SECTION III

DISTURBANCE OF EASEMENTS.

THE ATTORNEY-GENERAL v. NICHOL.

CHANCERY, 1809.

[16 Vesey, 338.]

THE object of this information1, filed at the relation of the Scottish Hospital, was to restrain the defendant from building up a certain wall, erection, or building, above the height of sixteen feet, and thereby obscuring and darkening the ancient lights of the Scottish Hospital.

An injunction was obtained on the 15th of July, without notice, upon affidavit and certificate of the information filed. The hospital is situated in Crane Court, Fleet Street; where the defendant occupies some adjoining premises, for the purpose of carrying on his business as a printer; the wall, which was the subject of complaint, being not opposite but at right angles with the hospital. The affidavits represented that the relators gave notice to the defendant not to raise the wall higher than sixteen feet; that notwithstanding that notice he proceeded and had carried it up to twenty feet; that the ancient windows of the hospital are by this wall darkened and obscured; and if it should be carried higher, they will be to a greater degree darkened and obscured; and so much as materially to affect the value of the premises. The relators had brought an action.

The writ of injunction was dated the 22d of July, and was served on the defendant on the 1st of September following, but the defendant was never served with any writ of subpoena to appear and answer the information.

Sir Samuel Romilly, at the second seal before the term, moved, upon notice, that the information might be dismissed, and the injunction dissolved, on the ground, that no subpoena had been served.

THE LORD CHANCELLOR [ELDON] appeared to think that the subpœna ought to have been served; but refused to dissolve the injunction; as in this case the party was misled as to the practice, and in fact the practice seemed to have been both ways.2

The motion for dissolving the injunction accordingly proceeded upon the merits.3

1 1 Dan. Ch. Pr. 2*; Story, Eq. Pleadings, § 8.

2 See Kinder v. Jones, supra, 38; Norway v. Rowe, 19 Ves. 144, 148 (1812). The later practice is shown by Lee v. Cargill, 10 N. J. Eq. 331 (1855). Cf. Parker v. Williams, 4 Paige 439 (1834); Seebor v. Hess, 5 Paige 85 (1835). 3 The plaintiff's objection to the defendant being heard on the merits on affidavit, or until he put in his answer, was overruled by Lord Eldon, as the relators, not having served the subpoena, should be considered as having

THE LORD CHANCELLOR. With regard to the jurisdiction of this court many of the circumstances, that have been pressed in the argument, lay no foundation for it. Cases may exist, upon which this court could not interfere, yet an action upon the case might be very well maintained. The wall between a man and his neighbor may belong to the one, both in respect of property and the obligation to repair, and yet the other might support an action on the case for making a window in it, or for raising the wall; but the consequence does not follow that a court of equity has any jurisdiction. The foundation of this jurisdiction, interfering by injunc

waived their right to an answer." So much of the report as relates to this point is omitted. AMES. For recent instances of the disposal of the whole case upon motion to dissolve a temporary injunction, see Goddard v. Chicago & N. W., 202 Ill. 362 (1903); McClintock v. Parish, 180 Pac. 689 (Okla. 1919). 1 Accord, Westbury, C., in Jackson v. Newcastle, 3 D. J. & S. 275, 283 (1864).

In Dent v. Auction Mart, L. R. 2 Eq. 238, 245 (1866), Wood, V. C., pointed out that, by Back v. Stacey, 2 C. & P. 465 (1826), to give a right of action at law there must be "a substantial privation of light"; and after referring to Eldon and Westbury, stated his own conclusion: "Where substantial damages would be given at law, as distinguished from some small sum of £5, £10, or £20, this court will interpose; and on this ground, that it cannot be contended that those who are minded to erect a building that will inflict an injury upon their neighbor have a right to purchase him out without any Act of Parliament for that purpose having been obtained. It appears to me it cannot safely be held that this court will allow parties so to exercise the rights which they may have in their soil as to inflict an injury on their neighbor, if the neighbor is unwilling to take any compensation; or even though he be willing to take compensation, if he is not ready to submit to the valuation of a jury, but insists on his own right to determine what the value of his property is. I may suggest a case in which the court would probably not interfere (not merely when the right is of short duration, for I have interfered in cases of very short duration with reference to the obstruction of light), but where the whole of the property is about to cease immediately as, for instance, in the case of notice given under a Railway Act to take a house, when the house is about to be destroyed and razed to the ground in two or three days' time. That is one of the cases in which damages might be given at law, and yet this court would not think it right to interfere."

In Aynsley v. Glover, L. R. 18 Eq. 544, 552 (1874), Jessel, M. R., declared Jackson v. Newcastle not to be law. A substantial darkening is necessary to constitute a tort at law since Back v. Stacey, though perhaps not before. "If that is necessary to get damages at law, those are the very circumstances which entitle the plaintiff to an injunction in equity, subject to this, that the damages must be substantial, though one can hardly conceive a case in which... the tenant in possession would not get substantial damages. The only case in which I conceive there would be damages not substantial would be the case of a reversioner who would not sustain any immediate damage, and who might bring an action to try the right."

Leech v. Schweder, L. R. 9 Ch. App. 463, 476 (1874), Mellish, L. J.: "Practically, in my opinion there is no difference with respect to light in the amount of damage which would entitle a person to maintain an action at law and that which would entitle him to file a bill in equity. . . . I am most unwilling to make a difference between law and equity when I do not find it exist."

tion, is that head of mischief, alluded to by Lord Hardwicke, Fishmongers' Company v. East India Company, 1 Dick. 164, that sort of material injury to the comfort of the existence of those who dwell in the neighboring house, requiring the application of a power to prevent, as well as remedy, an evil, for which damages more or less would be given in an action at law. The position of the building, whether opposite, at right angles, or oblique, is not material. The question is, whether the effect is such an obstruction as the party has no right to erect, and cannot erect without those mischievous consequences, which upon equitable principles should be not only compensated by damages, but prevented by injunction. Assuming, therefore, that from circumstances of enjoyment, usage, or interest, some contract could be implied, that this defendant should not build upon the premises he occupies, to the east of the hospital, and that an action on the case could be maintained upon that ground, that would not induce this court to interpose by injunction; unless the consequences of the act, which may be represented as illegal, being a violation of contract, express or implied, appeared to be such as should be, not merely redressed, but prevented by application of the peculiar means of this court.

I repeat the observation of Lord Hardwicke, that a diminution of the value of the premises is not a ground; and there is as little doubt, that this court will not interpose upon every degree of darkening ancient lights and windows. There are many obvious cases of new buildings, darkening those opposite to them, but not in such a degree that an injunction could be maintained, or an action upon the case; which, however, might be maintained in many cases, which would not support an injunction. These affidavits, therefore, stating only that the ancient lights will be darkened, but not that they will be darkened in a sufficient degree for this purpose, will not do. Farther, the affidavits and the information regard

See also Johnson v. Wyatt, 33 L. J. Ch. 394, 397 (1863); Colls v. Home & Colonial Stores, [1904] A. C. 179; Hudson & Inman, Light and Air (2nd ed.), 56 ff.; F. R. Y. Radcliffe: 'The Easement of Light and Air, and its Limitations under English Law," 24 L. Q. R. 120, 247.

Although easements of light and air cannot be acquired by prescription in this country, they may arise by grant or contract. Tidd v. Associates, 238 Mass. 421 (1921). The problem of the principal case extends to all kinds of easements. The American cases are collected in 5 Pomeroy, §§ 1957-1962. In Newell v. Sass, 142 Ill. 104, 116 (1892), Scholfield, J., quoted a muchcited passage in 2 Elliott, Roads and Streets (3d ed.) § 850: "The fact that no actual damages can be proved, so that in an action at law the jury could award nominal damages only, often furnishes the very best reason why a court of equity should interfere in cases where the nuisance is a continuous one."

Keplinger v. Woolsey, 4 Neb. Un. 282 (1903), Oldham, C.: "Where the facts are of such a nature as to render the measure of damages speculative and impossible to ascertain with any degree of certainty, equitable relief is seldom denied and injunction is uniformly held to be a proper remedy to protect against an interference with the enjoyment of an easement."

only the case of a perpendicular building, with a wall twenty feet high, which might have an effect so injurious, that it would be restrained; though a lower elevation, with a sloping roof, would let in so much light, that the interposition of this court would not be justified, and upon the proposal, now made, limiting the wall to sixteen feet, I have no rule for determining to what elevation under twenty feet it may be carried without any injurious effect. Considering also the particular circumstances in which the defendant is represented as standing with reference to his business, and that they have got so near a decision, which I should be very unwilling by my interference to retard, I will dissolve this injunction; the defendant undertaking, if upon the trial, promptly had, the verdict shall be against him, to remove such building as shall be proved in a material and improper degree affecting these ancient lights. The defendant gave the undertaking accordingly.

WILSON v. TOWNEND.

CHANCERY, 1860.

[1 Drewry and Smale, 324.]

THIS was a motion for an injunction to restrain the defendant from proceeding with the erection of an addition at the rear of his house, No. 6 Eastern Terrace, Brighton, so as to interfere with the access of light and air to the plaintiffs' houses, Nos. 5 and 7, in the same terrace.*

THE VICE-CHANCELLOR [KINDERSLEY]. In this case I reserved my opinion upon two points, which were raised by the defendant. The first point is this: the defendant insists that, although the plaintiffs might be entitled to the assistance of the court in respect of the nuisance if the plaintiffs themselves occupied the house, and so the nuisance affected their personal comfort and convenience, yet it appeared, on the face of the bill, that it was not the intention of the plaintiffs to occupy their houses or either of them, and that they had purchased the property merely as an investment; and it was contended that therefore the court ought not to interfere, inasmuch as the only injury the plaintiffs could sustain was diminution of the value of their property, for which compensation could be recovered at law. Now I confess, when that objection was started, I was at first much impressed by it; and at one time the inclination of my opinion was in favor of the objection. No doubt the origin. of the jurisdiction in cases where the assistance of this court is asked for protection against a nuisance, and where the nature of the nuisance is the blocking up the passage of the light into ancient windows, is the interference with the personal comfort and convenience of the persons occupying the house which has those ancient lights. Upon further consideration, I am of the opinion that the objection ought not to prevail.

If the objection were allowed to prevail in such a case as the present, it must equally prevail in the most extreme case. Suppose it happened that the plaintiff's house, in which he did not himself reside, stood upon the very verge of his own ground; and the defendant, whose ground came up to the very wall of the plaintiff's house, built a dead wall within six inches from the whole of the plaintiff's windows, and so completely blocked up all his lights, I confess I should feel very great difficulty in saying, in such a case, that this court would tell him to go to law and get damages, and refuse to interfere itself. But further, I do not see how the line could be drawn so as to distinguish those cases in which the party complaining has acquired the house, not then intending to reside in it himself, and those cases in which he may intend to reside in it. A person may buy a house, not at the time intending to reside in it, but his then intention would not prevent him, at any time afterwards, making it his own personal residence. A man may buy a house which has a lease upon it, and therefore he cannot become the occupant till the lease expires. He may, perhaps, not have any present intention of afterwards occupying the house; but how can I say, in such a case, that, because there is no present interference with his personal comfort and enjoyment, he is not to have that remedy which the court gives in cases of nuisance, when it may be that he may afterwards reside in the house? He may induce the tenant to give up his lease, and he may himself become the occupant. Further, I find that, of the two plaintiffs who are tenants in common of this property, it is only one of them (Mr. Wilson) who has expressed any intention on the subject. The other tenant in common, Mr. Stoddart, has not intimated any such intention, and, for aught I know, there may be at any time an arrangement between the plaintiffs for either of them to take one of the houses to reside in, and, for aught I know, it may be Mr. Stoddart's present intention to make such an arrangement to occupy the house. When the court has once established the doctrine that it will interfere to protect the legal right, you cannot inquire particularly whether the party who complains does or does not mean at any subsequent time himself to be the occupier. And in a great number of cases this court does interfere to prevent an injury in respect of a legal right, simply on the ground of the damage which may be produced to property; and I think that I ought not to allow this objection to prevail.1

1 The plaintiff, having enlarged some of the ancient lights and made new ones, the defendant claimed the right to prevent the acquisition of a right to the new and altered windows, even though to do so he must obstruct the ancient lights. The Vice Chancellor thought it expedient to refer the decision of this point to a court of law. The law was afterwards settled against the defendant's contention by Tapling v. Jones, 11 H. L. C. 290 (1865). AMES. See other cases in Ames, 541 n.

A right of way to vacant land will be protected by injunction. Collins v. Buffalo Furnace Co., 73 N. Y. App. Div. 22 (1902).