tion of light and air the occupiers of private residences enjoying a right to window lights have hitherto been protected. And it may be remarked that throughout the case his Lordship seems to have regarded the claim in this instance to the right with disapproval. The question of what is such an interference with a person's comfort as to be an infringement of his legal right was carefully considered by Knight Bruce, V. C., in the case of Walter v. Selfe (i). That case was one of the pollution of air by brick-burning and the production of vapours in the process. The Vice-Chancellor said, "The question then arises, whether this is or will be an inconvenience to the occupier of the plaintiff's house as occupier of it,—a question which must, I think, be answered in the affirmative; though, whether to the extent of being noxious to human health, to animal health, or to vegetable health, I do not say nor deem it necessary to intimate an opinion; for it is with a private not a public nuisance that the defendant is charged. And both on principle and authority the important point next for decison may properly, I conceive, be thus put: ought this inconvenience to be considered in fact as more than fanciful, more than one of mere delicacy or fastidiousness, as an inconvenience materially interfering with the ordinary comfort physically of human existence, not merely according to elegant or dainty modes and habits of living, but according to plain and sober and simple notions. among the English people. "And I am of opinion that this point is against the defendant. As far as the human frame, in an average (i) 4 De G. & Sm. 322. state of health at least, is concerned, mere insalubrity, mere unwholesomeness, may possibly, as I have said, be out of the case; but the same may possibly be asserted of stied hogs, melting tallow, and other such inventions less sweet than useful. That does not decide the dispute; a smell may be sickening, though not in a medical sense. Ingredients may, I believe, be mixed with air of such a nature as to affect the palate disagreeably and offensively, though not unwholesomely. A man's body may be in a state of chronic discomfort, still retaining its health, and perhaps even suffer more annoyance from nauseous or fetid air from being in a hale condition. Nor, I repeat, do I think it incumbent on the plaintiffs to establish, that vegetable life or vegetable health, either universally or in particular instances, is noxiously affected by the contact of vapours and floating substances proceeding from burning bricks; for, as I have said, they have I think established, that the defendant's intended proceeding will if prosecuted abridge and diminish seriously and materially the ordinary comfort of existence to the occupier and inmates of the plaintiff's house, whatever their rank or station, whatever their age, whatever their state of health." It is conceived that these observations will, mutatis mutandis, equally apply to the question what is such interference with the access of light and air to our neighbour's windows as to infringe his right to window lights by diminishing the comfort of the dwellers in his house. It is true that the right, the question of the infringement of which the Vice-Chancellor was then discussing, was a natural right to property; while the right to window lights is an acquired right. But this difference applies to the origin of the rights, not to the quality of the respective rights when they have been called into existence. It is to be remembered that in the eye of the law it is the diminution of the value of the dominant tenement caused by the interference with the comfort of its inmates, and not the loss of the personal comfort of the inmates, that entitles the owner to his remedy (j). Two very important questions have been of late raised with regard to the extent of the right to window lights; the one relating to the comfort of the inmates of the dominant tenement, the other to the use of that tenement for business purposes; and neither of these can yet be considered as quite satisfactorily settled. The first question is, "Is there any difference in the amount of light and comfort to which the owner of a tenement in the country having a right to window lights is entitled, and that to which the owner of a tenement situate in a town having a similar right is entitled ? " No such difference was suggested until the recent case of Clarke v. Clark (k), before Lord Cranworth, C. There the plaintiff's house, for obstruction to the windows of which he filed his bill, was in the town of Bristol. The Chancellor, in delivering judgment, said, "The question is, whether there has been such a material interference with the light and air reaching the plaintiff's house as to cause material annoyance to those who occupy it. Questions on this subject and are therefore very difficult to deal with. All that can be done is to are questions of degree, (j) Vide Wilson v. Townend, 1 Dr. & Sm. 324. (k) L. R., 1 Ch. 16; 35 Law J. Rep., N. S., Ch. 151. attend to the special facts in every case as it arises, and then to form an opinion as to whether the obstruction complained of is such as to deprive the complaining party of such a supply of light and air as he might reasonably calculate on enjoying. "It is impossible to treat these as mere abstract questions. Much must turn on the nature and locality of the windows, the supply of light to which has been interfered with. Persons who live in towns, and more especially in large cities, cannot expect to enjoy continually the same unobstructed volumes of light and air as fall to the lot of those who live in the country. The steady spread of buildings in and round large towns gradually but surely obstructs some of the light and air which the houses in the interior of the place formerly enjoyed. And in estimating the damage, if any, occasioned to this plaintiff, we must not omit the consideration that the place in which he complains of obstruction to light and air is a large and populous city." In Durell v. Pritchard (1), Turner, L. J., said, "I fully agree in the observations of the Lord Chancellor in the late case of Clarke v. Clark." And in Robson v. Whittingham (m), the same judge said, "I must say for myself I am entirely satisfied with the Lord Chancellor's judgment in the case of Clarke v. Clark. I think these cases had been carried too far before the decision in Clarke v. Clark was pronounced." This concurrence of authority in favour of there being a distinction between houses in town and houses (7) L. R., 1 Ch. 251; 35 Law J. Rep., N. S., Ch. 226. in the country, as to the extent of the right of a dominant tenement to window lights, is very strong. But in the subsequent case of Yates v. Jack (n), Lord Cranworth, while regretting the effect of the abolition of local customs in derogation of this right, yet treated the right as being now, by the express enactment of the legislature, placed on the same footing in all localities, and decided the case without reference to the distinction drawn by him in Clarke v. Clark. His Lordship's words in this case were, "I cannot part with this case without saying that I have come to the conclusion at which I have arrived with great reluctance. It was stated at the bar, and I believe correctly stated, that up to the passing of the act 2 & 3 Will. 4, c. 71, there was a local custom in the city of London, according to which the owner of a house in any street was permitted to raise it to whatever height he might think fit. All such local customs were abolished by the act I have alluded to. I suppose, therefore, that the legislature thought the custom to be one which was productive of inconvenience. But considering that, assuming the existence of a custom, all persons who were owners of houses in narrow streets must have known when they purchased them to what liabilities they were exposed from the buildings of their opposite neighbours, I cannot but think the advantages derived from the custom probably exceeded its evils. The growing necessity for lofty buildings is shown by the great multiplication of them in all parts of the metropolis; and I cannot but fear that serious inconvenience may be felt by the abolition of the alleged custom, (n) L. R., 1 Ch. 299; 35 Law J. Rep., N. S., Ch. 544. |