Yet defendant, well knowing the premises, but intending to injure plaintiff in his reversionary estate, &c., whilst the said several premises were so occupied by the respective tenants thereof, and plaintiff was so interested therein as aforesaid, to wit, on, &c., and on divers other days, &c., wrongfully and injuriously rebuilt and raised and added to a certain messuage, building, and premises of defendant near to the said windows respectively, and made the same of a much greater height and dimensions than the same had previously been, and wrongfully and injuriously kept and continued the said last-mentioned messuage, building, and premises so wrongfully added to and raised as aforesaid for a long time, to wit, &c.; by means of which said several premises the light and air during all the times aforesaid were and still are prevented from entering into and through the said windows or any of them into the said respective premises so in the possession of plaintiff's said tenants respectively, in which plaintiff was so interested as aforesaid; and the same *premises have been and are thereby rendered [*114 dark, close, uncomfortable, and unwholesome, and much less fit and commodious for habitation, &c.; and the same have been and are greatly deteriorated in value; and plaintiff hath been and is greatly injured in his reversionary estate and interest, &c. : to the damage, &c. Pleas. 1. Not Guilty.

2. That there were not of right, at or during any or either of the said times of the committing, &c., any or either of the said windows through which the light or air ought to have entered, or still of right ought to enter, in manner and form or for the purpose in the declaration alleged. Conclusion to the country.

Issue was joined on each plea.

On the trial, before Coleridge, J., at the Nottingham Spring Assizes, 1851, a verdict was found for the plaintiff with 18. damages, subject to the opinion of this Court upon the following case.

The premises in the occupation of the plaintiff's tenants, mentioned in the declaration, adjoin to each other; and the windows in question open into a court or passage(a) leading out of the High Pavement in the town and county of Nottingham. The defendant was the owner of premises very near, and in parts adjoining, the plaintiff's premises, and situate on the opposite side of the said court or passage. The defendant rebuilt, enlarged, and raised his premises shortly before the action was brought, and thereby darkened and obstructed the windows on the ground floor, first floor, and second floor of the premises in the occupation of the plaintiff's tenants: and the only question in dispute is as to the right to the windows in question.

[*115

The premises in the occupation of the plaintiff's tenants had been rebuilt about eighteen or nineteen years before the rebuilding of the defendant's premises; and none of the identical windows in respect of (a) See the judgment of the Court, p. 130, post.

which the action was brought had existed for twenty years before the obstruction complained of. In the premises which previously occupied the site of the plaintiff's present premises there was the same number of stories as in the present premises; and there were windows on the ground floor, first floor, and second floor, which had existed for a period considerably exceeding twenty years; but in rebuilding the plaintiff's premises some of the windows were enlarged, and the situations of others were changed; and no one of the present windows was in all respects identical in point of size and situation with any one of the previously existing old windows.

The defendant contended that by these alterations, the nature of which is hereafter specified, the ancient rights had been lost, and that no new rights had been acquired, in consequence of the period of enjoyment of the present windows falling short of twenty years; and that therefore he was entitled to a verdict upon the second plea, which denied the rights alleged in the declaration: and this is the point for the consideration of the Court.

The case then referred to a plan which, it was agreed, might be referred to by the Court, and on which were shown the premises in the occupation of plaintiff's tenants, and the windows now in question, all of which looked into the before-mentioned court, some to the North, some to the East, and two to the South. They *were numbered *116] on the plan, 1 to 12. Windows 1 to 7 were in premises occupied by Mr. Booth Eddison; 8 to 12 lighted a warehouse, counting-house, and premises in the occupation of Mr. George Shelton. The case stated that all were in a greater or less degree darkened and obstructed by the rebuilding and alteration of the defendant's premises. It then proceeded as follows.

When the premises occupied by Mr. Booth Eddison were rebuilt, the new building was made nine or ten feet higher than the old one, and the height of the rooms of all the floors was raised; and, as a consequence of this alteration, the windows in all the floors were all made and placed somewhat higher than they were in the old premises, and other changes were made as hereinafter particularly mentioned. On the ground floor, the window No. 1 was in exactly the same situation as an old window previously existing there, except that the new window was made about four inches narrower and about one foot higher than the old one. ith respect to the window No. 2, the wall in which it was made stood in the same situation as the present wall, but there were two windows previously lighting the room now lighted by No. 2. These old windows were narrower windows than the present window, and were separated from each other by about eighteen inches of wall. The present window occupies the situation of this intervening piece of wall, and a part of the situation of each of the old windows; but the outer sides of the old windows extended farther towards the North and

South respectively than the present window. The sill of the present window is at the same elevation from the ground as the sills of the former windows; but the top of the present window is about a foot higher than the top of the old windows. The room which is lighted. [*117 by No. 2 is now a breakfast parlour and library. In the old building it was used as a counting-house. With respect to the window No. 3, the wall in which it is placed stands in the same situation as the old wall; and the present window, to the extent of about one-third of its dimensions, occupies the same situation as part of an ancient window in the previous building: the sill is at the same elevation; but the top of the present window has been raised so as to be about a foot higher than the top of the old window in that situation: the space occupied by the remaining two-thirds of the present window was occupied by part of a brick wall in the old building. The room now lighted by this window is used as surgery. In the old premises there were two rooms in the same situation, a packing room and a pantry, each lighted by a separate window; and at the time of the alteration one of these old windows was stopped up. With respect to the windows Nos. 4, 5, 6, and 7, they occupy nearly the same positions as four ancient windows previously existing in the former premises; but, in consequence of the raising of the floors of the present building, the sills and tops of the present first floor windows are higher than those of the previous windows: but the greater portion of each of the present windows is in the same situation as the corresponding old window; and the use made of the rooms and places lighted by these windows is substantially the same in the new as it was in the old premises.

With respect to the windows to the plaintiff's warehouse and premises in the occupation of Mr. George Shelton, the windows numbered 8, 9, and 10 occupy nearly the same situations as three ancient windows. *previously existing in the former premises, except that, in con[*118 sequence of the floors having been raised in height, the sills and tops of the present windows are higher than the sills and tops of the old windows; but the greater portion of each of the present windows is in the same situation as the corresponding old window on the second floor; and the rooms lighted by the present and former windows were used for the same purposes. With respect to the remaining windows Nos. 11 and 12, which look down the yard towards the South, the wall and building in which these two windows are placed was, at the time of the rebuilding of the premises, raised and brought forward towards the South about eight feet beyond the situation of the old wall. The windows 11 and 12 were placed in the new wall so brought forward as aforesaid in pretty nearly the same situation, with respect to elevation, as two old windows in the same situation which previously lighted the staircase of the old building; but, in consequence of the wall and building in which the staircase stands having been so brought forward, no

part of the present windows occupies any part of the situation of the old staircase windows. And, in consequence of this part of the building having been brought forward, the windows of the warehouse and counting-house, Nos. 8, 9, and 10, and also the windows of Mr. Eddison's surgery and bedroom over it, Nos. 3 and 7, were deprived of some of the light which had previously been enjoyed by the windows that formerly stood in similar situations in the old premises.

The rebuilding of the plaintiff's premises was completed in or shortly after the month of October, 1831: and the several lights had been enjoyed in their altered *state without interruption until about the months of August and September, 1850, when the defendant's obstructions took place.

*119]

The question for the consideration of the Court is, Whether the plaintiff is entitled to recover damages in the present action in respect of the obstruction of all, or any, and which, of the windows in question; and the verdict is to be entered accordingly. The Court to have the power of determining any question of fact arising from the case, and which (but for this power) they might consider proper to be submitted to a jury. The pleadings to be referred to as part of the case.

The special case was argued in last Hilary term. (a)

G. Hayes, for the plaintiff.-As to the windows 11 and 12, which have been advanced in the form of a bow, no part of them coinciding with the former site, it must be admitted that Blanchard v. Bridges, 4 A. & E. 176 (E. C. L. R. vol. 31), is a decisive authority for the defendant. With respect to the other windows, which have been altered chiefly by elevating the upper part, in consequence of the raising of the plaintiff's house, but which, to a great extent, merely occupy the former site, the easement is modified, not extinguished. The principle, to be deduced from Luttrel's case, 4 Rep. 86 a, is, that an easement is not destroyed by alterations in the mode of enjoyment, which leave the substance of the thing enjoyed the same, and do not impose a greater burden upon those against whom the easement is claimed. And therefore, in the case of enlarged windows, the old apertures remaining, the *former *120] privilege continues as to them, though not as to new additions. In a case of Dougal v. Wilson, 2 Wms. Saund. 175 a, 6th ed., cited by Mr. Serjt. Williams in note (2), to Yard v. Ford, 2 Wms. Saund. 172, Wilmot, C. J., said: "If my possession of the house cannot be disturbed, shall I be disturbed in my lights? It would be absurd. But the action can only be maintained for damages so far as the lights originally extended, and not for an increase of light by enlarging the windows recently.” In Cotterell v. Griffiths, 4 Esp. N. P. C. 69, which was an action for obstructing window lights by erection of a paling, "the windows had never been completely open, but had had blinds fastened to the window

(a) January 27th, before Lord Campbell, C. J., Patteson and Wightman, Js.; and 28th, before Lord Campbell, C. J., Patteson, Coleridge, and Wightman, Js.

frames, which prevented the plaintiff from seeing into the defendant's garden, the blinds sloping upwards, and only serving for the admission of light" and the defence was, "that the plaintiff had thrown down those blinds, and thereby opened a full and uninterrupted view over the defendant's premises and thereby deprived him of the privacy and retirement of his garden." It was admitted that the paling made the plaintiff's rooms darker than they were before the blinds were removed; and Lord Kenyon thereupon held that the plaintiff was entitled to recover. That is a stronger case than the present. In Martin v. Goble, 1 Camp. 320, a malt-house had been converted into a parish workhouse; and, in an action for obstructing the lights, it was held that, notwithstanding this alteration, the premises were still entitled to as much light as was formerly enjoyed for the purposes of the malt-house. In Chandler v. Thompson, 3 Camp. 80, a small window in the plaintiff's house, overlooking the defendant's premises, was enlarged in height and width: the defendant erected a building which covered part of [*121 the old aperture but allowed more light to enter than had been enjoyed in the former state of the window. But Le Blanc, J., "was of opinion that the whole of the space occupied by the old window was privileged ; and that it was actionable to prevent the light and air from passing through this, as it had formerly done. That part of the new window which constituted the enlargement might be lawfully obstructed: but the plaintiff was entitled to the free admission of light and air through the remainder of the window, without reference to what he might derive from other sources." The first case in which it has been laid down "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," is Garritt v. Sharp, 3 A. & E. 325 (E. C. L. R. vol. 30); and there the circumstances were peculiar. The light had formerly been admitted through crevices in a barn, which the plaintiff had, by cutting, formed into windows. It was very doubtful whether the crevices had not been accidental, and, consequently, whether the enjoyment of light through them was any evidence that an easement had ever been granted to the plaintiff. In Thomas v. Thomas, 2 Cro. M. & R. 34,† S. C. 5 Tyr. 804, the plaintiff alleged a right to have the rain flow by a certain channel from the roof of his house to the premises of the defendants, which easement they had obstructed by building a wall on their ground: the defendants answered that the plaintiff had lately raised the wall from which the rain so descended, by an additional three feet: and it was argued that the exercise of an easement is an infringement upon the *right of another, and must be strictly pursued:" and that, here, [*122 "the alteration in the enjoyment of the right destroyed it, and the defendants were justified in building up their wall, as they would have been in case no easement whatever had existed." But the Court of Exchequer held that the plaintiff was entitled to recover. Alder