the defendant had consented to the plaintiff making a watercourse through his land, "upon condition of his being paid a proper and reasonable sum for his consent and permission.' The watercourse was made at the plaintiff's expense, but no grant was executed, and no sum agreed on. After the watercourse had been used for nine years, the defendant stopped it up. It was held, that the plaintiffs were entitled to the use of the watercourse; a perpetual injunction was granted to restrain the defendant from obstructing it, and it was referred to the Master to settle a proper deed, and to ascertain a proper compensation.

Another and an earlier instance is found in the Watercourse Case(z). "A. diverted a watercourse, which put B. to great expenses in laying of soughs, &c., and the diversion being a nuisance to B., he brought his action, but an injunction was decreed upon a bill instituted for that purpose, it being proved that B. did see the work when it was carrying on, and connived at it, without showing the least discouragement, but rather the contrary."

On another occasion, Lord Loughborough said, "There was a case, I do not know whether it came to a decree, against Mr. George Clavering, in which some person was carrying on a project of a colliery, and had made a shaft at a considerable expense. Mr. Clavering saw the thing going on, and in the execution of that plan it was very clear the colliery was not worth a farthing without a road over his ground; and when the work was begun, he said he would not give the road. The end of it was, he was made sensible,

(z) 2 Eq. Cas. Abr. 522, pl. 3.

I do not know whether by decree or not, that he was to give the road (a).

Other cases are reported to the same effect (b), but most in point are two recent decisions; the first is that in Davies v. Marshall (c). In that case a landlord had granted a lease of certain premises, together with the ancient lights appurtenant thereto, in consideration of certain improvements, one of which was the opening of certain new windows. The landlord subsequently let the adjoining land to another person, who proceeded to block up the lights of these premises. It was held, that the case did not stand only on a footing of ancient lights, and that neither the landlord himself nor any one claiming under him could block up these new windows. The second is that in Cotching v. Bassett (d); here the owner of a dominant tenement, in the course of rebuilding, altered the ancient lights. This was done after communication with the owner of the servient tenement, and with the knowledge of his surveyor, but without any express agreement. The court granted a perpetual injunction to restrain the servient owner from obstructing the lights as thus altered.

In the case of window lights, it is probable that mere tacit acquiescence would not bind the owner of the adjoining premises. For, in this case, the conduct of a man laying out money in the improvement of his

(a) Clavering's Case, cited 5 Ves. 690.

(b) Williams v. Earl of Jersey, Cr. & Ph. 91; Moreland v. Richardson, 22 Beav. 596; Powell v. Thomas, 6 Hare, 300; Duke of Beaufort v. Patrick, 17 Beav. 60; Somerset Coal Company v. Harcourt, 24 Beav. 571; 2 De G. & J. 596; Laird v. Birkenhead Railway Company, Johns. 500.

(c) 1 Dr. & Sm. 557.

(d) 32 Beav. 101; 32 Law J. Rep. N. S., Ch. 286.

premises is natural enough, without implying a promise from his neighbour not to interfere with these improvements; but no man in his senses would lay out money upon his neighbour's land, unless under the security of a promise that the neighbour would not exercise his power of frustrating the object of that expense.

To return to the acquisition of window lights by agreement at law. We have seen that the right must be created by deed, and that this deed must be in the form of a grant, in order that the obligation may be binding at law upon all future owners of the servient tenement, and to avoid the legal rule that the burthen of a covenant does not, except in cases between landlord and tenant, run with the land (e).

It must, however, be remembered that it is not necessary to use any particular form of words in order to constitute a grant. A deed, which is in form a covenant, may operate as a grant. This will be the case where, upon the instrument, an intention appears to confer a right which will affect the land of the covenantor, and the right intended to be conferred is one capable of being made the subject of a grant, as an

easement.

So, in a recent case in the House of Lords (f), it was held, that a covenant, that "all persons to whom certain minerals were allotted should not be subject to action for damage on account of damage done to the surface of the land by working the minerals," operated as a grant to such persons of a right to disturb the surface of the land, and therefore that the assignee of the covenantor could maintain no action on that ac

(e) Vide ante, Chap. I.

(f) Rowbotham v. Wilson, 8 H. L. Cas. 348.

count.

"It is undoubted," said Lord Wensleydale, "that no particular words are necessary to a grant; and any words which clearly show the intention to give an easement which is by law grantable are sufficient to effect that purpose. If the words could only be read as amounting to a covenant, it must be admitted that such a covenant would not affect the land in the hands of the assignee of the covenantor; but if they amount to a grant, the grant would be unquestionably good, and bind the subsequent owners of the surface."

Applying this principle to the case of window lights, it would seem that from a covenant by the owner of the adjoining land, that he would not in any way obstruct the access of light and air to the windows of his neighbour's tenement, would be implied a grant from him to his neighbour of the right to window lights over his land.

It is remarkable that, in practice, express grants of the right to window lights are not to be met with. This probably arises from the exceptional and negative character of the right, which consists wholly in a restraint of the natural powers of the adjoining owner to use his own land in whatever manner he pleases; and in the consequent difficulty of framing a proper form of grant for such a right. Partly also it no doubt arises from the comparatively small commercial value of such rights up to a recent date.

Express covenants to refrain from interfering with a neighbour's enjoyment of light and air are also rare. Their place has been supplied by covenants by a man to refrain from using his own land in some particular way; as for instance, that he will refrain from building on it, either wholly or in part, or above a certain height.

From such covenants the effect follows that the neighbour will enjoy his window lights uninterrupted; but such uninterrupted enjoyment is not stated by the covenant as the intended, nor is it the primary object thereof. Still, as the right to window lights is often secured by such covenants, it is necessary that their incidents should be discussed in this treatise. But as those incidents differ considerably from the incidents of the right to window lights properly so called, their discussion will be postponed to the fifth chapter, after the conclusion of the inquiry into the acquisition, extent, and loss of the ordinary right.

SECTION III.

Of the Acquisition of the Right by Implied Agreement.

This important mode of acquisition of the right falls into two divisions. In the first of these, there is an implied grant of the right to window lights, arising from the principle that a man cannot derogate from his grant. In the second, there is an implied grant of the right arising from the presumed intention of the person who was owner of two tenements, one of which enjoyed as quasi-easement over the other previously to their

severance.

Mr. Gale indeed is of opinion that really the latter principle is that on which an implied grant of the right is always based. And he is also of opinion that in every case in which two tenements, the one quasidominant the other quasi-servient, are separated, such