man's mere opinion for law, apply to it the infallible test of principle, and if it will not stand this trial, it may safely be disregarded and eventually will find its appropriate place among cases overruled."

(3.) A third class of cases where lights are protected is, where a man builds next to a vacant piece of ground of his own and then sells the house thus built and the ground upon which it stands, reserving to himself the vacant parcel. He cannot after this sale build upon the vacant lot so as to stop or diminish the usefulness of the lights in the house which he sold, for by the sale of the house, all the lights, and the necessary incidents to make them useful, pass; and, as he cannot build himself to the prejudice of the house so sold, so cannot the vendee of the vacant ground do it. The same rule obtains if he sells a house thus built by another. And this proceeds upon the familiar principle, that a vendor of real estate is not permitted to do any thing to impair the value of his own conveyance, or rather of that which necessarily passes with it, and as he cannot, so cannot his vendee as he takes the adjoining premises cum onere.1 Upon the same principle, a landlord, who had demised premises adjoining a vacant lot of his own or next to a smaller building than the one demised, would not be permitted to build upon the former or rebuild the latter, in such a manner as to interfere with the tenant's lights during the continuance of the lease. In all these cases it is immaterial in respect to the right what has been the period of the enjoyment of the lights.*

It is believed, that what has already been said embraces substantially every case in which the right to lights may come in question, and furnishes principles by which the right to the use may readily be determined.

1 6 Mod. 314; 3 Selwyn, 972; 12 Mass. R. 157, Story v. Odin.

2 1 Price, 27, Compton v. Richards; 1 Lev. 122, Palmer v. Fletcher; } Ser. 137, Cox v. Mathews.

I have omitted any notice of the cases in which the right arising from the use of lights is or is not binding upon the reversioner, or where the use commences during a particular estate, and upon persons under age or coverture; and for the reason, that as the doctrine of presumptive right arising from user is not applicable in New York, an examination of these cases is unnecessary. On the same account, I have not noticed another class of cases, where the presumptive right arising from user is deemed to have been abandoned or released by non-user. It is only necessary to remark, in regard to these, that acquiescence by the tenant does not in England as a general rule bind the reversioner, and that a clear and indubitable abandonment of the use for a less time than twenty years will be deemed a relinquishment. In the case of ancient lights, if one pulls down the wall containing them and instead builds a plain one, unless some contemporary act be done, evincing an intention to resume the lights within a reasonable time, the right will be determined from the first.'

It only remains for me to consider, 3dly, the remedies which are furnished by the law for an infringement upon the use of lights to which a party is entitled.

The first and most obvious one is that by an action on the case, at the suit of the party grieved, wherein he recovers such damages as in the opinion of a jury he may have sustained by the obstruction. This action lies in all cases and the plaintiff may declare generally alleging that the window is entitled to be used, so as to admit light, &c., and that its usefulness has been impaired by an act of the defendant, and is authorized to recover upon proving it an ancient window or entitled to protection from any other cause. This action may be maintained as well against

2

1 3 Barn. v. Cres. 232; Mathews on Pr. Ev. 322.

2 12 Mass. 159, and cases there cited.

the person who erects, as the one who continues the obstruction; being a nuisance it never becomes lawful to continue it and he who does so is liable in damages. Another advantage of this remedy is that it is a continuing one, and after one recovery another suit may be prosecuted for the damages sustained after the commencement of the prior suit and a fresh recovery had. In such second or subsequent suit, the record in the former case is conclusive evidence of the right to recover; and the plaintiff may proceed in this way ad libitum until the offensive erection shall be removed. The measure of damages in the first action would generally be the actual injury which had been sustained by the deprivation of the accustomed light. If however the violation was wanton, even in that case, exemplary damages would be proper. In the subsequent actions, the jury would be authorized to give, in addition to the actual injury sustained by continuing the obstruction, vindictive damages against the defendant, for not taking heed to the legal admonition which he had previously received and removing the erection.

This remedy by action on the case may not only be pursued by the tenant of the particular estate for the injury which he has sustained, but the reversioner may also sustain it for the injury to his reversionary interest; and he may in like manner repeat the action for a continuance.1

The action upon the case is proper in all cases where the obstruction is committed on the premises of the owner of the lights.

A second remedy is by action of trespass when the injury is caused by fastening a wooden or other obstruction into the owner's wall or window. This action however would only lie at the suit of the party actually in possession; the

1 2 B. & Adolph. 97, Shadwell v. Hutchinson; Dyer 320 (a); 10 Mass. R. 72, Staple v. Spring; Salk. 460.

case.

reversioner upon general principles could only recover in And under our statute, though trespass by the tenant in possession would be a proper remedy, still he might bring an action on the case; the former distinctions between those actions being now obliterated by the enactment declaring that case may be brought in all cases where trespass lies.' The rule of damages in trespass is substantially the same

as in case.

A third remedy is that by an abatement by the act of the party himself of the nuisance which occasions the obstruction, and this though it be a mere private nuisance. This must be done in a peaceable and proper manner and in such a way as not to occasion a breach of the peace. If the offensive erection is on the land of another, the premises of the wrong doer may be entered, if that is necessary, to its removal. The reason why this is permitted is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice. But the illegal act, which may eventuate in a nuisance, cannot be prevented by anticipation, by the act of the party. However probable it may be, that a building about being erected will obstruct a privileged light, still the party who may be injured by it cannot forcibly prevent its erection. It must in some sensible degree have become a nuisance in order to authorize any manual interference. Before any actual injury has arisen the party apprehending it should apply to a court of equity for relief; a preventive remedy which I shall presently consider."

It should be observed in this connection and by way of showing what erections are within this right of abatement

1 2 R. S. 456, § 16.

3 Chitty's Pr. 727, note (u.)

9 Wend. 315, 571.

2 1 Chitty's Pr. 207.

4 Chitty's Pr. 649.

by the act of the suffering party, that no action lies, nor is any remedy furnished by the law, for diminishing or entirely shutting out the prospect given by a window, however ancient it may be.' Upon this principle it is held, that though a person may have a right to light and air to pass through his window into his building, yet the occupier of the adjoining land may prevent such party from overlooking his premises, by so placing boards or other obstructions under the window, as to prevent such overlooking; but taking care to commit no trespass upon the building containing the window. It would not therefore be lawful to remove or disturb such erections.

This right to abate a private nuisance is confined to the party aggrieved by it and those who act in his aid and assistance.

The fourth and last remedy to which I shall advert is that by an application to the court of chancery for an injunction to prevent the completion of the work which would cause an obstruction of the light, until the right has been tried at law. The bill in such case must shew the right of the party to enjoy the light, and the particular manner by which he is sought to be aggrieved. Upon notice to the other party, injunctions have been granted to restrain the erection of the building. The jurisdiction of the court of chancery in this respect, however, is very cautiously exercised, and if the legal right be doubtful, or if the nature of the alleged injury be such as not to require the preventive interference of the court or if the light is only partially affected, or there has been any considerable delay, an injunction will be refused and the party left to his remedy at law.'

19 Co. 58, 6.

21 Chitty's Pr. 649; 9 B. & Cres. 691, Aclett v. Ellis.

3 2 Strange, 335, 336, Wynstanly v. Lee; 2 Russ. 121, Rack v. Story; 1 Dick. 165; 16 Vesey, 333; 2 Vesey, 453; 1 Chitty, Pr. 727, 8.