same openings by which light and air are received. The first of these is prospect, the view of external objects. Prospect is a servitude acknowledged by the Roman law (v); but the English law has never acknowledged prospect as a right capable of being annexed to a tenement as an easement. Its enjoyment can only be secured by express covenant; and the burthen of this, as before stated, will not run with the servient tenement.

In Aldred's Case (w) Wray, C. J., said, "That for prospect which is a matter only of delight, and not of necessity, no action lies for stopping thereof, and yet it is a great recommendation of a house if it has a long and large prospect."

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In another early case Twisden, J., said, “ Why may I not build up a wall that another man may not look into my yard? Prospects may be stopped, so you do not darken the light." And the judgment of the Common Pleas to the contrary was reversed (r).

Lord Hardwicke, when the help of the Court of Chancery was sought to prevent the defendants from obstructing the plaintiff's prospect, said, "You come in a very special and particular case on a particular right to a prospect. I know no general rule of common law which warrants that, or says, that building so as to stop another's prospect is a nuisance. Was that the

(v) Inter hanc (servitutem luminum) et servitutem prospectûs, hoc interest, quod in prospectu plus quis habet, ne quid ei officiatur ad gratiorem prospectum et in liberum; in luminibus autem non officere, ne lumina cujusquam obscuriora fiant. Warnkoenig, Institutiones

Juris Romani Privati, 1834, sec. 413.

(w) 9 Rep. 57b.

(x) Knowles v. Richardson, 1 Mod. 55; 2 Keb. 642.

case, there could be no great towns; and I must grant injunctions to all the new buildings in this town” (y). And in another case the same eminent judge remarked, "It is true that the value of the plaintiff's house may be reduced by rendering the prospect less pleasant, but that is no reason for hindering a man from building on his own ground” (z).

Lastly may be cited the words of Lord Cottenham, "It is not, as is said in one case, because the value of the property may be lessened; and it is not, as is said in another, because a pleasant prospect may be shut out, that the court is to interfere; it must be an injury very different in its nature and its origin to justify such an interference" (a).

These authorities show clearly that it is not possible for such an easement as a right to prospect to exist; and that no such obligation can attach to a tenement as to prevent its owner so using his own land as to obstruct the prospect from another tenement. Any such obligation must be founded in personal contract. Injury may doubtless be done to a tenement by interfering with the view therefrom; but it is injuria absque damno, an injury for which the law affords no remedy.

Secondly, it has occasionally been attempted to establish a right which would be the converse to a right to prospect, that of having the view from outside of objects within a window secured from interruption. In the case of Smith v. Owen (b), it was argued by counsel,

(y) Attorney-General v. Doughty, 2 Ves. sen. 45.

(z) Fishmongers' Company v. East India Company, 1 Dick. 163. (a) Squire v. Campbell, 1 Myl. & C. 486.

(b) 35 Law J. Rep. N. S. Ch. 317.

that the plaintiffs were entitled to similar protection in respect to obstructions to the view of the public of the goods they exhibited as in respect to the obstruction of the access of light. But Wood, V.-C., said, "So far as a man standing outside the window would be prevented from getting a view of the goods there exhibited, the case would stand on the same footing as an obstruction to light; a person must not cause an injury in creating such an obstruction. If a shopkeeper wished to show his goods within the shop, he had a right to the free access of light for the purpose, and he apprehended it was the same if he wished to show the goods outside by means of a transparent medium. This, however, did not apply to the present case; all that could be complained of was, that persons could not see the goods so soon as they might if the alterations objected to had not been made. When they came in front of the shop, the goods would be seen just as well as before. So if a sign were hung up in front of the shop, such as a pawnbroker's balls, which could be seen from a long distance; there was nothing to prevent a neighbour building on his own ground in such a way as to obstruct the direct view of such a sign. The bill must be dismissed with costs."

And in a case before Kindersley, V.-C., in which it was argued that the erection of a new gasometer would shut out the view of the public from the plaintiff's premises, and that he would consequently be injured by losing chance customers; his Honor said, "As to the ground that the gasometer will prevent the view of persons in Ann's Place, it is impossible that that can be a ground for an injunction" (c).

(c) Butt v. Imperial Gas-light and Coke Company, 14 W. R. 508.

The result is, that the owner of a tenement possessing the right to window lights may use the windows for the exhibition of his wares; and that the owner of the servient tenement, being incompetent to obstruct the access of light and air to those windows, is not able to obstruct the view of the wares in the windows by passersby; but that no right can be acquired to an unimpeded view from the outside of objects within apart from and in addition to the right to window lights.

Lastly, the acquired right to unimpeded transmission of air must not be confused with the right, which every man possesses at the common law, to receive the air which has access to his premises free from pollution; a right which can only be excluded by the acquisition of a countervailing easement by the party who creates the nuisance.

In an early case in which the defendant had built a pig-stye so near to the plaintiff's premises that the air he received was corrupted thereby, the court said, “ The building of a lime-kiln is good and profitable; but if it be built so near a house, that when it burns the smoke thereof enters into the house, so that none can dwell there, an action lies for it (d). And the comparison is put of the corruption of a watercourse by dye works.” And in Bliss v. Hall (e), Tindal, C. J., remarked, "The plaintiff came to his house clothed with all the rights appurtenant to it, one of which at the common law is a right to wholesome and untainted air, unless the business which creates the nuisance has been carried on there for so great a length of time, that the law

(d) Aldred's case, 9 Rep. 57b.
(e) 4 Bing. N. C. 186.

will presume a grant from his neighbour in favour of the party who causes it" (f). This right is similar to the right to receive a flow of water free from pollution, a right which has of late been frequently protected by the aid of the Court of Chancery (g).

(f) For instances of what trades are nuisances at law, vide 1 Roll. Abr. 88, 89. Action on the case, N. pl. 6, 7; 2 Roll. Abr. 141. Nusans, G. pl. 13, 14, 15, 18; Jones v. Powell, Palmer, 537; Hutton, 135, and cases there cited. And as to the question what corruption of air amounts to a nuisance, vide Walter v. Selfe, 4 De G. & Sm. 315.

(g) Goldsmid v. Tunbridge Wells Improvement Commissioners, L. R. 1 Eq. 161, L. R. 1 Ch. 349; 35 Law J. Rep. N. S., Ch. 88, 382; Spokes v. Banbury Board of Health, L. R. 1 Eq. 42; 35 Law J. Rep. N. S., Ch. 105.