ment does not take place under circumstances from which an intention of abandonment can be concluded, the effect of the erection of a new tenement in its place will be identical with the effect of alteration in the windows of a house entitled to ancient lights; that is, the restraint to which the owner of the servient tenement was subject previously to the destruction will continue without enlargement or diminution. It is true that Cherrington v. Abney (r) lays down that the lights must be "in the same place, and of the same dimensions, and not more in number than the lights of the old house;" but that can no longer be considered law. The remarks of Kindersley, V. C., in a case where the dominant tenement had been burnt down and then restored, are more to the point. "The question is, whether the windows of the house as it now stands are identically the same as the windows of the old house, which, it is not disputed, were ancient lights. The evidence on that point is not very direct; but the conclusion at which I have arrived is, that although the new windows differ somewhat in form, and perhaps very slightly in position, from the old windows, the area of the new windows is pretty nearly the same as that of the old ones.

"What then is the rule applicable to that state of things? When a house having ancient lights is burned or pulled down and rebuilt, and the question arises whether the character of ancient lights which belonged to the windows of the old house attaches to those of the new house, it appears to me that the principle to be applied to the solution of the question is, to inquire whether the new windows would impose on the servient

(") 2 Vern. 646.

tenement either an additional servitude to that to which it was subject when the old house existed, or a different servitude from that which previously existed. And it appears to me that it is not every trivial or immaterial change which would prevent the new windows from possessing the character of ancient lights possessed by the old windows. To deprive them of that character, the change must be material either in the nature or in the quantum of the servitude imposed” (s).

This case was decided a few days before Tapling v. Jones, and the principle already stated as that on which the last case is based is not expressly recognized by the Vice-Chancellor's judgment. But his Honor's language may be brought into harmony with that principle, by considering him, when he speaks of the change preventing the new windows from possessing the character of ancient lights, to mean, not that the servient tenement is relieved from the pre-existing restraint, but that obstruction of the new windows is not a conclusive proof of an infringement of that restraint.

SECTION II.

Of the Loss of the Right by Express Release.

In order that the right to window lights be extinguished by express release, a release under seal is requisite, as in the case of other incorporeal hereditaments (t).

(s) Curriers' Company v. Corbett, 2 Dr. & Sm. 358.

(t) "These expresse releases must of necessitie be by deed;" Co. Litt. 264b; Com. Dig. Release, A. 1.

It has been shown in the last section, that even at law, writings not under seal and parol declarations may be used as evidence of the intention of the owner of the dominant tenement to abandon his right. But in these cases the easement is extinguished, not by the release contained in the writing or the declaration, but by the abandonment thereby evidenced (u).

Courts of equity, however, when the owner of the dominant tenement has by his conduct induced the owner of the servient tenement to incur expense by using his land in a way infringing the restraint to which it is subject, will prevent the dominant owner then insisting on his legal rights so as to defeat the object for which this expense was incurred. The authorities before cited to show that easements, in the acquisition of which persons have been thus led to incur expense, will be protected against those who afterwards try to defeat them by setting up their legal title, are authorities on this point also (x).

On this principle, it is considered by courts of equity the duty of the owner of a tenement to inspect the plans offered for his inspection by the owner of the adjacent premises contemplating alterations thereof. And if he do not in any way signify his disapproval of such intended alterations, a case of acquiescence will be raised against him. But no such case of acquiescence will arise from his failing to inspect the plans, if the plans would not have informed him of the true nature of the contemplated alterations, and how the access of

(u) Winter v. Brockwell, 8 East, 308; Liggins v. Inge, 7 Bing.

682.

(x) Vide Dann v. Spurrier, 7 Ves. 231, and the other cases cited ante, p. 43.

light and air to his premises would be affected thereby; as, for instance, if they would not have shown to what height proposed walls would be carried (y).

And in a case before a court of law, it was considered a good equitable defence under the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, s. 83, that the plaintiff had consented to the construction of the offending building; it was also held a good answer to that defence, that the consent had been obtained by the false representations of the defendant (z).

SECTION III.

Of the Loss of the Right by Unity of Possession.

When the dominant and the servient tenement become the property of the same owner, the right to window lights, enjoyed by the one over the other, is extinguished. It, as is the case with all easements when the dominant and servient tenement come into the possession of the same owner, is merged in his general right of property to both tenements. He may retain the actual enjoyment thereof as a quasi-easement, but this has no legal existence so long as the two tenements both continue his property, though should he dispose of the quasi-dominant tenement for a valuable consideration, the quasi-easement actually enjoyed therewith will become clothed with the character of a legal right.

But in order that the unity of possession of the two tenements should have this effect, the owner in whom

(y) Dunball v. Walters, 12 L. T., N. S. 759.

(z) Davies v. Marshall, 31 Law J. Rep., N. S., C. P. 61.

they are united must have an equally high and perdurable estate in fee simple in the one as in the other, in the dominant as in the servient tenement. Otherwise the easement, though necessarily suspended so long as the union of ownership continues, is not extinguished, but revives on a severance of the ownership.

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Suspence commeth of suspendeo," says Lord Coke, " and in legall understanding is taken when a seignorie, rent, profit apprender, &c., by reason of the unitie of possession of the seignorie, rent, &c., and of the land out of which they came, are not in esse for a time, et tunc dormiunt, but may be revived or awaked. And they are said to be extinguished when they are gone for ever, et tunc moriuntur, and can never be revived; that is, when one man hath as high and perdurable estate in the one as in the other" (a).

In Simper v. Foley (b), Wood, V. C., said "I apprehend it is clear that the effect of an union of the ownership of dominant and servient tenements for different estates is not to extinguish an easement of this description, but merely to suspend it so long as the union of ownership continues; and that upon a severance of the ownership the easement revives."

The most striking instance of the application of the rule, that, to operate the extinguishment of an easement by unity of possession, the estates in the two tenements must be of an equally high and perdurable character, is found in the case of Rex v. Inhabitants of Hermitage (c).

(a) Co. Litt. 313a.

(b) 2 J. & H. 563; so Thomas v. Thomas, 2 C., M. & R. 41, per · Alderson, B.

(c) Carth. 239.