No. 4. Kelk v. Pearson. —Notes. There would be a mandatory injunction to pull the building down to the level of the plaintiff's garden-wall. ENGLISH NOTES. The provisions of section 2 of 21 & 22 Vict. c. 27 (commonly called Lord Cairns' Act) are frequently, and sometimes successfully, invoked in opposition to an application for an injunction. The material words of the section are as follows: "In all cases in which the Court of Chancery has jurisdiction to entertain an application for an injunction against the commission or continuance of any wrongful act . . . it shall be lawful for the same Court, if it shall think fit, to award damages to the party injured, either in addition to or in substitution for such injunction, . . . and such damages may be assessed in such manner as the Court shall direct." In the recent case of Dreyfus v. Peruvian Guano Co. (C. A. 1889), 43 Ch. 316, the Lord Justices of Appeal, COTTON, BOWEN, and FRY were unanimously of opinion that this jurisdiction to substitute damages for an injunction only arises where an actual wrong has been committed, and that it cannot be invoked in quia timet actions. When the case of Aynsley v. Glover (No. 2 ante) was before the MASTER OF THE ROLLS upon an application for an interlocutory injunction, he entered fully into the circumstances under which the Court would give damages in lieu of granting an injunction (see ante, pp. 25 et seq.). The same learned Judge had occasion to consider the question again in a right of way case, Krehl v. Burrell (1877), 7 Ch. D. 551, 47 L. J. Ch. 353. At 7 Ch. D. p. 554, he is reported, "The question I have to consider is, whether the Court ought to exercise the discretion given by the statute, by enabling the rich man to buy the poor man's property without his consent; for that is really what it comes to. If with notice of the right belonging to the plaintiff, and in defiance of that notice, without any reasonable ground, and after action brought, the rich defendant is to be entitled to build up house of enormous proportions, at an enormous expense, and then to say in effect to the Court, 'You will injure me a great deal more by pulling it down than you will benefit the poor man by restoring his right,' of course that simply means that the Court in every case, at the instance of the rich man, is to compel the poor man to sell him his property at a valuation. It could never have been meant to invest the Court of Chancery with a new statutory power, somewhat similar to that with which railway companies have been invested for the public benefit under the Lands Clauses Act, to compel people to sell their property without their consent at a valuation." This case came twice before a the Court of Appeal, but it was only on the second occasion that the effect of Lord Cairns' Act had to be considered. The Lord Justices then held, that where the right was clear, the Court had no power under the statute to oblige the owner of the dominant tenement to accept damages in lieu of an injunction, especially in those cases where the defendant had proceeded to do the wrong after action brought. Krehl v. Burrell (C. A. 1879), 11 Ch. D. 146, 48 L. J. Ch. 252. Where a defendant has given an undertaking to abide by what is conventionally termed a "pulling down" order, the Court will only in an extreme case substitute damages for an injunction: Greenwood v. Hornsey (1886), 33 Ch. D. 471, 55 L. J. Ch. 917. A very recent case in which the Court refused to exercise the discretion vested in it under Lord Cairns' Act is Dicker v. Popham (1890), 63 L. T. (N. S.) 379, a case which contains a review of the authorities. It is no objection to the granting of a "pulling down" order that the building which obstructs ancient lights was completed before the writ was issued, the material point for the Court to consider is what is the state of the new building when the plaintiff first complains: Smith v. Day (C. A. 1880), 13 Ch. D. 651; Lawrence v. Horton (1890), 59 L. J. Ch. 440. In the latter case Mr. Justice CHITTY treated a defendant, who had run up a building in a hurry, with wholesome severity. Where the Court grants an injunction at the hearing, it is generally in the form conventionally known as a "pulling down" order, an object which is attained by granting an injunction, restraining the defendant from permitting the obstruction to remain so as to darken, injure, or obstruct the ancient lights. The words "so as to darken, injure, or obstruct" were settled as a correct expression by the MASTER OF THE ROLLS (Sir G. JESSEL) in Willoughby v. Hicks, 25 Nov. 1875, Reg. Min. The plaintiff is entitled, where an injunction is the proper remedy, to have the order made without any qualification. Parker v. First Avenue Hotel Co. (C. A. 1883), 24 Ch. D. 282. In that case NORTH, J., had granted an injunction against the raising of a new building above a named height; with the additions, that the injunction was not to prevent the defendant from putting on a sloping roof of greater height, so long as the angle of incidence of light over such sloping roof to the centre part of the plaintiffs' windows should be not less than 45° from the perpendicular at the point of incidence. The Court of Appeal determined that such a qualification must be struck out, and still further varied the order by adding the words: "And it being alleged that the defendants have since the judgment . . erected buildings, which are in violation of the judgment as now varied, grant an injunction to restrain the defendants from continuing or permitting to remain any buildings erected in violation of the judg ment as now varied." There are four reported cases in which the Court held that damages should be given in lieu of an injunction. The first is National Provincial Plate Glass Insurance, &c. Co. v. Prudential Assurance Co. (1877), 6 Ch. D. 757, 762, 46 L. J. Ch. 871. In that case FRY, J., awarded substantial damages (£200) in lieu of an injunction, and considered it material that the room lighted by means of the ancient light was, before the obstruction complained of, dark; that the building scheme in some respects, benefited the plaintiffs; and that there had been delay on the part of the plaintiffs although not such as to afford a defence against the claim to an injunction. In Holland v. Worley (1884), 26 Ch. D. 578, 54 L. J. Ch. 268, PEARSON, J., took into consideration the facts that the injury would not be so great as to render the property useless, even for the purpose for which it was employed; and that it was situate in the heart of a great city (London). These he considered sufficient reasons for awarding £150 damages in lieu of an injunction. And in the later case of Allen v. Ayres, W. N. (1884) 242, PEARSON, J., following his former decision in Holland v. Worley (supra cit.), referred the matter to Chambers to assess the damages. The grounds upon which he proceeded were that if, after taking all the circumstances into consideration, the Court arrived at the conclusion that a money payment would be adequate compensation to the plaintiff, the Court ought to be very slow in granting an injunction. And upon the evidence he came to the conclusion that the obstruction would not be such as to prevent the plaintiff from carrying on his trade, with the aid of gas light, substantially as he was then doing. These decisions, however, of Mr. Justice PEARSON seem contrary to the principles laid down by the MASTER OF THE ROLLS and the Court of Appeal in Krehl v. Burrell, and they are adversely commented upon in the more recent cases of Greenwood v. Hornsey and Dicker v. Popham (p. 55, supra). The present bearing of the Courts is in favour of allowing the plaintiff to enjoy his rights and to protect his enjoyment by injunction. Where a sole plaintiff died pending action for an injunction and damages, Mr. Justice CHITTY held, upon motion to discharge an order substituting B., the sole executor and devisee, that although in his character of executor he could only recover damages limited in respect of the wrong committed six months before the late plaintiff's death, yet in his character of devisee he was entitled to the remedy by injunction to the same extent as the testatrix, and dismissed the application: Jones v. Simes (1890), 43 Ch. D. 607, 59 L. J. Ch. 351. No. 5.- Newson v. Pender, 27 Ch. D. 43, 44.- Rule. No. 5.-NEWSON v. PENDER. RULE. WHERE upon an interlocutory application the Court, upon the materials before them, form the opinion that the plaintiff has shown a primâ facie case of right to ancient light, and that the works of the defendant, if carried out, will unduly obstruct the light, it is a question, on the balance of convenience, whether to grant the injunction until the hearing (upon the plaintiff's undertaking as to damages), or to allow the defendant to proceed with his building upon his undertaking to pull it down, if required. Where the defendant has commenced his operations after fair warning, and the injury to the plaintiff's property would be considerable, the former course appears preferable. Newson v. Pender. 27 Ch. D. 43-65 (s. c. 52 L. T. 9, 33 W. R. 243.) THE plaintiffs in this action were lessees, for a long term [43] of years, of a block of buildings four stories high, known as Great Winchester Street Buildings, in the city of London. A portion of the buildings faced Little Winchester Street towards the east, and were let to bankers, merchants, solicitors, and others. In the front, facing Little Winchester Street, were numerous * windows, some being on the ground floor, some on the [*44] first floor, and some on the second floor. Little Winchester Street is a narrow street, only about twelve feet wide, and the plaintiffs complained that the defendants threatened and intended to build a lofty pile of buildings on the opposite side of the street, which would obstruct the light coming to the above-mentioned windows in the plaintiffs' building. The plaintiffs' building had been recently erected, not having been constructed till the year 1867, but the building on the site of which it was erected had ancient windows looking into Little Winchester Street. There were forty-four windows in the old building, and forty-two in the three lower floors of the new build ing. Photographs had been taken of the old building before it was pulled down, as well as of the present building, from which it appeared that a few of the new windows on the ground floor were substantially in the same position as the old windows, although they covered a larger space; but by far the greater number of the new windows occupied only part of the spaces covered by the old windows, and extended considerably beyond them on one side or the other. Some of the new windows were in entirely different positions from any of the old ones, and some of the old windows were altogether built up. Annexed is a sketch of two of the new windows most nearly identical with the old windows, and one of the others, the position of the old windows being shaded. The foundations of the defendants' proposed building had been laid, but the walls had not been raised above the surface. The plaintiffs moved, on the 8th of February, 1884, before Vice Chancellor BACON, for an injunction till the hearing. Hemming, Q. C., Byrne, and C. J. H. Corbett, for the plaintiffs. Upon the plaintiffs' premises there used to stand a number of buildings of very various heights, to which there was a [*45] large * access of light; and some of these lights, and parts of many others, are preserved in the plaintiffs' new buildings. The defendants mean to raise their new buildings to the height of the highest of the plaintiffs' old buildings. The defence is practically this: "No doubt we are darkening your lights, but as you have enlarged your windows you are getting a great deal more light than you had in 1867-1870; and the old light of yours which we are obstructing is more than compensated for by the new light you are getting." The defendants also say that when we, the plaintiffs, pulled down in 1867, the houses, opposite to the sites of which the defendants are now building, a gentleman named Gregg, an architect employed as a surveyor by the defendants' predecessors in title, looked over the plaintiffs' premises, and "concluded" that the plaintiffs meant to abandon |