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an implied grant arises (g). This opinion is in great measure based on the rule of the French code as to the "destination du père de famille" (h).

It is conceived that neither of these opinions is consistent with English law; and that the authorities, especially some of more recent date than the last edition of Mr. Gale's work, warrant the division into two branches of cases of implied grant of the right, and disprove the opinion that such an implied grant arises

(g) Gale on Easements, 3rd edit. p. 82.

(h) The French law as to the "destination du père de famille " is as follows:-"On appelle destination du père de famille la disposition ou l'arrangement que le propriétaire de plusieurs fonds a fait, et souvent même, lorsque les choses sont fort anciennes, a laissé subsister pour leur usage respectif. Cet arrangement, d'après ce que nous venons de dire, doit être le résultat de signes permanents; sans cela on ne pourrait er enduire une volonté de créer une véritable assujetissement d'un fond envers un autre. Quelquefois un fonds tire avantage d'un autre, sans êtr réciproquement assujeti à quelque incommodité qui établisse une sorte de compensation; d'autres fois ce service est réciproque; mais ces différences ne changent rien à la nature et aux effets de cette distribution. Si, par la suite, ces fonds viennent à appartenir à différens maîtres, soit par l'aliénation, soit par la disposition qu'en fait le propriétaire, soit par un partage entre ses héritiers, le service que l'un tiroit de l'autre, qui étoit simple disposition du père de famille lorsque ils appartenoient au même, devient service une fois que les objets passent dans les mains de propriétaires différens. C'est une présomption que la loi déduit de l'intention probable des parties; mais commes toutes les présomptions de ce genre, elle n'a lieu qu'à défaut d'une volonté exprimée dans les titres, volonté qui pourroit être différent de ce que la loi présume."Pardessus. Traité des Servitudes, 1838, Vol. II. p. 119. The Code Civil contains the following article on the subject:-" Si le propriétaire de deux héritages entre lesquels il existe une signe apparente de servitude dispose de l'un des héritages, sans que le contrat contienne aucune convention relative à la servitude, elle continue d'exister activement ou passivement en faveur du fonds aliéné ou sur le fonds aliéné."- Code Civil, 694.

in all cases of the severance of two such tenements. We now proceed to investigate the authorities.

First, as to the cases in which the implied grant arises from the principle that a grantor cannot derogate from his grant.

The case of Palmer v. Fletcher (i) is the first leading authority on the point. The fullest, and apparently most accurate, report of the case is that in Levinz. From this it appears, that A., having built a house, let the house to B., and the rest of the ground to C., that C. obstructed the lights of the house, and that B. brought an action against him for so doing. Three points were raised and discussed:

(1.) A man builds a house on his own lands, and afterwards sells the house to one, and the land adjoining to another, who obstructed the lights. It was held that, although it be a new messuage, yet a person who claims the land by purchase from the builder cannot obstruct the lights any more than the builder himself could, who could not derogate from his own grant, for the lights are a necessary and essential part of the house. For, it is said in Siderfin, who speaks of the case as one between two lessees from the builder, "autrement serra in le poyar del lessor pur frustrate et avoid son grant demesne, car per son grant del meason les windows, gutters, &c., passer." This was held by Twisden and Wyndham, JJ., dubitante Kelynge, J.

(2.) Had the land been sold first, and the house afterwards, the vendor might stop the lights, per Kelynge, J., but Twisden, J., held that he could not stop them in any

case.

(i) 1 Sid. 167; 1 Lev. 122; 1 Keb. 553, €25, 794.

(3.) A stranger, having lands adjoining to a messuage newly erected, may stop the lights thereof; for the building of any man on his lands cannot hinder his neighbour doing what he will with his lands; otherwise, if the messuage had been ancient, so that he has gained a right in the lights by prescription. This was held by the whole court.

In Bowry v. Pope (k), the principle of the first point in Palmer v. Fletcher, that the grantor or one claiming under him cannot obstruct the access of light to the house sold, is assented to; though, as the defendant in that case was a stranger, the principle did not apply. And the same principle was enunciated in Cox v. Matthews (1), by Hale, C. J.

In Rosewell v. Pryor (m), Holt, J., said, "If a man have a vacant piece of ground, and build thereon, and that house has very good lights, and he lets this house to another; and after he builds upon a contiguous piece of ground, or lets the ground contiguous to another, who builds thereupon to the annoyance of the lights of the first house; the lessee of the first house shall have an action upon this case against such builder, &c., for the first house was granted to him with all the easements and delights then belonging to it."

And again it was said by the Court of Queen's Bench, "If a man build next to a vacant piece of ground of his own, and then sell the new house, keeping the ground in his own hands, he cannot build upon the waste ground so as to stop the lights of the house; for, by sale of the house, all the lights and all neces

(k) 1 Leon. 168.

(7) 1 Vent. 237, 239.
(m) 6 Mod. 116.

saries to make them useful pass; for by sale of the house, all the conveniences it has will pass; and as he himself cannot build to the prejudice of the new house sold, so cannot the lessee of the vacant ground do it: but if, in that case, he had sold the vacant ground without reserving the benefit of the lights, the court doubted in that case that vendee might build so as to stop the lights of his vendor, because he parted with the ground without reserving the benefit of the lights (n)." And in Pomfret v. Ricroft (o), it is stated as the result of the cases on the subject, "That no man can derogate from his own grant. Therefore, if I have a house with certain lights in it, and land adjoining, and I sell the house but keep the land, neither I, nor any one claiming under me, can obstruct the lights by building on the land; for by selling the house I sell the easement in the land also. So, semble, if I sell the land and keep the house, my vendee cannot obstruct the light by building on the land."

In Canham v. Fisk (p), Bayley, B., said, “If I have a house surrounded by my land, and sell the house, I sell the right to light from the windows. The sale of the house as it stands gives a right to the lights coming in at the windows, without necessity for twenty years possession of the easement."

In Coutts v. Gorham (q), it was decided that a tenant cannot obstruct the lights of a house demised by his lessor previously to his own lease.

(n) Tenant v. Goldwin, 6 Mod. 314 (vide also the cases there referred to); 1 Salk. 360; 2 Lord Raymond, 1089.

(0) 1 Wms. Saund. 323, note (1).

(p) 2 C. & J. 128; 2 Tyr. 157. The words quoted are taken from the latter report.

(7) 1 M. & M. 396.

And in a recent case before the House of Lords, in which the owner of two adjoining tenements granted one of them, it was held that anything which was used and was necessary for the comfortable enjoyment of the property which was granted, followed from the grant; and that certainly this was so if the conveyance contained the usual words (r).

And, lastly, in the case of Herz v. The Union Bank of London (s), in which the plaintiff had taken premises on which to carry on his trade as a diamond merchant, Stuart, V. C., said, "There appears to be no sound principle on which, when the demise of the house is to a person known to sustain such a character as that any diminution of the lights would disturb his enjoyment in that character, the reversioner can be allowed to withdraw or obstruct anything necessary to his enjoyment of the demised property in that character."

These authorities amply warrant the proposition, that when the owner of two properties, one of which under his ownership has enjoyed a continuous and apparent quasi easement (t) over the other, as the right to window lights, disposes of the window property which has enjoyed that quasi easement, there is at the same time an implied grant by him of the quasi easements which have been enjoyed therewith. So that if he parts with

(r) Ewart v. Cochrane, 7 Jur. N. S. 925. The case was Scotch, but it was stated that English and Scotch law was in this respect identical. It was followed and approved in Hall v. Lund, 1 N. R. 287; 9 Jur. N. S. 205.

(8) 2 Giff. 686; so, Jacomb v. Knight, 32 Law J. Rep. N. S., Ch. 601.

(t) This and similar terms, though barbarous, are of such great convenience that no apology for their introduction is necessary.

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