Of the Right to Tapling v. Jones. Unity of ownership. Abandonment of right. S. 863; Binckes v. Pash, 11 C. B, N. S. 324; Davies v. Marshall, 1 Dr. & Sm. 557.) And accordingly it was held in equity that in such a case an injunction would not be granted to restrain the obstructions, except upon the terms of the plaintiff blocking up the new windows and restoring the ancient windows to their old position. (Cooper v. Hubbuck, 30 Beav. 160; Weatherley v. Ross, 1 H. & M. 349.) It has, however, since been laid down by the House of Lords that the right to obstruct light possessed by the owner of a servient tenement is simply his right of building on his own land, and the opening of new windows by the owner of the dominant tenement neither confers nor enlarges such right. Where, therefore, the owner of a dominant tenement, whilst preserving one ancient window, altered old windows and opened new windows upon the same side of his house, so that the owner of the servient tenement was obliged in obstructing the new and altered lights, also to obstruct the ancient lights, it was held that such obstruction was illegal from the beginning. (Tapling v. Jones, 11 H. L. C. 290; 34 L. J., C. P. 342; 13 W. R. 617.) It was said by Lord Romilly, M. R., that Tapling v. Jones unquestionably decided that no alteration of an ancient light would justify the owner of the servient tenement in obstructing what remains of the ancient light, so as to exempt him from his liability to pay damages for such obstruction. But he held that a court of equity would not interfere by injunction to prevent such obstruction. (Heath v. Bucknall, L. R., 8 Eq. 1.) It has since, however, been held by Giffard, L. J., that the doctrine of Tapling v. Jones applies to the equitable as well as to the legal remedy. (Staight v. Burn, L. R., 5 Ch. 163.) An union of the ownership of the dominant and of the servient tenements for different estates does not extinguish an easement of this description, but merely suspends it so long as the union of ownership continues, and upon a severance of the ownership the easement revives. (Simper v. Foley, 2 J. & H. 555.) Completely shutting up windows with brick and mortar for above twenty years will destroy the privilege of light. (Lawrence v. Obee, 3 Campb. 514.) And the right to the use of light and air, which a party has appropriated to his own user, may be lost by mere non-user even for a less period than twenty years, unless an intention of resuming the right within a reasonable time be shown when it ceased to be used. Thus, where a person, entitled to ancient lights, pulled down his house, and erected a blank wall in the place of a wall in which there had been windows, and suffered such blank wall to remain about seventeen years, and the defendant erected a building against it, when the plaintiff opened a window in the same place where there had formerly been a window in the old wall: it was held, in an action for obstructing the light of the new window, that it must, at least, be shown that at the time of the erection of the blank wall, and the apparent abandonment of the former lights, it was not a perpetual, but a temporary abandonment of the enjoyment, with an intention to resume it within a reasonable time. (Moore v. Rawson, 3 B. & C. 336; 5 D. & R. 234. See Cook v. Mayor of Bath, L. R., 6 Eq. 177.) And it was said by Littledale, J., that 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, he may be taken to have abandoned all intention of rebuilding the house, and consequently, that his right to the light has ceased. But if he builds upon the same site, and places windows in the same spot, or does anything to show that he did not mean to convert the land to a different purpose, then his right would not cease. (Ib. 341.) The plaintiff was owner of a house in which there were ancient windows. His predecessor blocked them up, and they continued blocked up for nearly twenty years. The defendant purchased the adjoining land, and proposed to build upon it. The plaintiff, by way of asserting the right to the light, re-opened his ancient windows. The defendant obstructed them. On the trial of an action for this obstruction, the judge directed the jury that, if the right to light had once been acquired, it continued unless lost: and he directed them, if they thought the right had once been Light and Air. acquired, to find for the plaintiff, unless they thought his predecessor had, of the Right to in blocking up the windows, manifested an intention of permanently abandoning his right to the light, or unless they thought that the windows had been kept so closed as to lead the defendant to alter his position in the reasonable belief that the windows had been permanently abandoned. The plaintiff having had a verdict: it was held that the defendant had no ground to complain of this as a misdirection. (Stokoe v. Singers, 8 Ell. & Bl. 31; 3 Jur., N. S. 1256; 26 L. J., Q. B. 257.) 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. (Ib.) As a general rule, a person who is injured by a private nuisance may Remedies for disabate it (Jenk. Cent. 260, Cent. 6, Case 57; Penruddock's case, 5 Rep. turbance of right 100 b), but no more of a house which is erected as a nuisance can be pulled to light. down than is necessary to abate such nuisance. (James v. Hayward, 1 Abatement. 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. (Rex v. Rosewell, 2 Salk. 459. See Perry v. Fitzhowe, 8 Q. B. 757; ante, p. 54.) As to the replication de injuriâ in an action of trespass for such an entry, see Thompson v. Eastwood, 8 Exch. 69. When a party has acquired a right to the use of light, an action on the Action at law. case lies for obstructing it. (9 Rep. 59 a; Boury v. Pope, 1 Leon. 168.) In order to sustain such an action, it is not necessary to show a total privation of light. If the plaintiff can prove that by reason of the obstruction he cannot enjoy the light in so free and ample a manner as he did before, it will be sufficient. (Cotterell v. Griffiths, 4 Esp. N. P. C. 69.) To sustain an action on the case for darkening the plaintiff's windows, it is not sufficient that a ray or two of light should be obstructed. The question is, whether, in consequence of the obstruction, the plaintiff has less light than before, to so considerable a degree as to injure the plaintiff's property in point of value or occupation. (Pringle v. Wernham, 7 Carr. & P. 377; Wells v. Ody, Ib. 410.) Where one party has the enjoyment of light, and alterations are made in the adjoining buildings, the diminution of light, as a ground of action against the party building, must be such as makes the premises to a sensible degree less fit for the purposes of business or occupation. (Parker v. Smith, 5 Carr. & Payne, 438; Kelk v. Pearson, L. R., 6 Ch. 814.) "In order to give a right of action and sustain the issue, there must be a substantial privation of light, sufficient to render the occupation of the house uncomfortable, and to prevent the plaintiff from carrying on his accustomed business (that of a grocer) on the premises as beneficially as he had formerly done." (Per Best, C. J., Back v. Stacey, 2 C. & P. 465. See the remarks upon this statement of the principle by Wood, V.-C., Dent v. Auction Mart Company, L. R., 2 Eq. 245; and by Lord Chelmsford, Calcraft v. Thompson, 15 W. R. 387.) Rights to air and light are bestowed by Providence for the common benefit of man, and so long as the reasonable use by one man of this common property does not do actual and perceptible damage to the right of another to the similar use of it, no action will lie. A man cannot occupy a dwelling and consume fuel in it for domestic purposes without in some degree impairing the natural purity of the air; he cannot erect a building or plant a tree near the house of another, without in some degree diminishing the quantity of light he enjoys; but such small interruptions give no right of action, for they are necessary incidents to the common enjoyment by all. (Per Parke, B., Embrey v. Owen, 6 Exch. 372, 373.) A reversioner may maintain an action for obstructing lights, for if he Actions by rewere prevented from suing for such an injury during the continuance of the versioner. lease, he might have great difficulty in proving his right when he came into possession. (Shadwell v. Hutchinson, 1 Mood. & Malk. 350. See 3 Taunt. 139.) The ground upon which a reversioner is allowed to bring his action for obstructions apparently permanent to lights and other easements which belong to the premises is, that if acquiesced in, they would become evidence Of the Right to Against whom actions may be brougl.t. Actions against companies. Remedy in equity. of a renunciation and abandonment. (Bower v. Hill, 1 Bing. N. C. 555. See 1 Wms. Saund. 346, b, n.; Raine v. Alderson, 6 Scott, 691; Bing. N. C. 702. See ante, pp. 84, 101.) And in Young v. Spencer, Lord Tenterden said that it seemed to be clearly established, 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.) And if the obstruction be continued, a new action may be maintained, notwithstanding the former recovery. (2 B. & Ad. 97.) A declaration for an injury to the reversionary interest of the plaintiff by obstructing ancient lights is sufficient if it show an obstruction which may operate injuriously to the reversion, either by its being of a permanent character, or by its operating in denial of the right. (Metropolitan Association, &c. v. Petch, 5 C. B., N. S. 504; 27 Law J., C. P. 330.) The owner of the inheritance of a house may maintain an action against his own lessee for obstructing lights. (Thomlinson v. Brown, Say, R. 215; see also 4 Burr. 2141; 3 Leon. 109.) Such an action may be brought not only against the party who first erected the nuisance, but also against his lessee or assignee for continuing it; (Roswell v. Prior, 12 Mod. 635; S. C. 2 Salk. 460; 1 Ld. Raym. 713. See also Carth. 456; 1 Keb. 994;) but 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 a continuance of the nuisance be laid in the declaration. Not only the person who erected the obstruction, and the occupier of the premises where it is erected, but even the workmen who performed and the clerk who superintended the works, are liable to an action. (Wilson v. Peto and Hunter, 6 B. Moore, 47.) By a railway act it was provided, that nothing in the act contained should authorize the company to take, injure or damage, for the purposes of the act, any house or building which was erected on or before the 30th November, 1835, without the consent in writing of the owner or other person interested therein, other than such as were specified in the schedule to the act, unless the omission therefrom proceeded from mistake, &c. A subsequent clause contained provisions for settling all differences which might arise between the company, and the owners or occupiers of any lands which should be taken, used, damaged or injuriously affected by the execution of any of the powers granted by the act, and for the payment of satisfaction or compensation, as well for damages already sustained as for future, temporary or perpetual, or any recurring damages: it was held, that the company were liable, in an action on the case, to the reversioner of a house erected before the 30th November, 1835, and not specified in the schedule, for damage done to it by the obstruction of its lights by a railway station erected by the company under the act, and by the dust, &c. drifted from the station and embankment into the house, and that the plaintiff was not bound to come in under the compensation clause. (Turner v. Sheffield and Rotherham Railway Company, 10 Mees. & W. 425; 3 Railw. C. 222; see Shelford on Railways, p. 252, 3rd ed.) Compensation can be recovered under the Lands Clauses Consolidation Act, 1845, for diminution of light. (Eagle v. Charing Cross R. Co., L. R., 2 C. P. 638.) The Court of Chancery will grant an injunction to restrain the owner of a house from making any erection or improvements, so as to darken or obstruct the ancient lights or windows of an adjoining house. (Back v. Stacey, 2 Russ. 121; Morris v. Lessees of Lord Berkeley, 2 Ves. sen. 452.) The foundation of the jurisdiction to interfere by injunction in these cases is such material injury to the comfort of those who dwell in the neighbouring house, as to require the application of a power to prevent as well as to remedy an evil, for which damages more or less would be given at law, but the court will not interfere upon every degree of darkening ancient lights, nor in every case where an action may be maintained. (Att.-Gen. v. Nichol, 16 Ves. 338.) Courts of equity will restrain the erection of build ings which would cause irreparable injury, as loss of health, loss of trade or destruction of the means of existence, without waiting the slow process of establishing the legal right, when delay itself would be wrong; but the plaintiff is bound to show not only a legal right to the enjoyment of the ancient lights, but that if the building of the defendant is suffered to proceed, such an injury will ensue as warrants the court to interpose. (Wynstanley v. Lee, 2 Swanst. 335, 336.) But although it be perfectly clear that the plaintiff is entitled to succeed in an action of trespass, a court of equity will not interfere by injunction where the nature or degree of injury is not such as to require that extraordinary relief. (Att.-Gen. v. Fishmongers' Company, 1 Dick. 104.) Of the Right to When Court of interfere by way "There are many obvious cases of new buildings darkening those opposite to them, but not in such a degree that an injunction could be maintained or an action on the case, which, however, might be maintained in many cases which would not support an injunction." (Per Lord Eldon, Att.-Gen. v. Nichol, 16 Ves. 343; adopted in Dent v. Auction Mart Company, L. R., 2 Eq. 245, and Lanfranchi v. Mackenzie, L. R., 4 Eq. 426.) "This court certainly would not interfere by way of injunction in a case in which no damages could be recovered at law. Perhaps it may be said that this court would not so interfere in a case in which, although damages might be recoverable at law, the amount to be recovered would be trifling and inconsiderable: but as this is a question on which, as applying to cases of nuisance, there has not been an unanimity of opinion in the court, I leave that point untouched. I think that at all events a plaintiff coming to this court for its interference in a case of this nature is bound to show that the obstruction to the light and air, which he calls upon the court to prevent, is such as will render the house occupied by him, if not of less value, less fit, or at least substantially less comfortable, for the purposes of occupation." (Per Turner, L. J., Johnson v. Wyatt, 2 De G., J. & S. 25. See Kelk v. Pearson, L. R., 6 Ch. 809; Luscombe v. Steer, 15 W. R. 1189.) An injunction was refused, on the ground that the plaintiff had not proved Injunction refused substantial injury, in Radcliffe v. Duke of Portland (3 Giff. 702); John- where no evidence son v. Wyatt (2 De G., J. & S. 18); Jacomb v. Knight (11 W. R. 812); injury. Curriers' Company v. Corbett (13 W. R. 1056); Clark v. Clarke (L. R., 1 Ch. 16); Robson v. Whittingham (ib. 442); Lanfranchi v. Mackenzie (L. R., 4 Eq. 421); Sparling v. Clarson (17 W. R. 518). And it was said that the court would not, in an ordinary case, restrain the erection of a building the height of which above an ancient light is not greater than the distance from the light. (Beadel v. Perry, L. R., 3 Eq. 465.) The possibility of future injury is not a ground for granting an injunction. (Jackson v. Duke of Newcastle, 3 De G., J. & S. 275.) of substantial where evidence of substantial injury. Injunctions have been granted upon evidence being given of substantial Injunction granted injury in Gale v. Abbott (10 W. R. 748); Stokes v. City Offices Company (11 Jur., N. S. 560); Yates v. Jack (L. R., 1 Ch. 295); Dent v. Auction Mart Company (L. R., 2 Eq. 238); Maguire v. Grattan (16 W. R. 1189). And a plaintiff who in an insignificant degree obscured the light and air to his own dwelling was held not to be thereby disentitled to an injunction. (Arcedeckne v. Kelk, 2 Giff. 683; Staight v. Burn, L. R., 5 Ch. 163. See also Dyers' Company v. King, L. R., 9 Eq. 438.) As to whether there is any distinction between the right to light and air in regard to town houses and country houses, see Clarke v. Clark (L. R., 1 Ch. 16); and the remarks on that case in Dent v. Auction Mart Company (L. R., 2 Eq. 238); Martin v. Headon (ib. 425); Kelk v. Pearson (L. R., 6 Ch. 809). A mandatory injunction will only be granted to prevent extreme or very Mandatory inserious damage. (Durell v. Pritchard, L. R., 1 Ch. 244. See Isenberg junction. v. East India House Estate Company, 3 De G., J. & S. 263; Sparling v. Clarson, 17 W. R. 518.) It was doubted by Turner, L. J., whether a mandatory injunction would be granted ordering the removal of works already completed. (Curriers' Company v. Corbett, 13 W. R. 1056. See Lawrence v. Austin, 13 W. R. 981; Durell v. Pritchard, L. R., 1 Ch. 244; Viscountess 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). Of the Right to Former practice Present practice. Damages awarded by the Court of Chancery. Who can obtain relief in equity. Covenant. Acquiescence and delay. Where the defendants completed their building after bill filed a mandatory injunction was granted. (Kelk v. Pearson, L. R., 6 Ch. 809.) Where the plaintiff's legal right was denied an injunction would not be granted, according to the former practice, until the plaintiff had established his right at law; but where the circumstances of the cases required it, an injunction was granted on the terms of the plaintiff proceeding to a speedy trial. (Att.-Gen. v. Nichol, 3 Mer. 687; S. C., 16 Ves. 338; Att.-Gen. v. Bentham, 1 Dick. 277; 1 Ves. sen. 543; Wynstanley v. Lee, 2 Swanst. 337; Chalk v. Wyatt, 3 Mer. 688; Sutton v. Lord Montford, 4 Sim. 599; and see Potts v. Levy, 2 Drew. 272.) The practice has, however, been changed by 21 & 22 Vict. c. 27, and 25 & 26 Vict. c. 42, under which the Court of Chancery must determine every question of law or fact incidental to the relief sought. And it seems that since these acts the court must deal with the question of nuisance or no nuisance as it deals with every other question within its jurisdiction depending on a disputed matter of fact. See the acts stated ante, p. 106. Damages may now be awarded by the Court of Chancery under 21 & 22 Vict. c. 27, s. 2. (Ante, p. 107.) But it is discretionary with the court whether it will award damages or leave the plaintiff to obtain them at law. (Durell v. Pritchard, L. R, 1 Ch. 244.) The court considered the question of damages and determined that the plaintiff was not entitled to them. (Johnson v. Wyatt, 2 De G., J. & S. 18.) An inquiry as to damages was directed in Isenberg v. East India House Estate Company (3 De G., J. & S. 263); Martin v. Headon (L. R., 2 Eq. 425); Senior v. Pawson (L. R., 3 Eq. 330); Lyon v. Dillimore (14 W. R. 511); Webb v. Hunt (14 W. R. 725). 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; 6 Jur., N. S. 1109; 30 L. J., Ch. 25; 9 W. R. 30.) A tenant from year to year may file a bill for an injunction to protect the right to the access and use of light; but the injunction will be limited to the period of the continuance of his tenancy. (Simper v. Foley, 2 Johns. & H. 555.) A tenant from year to year under notice to quit may obtain an injunction. (Jacomb v. Knight, 11 W. R. 812.) And a tenant whose lease had expired when the bill was filed, but who had agreed with the agent of the lessor 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 the ancient lights in the premises, but did not ask to have the agreement specifically performed, an injunction was refused. (Fox v. Purssell, 3 Sm. & Giff. 242.) A reversioner can obtain an injunction. (Mercers' Company v. Auction Mart Company, L. R., 2 Eq. 238.) But 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.) 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 Duke of Bedford v. Trustees of British Museum, 2 M. & K. 552. If an adjoining owner knowingly permits a messuage and premises to be rebuilt of an increased size and height, with the alteration of ancient lights, and the opening new lights upon an additional floor, he cannot object to them after they have been completed, or assert a right to raise a party-wall, and build upon his own property so high as to render the new buildings less accessible to light and air, than they were at the completion of the work. (Cotching v. Bassett, 32 Beav. 101: a case depending on the old law as to alteration, ante, p. 123.) In Dann v. Spurrier, 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; a lessor knowing and permitting those acts, which the lessee would not have done, and the other must conceive that he would not have done, but upon an expectation that the lessor would not throw an objection in the way of the enjoyment. It must however |