*IN THE EXCHEQUER CHAMBER.

JONES. TAPLING. July 12.

[*826

A., being possessed of a house of three stories, in Wood Street, Cheapside, with a window in each story, lowered and enlarged the windows on the first and second floors, and added two new stories to the building, with windows therein. The altered windows on the first and second floors each occupied in part the space before occupied by the ancient windows: the window on the third floor remained as it had always been. B., in rebuilding his premises opposite, obstructed the whole of the windows of A.'s house,-it being impossible (as found in a special case) to obstruct the new lights without at the same time obstructing the old ones. A. thereupon stopped up his new windows, and restored the old ones to their original state, and then required B. to remove the obstruction, which he refused to do:

Held, by Bramwell, B., and Blackburn, J., that the original obstruction was not justifiable,controverting the principle laid down in Renshaw v. Bean, 18 Q. B. 112 (E. C. L. R. vol. 82), and adopted in Hutchinson v. Copestake, 9 C. B. N. S. (E. C. L. R. vol. 99).

Held by Wightman, J., and Crompton, J., that the original obstruction was justifiable but that the defendant was bound to remove it upon the abandonment by the plaintiff of the usurped lights.

Held, by Pollock, C. B, and Martin, B., that, the obstruction being lawful at the time of its erection, its continuance was not unlawful.

The judgment of the Court of Common Pleas was therefore affirmed.

ERROR upon a decision of the Court of Common Pleas upon a special case: vide 11 C. B. N. S. 283 (E. C. L. R. vol. 103).

The short facts were these:-The plaintiff, being possessed of a house of three stories, in Wood Street, Cheapside, with a window in each story, lowered and enlarged the windows on the first and second floors, and added two new stories to the building, with windows therein. The altered windows on the first and second floors each occupied in part the space before occupied by the ancient windows: the window on the third floor remained as it had always been. The defendant, in rebuilding his premises opposite, obstructed the whole of the plaintiff's windows,-it being impossible (as found in the special case) to obstruct the new lights without at the same time obstructing the old ones. The plaintiff thereupon stopped up the new windows, and restored the old ones to their original state, and then required the defendant to remove the obstruction, which he refused to do.

The Court of Common Pleas held unanimously,-upon the authority of Renshaw v. Bean, 18 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), *that, inasmuch as the defendant could not obstruct the new

lights, as he had a right to do, without at the same time ob- [*827 structing the ancient lights, he was justified in the obstruction of them all.

Byles, J., and Keating, J., further held, that, the obstruction being lawful at the time of its erection, the defendant was not bound to remove it on the plaintiff's closing his new and usurped lights, and giving notice thereof to the defendant. Erle, C. J., and Williams, J., however, held that the continuance of the obstruction after the cause for its erection had been withdrawn, was an unlawful act.

The Court being thus equally divided in opinion, and the parties

being desirous of taking the opinion of a Court of error, Keating, J., withdrew his opinion, and judgment was entered for the plaintiff.

A writ of error was thereupon brought, and the case was argued in the Exchequer Chamber at the sittings in error after last Hilary Term before Pollock, C. B., Wightman, J., Crompton, J., Martin, B., Bramwell, B., and Blackburn, J.

Archibald (with whom was Hawkins, Q. C.), for the plaintiff in error (defendant below).—The plaintiff below, it is submitted, had no right of action either for the original obstruction of his lights or for the continuance of the obstruction. The easement which he formerly enjoyed was forfeited by the attempted encroachment, or, at all events. the plaintiff, having by his own act suspended the easement and justified a permanent obstruction, cannot after such an obstruction has been erected at great expense resume the easement. That the original obstruction was lawful is clear from the cases of Renshaw v. Bean, 18 Q. B. 112 (E. C. L. R. vol. 83), and Hutchinson v. Copestake, 9 C. B. N. S. 863 (E. C. L. R. vol. 99). By our law, no action lies for opening a window to the *annoyance of a neighbouring owner: per Le *828] Blanc, J., Chandler v. Thompson, 3 Campb. 80. The only practicable mode of resisting the encroachment is by actual obstruction: and, if there be a justification for erecting an obstruction, in order to prevent the acquisition of a right by twenty years' user, the right to maintain the obstruction necessarily follows. This is strictly consistent with the nature of the right claimed by the dominant owner, which, it is submitted, is a right by implied grant, even since Lord Tenterden's Act, 2 & 3 W. 4, c. 71, which merely alters the mode of proof and shortens the period of prescription: Bury v. Pope, Cro. Eliz. 118; Daniel v. North, 11 East 372; Barker v. Richardson, 4 B. & Ald. 579 (E. C. L. R. vol. 6); Bright v. Walker, 1 C. M. & R. 211;† Harbige v. Warwick, 3 Exch. 552. And it is in strict analogy with the principles of our law to imply a condition not to use the easement to the detriment of the servient tenement. It is a general principle, that, where a party with a limited right over land or a chattel assumes a greater dominion than is consistent with or essential to his right, the exercise of that power to the detriment of third parties works a forfeiture of the actual right: Co. Litt. 233 b, 251 a; Cooper v. Willamott, 1 C. B. 672 (E. C. L. R. vol. 50). An easement or prescriptive right is not forfeited by an alteration in the mode of enjoyment which imposes no increased burthen on another; as, the altering a fullingmill into a corn-mill (Luttrell's Case, 4 Co. Rep. 86 a), raising the walls of a house (Thomas v. Thomas, 2 C. M. & R. 34†), or altering the dimensions of a mill-wheel (Saunders v. Newman, 1 B. & Ald. 258). Here, however, a new right would be gained if the encroachment were allowed to continue, and it was impossible to resist the encroachment without in some degree interfering with the easement. This is analogous to the case of a forfeiture incurred by a tenant for life or for *829] years by making a feoffment in fee: Co. Litt. 251 b; Read r. Errington, Cro. Eliz. 321; 2 Bl. Com. 275; 1 Stephen's Com. 4th edit. 462 (n); Com. Dig. Forfeiture (A 1). That such an easement as this may be lost by encroachment or abandonment, appears from the cases of Garritt v. Sharp, 3 Ad. & E. 325 (E. C. L. R. vol. 30), 4 N. & M. 834 (E. C. L. R. vol. 30), Blanchard v. Bridges, 4 Ad. & E.

176 (E. C. L. R. vol. 31), 5 N. & M. 567 (E. C. L. R. vol. 36), Cawkwell v. Russell, 26 Law J., Exch. 34, and Gale on Easements, 3d edit. 500.

Then, having by his own act justified the obstruction, the plaintiff cannot, it is submitted, be allowed to resume the original easement. That an easement may be lost by disuse, was ruled by Lord Ellenborough in Lawrence v. Obee, 3 Campb. 514, and asserted by Littledale, J., in Moore v. Rawson, 3 B. & C. 332 (E. C. L. R. vol. 10), 5 D. & R. 234 (E. C. L. R. vol. 16), by this Court in Liggins v. Inge, 7 Bingh. 682, 5 M. & P. 712, by the Court of Queen's Bench in The Queen v. Chorley, 12 Q. B. 515 (E. C. L. R. vol. 64), by Kindersley, V. C., in Wilson v. Townend, 30 Law J., Ch. 25, and by Sir J. Romilly, M. R., in Cooper v. Hubbuck, 7 Jurist N. S. 457. And whether it be by license, by abandonment, or by encroachment, makes no difference. With this agrees the Civil law: see the passage cited from the Digest, Lib. VIII., Tit. II., De Servitutibus Prædiorum Urbanorum, § 6, in Gale on Easements, 3d edit. 484. The Code Napoleon has express provisions for regulating the enjoyment of these rights: see Book II., Cap. II., Tit. IV., § III., and articles 690-699. See also Toullier's Droit Civil Français, Vol. 3, Book 2, Tit. 4. The American law leans strongly against such easements: Parker v. Foote, 19 Wendell R. 309.. To hold that the defendant is bound to remove a structure the erection of which was lawful at the time, merely because the plaintiff has thought fit to obscure (it may be temporarily) his new and usurped lights, will, it is submitted, be imposing a grievous burthen upon *the defendant, who is not shown to have been guilty of any [*830

wrongful act.

Cleasby, Q. C., for the plaintiff below.-The window on the third floor remaining in its original state, the alteration of those on the first and second floors could not justify the defendant in obstructing the access of light and air to that window. Assuming, therefore, that Hutchinson v. Copestake, 9 C. B. N. S. 863 (E. C. L. R. vol. 99), was well decided, it has no application here. The plaintiff was guilty of no unlawful act in opening the new windows or enlarging the old ones: nor can the unauthorized opening of a new light destroy the party's right to the old one. But, assuming that the obstruction of the whole of the windows was warranted upon the principle laid down by the Court of Queen's Bench in Renshaw v. Bean, 18 Q. B. 112 (E. C. L. R. vol. 83), and adopted by this Court in Hutchinson v. Copestake, the defendant, at all events, was not justified in continuing the obstruction when the necessity for it no longer existed. At most the plaintiff's right was only suspended. Ward v. Ward. 7 Exch. 838,† Binckes v. Pash, 11 C. B. N. S. 324 (E. C. L. R. vol. 103), Wilson v. Townend, 30 Law J., Ch. 25, and Cooper v. Hubbuck, 31 Law J., Ch. 123, were cited.

Cur, adv. vult.

Archibald was heard in reply. There being some diversity of opinion amongst the learned Judges, their opinions were now delivered seriatim, as follows:

BLACKBURN, J.-This was a special case stated for the opinion of the Court of Common Pleas, with power to draw inferences of fact. The Court having been equally divided in opinion, the junior Judge C. B. N. S., VOL. XII.—31

*831] withdrew his opinion, and judgment was entered for the plaintiff. From this judgment there has been an appeal. I think that the judgment as it stands is right, and should be affirmed. Before stating my reasons for this judgment, I will recapitulate the facts stated in the case, and the inferences of fact which in my opinior. should be drawn from them, as it is on these I give judgment. So far as they raise the present point, they are short, and in my opinion clear.

The plaintiff purchased a house, No. 107, Wood Street, consisting of three floors, in each of which was one ancient window. Having purchased it, he made alterations in the windows in the first and second floors. Whether these two altered windows continued privileged after these alterations, depends, according to the decision in Hutchinson v. Copestake (in error), 9 C. B. N. S. 863 (E. C. L. R. vol. 99), on a question of fact, viz., whether these alterations were so great that the two altered windows on the first and second floors could not be considered as continuations of the two ancient windows on these floors. This question of fact is one which it is unnecessary to decide; for, the question now raised depends on the right to the ancient window on the third floor, which was untouched, and remains in precisely the state in which it always was; and there is no pretence for saying that the obstruction of the unaltered window in the third floor was necessary in order to obstruct the altered windows on the first and second floors below it. But the plaintiff, besides altering the old first and second floors, also built a new fourth and a new fifth story, in each of which he put a new window; and it was found in the case as a fact that these new windows were so situated that it was impossible for the owners of the adjoining property to obstruct them without also *832] obstructing to an equal or greater extent the windows below. I think this very improbable; but I cannot take on myself to say that it might not be impossible to obstruct the upper windows by means of poles and boards, and therefore I will accept this fact as it is stated, though doubting much its accuracy.

There is nothing stated in the case tending to show that the plaintiff intended to abandon his right to the ancient unaltered window on the third floor; and I draw the inference of fact that he did not so intend, and that there was nothing from which the defendant could reasonably suppose that he did intend to abandon it. I mention this inference of fact for the purpose of showing, that, in my opinion, no question arises on the doctrine discussed in Stokoe v. Singers, 8 Ellis & B. 31 (E. C. L. R. vol. 92). I completely approve of the decision in that case; but the above finding of the facts prevents it from being applicable to the present case. But I also find, as an inference of fact, that the plaintiff did intend his new windows on the fourth and fifth stories to be permanent, and that he so conducted himself as to induce the defendant to believe that these windows were intended to be permanent, and that, if they were left unobstructed for twenty years, they would become privileged.

The defendant, who owned adjoining premises, proceeded to build on them in the manner in which he would have been entitled to do if there was no privileged window on the plaintiff's third floor; and he built so high as to obstruct both the ancient window on the third floor

and the new windows on the fourth and fifth floors. The plaintiff protested against his doing so, and cannot be considered as meaning to license this, or to induce the defendant so to build: but, according to Renshaw v. Bean, 18 Q. B. 112 (E. C. L. R. vol. 83), the throwing out of the new windows above the ancient *window rendered the obstruction lawful; and the defendant built while the obstruction was, according to that case, lawful.

[*833

The plaintiff, under the advice of counsel, blocked up his new windows, and brought this action for the continued obstruction of his ancient and unaltered light, by the maintenance by the defendant of the house which had been erected whilst the defendant was induced by the plaintiff's acts to believe, and, as I find as a fact, was justified in believing, and did believe, that the new windows were to be per

manent.

Such being the state of the case, it becomes in my opinion necessary to decide in this,-a Court of error,-whether the owner of land who uses it so as to obstruct an ancient unaltered window, can justify or excuse this obstruction, on the ground that the owner of that ancient privileged window has opened a new and unprivileged one in such a position that it cannot be obstructed without at the same time obstructing the privileged window. The actual point raised, is, whether he can justify continuing the obstruction after the unprivileged windows had been closed: but, to decide that, it is necessary to consider whether the original obstruction was at the time it was erected lawful or excused: and, after carefully considering the opinions of those who differ from me, notwithstanding the respect I entertain for their judgments, I am of opinion it was not.

This question was, I believe, first mooted in the case of Renshaw v. Bean, decided in 1852. In that case, Lord Campbell, C. J., in delivering the judgment of the Court, states the material facts to be, that "the plaintiff, about eighteen or nineteen years ago, rebuilt his house, the outward wall being on the old foundation; that he raised it a story higher, putting windows into the new story, and altering the *dimensions of all the windows in the lower stories, although they still embraced portions of the space occupied by the old [*834 windows; that the defendant, in the year 1850, rebuilt his house, and raised it a story, to about the same elevation as the plaintiff's; that thereby he obstructed the new windows in the upper story of the plaintiff's house; that, without building a wall similar to the wall of the defendant's new house, the defendant could not have prevented the plaintiff from enjoying the free use of the new windows in the upper story of the plaintiff's new house; and that this wall so raised to its present height darkened and obstructed all the windows in the lower stories of the plaintiff's house." The report professes to set out the special case on which this judgment was given; and in it the facts differ much from those stated in the judgment, for, in the case, it is expressly stated that the number of stories remained the same; but, as was pointed out by Kindersley, V. C., in Wilson v. Townend, 30 Law J., Ch. 25, it is immaterial whether the facts really were as stated or not, for, the Court decided the law on the supposition that such were the facts. Lord Campbell proceeds to say that the defendant, "if he did not commit any trespass," was at liberty to interrupt the