On the 22nd November the plaintiff's solicitor wrote to the defendant company about obstruction of light, stating that he was instructed to bring an action, and that he would issue a writ the next day, and merely asking who would accept service. The defendants placed this letter in the hands of their solicitor, and the solicitor replied to the plaintiff's solicitor that they would accept service of process and of notice of any intended or threatened motion for injunction. Mr. Baird (the plaintiff's solicitor) and the plaintiff had visited the property and saw the wall of the defendants' building on the 22nd November. Mr. Baird replied on 27th November, as follows: "Can you assure my client that the wall on the property of the company on Albert street will not be erected higher?" On 28th November defendants' solicitor replied that the letter of the plaintiff's solicitor had been received, and forwarded to the defendants for instructions. On 30th November the defendants' solicitor wrote to the plaintiff's solicitor: "We have received a letter from our clients this morning in which they state that the intention at present is to complete only the storey that they are now at, namely, the third storey." Nothing further was heard of the matter until the 23rd January, 1907, when the statement of claim was filed and served. Meantime the defendants did proceed to complete the third storey, and it is now a finished three-storey building. The only dispute as to the condition of the defendants' eastern wall is as to its height on the day when plaintiff and Mr. Baird visited it. The plaintiff's memory is quite at fault. He took back on crossexamination what he said on examination-in-chief, as to that. Mr. Baird says the wall was not quite as high then as the eaves of the L on the plaintiff's building. The builder, J. B. Thompson, says this wall was complete to two storeys, the front wall higher, and "naked" back northerly, for the purpose of completing. This difference of opinion is not material, the less there was then done, when the manifest intention of the defendants was to complete a three-storey building, the more reason for the plaintiff to act promptly if he desired to enforce his right by injunction. D. C. 1907 SIMPSON v. EATON. Britton, J. D. C 1907 SIMPSON 2. EATON. Britton, J. The plaintiff could not at that time have thought that the wall of a three-storey building would be of any serious damage. The fact of the plaintiff's purchase at the particular time when made, and of his vendor, Mr. Thorley, as mortgagee, making some complaint, gave some cause for the suspicion that this purchase was made, in part at least, with a view to making something out of the defendants. If I am wrong in the conclusion that the plaintiff is not entitled to recover at all, there is still the question of whether he should get an injunction or only damages. He is not entitled in any event to an injunction. It is a case where damages, if any, "are small, capable of being estimated in money, and can be compensated for in money." It is also a case where it would be "oppressive to grant an injunction." If the plaintiff has a right to have light with no sensible diminution, and if that right has been invaded,.so that damages must be assessed, even if only small, or nominal-in other words, if there are to be damages in law necessarily arising from the obstruction, more or less, although no substantial damages by reason of any discomfort or inconvenience to the occupiers of the house, then such damages would be only in the supposed loss of rent. No evidence was specially directed to this point, but considering the tenants who do, and who will occupy these premises, it would be a large estimate to say that $1 a month would be required as a reduction by reason of the darkening of the rooms in question by the defendants' building, from the rent that would otherwise be obtained. That would be $12 a year and would represent interest at four per cent. on $300, for all time, although the building may not stand for a long time. If damages, $300 would be a very liberal assessment. Action dismissed. From this judgment the plaintiff appealed to a Divisional Court. On October 7th, 1907, the appeal was heard before BOYD, C., MAGEE and MABEE, JJ. A. H. Marsh, K.C., and K. F. MacKenzie, for the appellant. The plaintiff claims that he had a right of light which was interfered with by the defendants' building. The evidence shews that the effect of the building was to make the plaintiff's house, as his witnesses express it, "as dark as a dungeon." It is no doubt true, as stated by the learned trial Judge, that there is no rule of law estab- 12-VOL. XV. O.L.B. D. C. 1907 SIMPSON. v. EATON. D. C. 1907 SIMPSON V. EATON. will be directed. The plaintiff assumed that this would be the course pursued here, and so was not ready with evidence on the point at the trial. The damages, moreover, are assessed upon a wrong principle. The learned Judge, while finding that the ultimate use of the property was for a business building, assessed the damages on the use of the property in its present condition: Moore v. Hall (1878), 3 Q.B.D. 178; Small v. Brake, [1900] 2 Ch. 138. G. F. Shepley, K.C., for the respondents. The learned Judge acted correctly in applying the rules laid down in respect to ancient lights. There is no distinction between ancient lights and those based as here on a grant. In the case of ancient lights, the right is presumed to arise under a lost grant, while in the case of a deed, the grant is apparent from the deed. This can be gathered from what was said in Broomfield v. Williams, [1897] 1 Ch. 615, and in the case of Colls v. Home and Colonial Stores, [1904] A.C. 179; and in all the authorities referred to there, no distinction is attempted to be set up. In any event no injunction will be granted here, for it is quite apparent from the evidence and correspondence that the plaintiff stood by and allowed the defendants to erect their building, only protesting when the walls were up. Under these circumstances he has waived his right to insist on the injunction. The case, therefore, is narrowed down to a question of damages, and the learned trial Judge properly found that no damages had been sustained. It was shewn that instead of a decrease there was an actual increase in the rent obtained for the building. The locality has long since ceased to be of a residential character, and the prospective value consists in its being used for business purposes, when the old building now there will be pulled down, and a business structure erected in its place, and, as the learned Judge has found, the plaintiff will get all the light required for his building from the street and lane in the rear. It is no answer for the plaintiff to say that he was not ready to prove his damages at the trial, expecting that if it was decided that the question was one for damages there would be a reference. He should have been ready at the trial to prove his damage. All the evidence, however, that the plaintiff could produce was produced at the trial, and it would be a great hardship on the defendants to order a reference now. The plaintiff never had any right to light at all, as at the time of his deed there was an outstanding mortgage in the hands of the Farmers' Loan Co., which carried with it the right to light, if any. The defendant should have been allowed to put in evidence the books of the Farmers' Loan shewing the state of the mortgage account: Taylor on Evidence, 9th ed., pp. 434, 453; but even without this, the existence of the outstanding mortgage was in itself sufficient to oust the plaintiff's claim. A. H. Marsh, K.C., in reply. There is nothing in the point raised as to the subsisting mortgage, for it was subsequently discharged and the discharge registered: Carter v. Grasett, 14 A.R. 685. The evidence tendered of the entries from the books of the Farmers' Loan Co. was properly rejected. In order to render such evidence admissible it should have been proved that the entries were made in the usual course of business by a person whose duty it was to make them, who was personally acquainted with the facts, and had no interest in stating an untruth, and was since dead: Taylor on Evidence, sec. 708. The question of ancient lights and the right to light arising by express or implied grant is discussed in Carter v. Grasett, 14 A.R. 685, at p. 713, where, in discussing the right of light arising under a grant, the Court says that no assistance will be afforded by a discussion of the doctrines touching ancient lights, or the extent of rights gained by prescription. October 10. BOYD, C.:-The plaintiff has a substantial grievance, and his action should not have been dismissed. The judgment appears to err in applying the rules settled by the Courts in the case of interference with ancient lights by extension to the present case where the plaintiff's rights depend upon conveyances to him from the common owner of his lot and the adjoining lot now owned by the defendant. This case is one of modern windows which are to receive such access of light as they had at the time the plaintiff's lot was severed from that now owned by the adjoining proprietor. Lake, the common owner of both, severed the lots by first granting under a short form conveyance to the plaintiff's predecessor, his lot. That grant by express terms carried the lights as appurtenant, or quasi-appurtenant, and over and above that it was subject to the well established rule that one cannot derogate from his own grant being applied to the case in hand; that means that Lake having conveyed this D. C. 1907 SIMPSON V. EATON. |