THE absolute right to the enjoyment of light may (by the Statute 2 & 3 Will. IV. c. 71 § 3) be acquired by twenty years' uninterrupted enjoyment.

But the right to ancient light may also still be established by proof of enjoyment from time immemorial, although the proof of the twenty years' enjoyment under the Statute is interfered with by a temporary unity of possession during that time.

In either case, the fact that the windows in a new building are larger than, or that there are other windows besides, those through which the ancient light was enjoyed, does not destroy the right to enjoy the ancient light.

Tapling v. Jones.

34 L. J. C. P. 342-352 (s. c. 11 H. L. Cas. 290; 20 C. B. N. S. 1; 12 L. T. 555;

13 W. R. 617).

This action was commenced in the Court of Common Pleas on the 24th of February, 1858, and was brought for an alleged obstruction of the access of light and air to certain windows in the west side of a warehouse, No. 107 Wood Street, Cheapside, in the city of London, the property of the respondent, the defendant in error, and the plaintiff below.

VOL. III. - 1

No. 1.-Tapling v. Jones, 34 L. J. C. P. 342, 343.

The declaration consisted of two counts. The first count alleged a right on the part of the defendant in error to the access of light and air to certain ancient windows of a messuage and building in that count mentioned, and stated, by way of breach, that the plaintiff in error, by wrongfully building and continuing a wall near to such windows, prevented the light and air from coming to or entering the same. The second count alleged a right to the unobstructed access of light and air to the said windows, and averred as a breach that snel access was obstructed by the wrongful continuance of a wall, on a close opposite and near to such windows.

The defendant pleaded, first, not guilty; secondly, a traverse of the right alleged in the first count; and, thirdly, a traverse of the right alleged in the second count.

There was a replication joining issue on these pleas.

Upon these issues the cause came on to be tried, at the Sittings at the Guildhall of the city of London, on the 16th of February, 1859, when a verdict was entered for the defendant in error, for the damages claimed in the declaration, subject to a special case. A special case was afterwards stated which, so far as it is material, was to the following effect:

"The plaintiff is a wholesale dealer in silk, and now carries on his business at Nos. 107, 108, and 109 Wood Street. The plaintiff had for several years prior to 1857 carried on his business at Nos. 108 and 109 Wood Street, but he acquired possession of the premises No. 107 Wood Street, for the first time in the year 1857, having become the purchaser of them in the month of July in that year. Up to the time when the plaintiff acquired possession of the said premises No. 107, they were used and occupied as a public-house, known by the sign of the 'Magpie and Pewter Platter,' and were, and are, in a line with and next adjoining Nos. 108 and 109. The said premises, Nos. 107, 108, and 109, abut, on the rear or west side thereof, upon the east side of certain premises fronting in Gresham Street West, and therein numbered 1 to 8, hereinafter called the Gresham Street property. In the year 1852 the plaintiff pulled down his premises Nos. 108 and 109 Wood

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Street, which were then old and dilapidated houses, and [* 343] erected on their site new warehouses. In doing so he altered the position and enlarged the dimensions of the windows previously existing, increased the height of the building, and set back the rear or back line of those warehouses.

No. 1.Tapling v. Jones, 34 L. J. C. P. 343.

"The defendant, who is a carpet-warehouseman, on the 23rd of July, 1852, was tenant of the said Gresham Street property, and now holds the same under a lease for a term of eighty-one years. since granted to him. In and about the year 1856 the defendant pulled down the buildings then standing on the Gresham Street property in order to erect thereon a warehouse.

"The plaintiff, in July, 1857, immediately after his purchase of No. 107 Wood Street, made alterations in it by lowering the first and second floors so as to make them correspond with his adjoining new warehouses, Nos. 108 and 109, and by lowering two of the windows in such floors so as to suit the new position of the floors. One of the lowered windows was about one foot longer than before, and the other about the same size as the old one, and both occupied parts of the old apertures. A small window on the first floor was blocked up. He also built two additional stories to No. 107, in the first of which, viz. the fourth story of the premises, he put out a new window, and in the fifth or attic story he placed a window extending across the entire width of the building. These new windows and lights were so situated that it was impossible for the owners of the said Gresham Street property to obstruct or block them without also obstructing or blocking, to an equal or greater extent, that portion of the said windows and lights which occupied the site of the said ancient windows in No. 107.

"The said alterations and additions in No. 107 Wood Street, so far as the windows are concerned, were completed by the plaintiff in the month of August, 1857.

"After the alterations and additions to No. 107 Wood Street had been so completed, the defendant proceeded to erect his said intended warehouse and premises on the Gresham Street property, and built up the eastern wall thereof to such a height as to obstruct the whole of the windows and lights of No. 107 Wood Street. "The defendant refused to remove the said eastern wall of his warehouse and premises or any part of it.

'The question for the opinion of the Court is, whether the plaintiff is entitled to recover in respect of the obstruction of light and air complained of. If they are of opinion that he is so entitled, then the verdict entered for the plaintiff is to stand and the damages to be reduced to 40s.; if they think the plaintiff is not so entitled, then the verdict entered for the plaintiff is to be set aside and a verdict entered for the defendant."

No. 1.Tapling v. Jones, 34 L. J. C. P. 343, 344.

The Judges of the Court of Common Pleas were equally divided in opinion, the LORD CHIEF JUSTICE and Mr. Justice WILLIAMS being in favour of the plaintiff below, Mr. Justice KEATING and Mr. Justice BYLES being in favour of the defendant below. Mr. Justice KEATING thereupon withdrew his opinion, and judgment was given in favour of the plaintiff below. 11 C. B. (N. S.) 283; 31 L. J. C. P. 110.

The defendant below brought error upon that judgment, and the Court of Exchequer Chamber affirmed the judgment. There was a difference of opinion among the Judges; Mr. Justice WIGHTMAN, Mr. Justice CROMPTON, Mr. Baron BRAMWELL, and Mr. Justice BLACKBURN being in favour of the plaintiff below, and the LORD CHIEF BARON and Mr. Baron MARTIN being in favour of the defendant below. 12 C. B. (N. S.) 826; 31 L. J. C. P. 342.

The Attorney-General and Archibald, for the appellant. The right to an easement must rest on some presumed grant, and the extent of the grant is always to be referred to and measured by the user and the effect of it. The cases show that whatever may be the origin of the right, such right is measured by usage. So, if the effect on the property subject to the right is varied, the party having the right cannot claim the benefit of the right as to the old part which has remained unaltered, so as to shield the user of the new part. Such an alteration sets the owner of the servient tenement free to protect himself. As to the origin of the right

being presumed to be in grant before the Prescription Act, [* 344] -*Daniel v. North, 11 East, 372; Barker v. Richardson, 4 B. & Ald. 579, the old theory of the law still remains. Bright v. Walker, 1 Cr. M. & R. 211; 3 L. J. (N. S.) Exch. 250. The effect of material alterations which, if acquiesced in, would increase the servitude of the servient tenement, is to destroy the servitude, unless the new encroachment can be shut out without affecting the old right. The consent is to a different thing. The old right cannot be used as a shield for fresh encroachment. The continuance of what the servient tenant has done to protect himself from such encroachment cannot be prevented by the owner of the dominant tenement restoring the property to its original state. The servient tenant consented only to something of which the dominant tenant has deprived himself of the right to insist upon by altering the state of circumstances. Luttrell's Case, 4 Co. Rep. 87 a. The first case having direct application to the present

No. 1.- Tapling v. Jones, 34 L. J. C. P. 344.

is Cherrington v. Abney, 2 Vern. 646; and see Com. Dig., page 421, 5th ed., and Martin v. Goble, 1 Camp. 320. The cases of Dougall v. Wilson, 2 Wms. Saund. 175 a; Cotterell v. Griffiths, 4 Esp. 69; Chandler v. Thompson, 3 Camp. 80; 13 R. R. 756, and Thomas v. Thomas, 5 Tyrw. 810; 4 L. J. (N. S.) Ex. 179, are not relied upon, but merely mentioned in their order of date. The later cases on which reliance is placed are Garritt v. Sharp, 3 Ad. & E. 325; 4 Nev. & M. 834; Blanchard v. Bridge, 4 Ad. & E. 176; 5 L. J. K. B. 78; Renshaw v. Bean, 18 Q. B. R. 112; 21 L. J. Q. B. 219; Wilson v. Townend, 1 Dr. & Sm. 324; 30 L. J. Ch. 25; Davies v. Marshall, 4 L. T. (N. S.) 105; Cooper v. Hubbuck, 30 Beav. 160; 31 L. J. Ch. 123; and Hutchinson v. Copestake, 9 C. B. (N. S.) 863; 31 L. J. C. P. 19. The opinion of the majority of the Judges in the present case has been approved of by Vice-Chancellor WooD in Weatherly v. Ross, 1 H. & M. 349; 32 L. J. Ch. 128. The respondent abandoned his old rights; he had no intention of resuming them when he made the alterations, and he cannot resume them now. Liggens v. Inge, 7 Bing. 632; 9 L. J. C. P. 202; Stokoe v. Singers, 8 El. & B. 31; 26 L. J. Q. B. 257; Gale on Easements, pp. 500, 483-4; and Martin v. Hendon, 11 L. T. (N. S.) 590.

Sir H. Cairns and Cleasby, for the respondent, were not called upon.

The LORD CHANCELLOR. By the 3rd section of the Act 2 & 3 Wm. IV. c. 71, intituled "An Act for shortening the time of prescription in certain cases," it is enacted, "that when the access and use of light to and for any dwelling-house, workshop, or other building shall have been actually enjoyed therewith for the full period of twenty years without interruption, the right thereto shall be deemed absolute and indefeasible, any local usage or custom to the contrary notwithstanding, unless it shall appear that the same was enjoyed by some consent or agreement expressly made or given for that purpose by deed or writing."

Upon this section it is material to observe, with reference to the present appeal, that the right to what is called "an ancient light now depends upon positive enactment. It is matter juris positivi, and does not require, and therefore ought not to be vested on any presumption of grant or fiction of a license having been obtained from the adjoining proprietor. Written consent or agreement may be used for the purpose of accounting for the enjoyment of the servitude, and thereby preventing the title which would otherwise