is not absolutely necessary, as no repair may have been made within the period of any one living. (Ib.)

Where the members of a corporation have as such occupied a particular pew in the parish church, the repairs of it may be properly charged on the borough fund. (Reg. v. Mayor, &c., of Warwick, 10 Jur. 262; 15 Law J., Q. B., 306.)

Extra-parochial persons cannot establish a claim to seats in the body of a parish church without proof of a prescriptive title, and therefore if they sue in the ecclesiastical court to be quieted in the possession of such seats, the court of K. B. will grant a prohibition, although it seems that such persons cannot establish such a claim even by prescription. (Byerly v. Windus and others, 5 B. & C. 1; S. C., 7 Dowl. & Ryl. 564. See Hallack v. University of Cambridge, 1 Gale & D. 100; 1 Q. B. 593, as to prohibition against granting a faculty.) A pew in an aisle or chancel may belong to a non-parishioner, for the case of an aisle or chancel depends upon, and is governed by, other considerations. (2 Addams, R. 427.)

A pew annexed by prescription to a certain messuage cannot, as is often erroneously conceived, be severed from the occupancy of the house, but passes with the messuage, the tenant of which for the time being has de jure the prescriptive right to the pew, (1 Hagg. Cons. R. 319; 1 T. R. 430; 3 M. & R. 334; 2 Add. 428,) which cannot be sold nor let without a special act of parliament, (1 Hagg. Eccl. R. 319, 321,) or under the provisions of the Church Building Acts. (See 58 Geo. 3, c. 45, ss. 65, 66. 75—79; 59 Geo. 3, c. 134, ss. 26, 32; 8 & 9 Vict. c. 70, s. 11.) Where an occupier of a pew ceases to be an inhabitant of the parish, he cannot let the pew with, and thus annex it to his house, but it reverts to the disposal of the churchwardens. (1 Hagg. Eccl. R. 34.) A person who has permission from the churchwardens to sit in a pew temporarily, and in order, by keeping possession for the future tenant, to carry into effect the conditions of sale of a house with which the pew has for above a century been held under an expired faculty, has no possession on which he can bring a suit for perturbation of seat against a mere intruder, such permission by the churchwardens being illegal, as confirming the sale of the pew. (Blake v. Usborne, 3 Hagg. Eccl. R. 726.) Customs pleaded, "that pews are appurtenant to certain houses, and are let by the owners to persons who are not inhabitants of the parish," are bad. (1 Hagg. Cons. R. 317.) Custom," that persons who had not pews appurtenant pay rent for seats, which is applied in payment of the parish rate," is a practice which has been constantly reprehended by the ecclesiastical courts, and discouraged as often as set up. (1 Hagg. Cons. R. 317.) But if a house to which a pew is appurtenant be let to a parishioner, in that character he is clearly entitled to the pew. (2 Add. 428.)

It was held, that sect. 51 of the local statute 51 Geo. 3, c. 151, which enacts, that the said vestrymen (of St. Marylebone) shall set out and appropriate such a number of seats for the gratuitous accommodation of the poor of the said parish for the time being, and also of such other pews or seats for the use of the parishioners of the said parish as the said vestrymen shall think necessary, proper and convenient, is imperative upon the vestrymen, and empowers them to set out and appropriate the pews (other than those of the poor) without restriction, and not subject to the superintendence of the ordinary. (Spry v. Flood, 2 Curt. 362.)

It was held, that by the 52nd sect. 51 Geo. 3, c. 151, which enacts that it shall be lawful for the vestrymen of St. Marylebone, if they shall think proper to let the pews, &c., or any of them, except the pews or seats to be appropriated for the gratuitous accommodation of the poor of the said parish for the time being as before mentioned, to

such persons only who shall be inhabitant householders within the said parish, the vestrymen were empowered to let all the pews save those for the poor, and consequently to remove the rector from one of two pews of which he had been in possession from the time of his induction, and to let it to another inhabitant householder. (Spry v. Flood, 2 Curt. 364.)

of pews.

Where a pew is claimed as annexed to a house by faculty or pre- Action for scription, the courts of common law exercise jurisdiction, on the disturbance ground of the pew being an easement to the house, and the proper remedy for a disturbance is an action on the case. (Mainwaring v. Giles, 5 B. & Ald. 361.) Where the pew is in a chancel, the freehold of an individual, the right to it is triable at common law. (May v. Gilbert, 2 Bulstr. 151.) The ecclesiastical court has jurisdiction in all suits respecting pews; but where prescriptive rights come in question, prohibition will be granted on the application of either party, for the purpose of having the prescription tried by a jury. (Report of Eccl. Commrs., p. 49.) If a man claiming title by prescription to an aisle, chancel, &c., as his freehold, or to a pew or seat in the body of the church, or in an aisle, &c., as appurtenant to a house in the parish, is disturbed therein by the parson, ordinary, or churchwardens, by a suit in the spiritual court, he may have a prohibition, if he suggest as grounds for it that he or those whose estate he hath, built, or time out of mind repaired, and therefore had the sole use of such aisle, or of such pew or seat; for the party has a right to a trial of the prescription in a temporal court. (See 1 Burn's Eccl. Law, 8 ed. 366, 367; Witcher v. Cheslam, 1 Wils. 17; Corwen v. Pym, 12 Rep. 105; Jacob v. Dalton, 2 Raym. 1755; Boothby v. Bailey, Hob. 69; Francis v. Lee, Cro. Jac. 366; Day v. Beddingfield, Noy's Rep. 104; Buxton or Bunton v. Bateman, 1 Sid. 89; S. C., 1 Lev. 71; Sir T. Raym. 52; Crook v. Sampson, 2 Keb. 92; Brabin v. Tradum, Poph. 140; 2 Roll. Abr. 287,288.)

The uninterrupted possession of a pew in a church for twenty years affords a presumptive evidence of a legal title by prescription, or by a faculty against a wrong-doer. (Darwin v. Upton, 2 Wms. Saund. 175 c.) But if the right was claimed as appurtenant to an ancient messuage the claim would, before the stat. 2 & 3 Will. 4, c. 71, be rebutted by proof that the pew began to exist within time of legal memory. (Griffith v. Matthews, 5 T. R. 296.) In an action on the case for disturbing the plaintiff in the possession of a pew in a church, which the plaintiff and those under whom he claimed had been in the uninterrupted enjoyment of for thirty-six years, but which appeared in evidence to have been an open pew before that period; the judge recommended the jury to presume a title in the plaintiff after so long a possession as thirty-six years, and the Court of King's Bench afterwards, on a motion for a new trial, held the direction of the judge proper. (Rogers v. Brookes, 1 T. R. 431, n.) A pew in a parish church was claimed in respect of an ancient messuage; and it was proved, that, so far as living memory extended, the pew in question had been one of three pews adjoining each other, and under one and the same claim of right, viz., in respect of the said ancient messuage; it was held, that proof of repairs done to one of the pews, not that in question, was evidence as to all, and therefore as to that in question. (Pepper v. Barnard, 12 Law J. (N.S.) Q. B. 361; 7 Jur. 1128.) The pew must be laid in the declaration as appurtenant to a messuage in the parish, otherwise a bare possession of the pew for sixty years and more is not a sufficient title to maintain an action on the case for disturbing the plaintiff in his enjoyment thereof, but he must prove a prescriptive right or faculty. (Stocks v. Booth, 1 T. R. 428.) So where a pew in a chancel, claimed in right of a messuage, was shown to have been erected on the site of old open seats in 1773, and there

was no evidence of any faculty or search for one at the proper places; it was held, that the judge rightly directed the jury, that the evidence of the former open state of the seats destroyed the prescription, and left it to them to say whether, upon the evidence merely of long undisturbed possession, any faculty existed; and a new trial was refused. (Morgan v. Curtis, 3 M. & Ry. 389.)

The grant of part of the chancel of a church by a lay impropriator to A., his heirs and assigns, is not valid in law, and therefore such grantee, or those claiming under him, cannot maintain trespass for pulling down his or their pews there erected. (Clifford v. Wicks, 1 B. & Ald. 498.)

But the churchwardens have not, as against the incumbent of a church or chapel, a joint possession of it, so as to disable him from maintaining trespass against them for acts of violence in pulling down pews; and a chapelwarden of a parochial chapelry has not, by virtue of his office, any authority to enter the chapel and remove the pews without the consent of the perpetual curate. (Jones v. Ellis, 2 Y. & J. 265.) The perpetual curate of an augmented parochial chapelry has a sufficient possession whereon to maintain trespass for breaking and entering the chapel and destroying the pews. (Ib.)

As well priority in a seat as a seat itself in the body of a church may be claimed by prescription, as belonging to a house, by the inhabitants of it, who have repaired the seat time out of mind, and an action on the case for a disturbance lies at common law. (Carleton v. Hutton, Noy. 78; Gibs. 221.) And a pew in the body of the church may be prescribed for as appurtenant to a house out of the parish. (Davis v. Witts, Forr. R. 14; Lousley v. Hayward and another, 1 Younge & Jerv. 583.)

Where the action is brought against a stranger, the plaintiff is not bound to state in his declaration that he has repaired the pew, though it is otherwise when the action is brought against the ordinary; in which case a title or consideration must be shown in the declaration and proved, as the building or repairing of the pew. (Kenrick v. Taylor, 1 Wils. 326; Ashley v. Freckleton, 3 Lev. 73; see Fiske v. Rovitt, Lofft, 423; Com. Dig. Action upon the Case for Disturbance. (A. 3); Gibs. 197, 198.)

The right to sit in a pew may be apportioned, and therefore where by a faculty, reciting that A. had applied to have a pew appropriated to him in the parish church in respect of his dwelling-house, a pew was granted to him and his family for ever, and the owners and occupiers of the said dwelling-house, which was afterwards divided into two: it was held, that the occupier of one of the two (constituting a very small part of the original messuage) had some right to the pew, and in virtue thereof might maintain an action against a wrong-doer. (Harris v. Drewe, 2 B. & Ad. 164.)

It seems that a bill in equity will not lie to be quieted in the possession of a pew, though there is a decree for it before the ordinary. (Baker v. Child, 2 Vern. 226.)

A bill was filed by a single parishioner against some of the churchwardens of the parish, alleging an intention on the part of the defendants to execute work in the church which would be injurious to himself, and praying an injunction; the plaintiff did not allege that he was a parishioner and that he was in the habit of attending Divine Service in the parish church. It is questionable whether this is a private nuisance, and whether such a bill can be sustained by a single parishioner against the churchwardens. (Woodman v. Robinson, 2 Sim. N. S. 204.)

A man may prescribe that he is tenant of an ancient messuage, and ought to have a separate burial in a particular vault within the church. (Com. Dig. Cemetery, (B.).) It seems that the same rules

are applicable to vaults as to pews. (Bryan v. Whistler, 8 B. & C. 293 ; S. C., 2 M. & Ryl. 318; see Frances v. Ley, Cro. Jac. 366; Gibs. Cod. 542.) As to Rights of Burial, see Har. Index, tit. Ecclesiastical Law, XVII., Burial.

7. OF THE RIGHT TO LIGHT AND AIR.

acquired.

A right to the enjoyment of light and air may commence by mere Right to Occupancy. Every man on his own land has a right to all the light lights how and air which will come to him; and he may erect, even on the extremity of his land, buildings with as many windows as he pleases, without any consent from the owner of the adjoining lands. After he has erected his building, the owner of the adjoining land may, within twenty years, build upon his own land, and so obstruct the light which would otherwise pass to the building of his neighbour. But if the light be suffered to pass without interruption during that period to the building so erected, the law implies from the nonobstruction of the light for that length of time, that the owner of the adjoining land has consented that the person who has erected the building upon his land shall continue to enjoy his light without obstruction, so long as he shall continue the specific mode of enjoyment which he had been used to have during that period. It does not, indeed, imply that the consent is given by way of grant, for light and air, not being to be used in the soil of the land of another, are not the subject of actual grant; but the right to insist upon the nonobstruction and non-interruption of them, more properly arises by a covenant which the law would imply not to interrupt the free use of the light and air. (Per Littledale, J., 3 B. & Cr. 340. See 2 B. & Cr. 691.)

It was held by Lord Ellenborough, C. J., that a party who had granted a parol licence to erect a skylight could not, after expense had been incurred, recall the licence, and treat the party to whom it had been granted as a trespasser for doing such act. (Winter v. Brockwell, 1 East, 308; see Wood v. Lake, Say, R. 3, ante, pp. 53, 55.) In whatever way precisely the right to enjoy the unobstructed access of light and air from adjoining land may be acquired, (a question of admitted nicety,) still the act of the owner of such land, from which the right flows, must have reference to the state of things at the time when it is supposed to have taken place; and as the act of the one is inferred from the enjoyment of the other owner, it must in reason be measured by that enjoyment. The consent, therefore, cannot fairly be extended beyond the access of light and air through the same aperture (or one of the same dimensions and in the same position), which existed at the time when such consent is supposed to have been given. It is considered that convenience and justice both require this limitation; if it were once admitted that a new window, varying in size, elevation or position, might be substituted for an old one, without the consent of the owner of the adjoining land, it would be necessary to submit to juries questions of degree, often of a very uncertain nature, and upon very unsatisfactory evidence. And in the same case, a party, who had acquiesced in the existence of a window of a given size, elevation or position, because it was felt to be no annoyance to him, might be thereby concluded as to some other window to which he might have the greatest objection, and to which he would never have assented, if it had come in question in the first instance. The case of Chandler v. Thompson, (3 Camp. 80,) is not at all inconsistent with this reasoning. (Per Patte

son, J., Blanchard v. Bridges, 4 Ad. & Ell. 191, 192.) There may appear to be some hardship in holding that the owner of a close who has stood by, without notice or remonstrance, while his neighbour has incurred great expense in building upon his own adjoining land, should be at liberty, by subsequent erections, to darken the windows, and so destroy the comfort of such buildings. Yet there can be no doubt of his right to do so at any time before the expiration of twenty years from their erection, and this with good reason, for it is far more just and convenient that the party, who seeks to add to the enjoyment of his own land by any thing in the nature of an easement upon his neighbour's land, should first secure the right to it by some unambiguous and well-understood grant of it from the owner of that land, who thereby knows the nature and extent of his grant, and has a power to withhold it, or to grant on such terms as he may think proper to impose, than that such right should be acquired gradually as it were, and almost without the cognizance of the grantor, in so uncertain a manner as to create infinite and puzzling questions of fact to be decided by litigation. (Blanchard v. Bridges, 4 Ad. & El. 194.) If a party, who has neglected to secure to himself the unobstructed enjoyment of light and air to a new window by previous express licence or covenant, relies for his title to them upon any thing short of an acquiescence of twenty years, the onus lies upon him of producing such evidence as leads clearly and conclusively to the inference of a licence or covenant. (Blanchard v. Bridges, 4 Ad. & El. 195.) And if a deed be not necessary for that purpose, it is obviously advisable to have it. E. being the owner of a house enlarged it, and inserted a window at one end, in the part added, and at another end carried out the side walls, between which two windows formerly stood in a straight line five feet, convèrting this end into a bow, and inserting two bow windows in the same direction, but not in the same situation as the two former: it was held, that whatever privileges against the obstruction of light the windows of the original house possessed, this privilege did not apply to the three new windows. Before E.'s house was built, the land on which it was built, together with some adjoining land, belonged to R., who conveyed the land on which it was afterwards built to C., and C. agreed to sell to E., who entered and built the house. Afterwards, and before the enlargement above mentioned, R. joined in a conveyance with C. (each as to his own estate), by which the house with all lights and easements appertaining, and an additional part of R.'s land, were granted to E. E. having afterwards enlarged (as above described), it was held, that neither R., nor his assignees, were precluded from obstructing the three new windows by building on the land adjoining. After the enlargement E. assigned to O., and R. afterwards assigned an additional piece of the adjoining land to O.; this piece lay to the north of O.'s house, and in the conveyance its southern boundary was described to be "the dwelling-house of O.:" it was held, that this did not operate as a recognition of the house in its then state, so as to preclude R. or his assignees from obstructing the new windows by building on other parts of the adjoining land south of O.'s house. In the case stated for the court, by which it was agreed that the court might draw conclusions of fact as a jury, it was stated that R., at the time of his original conveyance to C, was desirous of selling his land in building lots. The court refused to take this into consideration, in interpreting the effect of the conveyance, which did not mention this, but called the land conveyed "arable land," and they held that R. was not precluded by this conveyance from obstructing the lights of the house afterwards built. After the conveyance by R. and C. to E., R. was told by E.'s archi