amount of personalty which might be disposed of by will, and of the disposition of the estates of intestates, seems to have been the old law of the land retained unaltered, after it had been modified in the rest of the country by a gradual alteration. And in each instance the custom has remained until swept away by statute (p). In Plummer v. Bentham (q), the recorder of London appeared at the bar of the King's Bench, and certified ore tenus that there was an ancient custom in the city of London that a person might increase the height of his house, or build upon its ancient foundations, though he thereby obstructed his neighbour's ancient lights, but that such custom did not extend to any erection or building. The custom was confined to cases where all the four walls of the old foundations belonged to the person claiming the benefit of the custom (r). In one case before the Prescription Act, it was (p) The limitations of the power of testamentary disposition by 2 Geo. I. c. 18, the peculiar disposition of the estates of intestates by 19 & 20 Vict. c. 94. It is curious that the same portions of the old law were retained as customs of the city of York, vide Bland v. Moseley, ubi supra, and Williams on Executors, 5th edit., Vol. I. p. 3, and Vol. II. p. 1374, et seq. (g) 1 Bur. 248. Such an event as this appearance of the recorder at the bar of this court, to certify, ore tenus, the custom of the city of London, had not occurred since the reign of Henry VI.; and a consultation was held in the city as to the costume in which their recorder ought to appear. It was finally settled that it ought to be "the purple cloth robe faced with black velvet; and not his scarlet gown, his black silk gown, nor the common bar gown." (r) Shadwell v. Hutchinson, 3 C. & P. 615, per Lord Tenterden, C. J. contended that, notwithstanding this custom, a grant of the right to window lights might be presumed from twenty years' enjoyment. But Sir Thomas Plumer, M. R., said, "It is rightly said that the presumption of a grant would exclude the custom; quilibet potest renunciare juri pro se introducto, and it is argued that possession for twenty years is equivalent to and affords presumption of a grant. I cannot accede to that argument; to admit it would be to abolish the custom, which could no longer be applicable to any case. The city would then be subject to the same rule as any other part of the kingdom. Before the expiration of twenty years, neither in the city nor elsewhere, could any right arise to prevent such obstruction of light; and if, after twenty years, the citizens of London were as much restrained as the inhabitants of every other part of the kingdom, what becomes of the custom? There is no ground therefore for presumption, from the acquiescence of one party, or the enjoyment of the other, without a written. title (s)." But in The Salters' Company v. Jay (t), it was decided that the custom of the city of London was no defence to an action for building so as to interfere with window lights enjoyed for the time and in the manner prescribed by the Prescription Act; and, indeed, that the words. in the third section referred expressly to this custom. Lord Denman once said of The Salters' Company v. Jay, "That case was not much considered. I myself thought there might have been more argument upon it (s) Wynstanley v. Lee, 2 Swan. 341. (t) 3 Q. B. 109. than there was. I suppose the city of London was not a party to it "(u). But, subsequently to these expressions of Lord Denman, the Court of Exchequer decided the same point as in The Salters' Company v. Jay, in the same manner as it was decided in that case (v). And Lord Cranworth in Yates v. Jack (w), and Vice-Chancellor Wood in Dent v. The Auction Mart Company (x), treat the point as settled. In a recent case it was suggested by counsel that the custom of London remained in force so far as it related to the access of air. But Turner, L. J., said that there was no evidence that the custom of London had applied to air as well as or distinct from light (y). Where, however, the claimant of the right is thrown back upon the doctrine of a grant implied from twenty years' enjoyment, the custom of the city of London may be used to resist his claim. For the act does not abolish the custom, but declares that the statutory right arises when the conditions thereof are fulfilled, notwithstanding the custom. In one case since the Prescription Act, it was attempted to establish a right to light and air by enjoyment for twenty years, although the claimant had no building in respect of which he claimed the right. The defendant, in justification of a trespass in knocking down a wall, pleaded that the wall obstructed the passage of light and air to his timber yard and saw-pit, and that he was entitled thereto for drying his timber. (u) Reg. v. Mayor of London, 13 Q. B. 1. (v) Truscott v. The Merchant Tailors' Company, 11 Ex. 855. (w) L. R. 1 Ch. 295; 35 Law J. Rep., N. S., Ch. 539. (x) L. R. 2 Eq, 238; 35 Law J. Rep., N. S., Ch. 555. (y) The Curriers' Company v. Corbett, 11 Jur., N. S. 719. Patteson, J., said, "In his opinion the plea could not be supported in point of law. If such a plea could be sustained, it would follow that a man might acquire an exclusive right to the light and air, not only (as heretofore) by having been suffered to build on the edge of his property, and suffered for a certain space of time to enjoy that building without interruption, but merely by reason of having been in the habit of laying a few boards on the ground to dry. Such a rule would be very inconvenient and very unjust. Still the question in that state of the proceedings was, whether the plea was proved in point of fact" (z). And as it was not so found, the point of law did not arise. Still the expressions of the eminent judge who tried the case are very strong against the goodness of the claim. Perhaps the possibility of establishing a claim to such a right may be illustrated by reference to the cases of claim to the free passage of air to a windmill, of which several are to be found in the books. In an old case Winch, J., said "That when one erected a house so high that wind was stopped from the windmills in Finsbury Fields, it was acknowledged that the house should be broken down" (a). And in another case, it was found "that but two feet of the defendant's house obstructed the plaintiff's mill; and judgment was given that these two feet should be abated" (b). But the claim does not seem to have been viewed favourably by the court. "For where the house was situate about eighty feet from the said mill, and in height it did extend above the top of the mill, (z) Roberts v. Macord, 1 Moo. & Rob. 230. (a) Anon., Winch's Rep. 3; Vin. Abr. Nuisance, G. pl. 19. and in length it was twelve yards from the mill; notwithstanding this nearness, the court directed the jury to find for the defendant " (c). In a late case before the Courts of Common Pleas and Exchequer Chamber, it was held, firstly, that such an easement as the free passage of air to the sails of a windmill is not within the second section of the Prescription Act, which is confined to easements to be exercised over the surface of the adjoining land. Secondly, that a presumption of a grant from twenty years' enjoyment will not arise, from the practical impossibility of preventing the exercise of the right claimed (d). The result of these cases seems to be, that this right of free passage of air to the sails of the mill is one known indeed to the English law; but one to which neither the doctrine of a grant implied from user for a certain number of years nor the terms of the Prescription Act will apply. And, therefore, it can only be claimed by prescription since the time of legal memory. The right claimed in Roberts v. Mucord probably rests on the same footing. The easement there claimed cannot be said to be exercised over the surface of the adjoining land more than that claimed in Webb v. Bird. And the words of the third section, to and for any dwelling-house, workshop, or other building, exclude it from the benefit of that section. And as there is no apparent sign by (c) Goodman v. Gore, God. 189. It may be remarked, that in this case a discussion arose as to the right form of pleading, and the clerk said that per quod ventus impeditur was the usual form. As this is the first case reported on the subject (10 Jac. 1), there must have been other precedents thereon, not now preserved. (d) Webb v. Bird, 10 C. B., N. S. 268; 13 C. B., N. S. 841. |