cellor's observations may apply to the user of a house as it stands for any purpose for which it may be used in that condition, not to the user of a house when its whole character has been changed, and it has been rebuilt, leaving the old windows untouched, as in the malt-house case. But the doctrine has an application to the case before me on the contested question of the sample room. Although I think upon the evidence there is very little doubt that the room in Messrs. Dent's case has been occasionally used as a sample room, the observations of the Lord Chancellor would apply to this-that if the Messrs. Dent were minded to use it as a sample room, it is immaterial whether they have been so using it for the last several years or not." In this case Jackson v. The Duke of Newcastle was cited by the defendant's counsel. There is here a conflict of judicial opinion; and in this state of the authorities it is not possible to say with certainty which view the courts will take, when the question again comes before them for decision. But it is conceived that probably the rule adopted will be, that the right to window lights extends not only to light and air sufficient for the purposes for which the dominant tenement is for the time being employed, but to light and air sufficient for any purposes for which it may reasonably be employed. It will be observed that Lord Westbury's decision was given with considerable hesitation and reluctance, and that, though declining to continue the injunction, he yet awarded damages to the plaintiffs. The decisions of Lord Cranworth and Vice-Chancellor Wood, on the other hand, were given without any expressed doubt or hesitation. Besides, the case of Tapling v. Jones (b) was decided in the House of Lords in the interval between Jackson v. The Duke of Newcastle and Yates v. Jack. In this judgment of the highest court of appeal, the principle, that the right to window lights consists in a restraint in the use of his land by the owner of the servient tenement, was brought more prominently forward than in any previous case. And it would seem more natural and more consistent with the course of law that such a restraint, when once imposed, should be of a certain definite extent, and not fluctuate according to the employment for the time being of the dominant tenement, and be suddenly enlarged by the conversion of a grocer's shop into a silk merchant's sample room, or suddenly diminished by the converse change. It might naturally be expected that to cause a change in the right or the restraint an equal lapse of time would be required with that which was necessary first to confer or impose them; but in no case has it been suggested that the business for the purposes of which the dominant tenement is entitled to light and air is one a twenty years' practice of which must be shown. In the remarks above cited of Wood, V. C., in Dent v. The Auction Mart Company, he states "that the Lord Chancellor's observations might apply to the user of a house as it stands for any purpose to which it might be applied in that condition, not to the user of a house when its whole character has been changed, and it has been rebuilt." The cases thus alluded to are those of Martin v. Goble (c) and Garritt v. Sharpe (d). (b) 11 H. L. Cas. 290; 34 Law J. Rep., N. S., C. P. 342. (d) 3 Ad. & E. 325. In Martin v. Goble, a malt-house had been converted. into a parish workhouse, and after this alteration the defendant built a wall for the obstruction of light by which the action was brought. Macdonald, C. B., gave the following direction to the jury, " It was not enough that the windows were to a certain degree darkened by this wall, which the defendant had erected on his own ground. The house was entitled to the degree of light necessary for a malt-house, not for a dwelling-house. The converting it from the one to the other could not affect the rights of the owners of the adjoining ground. No man could by any act of his suddenly impose a new restriction upon his neighbour. This house had for twenty years enjoyed light sufficient for a malt-house, and up to this extent and no further the plaintiff's could still require that light should be admitted to it. The question therefore was, whether, if it still remained in the condition of a malt-house, a proper degree of light for the purpose of making malt was now prevented from entering it by reason of the wall which the defendant had erected." The jury found a verdict for the defendant. In Garritt v. Sharpe, the plaintiff had a barn, in the side of which adjoining the defendant's premises were apertures, by which sufficient light entered for the use of the barn. The plaintiff turned the barn into a malt-house, and cut windows where the apertures had been. The defendant erected a fence in front of the windows, and for this obstruction the action was brought. The defendant offered evidence to show that the alteration in the mode of admitting light to the plaintiff's building was injurious to the defendant; but Tindal, C. J., refused to receive such evi dence. On the ground of misdirection on this point, a rule for a new trial was made absolute (e). These cases are no authority against the opinion that the owner of a dominant tenement is entitled to light sufficient for the purpose of any business for which it may be employed. In both the dominant tenements were altered, and their whole character changed; in their former state they were fit for one class of businesses, in their latter for a different class. Indeed, the remarks of Macdonald, C. B., in Martin v. Goble, support the opinion expressed just now, for he lays down that a new restriction cannot be suddenly imposed upon the adjoining owner, and that the light, the access of which must not be impeded, is the light which has been enjoyed for twenty years past. This coincides with the author's opinion, that the restraint imposed on the servient owner must be a definite restraint, and not fluctuate with the business for which the dominant tenement is employed. But whatever be the final decision of the courts on this question, some restrictions, which it has been attempted to impose upon the extent of this right, seem to have been conclusively disposed of by the recent cases. The first of these suggested restrictions is, that the owner of the dominant tenement is not entitled to the uninterrupted access of more light and air than other persons find sufficient for the same business. That no such restraint exists has been repeatedly decided (ƒ). (e) Garritt v. Sharpe goes further than this, and lays down that the alteration may be such as to destroy the right altogether; this point will be considered in the next chapter. (f) By Wood, V. C., in Stokes v. The City Offices Company, and F Again, it has been contended that the provision in the Metropolitan Buildings Act, 18 & 19 Vict. c. 122, s. 29, "That every building used or intended to be used as a dwelling-house, unless all the rooms can be lighted and ventilated from a street or alley adjoining, shall have in the rear or at the side thereof an open space exclusively belonging thereto of the extent of at least one hundred square feet," limits the amount of air to which a right can be acquired. Of this contention Wood, V.-C., disposed summarily in Dent v. The Auction Mart Company (g), saying, " As to air it comes to a reductio ad absurdum. With regard to that it was said, the Metropolitan Building Act provides that there shall not be any house or hovel, however mean, which shall not have 100 square feet of area for the purpose of ventilation, and you have twice that amount. That is to say, these gentlemen, having carried on their business for a long time, are to have their rights measured by what may be supposed to be the minimum to be afforded to persons who inhabit the meanest houses that can be selected for comparison." And, lastly, where the persons entitled to the enjoyment of the light have at times lessened the amount of the light which has access to their premises, it has been argued, but without success, that they can have no right to an uninterrupted supply of more light than the quantity to which they have so limited themselves. In Yates v. Jack (h), Lord Cranworth, C., said, “ The Dent v. The Auction Mart Company; by Kindersley, V. C., in Martin v. Headon; and by Lord Cranworth, C., in Yates v. Jack, as cited by Wood, V. C., in Dent v. The Auction Mart Company. (g) L. R., 2 Eq. 250. () L. R., 1 Ch. 297; 35 Law Rep., N. S., Ch. 543. |