let the arbitrator say what he should be paid for his intermediate damage. All these alternatives he refused, insisting on our paying him a sum of money, hinting at a sum which clearly showed his object to be extortion of money and nothing else. That is a course of conduct which this Court will not sanction by the exercise of its extraordinary jurisdiction of granting mandatory injunctions, especially when, as clearly appears here from the acts of the respondent and his agents, damages are and can be made a sufficient compensation for any injury done.

Mr. Gardiner, in reply. — The respondent comes here alleging an infringement and seeking a restoration of his rights, enforceable according to the rules of this Court by injunction, ordinary or mandatory, as may be required by the circumstances of the case, and the injury arising from infringement of such rights is not to be arbitrarily assessed at a money value at the suggestion of the infringers. The principle governing the right to light resembles that governing a contract respecting an estate. The right to light is in the nature of a contract between the whole inhabitants of the kingdom governed by the rules laid down here and at law on the subject. One of those rules is, that restoration by the infringer to the former state of things is the right of the person who shows that he has sustained substantial injury, so that the light which he formerly had he may again specifically have. In the present case, a prohibitory injunction and a mandatory injunction are identical, because the position in which the appellants are is one in which they voluntarily and purposely placed themselves by the course which they took on the receipt of the respondent's notice of the 23d of February, 1863. Such cases as Hawkes v. The Eastern Counties Railway * Company, (a) and Broadbent v. * 271 The Imperial Gas Company, (b) show the power and willingness of these large companies to use their status to crush individuals with practical impunity. And if the Court in this case sanctions the principle that all they have to fear is payment of damages, the rights of individuals are practically at an end. That the contrary has hitherto been considered the rule of the Court is evident from many recent decisions; among them, that of the

(a) 3 De G. & Sm. 743; 1 De G., M. & G. 737; 5 H. L. Cas. 331.
(b) 7 De G., M. & G. 436; 7 H. L. Cas. 600.

Merchant Tailors Company v. Truscott, (a) where the terms of the mandatory injunction were, " so far as the defendant's new building shall or may have been carried on in a manner to prejudice or obstruct the ancient windows or light of the plaintiff as they were enjoyed before to restrain the defendant Truscott from permitting or suffering the said erection to remain at a greater elevation than the ancient building which was pulled down" in other words, practically the same as the mandatory injunction granted in the present case by the Master of the Rolls. As to the offer on the part of the appellants to improve the respondent's windows, that cannot alter his right to his light as it originally was; such improvement as could be made he was entitled to make as from that footing.

[THE LORD CHANCELLOR.

You had not made the improvement; therefore I must take the position in which you then were, as the ground of your complaint.] (b)

THE LORD CHANCELLOR. — Every one of this class of cases must depend upon its own peculiar circumstances.

* 272

*The common-law remedy for a grievance of this description is an action for damages: an action liable to be resorted to as long as the cause of damage continues. Upon that ground, and by reason also of the damage in many cases not admitting of being estimated in money, this Court has assumed jurisdiction.

The jurisdiction of this Court, so far as it partakes of the nature of a preventive remedy, that is, prohibition of further damage or an intended damage, is a jurisdiction that may be exercised without difficulty, and rests upon the clearest principles.

But there has been superadded to that the power of the Court to grant what has been denominated a mandatory injunction, that is, an order compelling a defendant to restore things to the condition in which they were at the time when the plaintiff's complaint was made. The exercise of that power is one that must be attended with the greatest possible caution. I think, without intending to lay down any rule, that it is confined to cases where the injury done to the plaintiff cannot be estimated and sufficiently compensated by a pecuniary sum. Where it admits of being so estimated, (a) Not reported. Cited from Reg. Lib. (b) See Jackson v. Duke of Newcastle, infra, p. 275.

and where the evil sustained by the plaintiff may be abundantly compensated in money, there appears to me to be no necessity to superadd the exercise of that extraordinary power by this Court.

I can easily understand cases in which an ancient mansion or family seat may be prejudicially affected, and where the remedy therefore can hardly be other than that of restoring things to their former condition. I can imagine the interruption of a supply of water that would entirely stop a flourishing manufactory, whereas it is impossible to estimate the future profits of the trade,

so it would be difficult to define at the moment a sum of * 273 money which might be a sufficient compensation for all injury thereafter. But that is not the case before me.

In this case I think it a matter of very doubtful result whether any damage has been sustained; but it is a case in which, beyond all question, without taking into consideration the confession of the parties, the whole of the injury that has been sustained by the plaintiff, or that is likely to be sustained by the plaintiff, the whole of the prejudice and damage to the plaintiff's premises by the erection of the defendants' buildings, may be abundantly compensated in money. To what end then should I exercise a jurisdiction which in such a case as this would simply be mischievous to the defendants, without being attended with corresponding benefit to the plaintiff, unless indeed I could approve of the plaintiff taking advantage of the mischief and loss that the defendants would have to sustain, in order to aggravate his claim for pecuniary compensation.

This is a case in which the benefit of the recent statute giving power to this Court to assess and ascertain damages is peculiarly felt; and I hold it therefore to be the duty of the Court in such a case as the present, not by granting a mandatory injunction, to deliver over the defendants to the plaintiff bound hand and foot, in order to be made subject to any extortionate demand that he may by possibility make, but to substitute for such mandatory injunction an inquiry before itself, in order to ascertain the measure of damage that has been actually sustained.

I shall not forget the fact which has been properly pressed upon me, that the defendants, after having notice of the * 274 plaintiff's complaint, carried on their works. I cannot, however, rest upon that at all judicially. They had the power of doing so. But it may be taken as a confession on their part that what they were doing would certainly be attended with some injury to the

plaintiff. That, I think, is not to be lost sight of in the estimation of that injury. But the course which I shall take is one which I think is clearly most consistent with justice and with reason, and which will really carry into effect what both sides admit ought to be done, though they have been so unfortunate as not to agree upon the means of doing it.

I shall suspend the whole of the order of the Master of the Rolls, and direct an inquiry before myself for the purpose of ascertaining what damage has been sustained by the plaintiff by reason of the buildings erected by the defendants, and what will be a sufficient compensation to be paid by the defendants to the plaintiff as a satisfaction for such damage, including therein the power to direct any works to be done by the defendants for the benefit of the plaintiff as part of the compensation to be so made to him; the parties respectively to be at liberty to have their witnesses examined vivấ voce before me, if they prefer that course to affidavits; that is, both may be combined.

If the affidavits are filed, and the cross-examination of the witnesses be desired, that cross-examination shall be had before me in Court.

* 275

* JACKSON v. THE DUKE OF NEWCASTLE.

1864. February 20, 24. March 19. June 25. July 2. Before the Lord Chancellor Lord WESTBURY.

Where the darkening of the ancient windows of a dwelling-house materially injures the comfort of the existence of those who dwell in it, the Court will interfere by injunction.'

1 For cases showing the circumstances under which the obstruction of ancient lights will be restrained, see Kerr Inj. 352-354; 1 Joyce Inj. 424 et seq.; 2 Dan. Ch. Pr. (4th Am. ed.) 1638, note (2) and App. xxi.; Kelk v. Pearson, L. R. 6 Ch. Ap. 809; Staight v. Burn, L. R. 5 Ch. Ap. 163; Lanfranchi v. Mackenzie, L. R. 4 Eq. 421; Dent v. Auction Mart Co., L. R. 2 Eq. 238; Clarke v. Clark, L. R. 1 Ch. Ap. 16; Yates v. Jack, L. R. 1 Ch. Ap. 295. For cases showing the extent to which the English law respecting ancient lights has been recognized in the United States, see 3 Kent, 448; Parker v. Foote, 19 Wend. 309; Myers v. Geminel, 10 Barb. 537; Hubbard v. Town, 33 Vt. 295; Banks v. American Tract Society, 4 Sandf. Ch. 438; Gerber v. Grabel, 16 Ill. 217; Robeson v. Pittenger, 1 Green

Upon a similar principle, where the obstruction of the ancient lights of a manufactory or of business premises renders the building to a material extent less suitable for the business carried on in them, it is a case for injunction, and not merely for compensation by damages.

2

But in a case where, looking to the house of the plaintiffs as it then was, and to the use which was then made of it, and not taking into account any future change or different use of the premises, the Court was clearly of opinion that the new buildings of the defendant would not materially injure the comfort of the existence of those who dwelt in the plaintiff's house, or render it less suitable for the business which was then carried on in it to such a material extent as to require the interference of the Court by injunction, the Court declined, in a suit by the owners and occupiers of the property alleged to be injured, so to interfere.'

Nor will the Court interfere where the injunction, if granted, would be founded

not upon the extent of present injury, but upon an injury which, having regard to a possible future destination of the premises, might affect their value.3

Semble, that in cases of obstruction to light and air, a personal inspection by the Judge of the premises alleged to be injured is unadvisable.

THIS was an appeal on the part of the sole defendant, the Duke of Newcastle, from the grant by the Master of the Rolls on the 11th of February, 1864, of an interlocutory injunction in the terms of the prayer of the bill hereinafter stated.

The object of the suit was to restrain an obstruction of ancient lights in a messuage situate in and known as 21 Cockspur Street, by the erection of new buildings opposite of a greater height than had been certain old buildings, whose place they were intended to take. The plaintiffs, the present respondents, were Edward James Jack

Ch. 57, 64; Ray v. Lynes, 10 Ala. 63; Ward v. Neal, 35 Ala. 602; Story v. Odin, 12 Mass. 157; Grant v. Chase, 17 Mass. 443, 448; Fifty Associates v. Tudor, 6 Gray, 255; Atkins v. Chilson, 7 Met. 403; Rogers v. Sawin, 10 Gray, 376; Collier v. Pierce, 7 Gray, 18; Carrig v. Dee, 14 Gray, 583; Paine v. Boston, 4 Allen, 168; Richardson v. Pond, 15 Gray, 387; Brooks v. Reynolds, 106 Mass. 31; Pierre v. Fernald, 26 Maine, 436; Ingraham v. Hutchinson, 2 Conn. 584; Maynard v. Esher, 17 Penn. St. 226; Haverstick v. Sipe, 33 Penn. St. 368, 371; Mahan v. Brown, 13 Wend. 261; Cherry v. Stein, 11 Md. 1; Napier v. Bulwinkle, 5 Rich. (S. Car.) 311; United States v. Appleton, 1 Sumner, 492, 502.

* See Kerr Inj. 351, 352-354; Dent v. Auction Mart Co., L. R. 2 Eq. 238; Clarke v. Clark, L. R. 1 Ch. Ap. 16; Yates v. Jack, L. R. 1 Ch. Ap. 295; Martin v. Headon, L. R. 2 Eq. 425; Johnson v. Wyatt, 2 De G., J. & S. 18, and cases in notes; Isenberg v. East India House Estate Co., ante, 263; 1 Joyce Inj. 425 et seq.

'See Calcraft v. Thomson, 15 W. R. 387.

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