seems to me that much of what I consider the fallacy in reasoning of those from whom I differ consists in laying down as a premise that there is a right to obstruct the new window (which is true in the sense that it is not wrong to do acts otherwise lawful, though they have the effect of obstructing the window), and then reasoning upon it as if it were true in the sense that a fresh right was conferred, and therefore that acts, not otherwise lawful, became excused, if done in exercise of that right." Referring to the expressions previously used of material' prejudice to the owner of the servient tenement, substantial' variation, &c., the learned judge said, "I have some difficulty in understanding what is the meaning of the terms 'material,'' substantial,' or 'essential,' as applied to such a question. Any window will in the course of twenty years become privileged, and then the owner of the servient tenement will be under a restriction not to use his land in such a manner as to obstruct this window. That restriction is the same whether the window be great or small. It is very true that the amount of the annoyance to the occupier of the land which is overlooked, arising from the intrusion on his privacy, is very materially greater when the window is large; but the law does not protect the right to privacy, as it does that to light and air. I only desire to point out that the restriction on the use of the servient land consequent on the privilege acquired by a window depends on its situation, and is independent of its size "(n).

From the grounds of the decision of the House of Lords, it was not necessary for their Lordships to

(n) 12 C. B., N. S. 838.

express their opinion on the view taken by the court. below, that the obstruction might at first be lawful, but cease to be so on the restoration of the altered premises to their former state. However, Lord Westbury and Lord Chelmsford expressed themselves strongly against the correctness of this view.

The principle on which the decision in Tupling v. Jones is based, and which is perhaps most clearly expressed in the judgment of Mr. Justice Blackburn, is, that the power of the owner of the servient tenement to make such use of his own land as he pleases is already limited to a certain definite extent, and that this restraint is unaffected by any alterations of the dominant tenement. If new windows are opened looking over his ground which he cannot build so as to obstruct without infringing that restraint, he cannot obstruct them because of this pre-existing restraint, but no additional burden is thereby imposed on him. If he can build so as to obstruct them without infringing the previous restraint, he can still do so, until such time as they have themselves become privileged. In either case the previous restraint to its previous extent remains; nothing is added to it, and nothing diminished from it. The opinions expressed on the contrary were really based on the principle that privacy was a right acknowledged by the law, to this extent at least, that the further invasion of it released the owner of the servient tenement from the restraint to which he was previously liable. One important result certainly does follow from the alteration of the windows of the dominant tenement. Obstruction to the access of light and air to the altered windows is not a proof of infringement of the previous restraint imposed on the owner of

the servient tenement, if the windows be so altered as to be no longer identical with the ancient windows; and other evidence must be furnished of the infringement of the restraint. It is conceived, that a confusion of the continued existence of the test whether or not the restraint has been infringed, with the continued existence of the restraint itself, has not been without its effect in the decisions overruled by the House of Lords.

In Tapling v. Jones one ancient window remained unaltered. But Lord Chelmsford extends the principle of his decision to the case in which all the ancient windows are enlarged, though in whole or in part retained. "The appellants contend," said his Lordship, "that the owner of ancient lights is bound to keep himself within their original dimensions, and that if he changes or enlarges them in any way, although he retains the old openings in whole or in part, he must either be taken to have relinquished his old right, or to have lost it. But upon what principle can it be said that a person by endeavouring to extend a right can be said to have abandoned it, when so far from manifesting any such intention, he evinces his intention to retain it, and to acquire something beyond it? If under such circumstances abandonment of the right cannot be assumed, as little can it be said that it is a cause of forfeiture." (0)

The case in which new windows have been substituted for all the ancient windows, these entirely disappearing, has not yet received judicial decision. But it is conceived that the same principle will apply to this case also, and that the pre-existing restraint on the

(0) 11 H. L. Ca. 320; 34 Law J. Rep., N. S., C. P. 351.

owner of the servient tenement will remain unaffected by the change; that he will be able to build to the extent and in the places that he could before the alteration, but no farther, nor in any other places.

From what has been said with regard to abandonment and alteration, the effect of the destruction of the dominant tenement may be deduced. This destruction may take place either with or without the will of the owner. In the latter case the destruction is not even evidence of an intention to abandon the right, except it become so by the subsequent conduct of the owner, should he manifest an intention of not restoring the premises, as for instance, by leaving them unrestored for a considerable length of time. In the former case, the voluntary destruction of the tenement is a circumstance whence an intention to abandon the right may be presumed; but such a presumption may be rebutted by the owner doing some act to show his intention of restoring the premises. "I think, however," said Holroyd, J., "that the right acquired by the enjoyment of the light continued no longer than the existence of the thing itself in respect of which the party had the right of enjoyment, I mean the house with the windows; when the house and the windows were destroyed by his own act, the right which he had in respect of them was also extinguished. If, indeed, at the time when he pulled the house down, he had intimated his intention of rebuilding it, the right would not then have been destroyed with the house. If he had done some act to show that he intended to build another in its place, then the new house, when built, would in effect have been a continuation of the old house, and the rights

attached to the old house would have continued. If a man has a right of common attached to his mill, or a right of turbary to his house, if he pulls down the mill or the house, the right of common or of turbary will primâ facie cease. If he show an intention to build another mill or another house, his right continues. But if he pulls down the house or the mill without showing any intention to make a similar use of the land, and after a long period of time has elapsed, builds a house or mill corresponding to that which he pulls down, that is not the renovation of the old house or mill, but the creation of a new thing, and the rights which he had in respect of the old house or mill do not, in my opinion, attach to the new house. In this case, I think the building of a blank wall is a stronger circumstance to show that he had no intention to continue the enjoyment of light, than if he had merely pulled down the house. In that case he might have intended to substitute something in its place. Here, he does in fact substitute quite a different thing; a wall without windows" (p). And in the same case Littledale, J., said, “If a man pulls down a house and does not make any use of the land for two or three years, or converts it into tillage, I think he may be taken to have abandoned all intention of rebuilding the house; and, consequently, that his right to the light has ceased. But if he builds upon the same site, and places windows in the same spot, or does anything to show that he did not mean to convert the land to a different purpose, then his right would not cease" (q).

Assuming that the destruction of the dominant tene

(p) Moore v. Rawson, 3 B. & C. 337.

(1) S. C., 341.