stand." The same learned Judge confirms that view in the subsequent case of Fetherstone v. Cooper, 9 Ves. 67. Lord Denman in Dobson v. Groves, 6 Q. B. 637, 647 (E. C. L. R. vol. 51), adopts the principle laid down by Lord Eldon. "It is clear," he says, "that the *446] arbitrator held a meeting on the 3d of October for the purpose of making up his mind on one of the subjects referred; and a gentleman was present who had acted as advocate in a former stage of the reference. The arbitrator said that nothing which passed at that meeting would influence his decision: but I think that no information ought to be received at all under such circumstances, unless the arbitrator has an express power reserved for that purpose, or the parties agree that he shall exercise it. The proceeding is quite different from that of consulting a legal friend on the framing of the award: that is legitimate but here the conference is on something to be done by the consulting party as arbitrator on the matters referred: it turns upon a point in the cause on which a bias may be given to his mind without the possibility of its being removed. The only difficulty arises from the two cases in the Common Pleas : (a) and I will say, without disguise, that I would rather abide by the principle which Lord Eldon lays down in Walker v. Frobisher than by those decisions. When once the case is brought within the general principle by a possibility that the arbitrator's mind may have been biassed, there is a sufficient objection." This principle was again acted upon in The Queen v. The Justices of Hertfordshire, 6 Q. B. 753 (E. C. L. R. vol. 51), where it was held, that, if any one of the magistrates hearing a case at sessions be interested in the result, the Court is improperly constituted, and an order made in the case will be quashed on certiorari; and that it is no answer to the objection that there was a majority in favour of the decision without reckoning the vote of the interested party, nor that the interested party withdrew *before the decision, if he appear *147] to have joined in discussing the matter with the other magis trates. In a very recent case in this Court, Proctor v. Williams, 8 C. B. N. S. 386 (E. C. L. R. vol. 98), the principle was again recognised. The Court there laid it down that they would not sanction an award which had been made ex parte,-one of the parties having withdrawn from the reference in consequence of the arbitrator (a layman) insisting, in spite of his protest, on retaining the services of an attorney to assist him at the hearing: and yet there the attorney would have been acting openly in the presence of the parties. Erle, C. J., there says: "It is of the essence of these transactions that the parties should be satisfied that they come before an impartial tribunal. Here is a lay arbitrator chosen by the parties; and he begins with a stipulation that he shall have a lawyer at his elbow to assist him from time to time with his advice. Looking at the way in which Mr. Duignan forced his attendance on the parties after he was objected to by one of them, and at the contradictory reasons by which he sought to justify his presence, I think the defendants were perfectly justified in saying that the tribunal was not the tribunal of their selection, and not a satisfactory one. I think a decision come to by the arbitrator in such a manner as this is not one which a Court of justice ought to force on (a) Atkinson v. Abraham, 1 Bos. & P. 175, and Bignall v. Gale, 2 M. & G. 830 (E. C. L. R vol. 40), 3 Scott N. R. 108, 9 Dowl. P. C. 631. the parties. I cannot help observing that the gentleman who advised Mr. Yardley (the arbitrator) to adopt the course he did, seems to have a very improper sense of his duty." The whole course of the proceeding here was pregnant with the gravest suspicion: and it would be highly dangerous to allow an award made under such circumstances to stand. A layman must frequently avail himself of professional aid in preparing his award; but he should obtain it from an independent and impartial source, and not from one who has either acted professionally for either of the parties or has attended the arbitrator professionally in the course of the reference. [*448 ERLE, C. J.-The course which was pursued by the arbitrator in this case is one which I as a Judge must highly disapprove of, because it gives a just ground for suspicion and dissatisfaction, lest the arbitrator should have permitted himself to be swayed by communications and information received from one side only. But, at the same time, I cannot help saying that it is impossible to have a stronger affidavit than that which has been produced in answer to the rule, that the conclusion at which the arbitrator arrived was come to before he had any consultation with the attorney as to the form of his award. The very fact of the items referring to what passed between the arbitrator and the attorney appearing in the bill of costs, seems to me to be almost conclusive evidence that he was unconscious that he was doing anything wrong. It is, however, a practice which I trust will not be often resorted to. I do not feel justified in going so far as to set aside the award: but I think enough appears to afford a justification to the Company for appealing to the Court, and therefore I think,—and my learned Brothers agree with me,-that the rule should be discharged without costs. Lush strenuously but unsuccessfully resisted this result. Rule discharged without costs. END OF MICHAELMAS TERM. C. B N. S., VOL. XI.-18 *419] *IN THE EXCHEQUER CHAMBER. FREWEN v. PHILIPPS. The plaintiff and defendant occupied houses adjoining each other as tenants under leases both of which were granted by the same lessor on the same day, viz. the 18th of December, 1788, and both oxpiring at the same time. The defendant by building on his own premises obstructed a window in the house of the plaintiff, though the latter had had an uninterrupted enjoyment of light and air for more than twenty years :-Held, that the circumstance of the two houses being held under the same landlord, and for the same term, did not prevent the one tenant from acquiring an indefeasible right to light as against the other. THE declaration stated that for and during all the times thereinafter mentioned the plaintiff was, and thence hitherto had been and still was, lawfully possessed of a certain messuage or dwelling-house, with the appurtenances, in which said messuage or dwelling-house during all the time aforesaid there of right were, and still of right ought to be, divers windows through which the light of right ought 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 or dwelling-house, for the more convenient use and occupation of the same, without the obstructions thereinafter mentioned; yet the defendant wrongfully and injuriously built and erected and raised, and kept and continued a certain conservatory, buildings, and erections near to the said windows, by reason of which premises the light was and is hindered and prevented from coming and entering into or through the said windows into the said messuage or dwellinghouse of the plaintiff, and the said messuage or dwelling-house has been and is thereby rendered dark and less fit for habitation, and was and is deteriorated in value, &c. The defendant pleaded,--first, not guilty,--secondly, that there were and was not divers windows or any window in the said messuage or dwelling-house, through which the light ought to have entered for the *more convenient use and occupation of the same, without the obstruction in the declaration mentioned and alleged. Issue *450] thereon. At the trial before Erle, C. J., at the sittings in Middlesex after Hilary Term, 1860, the plaintiff proved that his dwelling-house in the declaration mentioned adjoined a tenement and premises of the defendant, which are to the south of the plaintiff's dwelling-house, and that there were and for more than sixty years before the erection of the defendant's conservatory thereinafter mentioned had been certain windows in the plaintiff's dwelling-house, at the back thereof, through which a sensible amount of rays of light had during the time aforesaid passed without obstruction over a low part of the defendant's house and premises, until the defendant, in the month of July, 1857, built a conservatory on and over the said low part of his house and premises, and thereby substantially obstructed the passage of light over the said part thereof to the said windows of the plaintiff's said dwelling-house. The plaintiff also put in two indentures of lease both dated on the 18th of December, 1788, one being the lease whereby and by virtue whereof the plaintiff's said messuage and dwelling-house was and had been held and occupied from the time of the date of the said lease to the times in the declaration mentioned, from and under successive Dukes of Portland, the successive owners in fee and reversioners thereof; and the other being the lease whereby and by virtue whereof the defendant's said tenement, house, and premises were and had been held and occupied from the time of the date of the said lease to the said times in the declaration mentioned, under and from the same successive Dukes of Portland, the successive owners in fee and reversioners thereof. *These two leases were granted by the same owner in fee, [*451 the then living Duke of Portland. The demise in each is for the same term of years; and they are exactly similar to each other as to reservation of rent, and covenants, and in all respects except in the names of the respective lessees, and in the descriptions of the parcels respectively demised by them. On the part of the defendant it was insisted, that, on the second issue, the Lord Chief Justice should direct the jury to find for the defendant, inasmuch as it appeared from the evidence, and especially from the said leases, that the plaintiff's dwelling-house in the declaration mentioned, and the defendant's tenement, house, and premises on which the obstructions in the declaration mentioned were erected, were and are, and for the whole time mentioned in the evidence had been, the freehold property of the same person, and were and are and for the said whole time had been held under the same estate and title, and were and are, and for the said whole time always had been, parcels of the same estate of the same reversioner, and that the enjoyment of access of light to the plaintiff's said dwelling-house over the defendant's said tenement, house, and premises during the said time was not in the character of an easement, and that the defendant's said tenement house, and premises never became servient to the plaintiff's said dwelling-house and premises, as to access of light. But his Lordship directed the jury, that, according to the evidence given, the plaintiff had proved a legal right to the access of light to his said dwelling-house without the obstructions in the declaration mentioned, and directed them, if they believed the said evidence, to find for the plaintiff upon the said second issue. The counsel for the defendant excepted to this ruling. [*452 Garth, for the plaintiff in error.-To bring a case within the 3d section of Lord Tenterden's Act, 2 & 3 W. 4, c. 71,(a) the right when acquired by twenty years' uninterrupted user must be absolute and (a) Which enacts, that, "when the access and use of light to and for any dwelling-house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing." indefeasible. That cannot be the case where, as here, both the domi nant and the servient tenement are held under the same landlord. A right to light cannot be acquired by one tenant against another where both hold under the same landlord, and under leases granted at the same time and determinable at the same time: for, any right which either might acquire as against the other would be defeasible on the expiration of their respective terms. The statute puts the right to light and air on precisely the same footing as any other easement: Harbidge v. Warwick, 3 Exch. 552. It was there held that the 3d section converts into a right such an enjoyment only of access of light over contiguous land as has been had for twenty years in the character of an easement distinct from the enjoyment of the land itself; and that the statute places this species of negative easement on the same footing in this respect *as those positive easements provided for by *453] the other sections: and, consequently, that, if the dominant and servient tenements are during the prescribed period in the occupation of the same person, no right is acquired. In Bright v. Walker, 1 C. M. & R. 211,† where a way had been used adversely and under a claim of right for more than twenty years over land in the possession of a lessee who held under a lease for lives granted by the Bishop of Worcester, it was held that this user gave no right, under s. 2, as against the bishop, and did not affect the see. And see Sugden's Real Property Acts 176. If the acquisition of the right is prevented by unity of possession, the same consequence must result from unity of title; for, unless the twenty years' enjoyment gives a good title against all, it gives no good title at all. Both the dominant and the servient tenement will come into the possession of the same person at the same time, on the expiration of the leases; and the right will necessarily be gone. [BLACKBURN, J.-Not necessarily. The reversions may by sale in the mean time come into the hands of different persons.] The law does not allow the negligence or the connivance of a tenant to affect his landlord's rights, by enabling a third person to acquire a permanent easement over it, which might prevent the landlord from afterwards building on his land: and it would be most unjust if it did. O'Malley, Q. C., for the defendant in error.-By the twenty years' uninterrupted user, the plaintiff has acquired, as against the defendant, an indefeasible title to the passage of light to his windows. The right to light is acquired by user only: Moore v. Rawson, 3 B. & C. 340 (E. C. L. R. vol. 10), 5 D. & R. 234 (E. C. L. R. vol. 16). The cases of The Salters' *Company v. Jay, 3 Q. B. 109 (E. C. L. R. *454] vol. 43), 2 Gale & D. 414, Flight v. Thomas, 11 Ad. & E. 688 (E. C. L. R. vol. 39), 3 P. & D. 442, and Truscott v. The Merchant Taylors' Company, 11 Exch. 863,† show that the enjoyment of light and air is not governed by the rules which are applicable to other descriptions of easements. Garth was heard in reply. POLLOCK, C. B., delivered the judgment of the Court.-We are all of opinion that the ruling of my Brother Erle at the trial was quite right. The short ground upon which we found our opinion is well expressed by Coleridge, J., in Truscott v. The Merchant Taylors' |
