As then the possessor of ancient lights cannot abate a house which obstructs these lights, except he have certain information that no one is within the house; and as he cannot abate the house whilst still in progress on the ground that it will obstruct his lights when completed, his remedy by abatement is not of much practical use in this, the much most common, case of obstruction. Indeed, at the present time, we may apply to the abatement of a private nuisance what Lord Hale says of the abatement of a public nuisance; " because this many times occasions tumults and disorders, the best way to reform public nuisances is by the ordinary courts of justice" (l).

SECTION II.

Of the Remedy by Action at Law.

An action at law was always a concurrent remedy with that by abatement for injury to the right to window lights; and when the remedy by abatement fell into desuetude from the causes mentioned in the last section, the action became and long continued the principal remedy for an injury to the right. The ancient forms of action employed in this behalf were those known as "quod permittat prosternere," and assize of nuisance; but these had become obsolete long before they were abolished by the 3 & 4 Will. 4, c. 27, s. 36. The

edification, car nemo tenetur divinare." Croke's remark is best given in Rolle's Reports, 394. "Si les rames de vostre arbre excresce en mon terre, jeo poio eux succider, mes jeo ne poio justifier le succider de eux devant ils excresce en mon terre par timor del' excrescer."

(1) Hale De Portibus Maris, Chap. VII., in Hargrave's Law Tracts, vol. I. p. 88.

action now directly applicable to the redress of such an injury is the action on the case (m), but, since the Common Law Procedure Act of 1852 (15 & 16 Vict. c. 76), the learning on the subject of the appropriate forms of action may be considered to have become practically unimportant.

In an action for injury to the right to window lights, as in one for the disturbance of other easements, the party in possession may sue for the disturbance of his enjoyment, however temporary its character (n), and the reversioner may also sue if the injury be of a permanent character and detrimental to the inheritance (o). The actions are independent the one of the other, and both tenant and reversioner are respectively entitled to damages for the injuries respectively inflicted on them by the same act. To enable the reversioner to bring an action, the injury must be of a permanent nature; but it will be considered to be so, if it be such as may possibly be detrimental to the reversioner's title, or afford evidence against the existence of the right (p). And a declaration will not be held bad on demurrer, if it allege an obstruction, which at the trial may or may not turn out to be injurious to the reversion (q).

(m) Wells v. Ody, 1 M. & W. 452.

(n) There would appear to be no reason why a tenant at will may not maintain such an action; and that he may do so has been decided in America. Foley v. Wyeth, 2 Allen, 135.

(0) Com. Dig., Action upon the Case for a Nuisance, B.; Pomfret v. Ricroft, 1 Wms. Saund. 322e; Bedingfield v. Onslow, 3 Lev. 209. (p) Shadwell v. Hutchinson, M. & M. 350; 2 B. & Ad. 97; Jesser v. Gifford, 4 Bur. 2141; Hopwood v. Schofield, 2 M. & R. 34; Metropolitan Association v. Petch, 27 Law J. Rep., N. S., C. P. 330; Bower v. Hill, 1 Bing. N. C. 555.

(q) Metropolitan Association v. Petch, ubi supra.

The continuance of that which was originally a nuisance is, in fact, a new nuisance; and repeated actions may be brought either by the tenant in possession or by the reversioner, so long as the obstruction continues (r). "If the erection in the first instance was an injury to the reversion on any ground on which it can be put, the continuance must be so likewise” (s).

Indeed before the passing of the Common Law Procedure Act of 1854 (17 & 18 Vict. c. 125), such repeated actions were the only mode by which the plaintiff could in a court of law compel the abatement of the nuisance. In consequence of this power of bringing fresh actions, it was held by the Court of Common Pleas that it was not permissible for the reversioner in his first action to produce evidence of the diminution of the saleable value of the premises arising from the nuisance; but that his first action should be for nominal damages to establish the right, and subsequent actions for substantial or vindictive. damages (t).

The action may be brought either against him who erects the nuisance, or against him who continues it when erected (u). It is however laid down in Penruddock's Case (x), that request must be made to an alienee

(r) Holmes v. Wilson, 10 Ad. & E. 503; Thompson v. Gibson,7 M. & W. 456; 10 Law J. Rep., N. S., Exc. 330; Bowyer v. Cook, 4 C. B. 236; 16 Law J. Rep., N. S., C. P. 177; Battishill v. Reed, 25 Law J. Rep., N. S., C. P. 290.

(s) Shadwell v. Hutchinson, 2 B. & Ad. 98.

(t) Battishill v. Reed, 25 Law J. Rep., N. S., C. P. 290; Shadwell v. Hutchinson, 2 B. & Ad. 97.

(u) Rosewell v. Prior, 2 Salk. 460.

(x) 5 Rep. 101a. A similar point with regard to abatement was mentioned in the last section.

continuing a nuisance which he has not commenced, before a "quod permittat" lies against him; and from Jones v. Williams (y), it would seem that the omission to allege such notice in the declaration would be a ground for a demurrer.

If the owner of premises erect an obstruction to his neighbour's ancient lights, and then demise his premises in that condition, he is liable if the obstruction is continued by his tenant (z).

The liability of a purchaser of the reversion for a nuisance committed during the tenancy is concisely stated by Littledale, J. If a nuisance be created, and a man purchase the premises with the nuisance upon them, though there be a demise for a term at the time of the purchase, so that the purchaser has no opportunity of removing the nuisance, yet by purchasing the reversion he makes himself liable for the nuisance. But if, after the reversion is purchased, the nuisance be erected by the occupier, the reversioner incurs no liability yet in such a case, if there were only a tenancy from year to year for any short period, and the landlord chose to renew the tenancy after the tenant had erected the nuisance, that would make the landlord liable. He is not to let the land with the nuisance upon it (a).

The rule with regard to the respective liabilities of contractors and employers for a nuisance caused in the

(y) 11 M. & W. 176.

(z) Rosewell v. Prior, 2 Salk. 460.

(a) Rex v. Pedley, 1 Ad. & E. 827; 3 N. & M. 631; 3 Law J. Rep., N. S., M. C. 121. This judgment was affirmed in Rich v. Basterfield, 4 C. B. 804; 16 Law J. Rep., N. S., C. P. 278; and in Gandy v. Jubber, 33 Law J. Rep., N. S., Q. B. 151.

execution of the work contracted for, appears to be as follows. When the nuisance is caused by the default or negligence of the contractor in executing the work, the contractor is the party liable; but when the nuisance is the direct and natural consequence of the work contracted for, the employer is so (b).

It would be out of place in this treatise to enter into a disquisition on the forms of pleading in actions at law; all necessary precedents, and all information required will be found in Messrs. Bullen and Leake's valuable work on Pleading (c). But the effect of two provisions in the Common Law Procedure Act of 1854, by which a jurisdiction previously confined to courts of equity was bestowed on courts of law, will be briefly noticed here. These are the powers to receive equitable defences, and to grant injunctions in certain cases.

The Common Law Procedure Act, 1854 (17 & 18 Vict. c. 125), enables the defendant in any case, in which he would be entitled to relief against a judgment on equitable grounds, to plead the facts which entitle him to such relief by way of defence; and also enables the plaintiff to reply facts which would in equity avoid the plea (d). The courts of law have laid down and steadily adhered to the following rule in the application of these sections, that a plea on equitable grounds can

(b) Gray v. Pullen, 32 Law J. Rep., N. S., Q. B. 169; Ellis v. Gas Consumers' Company, 2 E. & B. 767; Bullen and Leake on Pleading, 2nd edit. p. 313.

(c) Vide pp. 301, 302, for counts in actions for obstruction to lights; pp. 338-340, for counts in actions for injuries to the reversion; p. 366, for the statement of right in the declaration, and the effect of the 5th section of the Prescription Act; pp. 629, 630, for pleas in action for obstruction to light.

(d) Sections 83-86.