The action is usually brought by the occupier; but where the house is unoccupied, the owner may sue on the ground of damage to his property. If the house is inhabited, the owner may sue either alone or conjointly with the occupier (u). Where the house is inhabited, and the person suing is the owner, the Court will in general look for evidence from the tenant in support of the allegation of nuisance (x). Chap. VI. Who may sue. One of the nuisances to houses which most frequently calls Ancient lights. for the interference of the Court is the setting up by one man of erections on his land so as to obstruct the passage of light and air to the windows of his neighbour. It is not every impediment to the access of light and air which will warrant the interference of the Court by injunction, or even entitle the party alleging himself to be injured to damages at law. In order to found a title to relief in equity, or even at law, in respect of such an impediment, some material injury must be established (y). The rule at law as to the amount of obstruction which is actionable has been thus laid down by Lord Wynford in Back v. Stacey (z):-"To constitute an illegal obstruction of light by building it is not sufficient that the plaintiff has less light than before, or that the part of his house principally affected cannot be used for all the purposes to which it might otherwise have been applied. In order to give a right of action there must be a substantial privation of light sufficient to render the occupation of the house uncomfortable, or to prevent the plaintiff from carrying on his accustomed business on the premises as beneficially as he had formerly done" (a). of London Brewery Co. v. Tennant, 9 Ch. 217; Ecclesiastical Commissioners v. Kino, 14 C. D. 228. (u) Wilson v. Townend, 1 Dr. & Sm. 324; Jackson v. Duke of Newcastle, 3 D. J. & S. 275, 283. (x) Cleeve v. Mahany, 9 W. R. 882. See Radcliffe v. Duke of Portland, 3 Giff. 702; Curriers' Co. v. Corbett, 4 D. J. & S. 764, 771. (y) Johnson v. Wyatt, 2 D. J. & S. 18; see the judgment of Turner, L. J., in this case; Curriers' Co. v. (z) 2 Car. & P. 465, 31 R. R. 679. Chap. VI. When an injunction will be granted. It is not, moreover, in every case in which an action can be maintained at law for the obstruction of light that an injunc tion will be granted by the Court. If the injury caused by the abridgment of light is capable of being properly and adequately compensated by damages, the Court may decline to interfere by injunction (b). Practically, however, there is little difference with respect to light in the amount of damage which would entitle a man to maintain an action for damages and an action for an injunction (c) Whether or not the injury complained of is substantial enough for the interference of the Court is a question which must in each case depend on the particular circumstances of the case. It is impossible to find any precise standard by which to determine the amount of light necessary to induce the Court to exercise its protective jurisdiction. Each case must depend on evidence whether there has been a substantial reduction of the quantity of light which the owner of the house has a right to enjoy (d). It is not the law that there is a certain quantity of light which a man is entitled to and which is sufficient for him, and that the question is whether he has been deprived of that quantity of light. It is essentially a question of comparison whether by reason of the deprivation of light, the house is substantially less comfortable than it was before (e). There is no distinction in regard to the right to light between town houses and country houses (ƒ). A greater amount of evidence is needed to prove injury to light by lateral or oblique obstruction, than is necessary in case of direct obstruction; more especially when the buildings to the side are not erected upon what was previously an open space, but upon a space already to a great extent obstructed with buildings (g). (b) Jackson v. Duke of Newcastle, 3 D. J. & S. 275, 283; Jacomb v. Knight, ib. 533; Kelk v. Pearson, 6 Ch. 814. (c) Leech v. Schweder, 9 Ch. p. 476, per Mellish, L. J. (d) Calcraft v. Thomson, 15 W. R. 387; Staight v. Burn, 5 Ch. 166. (e) Kelk v. Pearson, 6 Ch. 814; Warren v. Brown, (1902) 1 K. B. 15 (C. A.). (f) Dent v. Auction Mart Co., 2 Eq. 238; Martin v. Headon, ib. 425. (g) Clarke v. Clark, 1 Ch. 16, 20; City of London Brewery Co. v. Tennant, 9 Ch. 212, 220; Kino v. Rudkin, 6 C. D. 161. Chap. VI. When an be granted. It is not necessary in order to entitle a man to relief, that a present existing injury should be shown, and it is no defence to say that the plaintiff has sufficient light for his present injunction will business (). There is no standard of the light ordinarily required by a house for the purposes of habitation or business, and if there is an obstruction which causes diminution of light, such as to cause substantial damage to the owner or tenant, that is an interference which entitles the plaintiff to relief though the house may be no worse lighted than the majority of houses in the neighbourhood, or may have abundant light for all ordinary purposes of habitation or business (i). The defendant must be able to show that for whatever purpose his neighbour may wish to employ the light there would be no material interference with it (j). The quantity of light a man has a right to receive, is as much a part of his property as his house, and requires equally the protection of the Court (k). The fact that the plaintiff may have obscured in an insignificant or partial degree his own windows, does not deprive him of the right to restrain another person from erecting a building so as seriously to diminish the supply of light (). Nor is it any answer to say, if a man's ancient lights be interrupted, that there are remedies which he can provide for himself by making changes in his own house (m). In determining whether there has been a substantial inter- The angle of 45 degrees. ference with light, judges in the Chancery Division have sometimes relied too much on the provision as to 45 degrees contained in the Metropolis Management Act, 1862 (n). The (h) Yates v. Jack, 1 Ch. 295 ; Aynsley v. Glover, 18 Eq. 548; Moore v. Hall, 3 Q. B. D. 178. (i) Warren v. Brown, (1902) 1 K. B. 15 (C. A.); approving Kelk v. Pearson, 6 Ch. 809, 814, and disapproving Lanfranchi v. Mackenzie, Eq. 421, and Dickinson v. Harbottle, 28 L. T. 186. (j) Yates v. Jack, 1 Ch. 295; Aynsley v. Glover, 548; Warren v. Brown, (1902) 1 K. B. 15 (C. A.). (k) Martin v. Headon, 2 Eq. 434; Scott v. Pape, 31 C. D. 554. (1) Arcedeckne v. Kelk, 2 Giff. 683; Baxter v. Bower, 44 L. J. Ch. 625. (m) Dent v. Auction Mart Co., 2 Eq. 250; Mackey v. Scottish Widows Insurance Co., I. R. 11 Eq. 541. (n) 25 & 26 Vict. c. 102, s. 85, repealed, but in substance re-enacted by the London Building Act, 1894, 8. 49. Chap. VI. provision as to 45 degrees in this Act was intended to deal with the width of streets, and was not intended to lay down any rule applicable to the light which a man is entitled to enjoy in the city of London. There is no conclusion of law that a building will not obstruct the light coming to a window, if it permits the light to fall on the window at an angle of not less than 45 degrees from the vertical. The question of the amount of obstruction is always a question of fact which depends on the evidence in each case (o). There is no rule of law that a man may build up to an angle of 45 degrees, and, quare, whether such a rule could be considered even as a rough measure of the rights of the owner of ancient lights, but in judging of the probable effect of a proposed building the Court may not unreasonably regard the fact that an angle of 45 degrees will be left as primâ facie evidence that there will be no substantial interference and may require this presumption to be clearly rebutted by satisfactory evidence (p). The Metropolitan Buildings Act, 1855, 18 & 19 Vict. c. 122, ss. 83, 85, which gave "a right to the building owner to raise any party structure permitted by this Act to be raised upon condition of making good all damage occasioned thereby to the adjoining premises," was held not to authorise the raising of a structure so as to obstruct ancient lights in the adjoining premises (q). This Act has been repealed, and in substance London Building re-enacted by the London Building Act, 1894, sect. 101 of Act, 1894. which provides that "nothing in this Act shall authorise any interference with an easement of light, or other easements in or relating to a party wall." An injunction-when not granted. The shutting out a pleasant prospect (r), the erection of disagreeable objects in view (s), or the invasion of a man's privacy (0) Ecclesiastical Commissioners v. (p) Home and Colonial Stores v. (4) Crofts v. Haldane, L. R. 2 Q. B. 194; Bourke v. Alexandra Hotel Co., 25 W. R. 393, W. N. (1877) 157. (r) Aldred's case, 9 Co. R. 58 a.; Att.-Gen. v. Doughty, 2 Ves. Sen. 453; see Dalton v. Angus, 6 App. Ca. 798, 824. (8) Att.-Gen. v. Doughty, 2 Ves. Sen. 453; Potts v. Smith, 6 Eq. 315. See Roderick v. Aston Local Board of Health, 5 C. D. 328, where it was held that a Local Board of Health by the opening of a window looking over his grounds (t), give no right of action. Nor will the erection of buildings which prevent goods displayed in a shop from being seen from places where they would previously have been seen (u). If the right at law, and the invasion of that right be clear and free from doubt, the Court may interfere at once, and grant an injunction simpliciter (x); but if either the right at law, or the fact of its violation is not free from doubt, the Court will have regard to the comparative convenience or inconvenience of granting or withholding the injunction (y). In such a case, if on the balance of convenience and inconvenience it appear that the granting an injunction would be inflicting a great and disproportionate injury on the defendant, the motion will be ordered to stand over upon defendant undertaking to alter the building or otherwise deal with it, as the Court shall direct, if the right at law should prove to be in favour of the plaintiff (z). If on the other hand the Court shall be of opinion that the balance of convenience is in favour of granting an injunction rather than of allowing the defendant to complete his building with an undertaking to pull it down if required, an injunction will issue (a). It is not the practice of the Court on motion for an injunc- Appointment of tion to appoint a surveyor to report to the Court at the trial surveyor. of the action as to whether the windows of the plaintiff have been in fact obscured by the buildings of the defendant (b). But if at the trial (or on motion for an injunction by consent treated as the trial) the Court finds difficulty in ascertaining from the evidence the amount of the injury, it will appoint a surveyor to make a report (c). In a case where the Court was might under the Public Health Act, (u) Smith v. Owen, 35 L. J. Ch. K.I. |