above three cases in succession. If a man sells a house which has windows overlooking adjoining land which he retains, he cannot afterwards stop the light from coming to the windows of the house by building on the land; for when granting the house, he is presumed to have granted also a right to light to the windows, and he may not subsequently derogate from his own grant; so also, it after selling the house he sells the land to a third person, the latter may not obstruct the light from the windows, for the vendor could only convey the land subject to the same burdens to which it was subject in his own hands (a). In a case, however, where the grantor of a lease of a house for twenty-one years was himself lessee for four years of some neighbouring premises which were so low in construction that they did not prevent the light coming to the windows of the house, and he subsequently purchased the low buildings in fee, it was held that the implied grant of right to light was limited to the term the grantor had in the low buildings at the date of the lease of the house, that is, the four years, and that the fact of the subsequent purchase of the freehold estate in fee in the low buildings did not extend the implied grant of the right to light to a longer term (b). If, on the contrary, the owner of a house and land sells the land and keeps the house, there is no such grant by the purchaser of the land implied; for if the conveyance is absolute and without any reservation of easements, there is no ground for presuming an intention that a right to light should be reserved by the vendor or granted by the purchaser (c). If the house and land are sold simultaneously to different persons, the case is similar to a sale of the house when the land is reserved, for

(a) Coutts v. Gorham, Moo. & Mal. 396; Cox v. Mathews, 1 Vent. 239; Palmer v. Fletcher, 1 Lev. 122, Sir T. Raym. 87; Palmer v. Paul, 2 L. J., Chy. 154; Robinson v. Grave, L. R., Weekly Notes, 1873, p. 83.

(b) Booth v. Alcock, L. R., 8 Chy. App. 663; 42 L. J., Chy. 567.

(c) White v. Bass, 7 H. & N. 722; 31 L. J., Ex. 283; Curriers' Company v. Corbett, 2 Dr. & Sm. 355; Ellis v. The Manchester Carriage Company (Limited), 2 C. P. D. 13.

the vendor is presumed to grant a right to light to the purchaser of the house, and the purchaser of the land takes it subject to the restriction that he may not build so as to obstruct the light.” (a)

A covenant for quiet enjoyment does not mean that the enjoyment of light and air should not be disturbed (b). As to the effect of the covenant on a special grant (c), a prescriptive right accrues or begins to run from the time the house is built, and the windows put in, although it be not inhabited. Vide Courtauld v. Legh, L. R., 4 Ex. 126.

No right can be acquired for open ground, as decided in the case of Roberts v. Macord, 1 M. & R. 230, where it was held that "no right to have the light and air unobstructed could be acquired by prescription in respect of a timber yard and saw pit."

It is presumed that, following the decision in the case of Tapling v. Jones, the right entirely depends on the Statute; it would follow that uninterrupted user for twenty years would give a prescriptive right even to an extraordinary light (d). No right not to increase the light by reflection can be acquired (e); nor by increasing the size or enlarging ancient windows can a person acquire the right to the increased light under twenty years. (ƒ)

The servient owner may erect an obstruction on his own land, but so as not to interfere with the ancient lights (g). See remarks of Pollock, B., in Cawkwell v. Russell, 26 L. J.. Ex. 24.

(a) Palmer v. Fletcher, 1 Lev. 122; Compton v. Richards, 1 Price, 27; Swanborough v Coventry, 9 Bing. 305; Goddard on Easements, 168. (b) Potts v. Smith, L. R., 6 Eq. 311.

(c) Leech v. Schweder, L. R., 9 Chy. App. 463; 43 L. J., Chy. 487.

(d) Hertz v. Union Bank of London, 2 Giff. 686.

(e) Lanfranchi v. Mackenzie, L. R., 4 Eq. 421.

(f) Cooper v. Hubbuck, 30 Beav. 160; 31 L. J., Chy. 123.

(g) Cooper v. Hubbuck, 30 Beav. 160; Tapling v. Jones, 11 H. L. C. 290; Greenslade v. Halliday, 6 Bing. 379.

"Without interruption" means "without interruption by some reasonable means." Arkwright v. Gell, 5 M. & W. 203.

As to the question of the right to flow of air, see Webb v. Bird, 10 C. B., N. S. 268; Mounsey v. Ismay, 3 H. & C. 486; also on page 209; but in Bliss v. Hall, 4 Bing. N. C.. 183, it was held that the common law right to pure air remained until an adverse right to pollute it had been acquired by twenty years' user; see also Flight v. Thomas, 10 A. & E. 590; Crump v. Lambert, 3 Eq. 409. Mr.. Goddard says, p. 122: "These decisions and dicta tend to create uncertainty as to the meaning of the Prescription Act, but in no case has the point been so well considered as in Webb v. Bird and Mounsey v. Ismay. It is very probable, therefore, that if the question were fairly raised and argued, it would be held that neither a right to support nor a right to pollute air or create noise, to the annoyance of a neighbour, is an easement which can be acquired under the second section of the Prescription Act."

With regard to light, the latest case in our courts is that of Hall v. Evans, 42 Q. B. 190.

Defendant, in 1855 or 1856, built a house on his lot adjoining the plaintiff's, having three windows looking out upon the plaintiff's land. In 1864 the defendant raised his house more than three feet, and none of the windows being more than three feet high, the position of each of them was entirely changed. Held, that he had acquired no right under the Statute C. S. U. C. cap. 88, s. 38 (s. 36 of the present Act), for that he had not enjoyed the access or use of the light at the same place for the statutory period..

Defendant claimed title by possession for ten years to a small strip of the plaintiff's land, thirty-four inches in width, adjoining his own, having used it for the purpose of banking up his cellar. Held, that this claim was properly found against him, such possession being too uncertain and insufficient.

Cases cited on behalf of plaintiff: Renshaw v. Bean, 18 Q. B. 112: Hutchinson v. Copestake, 9 C. B., N. S. 863; Heath v. Bucknall, L. R., 8 Eq. 1; Blanchard v. Bridges, 4 A. & E. 176; Brummell v. Wharin, 12 Grant, 283; Biggar v. Allan, 15 Grant, 358. Gale on Easements, 5th Edit., 174, 587, 599.

In the States of New York, Massachusetts, Connecticut, Maryland, Pennsylvania and South Carolina, the doctrine of gaining a prescriptive right to light by mere length of enjoyment has been abandoned, as being unsuited to the wants and circumstances of the country. See Washburn on Easements, 498; Powell v. Simons, 13 Am. 629; Guest v. Reynold, 18 Am. 570; Doyle v. Lord, 21 Am. 629; Harrison, C. J., judgment in Hall v. Evans.

Here is a question for legislators who desire to benefit the country to consider. Is the present state of the law with regard to light suited to Ontario? Is it not better to make the owner of a house buy the adjoining lot than to compel the owner of the adjoining lot to put up an ugly obstruction against his neighbour's windows?

PRIVACY.

No action is maintainable for disturbing a man's privacy by windows built by defendant in his own house. Turner v. Spooner, 30 L. J., Chy. 803; Chandler v. Thompson, 3 Comp. 80.

Interruption of privacy was expressly held not to confer a right of action. In re Penny v. The South Eastern Railway Company, 7 E. & B. 660; 26 L. J., Q. B. 225.

See with regard to breaking a covenant that would have the effect of disturbing the privacy, Lord Manners v. Johnson, 1 Chy. D. 680.

Extent of prescriptive rights to light. "The Statute has in no degree whatever altered the pre-existing law as to the nature and extent of this right. The nature and extent of the right before the Statute was to have that amount of light

through the windows of a house which was sufficient, according to the ordinary notions of mankind, for the comfortable use and enjoyment of that house, as a dwelling house, if it were a dwelling house; or for the beneficial use and occupation of the house, if it were a warehouse, a shop or other place of business. That was the extent of the easement—a right to prevent your neighbour from building upon his land, so as to obstruct the access of sufficient light and air to such an extent as to render the house substantially less comfortable and enjoyable.”—James, L. J., in Kelk v. Pearson, L. R. 6 Chy. App. 809; approved of by Lord Selborne, L. C., in the City of London Brewery Company v. Tennant, L. R., 9 Chy. App. 212; Yates v. Jack, L. R., 1 Chy. App. 295; 35 L. J., Chy. 539. "The right conferred (prescriptive right by Statute) is an absolute indefeasible right to the enjoyment of the light, without reference to the purpose for which it has been used."-Cranworth, L. C.

By grant, the same extent as by prescription. Kelk v. Pearson, L. R., 6 Chy. App. 813. An old case of Turner v. Spooner, 4 Esp. 69, seems to hold that the servient owner could restrain the dominant owner to the amount of light that had been accustomed to go through his windows, even when that amount was curtailed by the construction of the dominant tenement itself; but the more modern case of Turner v. Spooner, 1 Dr. & Sm. 467, settles the question. There the dominant owner fitted up his windows without enlarging them, and took away the iron bars, and had them. arranged so that they would open wide; and the servient owner immediately erected an obstruction resembling windows, within a few inches of the new windows, glazed with opaque dark-coloured glass, and prevented the additional light which the plaintiff would have had by his improvements. On a bill filed to restrain the erection of the glazed frame, it was held that the plaintiff had a right to improve his own dwelling without acquiring a new easement.

It has been the custom to couple together air and light when suing for obstruction, but this is manifestly improper,