equal to or exceeding the freight, but it by no means follows that they were not worth many times over the necessary expenses, or that, if the goods had been the subject of the insurance, they could have been said to be constructively lost, as between their owner and the underwriter. If the goods, for instance, were worth 1000l., and the freight 1007, and it required 1057. expenses to make them fit to be used or carried forward, they might not be worth preparing for the sake of the freight, and yet they would be short of being lost by 8951. Whatever, therefore, may be thought of the reasoning of Lord Tenterden, the decision has not been successfully assailed.

In Moss v. Smith, 9 C. B. 94 (E. C. L. R. vol. 67), it was again decided that the freight is not lost by perils of the sea, simply because the cost of the repair of sea-damage necessary to earn it would be greater than the freight. Cresswell, J., said that the loss there was by the prudence of the owner, not by a peril: and Maule, J., said that the prudent owner principle only applies to constructive total loss of ship or constructive total loss of cargo by damage thereto, not to expense and labour of earning freight.

Here, the captain was prudent in avoiding foul weather, but he was not prevented by perils of the sea from procuring the necessary repairs and earning the freight.

The rule to enter a verdict for the underwriter must therefore be absolute. Rule absolute.

*283]

*JONES v. TAPLING. Nov. 14.

Where the owner of the dominant tenement has exceeded the limits of his admitted right to the access of light and air, either by enlarging or altering an ancient window or opening an additional one, and has thereby put himself into such a position that the excess cannot be obstructed by the owner of the servient tenement without at the same time obstructing the admitted right, no action can be maintained for the latter obstruction,-because it was unavoidably caused by the exercise of the right of the owner of the servient tenement to obstruct the

excess.

The plaintiff, being possessed of a house of three stories, with a window in each, lowered and enlarged the windows on the first and second floors, and added two new stories to the building, with windows therein. The altered windows on the first and second floors each occupied in part the space before occupied by the ancient windows: the window on the third floor remained as it had always been. The defendant, in rebuilding his premises opposite, obstructed the whole of the plaintiff's windows,--it being impossible (as found in a special case) to obstruct the new lights without at the same time obstructing the old ones. The plaintiff thereupon stopped up the new windows, and restored the old ones to their original state, and then required the defendant to remove the obstruction:

Held, per tot. Cur.,-upon the authority of Renshaw v. Bean, 18 Q. B. 112 (E. C. L. R. vol. 83), and Hutchinson v. Copestake, 9 C. B. N. S. 863 (E. C. L. R. vol. 99),-that, inasmuch as the defendant could not obstruct the new lights, as he had a right to do, without at the same time obstructing the ancient lights, he was justified in the obstruction of all.

And Held by Byles, J., and Keating, J., that, the obstruction being lawful at the time of its erection, the defendant was not bound to remove it on the plaintiff's closing his new and usurped lights.

Held, by Erle, C. J., and Williams, J., that the continuance of the obstruction after the cause for its erection had been withdrawn, was an unlawful act.

THIS was an action for obstructing and keeping obstructed certain lights of the plaintiff on the west side of a warehouse No. 107, Wood Street, Cheapside, in the city of London.

The first count of the declaration stated, that, at and during all the times thereinafter mentioned, the plaintiff was and still is lawfully possessed of a messuage and buildings in which there were, and still of right ought to be, divers ancient windows through which the light and air ought of right to have entered, and until the committing of the grievances by the defendant as thereinafter mentioned did enter, and still of right ought to enter, into the said messuage and buildings, for the more wholesome use and occupation of the same: yet that the defendant wrongfully and injuriously built, erected, and raised, and kept and continued, a certain wall, building, and erections near to the said said windows; by reason of which premises the light and air were and are hindered and prevented from *coming and entering into or through the said windows into the said messuage [*284 and buildings of the plaintiff, and the said messuage and buildings had been and were thereby rendered dark, close, and unwholesome, and less fit and commodious for habitation, and greatly deteriorated in value.

The second count stated that the plaintiff was possessed of a messuage with certain windows through which at the times of the committing of the grievances thereinafter mentioned the light and air of right ought to have entered without the obstruction thereinafter mentioned and that the defendant wrongfully kept and continued opposite and near to the said windows a certain wall upon a close in the occupation of the defendant, in such manner as to obstruct and impede the entrance of light and air which of right ought to have, and but for the said acts of the defendant would have entered the said windows, although before the said obstruction complained of the defendant was requested by the plaintiff to remove the said obstruction; and that all things had been done and happened and existed, and all times had elapsed, to entitle the plaintiff to have the said obstruction removed by the defendant; whereby the said messuage of the plaintiff was and is deteriorated in value and become less useful for occupation. Claim, 10007.

The defendant pleaded,-first, not guilty, secondly, to the first count, that the plaintiff was not nor is lawfully possessed of a messuage and buildings in which there were and still of right ought to be ancient windows or an ancient window through which the light and air ought of right to have entered and did enter, and still of right ought to enter, in manner and form as in that count alleged,-thirdly, to the last count, that the plaintiff was not possessed of a messuage with windows or a window through which the light and air *of right [*285 ought at either of the said several times when, &c., to have entered without the obstruction therein mentioned, in manner as in that count alleged. Issue thereon.

The cause came on to be tried before Cockburn, C. J., at the sittings in London after Hilary Term, 1859, when a verdict was by consent found for the plaintiff for the damages claimed in the declaration, subject to the following case:-

The plaintiff is a wholesale dealer in silk, and now carries on his business at Nos. 107, 108, and 109 Wood Street. The plaintiff had for several years prior to 1857 carried on his business at Nos. 108 and 109 Wood Street; but he acquired possession of the premises No. 107

Wood Street for the first time in the year 1857, having become the purchaser of them in the month of July in that year. Up to the time when the plaintiff acquired possession of the said premises No. 107, they were used and occupied as a public-house, known by the sign of The Magpie and Pewter Platter, and were and are in a line with and next adjoining to Nos. 108 and 109. The said premises Nos. 107, 108, and 109 abut on the rear or west side thereof upon the east side of certain premises fronting in Gresham Street West, and therein numbered 1 to 8,-hereinafter called "the Gresham Street property." In the year 1852, the plaintiff pulled down his premises Nos. 108 and 109 Wood Street, which were then old and dilapidated houses, and erected on their site new warehouses. In doing so he altered the position and enlarged the dimensions of the windows previously existing, increased the height of the building, and set back the rear or back line of those warehouses.

A model (numbered 1) was admitted to represent for the purposes of this case the position of the windows and lights in the west side of Nos. 108 and 109 Wood *Street in the year 1852, immediately

*286] before they were rebuilt as aforesaid, as well as the windows

and lights of the Magpie and Pewter Platter, No. 107; and it was admitted for the purposes of this case that the windows shown by such model in the Magpie and Pewter Platter were ancient windows, and that the owners or occupiers for the time being of the Magpie and Pewter Platter were then and up to July, 1857, entitled to such access of light and air as shown by the model. It also showed the position and height of the east walls of the Gresham Street property at the same period.

The defendant, who is a carpet warehouseman, on the 23d of July, 1852, was tenant of the said Gresham Street property, and now holds the same under a lease for a term of eighty-one years since granted to him. In or about the year 1856, the defendant pulled down the buildings then standing on the Gresham Street property, in order to erect thereon a warehouse.

The plaintiff in July, 1857, immediately after his purchase of No. 107 Wood Street, made alterations in it, by lowering the first and second floors, so as to make them correspond with his adjoining new warehouses, Nos. 108 and 109, and by lowering two of the windows in such floors, so as to suit the new position of the floors. One of the lowered windows was about one foot longer than before, and the other about the same size as the old one; and both occupied parts of the old apertures. The small window on the first floor shown in the model No. 1 was blocked up. He also built two additional stories to No. 107, in the first of which, viz., the fourth story of the premises, he put out a new window; and in the fifth or attic story he placed a window extending across the entire width of the building. These new windows and lights were so situated that it was impossible for the owners of the said Gresham Street property to obstruct or block them without also obstructing or blocking to an equal or greater *extent that portion of *287] the said windows and lights which occupied the site of the said

ancient windows in No. 107.

The said alterations and additions in No. 107 Wood Street, so far

as the windows are concerned, were completed by the plaintiff in the month of August, 1857.

After the alterations and additions to No. 107 Wood Street had been so completed, the defendant proceeded to erect his said intended warehouse and premises on the Gresham Street property, and built up the eastern wall thereof to such a height as to obstruct the whole of the windows and lights of No. 107 Wood Street.

A model numbered 2 showed the state of the windows and lights in the plaintiff's premises, Nos. 107, 108, and 109 Wood Street at the time the defendant erected his said new warehouse and premises: and it also showed the eastern boundary-wall of the defendant's said new warehouse and premises. Part of this wall is the eastern side of the defendant's warehouse, and the residue a blank wall of the same height, in continuation of the warehouse wall. The new upper windows of No. 107 could not have been obstructed in a more convenient manner than by building up a wall of sufficient height on the defendant's premises.

On the 8th of September, 1857, the following letter was written by the attorneys for the defendant to the attorney for the plaintiff, and received by the latter:

"Dear Sir,

"Tapling v. Jones.

"8th September, 1857.

"We have received your notice.(a) Our client claims the right to erect his warehouse in any manner he thinks proper, without being interfered with by Mr. Jones. You are aware that, when Mr. Jones erected his present warehouse, in 1854, he, much to the *annoy[*288 ance of our client, put out the present windows in the back front of Nos. 108 and 109 Wood Street. At the time he did so, he was cautioned, that, when Mr. Tapling rebuilt his warehouse (which he then contemplated doing), these windows would be all built against. We cannot conceive upon what ground Mr. Jones claims to interfere with our client's building. He has no rights or easements of any kind over Mr. Tapling's property.

"Jones v. Tapling (first suit).

"As this motion was ordered to stand over until November, we do not care to be troubled about the matter now, but will furnish you with all the information you are entitled to in due course. You appear to think that Mr. Jones may do anything he likes, but that Mr. Tapling must not do anything without his (Mr. Jones's) permission. Mr. Jones has during the present month put out additional windows overlooking our client's property. This he had no right to do; and we object to their remaining, and shall assuredly take measures to block them up, "LANGLEY & GIBBON."

Whilst the said eastern wall of the defendant's warehouse and premises was in course of erection, the following correspondence passed between Mr. Lloyd, the attorney for the plaintiff, and Messrs. Langley & Gibbon, the attorneys for the defendant:-

"16th October, 1857.

"Dear Sirs,--My client, Mr. Jones, finds, that, notwithstanding the various proceedings taken by him to prevent Mr. Tapling from building against him and darkening his lights, he still continues to do so, (a) Which had no bearing on the present question.

and is raising a wall in Flying Horse Court to a much greater height than the former ones complained of: and he desires me to require of him to desist from his conduct, and to inform you, as solicitors to Mr. Tapling, that he will consider the same as an aggravation *of

*289] the injury he is sustaining, and will apply to the Court to re

strain him in his proceedings, and to be ordered to pull down such wall, so as not to further darken his premises.

"HERBERT LLOYD."

"17th October, 1857.

"Dear Sir,--On the 8th of September last, we wrote you in effect as follows, viz., that our client Mr. Tapling claimed the right to erect his warehouse in any manner he thought proper, without being interfered with by Mr. Jones. You are aware, that, when Mr. Jones erected his present warehouse, in 1854, he, much to the annoyance of our client, put out the present windows in the back front of Nos. 108 and 109 Wood Street. At this time he (Mr. Jones) was cautioned, that, when our client rebuilt his warehouse (which he then contemplated), these windows would be all built against. We deny that We deny that your client has any rights or easements whatever over Mr. Tapling's property. With respect to No. 107 Wood Street, we gave you notice at the time Mr. Jones was making the alterations and additions, about a month or six weeks since, that Mr. Tapling objected to the additional windows overlooking his property, and that Mr. Jones had no right to put them out. We further informed you that our client would take measures LANGLEY & GIBBON."

to block them out.

"Dear Sirs,

for the same.

"Jones v. Tapling.

"19 October, 1857.

"I need not enter into a discussion with you upon the conduct of the defendant, which now accounts for the placing the tarpaulings in the way they were. My client has all along warned the defendant against impeding his lights; and the defendant will have to answer I now require him to *discontinue the wall he *290] has erected at the back of my client's premises, and to pull down the same; and inform you that I have laid papers before counsel to prepare a bill in Chancery for an injunction to restrain him from. further pursuing the injurious course he has been and is pursuing, and that the defendant may be ordered to pull down the same. With regard to the caution you allude to, my client denies it in the strongest terms, and states that Mr. Tapling never made any objection till it was (if any) made through you, and has stated that he would not have acted as he has but for Mr. Jones refusing to let him have his house No. 110 Wood Street. "H. LLOYD."

"Dear Sir,

"Tapling v. Jones.

"26th October, 1857.

"As we have already informed you, our client claims the right to erect his warehouse in any manner he pleases, without being interfered with by Mr. Jones. We deny that your client has any ground to object to what Mr. Tapling has done or is now doing. We are prepared to meet any proceedings you may institute.

"LANGLEY & GIBBON."