house that its owner previously had? but how much is left, and is that enough for the comfortable use and enjoyment of the house according to the ordinary requirements of mankind?'

This puts the point in a nutshell, but it will be observed that the learned judge's conclusion is diametrically opposed to the terms of the judgment of Lords Macnaghten and. Lindley and to the spirit, if not to the terms, of the judgment of Lord Halsbury.

Another case in which the same question arose was Kine v. Jolly1. That was an action for obstruction of light to a suburban house. Kekewich J., who was the judge of first instance, found the facts as follows 2:

'The great cause of complaint has been of the obstruction of light to what has been called the morning room. It was an exceptionally well-lighted room, and even now is well-lighted; so that if the test were whether there is sufficient light left to enable the room to be used for the purposes for which it was designed there would be no further question. As I understand the judgment of the House of Lords, that is not the test, though it is a matter for consideration.'

He then considered all the circumstances, and came to the conclusion that the obstruction of light to the morning room was a nuisance within the meaning of the authorities; and he assessed the damage at £300 or £400.

The defendants appealed, and the Court of Appeal in substance affirmed the decision of Kekewich J.; and Cozens-Hardy L. J. stated the effect of Colls's case as follows 3:

"The decision in Colls's case therefore does not seem to me to amount to more than this-that an obstruction which neither lessens the letting or selling value of the house, nor materially affects the comfort or convenience of the occupier, does not in law justify an action even though a large proportion of light previously enjoyed has been lost.'

He further says this*:

'It has been strenuously urged on behalf of the appellant that all that we have to consider is the amount of light which has been left. I cannot accept that view of the law. It seems to me that the law as approved by the House of Lords, particularly by Lord Macnaghten, cannot be better stated than it was by Parke B. in Wells v. Ody: "The question, therefore, which I shall leave to you is, whether the effect of the defendant's building is to diminish the light and air so as sensibly to affect the occupation of the plaintiff's premises, and make them less fit for occupation." Is it any answer to say that the room is still a well-lighted room? I think not, if the building makes the room less fit for occupation, and I do not think that we can

1 Decided in December, 1904, but only reported in [1905]1 Ch. 480, see note there. 2 At p. 483. At p. 503.

At p. 502.

bring in the phrase " according to the ordinary notions of mankind" to cut down the effect which would otherwise result from a building of this nature.'

Cozens-Hardy L. J. and Farwell J. therefore came to exactly opposite conclusions as to what Colls's case had really decided.

The case of Kine v. Jolly was taken to the House of Lords', and in that House the Law Lords were equally divided, the Lord Chancellor and Lord James of Hereford holding that the appeal should be dismissed, the latter quoting with approval the judgment of Cozens-Hardy L. J., and Lords Robertson and Atkinson holding that the decision of the Courts below conflicted with Colls's case, and should be reversed. Under these circumstances the decision of the Court of Appeal stood affirmed.

This closes the chapter of authority, and it can hardly be said that it is either edifying or conclusive. The embarrassed lawyer is left to form his own opinion as to the results of the discussion.

It may be worth while to suggest, in the first place, what has been decided by Colls's case and what has not. The following points have undoubtedly been decided:

(1) The right of the dominant owner, which he can protect by an action, is not a right to, substantially, the whole of the light which has had access to his windows.

(2) That an obstruction to light to be actionable must amount to a nuisance.

(3) That this means (to use the words of Mellish L. J. in Kelk v. Pearson) that the house of the dominant owner is rendered substantially less fit for the purpose of occupation than it was before.

But it is submitted that the following point has not been decided. At the most the judgments thereon were obiter dicta.

(4) That the dominant owner cannot complain if, notwithstanding the fact that the house is rendered substantially less fit for the purposes of occupation than it was before, it still has left as much. light as the average run of houses.

Further, it may be suggested, without presumption, having regard to the great conflict of judicial opinion, that the last proposition is really contrary to both principle and authority 2.

It is wrong on principle because (1) the right of the dominant owner, being a conventional right, must amount to the whole of that which has been granted or acquired by prescription, even if

1 [1907] A. C. I.

2 There is a good reductio ad absurdum of it by Romer L. J. in the course of the argument in Warren v. Brown ([1902] 1 K. B. at p. 19), 'Suppose a man has five ancient windows and the light to one of them is entirely obstructed, can he be told that he has no right of action because the other four are sufficient for all ordinary purposes of inhabitancy or business?'

the law cannot be invoked to protect the whole. There is no other standard of right by which an interference can be measured. (2) To say otherwise is to ignore the distinction between conventional rights and common law rights of property. (3) Even if the right be regarded as a common law right, with the limitations involved therein, to adopt the standard suggested would be contrary to the well-settled law as to actions for nuisance.

Upon this latter point it is worth while to recall the direction of Mellor J. to the jury in St. Helen's Smelling Company v. Tipping1, which was unanimously approved by the judges (Martin and Pigott BB., Willes, Blackburn, Keating, and Shee JJ.) and by the Law Lords (Lords Westbury, Cranworth, and Wensleydale). It would be impossible to have higher authority:

'The learned judge told the jury that an actionable injury was one producing sensible discomfort; that every man, unless enjoying rights obtained by prescription or agreement, was bound to use his own property in such a manner as not to injure the property of his neighbours: that there was no prescriptive right in this casethat the law did not regard trifling inconveniences: that everything must be looked at from a reasonable point of view: and therefore in an action for nuisance to property, arising from noxious vapours, the injury to be actionable must be such as visibly to diminish the value of the property, and the comfort and enjoyment of it. That when the jurors came to consider the facts, all the circumstances, including those of time and locality, ought to be taken into consideration; and that with respect to the latter it was clear that in counties where great works had been erected and carried on persons must not stand on their extreme rights and bring actions in respect of every matter of annoyance, for, if so, the business of the whole country would be seriously interfered with.'

There is no suggestion here of any standard of 'ordinary occupancy' or the like. The standard is obviously that of the previous enjoyment.

There is no distinction in principle between an action for nuisance to property by interference with light and one for interference with the purity of air or water. In each case the standard by which the interference has to be measured is of the most elastic kind, varying with every local condition and circumstance-but if, measured by that standard, the jury find that it does sensibly diminish the comfort, enjoyment, or value of the property affected, the dominant owner is entitled to a verdict 2, however much may be left to him after the interference has been deducted.

1 (1865) 11 H. L. C. 642.

2 When once an action for obstruction of light is looked upon as pari passu with an action for a nuisance from smoke or pollution-the impossibility of a fixed standard, which could even be approximately measured by 45 degrees of light, becomes apparent. Imagine a legal percentage of pollution of air or water.

It is submitted also that the proposition is contrary to authority. There is no trace of such an idea in Back v. Stacey, Parker v. Smith or Wells v. Ody. On the contrary, it is clear that the standard of comparison in those cases was the amount of light actually enjoyed by the dominant tenement before it was invaded. In Kelk v. Pearson Mellish L. J. expressly negatives the proposition, and it is only to the expressions used by his colleague James L. J., in that and subsequent cases, that those who support the proposition can appeal. I have already dealt with the question of what James L. J. really meant by the words which he used in those cases, but there is one further point which is worthy of notice. James L. J., though at times capable of producing a sparkling legal epigram, was also not infrequently very clumsy in expression; and it is not by any means clear that the difficulties which have arisen from his language in Kelk v. Pearson, &c., are not merely the result of inaccurate phraseology. This will best appear by comparing two legal statements in parallel columns :

James L. J. in City of London Brewery Co. v. Tennant at p. 216.

'He (that is the dominant owner) is entitled to sufficient light according to the ordinary notions of mankind for the comfortable use and enjoyment of that house as a dwelling house if it were a dwelling house, or for the beneficial use and occupation of the house, if it were a warehouse, a shop, or other place of business.'

Vaughan Williams L. J. in Kine v. Jolly at p. 492.

The result of all these cases is that the interference with the access of light through the ancient windows of the plaintiff must be of such a character as sensibly to interfere with the comfort and convenience or usefulness of the building, according to its character as a residence or a place of business, or warehouse, or whatever else it may be, according to the ordinary notion of mankind— the citizens of this country."

Now I believe that what James L. J. meant to say is what Vaughan Williams L. J. did say, and with that no one would quarrel. The extent of the interference-whether it amounts to an actionable nuisance, or whether it merely amounts to an inconvenience-has to be measured, not according to the ideas of a very sensitive or fastidious person, but by the ideas of the common run of mankind (i. e. the jury). This is a wholly different thing from saying that the right of the dominant owner is to be measured by that standard. Yet James L. J. in City of London Brewery Company v. Tennant1 and some of the learned judges who quote him treat these two propositions as if they were convertible.

Is it possible that much of this controversy is really a question of words, and that nearly all parties would agree to some such propositions as the following:

1 L. R. 9 Ch. at p. 216.

In cases of nuisance the law does not regard trifling incon veniences. A nuisance to be actionable must be one that produces sensible diminution of the comfort, convenience, or salubrity of life or property from that which previously existed; regard being always had to time and place and the surrounding circumstances generally. As an occupier of a house in Widnes or St. Helens cannot demand the same purity of atmosphere as a dweller in Buxton, so a dweller in Drury or Fetter Lane cannot expect the same amount of light as a dweller in Grosvenor Square. It is all relative to the conditions of the particular case; and must be judged, not by reference to the standard of a fastidious or sensitive person, but by reference to the views of the ordinary run of mankind. This is applicable to actions for obstruction of light as well as to other actions for a nuisance,

Would not that be an unimpeachable charge to a jury even if the presiding judge refused to leave to the jury, as irrelevant, the further question 'whether the amount of light remaining after the obstruction is sufficient for all ordinary purposes of business or occupation?'

One word in conclusion. Lords Robertson, Davey, and Lindley expressly leave open the question whether a dominant owner can be heard to prove a special prescription for an extraordinary amount of light. In the judgment of Lord Lindley, before it was revised, he expressed a definite opinion that such a prescription would be good, and approved of the decision of Malins V.-C. in Lanfranchi v. Mackenzie to that effect. In the revised version of his judgment this has been excised.

It seems to me that the question may mean one of two things. (1) Can a dominant owner prescribe for the access of an extraordinary amount of light to his windows? or

(2) Can he prescribe for an extraordinary user of that light after it has passed through the windows?

As regards the first point may I again reiterate that the dominant owner in every prescriptive claim to light claims that amount of light which in fact has reached his windows and neither more nor less. Either more or less would be a bad claim according to the general rules governing prescription. As regards the second point: as it is clear law that the non-user of light does not disentitle the owner to it, it would seem that an extraordinary user of it, unknown to the servient owner, could not possibly entitle him to complain of an obstruction which would not be a nuisance in itself. It is just conceivable that there might be cases when the nature of the user of the light claimed, as well as the volume of it, might be asserted 1 (1867) L. R. 4 Eq. 421.