the case of Moore v. Rawson, 4 B. & C. 332 (E. C. L. R. vol. 10), 5 D. & R. 234 (E. C. L. R. vol. 16), shows that the plaintiff's easement is gone. It seems to me that the case before the Court is the same in principle with the case of Moore v. Rawson.

It does not follow that the plaintiff's reinstatement of his premises would have been the same, if the defendant, instead of erecting a substantial brick structure for his own purposes, had merely put up a temporary hoard to shelter himself from the threatened servitude, and for no other purpose, which hoard might have been both erected and taken down at scarcely any expense. In such a case, the hoard is purposely so erected that it may be removed as soon as the danger is. over. The dominant owner violates no law by opening new windows, and the blind of the servient owner, as soon as the new windows are removed, has effectually accomplished all that the servient owner intended. That is a case in which the servient owner suffers no injury.

WILLIAMS, J.-In this case I agree on both points with the judg ment of my Lord, which he has allowed me to read. As to the first point, the authorities have established the doctrine, so as to be indisputable unless in a court of error, that, where the owner of the domi

nant tenement has exceeded the limits of his *admitted right

*319] 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, if he shall think fit to incur the trouble and expense of thus using his own land. And these grounds would, I think, afford a good plea by way of justification in an action for the obstruction of the admitted right.

But, secondly, I am of opinion, that, as the owner of the dominant tenement has done away with the excess by restoring his lights to their former state, so that the need to obstruct the excess ceases, the justification of the obstruction of the admitted right also ceases. And the circumstance of the defendant having chosen, in order to secure the more convenient enjoyment of his property, to incur the expense of erecting the obstruction, does not in my opinion justify him in continuing it. The act of the plaintiff in opening the new windows which led to the erection was a legal act, of which the defendant had no legal right whatever to complain. Nor can it be said that the obstruction was erected with the license or assent, express or implied, of the plaintiff. It was erected plainly against his will, and in spite of his wishes.

For these reasons, I think the plaintiff is entitled to our judgment. ERLE, C. J.-In this case, these were the material facts:-The plaintiff, having a right to an old window opposite the defendant's premises, opened new windows *in a line above it, and finished his altera*320] tions in August, 1857. The defendant during September and October, 1857, built at considerable expense a wall and warehouse high enough to obstruct the new windows, and, in so doing, neces

sarily obstructed the old window,-the wall and warehouse being a convenient mode of.obstructing the new windows. The plaintiff, in February, 1858, stopped up the new windows, and restored his premises to their former state, and required the defendant to take away the obstruction to the old window. During these operations the correspondence showed that the plaintiff had no intention either to abandon any right or to grant a license to the defendant to continue his building. The defendant refused to remove the obstruction; and, in an action upon such refusal, the question has been, whether, under these circumstances, the continuance of the obstruction is lawful.

Upon the first point,-whether the obstruction of the old window was originally lawful,-my answer is in the affirmative, upon the authority of Renshaw v. Bean, 18 Q. B. 112 (E. C. L. R. vol. 18), and Hutchinson v. Copestake, 9 C. B. N. S. 863 (E. C. L. R. vol. 99). But, upon the second point, whether the continuance of the obstruction was lawful after the premises of the plaintiff had been restored to their former condition,-my answer is in the negative.

The new light in the plaintiff's tenement would, if continued, have imposed a new servitude on the defendant's tenement. This the defendant had a right to prevent by obstruction, obstruction being the only method of prevention known to the law. But, when the cause which made the obstruction lawful was removed in the time and manner above stated, it seems to me that the lawfulness of the obstruction ceased also.

The defendant contended that the opening of new windows, under the circumstances above stated, was either in the nature of an [*321 abandonment of the right in respect of the old window, or was in the nature of a license to the defendant to build without regard to any former easement, and so was a restoration of full dominion to the defendant freed from the former servitude.

The answer is, that the acts of the plaintiff show an intention the reverse of abandoning any existing right to light, as his endeavour was to obtain an increase. His acts and the correspondence entirely negative any intention either of abandoning, or of licensing, or of freeing the defendant's tenement from servitude: and, if he had no such intention, the cases of Moore v. Rawson, 3 B. & C. 340 (E. C. L. R. vol. 10), 5 D. & R. 234 (E. C. L. R. vol. 16), and Liggins v. Inge, 7 Bingh. 682 (E. C. L. R. vol. 20), 5 M. & P. 712, have no application, seeing that they were founded upon the presumed intention of the plaintiff, in the first case, of abandoning his easements permanently, and, in the second, of granting a license to the defendant.

The defendant contended further, that the right to the passage of light over the land of another must be regarded as if it was derived from a grant on condition that it should be lost if the grantee made an attempt by encroachment to acquire a right to an increase of light, in such a manner that a permanent structure obstructing both the privileged and the unprivileged lights became the convenient mode of preventing the acquisition of a right to the increase. But no authority has been cited to show that a right to light is presumed by law to rest upon a grant conditioned to be void if an attempt to encroach should be made. The right is often created by grant, as, where two adjoining houses pass to separate grantees from the same grantor,

either in fee or for a less estate. If the forfeiture of the light so granted resulted from an enlargement of an old or the addition of a *322] new *window, the opportunity for enforcing such a forfeiture must often have occurred; but no trace of a claim thereto has been found. Moreover, the right to a light is frequently derived under the statute from twenty years' user: but in that statute there is no recognition of a liability to forfeiture if an attempt to increase the servi tude should be made. Still, although no authority has been found, the defendant contends that this principle is a necessary consequence of the doctrine established by the late cases of Renshaw v. Bean and Hutchinson v. Copestake: and, to maintain this contention, he relies on considerations of convenience. He argues, that, if the plaintiff gave occasion for a permanent obstruction by an attempt to impose a servitude on the defendant, he ought not to have the option of rendering, by an arbitrary act, an expensive permanent obstruction which was lawfully made, unlawful and a cause of action, the restoration of his own premises being a matter which rested entirely on his own will, unconnected with any communication with the defendant; and, if the action lies, not only is the expense of the defendant in building thrown away, but he is also made liable to damages.

There is great weight in this argument: but it seems to me that there is greater weight in the answer. The plaintiff, in opening a new window, does a lawful act: and the defendant, if he chooses to obstruct it, also does a lawful act. The new window is entirely unconnected with the casement belonging to the old window; and the defendant is only excused for obstructing the old window if he cannot otherwise obstruct the new window. The obstruction can be effected, for the most part, by a temporary block, at slight expense: and, if the right of obstructing the old window is limited to the necessity of obstructing the new window, it is in its nature a temporary *justification of *323] that which would otherwise be an actionable wrong; and the defendant would act at his peril, if he chose, with such a limited right, to be at great expense for a permanent structure. There is a hardship in allowing to the plaintiff an option of rendering an act of ownership by the defendant, which was perfectly lawful when it was done, unlawful by a change which the plaintiff chooses to make in his own premises. But there seems a greater hardship in making a new window in an upper story a forfeiture for ever of a right to light for the windows below it. The new window may be made under a belief of right; as, where two houses are held under long leases from the same landlord, who gives his consent to an alteration in the windows of one house this would make the alteration lawful against every one except the tenant of the adjoining house for the residue of his term: see Davis v. Marshall, M. T. 1861: or, where the houses are so far apart that it is doubtful whether the new window in the dominant tenement is an increase of the servitude of the servient tenement: see Binckes v. Pash, post, p. 324. So, if the new light is only a slight inconvenience, the matter may be expected to be compromised. The hardship of depriving a house of accustomed light, possibly to such an extent as to render it useless as a house, by reason of an act intended to be lawful, is greater than that of throwing the expense of the obstruction on the party obstructing.

The facts and dates here indicate both that the plaintiff believed that he had a right to the new window and also that the defendant believed he had a right to obstruct both the old and the new windows. Their respective rights were at the time doubtful, and have since been settled only so far as Hutchinson v. Copestake is decisive.

In conclusion, it may be observed that the hardship *in cases

like the present would be prevented if an action was allowed [*324 by the servient tenant against the dominant tenant, either to try the right to a new window, or to recover from the dominant tenant the expenses reasonably incurred in protecting his tenement from the attempted encroachment.

For these reasons, I think that the verdict for the plaintiff should stand. Judgment accordingly.(a) (a) The verdict was entered for the plaintiff, in order to enable the parties to take the opinion of the Court of error.

In the recent treatise of Professor Washburne (1863) upon "Easements and Servitudes," he says (p. 498), "it will be found, it is believed, that in New York, Massachusetts, South Carolina, Maine, Maryland, Pennsylvania, and Connecticut, the doctrine of gain

ing a prescriptive right to light and air by mere length of enjoyment, has been discarded; while the English rule, in this respect, is retained in Illinois, New Jersey, and Louisiana, and rather recognised and waived than approved in Alabama."

BINCKES v. PASH. Nov. 16.

Where the owner of the dominant tenement has exceeded the limits of the right which he has acquired to the access of light and air, by opening an additional window, leaving his ancient windows unaltered, he has not necessarily lost or suspended his admitted right: but the opening of the additional window justifies the owner of the servient tenement in obstructing the ancient windows if the doing so is unavoidable in the exercise of his right to obstruct the new window.

THE plaintiff was a pianoforte maker carrying on business in Cornbury Place, Old Kent Road; his premises consisting of a building containing two floors, the lower having five windows, and being used as a workshop,-the upper floor having four windows and a door, and being used as a warehouse or showroom. The defendant was a boot and shoe manufacturer carrying on business on premises adjoining those of the plaintiff. In or about the month of August, 1860, the defendant commenced building a workshop on a spot at the rear of his own premises and abutting on the plaintiff's premises, at the distance of about ten feet from the plaintiff's workshop and showroom. The plaintiff, conceiving that the defendant's building would darken his windows, took proceedings in Chancery for the purpose of enjoining him from proceeding therewith so as to obstruct his (the plaintiff's) lights. Pursuant to an order of Kindersley, V. C., the present action was brought to try the right at law, the proceedings in equity being in the mean time suspended.

*The declaration was in the ordinary form, for an obstruction

[*325

of ancient lights. The defendant pleaded not guilty and a denial of the plaintiff's right to the lights, whereupon issue was joined.

The cause was tried before Erle, C. J., at the sittings in London after Hilary Term, 1861. The contest between the parties was, whether the defendant's building did obstruct the plaintiff's windows to such a degree as would sustain the action; and upon the plea raising that question the jury found for the plaintiff. Upon the second plea, denying the plaintiff's right to the light, the verdict was also entered for the plaintiff, with leave to the defendant to move to reverse it, if, upon the undisputed facts, and upon inspection of the model of the premises produced, the Court should be of opinion that the right was disproved.

The facts were in substance as follows:-The windows on the ground-floor had existed in their present state for more than twenty years before action brought, and the jury found that three of those windows were obstructed by the defendant's erection. It appeared that the plaintiff had about ten years before the action so altered and enlarged the windows of the first floor as that an obstruction of the new parts of those windows would have been lawful: and it was apparent from the model, that, at the distance of ten feet, no obstruction of the new part could have been effectual which did not also obstruct both the old parts of the same windows and also the windows of the ground-floor which were found to have been obstructed, and that a structure effective to obstruct the unprivileged parts of the upper windows must, according to the laws of nature, have obstructed the lower windows to a greater extent than the building complained of. It further appeared that the defendant's building did not obstruct *326] any part of the upper *windows, though the shade of it reached them for a short time during some days in the year, and that the defendant in erecting his building had no intention of obstructing the plaintiff's lights; but that, on the contrary, he insisted that it neither did nor could obstruct any of them.

The alterations which the plaintiff had made consisted in the enlargement of the four upper windows by widening them about six inches and lengthening them by three courses of bricks, and making a new window in the centre where there had formerly been a door. The lower windows were unaltered, save that one of them had been somewhat diminished in size.

Parry, Serjt., in Easter Term last, pursuant to the leave reserved to him at the trial, obtained a rule nisi to enter a nonsuit, "on the ground that the plaintiff was not entitled to the light, and not entitled to complain of the defendant's act, or of the diminution of light thereby occasioned,"referring to Blanchard v. Bridges, 4 Ad. & E. 176 (E. C. L. R. vol. 31), 5 N. & M. 567 (E. C. L. R. vol. 36), and Renshaw r Bean, 18 Q. B. 112 (E. C. L. R. vol. 83). He also moved on affidavits of surprise but, as to this, the learned Serjeant, on the rule coming on for argument, admitted that he was answered.

Bovill, Q. C., and C. Pollock, showed cause.-The plaintiff's complaint at the trial was of an obstruction to three of the windows on the ground-floor. It was conceded that there was no obstruction to the other two windows on that floor; nor was there any complaint of the obstruction of the upper windows. [ERLE, C. J.-The