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plaintiff has altered his upper windows. The defendant's building does not seriously obstruct those windows: but, if he succeeds in this case, upon the principle laid down in Renshaw v. Bean, *he will probably build up higher.] That which the defendant has done is not in exercise of any supposed right of obstructing [*327 the upper windows. [BYLES, J.-The obstruction of part (perhaps the whole) of the upper windows would have been justifiable.] As to part, that is conceded: but, as to the whole, that is still debatable ground.(a) The point which was decided in Renshaw v. Bean does not arise here: the plaintiff has not obstructed, nor has he attempted to obstruct, the upper windows. [BYLES, J.-There is no evidence upon my Lord's notes that the plaintiff could not obstruct the upper windows without also obstructing the lower ones.] None. The question is whether a man, by enlarging in a small degree the arca of his upper windows, loses his right to lower windows. In Renshaw v. Bean, some of the windows had been enlarged: all had been altered in position; no one remaining as it originally existed: and it was found as a fact that the defendant could not exercise his right of ob structing the unprivileged parts without at the same time obstructing the parts which were privileged. Such also was the case in Hutchinson v. Copestake, 8 C. B. N. S. 107 (E. C. L. R. vol. 98); in error, 9 C. B. N. S. 863 (E. C. L. R. vol. 99). According to the view taken by Kindersley, V. C., in Cooper v. Hubbuck, 7 Jurist, N. S. 457, the question in these cases is, whether the alteration is a material one or not. In Chandler v. Thompson, 3 Campb. 80, Le Blanc, J., laid it down that, if an ancient window be raised and enlarged, the owner of the adjoining land cannot lawfully obstruct the passage of light and air to any part of the space occupied by the ancient window, although a greater portion of light and air be admitted through the unobstructed part of the enlarged window *than was an

ciently enjoyed: and that doctrine was distinctly approved of [*328 in Blanchard v. Bridges, 4 Ad. & E. 176 (E. C. L. R. vol. 31), 5 N. & M. 567 (E. C. L. R. vol. 36). Luttrell's Case, 4 Co. Rep. 86 a, Aldred's Case, 9 Co. Rep. 55 b, Yard v. Ford, 2 Wms. Saund. 172, and Thomas v. Thomas, 2 C. M. & R. 34,† were also referred to.

Parry, Serjt., T. Jones, and W. W. Cooper, in support of the rule.— The principle established in Renshaw v. Bean, 18 Q. B. 112, and affirmed by the Exchequer Chamber in Hutchinson v. Copestake, 9 C. B. N. S. 863 (E. C. L. R. vol. 99), is this, that if the owner of the dominant tenement by opening new windows or enlarging ancient windows imposes an additional burthen upon the owner of the servient tenement, the latter may lawfully obstruct the whole both new and old, provided the former cannot be obstructed without also obstructing the latter. The evidence showed that all the upper windows here were more or less obscured by the defendant's building.. [WILLIAMS, J.-The defendant had no intention to obstruct those windows.] Intention is immaterial. [ERLE, C. J.-If the usurpation deprives the dominant tenant of all right, your argument avails. The plaintiff does not complain of the obscuration of the upper windows.] The question is, not what the plaintiff complains of, but what the defendant had a right to do. The authorities show that he clearly had a (a) Jones c. Tapling, antè, p. 283, had been argued but not decided at this time.

right to obstruct every window the obstruction of which was necessary to enable him to reach the usurped lights. It is contended on the part of the plaintiff that the mere act of enlarging old windows does not entitle the owner of the servient tenement to obstruct. The whole current of the authorities, however, is opposed to that contention. Any addition to the whole lights destroys the right as much as if the old aperture were entirely closed and a new and different one *329] substituted for it. In Blanchard v. Bridges, 4 Ad. & E. 176 (E., C. L. R. vol. 31), 5 N. & M. 567 (E. C. L. R. vol. 36), E., being owner of a house, enlarged it, and inserted a window at one end in the part added, and at another end carried out the side walls, between which two windows formerly stood, in a straight line, five feet, converting this end into a bow, and inserting two bow windows in the same direction, but not in the same situation, as the two former: and it was held that, whatever privilege against the obstruction of light the windows of the original house possessed, this privilege did not apply to the three new windows. Patteson, J., in delivering the judgment of the Court, there says: "In whatever way precisely the right to enjoy the unobstructed access of light and air from adjoining land may be acquired (a question of admitted nicety), still the act of the owner of such 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. The consent, therefore, cannot fairly be extended beyond the access of light and air through the same aperture (or one of the same dimensions and in the same position) which existed at the time when such consent is supposed to have been given. It appears to us that convenience and justice both require this limitation: if it were once admitted that a new window, varying in size, elevation, or position, might be substituted. for an old one, without the consent of the owner of the adjoining land, it would be necessary to submit to juries questions of degree, often of a very uncertain nature, and upon very unsatisfactory evidence. And in the same case, a party who had acquiesced in the existence of a window of a given size, elevation, or position, because

it was felt to *be no annoyance to him, might be thereby con*330] cluded as to some other window, to which he might have the greatest objection, and to which he would never have assented if it had come in question in the first instance." [ERLE, C. J.-That was not the case of a mere enlargement of old windows.] No. But it was impossible here to block up or obstruct the new portions without also obstructing the old portions. [ERLE, C. J.-It is not an unimportant element in the consideration of this case, that the plaintiff's building is ten feet distant from the new building of the defendant. BYLES, J.-No case has yet decided that the mere casting a shade across a window gives a cause of action, nor that a man can prescribe for sunlight to enable him to perform delicate work.] In Garritt v. Sharp, 3 Ad. & E. 325, 330 (E. C. L. R. vol. 30), 4 N. & M. 834, Lord Denman says expressly 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." Suppose, instead of merely enlarging the windows on the upper floor of his building, the plaintiff had erected an entirely

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new story with new windows therein, how could the defendant have exercised his undoubted right to obstruct those new lights otherwise than by building upwards from the foundation on his own land, and so intercepting the light to the plaintiff's lower windows? The plaintiff is a wrongdoer in attempting to impose upon the defendant a larger easement than he was entitled to. Vice-Chancellor Kindersley seems in Wilson v. Townend, 1 Drewry & Smale 324, to have doubted the propriety of the decision of the Court of Queen's Bench in Renshaw v. Bean, 18 Q. B. 112 (E. C. L. R. vol. 83): but, in the subsequent case of Turner v. Spooner, 4 Law Times, N. S. 732, he appears to have come to a different conclusion. There, B., possessed of ancient lights, substituted new windowframes, with single plate-glass panes, opening internally, for [*331 the old ones, consisting of small panes with lead frames, opening only partially: in consequence of this alteration, more light and air were let in, although the apertures were not increased: C., whose premises were adjoining, objected to this alteration, on the ground that it was a new easement, and interfered with the privacy of his premises he proceeded to erect a framework, glazed with opaque colored glass, within a few inches of B.'s ancient lights: B. thereupon applied for an injunction: and it was held, that, if a party possesses ancient lights, and, without enlarging the apertures, can acquire an increased degree of light and air, he is entitled to such acquirement without giving a right to the occupier of the servient tenement to say there is a new easement; but that, if he increases the dimensions of the apertures, the occupier of the servient tenement has a right to object, and if, in asserting his right, he interferes with the passage of light and air, he is justified in doing so. The Vice-Chancellor, in giving judgment, says: "It is perfectly true, that, if a party having ancient lights alters the position of those lights, or if he put into the same wall of his house additional lights, or if he materially increases the dimensions of his own lights, that in the one case would be a new easement, and in the other an additional easement, provided it was not interfered with for twenty years; and that gives the owner of the servient tenement a right to say, 'I must prevent you acquiring that easement by twenty years' enjoyment;' and it would enable him at all events to intercept in any way that he thought fit the passage of light and air to the new windows, or to the increased portion of the windows: and it is further established, that, if he cannot do that without at the same time. interfering with the passage of light and air to the old portion, he *is justified in doing so." That is exactly the principle now contended for on the part of the defendant: and the same [*332 principle is adopted and acted upon by the Court of Exchequer, in the case of a drain, in Cawkwell v. Russell, 26 Law J., Exch. 34. "Where," says Pollock, C. B., "a party has a limited right of this kind, and exercises that limited right in excess, so as to produce a nuisance, the only remedy, and the only way whereby the party can protect himself, is by stopping the whole, as was done in a case (a) deciding (though it is hardly necessary to cite a decision on the point; it is so very clear and plain on the good sense of the matter that it hardly wants an authority), that, if a man has a limited right to the (a) Referring to Renshaw v. Bean, 18 Q. B. 112.

C. B. N. S., VOL. XI.—14

use of a window, and he enlarges it considerably, the only way in which the person who is annoyed by the enlargement of the window can prevent that nuisance, is, by erecting a barrier and stopping the whole up." And Alderson, B., says: "If a man has a right to send clean water through my drain, and chooses to send dirty water, every particle of the water ought to be stopped, because it is all dirty." In ancient times, it was held that a man lost his estate by attempting to enlarge or extend it. Thus, where a tenant for life made a feoffinent, and so put the remainder-man to his writ of formedon, he forfeited his life estate. So, where a tenant for life or for years made a tortious conveyance, in order to give a new quality to his estate, such tortious. conveyance operated a forfeiture of the estate to which he was really entitled. That rule is applicable to easements, as well as to corporeal hereditaments.

Bovill, Q. C., submitted that the rule, so far as it related to

*333] the prayer for a new trial upon the affidavits, should at all

events be discharged with costs.

T. Jones, contrà, objected that the Court had no power to do this. ERLE, C. J.-If we have the power to do what Mr. Bovill asks, I for one should feel very much inclined to do it. At all events, if our decision should ultimately be in favour of the defendant, we may direct the master to tax the costs of that part of the rule for the plaintiff.

Cur, adv. vult.

KEATING, J.-This was an action for obstructing the plaintiff's lights. The pleas were, not guilty, and a denial of the plaintiff's right to the lights. The building of the plaintiff was two stories high, with a range of windows in each story: those on the ground floor were ancient unaltered windows: those on the second floor had about ten years before been altered, not in number, but in size, by adding, as the plaintiff alleged, a very small additional space or strip on two sides of each window. The defendant built a shop on the opposite side of a passage ten feet wide, which, as he contended, did not affect the light passing to any of the defendant's windows. This was the point contested at the trial.

The jury found for the plaintiff on not guilty, but found nothing on the second issue, except that the model was correct. The verdict was entered for the plaintiff upon that issue; and the question is whether we can, without any other finding by the jury, set aside that verdict, and enter a verdict for the defendant, upon the ground that the right of the plaintiff to the enjoyment of light through all his windows was *suspended or lost by his alteration of those in the second story.

*334]

Assuming it to be established by the authorities (as in my opinion it is) that a person who has acquired a right to the enjoyment of light by user may so alter the mode of such enjoyment by a change in the windows admitting the light, in their size, shape, or number, and with or without an alteration in the character of the building in which they are placed, as to lose the right previously acquired, yet it is difficult to define the precise amount of alteration which will have that effect. It would be scarcely reasonable that a trifling alteration in the mode of enjoyment, whereby no injury is done to the servient tenement, should forfeit the whole right: Hall v. Swift, 4 N. C. 381 (E. C. L. R.

vol. 33), 6 Scott 167: whilst, on the other hand, such a material alteration as in Garritt v. Sharp, 3 Ad. & E. 325 (E. C. L. R. vol. 30), 4 N. & M. 834, or in Jones v. Tapling, antè, p. 283, would in my opinion forfeit the right, as being a total violation of the conditions upon which alone that right rested. If, therefore, the jury had found in this case that the alteration in the upper windows of the plaintiff's building was material, and that the unprivileged light could not be obstructed without also obstructing that which otherwise would be privileged, then I should have been of opinion, upon the authority of Renshaw v. Bean, 18 Q. B. 112 (E. C. L. R. vol. 83), and the other authorities I have referred to in Jones v. Tapling, that the plaintiff had lost his right to complain of the obstruction in question, and that our judgment should be for the defendant: but I am unable to say, merely looking at the model, that such is the case. There was, as I understand, no evidence given upon that point at the trial, the defendant resting his case entirely upon the fact of non-obstruction: and it may be, if that question had been contested before the jury, *they would have found the addition to the windows to be so small as not to vary in any essential degree the mode of enjoy. [*335 ment. At all events, the leave reserved extending only to an inspection of the model, I am not satisfied by such inspection that the state of things clearly existed that would, upon the authorities referred to, cause a forfeiture of the plaintiff's right.

I agree, therefore, that the rule to enter a verdict for the defendant upon the traverse of the right should be discharged.

BYLES, J.-I am of opinion that the plaintiff is entitled to the judg. ment of the Court. I think that the plaintiff's ancient unaltered window has not lost its right, except in a contingency which has not yet happened. The easement belonging to that window is no doubt liable to be suspended, or in course of time destroyed, when the servient owner necessarily blocks it, in order to prevent a servitude in favour of other and new lights which cannot possibly be blocked without blocking this ancient light also. The servient owner has not yet done this. He has not only not proceeded to raise his new building to such a height as to block the new lights; but, on the contrary, he has roofed in and finished his new building without doing so. Perhaps he never will do so.

It is said that the servient owner has done no more than he has a right to do, because he might have legally done even more than he has done. The true mode of answering this objection is, I conceive, to distinguish between the absolute right to block the ancient window and the conditional right dependent on another enterprise which has not yet been undertaken by the defendant, and perhaps never will be. Not to observe this distinction would be to sacrifice the ancient right of the dominant owner where the only *reason for the sacrifice has not yet come into existence, and peradventure

never may.

[*336

WILLIAMS, J.-In this case, I am of opinion that the plaintiff is entitled to our judgment.

The real question appears to me to be, whether, if the owner of the dominant tenement has exceeded the limits of the right he has acquired to the access of light and air, by opening an additional win

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