 25 Q. B. D. 481). And a covenant not to intercept the access of air sufficient for the purposes of a slaughter-house was implied from thirty years' user (Hall v. Lichfield Co., 43 L. T. 380). When land is granted for a particular purpose the grantor cannot interrupt air so as to interfere with that purpose (Aldin v. Latimer, 1894, 2 Ch. 437; Tebb v. Cave, 1900, 1 Ch. 642). But the court will only interfere in special cases (City of London Brewery v. Tennant, 9 Ch. 221; Baxter v. Bower, 33 L. T. 41).

The owner of a house has a right at common law to wholesome and Remedies for untainted air, unless the business which creates a nuisance has been pollution of carried on for such a length of time as will raise a presumption of a grant air, at law from the neighbouring owners (Elliottson v. Feetham, 2 Bing. N. C. 134). and in equity. Nothing less than a user of twenty years will afford such presumption (Bliss v. Hall, 5 Scott, 500; Crump v. Lambert, 3 Eq. 413; see the pleading in Flight v. Thomas, 10 Ad. & El. 590). There can be no prescription, however, to justify a public nuisance (A.-G. v. Barnsley, 1874, Ŵ. N. 37). An action will lie for pollution of air (St. Helen's Co. v. Tipping, 11 H. L. C. 642). And the pollution will be restrained (Tipping v. St. Helen's Co., 1 Ch. 66; Crump v. Lambert, 3 Eq. 409; see Swaine v. G. N. R. Co., 12 W. R. 391).

What constitutes a nuisance was thus defined by Knight-Bruce, V.-C.: Nuisance. "Ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions among the