Precedents.

DECLARATION IN CASE, FOR OBSTRUCTING AN ANCIENT WINDOW.

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For that whereas the said plt., long before, and at the time of the committing of the grievances hereafter next mentioned, was, and from thence hitherto hath been, and still is, lawfully possessed of a certain messuage and premises, with the appurtenances, situate, and being at, (local situation, but if any doubt as to it, omit the same, and state the house to be situale merely) in the county of B., in which said messuage and premises, with the appurtenances, during all the time aforesaid, there were, and still of right ought to be, divers, to wit, six windows, through which the light and *air, during all the time aforesaid, ought to have entered, and still of right ought to enter, into the said messuage and premises, with the appurtenances, for the convenient and wholesome use, occupation, and enjoyment thereof, and of which said premises the said deft. hath always had notice, to wit, at, &c., in the county aforesaid. Yet, the said deft., well knowing the premises, but contriving and wrongfully and unjustly intending to injure and prejudice the said plt., and to deprive him of the use, benefit, and enjoyment of the said windows, and to annoy and incommode him in the use, possession, and enjoyment of the said messuage and premises, with the appurtenances, heretofore, to wit, on, &c. (any day about the time), and on divers other days and times aforesaid, and before the commencement of this suit, to wit, at, &c. aforesaid, wrongfully and injuriously* greatly darkened the said windows, and hindered and prevented the light and air from coming and entering unto, into, and through the said windows, into the said messuage and premises, with the appurtenances, and the same have thereby been rendered and are uncomfortable, unwholesome, and unfit for habitation, and the said plt. hath thereby been, and still is, greatly annoyed and incommoded in the use, possession, and enjoyment of his said messuage and premises, with the appurtenances. [If any special damage, stale it.]

SECOND COUNT FOR CONTINUING THE OBSTRUCTION.

[Second count same as the first, to the asterisk, and then state as follows:] kept and continued, and caused to be kept and continued, the said windows greatly darkened, and hindered and prevented the light and air from coming and entering into and through the same, into the said messuage and premises, for a long space of time, to wit, hitherto. By means, &c. (Conclude as in the first count.)

Plea, see forms, post, "Case."

Evidence for Plaintiff.

In General.] Every man on his own land has a right to all the light and air which will come to him; and, if he erect on such land buildings with windows, looking towards the adjacent premises, and the owner thereof suffer the light and air to pass to those windows, without interruption, for twenty years, (within which period they may be obstructed), he may then prescribe for them as ancient windows, and claim to have them free from obstruction: Moore v. Rawson, 3 B. & C. 332; Cross v. Lewis, 2 B. & B. 689 ; 4 D. & R. 234; 2 Saund. 175, b.; Gray v. Bond, 2 B. & B. 667.

Plaintiff's Interest in Premises.] If the action be at the suit of the occupier, the plt. must prove his actual occupation, possession, in fact, being quite sufficient to sustain the action: 1 East, 212; Grimstead v. Martowe, 4 T. R. 719; 1 Show, 7, a. Proof of occupation by a mere servant for plt. would suffice: 16 East, 33; Litt. R. 139; 4 B. & C. If the action be at the suit of the immediate reversioner, or party entitled to the remainder in fee or in tail, or for a less estate (and who may sue if the obstruction be such as to injure the reversion, &c., 4 Burr. 2141, 1 Saund. 322, 2 ib. 252, b., 3 Lev. 209, Com. D. Ac

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tion on Case for Nuisance, B.), he should prove his interest accordingly, either by his tenant or otherwise. See post, "Reversioner,"

"Ejectment."

Situation of Premises.] This should be proved as stated in the declaration, as a variance would be fatal. It makes no difference whether the building in which the windows are obstructed, be proved as situated at the extremity of the land or not: Cross v. Lewis, 2 B. & C. 686, 4 D. & R. 234, s. c.

The Right to the Windows.] Plt. should prove either that [*82] *his house, with windows looking into the adjoining premises, have been so standing for twenty years, and that during that time the use of such windows has been uninterruptedly enjoyed, Moore v. Rawson, 3 B. & C. 332, Cross v. Lewis, 2 ib. 689, Bealey v. Shaw, 6 East, 208 (and which may be done by calling prior occupiers and witnesses, who can speak to the fact); or else he should prove a grant or presumption of a grant from the deft., or from a person under whom deft. claims such as proof that a party having land, built on it a house with lights, and afterwards sold the remainder of the land, the plt. and deft. both claiming under the original owner: 1 Lev. 122. Proof that plt. and deft. held under the same landlord (either in the cases of an adjoining house or where a house has been divided), and that the windows obstructed existed at the time of the demise, has been held sufficient, without proving twenty years' prescription for the windows, or that the house is not of recent construction, Riviere v. Bower, 1 R. & M. 25; and proof of the plt. being occupier of one of two houses built nearly at the same time, and purchased of the same proprietor, is sufficient in an action against the tenant of the other for an obstruction of the plt's lights by adding to his own building, however short plt.'s previous period of enjoyment of the lights may be proved to be: 1 Price, 27. If the action be against the immediate reversioner, &c., who has not been in the possession of the premises, plt. should, if possible, show that his windows have remained undisturbed with the acquiescence and consent of the deft. himself; inasmuch as a landlord or immediate reversioner cannot, without notice, be prejudiced by the laches or acquiescence of the tenant, in that which is a prejudice to the inheritance : Daniel v. North, 11 East, 372; Wood v. Veal, 5 B. & A. 454 ; Barker v. Richardson, 4 B. & A. 579; ante, "Admissions." If the plt. has discontinued the enjoyment of his light during the twenty years, he should prove that, at the time and during such discontinuance, he did some act to show an intention of resuming the enjoyment within a reasonable time: Moore v. Rawson, 3 B. & C. 332, 579. The position of the plt.'s house may frequently assist the jury in forming an opinion as to the fact whether the light is or is not obstructed, Cross v. Lewis, 2 B. & C. 688, 4 D. & R. 234, and for this purpose it should be proved: post, 83. If the plt. has licensed the defendant to obstruct the windows, without any consideration for such license, he should prove a countermand of such license, and a tender of the expenses incurred by deft. in consequence of such license;

Winter v. Brockwell, 8 East, 308; Taylor v. Waters, 7 Taunt. 374; Hewlings v. Shippam, 5 B. & C. 232.

Deft. caused the Injury.] This is established either by proving his actual erection of the nuisance by himself or servants, or that he is the occupier of the premises whereon the obstruction is placed: 4 T. R. 318, 2 H. B. 350. Proof that deft. superintended the erection of the obstruction, and that he particularly directed the workmen, will be sufficient, though he was a mere clerk: 6 Moore, 47. Where the action is for continuing the nuisance, such continuance, as well as the original obstruction, must be clearly proved. When deft. erects the nuisance and demises, proof of this will render him liable: 2 Salk. 460. If notice has been given to the person who immediately preceded deft., it will not be necessary to prove one was given to the deft., "as a person who takes premises on which a nuisance exists, and continues it, takes them subject to all the restrictions imposed upon his predecessor, by the receipt of such notice:" per Abbot, C. J, Salmon v. Bensley, 1 R. & M. 189. But it seems safest, where the action is not against the original erector, to prove a service of notice to discontinue the injury: Will. 583; Cro. J. 555; 5 Co. 100; ante.

The Injury.] The injury should be proved as described in the declaration, as a variance would be fatal. It is not necessary, however, to *prove all the means of obstruction as stated. In [*83] an action against a reversioner, it should seem that plt. must prove the obstruction was of a permanent nature, or else the damage so material as necessarily to affect his reversionary interest: see Jackson v. Peshed, 1 M. & S. 234; Attersol, v. Stevens, 1 Taunt. 202. It is not necessary to prove a total obstruction of light or air: Cotterell v. Griffiths, 4 Esp. Rep. 69; 2 Selw. 1046. And, according to Lord Kenyon's doctrine, ib., "any thing which tended to deprive a person of the enjoyment of the light and air in the same quantity to which his house was entitled as an ancient messuage, entitles plt. to an action;" but, according to Best's, C. J., judgment, in Back v. Stacey, 2 C. & P. 465, "it is not sufficient to constitute an illegal obstruction, that the plt. has in fact less light than before, nor that his warehouse, the part of his house principally affected, was not used for all the purposes to which it might have been applied. In order to give a right of action. and sustain the issue, there must be a substantial privation of light, sufficient to render the occupation of the house uncomfortable and to prevent the plt. from carrying on his accustomed business on the premises as beneficially as he had formerly done. His lordship added, "it might be difficult to draw the line, but the jury must distinguish between a partial inconvenience and a real injury to the plt. in the enjoyment of the premises." The plt. should use great care in getting up his evidence, and come well prepared with surveyors and plans, and every other means within his power of enabling the jury to form a correct decision; and it is in general advisable, when it can be conveniently done, that the jury should view the premises: Back v. Stacey, 2 C. & P. 466; see 2 B. & C. 688.

Damages.] Some substantial injury should be proved, but, however slight, it would be sufficient to entitle plt. to damages, though nominal: Cotterell v. Griffiths, 4 Esp. Rep. 69, 2 C. & P. 465; supra. In measuring the injury, plt. may show, by reason of his particular trade, he has been injured by his being deprived of a display of goods, &c. or another like fact; Reviere v. Bower, 1 R. & M. 25, 2 C. & P. 465. Plt. may, if stated in the declaration, show he has expended money in obtaining other light or the like. See "Case."

Evidence for Defendant.

Against Plaintiff's Right.] Inasmuch as twenty years' uninterrupted possession does not confer a legal right, but only raises a presumption of such right, deft. may rebut it by showing it does not exist, and that the possession has been interrupted: Cross v. Lewis, 2 B. & C. 689, 4 D. & R. 234, s. c. Proof that the window has been blocked up above twenty years, Lawrence v. Obee, 3 Camp. 514; or that plt., by some other means, discontinued the right of enjoyment: as by building up the window, pulling it down, or the like; for the right to light is acquired by enjoyment, and may be lost by a discontinuance of it, unless the party who ceases to enjoy, at the same time, does some act to show an intention of resuming the enjoyment within a reasonable time: Moore v. Rawson, 3 B. & C. 332; Cross v. Lewis, 2 ib. 689. The presumption of a right from twenty years' undisturbed enjoyment of light, is excluded by evidence of the custom of London: 2 Swans. 333, 1 Co. R. 273. The deft. may also rebut the evidence of the plt.'s prescription, by showing that, though plt. has had windows for twenty years, that within that period the land was glebe, and that, therefore, the rector, who was tenant for life, could not grant a sufficient license on which the prescription might attach, Baker v. Richardson, 3 B. & A. 579; or that the previous occupier within such period was merely his tenant, and he entitled to the immediate reversion, &c., as such act, being merely that of the tenant, could not exclude deft., Daniel v. North,

11 East, 372, ante, 82; or deft. may show that his obstruction [*84] was made in consequence of a license from plt. himself, *or one

from whom he claims, which will be a sufficient answer, though the license may have been revoked after the obstruction was made, unless, indeed, the deft's expenses have been tendered or paid: Winter v. Brockwell, 8 East, 308; ante, 82. Deft. may show a custom of London to build on an ancient foundation to any height: 1 Co. R. 273; 1 Wils. 45, 175. The mere circumstance of the windows being in a party wall, contrary to the 14 G. 3, c. 78, is no answer to an action for obstructing them: Titterton v. Conyers, 1 Marsh, 140.

ANIMALS.

See "NUISANCE."

ANNUITY, Action for.

Form of Remedy.

THE form of remedy for the arrears of an annuity granted by deed, is debt, Rudder v. Price, 1 H. Bla. 554, 2 Saund. 303, n. d., Owen, 42, Bac. Ab. Debt, A. C.; or covenant, 1 Chit. Pl. 105-6. But debt is the preferable remedy, as the judgment is final in the first instance. It is also more advisable to sue in debt on the covenant in the annuity-deed, than on the bond, because damages in the latter case must be assessed in pursuance of 8 & 9 Wm. 3, c. 11, s. 8. Where the grantor has become a bankrupt or an insolvent debtor, the grantee should proceed for arrears which become due after the insolvency, by action of covenant on the annuity-deed, and not by action of debt on the bond, to which the bankruptcy and certificate would frequently be a bar: Cullen, 92-4, 392; Cotterel v. Hooke, Doug. 97. No action is sustainable at law unless the annuity be granted by deed, and there must be an express grant in such deed: 2 D. & R. 603; 14 Ves. 491. And debt is not sustainable for the arrears of an annuity or yearly rent devised payable out of lands to A. during the life of B., to whom the lands are devised for life, B. paying the same thereout so long as the estate of freehold continues: Webb v. Jiggs, 4 M. & S. 113, 2 Saund. 304, n. 8. And this, although it is not stated in the declaration that the grantor had a freehold in the premises, out of which it was payable, as it must be inferred he had such an interest, till nothing appears to the contrary: Kelly v. Clubbe, 6 Moore, 335, 3 B. & B. 130, s. c. If the annuity-deed be void, the plt. may proceed for the consideration-money, or on the original contract, if valid: Pollard v. Scholey, Cro. El. 20; Scurfield v. Gowland, 6 East, 241; Shove v. Webb, 1 T. R. 732; post, "Money Had and Received."

Form of Pleadings.

Declaration.] There is nothing peculiar relating to the form of the declaration, the rules as to which are similar to those in other actions in debt or covenant on deeds or bonds. See "Debt," " Covenant.”

Plea.] The rules relative to pleas in actions on specialties here prevail: see "Debt”—“ Covenant.' The usual pleas are, that no memorial of the annuity or names of witnesses have been enrolled, in pursuance of the 53 G. 3, c. 141; or payment before or after the days specified, or usury, &c.

If no memorial be pleaded, and the consideration of the annuity *does not appear on the previous pleadings, it must be al- [*85] leged in the plea that the consideration was pecuniary: Horn v. Horn, 7 East, 529. A plea stating a defective memorial, should show that there was no other enrolled: Simmons v. Hunt, 1 Marsh. 155; Askew v. Makreth, 1 N. R. 214. The objection either to the deed or the memorial must be pointed out in the plea, and care taken that no VOL I.

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