to obstruct them; and his omission to do so within twenty years gives to his neighbour a right to the light, and deprives himself of the right to interfere by building or otherwise with that state of things to which he is thus taken conclusively to have assented. The state of the law as to the nature of the rights of the dominant and servient owners respectively, is thus clearly stated by Littledale, J., in his judgment in the case of Moore v. Rawson, 3 B. & C. 340 (E. C. L. R. vol. 10), 5 D. & R. 234 (E. C. L. R. vol. 16). After referring to the right of obstruction within twenty years, the judgment thus proceeds,-“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 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 would appear, therefore, that the consent implied by law from the uninterrupted user of light for twenty years is not a consent on the part of the servient owner that the enjoyment shall continue without obstruction for any given time, but only so long as the specific mode of user to which he has assented shall continue. Accordingly, it was held in Moore v. Rawson, that, although twenty years' user is indispensable to the acquisition of a right to light, yet such right may be lost by a disuser for a shorter period. *In that case the plaintiff, having a building with an[*310 cient lights used as a weaver's shop, pulled it down, and erected on the same site a stable (afterwards used as a wheelwright's shop), having a blank wall next the defendant's land. Fourteen years afterwards, the defendant built upon his own land, and the plaintiff then opened a window in the same place where there had been a window in the old wall: and it was held that he could not recover for continuing the obstruction to such window, on the ground that the fact of his disuser or ceasing to enjoy the right, unaccompanied by any act at the time indicating an intention to resume the enjoyment within a reasonable time, operated as an abandonment of the right, and extinguished it. "I think," said Bayley, J., "that, according to the doctrine of modern times, we must consider the enjoyment as giving the right; and that it is a wholesome and wise qualification of that rule to say that the ceasing to enjoy destroys the right, unless at the time when the party discontinues the enjoyment, he does some act to show that he means to resume it within a reasonable time." This case was before the Prescription Act, 2 & 3 W. 4, c. 71; but that statute, which increases so much the facilities for acquiring the right to light in certain cases, ought certainly not to be construed so as to lessen the rights of the servient owner more than its enactments strictly require. The case also was one of non-user or ceasing to enjoy. But the case of Garritt v. Sharp, 3 Ad. & E. 325 (E. C. L. R. vol. 30), 4 N. & M. 834, was one of misuser or alteration, decided since the statute, and where the same principle was applied. There, the plaintiff had stopped up some ancient apertures in a barn, through which light and air were furnished to it, and converted others into latticed windows, and brought his action for the obstruction of the latter. Lord Chief Justice Tin

*311] dal, who tried the cause, in effect *directed the jury that, if the defendant had obstructed any portion of the light admitted through the original apertures, the plaintiff was entitled to damages for such diminution. A new trial was granted, upon the ground that the jury were not required by the Judge to consider whether the plaintiff had "essentially varied" the manner in which the light was enjoyed. "It is enough," said Lord Denman, in delivering the judg ment of the Court,-of which Mr. Justice Littledale was still a member," to say that a party may so alter the mode in which he has been permitted to enjoy this kind of easement as to lose the right altogether."

In Blanchard v. Bridges, 4 Ad. & E. 176 (E. C. L. R. vol. 31), 5 N. & M. 567 (E. C. L. R. vol. 36), the acts of the dominant owner which were held to take away the right were undoubtedly very strong: but the case is important as showing how entirely the foundation of the right to light since the Prescription Act is the same as before it. Mr. Justice Patteson, in delivering the judgment of the Court, clearly lays it down that "the act of the owner of the land from which the right 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." That such alteration by the dominant owner as obliges the servient proprietor, in obstructing the unprivileged light, to obstruct likewise that which was privileged, will take away the right at least for the time, was distinctly decided by the Court of Queen's Bench in Renshaw v. Bean, where it was held that such an alteration was a defence under a traverse of the right: and that principle (in cases where the windows had all been enlarged) was affirmed by the Exchequer Chamber in Hutchinson v. Copestake.

*312] It appears to me, therefore, that these authorities *show the true principle upon which the rights of owners of adjoining lands, in respect of lights acquired by user, are placed, namely, that the rights of the servient owner in respect of his land being limited only by the user to which he has assented, and for so long only as it is substantially adhered to, the non-user by the dominant owner indicative of an abandonment of the right so acquired by him, or its essential misuser to the prejudice of the servient proprietor, does not so much confer upon the latter any new rights of obstruction as that it remits him to his former territorial rights to the extent to which those conditions have been violated, upon which alone his consent to their limitation was given; and that his exercise of such his rights can never be questioned by the dominant owner.

The result would be, that the solution of the second question in the present case would depend upon the answer given to the first, and be in favour of the defendant.

It is true, that, in such cases as the present, the effect of applying the principle as above stated operates practically as an extinguishment of the former right. But, surely there is nothing unjust or unreasonable in requiring that a person who exercises a right in derogation of that of his neighbour, by that neighbour's implied consent, should adhere substantially to the terms upon which it was given, especially in a case where the statute make the implication of consent

from user so imperative, and where the temptation to usurpation by the dominant owner is as great as its effects are injurious to the servient proprietor. It seems to me that such a state of the law is most reasonable, and that a man should not be heard to complain of the consequences of an act the necessity for which has been created by himself.

*I am not aware of any existing decision opposed to such a

view. Chandler v. Thompson, 3 Campb. 80, was much relied [*313

on. If it decides nothing more than that, the excess there being severable, the obstruction ought to have been confined to it, the case may well stand. If it decides more, then it has been overruled by Renshaw v. Bean and Hutchinson v. Copestake: see the remarks of Kindersley, V. C., in Wilson v. Townend, 1 Drewry & Smale 324. The same observation is applicable to Cottrell v. Griffiths, 4 Esp. 69. As to Thomas v. Thomas, the report of it in 5 Tyrwh. 804 shows that the observation of Alderson, B., was not applicable to the present case: and the casual expression attributed to the Lord Chief Baron, to be found in the judgment in Cawkwell v. Russell, 26 Law J., Exch. 46, is clearly extrajudicial: nor is the case itself to be found in the contemporary reports.

The judgment in Renshaw v. Bean, after disclaiming the intention to decide that the plaintiff by the alteration of his windows had entirely lost the right which he had before enjoyed," does certainly go on to say, that, in consequence of his own acts, he "must be considered to lose the former right which he had, at all events until he shall, by himself doing away with the excess, and restoring his windows to their former state, throw upon the defendant the necessity of so arranging his building as not to interfere with the admitted right." But that this passage cannot have been intended as the expression of an opinion that a restoration of the plaintiff's windows to their former state would oblige the defendant to take down the building he had rightfully erected, is evident, not only from the improbability of the Court deciding a point not necessarily involved in the case before it, but likewise from the explanation given in the latter part of the judg ment of this very passage; where, after deciding that the acts of the * defendant were a defence upon a traverse of the right, it pro

ceeds to give the reason as follows,-"for, as we have already [*314

observed in the outset, the plaintiff has by his own acts of excess at all events suspended and lost for the time his former right, if he has not actually and wholly destroyed it." It is not, perhaps, easy to see how the right can be lost even for a time, unless it be actually and wholly destroyed.

Then, what are the circumstances of the present case, with reference to the authorities? When the plaintiff became the owner of No. 107, it was a public-house three stories high, with one window in each story. He raises it two stories, changing the levels of the floors to suit the adjoining warehouse, of which he makes it part, enlarging some windows, adding others, and more than doubling the quantity of light. He makes this entire change in the character of the building and lights with the intention of so enjoying them. Not only does he do no act indicating at the time an intention to resume the old state of things; but all his acts negative any such intention.

through the correspondence, he never hints at any intention to restore the former state of things, but, on the contrary, insists on his right to maintain the state of things as altered: and it is not until nearly three months after the completion of the defendant's building, that, in pursuance of the advice of counsel, he restores his windows to a state manifestly inadequate to the permanent lighting of the building in the altered form in which he still retains it: and he then calls upon the defendant to pull down the building which ex concessis he has rightfully erected.

I am unable to discover any principle of jurisprudence upon which the defendant can be made to do so, consistently with the foundation. of the plaintiff's right being that which the authorities state it to be. If the law allowed the defendant to resist the usurpation by *315] an action, then the principle upon which a restoration of the former state of things might preserve the right is sufficiently obvious: but the difficulty is, to see how a rightful act of ownership by the defendant on his own land can be rendered illegal by the act of the plaintiff, to which he is no party. If that effect is to follow, within what time must it take place? For how long does the plaintiff possess the right of restoration so as to have this effect? And, is the time to run from the alteration in the plaintiff's windows, or from the time of the building on the defendant's land? If the restoration is partial, is the demolition to be so likewise? Or, suppose (what in the present case is highly probable) that the plaintiff, having compelled the defendant to take down his building, then reopened the windows,-is the defendant to build another wall, or is he to submit to the usurpation? These and many other difficulties which might be suggested oppose themselves to the maintenance of the plaintiff's claim on the present occasion,-a claim which, if established, will, as it appears to me, simply enable a dominant owner, by a dexterous use of the decision, to increase the servitude upon his neighbour's land to any extent he pleases.

In my opinion, the defendant is entitled to the judgment of the Court.

BYLES, J.-I am also of opinion that the defendant is entitled to the judgment of the Court.

The plaintiff having altered the dimensions, shape, and position of nearly all his windows, it became necessary for the defendant, in order to escape the burthen of a new servitude, to block all the plaintiff's windows to the extent to which he has blocked them. That he had a

right to do so while the new lights were *open, I believe we *316] are all agreed. The remaining question is, whether the de

fendant has a right to continue his obstruction after the plaintiff has restored his windows to their original condition.

In order to determine this question in favour of the defendant, it is not necessary to decide that the whole original right was by the common law subject to an implied condition that no part of it should be varied in its exercise to the prejudice of the servient owner, and that, if its exercise be so varied, the whole original right is forfeited or abandoned for ever. I hesitate to arrive at this conclusion on a point of such general and vital importance in great cities like this metropolis, but desire here to express no opinion upon it. It is, I think, sufficient

to say, that, in the case under consideration, the defendant at the time he built did no unlawful act; and the plaintiff, both by his conduct and by his letters, represented to the defendant, and induced the defendant reasonably to believe, that he (the plaintiff) intended permanently to continue his lights in their altered condition; in which condition a permanent erection by the defendant would never become a legal injury to the plaintiff. It will be observed that the plaintiff rebuilds his house in a substantial manner, probably calculated to last a century or more, with a general arrangement internally and externally adapted to the new lights, and unfitted for the old lights. This appears to me equivalent to a representation by the plaintiff to the defendant to this effect."I have permanently substituted new lights for my old ones; and, if you do not permanently block the new lights, I shall eventually establish over your property a new servitude." The written correspondence between the parties before the defendant's erections were complete carries the defendant's case further; for, although the plaintiff disputes the *defendant's right [*317 to block the new lights (in which controversy we are all agreed that the plaintiff was wrong), yet he nowhere informs the defendant that he the plaintiff is about to abolish his new lights, and to restore his ancient ones, but, on the contrary, asserts his right to the new The defendant, therefore, both by the words and actions of the plaintiff, has been encouraged and induced to lay out a sum of money in erecting a permanent building on his own ground: and it would be inequitable if the plaintiff after this should be allowed to say, "I have at length altered my mind. Now, therefore, pull your building down." Whatever time is to be allowed to the dominant owner to change his mind, it surely cannot extend beyond the period at which the servient owner has completed a substantial building on the faith of the continuance of permanent buildings already erected by the dominant owner. If it can extend beyond that period, what reasonable limit can be assigned to the caprice of the dominant owner?

ones.

I do not rest the defendant's case on the ground of license, as in Liggins v. Inge, 7 Bingh. 682 (E. C. L. R. vol. 20), 5 M. & P. 712, but on the ground of a representation by the plaintiff of a state of facts which if correct would justify the defendant in expending money in erecting substantial buildings on his own land.

The case bears a strong analogy to those cases of constructive fraud in equity, where an owner of land, without any evil intention, induces or allows another to build or expend money on that land, under the mistaken supposition that it is his own land. But the case before the Court is stronger in two respects than that case; for, here the defendant's use of his own ground was strictly lawful at the time. when he built; and the representation here is partly of facts which are true and partly of intentions lying in the exclusive *knowledge of the plaintiff'; so that no inquiry by the defendant [*318 could possiby have improved his knowledge or bettered his condition. But this conclusion in favour of the defendant seems to me fortified by the authorities. If, instead of a frontage containing new lights, the plaintiff had built a blank wall with no lights therein, evincing thereby that he did not intend to resume his easement, and the defendant had accordingly built on his own land as he has done, then