6 The latter said, "There is another form of words which is often found in the cases on this subject, namely, the phrase, invasion of privacy by opening windows.' That is not treated by the law as a wrong for which any remedy is given "(h). It follows that the builder of the house in question, however close it may be to his neighbour's land, however numerous its windows, is entitled to enjoy whatever light and air he can receive through its windows, and no one can complain of him for so doing (i). But the owner of the land adjoining to that on which the house has been built can deal with his plot also as he thinks fit. He, too, can build a house or put up a wall or screen, and this on the margin of his own property, close to the newly built house and newly opened windows. By so doing he may impede, or totally prevent, the access of light and air to his neighbour's premises; but this is no more an injury in the eye of the law than was the intrusion upon his privacy (j). (h) 11 H. L. Ca. 305; 34 Law J. Rep. N. S., C. B. 345. There are expressions to the contrary in Cherrington v. Abney, 2 Vern. 645; but they are unsupported by any other authority. (i) The French law is very different on this point. It forbids the owner of land to open windows (vues) overlooking his neighbour's premises, except he leave an interval of his own land to the extent of at least six feet if the window look directly, and two feet if it look laterally over the neighbour's ground. If the interval be less, only such openings (jours) are allowed as are at a height above the floor of the room to which they admit light and air sufficient to prevent any outward view. The provisions of the code in this behalf are exceedingly intricate and curious; Pardessus, Traité des Servitudes (1838), vol. I. p. 454, &c.; Code Civil, 675–680. (j) Jones v. Tapling, 12 C. B., N. S. 847; 31 Law J. Rep. N. S., C. B. 346, per Bramwell, B. It is plain from what has been said, that the builder of a house, if the site be so confined that the land of his neighbours adjoins the walls of his house on every side, cannot be certain of receiving an unobstructed supply of light and air in any other than a vertical direction. The uses to which his neighbours may put the portions of their land which abut upon his house may deprive the windows of his house of the lateral access of all light and air, and he is absolutely without remedy. It is, however, possible for it to become an unlawful act for the owner of land adjoining to a building to use it in such a way as to prevent the enjoyment of light and air by the dwellers in that building. In what ways he may lose, in this respect, his natural rights over his own property will form the subject of the second, and to what extent he will be restrained in the exercise of such rights the subject of the third chapter; at present the object of attention is the character of the restraint imposed on him. He has lost nothing which he has actually enjoyed up to this time, but he has become limited to a certain extent, in the eye of the law definable, in his power of using his land as he may think fit. He is limited in the exercise of this power precisely in the same manner and to the same extent (whatever that extent may be) as if he had covenanted with the owner of the building that he would do nothing whereby the access of light and air to the building would be impeded. It cannot be said that he has granted away anything of his, light and air are not the subjects of actual grant, but the law now implies a covenant by him not to interrupt the free access to the adjoining tenement of such an amount of light and air as the law considers necessary to the enjoyment thereof (k). But there is one very important difference between the effect of this covenant implied by the law, and that of a covenant made with the owner of a house by the owner of the land adjoining thereto. In either case the benefit of such a covenant would, on an assignment of the house, pass to the assignee. But it is a rule of English law that covenants entered into by owners of land will not pass with the land so as to bind the assignees of the covenantor, except in cases where the covenant is between landlord and tenant. The burthen of a covenant does not run with the land (1). Courts of equity may consider it binding on assignees who take the land with notice of the existence of the covenant (m); but even they will not enforce it upon one who has purchased the land without notice of the covenant, express or implied. But the burthen of this covenant, which the law implies, runs with the land: the benefit of it will attach to the house whoever may be its possessor, the burthen of it will attach to the land to whomsoever it may pass. This right to window lights, this right to the benefit of a covenant by the owner for the time being of the adjoining land that he will not obstruct the access of light and air to the adjoining house, is one of that class of rights known to the English law as easements. An easement is defined (n) as "a privilege without (k) Moore v. Rawson, 3 B. & C. 340, per Littledale, J. profit (o) which the owner of one neighbouring tenement hath of another, existing in respect of their several tenements, by which the servient owner is obliged to suffer, or not to do something on his own land, for the benefit of the dominant owner" (p). There must be two distinct tenements-the dominant, to which the right belongs, and the servient, on which the obligation is imposed-to constitute an easement, as the English law calls it having regard to the advantage of the dominant, a servitude, as the Roman and French law call it having regard to the burthen of the servient tenement (g). The principal division of easements is that into affirmative and negative. Affirmative oblige the owner of the servient tenement to suffer the commission of acts injurious to him; negative restrain him in some respect from the exercise of the natural rights of property. The right to window lights is evidently one of the latter class. A convenient division of servitudes in the French Code, often borrowed by our jurists in discussing the subject of easements, is that into continuous and discontinuous servitudes. Continuous servitudes are those of which the enjoyment is or may be perpetual without the necessity of any actual interference by man, as a watercourse, or right to light and air. Discontinuous servitudes are those the enjoyment of (0) I. e. a "profit à prendre," a participation in the profits of the neighbouring soil. (p) Termes de la Ley. Title, "Easements." (1) Servitude, however, is a wider term, including profits à prendre. which can be only had by the interference of man, as rights of way, or a right to draw water (r). The right to window lights is, as stated in the text of the Code, a continuous easement. An easement is an incorporeal right; and Lord Coke lays down "that a thing incorporeal cannot be appurtenant or appendant to another thing incorporeal” (s), so that an easement can only be claimed as accessory to a corporeal hereditament. This, however, is doubted by Mr. Hargrave (t), and by the editor of "Gale on Easements" (u), who consider that the true test of what things can be appurtenant to what is the propriety of the relation between the principal and the adjunct, which may be found out by considering whether they so agree in nature and quality as to be capable of union without any incongruity. However this may be, it is certain that this particular easement of the right to window lights can only be claimed as accessory to a tenement. With that tenement the easement is transferred; and when that tenement is permanently destroyed, the easement ceases to exist. In order to gain a complete notion of the character of this right or easement, it will be well to distinguish from it certain privileges, enjoyed by means of the (") Les servitudes sont ou continues, ou discontinues. Les servitudes continues sont celles dont l'usage est, ou peut être continuel, sans avoir besoin du fait actuel de l'homme. Les servitudes discontinues sont celles qui ont besoin du fait actuel de l'homme pour être exercées. -Code Civil, 688. (8) Co. Litt. 121b. (t) Note 7 to Co. Litt. 121b. (u) Gale on Easements, 3rd edit. 9. Mr. Gale himself appears to have been of Lord Coke's opinion. |