YATES v. JACK. CHANCERY, 1866. [Law Reports, 1 Chancery Appeals, 295.] THE plaintiffs in this case, G. B. Yates and H. G. Yates, were merchants carrying on an extensive business at a warehouse, No. 3 and 4, Lower East Smithfield, in the city of London, which was rebuilt by them in 1837, and had a frontage of twenty-nine, feet. The width of the street was twenty-five feet two inches, and the defendant, Charles Jack, was the owner of the land on the opposite side of the street, with a frontage of ninety feet, on which buildings formerly stood, some thirty-two feet high to the parapet, and some twenty feet. The defendant had lately pulled down these buildings, and proposed to erect others, set back six feet, but sixty-seven feet high, immediately opposite to and much wider than the frontage of the plaintiffs; and the plaintiffs filed this bill to restrain the defendant from obstructing their ancient lights. A great deal of evidence was entered into on both sides, in order to prove on behalf of the plaintiffs, that their warehouse would be materially darkened and that they would not be able to carry on their business so well, especially in judging samples; and on the part of the defendant, that no material injury would be done to the plaintiff, and particularly, that there would be ample light for the business carried on by them; and, in fact, that the screening off of the direct rays of the sun would be a positive advantage. The cause came before the Vice-Chancellor Wood, on motion for decree, and his Honor made a decree declaring that the plaintiffs were entitled to the free access of air and light to such an extent as would enable them to enjoy their messuage and warehouse for the purpose of their business without any material diminution of their former use and enjoyment. The plaintiffs appealed from this decree.1 LORD CRANWORTH, L. C. An attentive consideration of the evidence of the trade witnesses, on the one side and on the other has led me to the conclusion, as did the evidence of the architects, that the erection of the new buildings will materially interfere with the quantity of light necessary or desirable for the plaintiffs in the conduct of their business. I desire, however, not to be understood as saying that the plaintiffs would have no right to an injunction unless the obstruction of light were such as to be injurious to them in the trade in which they are now engaged. 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. Therefore, even if the evidence satisfied me, which it does not, that for the purpose of their 1 The statement of the case is curtailed, and a portion of the judgment omitted. present business a strong light is not necessary, and that the plaintiffs will still have sufficient light remaining, I should not think the defendant had established his defence unless he had shown that for whatever purpose the plaintiffs might wish to employ the light, there would be no material interference with it. I need not further investigate the evidence, but the result of it is to convince me that the new buildings proposed to be erected by the defendant cannot fail to inflict a serious injury on the plaintiffs by materially obstructing the light which they have heretofore enjoyed. The consequence is, that they are entitled to an injunction restraining the defendant from erecting any building so as to darken, injure, or obstruct any of the ancient lights of the plaintiffs as the same were enjoyed previously to the taking down by the defendant of his buildings on the opposite side of the street, and also from permitting to remain any buildings already erected, which will cause any such obstruction.1 NOTE ON EQUITY DECISIONS UPON QUESTIONS OF FACT, AS PRECEDENTS.2 LORD HALSBURY, L. C., COLLS v. HOME & COLONIAL STORES, [1904] A. C. 179, 184: "I think that the whole subject has been confused by certain decisions which were dependent on the facts proved, and were incautiously reported as laying down principles of law, when they were, in my view, only intended to be findings of fact in that particular case." LORD DAVEY, ibid., 201: 'It is an erroneous proceeding to deduce an absolute rule of law from the form of an order made in a particular case." BRETT, L. J., ECCLESIASTICAL COMMISSIONERS v. KINO, L. R. 14 Ch. D. 213, 225 (1880): "To my mind the taking some expression of a judge used in deciding a question of fact as to his own view of some one fact being material on a particular occasion, as laying down a rule of conduct for other judges in considering a similar state of facts in another case, is a false mode of treating authority. It appears to me that the view of a learned judge in a particular case as to the value of a particular piece of evidence is of no use to other judges who have to determine a similar question of fact in other cases where there may be many different circumstances to be taken into consideration." BELL, C. J., WASON v. SANBORN, 45 N. H. 169 (1862): "Wherever a 1 See Aynsley v. Glover, L. R. 18 Eq. 544, 548 (1874); Dicker v. Popham, 63 L. T. R. 379 (1890); White v. Tide Water Oil, 50 N. J. Eq. 1, 7 (1892). 2 The form of injunction granted in Yates v. Jack was much used and known as "the Yates v. Jack form," [1902], 1 Ch. 313; but in Colls v. Home & Colonial Stores, supra, 193, Lord Macnaghten said: "The common form of injunction which has been in use since the case of Yates v. Jack is not, I think, altogether free from objection." And Lord Lindley, 207, said: "This form is framed upon the supposition that the plaintiff has established his right to the amount of light which he, in fact, enjoyed before the obstruction complained of. But it by no means follows from the form that everyone is entitled to an injunction who can prove that he has been deprived of some of the light which he, in fact, had before it was interfered with. He may have had more than he can acquire a right to have preserved in future." fixed and certain rule can be established, it is immensely important that it should be. But there is a large class of cases and of questions, where the circumstances admit of so numerous variations, that no rule can be framed comprehensive enough to reach them. In such cases decisions must be made in the exercise of a sound judgment upon all the circumstances and such decisions can furnish rules for new cases, only where the same circumstances occur, yet there is a constant striving to treat them as precedents, and to regard the expressions used by the courts in stating the grounds of their decisions, and which are true perhaps in regard to the case in hand, as universally true. The effect of this in cases depending in courts of equity, is marked and bad." See also Willis, Negotiable Securities (3d ed.), 13.1 1 The authorities on easements generally are collected in Ames, 534-552, notes; 5 Pomeroy, c. xxv. See also 10 English Ruling Cases 311; 10 Colum. L. Rev. 355; and the valuable discussion of the relation of easements to nuisances in 9 Ill. L. Rev. 278. The following cases raise interesting points: Gregory v. Nelson, 41 Cal. 278, 289 (1871). Graves v. Smith, 87 Ala. 450 (1888). Battersea v. Commrs., [1895] 2 Ch. 708; 15 Can. L. T. 305. Cusack v. Myers, 178 N. W. 401 (Ia., 1920). Geohegan v. Henry, 55 Ir. L. T. R. 190 (1921, C. A.). SECTION IV. NUISANCE. The Early History of Nuisance in Chancery. Equitable relief against nuisances was perhaps a natural consequence of the existence of several forms of specific relief in the early law courts. See 2, supra; 16 Viner's Ab., sub "Nusance," passim. The first reported case in Chancery seems to be Osburne v. Barter, Choyce Ca. in Ch. 176 (1583). The defendant had erected a new mill and was turning the water-course from serving the plaintiff's mill; but because the plaintiff, after filing his bill, had brought an assize of nuisance at law, Bromley, C., dismissed the bill unless cause was shown. Cary, 28, written before 1650, recognizes the equitable jurisdiction as settled: "Where an action upon the case for a Nusans and damages only are to be recovered, the party may have help here to remove or restore the thing itself." Bush v. Western, Prec. in Ch. 530 (1720), before the Lords Commissioners Tracy, Pratt and Montagu, is the first reported case to grant relief. The defendant claimed the land through which a water-course ran, by virtue of a forfeited mortgage for one hundred years, which he had obtained a decree to foreclose. The bill was for a perpetual injunction to quiet the plaintiff's possession of the water-course, which the defendant had totally diverted. The plaintiff's title was fully proved. Though it was objected that the title should first be established at law, the court "decreed for the plaintiff, and agreed it usual to have such bills in the first instance in this court."1 Hardwicke mentioned the jurisdiction over nuisances in connection with trespasses, Coulson v. White, 3 Atk. 21 (1743), and the obstruction of light, Fishmongers' Co. v. East India Co., 1 Dick. 163 (1752). Temporary mandatory injunctions against interferences with water-courses were granted by Thurlow, Robinson v. Byron, 1 Bro. C. C. 588 (1785), and by Eldon, Lane v. Newdigate, 10 Ves. 192 (1804); but the following extracts show that these Chancellors were reluctant to grant equitable relief in less extreme cases. WELLER V. SMEATON, 1 Bro. Ch. 572 (1784). Bill stating the plaintiff's title and praying that he might be quieted by injunction in the possession 1 The court also overruled the further objection, that the remainderman (the mortgagor's heir) had not been joined as defendant in the bill. If the defendant wished the remainder-man to be a party, he should have shown who he was in the answer, and prayed to have him brought in, instead of insisting upon his own title under the foreclosed mortgage. On the difference between necessary and indispensable parties, see Story v. Livingston, 13 Pet. 359, 375 (1839); Keller v. Ashford, 133 U. S. 610, 626 (1890); Waterman v. Canal-La. Bank, 215 U. S. 33, 48 (1909). of his mill; that the defendant be ordered to pull down his floodgates and other works on the river above the mill; and be enjoined from building any other works. LORD THURLOW allowed a demurrer. "I take it to be a head of equity to interpose by way of injunction, when a party is erecting new works upon an old possession; but when the works have been permitted to remain three years, that it is considered as such a laches, as to preclude the party from having relief here, without going first to law. In this case, it has been put upon this ground, that it is within the equity of this court, to take, ex ab origine, a question whether or not a right is violated. . . . In no instance, except that of Bush v. Western, this court had ever interposed in a mere question of right between A. and B., they having an immediate opportunity of trying the right at law, which would be definitive. If, after trial, the party should begin again, and commit new trespasses, it is possible a case might be made to induce this court to impose by way of injunction, but merely when one party claims, and another denies a right, it is impossible for the court to entertain the bill." CROWDER V. TINKLER, 19 Ves. 617 (1816). The defendants were erecting a powder magazine two hundred yards away from the plaintiffs' paper mills. The bill alleged that the plaintiffs intended to proceed for abatement of the new building as a public nuisance, but alleged great and imminent danger to the property of the plaintiffs, and the lives of themselves, their families and workmen and the king's subjects on the highroad. A motion for an injunction against the storage of gunpowder in the building until answer or further order was granted ex parte by LORD ELDON, "upon the head, not of nuisance but of danger to property." The defendants moved to dissolve the injunction. ELDON said, "... Great caution is required in granting an injunction of this nature where the effect will be to stop a large concern in a lucrative trade. . . . If the subject was represented as a mere public nuisance, I could not interfere in this case, as the Attorney-General is not a party. . . . The complaint is therefore to be considered as of, not a public nuisance simply, but what, being so in its nature, is attended with extreme probability of irreparable injury to the property of the plaintiffs, including also danger to their existence; and on such a case, clearly established, I do not hesitate to say, an injunction would be granted. . . . The question is, whether upon all the affidavits the case is so clear that . . . I can sustain this injunction without putting the question in a course of trial; and, if there ought to be a trial, whether I ought to sustain the injunction in the interval, or taking pledges from the defendants, let it go on until the determination whether it is a public nuisance; as, if it is not, it cannot be made out to be injurious to the property of the plaintiffs; the consequences 1 Accord, that a demurrer is the proper way to raise the defenses of laches and the necessity or adequacy of a trial at law, Turpin v. Dennis, 139 Ill. 274 (1891); Varney v. Pope, 60 Me. 192 (1872); Coe v. Winnespisiogee, 37 N. H. 254 (1858). Contra, Sprague v. Rhodes, 4 R. I. 301 (1856); Kindersley, V. C., Soltau v. De Held, 2 Sim. N. S. 133, 151 (1851): “Now, it is true, that equity will only interfere, in case of nuisance, where the thing complained of is a nuisance at law; there is no such thing as an equitable nuisance: but it is no ground of demurrer that the matter has not been tried at law. It very often is a ground for refusing an injunction; but it is not ground of demurrer." AMES. |