on dominant tenement. The easement is not limited by the quantity of light Use of light actually used, or by the purposes for which it is used. The use in fact made of the light from time to time is material only so far as it may serve as a practical test of the quantity of light enjoyed, and of any obstruction of it; as in the case of the studio of a sculptor or artist, or a sample room for goods (q). An action may be brought for an obstruction of light in respect of the possible future use of it, although sufficient light be left for the purpose for which it has hitherto been used; and the damages are to be measured by the value of the light for any purpose for which the dominant tenement may reasonably be considered available, at the present time or in the future (r). If the light be obstructed so as to render the premises useless for the owner's trade, it seems that he may recover damages for the expense of removal to other premises (s). -Upon this principle an easement of light may be Unoccupied acquired for a building without any actual use or occupation for any purpose; as was held in the case of a house structurally complete, but internally incomplete and unfit for habitation, and which remained in that state and unoccupied during the whole period of time required to establish the easement (†). And the owner of a house is entitled to the full remedies for an obstruction of the light, whether in damages or by injunction, in respect of the injury to his property, though he does not occupy suffer personal discomfort or inconvenience (u).—Upon Conversion the same principle the conversion of a tenement from one to new use. (q) Lanfranchi v. Mackenzie, L. R. 4 Eq. 421; 36 L. J. C. 518; Yates v. Task, L. R. 1 Ch. 298; 35 L. J. C. 539; Theed v. Debenham, L. R. 2 C. D. 165. (r) Aynsley v. Glover, L. R. 18 Eq. 544; 44 L. J. C. 523; Moore v. Hall, L. R. 3 Q. B. D. 178; 47 L. J. Q. B. 334. These cases substantially overrule the cases of Martin v. Goble, 1 Camp. 322; Jackson v. Newcastle, 3 D. J. & S. it or 275; 33 L. J. C. 698, and Lan- (s) See The Queen v. Poulter, 56 (t) Courtauld v. Legh, L. R. 4 Ex. 126; 38 L. J. Ex. 45. (u) Wilson v. Townend, 1 Dr. & Sm. 324; 30 L. J. C. 25. tenement. of tenement Alterations of lights. Enlarging purpose to another, as a dwelling-house into a workshop The owner of the dominant tenement may improve the light through an ancient opening, by clearing away mullions and transomes, removing casements, and any other like means, without affecting the existing easement (x). He may alter the form of the opening or he may make a new opening in a plane parallel to the ancient opening, or at an inclination to it; and he will retain the original easement of light so far as it will serve the new opening (y). The identity of the building that receives the light is immaterial, provided the light used in the new building is to a substantial extent the same as that used in the old (z). But if he enlarge the ancient openings or make a new ancient lights. opening, by which he might in time acquire an enlarged easement, the owner of the servient tenement may obstruct the light through the new or enlarged opening, so far as to prevent the acquisition of any additional easement, provided that he does not at the same time obstruct the ancient light or any part of it. It is no justification of an obstruction of the ancient light that he cannot, without doing so, obstruct the enlarged or new opening (a). Nor (v) Fry, J., National Ins. Co. v. (w) Eccles. Commis. v. Kino, L. R. (y) National Ass. Co. v. Prudential Ass. Co., L. R. 6 C. D. 757; 46 L. J. C. 871; Bullers v. Dickinson, L. R. 29 C. D. 155; 54 L. J. C. 776; Barnes v. Loach, L. R. 4 Q. B. D. 494; 48 L. J. Q. B. 756. (2) Scott v. Pape, L. R. 31 C. D. 554; 55 L. J. C. 426; post, p. 308. (a) Tapling v. Jones, 11 H. L. C. is the owner who has thus enlarged his lights bound to restore them to the ancient form and position as a condition of obtaining relief against an obstruction; whether he seeks the legal remedy of damages, or the equitable remedy of an injunction (b). "The principle is perfectly plain, that opening a new window or the enlargement of an old window in the wall of your house is no injury or wrong to your neighbour. It is one of the rights of property which any man is entitled to exercise, and he cannot, by exercising that right, lose any other right which he may have acquired. Therefore, having got a right to the entry of light into a window of a certain size, he does not by making that window larger lose his right to the entry of the light to the old part of it" (c). Upon the same principle if a house be pulled down or destroyed by fire, and a new house be built upon the site with altered or enlarged windows, provided the ancient apertures or any part of them are substantially contained in the new ones, they cannot be obstructed. If the ancient apertures are not substantially preserved in the new house they may be considered as abandoned (d). different The acquisition of additional light from a different Additional direction does not affect or diminish the easement over the light from servient tenement; the owner of which is not justified in direction. obstructing the easement over his own land, because the dominant owner by purchase or otherwise has obtained light from other land equivalent to the light obstructed (e). 290; 34 L. J. C. P. 342, overruling Renshaw v. Bean, 18 Q. B. 112; 21 L. J. Q. B. 219, and other cases which decided that upon the enlargement of an ancient light, the servient owner might obstruct it wholly, and that the dominant owner had no remedy until he had restored it to the original dimensions. See Newson v. Pender, L. R. 27 C. D. 43. (b) Staight v. Burn, L. R. 5 Ch. 163; 39 L. J. C. 289; explaining Heath v. Bucknall, L. R. 8 Eq. 1; 38 L. J. C. 372. (c) Mellish, L. J., Aynsley v. Glover, L. R. 10 Ch. 283; 44 L. J. C. 523. (d) Hutchinson v. Copestake, 9 C. B. N. S. 863; Curriers' Co. v. Corbett, 2 Dr. & S. 355; Newson v. Pender, L. R. 27 C. D. 43; Bullers v. Dickinson, L. R. 29 C. D. 155; 54 L. J. C. 776; Scott v. Pape, L. R. 31 C. D. 554; 55 L. J. C. 426. (e) Dyers' Co. v. King, L. R. 9 Eq. 438; 39 L. J. C. 339. Nor can the servient owner justify an obstruction by himself providing an equivalent quantity of light by reflection or other means, without the consent of the dominant owner (y). The dominant owner does not lose his remedies by himself diminishing the light, so far as an obstruction affects the residue (z). Distinction of §3.-AIR. Distinction of air and light as subject of easement. Easement cannot be claimed for passage of air. Nuisance of pollution of air-nuisance of noise-noxious trades— nuisance of railway-remedy of reversioner. Easement of diffusing noxious vapours and noises. It was formerly the practice in actions for obstruction of light, to couple the word "air" with "light" in pleadings and in proceedings of the Court, upon the assumption that air was so connected with light as to be subject to the same rules; but it is now recognised that they are not so inseparably connected. The Courts will not allow the word "air" to be coupled with "light," as a matter of course; nor allow it to be inserted in proceedings of the Court respecting light without a special direction (a). The Court can deal with a pollution of the air on the ground of nuisance; and "this is perhaps the proper ground on which to place the interference of the Court, although in decrees the words "light and air" are often inserted together as if the two things went pari passu." And it is said, "the Court has interfered to prevent the total obstruction of all circulation of air" (b). But "it is only in very rare and special cases, involving danger to (y) Staight v. Burn, L. R. 5 Ch. 163; 39 L. J. C. 289. (z) Staight v. Burn, L. R. 5 Ch. 163; 39 L. J. C. 289; Scott v. Pape, L. R. 31 C. D. 554; 55 L. J. C. 426. (a) City Brewery Co. v. Tennant, L. R. 9 Ch. 221; 43 L. J. C. 459; Baxter v. Bower, 44 L. J. C. 625. (b) Wood, V.-C., Dent v. Auction Mart, L. R. 2 Eq. 252; 35 L. J. C. 555; Hall v. Lichfield Brewery, 49 L. J. C. 655. health, that the Court would be justified in interfering on the ground of diminution of air" (c). cannot be air. No such easement can be claimed in law as to entitle Easement the owner of land or buildings merely to have the air pass claimed for to or from the adjacent land without obstruction. Such a passage of right is not an ordinary incident of property, as against the ordinary right of the adjacent owner to build as he pleases upon his own land; nor can it be acquired by use or prescription (d). It may be the subject of covenant binding the covenantor personally, and all persons taking the land from him with notice of such a covenant; but it cannot be annexed to the land as a servitude binding a purchaser without notice (e). "There is this difference between the present claim and the claim to light. The right in that case is always limited to the particular window or aperture through which the light has had access; it is one, therefore, against which an adjoining owner can defend himself by blocking it up within the period necessary for the gaining of a right. But here the claim is of such a character that its enjoyment could only be prevented by surrounding the land with erections as high as it might at any time be wanted to build on the land” (ƒ).—Accordingly an easement cannot be claimed to have the free passage of air for the working of a windmill; for the reason that the adjacent land owner has no practical means of preventing it, and that the claim is too vague, undefined and extensive to be recognised by law (g). So, a claim cannot be supported for the free access of air to a timber staging or structure used for storing and drying (c) Selborne, L. C., City Brewery Co. v. Tennant, supra. (d) Bryant v. Lefever, L. R. 4 C. P. D. 172; 48 L. J. C. P. 380; Harris v. De Pinna, L. R. 33 C. D. 238; 56 L. J. C. 344. (e) Ante, p. 203; Hall v. Lich field Brewery, 49 L. J. C. 655. (f) Bramwell, L. J., Bryant v. Lefever, L. R. 4 C. P. D. 178; 48 L. J. C. P. 383. (g) Webb v. Bird, 13 C. B. N. S. 841; 31 L. J. C. P. 335; ante, P. 201. |