the owner of a vacant piece of land. Was it or was it not a common law duty of the owner of a vacant piece of land to prevent that land from being a public nuisance? His Lordship thought that it was, and referred to Hawkins's Pleas of the Crown, p. 629, as supporting that view. It was an indictable offence. It was of no use for the defendant to say that he had not put the refuse complained of on the land. His duty was to prevent it from becoming a public nuisance. His Lordship then referred to decided cases, and continued :-He could not entertain the slightest doubt that the common law duty of the defendant was to prevent the land from being used in the way it was. If that was so, why was not the Attorney-General, at the relation of the vestries as plaintiffs, entitled to an injunction? It seemed to his Lordship to be almost a matter of course that the Attorney-General should, on behalf of the public, have an injunction granted. The mere fact that the injunction would put the defendant to expense in the removal of the refuse and rubbish was no excuse. So much, therefore, for the common law aspect of the case, which was what the Court had first to regard. As to the Public Health (London) Act, 1891, it gave the Court authority to grant an injunction. Section 138, which did not appear to have been called to the attention of Mr. Justice Kekewich, provided that all powers, rights, and remedies given by that Act should be in addition to and not in derogation of any other powers, rights, and remedies conferred by any Act of Parliament, law, or custom. His Lordship then dealt with the alleged reasons for not interfering with the decision of the learned Judge in the Court below, and came to the conclusion that the declaration ought to be as above set forth. -(T. L. R. [1897], C. A., vol. xiii., p. 220).

(813.)

[IN THE HOUSE OF LORDS.]

CHASTEY AND ANOTHER v. ACKLAND.

[FEBRUARY 22ND, 1897.]

Air-Right to Access of Air-Adjoining Premises—Interference. This was an appeal from a decision of the Court of Appeal reversing an order of Mr. Justice Cave, made at the Exeter Assizes after trial before the learned Judge without a jury, and it raised the question whether the owner of premises is entitled to protection, not only in respect of his ancient lights, but also of the free access of air to his premises by means of the windows of the same.

The appellants were the owners and occupiers of feehold premises in Exeter, and carried on business therein as lodging-house keepers, and the respondent was the owner and occupier of adjoining premises, in which he carried on the business of a dentist. The appellants brought the present action against the respondent for a mandatory injunction and for damages in respect of the alleged obstruction of the appellants' ancient lights and of the free access of air to their premises by reason of certain alterations which the respondent had made in his premises. At the

trial the learned Judge found the following facts proved-namely, that there had been an interference with the appellants' ancient lights, the damage in respect of which was assessed at £10; that the effect of the respondent's new building was to make the basement of the appellants' premises damper and their rooms less wholesome, to cause smells in their house, and by checking the draught of the fires to make the chimneys smoke, and to seriously and prejudicially affect the ventilation of their house and so to cause them pecuniary damage. The learned Judge thereupon gave judgment for the appellants and granted an injunction, ordering the respondent to pull down a portion of the new building he had erected, being of opinion that such new building constituted a nuisance to the appellants' premises by interfering with the ventilation which they had previously enjoyed, by making the basement damp, and the rooms stuffy and uncomfortable to live in. The respondent having applied to the Court of Appeal that the judgment should be entered in his favour as far as the order for the pulling down of the new building was concerned, the case was heard before Lord Justice Lopes, Lord Justice Kay, and Lord Justice Lindley, who reversed the decision of Mr. Justice Cave, on the ground that, although the want of ventilation and the absence of the means of carrying off the bad smells on the appellants' premises had probably been aggravated by the respondent's new building, yet that nothing deleterious, nothing hurtful, and nothing disagreeable had been brought upon the appellants' premises by anything that the respondent had done. Their Lordships also held that if a nuisance existed on the appellants' premises it was not created by the respondent, and that the appellants had no legal right to a free passage of air which would remove disagreeable smells created upon their own premises. They likewise held that if the appellants had been inconvenienced by anything the respondent had done, it was damnum absque injuria and afforded no legal ground of complaint; and further that the right to air claimed by the appellant was too vague to be properly the subject of a presumption of lost grant or covenant. The appellants now sought to have the decision of the Court of Appeal reversed and that of Mr. Justice Cave restored.

The LORD CHANCELLOR doubted whether it would be argued that the right to access of air to a window could not be acquired by twenty years'

user.

Eventually counsel informed their Lordships that it had been agreed between the parties that the appellants should withdraw their claim for an injunction, that the judgment in the Court of Appeal should be varied by increasing the damages awarded to the appellants to £300 in respect of both obstruction of light and interference with access of air, and that the respondent should pay the cost of the trial and of the appeal to the Court of Appeal and this appeal.

Their LORDSHIPS expressed approval of the course which had been taken, and

Lord MORRIS said the amount was that which had occurred to his own mind.

The further consideration of the appeal was thereupon adjourned sine die.

(814.)

RYMER v. MCILROY.

[FEBRUARY 24TH AND 25TH.]

Easement-Right of Way-Grant in Gross-Covenant with Yearly Tenant and his "Heirs and Assigns "-Effect of acquiring Fee Simple.

A., the owner in fee of Three Acre, conveyed it to B by a deed dated March 12, 1869, which recited that it had been agreed that on completion of the purchase B should grant to A, his "heirs and assigns," a right of way over a defined footway leading from a public road across Three Acre to Blackacre. The deed also referred to another deed as then prepared, which when executed was dated March 13, 1869, whereby B, in pursuance of this agreement, and in consideration of the conveyance of Three Acre, covenanted and granted with and to A, his heirs and assigns," that it should be lawful for them and the tenants and occupiers for the time being of Blackacre to use the footway. A was then and until 1870, whea he purchased the fee simple, only tenant from year to year of Blackacre.

Held, that, notwithstanding the limited interest of A when the easement was granted, and the cesser of that interest by merger in 1870, a lessee of Blackacre claiming under the freehold title of A was entitled to use the footway.—(L. R. [1897], C. D., vol. i. p. 528.)

(815.)

NEW MOSS COLLIERY COMPANY v. MANCHESTER, SHEFFIELD, AND LINCOLNSHIRE RAILWAY COMPANY.

[MARCH 8TH AND 9TH, 1897.]

Canal—Right to Support—Subjacent and Adjacent Minerals—
Working-Undertaking not to Sue.

The defendants' canal was constructed under an Act of Parliament by which the canal was to be open for use by the public on payment of tolls. Two sections of the Act (37 and 38) were identical in effect with the statutory provisions construed by the House of Lords in Knowles & Sons v. Lancashire and Yorkshire Ry. Co. (1889), 14 Ap. Case 248, and Chamber Colliery Co. v. Rochdale Canal Co. (1895), A. C., 564.

By section 37 nothing therein contained was to affect the right of any owner of land in the mines and minerals under the lands to be made use of for the canal, but it should be lawful for him to work the same, not thereby injuring, prejudicing, or obstructing the canal.

By section 38, if the mine-owner should in pursuing the mines work near or under the canal so as in the opinion of the canal company to

endanger or damage the same, or in the opinion of the mine-owner to endanger or damage the further working thereof, it should be lawful for the company to treat and agree with the mine-owner for all minerals near or under the canal which should be thought proper to be left for the security of the canal or mines, and in case of disagreement, then, upon the request of either the company or the mine-owner, the amount of satisfaction should be assessed, and upon payment thereof the mine-owner should be perpetually restrained from working the mines within the limits for which satisfaction should be given.

Plaintiffs were the owners of coal mines under the canal and the lands on both sides of it, and, being advised that if they continued their workings within certain limits on both sides of the canal they would damage it, they gave the defendants (who had succeeded to the rights and obligations of the canal company) notice of their intention to work the subjacent and adjacent coal, and requiring them to treat for the coal necessary to be left for the security of the canal. The defendants replied that no coal need be left, and declined to treat.

-

Plaintiffs then sued defendants for (a) a declaration that they were entitled to work all their adjacent coal, although the result might be to endanger or damage the canal, or, in the alternative, (b) a declaration that plaintiffs were entitled to be paid, under section 38, satisfaction for adjacent coal left as canal protection. Plaintiffs also claimed a declaration that under sections 37 and 38 they were entitled to be paid satisfaction for the subjacent coal left as protection :

Held, that the plaintiffs were entitled to declaration (a), but that on the plaintiffs and defendants making admissions (substantially to the effect of the referee's findings in the Chamber Colliery Case, see [1894], 2 Q. B. 635) that the cost, if any, of repairing damages to be sustained to the canal and works by getting all the coal would be trifling compared with the value of the coal required to be left for the absolute protection of the canal and works, and that such damage could be repaired from time to time, and would not interfere with the navigation, and on the defendants undertaking (substantially in accord with the undertaking required by the Court of Appeal in the Chamber Colliery Case [1894], 2 Q. B., 632, 642), not to claim damages in the future in respect of the plaintiffs working the subjacent coal, and at their own expense to repair any damage thereby caused, the plaintiffs were not entitled to any declaration respecting the subjacent coal.—(L. R. [1897], C. D., vol. i. p. 725.]

(816.)

[COURT OF APPEAL.]

SIMPSON v. HUGHES AND ARMSTRONG.

[MARCH 9TH, 1897.]

(For a previous stage of this Case, see p. 325 ante.)

Vendor and Purchaser—Sale of Land-Specific Performance – Contract contained in Letters-Reference in Acceptance to Date of Completion-New Term.

The defendant Hughes was the owner of a freehold estate. On the 7th November, 1895, his agent wrote to the plaintiff offering it for sale at £2,000. On the following day the plaintiff replied accepting the offer, and his letter went on to say, "I should like to know from what time Mr. Hughes wishes the purchase to date." In an action for specific performance against Hughes and Armstrong, with whom Hughes had entered into a subsequent contract for sale, it was contended by Armstrong that there was no completed contract, inasmuch as the letter of acceptance contained a reference to a new term upon which the parties never agreed.

Held, that the letter of the 7th November was a definite offer of the property for £2,000, not an invitation to negotiate; and that the reply of the 8th November was a complete acceptance, and constituted a binding contract between the parties, and must be read just as if the inquiry as to from what time Hughes wished the purchase to date had never been inserted, for it was no part of the contract, a reasonable time within which the contract would be completed being imported by law.

Decision of Romer, J. (75 L. T. R. 487) affirmed.-(L. T. [1897], vol. lxxvi., p. 237.

(817.)

FLOYD . J. LYONS AND CO., LIMITED.

[MARCH 12TH, 1897.]

Landlord and Tenant-Covenants-" To Pay all Rates, Taxes, Water Rate, &c."- Construction- Water Rate-Water Used for Trade Purposes held not within the Covenant.

This was an appeal from a decision by Mr. Justice Kekewich. By an indenture of lease dated January 11, 1895, the plaintiff, Mrs. Floyd, demised to the defendants the well-known refreshment contractors, the ground floor and basement of Nos. 19 and 20, Walbrook, for a term of thirty years from December 25, 1894, and the lease contained a covenant by the lessor to pay "all rates, taxes, and assessments, water rate, and other outgoings, except the gas and electric light now or hereafter to be imposed or assessed upon the said premises or on the lessor or lessees in respect thereof." These premises communicated with the ground floor and basement of No. 20, Budge Row, in which the plaintiff had no interest, and the whole of these premises (both Walbrook and Budge