Of the Right to Pews. Remedy for disturbance of pews by action. Evidence. Immemorial repair of a chapel or lesser chancel, which is part of a parish church, coupled with other acts of ownership, is evidence of a freehold of inheritance in it being vested in those who have executed the repairs and exercised the acts of ownership. Such a freehold may be vested in a private person and the enjoyment of such a chapel or chancel, and the right to its exclusive use is not necessarily annexed to a dwelling-house (Chapman v. Jones, L. R. 4 Ex. 273). Even though the freehold may not be in the person prescribing, immemorial use and occupation, coupled with reparation, may entitle the lord of the manor by prescription to the perpetual and exclusive use of the chancel, and such a right may be appendant to an estate or house not situate in the parish (Churton v. Frewen, 2 Eq. 634). On the question whether a building forms part of the chancel of a parish church, or is private property, see Norfolk v. Arbuthnot, 5 C. P. Div. 390. Where a pew is claimed as annexed to a house by faculty or prescription, the courts of common law exercise jurisdiction, on the ground of the pew being an easement to the house, and the proper remedy for a disturbance is an action (Mainwaring v. Giles, 5 B. & Ald. 361). Where the pew is in a chancel, the freehold of an individual, the right to it is triable at common law (May v. Gilbert, 2 Bulstr. 151). The ecclesiastical court has jurisdiction in all suits respecting pews; but where prescriptive rights come in question, prohibition will be granted on the application of either party, for the purpose of having the prescription tried by a jury (Report of Eccl. Commrs., p. 49; see Re Bateman, 9 Eq. 660). If a man claiming title by prescription to an aisle, chancel, &c., as his freehold, or to a pew or seat in the body of the church, or in an aisle, &c., as appurtenant to a house in the parish, is disturbed therein by the parson, ordinary, or churchwardens, by a suit in the spiritual court, he may have a prohibition, if he suggest as grounds for it that he or those whose estate he hath, built, or time out of mind repaired, and therefore had the sole use of such aisle, or of such pew or seat; for the party has a right to a trial of the prescription in a temporal court (See 1 Burn's Eccl. Law, 8th ed., 366, 367; Witcher v. Cheslam, 1 Wils. 17; Corwen v. Pym, 12 Rep. 105; Jacob v. Dalton, 2 Raym. 1755; Boothby v. Bailey, Hob. 69; Francis v. Lee, Cro. Jac. 366; Day v. Beddingfield, Noy's Rep. 104; Buxton or Bunton v. Bateman, 1 Sid. 89; S. C., 1 Lev. 71; Sir T. Raym. 52; Crook v. Sampson, 2 Keb. 92; Brabin v. Tradum, Poph. 140; 2 Roll. Abr. 287, 288). The uninterrupted possession of a pew in a church for twenty years affords presumptive evidence of a legal title by prescription, or by a faculty against a wrongdoer (Darwin v. Upton, 2 Wms. Saund. 506, ed. 1871). But if the right was claimed as appurtenant to an ancient messuage the claim would, before the stat. 2 & 3 Will. 4, c. 71, be rebutted by proof that the pew began to exist within time of legal memory (Griffith v. Matthews, 5 T. R. 296; see Crisp v. Martin, 2 P. D. 15). In an action on the case for disturbing the plaintiff in the possession of a pew in a church, which the plaintiff and those under whom he claimed had been in the uninterrupted enjoyment of for thirty-six years, but which appeared in evidence to have been an open pew before that period; the judge recommended the jury to presume a title in the plaintiff after so long a possession as thirty-six years, and the Court of King's Bench afterwards, on a motion for a new trial, held the direction of the judge proper (Rogers v. Brookes, 1 T. R. 431, n.) A pew in a parish church was claimed in respect of an ancient messuage; and it was proved that, so far as living memory extended, the pew in question had been one of three pews adjoining each other, and under one and the same claim of right, viz., in respect of the said ancient messuage: it was held, that proof of repairs done to one of the pews, not that in question, was evidence as to all, and therefore as to that in question (Pepper v. Barnard, 12 L. J. Q. B. 361). The pew must be laid in the declaration as appurtenant to a messuage in the parish, otherwise a bare possession of the pew for sixty years and more is not sufficient title to maintain an action on the case for disturbing the plaintiff in his enjoyment thereof, but he must to Pews. prove a prescriptive right or faculty (Stocks v. Booth, 1 T. R. 428). So of the Right where a pew in a chancel, claimed in right of a messuage, was shown to have been erected on the site of old open seats in 1773, and there was no evidence of any faculty on search for one at the proper places; it was held, that the judge rightly directed the jury, that the evidence of the former open state of the seats destroyed the prescription, and left it to them to say whether, upon the evidence merely of long undisturbed possession, any faculty existed (Morgan v. Curtis, 3 M. & R. 389). See also Halliday v. Phillips, 1891, A. C. 228. The grant of part of the chancel of a church by a lay impropriator to A., his heirs and assigns, is not valid in law, and therefore such grantee, or those claiming under him, cannot maintain trespass for pulling down his or their pews there erected (Clifford v. Wicks, 1 B. & Ald. 498). But the churchwardens have not, as against the incumbent of a church or chapel, a joint possession of it, so as to disable him from maintaining trespass against them for acts of violence in pulling down pews; and a chapelwarden of a parochial chapelry has not, by virtue of his office, any authority to enter the chapel and remove the pews without the consent of the perpetual curate (Jones v. Ellis, 2 Y. & J. 265). The perpetual curate of an augmented parochial chapelry has a sufficient possession whereon to maintain trespass for breaking and entering the chapel and destroying the pews (1b.) As well priority in a seat as a seat itself in the body of a church may be claimed by prescription, as belonging to a house, by the inhabitants of it, who have repaired the seat time out of mind, and an action on the case for a disturbance lay at common law (Carleton v. Hutton, Noy, 78; Gibs. 221). Where the action is brought against a stranger, the plaintiff is not bound to state in his declaration that he has repaired the pew, though it is otherwise when the action is brought against the ordinary; in which case a title or consideration must be shown in the declaration and proved, as the building or repairing of the pew (Kenrick v. Taylor, 1 Wils. 326; Ashley v. Freckleton, 3 Lev. 73; see Fiske v. Rovitt, Lofft, 423; Com. Dig. Action upon the Case for Disturbance (A. 3); Gibs. 197, 198). The right to sit in a pew may be apportioned (Harris v. Drewe, 2 B. & Ad. 164). It seems that a bill in equity would not lie to be quieted in the pos- Remedy in session of a pew, though there was a decree for it before the ordinary (Baker the Chancery v. Child, 2 Vern. 226). A bill was filed by a single parishioner against Division. the churchwardens, alleging an intention on the part of the defendants to execute work in the church which would be injurious to himself, and praying an injunction. It is questionable whether this is a private nuisance, and whether such a bill can be sustained by a single parishioner against the churchwardens (Woodman v. Robinson, 2 Sim. Ñ. S. 204). See Cardinall v. Molyneux (7 Jur. N. S. 854), as to proceedings against an incumbent who removed pews and substituted chairs in the church. A man may prescribe that he is tenant of an ancient messuage, and Burial. ought to have a separate burial in a particular vault within the church (Com. Dig. Cemetery (B.)). It seems that the same rules are applicable to vaults as to pews (Bryan v. Whistler, 8 B. & C. 293; see Francis v. Ley, Cro. Jac. 366; Gibs. Cod. 542). As to rights of burial, see Fisher's Index, tit. Ecclesiastical Law, XXV., Burial. (7.) OF THE RIGHT TO LIGHT AND AIR. Before the Prescription Act, the modes of acquiring by user the ease- Acquiring ment of light were (1) by prescription at common law, (2) by presuming a right to light lost grant. The act has provided an additional mode, but the former modes by prescripstill exist (Aynsley v. Glover, 10 Ch. 283). See, however, the note, ante, tion. p. 11. With regard to the mode of claiming light under the Prescription 92 Of the Right to Light and Air. By express grant. Act, see the note to sect. 3 (ante, p. 11), and as to claiming light by pre- A right to the enjoyment of light and air may commence by mere occupancy. Every man on his own land has a right to all the light and air which will come to him; and he may erect, even on the extremity of his own land, buildings with as many windows as he pleases, without any consent from the owner of the adjoining lands. After he has erected his building, the owner of the adjoining land may, within twenty years, build upon his own land, and so obstruct the light which would otherwise pass to the building of his neighbour. But if the light be suffered to pass without interruption during that period to the building so erected, the law implies from the non-obstruction of the light for that length of time, that the owner of the adjoining land has consented that the person who has erected the building upon his land shall continue to enjoy his light without obstruction, so long as he shall continue the specific mode of enjoyment which he had been used to have during that period. It does not, indeed, imply that the consent is given by way of grant, for light and air, not being to be used in the soil of the land of another, are not the subject of actual grant; but the right to insist upon the non-obstruction and non-interruption of them more properly arises by a covenant which the law would imply not to interrupt the free use of the light and air (Moore v. Rawson, 3 B. & C. 240; see Cross v. Lewis, 2 B. & C. 691). The act of the owner of the servient tenement, from which the right to light flows, must have reference to the state of things at the time when it is supposed to have taken place; and as the act of the one is inferred from the enjoyment of the other owner, it must in reason be measured by that enjoyment. The consent, therefore, cannot fairly be extended beyond the access of light and air through the same aperture (or one of the same dimensions and in the same position), which existed at the time when such consent is supposed to have been given (Blanchard v. Bridges, 4 Ad. & Ell. 192). The acquisition of a prescriptive right may be prevented by the servient owner erecting a hoarding during the period of enjoyment. Such a hoarding may be erected by a railway company (Bonner v. G. W. R. Co., 24 Ch. Div. 1; disapproving on this point of Norton v. L. & N. W. R. Co., 9 Ch. D. 623; see Myers v. Catterson, 43 Ch. Div. 470). A right to light may be acquired by express grant. A verbal agreement for such a right may be enforced when there has been part performance (McManus v. Cooke, 35 Ch. D. 681). Where a landlord had demised premises including lights to A. and subsequently granted a lease of the adjoining premises to B., it was held, that the landlord could not have blocked up the lights, and that B. could stand in no better position (Davies v. Marshall, 1 Dr. & Sm. 557). The words of a grant, however, must be restricted to what a grantor has power to grant at the time; thus, where A. demised a house with lights to B. for 21 years having at the time an adjoining house for a shorter term, and subsequently acquired the fee of the adjoining house, he was held entitled after the expiration of the shorter term to obstruct B.'s lights (Booth v. Alcock, 8 Ch. 663). Where a house is demised to a person known to sustain a special character (e.g., a diamond merchant), the landlord cannot obstruct any light necessary to the tenant's enjoyment of the house in that character (Herz v. Union Bank, 2 Giff. 691). A special right to light may be created by covenant, in which case an injunction will be granted without regard to amount of damage (Leech v. Schweder, 9 Ch. 463); but the ordinary covenant for quiet enjoyment accompanying a grant of light does not enlarge the rights of the grantee (Ib.; see Potts v. Smith, 6 Eq. 311). The effect of a grant of light contained in a lease was controlled by a collateral agreement (Salaman v. Glover, 20 Eq. 444). As to the grant by a railway company on a sale of its surplus lands, see Myers v. Catterson (43 Ch. Div. 470). Of the Right to Light and Air. Implied grant As a man cannot derogate from his own grant, it is well established, that where the same person possesses a house, having certain lights, and also of right to the adjoining land, and sells the house retaining the land, there, although light upon the lights be new, neither the vendor nor any one claiming under him can sale of house build upon the adjoining land, so as to obstruct those lights (Palmer v. by owner of Fletcher, 1 Lev. 122; Robinson v. Grave, 29 L. T. 7). The same principle adjoining applies where at the time of the grant the erection of a particular building land. is contemplated by both parties, though no building has been actually erected (Bailey v. Icke, 64 L. T. 789); but not where there is merely an intention on the part of the purchaser to build which is known to the vendor (Blanchard v. Bridges, 4 Ad. & Ell. 176; see Robinson v. Grave, 29 L. T. 9). The principle was held not to apply where the vendor had contracted to sell the adjoining land before the sale of the house (Beddington v. Atlee, 35 Ch. D. 317, 328). A., the owner of two adjoining houses, granted a lease of one of them to B., and afterwards leased the other to C., there then existing in it certain windows. After that B. accepted a new lease of the house from A.: it was held, that B. could not alter his tenement, so as to obstruct the windows existing in C.'s house at the time of his lease from A.: though the windows were not twenty years old at the time of the alteration (Coutts v. Gorham, 1 M. & M. 396; see Cox v. Matthews, 1 Ventr. 237; Jacomb v. Knight, 11 W. R. 585; Warner v. Macbride, 36 L. T. 360; Riviere v. Bower, 1 Ry. & M. 24). The extent of the implied grant of light must be measured by circumstances existing Corlete at date of lease and known to both parties (Birmingham Banking Co. v. Ross, 38 Ch. Div. 295) And where A. on taking a lease of a building knew that the adjoining land was being laid out for building and stipulated for a passage twenty feet wide adjoining the demised building, there was no implied grant (Ib.) On a sale by a railway company of surplus land with a house thereon, the company can only obstruct the lights by railway constructions, not by a hoarding (Myers v. Catterson, 43 Ch. Div. 470). Šo in the case of a lease of part of a building estate, the lessor's right of obstructing lights on the demised premises is confined to building on the adjoining land. He cannot erect a hoarding (Wilson v. Queen's Club, 1891, 3 Ch. 522). house. Where a person owning a house with ancient lights looking over the Sale of land adjoining land, and also owning the adjoining land, sells the land retain- by owner of ing the house, the purchaser may obstruct the lights, there being no im- adjoining plied reservation in favour of the vendor (Curriers' Co. v. Corbet, 2 Dr. & Sm. 360; White v. Buss, 7 H. & N. 722; see Tenant v. Goodwin, 2 Ld. Raym. 1093; Rosewell v. Prior, 6 Mod. 116; Canham v. Fisk, 2 Cr. & J. 128; Ellis v. Manchester, &c. Co., 2 C. P. D. 13; Master v. Hansard, 4 Ch. D. 718; Wheeldon v. Burrows, 12 Ch. Div. 31). If, however, on a sale of land adjoining a house to be built by the vendor, it is agreed that an outer wall of the house may stand within the verge of the lands sold and shall have in it windows overlooking such lands, and if the house be erected accordingly, the purchaser cannot afterwards obstruct those windows (Russell v. Watts, 10 App. Cas. 602). Where a person owning a house with lights looking over adjoining Simultaneous land and also owning such land, at the same time sells the house to A. sale of land and the land to B., both purchasers being aware of the simultaneous con- and house. veyances, B. cannot obstruct the lights of A. (Allen v. Taylor, 16 Ch. D. 355; see Rigby v. Bennett, 21 Ch. D. 567; Compton v. Richards, 1 Price, 27; Swansborough v. Coventry, 9 Bing. 305). The same principle was applied to the devise in a will of the house to A., and the adjoining land to B. (Phillips v. Low, 1892, 1 Ch. 47; Barnes v. Loach, 4 Q. B. D. 494); and to successive mortgages of plots of land comprised in one building scheme, the mortgagees having notice of the scheme (Russell v. Watts, 10 App. Cas. 590). The mere fact of there being windows in an adjoining house which over Of the Right to Light and Air. Nature and extent of right to light. Light for spe cial purpose. Alterations of looks a purchased property is not constructive notice of any agreement giving a right to the access of light to them (Allen v. Seckham, 11 Ch. Div. 790). The access of light referred to in the statute "may be described as being the freedom with which light may pass through a certain space over the servient tenement; and whenever for the statutory period a given space over the servient tenement has been used by the dominant tenement for the purpose of light passing through that space, a right arises to have that space left free so long as the light passing through it is used for or by the dominant tenement. The opening in the dominant tenement is the limit which defines the boundaries of the space over the servient_tenement" (Per Fry, J., National, &c. Co. v. Prudential, &c. Co., 6 Ch. D. 765; see Scott v. Pape, 31 Ch. Div. 554). "The right conferred or recognized by the statute 2 & 3 W. 4, c. 71, is an absolute indefeasible right to the enjoyment of the light without reference to the purpose for which it has been used. Therefore, even if the evidence satisfied me, which it does not, that for the purpose of their present business a strong light is not necessary, and that the plaintiffs will still have sufficient light remaining, I should not think the defendant had established his defence unless he had shown that for whatever purpose the plaintiffs might wish to employ the light, there would be no material interference with it" (Per Lord Cranworth, Yates v. Jack, 1 Ch. 298; approved by Jessel, M. R., Aynsley v. Glover, 18 Eq. 549). There is no distinction between the right to light in town and country (Martin v. Headon, 2 Eq. 425). The doctrine as to the acquisition by prescription of an extraordinary amount of light laid down in Lanfranchi v. Mackenzie (4 Eq. 421), and Dickinson v. Harbottle (28 L. T. 186), and referred to by Field, J., in Dalton v. Angus (6 App. Cas. 760), seems inconsistent with the above principles. See Mackey v. Scottish Widows Co., I. R. 11 Eq. 541 (case of a seed merchant); and compare Herz v. Union Bank, 2 Giff. 686 (in which a diamond merchant was held entitled by contract to a special light); Cartwright v. Last, 1876, W. N. 60 (the case of a dentist); Theed v. Debenham, 2 Ch. D. 165 (a sculptor); Parker v. First Avenue Hotel Co., 24 Ch. D. 282 (a photographer). Moore v. Hall (3 Q. B. D. 178) decides that light cannot be protected for a special purpose, unless it has been used for that or a like purpose or there is a reasonable probability of its being hereafter applied to such purpose. But it is not necessary that there should have been a user of the light for the special purpose during the prescriptive period (A. G. v. Queen Anne's Co., 60 L. T. 761). The owner of an ancient light may pull down the building with a view ancient lights. to restoration without interfering with his right to light (Eccles. Commissioners v. Kino, 14 Ch. D. 213); and may change the purpose for which the building is to be used (Scott v. Pape, 31 Ch. Div. 569). Such an owner may also make alterations in the framework and glazing of his windows without losing his right (Turner v. Spooner, 1 Dr. & Sm. 467). With regard to an alteration in the plane of the window it has been laid down by the C. A. that no such alteration will destroy the right so long as the owner of the dominant tenement can show that he is using through the new apertures in the new building the same or a substantial part of the same light which passed through the old apertures into the old building (Scott v. Pape, 31 Ch. Div. 554; see Newson v. Pender, 27 Ch. Div. 71; see further National, &c. Co. v. Prudential, &c. Co., 6 Ch. D. 757; Blanchard v. Bridges, 4 Ad. & Ell. 176; Barnes v. Loach, 4 Q. B. D. 494; Bullers v. Dickinson, 29 Ch. D. 155). In the case of an alteration, accurate evidence as to the position, &c., of the old light should be preserved (Fowlers v. Walker, 42 L. T. 356; 51 L. J. Ch. 443; Scott v. Pape, 31 Ch. Div. 554; see Pendarves v. Monro, 1892, 1 Ch. 611). For the older doctrine as to the effect of an alteration of ancient lights, see Chandler v. Thompson (3 Camp. 80); Garratt v. Sharpe (3 Ad. & Ell. 325); Martin v. Goble (1 Camp. 322); Cherrington v. Abney (2 Vern. 646). Where there is an ancient light and other lights are added, and an obstruction is raised against the added lights, which from their position |