coke b William aldred case mich James king see Crowhurst v Amersham burial  board ex d two Dalton v Angus App Cas TodHeatly v benham Ch d Aldin v Latimer  clark Com Ch Chastey v Acklandf Ch ac warren v brown qb f KB Colls v home  colonial store ac a action on the case lie for erect a hogsty so near the  house of the plaintiff that the air thereof be corrupt so of a limekiln if the  smoke enter the plaintiff house so that he can dwell there so of a dyehouse c  if the filth run into his fish pond c where a easement or profit by  prescription be plead another prescription can be plead in destruction of such  easement or profit a action on the case lie for obstruct light and air but not  for obstruct a prospect per Wray CJ roll William Aldred bring a action on the  case against Thomas Benton which begin Trin James rot in banc that whereas the  plaintiff septemb year James be seize a the plaintiff in this as in all other  possessory action may declare upon his possession without allege the precise  estate of which he be seize or lie any title either by grant or prescription  to the thing which he be disturb in and hinder from enjoy Vid sergeant  williams note I Coryton v Lithebye sand post note b bishop of sarum case Rep b  a of a house and a parcel of land in length foot and in breadth foot and a  half next to the hall and parlour of the plaintiff of his house aforesaid in  Harleston in the county of Norfolk in fee and whereas the defendant be possess  of a small orchard on the east part of the say parcel of land prd Thomas  wickedly to contrive skilfully et to stretch out Self William de easimento et  prficuo messuag et parcel terr suorumprd to entangle et deprivare the say that  day of September year James a certain magnum lignile in speech garden Self  Thomce to heap together et to raise up ac mock to such a degree be praised c  quod per line mock c tam in all respects window et windowshutter Self William  all et a vault a people of India how ostium Self William aulce predict inside  obstupat fuer c et prd Thomas beyond to contrive skilfully et wickedly to  stretch out Self William in many different ways prgravare et Self de loto  convenience easimento et prficuo all messuagii coke report a er p Himself prd  inside deprivare prd die September and suprad quodd dificium pro swine hut  roll a et pig nest in garden suoprd tam near aulan et conclave Self William  predict to raise up ac sue et pig swine in cedificio in garden there pasuit et  ill ibidem per magnum time to watch ita quod per coke a ftidos et unwholesome  scent dirty predict suum et poreorum prd Thom in aulan et room proud ac alias  part prd messuagii Self William penetran et influnent idem William et famuli  Himself ac other person in messuagio his prd to turn around existen without  danger infectionis in all et conclevi prd ac other region messuagi prd to join  seu to stay behind non polverunt prtextu pron  interrog  idem William totum  just use easiamentum et prficuum maxim birth messuagii Himself prd per totum  tem we prd altogether erdi it et to send away ad damnum Self p William l c and  the defendant plead not guilty and at the assize in Norfolk he be find guilty  of both the say nuisance and damage assess and now it be move in arrest of  judgement that the building of house for bog be necessary for the sustenance  of man and one ought not to have so delicate a nose that he can hear the smell  of bog for law non to be favorable alluring vow but it be resolve that the  action for it be as this case be well maintainable for in a house four thing  be desire habitation man straining inhabitant need light et good health money  and for nuisance do to three of they a action lie see to the habitation of a  man for that be the principal end of a house for hindrance of the light for  the ancient form of a action on the case be significant know quod messuagium  standing on end tenebritate obscuralum to be therewith agree e b h h a roll a  by Markham h and as to this there be a case adjudge in the king bench Trin  Elizabeth though hut roll Yelv Bulstr godb b Bland bring a action on the case  against Thomas Moseley and declare how that James Bland be seize in fee of a  ancient house in Netherousegate in the parish of saint Michael in the county  of the city of York and that the say James and all those who estate he have in  the say house from time whereof c b have coke report b er p have and have use  to have for they and their tenant for life year and at will in the west side  of the say house seven window or light against a piece of land contain half a  rood in the parish aforesaid adjoin to the say house which piece of land from  time whereof c be without any building until the that day coke report a er p  of September year Elizabeth and show the length and breadth of the say window  for all the time aforesaid by force of which window the say James and all  those who estate he have in the say house from time whereof c have use to have  for they and their tenant aforesaid diverse wholesome and necessary easement  and coke report b er p commodity by reason of the open air and light c and  that the say James the September a Elizabeth demise to the plaintiff the say  house for f n b g a year and that the defendant malicious intend coke b to  deprive he of the say easement et to render dark messuagium prd standing on  end tenebritate c Nov and Elizabeth have erect a new Inst b building on the  say piece of land so near c that the say seven window be stop whereby the  plaintiff lose the say easement c et maxima pars messuagii predict standing on  end tenebritate to render dark to be c in bar of which action the defendant  plead quod infra predict community Ebor ankle to have et a toto tempore pron   interrog  opposite direction memory non step forth to have custom videlicet  quod si quis to have window et look per easden versus earth neighborhood  Himself neighborhood that look that an opening for light to build against  super earth that to use et posset as melius to see Himself to extricate by  force of which custom he justify the stop of the say window and upon that the  plaintiff demurrer in law and it be adjudge by sir Christopher Wray chief  justice and the whole court of king bench that the bar be insufficient in law  Yelv godb a to bar the plaintiff of his action for two reason when a man have  a lawful easement or profit by prescription from time whereof c another custom  which be also from time whereof c can take it away for the one custom be as  ancient as the other as if one have a way over the coke report a er p land of  a to his freehold by prescription from time whereof c a can allege a  prescription or custom to stop the say way where a particular prescription or  custom be plead another prescription or custom repugnant to it can be reply  without traverse the former prescription or custom roll ab Russell broker case  Leon Leon Murgatroyd v law Carth Spooner v day cro car SC W Jones but a  prescription or custom may be plead in answer to another without a traverse  where the latter be not inconsistent with but mere a qualification of the  former Kinchin v knight will SC black Rep Parkins v Radcliffe Bos pull Bac ab  custom h and Vid palmer v stone will winstanley v lee Swanst week v spark I m  S Elliot v hardy bing city on plead that edition c it may be that before time  of memory the owner of the say piece of land have grant to the owner of the  say house to have the say window without any stop of they and so the  prescription may have a lawful beginning and Wray chief justice then say that  for stop as well of the wholesome air roll b as of light a action lie and  damage shall be recover for they for both be necessary for it be say et to  feed aura therea and the say word standing on end tenebritate c be significant  and imply the benefit of the light but be say that for roll c prospect which  be a matter only of delight and not of necessity no action lie for stop  thereof Acc knoll v Richardson Mod SC keb per Lord Hardwicke attorneygeneral v  doughty Ves No action can be maintain for open a window to disturb the  plaintiff privacy per Le Blanc I chandler v Thompson camp semble contra  Cherrington v Abney vern d and yet it be a great commendation of a house if it  have a long and large prospect unde to say laudaturque house long who foresee  agros but the law do not give a action for such thing of delight and Solomon  say Ecclesiast dulce lumen be et delightful eye to see soledadamn et olium ut  plutarch in conv Sap refert king an Ethiopian interrogate quid optimum to  answer lucen quis for naturan duce darkness non exhorresci and if the stop of  the wholesome air c give cause of action a strong a action lie in the case at  bar for infect and corrupt the air and the building of a d roll Mod ante d  coke a limekiln be good and profitable but if it be build so near a house that  when it burn the smoke thereof enter into the house so that none can dwell  there a action lie for it so if a mail have a watercourse run in a ditch from  the river to his house for his necessary use if a palm glover set up a e roll  Br action sur Le case e limepit for calve skin and sheep skin so near the say  watercourse that the corruption of the limepit have corrupt it for which cause  his tenant leave the say house a action on the case lie for it as it be  adjudge in a m a palm f h b and this stand with the rule of law and reason  know to hold before ne quis to make in his quod mocere to be able another et  such palm g skin tuo ut another non idas vide in the book of entry title  nuisance b he who have a several piscary in a water shall have a action on the  case against he who erect a roll palm a dyehouse ac finos fditates et alian  dirty extra house prd to run down in piscariam prd to run down fecit per quod  idem prficuum piscarice sum prd altogether to send away c and there be another  precedent against a dyer c quod idem Henry in mansion svan Prd ob fear  infectionis per standing on end ftorem smoke fditatis et another dirty c per  magnum time morarinon andebat e for what nuisance a action may be maintain Vid  Selw n p that edition vin ab nuisance g Com dig action on the case for a  nuisance a e so in the case at bar forasmuch as the declaration be that the  defendant malicious intend to deprive the plaintiff of the use and profit coke  report b er p of his house erect a b roll hut palm b swine sty tam near aulan  et conclave Self William ac sue pig swine in dificio there to put down et ill  ibidem per magnum time to watch ita quod ftidi et unwholesome scent dirty prd  suum et a tame swine prd Thom in aulan c penetran et influen idem William ac  famuli Himself e in messuag predict to turn around existen without danger  infectionis in aulan c to join seu to stay behind non polverunt prtextu oujus  idem will totum just c maxim birth prd messuag per totum time prd altogether  to make away with to which declaration the defendant plead not guilty and be  find guilty of the matter in the declaration it be adjudge that the plaintiff  shall recover b it be former hold that a party can not maintain a action for a  nuisance in stop the light of his house unless he have gain a right in the  light by prescription Bowry v pope Leon SC cro Elizabeth and the declaration  for a nuisance of this kind be conformable to this state of the law Rosewell v  prior salk and the case there cite but it have since be decide that a action  on the case lie for a nuisance in obstruct light of which the party have have  a adverse unexplained enjoyment for year or upward if there have be a  uninterrupted possession of light water or of any other easement for twenty  year it afford a ground for presume a right by grant covenant or otherwise  accord to the nature of the easement and if there be nothing to rebut the  presumption a jury may be direct to act upon it sergeant williams note yard v  ford sand cross v Lewis barn Cress SC dow Ryl Livelt v Wilson bing and with  the judgement of Holroyd I William v Morland barn cres SC dow Ryl and the case  there cite but the rule must be take with this qualification that the  possession be with the acquiescence of he who be seize of a estate of  inheritance for a tenant for life or year have no power to grant any such  right for a long period than during the continuance of his particular estate  sergeant williams note where sup Daniel v north east Barker v Richardson barn  Ald wood v veal barn Ald SC dow Ry the general principle upon which such a  presumption shall be allow in the question of a right of way be this if we  find the Act have be of ten repeat for the occasional use of walk or path  across a man field will be hardly such a use as will establish the right and  must necessary have be often repeat with the knowledge of the person act upon  a adverse right it afford a strong presumption in favour of the right so  exercise the same principle be to be apply to presumption in the case of light  or of flow water in each of these case there must be a long continuance of  enjoyment to warrant the presumption per abbot CJ Bartlett v down barn Cress  SC dow Ryl where it have be prove that the owner of a fishery and their lessee  have for above twenty year last pass public land their net on another ground  and have occasional repair the land place it be hold that it have be proper  leave to the jury to presume a grant of the right of land net to the owner of  the fishery although there be no direct evidence whether or not the owner of  the land have any knowledge of the practice of land the net grey v bind Brod  bing SC b more so where window have exist for thirtyeight year and the land  upon which the obstruction to the window have be raise be prove to have be  occupy by a tenant for twenty year but it do not appear in what manner the  land have be occupy for the eighteen year before it be hold that a grant may  be presume or in the absence of proof to show when the window be first put out  they be to be consider as ancient light cross v Lewis where sup it be also  hold in the same case that the circumstance of the house the light of which  have be obstruct not be at the extremity of the owner premise do not affect  the question in the case of light air and water the cease to enjoy destroy the  right unless at the time when the party discontinue the enjoyment he do some  act to show that be mean to resume it within a reasonable time more v Rawson  barn and Cress SC dow and Ryl and in the case of a right of way if such a  right appear to have exist in ancient time a long forbearance to exercise it  which must be inconvenient and prejudicial to the owner of the house or close  to which such right of way be annex may most reasonable be account for by  suppose a release of the right and therefore such a release be presume per  Abbott do v Hiilder barn and Ald but such a non user of a right of way from  which a release of the right be to be presume ought to be a non user for  twenty year with the judgement of Littledale I more v Rowson Ubi sup Laurence  v obee camp in a late case pierce v Wolton try at the Devon lend assize the  plead be frame upon this principle of presume a release from a long cesser of  enjoyment the case be trespass for break and enter several close of the  plaintiff c the defendant justify under a right of way over the close which  right he claim in one set of plead by prescription and in another by a grant  contain in a feoff long ago make to one through who the defendant claim by a  person seize in fee at that time both of the premise in respect of which c and  the close over which c the plaintiff traverse the prescriptive right and as to  the right of way by grant reply in answer to the justification of the trespass  commit on one of the close call Oldaport a release by deed of the right of way  over that close former make by one seize in fee of the premise in right of  which the way be claim to one then seize in fee of the close over which the  right of way extend and that the deed be since lose by time and accident issue  be join upon the fact of the make such deed of release that issue together  with all the other issue join between the party be find for the plaintiff and  such find be acquiesce in by the defendant perhaps it may not be altogether  unacceptable to annex the form of that part of the replication in which the  release be plead plaintiff say precludi non because he say that after the make  of the say indenture of feoff and grant in the say last plea mention and long  before any of the say several time when c in the say declaration mention to  wit on the first day of January in the year of our Lord to wit at the parish  aforesaid in the county aforesaid Thomas simmons Esq be seize in his demesne  as of fee of and in the say farm and land with the appurtenance call  Huntsdowns and of and in the say liberty and right of way by the say indenture  of feoff and grant grant as in the say last plea mention and John don Esq  afterward baron Ashburton of Ashburton in the county aforesaid be seize in his  demesne as of fee of and in the say close in which c in the say declaration  mention and the say Thomas simmons be so seize of the say farm and land with  the appurtenance call Huntsdowns and of and in the say liberty and right of  way by the say indenture of feoff and grant grant as in the say last plea  mention and the say John don be so seize of the say close in which c after the  make of the say indenture of feoff and grant in the say last plea mention and  long before any of the say several time when c to wit on the day and year last  aforesaid at the parish aforesaid in the county aforesaid by a certain deed  then and there make between the say Thomas simmons of the one part and the say  John don of the other part but which deed have since be lose and destroy by  time and accident and therefore can be bring into the say court here the say  Thomas simmons for the consideration therein mention do grant bargain sell  alien release surrender and yield up unto the say John don his heir and assign  all the say liberty and right of way so far as the same extend over relate to  or in any manner affect the same close in which c call Oldaport court  otherwise the farmyard and all the estate right title interest property claim  and demand whatsoever of he the say Thomas simmons of in to or out of the same  liberty and right of way so far as the same extend over or relate to or in any  manner affect the same close to the end and intent that the same liberty and  right of way so far as the same extend over relate to or in any manner affect  the same close shall and may from thenceforth cease and be for ever thereafter  extinguish whereby the say John don then and there become and be seize in his  demesne as of fee of and in the say close in which c call Oldaport court  otherwise the farm yard free and for ever discharge of the say liberty and  right of way to wit at the parish aforesaid in the county aforesaid and this  the say plaintiff c a way of necessity be limit by the necessity which create  it and cease if at any subsequent period the party entitle to it can approach  the place to which it lead by pass over his own land Holmes v gore bing in the  case of ancient light and window a court of equity will not interfere upon  every degree of darken they but there must be that sort of material injury to  the comfort of the existence of those who dwell in the neighbour house require  the application of a power to prevent as well as remedy a evil for which  damage will be give in a action at law the attorneygeneral v Nichol Ves  winstanley v lee Swanst by the custom of London a man may rebuild his house or  other edifice upon the ancient foundation to what height he please though  thereby the ancient window or light of a adjoin house be stop if there be no  agreement in write to the contrary Com dig London n see the custom at length  as certify by the recorder in the year winstanley v lee where sup in which  case the master of the roll sir t plumer express his opinion that a  uninterrupted enjoyment of light in that city for twenty year afford no ground  for presume a grant for to admit such presumption will be to abolish the  custom in Moseley v ball cite and recognize as good law Hugh v Keme Yelv a  custom allege in the city of York to stop light by building on new foundation  where no house be before be adjudge void if the owner of land build a house on  part of the land and afterward sell the house to one person and the adjacent  land to another the vendee of the house may maintain a action against the  vendee of the land for obstruct his light although the house be a new house  for the law will not permit the vendor nor consequent any person claim under  he to derogate from his grant Cox v matthews vent palmer v Fletcher I lev SC  side Com dig action on the case for a nuisance a so the occupier of one of two  house build near at the same time and purchase of the same proprietor may  maintain a action on the case against the tenant of the other for obstruct his  window light by add to his own building however short the previous period of  enjoyment by the plaintiff Compton v Richard price so also where the owner of  a house divide it into two tenement and let one of they it be hold that the  lessee be liable to a action on the case for obstruct window exist in the  landlord house at the time of the demise though of recent construction and  though no stipulation be make against the obstruction riviere v bowyer Ryan  and moody n p Rep but no action on the case lie if the defendant prevent a  excess in the plaintiff in use his right Com dig action on the case for a  nuisance c but if a ancient window be enlarge the owner of the adjoin land can  lawful obstruct the passage of the light to any part of the space occupy by  the ancient window although a great portion of light be admit through the  unobstructed part of the enlarge window than be former enjoy Martin v goble I  camp chandler v Thompson camp Luttrells case   a if such nuisance be of a  permanent nature and injurious to the reversion a action may be bring by the  reversioner as well as by the tenant in possession each of they be entitle to  recover his respective loss leader v Moxton and other will SC black Rep  Bedingfield v Onslow lev Jeffer v Gifford burr Nerrers v seaborn W Jones so  for a nuisance in the lifetime of a testator continue afterward the devisee  shall have a action some v Barwish cro James if the action be bring by the  reversioner the declaration must allege it to have be do to the damage of his  reversion or must state a injury of such a permanent nature as to be necessary  injurious to his reversion Jackson v Pesked I m S a action on the case for  this nuisance may be bring not only against the person who levy the nuisance  but also after request make to abate it against his alienees Winsmore v  Greenbank Willis Penruddocks case   a burn v Haddon cro James and where a  tenant for year erect a nuisance to the injury of the plaintiff light and then  make a under lease the plaintiff may have a action against either Rosewell v  prior salk a notice require a removal of the nuisance leave at the premise  where the nuisance be levy be bind upon a subsequent occupier salmon v bensley  moody Ryan n PC in a action for obstruct the plaintiff light a clerk who  superintend the erection of the building by which they be darken and who alone  direct the workman may be join as a codefendant with the original contractor  Wilson v peto b more