fendant's building will shut out, of course it must mean the area of sky which it will shut out more than the old building would shut out; because, of course, the new building is only responsible for the additional area of sky which it shuts out beyond what was shut out by the old building" (c).

In the same case, the Vice-Chancellor made the following valuable observations as to the mode of estimating the sky area:—

"In an ordinary window, that is, a window which is in a vertical frame, and which itself, of course, stands vertically, the quantity of area of sky, supposing there to be no impediment at all, is measured, of course, by 180 degrees horizontally, and 90 degrees vertically, because behind the zenith it can derive no light. If it were a horizontal skylight—a skylight perfectly level with the horizon-it would derive light, that is, light might come to it, from the whole vertical area of 90 degrees on one side, and 90 degrees on the other, making 180 degrees. If it is neither vertical nor horizontal, it will derive light from an area to be measured vertically having regard to the number of degrees that the slope of the building is from the perpendicular, because you must add that slope to the 90 degrees" (d).

The result of these observations seems to be, that, supposing there to be no impediment in any case,

The sky area of a vertical window is 180 degrees horizontally by 90 degrees vertically.

(c) Shone v. The City of London Real Property Company (Limited), May 8th, 1866. This important case is unfortunately not reported. The author is indebted to the kindness of Mr. H. F. Bristowe for the short-hand notes of the Vice-Chancellor's judgment.

(d) Ibid.

That of a horizontal skylight is 180 degrees in every direction.

That of a sloping window or skylight is horizontally 180 degrees in the direction to which it faces, and vertically the same number of degrees as are contained by its own angle with a base line, or, which is equivalent, 90 degrees in addition to the number of degrees by which its slope exceeds a right angle.

A vertical obstruction would be measured by the number of degrees contained by the angle which a line drawn from the window to the top of the obstruction would form with a base line; a horizontal obstruction, by the number of degrees which the lines drawn from the window to the lateral extremities of the obstruction would form with one another. There would be a difference according to the part of the window from which the lines were drawn; it would probably be fairest to take the centre of the window as their starting point in every case.

The production of a model of the premises will, of course, much assist the court; the Vice-Chancellor highly commended one produced to him in this case, so constructed as by a slight change to show either the former or the proposed height, shape, &c., of the defendant's buildings.

The amount of detriment occasioned to the plaintiff is found by simply subtracting the amount of obstruction to his window occasioned by the former building from the amount of obstruction which will be occasioned by the new building. What amount of obstruction the court will consider sufficient to call for its intervention must depend on the circumstances of each particular No general rule can be laid down on this head,

case.

but instances have been given in the last chapter of some obstructions which the court did or did not consider to require its interference. It must, however, be remembered that, as Kindersley, V. C., lately said, "We must take into consideration, not how much of the whole sky area the plaintiff has been deprived of, but how much has been taken of that which was left to him by the pre-existing obstruction" (e). And, as in the case before his Honor, an area of sky inconsiderable in itself may be large with reference to the space which was left for the access of light.

Stuart, V. C., in a recent case observed, "It is said that the quantum of injury is to be ascertained by the Metropolitan Building Act (ƒ), which practically establishes, that if a street be forty feet wide, and the buildings on each side forty feet high, any one desirous of raising his walls must increase their distance in the same proportion. In other words, the distance and height must be in the same proportions. That principle seems to me a very good one" (g). The rule suggested by his Honor is plain enough, and the effect would be that no part of the former sky area of the plaintiff's window would be allowed to be obstructed; but the author has not been able to discover the regulation alluded to in the Metropolitan Building Act.

If a jury be summoned to decide the question, they

(e) Martin v. Headon, 35 Law J. Rep., N. S., Ch. 605; L. R., 2 Eq. 431.

(f) 18 & 19 Vict. c. 122.

(g) Lyon v. Dillimore, 14 W. R. 511. See also Beadell v. Perry, 15 W. R. 120. "He (Stuart, V. C.) understood that rule to be, that the height to which a person might raise his premises must be in proportion as he receded the erection, e. g., if he raised his wall ten feet he must carry it back ten feet."

ought to judge rather from their own ocular observation than from the testimony of any witnesses, however respectable, of the degree of diminution which the plaintiff's ancient lights have undergone (h).

This circumstance seems to have induced Wood, V. C., to refuse to summon a jury in a case where the premises no longer existed in their original state. He said, "The benefit of a view, which was also pressed upon me, I think is a good deal exaggerated. If the jury could have had an opportunity of viewing the premises as they existed a year ago, and could be taken to view them as they exist now, the view might be very serviceable. But as it is, I confess I think that by the view the jury is exceedingly likely to be prejudiced; for when a jury view premises as they are, without the slightest knowledge of what they were before, they may be influenced by the remark which was pressed upon me, but which I think is of no value whatever, namely, why there are plenty of people in London who have not so much light as you have” (i).

In the case above referred to before Kindersley, V. C., an experiment was tried, while the defendant's intended buildings were still unfinished, as to what would be the diminution of light on the plaintiff's premises when those buildings were completed. Sackcloth was raised on poles to the height of the proposed new building, and then lowered to the level of the old. The defendant's agents, present in the plaintiff's premises at the time of the experiments, deposed that they were unable to tell the moment of the alteration. The Vice-Chancellor said

(h) Back v. Stacey, 2 C. & P. 466.

(i) Dent v. The Auction Mart Company, 35 Law J. Rep., N. S., Ch. 566; L. R., 2 Eq. 254.

this would have been a most satisfactory and conclusive experiment, had notice been given of it to the plaintiff, and had it been performed in his presence and that of scientific witnesses on both sides, and suggested its repetition under those conditions; but he said, that performed as it was, and not communicated to the plaintiff, an inference unfavourable to the defendants arose (j).

The 42nd section of the 15 & 16 Vict. c. 80, is as follows:-" It shall be lawful for the said court, or any judge thereof, in such ways as they may think fit, to obtain the assistance of accountants, merchants, engineers, actuaries or other scientific persons, the better to enable such court or judge to determine any matter at issue in any cause or proceeding, and to act upon the certificate of such persons."

In a late case, on a motion by the plaintiffs for an interlocutory injunction, the defendants made a cross motion for the appointment by the court under this section of some proper person to inspect the premises of the plaintiffs and the defendants, and to certify the state thereof, and what, if anything, ought to be done by the defendants in respect of the buildings intended to be erected by them, so as to preserve due access of light and air to the plaintiffs' premises, and otherwise to report upon the same as the court should direct. But Wood, V. C., refused the defendants' motion, saying,

(j) Shone v. The City of London Real Property Company, ubi supra. A discussion arose in this case as to what material ought to be used for such an experiment. The Vice-Chancellor observed that it was of as great importance that the material used should represent the colour of the intended building, as that it should be perfectly opaque. Of course one containing both qualities would be the best, as in that case, where the buildings were to be of a light colour, tarpauling covered with sackcloth.