*300] at the time of its erection. It has been *usual in these cases

to speak of a right to obstruct. But that, it is submitted, is an inaccurate expression. The only right which is known to the law is, the right of dominion over one's own property and its enjoyment,-a right, as applied to lights, of the owner to build to the extremity of his own land, with as many windows as he pleases, subject to his neighbour's prior rights. [WILLIAMS, J.-The obstruction might be placed on the land of a third person.] Still, it would be exercising an act of dominion over the servient tenement. The defendant in this case could only exercise his right to obstruct by reason of his property having been by the usurpation of the plaintiff discharged of the easement. These easements (as it has been usual to call them) may be treated as implied grants upon condition, viz. that no attempt will be made to enlarge the right. An easement may be abandoned by nonuser or by encroachment. An encroachment like this, which so confuses the old and the new lights that the one could not be obscured without at the same time interfering with the other, in reality amounts to an abandonment of the ancient right. It would be easy to suggest cases where detriment to the servient tenement would accrue from an encroachment of this sort by the owner of the dominant tenement. In Gale on Easements, 2d edit. p. 375, the learned author, in dealing with this subject, says: "Upon the question whether a party is still at liberty to restore his tenement to its former condition and recur to his former enjoyment, there is no express authority in the English law. It should seem, however, that he would have no such right, as he would have clearly evinced an intention to relinquish his former *301] mode of enjoyment; (a) and, in *addition to the actual encroachment, the uncertainty caused by the attempted extension of the right would of itself impose a heavier burthen upon the owner of the servient tenement, if such return to the original right were permitted." [ERLE, C. J.-Does the author exemplify what he means, or refer to any authority in support of the position?] He does not. [WILLIAMS, J.--It is difficult, since Lord Tenterden's Act (2 & 3 W. 4, c. 71), to conceive how the right to light can be rested upon an implied grant. If the estate is out on lease, the owner of the reversion has no power to obstruct new windows opened on the adjoining land, and yet it would seem that under that Act the right would be gained by twenty years' user. Before the Act, the acquiescence of the lessee for years would not have bound the reversioner. BYLES, J., read the 1st and 2d sections of Lord Tenterden's Act.] In s. 3, the words "by custom, prescription, or grant," are omitted. In Baker v. Richardson, 4 B. & Ald. 579 (E. C. L. R. vol. 6), where lights had been enjoyed for more than twenty years contiguous to land which within that period had been glebe land, but was conveyed to a purchaser under the 55 G. 3, c. 147, it was held that no action would lie against such purchaser for building so as to obstruct the lights, inasmuch as the rector, who was only tenant for life, could not grant the easement, and therefore no valid grant could be presumed. In no case where there has been a right to build has the party exercising that right been held to be under any obligation to remove the obstruction. In Moore v. (a) Citing Moore r. Rawson, 3 B. & C. 332 (E. C. L. R. vol. 10), 5 D. & R. 234 (E. C. L. R vol. 16), and Garritt v. Sharp, 4 N. & M. S34, 3 Ad. & E. 325 (E. C. L. R. vol. 30).

Rawson, 3 B. & C. 336 (E. C. L. R. vol. 10), Bayley, J., says: "The right to light, air, or water is acquired by enjoyment, and will, as it seems to me, continue so long as the party either continues that enjoyment or shows an intention to continue it. In this case, the former owner of the plaintiff's premises had acquired a right to the [*302 *enjoyment of the light; but he chose to relinquish that enjoyment and to erect a blank wall instead of one in which there were formerly windows. At that time he ceased to enjoy the light in the mode in which he had used to do, and his right ceased with it." Littledale, J., who goes very fully into the origin of these rights, says: "There is a material difference between the mode of acquiring a right of way or of common and a right to light and air. The latter is acquired by mere occupancy: the former can only be acquired by user, accompanied with the consent of the owner of the land; for, a way over the lands of another can only be lawfully used in the first instance with the consent, express or implied, of the owner. A party using the way without such consent would be a wrongdoer; but, when such a user, without interruption, has continued for twenty years, the consent of the owner is not only implied during that period, but a grant of the easement is presumed to have taken place before the user commenced. The consent of the owner of the land was necessary, however, to make the user of the way (from which the presumption of the grant is to arise) lawful in the first instance. But it is otherwise as to light and air. 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 land, buildings with as many windows as he pleases. In order to make it lawful for him to appropriate to himself the use of the light, he does not require any consent from the owner of the adjoining land. He therefore begins to acquire the right to the enjoyment of the light by mere occupancy. After he has erected his building, the owner of the adjoining land may afterwards 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-obstruc- [*303 tion 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 the 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, although a right of common (except as to common appendant), or a right of way, being a privilege of something positive to be done or used in the soil of another man's land, may be the subject of legal grant, yet 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 these more properly arises by a covenant which the law would imply not to interrupt the free use of the light and air. The right, therefore, is acquired by mere occupancy, and ought to cease when the person who so acquired it discontinues the occupancy. If, therefore, as in this case, the party who has acquired the right once ceases to make use of the light and air which he had appropriated to C. B. N. S., VOL. XI.-13

his own use, without showing any intention to resume the enjoyment, he must be taken to have abandoned the right." When once it is proved that the obstruction was justifiable, the authorities are clear that the owner of the servient tenement is under no obligation to remove it. In Liggins v. Inge, 7 Bingh. 682 (E. C. L. R. vol. 20), 5 M. & P. 712, the plaintiff's father, by oral license, permitted the defendants to lower the bank of a river, and make a weir above the plaintiff's mill, whereby less water than before flowed to the plaintiff's inill: and it was held that the plaintiff could not sue the defendants *304] for continuing the weir. Some *expressions in the judgment in that case are pointedly applicable here. The Court say: "There is nothing unreasonable in holding that a right which is gained by occupancy should be lost by abandonment. Suppose a person who formerly had a mill upon a stream should pull it down and remove the works with the intention never to return,-could it be held that the owner of the other land adjoining the stream might not erect a mill and employ the water so relinquished? or that he could be compellable to pull down his mill, if the former millowner should afterwards change his determination, and wish to rebuild his own? In such case it would undoubtedly be a subject of inquiry by a jury, whether he had completely abandoned the use of the stream, or had left it for a temporary purpose only; but that question being once determined, there seems no ground to contend that an action would be maintainable against the person who erected the new mill, for not pulling it down again after notice." Although the Court of Queen's Bench in Renshaw v. Bean profess to guard themselves against being supposed to decide that an attempt on the part of the dominant owner to enlarge his right operates as an abandonment of the easement which he originally had, it is submitted that the whole foundation of the judgment is based upon that presumption. But, whether the conduct pursued by the plaintiff in this case amounted to an abandonment or not, if the erection by the defendant of his wall was at the time justified by the acts of the plaintiff, he cannot upon any principle of justice be bound to remove the obstruction; the right to light being in the nature of a grant of an easement subject to the condition that it shall not be used, or, in other words, that no encroachment shall be made, to the detriment of the servient tenement. Where a footway exists, and an attempt is made to enlarge it * 305] *into a carriageway, it is easy for the owner of the servient tenement to obstruct the excess without at all interfering with the legal right which the owner of the dominant tenement before had. So, in the case of a riparian proprietor lowering a weir. But where, as here, the admitted right and the encroachment are so intermixed that the latter can only be obstructed by an obstruction of the whole, the owner of the servient tenement must necessarily have a right to obstruct the whole, by analogy to the cases of confusion mentioned in Renshaw v. Bean. In Garritt v. Sharp, 3 Ad. & E. 325 (E. C. L. R. vol. 30), 4 N. & M. 834, it is conceded that there may be such an alteration in the mode of enjoyment as to amount to an abandonment of the right: aud Hutchinson v. Copestake substantially decides the same thing. [BYLES, J.-The whole judgment reposes on this,that the right is not gone if the new parts might have been obstructed

without interfering with the old lights.] In Lawrence v. Obee, 3 Campb. 514, Lord Ellenborough ruled, that, if an ancient window has been completely shut up with brick and mortar above twenty years, it loses its privilege. Besides, it may well be contended, upon the authority of Pickard v. Sears, 6 Ad. & E. 469 (E. C. L. R. vol. 33), 2 N. & P. 488, and that class of cases, that the plaintiff, having by his acts and representations induced the defendant to incur considerable expense upon the faith of the existence of a given state of things, cannot now turn round and insist upon the defendant's undoing what he has done. The course adopted by the defendant was the only one he could conveniently have adopted for the purpose of obstructing an encroachment of this sort. [ERLE, C. J.-I believe no case has yet determined that the dominant proprietor loses his right by attempting to enlarge it.] It is submitted that the defendant is entitled to judg ment either on the ground of the forfeiture by the *plaintiff [*306 of his ancient right, or on the ground that the defendant was justified in erecting the obstruction, and in continuing it when erected. Cleasby, in reply.-The judgment of the Exchequer Chamber in Hutchinson v. Copestake would apply to the two lower windows here if they had not been restored to their original position and dimensions. Renshaw v. Bean does not, as is suggested, rest upon any sup posed abandonment of the easement. The main contention on the part of the defendant is, that he is under no legal obligation to pull down that which the law justified him in erecting at the time. The obvious answer to that, however, is, that the law excuses the defendant for obstructing that to which the plaintiff had no right, but not for obstructing that to which his right was undoubted.

Cur. adv. vult.

The Court being divided, the Judges now proceeded to deliver their opinions seriatim, as follows:

KEATING, J.-This was a special case stated in an action for obstructing and keeping obstructed certain lights of the plaintiff.

In 1857, the plaintiff became possessed of No. 107, Wood Street, in the city of London, then a public-house three stories high, with one window in each story; and in that year he made alterations in it, by lowering the first and second floors, so as to make them correspond with those of his adjoining warehouses, then recently erected, and lowering the windows in those floors in a similar way, one window of the three being retained in its original position. He then added two new stories, opening in the first of them a new window, and in the highest another window or light *which extended across the entire width of the building; the whole of which was thus made to form part of his warehouses.

[*307

The defendant, after the completion of the plaintiff's alterations, proceeded, in altering his own buildings, to erect a wall to such a height as to obstruct the whole of the said windows and lights. It was stated as a fact that the obstruction could not have been made in a more convenient manner, and that it was impossible to have obstructed the new lights without at the same time obstructing the ancient window.

The wall of the defendant's new warehouse and premises ccnstituting the obstruction was completed at the end of October. During

the months of September and October, 1857, a correspondence took place between the attorneys for the plaintiff and defendant respectively, the former denying and the latter asserting the defendant's right to build the obstruction in question.

Previously to the 4th of February, 1858, the plaintiff, under the advice of counsel, blocked up the new windows, and restored the altered windows to their original size and proportion: and upon that day the plaintiff's attorney gave to the defendant notice that he had done so, calling upon the defendant to remove the obstruction. This the defendant refused to do, whereupon the present action was commenced on the 24th of February, 1858.

Upon these facts, two questions arise,-first, was the defendant jus. tified in erecting the obstruction complained of? and, if so, secondly, was he justified in continuing it after the notice of the 4th of February?

As to the first point,-Had the alteration made by the plaintiff consisted wholly in the enlargement of all the ancient windows of No. 107 in the manner stated, the question would have been concluded in favour of the defendant by the cases of Renshaw v. Bean, 18

*308] Q. B. 112 (E. C. L. R. vol. 83), and Hutchinson v. Copestake, in error, 9 C. B. N. S. 863 (E. C. L. R. vol. 99). But, inasmuch as, whilst altering the ancient windows in two of the stories of his warehouse and opening new ones in the additional stories, the plaintiff retained one ancient window unaltered, it becomes necessary to consider the point upon which three of the Judges in the case in error expressly reserved their opinion, and to decide whether, in order to justify the obstruction, there is any substantial distinction between the case where the alteration consists in acquiring new and unprivileged light by means of the enlargement of ancient windows, and that in which such new light is acquired by the addition of new windows; the effect of the alteration upon the servient tenement in each case being the

same.

I concur with the rest of the Court in the opinion that there is no real distinction between the two cases, and that the grounds upon which the judgment in Renshaw v. Bean, and the opinion of Mr. Ĵustice Crompton and Mr. Justice Hill in Hutchinson v. Copestake proceeded, and which recognise no such distinction, are quite satisfactory.

But, assuming that the defendant was justified in erecting the obstruction complained of, was he also justified under the circumstances in continuing it after notice that the plaintiff had closed up the new windows and restored those altered to their original position and dimensions?-a question, undoubtedly, of difficulty and importance. The English law is so peculiar in its provisions respecting lights, that, in considering a question of any novelty relating to them, little assistance can be derived from analogies that might be furnished by the laws of other countries. I am not aware of any other system of law by which the remedy of the owner of *land for an inva*309] sion of its privacy by his neighbour opening new windows upon it is confined to their obstruction; but it is certain, that, by our law, the only mode by which an owner of land can prevent his neighbour from acquiring the right to light through windows looking upon it, is, by exercising his own right of building upon his own land so as