L. C. and L. JJ. 1873 In re MOTION. MAULE V. DAVIS. of the 15th of April, 1869, for fraud, and the costs payable by him will be set off against those which he is to receive; as to the rest of the costs of the proceedings in Bankruptcy, we think they ought to be reserved until the result of the inquiry which we direct is known, and be disposed of on further consideration after that inquiry. Solicitors: Messrs. Linklater, Hackwood & Co.; Messrs. H. F. & E. Chester; Mr. J. R. Chidley. L. C. and L. JJ. 1873 Nov. 24; Dec. 3, 4. CITY OF LONDON BREWERY COMPANY v. TENNANT. [1871 L. 145.] Mandatory Injunction-Damages-Light and Air—Rule as to Forty-five Degrees. It is not to be laid down as a general rule that, where a building injuri ously affecting ancient lights has been completed before the bill is filed, the Court is unable to give damages unless the injury is such as would justify a mandatory injunction. Durell v. Pritchard (1) explained. Per the Lord Chancellor :-The fact that the height of a building above an ancient light is not greater than its distance is not conclusive evidence that the light is not injuriously affected, but is primâ facie evidence of there being no such interference with the light as the Court will restrain, and requires to be rebutted by special evidence of injury. Observations as to evidence relating to obstruction of air as well as light. THIS was an appeal by the Plaintiffs from a decree of Vice Chancellor Wickens dismissing their bill with costs. The Plaintiffs were the owners of a public-house called the Old Swan, in Swan Lane, Upper Thames Street, in the city of London, abutting west on Swan Lane, south on a space called Old Swan Wharf, and east on a passage leading out of Old Swan Wharf. The Defendants were owners of premises bounded by the western side of Swan Lane and Old Swan Wharf, and extending considerably further south than Old Swan Wharf, the eastern boundary of these premises being a nearly straight line running directly south. The southerly part of the Defendants' property consisted (1) Law Rep. 1 Ch. 244. L. C. and L. JJ. 1873 CITY OF LONDON V. TENNANT. in part of an open passage running westwardly, and in part of a low warehouse lying in a south-westerly direction from the southern front of the Old Swan Inn. In 1871 the Defendants pulled down the warehouse, and commenced building on the site, and over the above-mentioned passage, a block of buildings about fifty feet high. BREWERY Co. On the 9th of October, 1871, the Plaintiffs gave the Defendants notice that they claimed free access of air and light to the windows on the southern and western sides of the inn, and required the Defendants to desist from building to such a height as to interfere with them, and that in default of their compliance with this notice an injunction would be applied for. The Defendants' solicitors sent a reply that they would accept service; and on the 12th of October, 1871, the bill was filed, praying for an injunction to restrain the Defendants from erecting or completing, or allowing to remain on their land, any building interfering with the access of light to the Plaintiffs' ancient windows, and, in the alternative, for damages. At this time the building was in part about thirty-seven feet high, and in other part forty-eight feet high. An application for an injunction was made to Vice-Chancellor Wickens on the 17th of October, and ultimately, after abortive negotiations as to a reference by consent to assess damages, the motion was ordered to stand over to the hearing. The question ultimately turned solely on the obstruction of light coming to ancient windows on the southern side. On the 16th of July, 1873, the cause was heard on motion for decree before Vice-Chancellor Wickens, who dismissed the bill with costs, being of opinion that no injury to the Plaintiffs was proved. The Plaintiffs appealed. Mr. Greene, Q.C., and Mr. C. Walker, for the Appellants, referred to Yates v. Jack (1), Staight v. Burn (2), and Heath v. Bucknall (3). Mr. Dickinson, Q.C., and Mr. W. Pearson, for the Defendants:The only right the Plaintiffs could have when they filed their bill was a right to a mandatory injunction. They have shewn no (2) Law Rep. 5 Ch. 163, (1) Law Rep, 1 Ch. 295. (3) Law Rep, 8 Eq. 1. L. C. and L. JJ. 1873 CITY OF LONDON BREWERY Co. V. TENNANT. case for that, and they therefore cannot have damages: Durell v. Pritchard (1). [The LORD CHANCELLOR referred to Holmes v. Upton (2).] (1) Law Rep. 1 Ch. 244. HOLMES v. UPTON. (2) THE substance of the bill filed on the 23rd of March, 1837, was as follows: It stated an Act of 4 Will. 4 constituting trustees of the Wazley, Armley, and Bramley district of road, in the county of York, and empowering them to make certain roads with all arches, culverts, drains, &c., requisite for the accommodation of the owners of the adjoining lands, and to take for that purpose any lands mentioned in the book of reference therein mentioned, upon making compensation to the owners. By this Act it was provided that if in making the roads any embankment should be made in the lands of Ann Holmes, it should not be more than thirteen feet high, and that the trustees should make convenient communications across it, and that no deviation should be made in the lands of Ann Holmes more to the north than the line drawn in the map therein mentioned, without her consent in writing. That at a meeting of the trustees, the Defendants, the Uptons, were appointed clerks to the trustees, and a committee was formed for making a branch road authorized by the Act. That the line of this road was staked out in conformity with the line on the parliamentary plan. That on the 1st of November, 1834, a notice to treat for the land required for this purpose was given to the solicitor of Ann Holmes, who accepted service, subject to a specification of the works to be done being furnished. That no proper specification was furnished, and after some fruitless negotiations, the trustees in January, 1835, made a final offer of £149 for purchase-money, and £100 for damage by severance and otherwise. That this offer was declined, and thereupon a jury was summoned to ascertain the compensation. That on the 13th of February, 1835, the jury assessed the compensation at £329, which was afterwards paid. That the land so paid for was the land staked out for the branch road, and no part of it lay north of the parliamentary line. That the magistrates of the borough of Leeds, at a special sessions on the 30th of August, 1836, and again on the 12th of September, 1836, refused to certify that the road was completely opened and fit for public use. That in October, 1836, Ann Holmes died, having devised her estate to the Plaintiff. That in pursuance of an order of the trustees made on the 18th of November, 1836, one W. Hardcastle (the contractor employed by the trustees) proceeded to erect five buttresses upon the Plaintiff's land, against the wall confining the embankment upon which the road was carried through the Plaintiff's land, and that each of the buttresses extended more than five yards on the north side of the parliamentary line. That the Plaintiff, as soon as she was aware of the intention of the trustees to encroach on the north of the line, served notices on them to desist. That, notwithstanding the notices, the work went on, and the Plaintiff accordingly commenced an action of trespass against Hardcastle and one of the trustees who had actively interfered in directing the encroachment. That on the 28th of December, 1836, the trustees offered £25 as compensation, which was refused: That the Defendants in the action pleaded, and paid £25 into Court, L. C. It is not sufficient for the Plaintiffs to shew that some light has been obstructed: they must shew that the house is made sub- and L. JJ. stantially less fit for occupation: Back v. Stacey (1); Kelk v. after which they went on and completed the five buttresses, and threatened and intended to erect a sixth also on the north side of the parliamentary line. That the Plaintiff, on the 13th of February, 1837, served the trustees with a notice, desiring them to remove the encroachments within twelve days, and informing them that if they did not, actions would from time to time be brought against them for continuing the encroachment. The bill went on to allege that the buttresses were made necessary solely by the faulty construction of the wall. The bill further alleged that in constructing the road over the Plaintiff's land no sufficient culverts or drains had been made so as to allow the water on the Plaintiff's land to flow in its accustomed courses, and that such water, being interrupted in its courses by the embankment, was thrown back and made to flow over the Plaintiff's land, and that the road had been so constructed as to throw the water and sand which was washed from the surface of the road and embankment upon the Plaintiff's land, whereas they were required by the Act to make all culverts, ditches, and drains necessary for the Plaintiff's convenience. The bill referred to an Act under which the trustees might be sued in the names of their clerks, and it prayed an injunction to restrain the trustees from encroaching upon the Plaintiff's land to the north of the road by making or building any further buttresses or other works thereupon, or in any other manner, and that they might be in like manner injoined from continuing the encroachment already made.on the land, and that they might, if neces 1873 CITY OF LONDON BREWERY CO. sary, be compelled by the decree of the Court to remove the works already TENNANT. erected by them in violation of the Act, and to withdraw from the Plaintiff's land, after reinstating the same in its former plight and condition; and that they might be restrained by the like injunction from continuing the road in such a state and condition as to cause the surface water therefrom to flow upon or over the Plaintiff's lands, or to cause the water upon the Plaintiff's lands to be interrupted in its accustomed courses, and to be thrown back upon the Plaintiff's lands; and for further relief. The Defendants, by their answer, insisted on the right of the trustees to erect the buttresses, and asserted that they had made sufficient drains and culverts for allowing the water on the Plaintiff's land to flow in its accustomed courses, and for carrying off the surface water from the road and embankment. Nov. 19, 1840. Lord Cottenham made a decree granting a perpetual injunction to restrain the trustees of the road, their workmen, &c., "from encroaching upon the lands of the Plaintiff to the north of the road so constructed as in the bill mentioned, by making or building any buttresses or other works thereon, or in any other manner, and from continuing the said road in such a state and condition so as to cause the surface water therefrom to flow upon or over the Plaintiff's lands, or to cause the water upon the Plaintiff's lands to be thrown back upon the Plaintiff's said lands." Reg. Lib. A. 1840, f. 169. (1) 2 Car. & P. 465. I. C. and L. JJ. 1873 Pearson (1). This they fail to do. Where the angular height of the erection is not more than forty-five degrees, the Court will not interfere: Beadel v. Perry (2). The obstruction here is lateral, which is less important than an obstruction in front: Clarke v. BREWERY CO. Clark (3). The Plaintiffs' evidence, which only says there is a "material diminution of light," is too vague: Robson v. Whitting ham (4). CITY OF V. TENNANT. Mr. Walker, in reply, referred to Dent v. Auction Mart Company (5). SIR W. M. JAMES, L.J.: This appeal from the Vice-Chancellor is an appeal upon a mere question of fact, in which the burthen of proof lies upon the Plaintiffs. In all these cases as to light and air the Court of Equity is not administering any equitable relief strictly so called, but is giving an equitable remedy for the violation of a legal right, and the question before a Court of Equity in all these cases is substantially the same question as that which would have to be determined by a jury under proper directions by a Judge as to the principles of law applicable to the case. Here we have to charge ourselves, performing the functions of both Judge and jury, in the same manner as if we were charging a special jury. In the case of Kelk v. Pearson the Lord Justice and myself endeavoured to express what we thought to be the rule applicable to these cases, and I believe the Lord Chancellor entirely agrees with the mode in which it is there expressed. We only repeated in different words what is to be found in many previous cases, that the extent of the right of an owner of ancient lights is to prevent his neighbour from building 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—that is to say, that he is "entitled to sufficient light, according to the ordinary notions of mankind, for the comfortable use and enjoyment of that house as a dwellinghouse, if it were a dwelling-house, or for the beneficial use and (1) Law Rep. 6 Ch. 809. (3) Law Rep. 1 Ch. 16. (5) Law Rep. 2 Eq, 238, 254, |