assuming that I am correctly informed as to its existence prior to the statute. With all this, however, sitting here to administer the law, I have no concern." In a previous case Wood, V. C., had used expressions of much the same purport, both as regarded the law then in force and the desirability of a change. He expressed his sense of difficulty in dealing with these cases in a large and improving town like the metropolis. He said that it was a question well deserving the consideration of the legislature, whether there could not be some general act passed, by which arrangements could be made, and adjustments entered into, either through the medium of a jury or otherwise, for the purpose of enabling such improvements as were stopped by suits of this nature to be carried on. But until that was done, he could not allow even improvements to be made at the expense of others. He could not take away the light and air which the legislature had made the positive property of those in the possession of these easements (o). (0) Stokes v. The City Offices Company, 11 Jur., N. S. 560. It may be remarked on the opinions expressed in these two cases by Lord Cranworth and Vice-Chancellor Wood, that even were the local customs of the city of London in this behalf restored, or an enactment framed to permit improvements to be made and lofty buildings to be erected in populous places irrespective of the detriment thereby occasioned to rights to light and air, these improvements would be made at the expense of others. It could hardly be considered a public advantage to encourage the erection of new buildings which should render old buildings useless. And these new buildings would, of course, be liable to be rendered useless in their turn. The result might possibly be, a town of magnificent buildings in such proximity to each other that half the rooms in each should be unfit for purposes of business or habitation. Under the present law, the designer of such improvements can purchase the right of making them from the adjoining owner with In the very recent case of Dent v. The Auction Mart Company (p), Wood, V. C., elaborately considered the effect of the preceding decisions on this point. He said: "Another difficulty which existed at the time when I heard this case has to my mind been removed by the recent decision in Yates v. Juck, namely, a suggestion in the previous case of Clarke v. Clark, whereby the Lord Chancellor appeared to indicate that there was some difference between the right to protection of a person residing in a town, and the right of a person residing in the country, who would have reason to expect a greater amount of light in his dwelling. I confess it always appeared to me there must have been some misapprehension of the view in which these observations were put forward by the Lord Chancellor, and I should not have felt much embarrassed by them (for they could have been explained), but for an apparent acquiescence in the same view on the part of Lord Justice Knight Bruce, in Robson v. Whittingham. But I cannot suppose the Lord Chancellor or the Lord Justice to mean, that in reality there is any difference between the right which a plaintiff has to seek the protection of this court when he lives in a town, and whose window lights they will interfere. And so long as it is worth the improver's while to pay the owner of the dominant tenement a sufficient compensation for the loss of his easement, such improvements will be made. If it be not worth his while to pay this price, the improvements can hardly be considered a public gain. The misfortune is, that up to the present time there are bardly any instances of dealing with such rights by purchase and sale, and precedents for so doing are wanting. In the Appendix to this Treatise it is attempted to do something towards remedying this deficiency. (p) L. R., 2 Eq. 248; 35 Law J. Rep., N. S., Eq. 562. that which he would have if he resided in the country. In the first place, obstruction of light rarely occurs in the country; towns are the places where light is wanted. The Romans, who were very accurate in their description of this subject, divided servitudes into 'rural' and 'town' servitudes; and appropriated to the division of town servitudes the case non altius tollendi, which was considered to be a servitude which would be most likely to occur in a town residence; rarely, if ever, in the country (q). Further than that, I may refer to the recent decision in Tipping v. The St. Helen's Smelting Company (Limited) (r), where it was distinctly held, that the being subjected to a large amount of nuisance already is not a reason why one should suffer more; so that, if a man can point out an additional chimney which adds to his grievance, he has a right to interfere with the grievance so increased. There is the farther observation to be made, which I see the Lord Chancellor has referred to in Yates v. Jack, that the legislature of late years appears to have taken a completely opposite view; because, whereas there existed by the custom of London a right to build on the site of an ancient messuage or toft, wholly irrespective of any rights that might be acquired by the neighbours, that right was abolished by the Prescription Act. That (1) This argument is perhaps not altogether satisfactory. The distinction between servitutes prædiorum urbanorum, and servitutes prædiorum rusticorum, though no doubt it arose from the one kind being more common in the country, the other in the town, soon lost all traces of its origin; and servitudes were said to be of the former class when they affected the soil itself, of the latter class when they affected the superficies-that is, anything raised upon the soil.-Inst. II., Tit. III. Sandars' edition. (r) 4 Best & S. 608, 616; House of Lords, July 5, 1865. must have been done on deliberation, as it was decided in The Salters' Company v. Jay (s), and Truscott v. The Merchant Tailors' Company (t), that the words, 'any local custom notwithstanding,' must have reference to the customs that existed in York and London; and therefore the legislature must be taken to have thought it unreasonable, even in towns, to continue a privilege of that description. That being so, I confess I should have felt more difficulty than I do now, had it not been for the recent decision in Yates v. Jack, which puts it beyond all doubt that the Lord Chancellor did not entertain the view which his observations in Clarke v. Clark were supposed to imply. The Lord Chancellor in Yates v. Jack, having regard to this provision of the legislature, and interfering as he did with reluctance, and doubting whether the custom was not better than the law as it now stands, nevertheless said that he had nothing to do but to follow the provisions of the legislature, and in acting upon these he held that a house raised fifty per cent. in height at a distance of thirty feet from the house of the plaintiff was a nuisance within the purview of this court, from which the plaintiff, as owner of the house, must be protected." His Honor said that, as it appeared to him, he had overcome the difficulty of the property being in a town and not in the country; and decided the case on this footing. With this decision concurs that of Stuart, V. C., in Lyon v. Dillimore (u). The Vice-Chancellor's words in that case were, "With respect to what has been said (s) 3 Q. B. 109. with regard to quantum of injury, no doubt the question is embarrassed by some dicta referred to in the argument, or rather by the construction which has, perhaps, been unfortunately put upon them, and which might seem to indicate that there is one rule for the enjoyment of light and air for great towns, and another for country places-that because a man in a town usually has less light and air than a man in the country, that small amount of the property he enjoys may be more readily invaded. But this result, I am sure, was never intended or even contemplated." And in Murtin v. Headon (v), Kindersley, V. C., after referring to the cases on this point, and lastly to that of Dent v. The Auction Mart Company, concluded, "The Vice-Chancellor in his judgment goes fully into these cases, and considers that the Lord Chancellor, in Yates v. Jack, though not expressly repudiating the doctrine, has yet expressed opinions inconsistent with it; and Vice-Chancellor Wood concludes, and I agree with him, that any apprehension as to the effect of the prior decisions is now removed, and that we need have no idea as to any difference between the cases in populous towns and the country." The result of these decisions appears to be, that the extent of the right to window lights is the same, whether the dominant tenement to which the right is attached be situate in a town or in the country; and that the expressions of Lord Cranworth in Clarke v. Clark must be considered as expressing the ordinary fact, not as laying down a rule of law. The second question arises with regard to the extent (v) 35 Law J. Rep., N. S., Eq. 604; L. R., 2 Eq. 430. |