or in an aisle, &c., as appurtenant to a house in the parish, is disturbed therein by the parson, ordinary, or churchwardens, by a suit in the spiritual court, he may have a prohibition, if he suggest as grounds for it that he or those whose estate he hath, built, or time out of mind repaired, and therefore had the sole use of such aisle, or of such pew or seat; for the party has a right to a trial of the prescription in a temporal court. (See 1 Burn's Eccl. Law, 8th ed., 366, 367; Witcher v. Cheslam, 1 Wils. 17; Corwen v. Pym, 12 Rep. 105; Jacob v. Dalton, 2 Raym. 1755; Boothby v. Bailey, Hob. 69; Francis v. Lee, Cro. Jac.366; Day v. Beddingfield, Noy's Rep. 104; Buxton or Bunton v. Bateman, 1 Sid. 89; S. C., 1 Lev. 71; Sir T. Raym. 52; Crook v. Sampson, 2 Keb. 92; Brabin v. Tradum, Poph. 140; 2 Roll. Abr. 287, 288.) Of the Right to The uninterrupted possession of a pew in a church for twenty years affords Evidence. a presumptive evidence of a legal title by prescription, or by a faculty against a wrong-doer. (Darwin v. Upton, 2 Wnis. Saund. 506, ed. 1871.) But if the right was claimed as appurtenant to an ancient messuage the claim would, before the stat. 2 & 3 Will. 4, c. 71, be rebutted by proof that the pew began to exist within time of legal memory. (Griffith v. Matthews, 5 T. R. 296.) In an action on the case for disturbing the plaintiff in the possession of a pew in a church, which the plaintiff and those under whom he claimed had been in the uninterrupted enjoyment of for thirty-six years, but which appeared in evidence to have been an open pew before that period; the judge recommended the jury to presume a title in the plaintiff after so long a possession as thirty-six years, and the Court of King's Bench afterwards, on a motion for a new trial, held the direction of the judge proper. (Rogers v. Brookes, 1 T. R. 431, n.) A pew in a parish church was claimed in respect of an ancient messuage; and it was proved, that, so far as living memory extended, the pew in question had been one of three pews adjoining each other, and under one and the same claim of right, viz., in respect of the said ancient messuage: it was held, that proof of repairs done to one of the pews, not that in question, was evidence as to all, and therefore as to that in question. (Pepper v. Barnard, 12 L. J. (N. S.) Q. B. 361; 7 Jur. 1128.) The pew must be laid in the declaration as appurtenant to a messuage in the parish, otherwise a bare possession of the pew for sixty years and more is not a sufficient title to maintain an action on the case for disturbing the plaintiff in his enjoyment thereof, but he must prove a prescriptive right or faculty. (Stocks v. Booth, 1 T. R. 428.) So where a pew in a chancel, claimed in right of a messuage, was shown to have been erected on the site of old open seats in 1773, and there was no evidence of any faculty on search for one at the proper places; it was held, that the judge rightly directed the jury, that the evidence of the former open state of the seats destroyed the prescription, and left it to them to say whether, upon the evidence merely of long undisturbed possession, any faculty existed; and a new trial was refused. (Morgan v. Curtis, 3 M. & Ry. 389.) The grant of part of the chancel of a church by a lay impropriator to A., his heirs and assigns, is not valid in law, and therefore such grantee, or those claiming under him, cannot maintain trespass for pulling down his or their pews there erected. (Clifford v. Wicks, 1 B. & Ald. 498.) But the churchwardens have not, as against the incumbent of a church or chapel, a joint possession of it, so as to disable him from maintaining trespass against them for acts of violence in pulling down pews; and a chapelwarden of a parochial chapelry has not, by virtue of his office, any authority to enter the chapel and remove the pews without the consent of the perpetual curate. (Jones v. Ellis, 2 Y. & J. 265.) The perpetual curate of an augmented parochial chapelry has a sufficient possession whereon to maintain trespass for breaking and entering the chapel and destroying the pews. (Ib.) As well priority in a seat as a seat itself in the body of a church may be claimed by prescription, as belonging to a house, by the inhabitants of it, who have repaired the seat time out of mind, and an action on the case for a disturbance lies at common law. (Carleton v. Hutton, Noy, 78; Gibs. 221.) Where the action is brought against a stranger, the plaintiff is not bound Of the Right to Remedy in equity. Burial. Former doctrine as to acquiring a right to light by prescription. to state in his declaration that he has repaired the pew, though it is otherwise when the action is brought against the ordinary; in which case a title or consideration must be shown in the declaration and proved, as the building or repairing of the pew. (Kenrick v. Taylor, 1 Wils. 326; Ashley v. Freckleton, 3 Lev. 73; see Fiske v. Rovitt, Lofft, 423; Com. Dig. Action upon the Case for Disturbance (A. 3); Gibs. 197, 198.) The right to sit in a pew may be apportioned, and therefore where by a faculty, reciting that A. had applied to have a pew appropriated to him in the parish church in respect of his dwelling-house, a pew was granted to him and his family for ever, and the owners and occupiers of the said dwelling-house, which was afterwards divided into two: it was held, that the occupier of one of the two (constituting a very small part of the original messuage) had some right to the pew, and in virtue thereof might maintain an action against a wrong-doer. (Harris v. Drewe, 2 B. & Ad. 164.) It seems that a bill in equity will not lie to be quieted in the possession of a pew, though there is a decree for it before the ordinary. (Baker v. Child, 2 Vern. 226.) A bill was filed by a single parishioner against some of the churchwardens of the parish, alleging an intention on the part of the defendants to execute work in the church which would be injurious to himself, and praying an injunction; the plaintiff did not allege that he was a parishioner and that he was in the habit of attending divine service in the parish church. It is questionable whether this is a private nuisance, and whether such a bill can be sustained by a single parishioner against the churchwardens. (Woodman v. Robinson, 2 Sim., N. S. 204.) See Cardinall v. Molyneux, 7 Jur., N. S. 854, as to proceedings against an incumbent who removed pews and substituted chairs in the church. A prohibition will issue out of Chancery in vacation time upon an ex parte application to restrain a spiritual court from trying a claim by prescription to pews in a parish church. (Re Bateman, L. R., 9 Eq. 660.) A man may prescribe that he is tenant of an ancient messuage, and ought to have a separate burial in a particular vault within the church. (Com. Dig. Cemetery (B.).) It seems that the same rules are applicable to vaults as to pews. (Bryan v. Whistler, 8 B. & C. 293; S. C., 2 M. & Ryl. 318; see Francis v. Ley, Cro. Jac. 366; Gibs. Cod. 542.) As to rights of Burial, see Fisher's Index, tit. Ecclesiastical Law, XXV., Burial. (7.) OF THE RIGHT TO LIGHT AND AIR. A right to the enjoyment of light and air may commence by mere occupancy. Every man on his own land has a right to all the light and air which will come to him; and he may erect, even on the extremity of his land, buildings with as many windows as he pleases, without any consent from the owner of the adjoining lands. After he has erected his building, the owner of the adjoining land may, within twenty years, build upon his own land, and so obstruct the light which would otherwise pass to the building of his neighbour. But if the light be suffered to pass without interruption during that period to the building so erected, the law implies from the non-obstruction of the light for that length of time, that the owner of the adjoining land has consented that the person who has erected the building upon his land shall continue to enjoy his light without obstruction, so long as he shall continue the specific mode of enjoyment which he had been used to have during that period. It does not, indeed, imply that the consent is given by way of grant, for light and air, not being to be used in the soil of the land of another, are not the subject of actual grant; but the right to insist upon the non-obstruction and non-interruption of them more properly arises by a covenant which the law would imply not to interrupt the free use of the light and air. (Per Littledale, J., 3 B. & Cr. 340. See 2 B. & Cr. 691.) The enjoyment of lights for twenty years, without any obstruction from the party entitled to object, has been long held to be a sufficient foundation for raising the presumption of an agreement not to obstruct them. (2 B. & C. 686; Darwin v. Upton, cited 3 T. R. 159; 2 Wms. Saund. 175.) In whatever way precisely the right to enjoy the unobstructed access of light and air from adjoining land may be acquired (a question of admitted nicety), still the act of the owner of such land, from which the right flows, must have reference to the state of things at the time when it is supposed to have taken place; and as the act of the one is inferred from the enjoy ment of the other owner, it must in reason be measured by that enjoyment. The consent, therefore, cannot fairly be extended beyond the access of light and air through the same aperture (or one of the same dimensions and in the same position), which existed at the time when such consent is supposed to have been given. It is considered that convenience and justice both require this limitation; if it were once admitted that a new window, varying in size, elevation or position, might be substituted for an old one, without the consent of the owner of the adjoining land, it would be necessary to submit to juries questions of degree, often of a very uncertain nature, and upon very unsatisfactory evidence. And in the same case, a party, who had acquiesced in the existence of a window of a given size, elevation or position, because it was felt to be no annoyance to him, might be thereby concluded as to some other window to which he might have the greatest objection, and to which he would never have assented, if it had come in question in the first instance. The case of Chandler v. Thompson, (3 Camp. 80,) is not at all inconsistent with this reasoning. (Per Patteson, J., Blanchard v. Bridges, 4 Ad. & Ell. 191, 192.) There may appear to be some hardship in holding that the owner of a close who has stood by, without notice or remonstrance, while his neighbour has incurred great expense in building upon his own adjoining land, should be at liberty, by subsequent erections, to darken the windows, and so destroy the comfort of such buildings. Yet there can be no doubt of his right to do so at any time before the expiration of twenty years from their erection, and this with good reason, for it is far more just and convenient that the party, who seeks to add to the enjoyment of his own land by any thing in the nature of an easement upon his neighbour's land, should first secure the right to it by some unambiguous and well-understood grant of it from the owner of that land, who thereby knows the nature and extent of his grant, and has a power to withhold it, or to grant on such terms as he may think proper to impose, than that such right should be acquired gradually as it were, and almost without the cognizance of the grantor, in so uncertain a manner as to create infinite and puzzling questions of fact to be decided by litigation. If a party, who has neglected to secure to himself the unobstructed enjoyment of light and air to a new window by previous express licence or covenant, relies for his title to them upon anything short of an acquiescence of twenty years, the onus lies upon him of producing such evidence as leads clearly and conclusively to the inference of a licence or covenant. And if a deed be not necessary for that purpose, it is obviously advisable to have it. (Blanchard v. Bridges, 4 Ad. & El. 194, 195.) Of the Right to It seems that the prescriptive right to light now depends upon the Present doctrine. statute, and is not to be rested on any presumption of grant. (Tapling v. Jones, 11 H. L. C. 290, ante, p. 15.) See 3 & 4 Will. 4, c. 71, s. 3, ante, p. 14, and the cases there quoted as to the mode of acquiring a prescrip tive right to light under the statute. Where a lease of a house was granted to the plaintiff, who was described Express contract therein as a diamond merchant, and the owners of adjacent premises sub- between landlord sequently purchased the reversion, an injunction was granted (partly on the and tenant. principle of express contract existing between landlord and tenant) to restrain the purchasers of the reversion from building a party-wall, so as to obscure the plaintiff's ancient lights. (Hertz v. The Union Bank of London, 1 Jur., N. S. 127; 2 Giff. 286.) Where a landlord, who had granted a lease of premises including ancient lights and appurtenances to A. in consideration of improvements which had been made by A. in the premises leased (which improvements included new lights), granted a lease of the adjoining premises to B., and B. was building so as to block up the lights of A. it was held, that the landlord could not have blocked up such lights, and that his lessee B. could stand in no better position, and the : Of the Right to Implied grant of right to light upon severance of adjoining tenements. No reservation of court granted an injunction as against B. (Davies v. Marshall, 1 Drew. & Sm. 557). As a man cannot derogate from his own grant, it is well established, that where the same person possesses a house, having the actual use and enjoyment of certain lights, and also possesses the adjoining land, and sells the house to another person, although the lights be new, neither the vendor nor any one claiming under him can build upon the adjoining land, so as to obstruct or interrupt the enjoyment of those lights. (Palmer v. Fletcher, 1 Lev. 122; Kelk v. Pearson, L. R., 6 Ch. 813.) A., the owner of two adjoining houses, granted a lease of one of them to B., and afterwards leased the other to C., there then existing in it certain windows. After that B. accepted a new lease of the house from A.: it was held, that B. could not alter his tenement, so as to obstruct the windows existing in C.'s house at the time of his lease from A.: though the windows were not twenty years old at the time of the alteration. (Coutts v. Gorham, 1 M. & M. 396; see Cox v. Matthews, 1 Ventr. 237; Jacomb v. Knight, 11 W. R. 585.) So where the owner of a house divided it into two tenements, and demised one of them to the defendant: it was held he was liable to an action on the case for obstructing the windows in the house at the time of the demise, although of recent construction, and there was no stipulation against the obstruction. (Riviere v. Bower, 1 Ry. & M. 24.) And upon the same principle, where several adjoining portions of land, on which the building of houses had been commenced, were sold, and by the conditions of sale were to be finished according to a particular plan within the space of two years it was held, that a purchaser of one of the lots could not, by erecting an additional building at the back of his house, obstruct the light from the windows of another purchaser, who has built his house according to the plan; (Compton v. Richards, 1 Price, 27;) for the lots were sold under an implied condition, that nothing should be done by which the windows for which spaces were then left might be obstructed. (Ib.) And where the plaintiff purchased a house A., and the defendant at the same time purchased the adjoining land, upon which an erection of one storey high had formerly stood, although in the conveyance to the plaintiff his house was described as bounded by building ground belonging to the defendant it was held, that the defendant was not entitled to build a greater height than one storey, if by so doing he obstructed the plaintiff's lights. (Swansborough v. Coventry, 9 Bing. 305; S. C., 2 M. & Scott, 362.) : Where, however, a person having a house on his land, the windows of right to light im- which have existed for more than twenty years, sells a portion of his land, plied upon sale of Jand by owner of the purchaser may erect any buildings he pleases upon the land so sold to the adjoining him, however much they may interfere with the light coming to the winhouse. dows of the vendor's house. (Curriers' Company v. Corbett, 2 Dr. & Sm. 360.) In 1855, the owners in fee of a house and adjoining land granted to trustees a lease of the land for ninety-nine years, and they covenanted to build upon it according to a plan. In 1856, the owners conveyed the reversion in fee of the lands to the trustees; in 1857, the owners conveyed the house in fee to a person under whom the plaintiff obtained possession. The defendant subsequently, with the authority of the trustees, built upon the land so as to obstruct the light and air which, for upwards of twenty years, had come to the windows of the plaintiff's house. If he had built according to the plan in the lease, the obstruction would not have been to the same extent. Until the lease was granted, there had never been any severance either in the title to, or possession or occupancy of, the land and house, and the same had been occupied and used together by the proprietors for upwards of fifty years: it was held, that the plaintiff could maintain no action against the defendant for building on the land so as to obstruct the light and air which formerly came to the windows of the plaintiff's house. (White v. Bass, 7 H. & N. 722. See Tenant v. Goodwin, 2 Ld. Raym. 1093; Rosewell v. Prior, 6 Mod. 116; Canham v. Fisk, 2 Cr. & Jerv. 128.) Where a purchaser takes with notice of adjoining windows he is thereby put upon his inquiry as to whether they are privileged or not, and if privileged it is immaterial whether as modern windows by grant, or as ancient by prescription. (Miles v. Tobin, 16 W. R. 465.) Of the Right to "The right conferred or recognized by the statute 2 & 3 Will. 4, c. 71, is Nature and exan absolute indefeasible right to the enjoyment of light without reference tent of the right to the purpose for which it has been used." (Per Lord Cranworth, Yates to light. v. Jack, L. R., 1 Ch. 298; Calcraft v. Thompson, 15 W. R. 387.) "I am of opinion that the statute has in no degree whatever altered the pre-existing law as to the nature and extent of this right. The nature and extent of the right before that statute was to have that amount of light through the windows of a house which was sufficient, according to the ordinary notions of mankind, for the comfortable use and enjoyment of that house as a dwelling-house, if it were a dwelling-house; or for the beneficial use and occupation of the house, if it were a warehouse, a shop, or other place of business. That was the extent of the easement- -a right to prevent your neighbour from building upon his land so as to obstruct the access of sufficient light and air to such an extent as to render the house substantially less comfortable and enjoyable. Since the statute, as before the statute, it resolves itself simply into the same question, a question of degree, which would be for a jury, if this were an action at law, to determine; but which it is for us as judges of fact as well as law to determine for ourselves as best we may, when we are determining it in chancery." (Per James, L. J., Kelk v. Pearson, L. R., 6 Ch. 811.) The principle as to ancient lights is, that the owner of the dominant tenement cannot substantially depart from the mode of user. He cannot change the position of his lights, nor increase the original aperture into which windows have been put; but if he has, in using his right, contracted to any given extent the original opening by windows of antique and clumsy structure, he may, without affecting his right, replace those windows of an improved structure, that let in more light and air. (Turner v. Spooner, 1 Drew. & Sm. 467; 7 Jur., N. S. 1068; 30 L. J., Chanc. 801; 9 W. R. 684.) Where a man has been in the enjoyment of an extraordinary user of Extraordinary light for twenty years, that will establish the right against all persons who amount of light. have reasonable knowledge of it. It was not necessary to say whether the right would be established against those who had no knowledge of it. (Lanfranchi v. Mackenzie, L. R., 4 Eq. 430.) As to the acquisition of light for the purpose of a diamond merchant's business, see Hertz v. Union Bank of London, 2 Giff. 686. If an ancient window be enlarged, the owner of the adjoining land cannot Alteration of lawfully obstruct the passage of light to any part of the space occupied by ancient lights. the ancient window, although a greater portion of light be admitted through the unobstructed part of the enlarged window than was anciently enjoyed, for the original aperture remains privileged as before the enlargement. (Chandler v. Thompson, 3 Campb. 80. See 4 Ad. & Ell. 192.) But a party may so alter the mode in which he has been permitted to enjoy this kind of easement as to lose the right altogether. (Garratt v. Sharpe, 3 Ad. & Ell. 325; 4 Nev. & M. 834.) And if a building, after having been used for twenty years as a malt-house, is converted into a dwelling-house, it is entitled in its new state only to the same degree of light which it possessed in its former state. (Martin v. Goble, 1 Campb. 322. See Lanfranchi v. Mackenzie, L. R., 4 Eq. 427.) So where an old house is pulled down, and a new one built, the lights in the new house must be in the same place, of the same dimensions, and not more in number, than in the old house. (Cherrington v. Abney, 2 Vern. 646.) It was laid down in several cases that where an owner of the dominant tenement has exceeded the limits of the right which he has acquired to the access of light and air, by altering his ancient lights, or by opening additional windows, he has not necessarily lost or suspended his admitted right; but the alterations or the opening of the additional windows justify the owner of the servient tenement in obstructing the ancient lights, if the doing so is unavoidable in the exercise of his right to obstruct the new lights. (Renshaw v. Bean, 18 Q. B. 112; Hutchinson v. Copestake, 9 C. B., N. Effect of altering ancient lights or opening new lights, upon the right to ancient lights. |