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have been ground for a nonsuit, or a verdict for the defendant; but it was not so put at the trial. The only question, therefore, for our consideration, is, whether the plaintiff's reversionary interest might be injured by the acts alleged in this declaration to have been done by the defendant. It appears to me that it might. It is not denied that the erection of a wall across the way - assuming, of course, that there was no contract as between the tenant of the land and the defendant would be an injury to the reversion, although such wall might be pulled down before the plaintiff became entitled to the actual possession of the land; and I cannot doubt that there might be such a locking and chaining of a gate as would amount to as permanent an injury to the plaintiff's reversionary interest as the building of a wall. The meaning of the allegation, that, by means of the premises, the plaintiff was greatly injured in his reversionary estate and interest, is not that the injury follows as a consequence of law from what is previously stated, — like an allegation that J. S. was seised in fee, and that he died so seised, whereby J. T., his son and heir at law, became entitled, – but it is an allegation of a matter of fact, as was lately held in this court, in the case of Brown v. Mallett, 5 M. Gr. & S. 599, which is for the jury to find, or not, according to the evidence. I therefore think upon the whole, that the declaration is sutficient.

CRESSWELL, J. I have entertained a good deal of doubt during the progress of the argument; but I concur in the judgment which has been pronounced by my Brother Maule. Jackson v. Pesked decides that a declaration of this sort is insufficient unless it contain an averment that the acts charged injured the plaintiff's reversionary interest. That case, however, impliedly recognizes the validity of a declaration which contains such an averment, and states facts which may or may not amount to such injury of the reversion. Here, the declaration alleges certain things to have been done by the defendant, so as to occasion injury to the plaintiff's reversionary interest. I agree with my Brother Maule that that is an allegation of fact, and that we must take it to have been proved, if the facts stated could so operate. It is impossible to say that a gate may not be so fastened as to inure as an injury to the reversion.

Williams, J. I am of the same opinion. If in point of fact the obstruction complained of took place under such circumstances as not to occasion any permanent injury to the plaintiff's reversion, the judge ought to have directed the jury to find for the defendant. The learned judge, however, did not so direct the jury; and no complaint is made on that score. We must, therefore, assume such a state of facts to have been proved as might exist consistently with what is charged in this declaration as being an injury to the plaintiff's reversion. There is clearly no ground for arresting the judgment.

Rule discharged."

1 See Bell v. Midland R. Co., 10 C. B. N. S. 287.

QUEEN's Bench Division. 1878.

(Reported 3 Q. B. D. 178.] This was an action for obstruction of ancient lights. The case was tried before Cockburn, C. J., when it appeared that the plaintiff, as the owner of certain premises, was entitled by prescription to the access of light to certain windows in his premises. The defendant, by erecting a large building on the opposite side of the street, had sensibly diminished the light which found its way to the plaintiff's windows; but there was evidence to show that, the plaintiff's premises being used for the purpose of a cook's shop and coffee-house, and the windows that were darkened being those of rooms only used as bedrooms, the access of light was still quite sufficient for the purposes of the business then carried on. The defendant's counsel contended (inter alia) that the plaintiff pas, at any rate, only entitled to nominal damages, and that the plaintiff was not entitled to any damages in respect of the diminution, by Feason of the obstruction of light, of the value of the premises for any other purposes than that for which the plaintiff had actually been in the previous enjoyment of the light. The Lord Chief Justice, however, left it to the jury to say whether any sensible diminution of light to the plaintiff's premises had been occasioned by the erection of the defendant's premises, so as to make them less available either for the purposes of occupation or business to which they were then or might thereafter be made applicable. If so, he directed them that the plaintiff was entitled to the verdict; but if they should be of opinion that there was no probability that the premises would ever be applied to other than their present purpose, and that consequently there was not, practically, any diminution in their value, the damages should be nominal only. If the jury were of opinion that there had been any sensible diminution of light sufficient to lessen or interfere with the use of the premises, or any part of them, for the purpose of occupation or business, then the damages should be substantial, according to the estimate of the jury of the diminution in value of the premises.

The jury found a verdict for the plaintiff, damages £50.

An order nisi had been obtained for a new trial, on the ground that the above ruling amounted to a misdirection.

H. D. Greene and Lake, showed cause.
A. Staveley Hill, Q. C., supported the rule.

MANISTY, J. I am of opinion that this order should be discharged. The facts appear to be as follows. The plaintiff had a building with certain windows, through which the light passed, and this state of things had continued for such a period of time as to entitle the plaintiff to a


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servitude as against the defendant, the owner of the opposite premises, in respect of such passage of light. That servitude would appear to be the right to have the light flow in the same quantity as theretofore through such windows uninterfered with by the defendant. The defendant did interfere with the flow of such light injuriously, and it is admitted that thereupon a cause of action arose. The question is as to what may be the measure of damages in respect of such cause of action.

The Lord Chief Justice told the jury that they might take into consideration the character of the neighborhood, the use to which the plaintiff's buildings were then applied, and also the use to which they might in future be applied. He left it to them to say, considering all the elements of the case, whether the damages were substantial or merely nominal. The only doubt I have is, whether the direction was not too favorable to the defendant. It appears to me that the plaintiff was entitled to the same quantum of light as he had theretofore enjoyed, irrespective of the purpose for which he had enjoyed it. Take this case as an illustration. Suppose an upper room with a window through which the light had been accustomed to pass in a certain quantity and direction. It might be that for many years that room had been used as a bedroom, to which use the full amount of light which actually had passed through the window might not be essential. The owner afterwards lets the room to an artist, who makes a skylight. The light so admitted vertically, superadded to the light before admitted horizontally, makes the room an excellent one for the purposes of an artist's studio. Why should the owner of the servient tenement, who had for many years been allowing a certain amount of light to enter through the window, be entitled to object to the alteration of the purpose for which the light was used? It is really quite immaterial to him for what purpose the light is used. It cannot be, in my opinion, that the servitude is greater or less according to the use of the light which is made by the owner of the dominant tenement. It appears to me that the real question for the jury was what the diminution in value of the hereditament was by reason of the interference with the access of light, and to ascertain that, I think that they were entitled to take into consideration the matters indicated by my Lord's direction.

MELLOR, J. I am of the same opinion. It seems to me that the direction of my Lord to the jury was quite correct. With regard to the case of Martin v. Goble, 1 Camp. 320, I agree with the Master of the Rolls in Aynsley v. Glover, Law Rep. 18 Eq. 544; 10 Ch. 283, in thinking that the actual mode of occupation of the dominant tenement is not the test. I am, therefore, of opinion that the test applied by McDonald, C. B., in Martin v. Goble was not the correct test. It seems to me that the owner of the dominant tenement is entitled to all the light that has been accustomed to come througlı the particular aperture or window without challenge on the part of the owner of the servient tenement. How is the owner of the servient

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tenement concerned with, or how can he know anything about, the mode of occupation of the dominant tenement? In Lanfranchi v. Mackenzie, Law Rep. 4 Eq. 421, an injunction was claimed on the ground that the access of light had been so far diminished that the room could no longer be used as a sampling room. The injunction was refused on the ground that it was not shown that the room had been so used for twenty years ; and it is said that the Vice-Chancellor in that case approved of the views expressed in Martin v. Goble. I cannot agree with the ViceChancellor that the use of the room as a sampling room for twenty years would, in any other sense, have been material than as a test of the amount of light that had been accustomed to find access to the room during those years. The question what quantity of light actually obtained access through the window in respect of which the prescription is claimed is comparatively simple ; but to determine what the extent of the enjoyment had been, with reference to the purpose for which the dominant tenement had been used, would require very different evidence. The purpose might vary from time to time, and there would be great difficulty in ascertaining the quantum of enjoyment, tried by this test. The light in this case was in fact enjoyed for the purposes of a cook’s shop and coffee-house ; but the use of it for this purpose is not the measure of what the plaintiff is entitled to. It is found that there is an actual diminution of light, and so the defendant's counsel admits that there must be a verdict against him; but he complains of the damages. For the reasons I have given, I cannot think his complaint is well founded. I do not think the present actual condition of the premises is the measure of the amount of damage. In estimating the damages you ought not, in my opinion, to stereotype the existing condition of the premises, but to calculate the reasonable probabilities of a different application of them. The jury have estimated those probabilities, and have found a verdict for substantial damages. I have no doubt of the

accuracy of that verdict. COCKBURN, C.J. The real question appears to be what the servitude is to which the servient tenement is subjected. It is, in my opinion, the right to the admission of a certain quantity of light by reason of certain apertures through which the light has for a certain period been accustomed to obtain access. The question for what purpose the owner of the dominant tenement has thought fit to use that light, to my mind, has nothing to do with the matter. To look at the matter by the light of the actual experience of life: a man builds a house or other building and opens a window in it. Does the owner of the tenement which, if the use of the window continues, will become the servient tenement consider to what purpose the light will be applied? Assuredly not. I quite concur in thinking that Martin v. Goble was wrongly decicled. The matter, in my opinion, to be considered is, whether there is any diminution of light for any purpose for which the dominant tenement may be reasonably considered available. The rooms may now be used as bedrooms, a purpose which may not require so

much light as they actually had received ; but at any moment they may be put to some other purpose requiring the full amount of such light. With regard to the question of the measure of damages, I apprehend that it must be the diminution in the value of the premises by reason of the diminution of the light. The later authorities appear fully to bear out the view we now take. Lord Cranworth, in Yates v. Jack, Law Rep. 1 Ch. 295, at p. 298, says: “ The right conferred or recognized by the Statute 2 & 3 Wm. 4, c. 71, is an absolute indefeasible right to the enjoyment of the light, without reference to the purpose for which it has been used.” Vice-Chancellor Wood, in the subsequent case of Dent v. Auction Mart Co., Law Rep. 2 Eq. 238, took the same view; and the Master of the Rolls, in the case of Aynsley v. Glover, Law Rep. 18 Eq. 544, at p. 551, after reviewing all the authorities, says:

6. There fore I think it must be settled, or considered settled, at all events in a case where a reversioner is a party, that the mere change of use of a room will not deprive the party complaining of his right to the access of light; and conversely, that in considering the injury to the light the court is bound to consider that the room may be used for some other purpose than that for which it is used at the moment when the injunction is applied for.” Apply the principle so laid down to the case when the jury have to estimate the damages. It is clear they may consider future probabilities as to the use of the rooms. They may consider not only the actual present use of them, but any purpose to which it may reasonably be expected that in the future they may be applicable. It would be a great injustice to the owner of the dominant tenement if it were otherwise. For these reasons I think this order must be discharged.

Order discharged.

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(Reported Keilw. 98 b, pl. 4.] Note that FINEUX (C. J.] and BRUDENELL (J.], in the King's Bench, were of opinion that where I have a lower house and another has an upper house above my house, as they are here in London, in this case I can compel bim who has the upper house to cover his upper house so as to save the timbers of my house; and in the same manner he can compel

1 Jackson v. Newcastle, 33 L. J. Ch. 698 (1864), to the effect that an injunction to restrain an obstruction of light will not lie unless there is an actual use which is inter fered with, must be considered as overruled. Aynsley v. Glover, L. R. 18 Eq. 544, 548.

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