+(,121/,1(

Citation: 62 LT 205 1890

Content downloaded/printed from

HeinOnline (http://heinonline.org)
Thu Aug 18 13:48:44 2016
-- Your use of this HeinOnline PDF indicates your acceptance
of HeinOnline's Terms and Conditions of the license
agreement available at http://heinonline.org/HOL/License
-- The search text of this PDF is generated from
uncorrected OCR text.

April 5, 1890.]

THE LAW TIMES.

CT,. OF APP.]

MYERS V. CATTERSON.

Tuesday, Dec. 16, 1889.

(Before COTTON, BowEN and FRY, L.JJ.)
MYERS V. CATTERSON. (a)

[Vol. LXII., N.

s.-205

[CT. OF Apr.

This freehold and leasehold property subsequently became vested in the defendant, Samuel
Prince Catterson.
In the autumn of 1887 the defendant erected
APPEAL YRO31 THE CHANCERY DIVISION.
some buildings on part of this land situated on
Light - Implied obligation- Railway arch
the north-eastern side of the railway, opposite to
Obstruction-M1andatory injunction- Prescrip- the plaintiff's messuage, and about eighty-two
tion Act.
feet distant from the railway.
In 1863 a railway company granted land with a
The defendant also blocked up the arch No. 88
house on it to -.. , together 'with all the rights, by means of a black wooden hoarding. The
easements, and appurtenances thereto belonging. adjoining arch, No. 89, had been blocked up
The railway was eight feet fromz M.'s house, and
many years previously.
was carried past it on a viaduct, the arches of
Both these arches had been for some years used
which were fifty-eight feet long. Light came
for storing engines, tanks, boilers, and other
to certain windows of M.'s house through two of
heavy machinery.
the archways of the viaduct. In 1872 the railThe plaintiff alleged that by reason of the
way company conveyed the fee of some surplus blocking of arch No. 88 the access of light to his
land on either side of the line, and gave a long
window had been obstructed, and he claimed a
lease of the archways to the predecessor in title
mandatory injunction for the removal of this
of C. In 1887 C. blocked up one of the arches hoarding at the west end, and damages for the
by placing a wooden hoarding on the side nearest obstruction by the building at the east end of the
to M.'s house, and thereby caused a diminution arch.
qf the light to M.'s windows.
By his defence the defendant denied the right
Held (affirming the decision of Kekewich, J., 61
to access of light through the arch, and pleaded
L. T. Rep. Ar. S. 236), that there was an implied
that, even if there was any such right, no appreciobligation by C. not to interfere with M.'s access
able amount of light came through the arch.
of light: and that, as this obligation was not
It was also pleaded that the plaintiff was
restricted by any reasonable presumption on the barred by laches and acquiescence.
part of M. that the arches would be blocked up, a
The plaintiff died after the commencement of
mandatory injunction must be granted to pre- the action, and it was continued by his wife.
vent the continuance of the obstruction.
Evidence was adduced on the part of the plaintiff to the effect that the sitting-room window
By an indenture of the 31st Dec. 1863, the London,
was materially darkened by the erection of the
Chatham, and Dover Railway Company granted
hoarding, and that the room was rendered less
to the plaintiff Solomon Iyers (who'had since
died), the fee simple of a piece of land at Newcomfortable for habitation.
ington Causeway, Surrey, and the messuage
On the other side expert evidence was adduced
thereon, No. 89, Newington Causeway, with all
to prove that no light that could be estimated
rights, easements, and appurtenances thereto
The witreached the window from the arch.
nesses detailed experiments which were made in
belonging.
This messuage was continuously occupied by
the arch.
The action came on for trial before Kekewich, J.
the plaintiff and his wife, partly as a shop and
in July 1889, and his Lordship decided that there
partly as a private dwelling-house.
It was
situated on the south-western side of the London,
was an implied obligation by the defendant not to
interfere with the plaintiff's access of light; and
Chatham, and Dover Railway, and was eight
feet distant therefrom.
that, as this obligation was not restricted by any
The railway was carried on a viaduct past the
reasonable presumption on the part of the plaintiff that the arches would be blocked up, a mandasaid house, and two of the windows in the house,
tory injunction must be granted to prevent the
namely, a sitting-room and a kitchen window,
continuance of the obstruction. His Lordship
looked on to, and derived some light through,
also directed an inquiry as to damages: (61 L. T.
two of the arches of the railway.
These arches or tunnels were fifty-eight feet
Rep. N. S. 236.)
long.
From that decision the defendant now appealed.
On the 19th Dec. 1872 the railway company
Neville, Q.C. and Russell Roberts for the
granted a lease of a piece of ground and seven of
appellant.-The recital in the conveyance of 1863,
the arches to Isaac Jacobs, for a term of fifty
that the land retained was required for the puryears; but subject to any rights of light to
poses of the railway, is inconsistent with the
which the owner or occupier of the messuage on
notion of an implied grant to the plaintiff of a
the west side of the railway was entitled.
right to light, and the plaintiff is not entitled
In consequence of a question as to light the
under the Prescription Act by reason of the
rent was reduced from 2501. to 2251.
interruption of his enjoyment of the light in
By an indenture of the 3 1st Dec. 1872 the
1872. The plaintiff must be taken to have known
railway company conveyed to Lewis Isaacs (as that these arches would be blocked up,
as there
trastee for Jacobs) the fee simple of certain
is a universal practice among railway companies
surplus land belonging to them on both sides of
to let such arches:
the railway, and by an indenture of even date
Birmingham, Dudley, and District Banking Comgranted to him a lease of the arches for 1000
pany v. Ross, 59 L. T. Rep. N. S. 609; 38 Oh. Div.
years. subject to the prior lease.
295.
Owing to a question again arising as to the
Then we submit, also, that a man cannot claim
plaintiff's right of light, the purchase money was
access of light through another man's building;
reduced from 19001. to 15351.
and this arch is a building for that purpose. But
(a) Reported by W. 0. BIsS, Esq., Harrister-at-Law.
if there is any such right, the expert evidence
Vol. LXII., N. S., 1586*.

206-Vol. LXII., N. S.]

CT. or

APP.]

THE LAW TIMES.

[April 5, 1890.

MYEs V.CATTIRSON.

[CT. or APr.

shows that no light that can be measured reaches

the plaintiff's window.
Warmington, Q.C. and Swinfen Eady, for the
respondent, upon waiving their right to the
inquiry as to damages, were not called upon to
argue.
COTTON, L.J.-I give no opinion here as to
whether the parties on one side or the other are
unreasonable or foolish. Many may consider
them foolish in pushing their rights to an extremity. But all we have to do is to decide the
question brought before us on appeal. The
appeal is against a judgment of Kekewich, J.
which granted an injunction and required the
removal of a certain hoarding put up by the
defendant so as entirely to block out a certain
light (except where there is a window in the
hoarding) coming through the western end of the
arch under part of the London, Chatham, and
Dover Railway Company. The plaintiff's husband bought from the railway company in 1863 a
plot of land. The conveyance to him was after
some time and after he had put up a house on
that plot of land. The railway company held the
adjoining land; part'of it was the site of the railway, on which there was at the time a certain
portion of the railway supported by arches, but
the arches were not of the same width as they now
are. The railway company also held land partly
covered by a building, partly vacant. On the
further side from the plaintiff's house, or on the
other side from this railway, there is a viaduct on
which the railway runs. The conveyance from
the railway company did not imply any express
grant or reference to lights, but it recited that all
the particular portion of land bought by them,
(543 and 544, those being the numbers upon the
parliamentary plan), except that which was
coloured blue, was required for the construction
of the railway. The part coloured blue was what
was bought by the plaintiff's husband, who is
dead, and on which he built the house. In that
house, as constructed when the conveyance was
made by the railway company, there was a side
facing the railway, on which there was a large
number of windows. But the one which is most
materially in contest here as regards the light
which has been obstructed by the act of the defendant was a sitting-room window on the
ground floor. There is below, on the basement, a
kitchen which also had a light in the same direction. Both those two lights, though not exactly
opposite one of the arches of the viaduct on which
the railway was, were substantially opposite one
of the arches. There is no question about the
other arch, because that has been blocked up for
some little time. But lately the defendant, who
has taken a lease, and has in some way acquired
a right to the arch 88, has entirely blocked up
the end of it by the hoarding in which there is a
window, a certain portion being glazed. Now,
the first point we have to consider is this: Is
there any right at all in the plaintiff ; or. rather, is
there any obligation entered into by the railway
company from the circumstances which I have
stated P If there is an owner of two plots of
land, on one of which there is a house built, and
he sells one and retains the other, from the circumstances in which he has placed himself as
regards the purchaser, there is the implied
obligation, or contract, or covenant--call it which

you will-not to interfere with the lights of that

house. If this railway company was a mere ordinary owner of land, that would be the obligation
which would prim6 facie, unless it is rebutted, be
contracted by the position in which the vendor
has put himself to the purchaser. Here it was a
railway company. The only difference would be
this : that a railway company which has the adjoining land, and is about to construct the railway, will not be presumed to do anything
to interfere with the rights of the owners
of the adjoining land. About that there is no
difficulty at all, because the contract contained in
the conveyance by the railway company to the
plaintiff s husband is this: it recites that the
whole of the land and premises will be actually
required for the construction of the railway. If
that is so, and it is mentioned in the deeds, and
it would be the same, I think, as appears on the
evidence, that that was the footing as regards the
relation of the company when it executed this
deed, it is clear that there is an intention on the
implied contract entered into by the vendor (in
this case the railway company) that it is not
restricted by that obligation from doing that
which was necessary for the purposes of the construction of the railway. That, in my opinion, is
the true nature of the obligation here, which the
railway company entered into when it conveyed
this house, built as itwas and with the window as it
was, to the plaintiff's husband, the purchaser from
the railway company. It is argued that this really
makes this obligation contracted by the railway
company entirely dependent on the will of the railway company, and that therefore that is quite inconsistent with and repugnant to the grant which
was made of the house to the plaintiff's husband.
But that is not so. The limitation of it possibly
might be repugnant; but I think the true view
is, that the limitation of the obligation contracted
by the railway company is not entirely dependent
on the will of the railway company or its
engineer. They may do anything which is
required, and the engineer will determine, subject
to the directors, what is necessary for the construction of the railway. That, therefore, is a
matter not left entirely to the will of the company,
as is contended on the part of the vendor, but
certain definite purposes are pointed out, for
which only the railway company are entitled to
use the land which is retained so as to interfere
with the obligation which is entered into as
regards the light to the window.. We ought to
hold, and I state it as my opinion, that the railway company, being owners, not only of the land
sold, but of the land adjoining, entered into an
implied obligation not to do anything with that
adjoining land except that which was necessary
for the construction of the railway. That is the
first point we have to consider. Was it reasonably required for the construction of the railway P
In my opinion, certainly it was not. It is not
the fact that the railway company in making any
alteration of their line are putting up this
hoarding. But what is done is this: They have
granted a lease, or granted the interest, to the
defendant, under which he is in occupation, and
for the purpose of making that occupation profitable to himself-and, therefore, possibly to
some extent so as to give the railway company a
larger rent for the archway-he is putting up this
hoarding which is complained of. That is either

April 5, 1890.]

CT. oF

AP.J

THE LAW -TIMES.

MYERs V. CATTELSON.

for his benefit or the pecuniary benefit of the

railway company. I do not care which. Take it
for the pecuniary benefit of the railway company.
But it is not a matter for the purposes of the
construction of their line, for which only are
they entitled to deviate or be relieved from the
obligation which they entered into as regards
the building that is put up. Then the obligation
is, not to interfere with the light except in doing
what is required for the construction of the railway. I agree that in such an implied covenant
the court (although it has not been argued upon
that line) would not interfere, unless there was a
substantial interference with the light of the
plaintiff. Now, there was an argument addressed
to me by Mr. Roberts, and slightly also by Mr.
Neville, that there could be no implied obligation
in such a case, where the angle as it came to the
house, as defined on the evidence, was not an
angle of 45 degrees, but was a somewhat less
angle. In my opinion, that is entirely wrong.
The court will not interfere by injunction where
it sees that there is still a reasonable access of
the light of sufficient extent to the person complaining. But the obligation would be implied
quite as much where there was no obstacle existing at the time opposite the house sold. Take
the case of a house on Salisbury Plain, without
anything to interfere with the light which
comes down to it from the horizon. Does not
the man who sold that house and owns adjoining
land subject himself to the implied obligation not
to do anything on the adjoining land which would
interfere with the access of the light to the house
which he has sold? It may be that, if he put
up something which only in an infinitesimal
degree interfered with the light, it would not be
held to be such an interference as to call for the
interposition of the court. It is not a question
of whether the obligation has been entered into
or not. The question is, whether or not there
arises such a breach of the obligation as would
justify the court or require the court to interpose.
NTow, dealing with that here, what is the case ?
The position of the house and windows is such
that a very small interference with the light
which the plaintiff had acquired the right to, or
to which he had the right granted to him, would
be prejudicial. It is not like the case where a
house is standing entirely free from obstruction.
It is in the peculiar position that there is a
railway pretty close to it, only 8,feet off, and
any interference with any light which came to it
before the acts complained of, which were done
by the defendant, would produce a serious effect.
Now, what has the judge done? He has had
before him a variety of witnesses, some scientific,
and others, I believe, not of a very scientific class.
One of them is a doctor, who necessarily observes
all indications brought before him. Those witnesses all say that, since the act done by the defendant, there has been a substantial alteration in
the light which this room previously enjoyed. One
witness says-and that was very much commented
upon by Mr. Roberts-that he saw the light
"streaming down through the archway." Well,
perhaps he meant that there was a considerable
amount of light coming to the room. I do not
think one ought to criticise that expression
further than was done in the course of the argument. But I quite understand what he saysthat there was a substantial quantity of light

[Vol. LXH., N. S.-207

[CT. OF Arp.

coming down through this archway. Now, what

have we opposed to that? Scientific evidence. I do
not in any way speak in disrespect of scientific
men; but I agree with the judge that the evidence
of fact and experience is much more to be relied
upon than any scientific evidence as to what will
be the consequence. When one has the fact that
the judge, after seeing the witnesses and hearing
them, and knowing exactly what they meant to
say, relies upon the witnesses of experience
clearly in opposition to the scientific witnesses, I
cannot differ from the conclusion at which he
arrived. I have not had the opportunity of seeing those witnesses and hearing exactly what they
say, but, so far as I can judge, I should agree
with the conclusion at which the judge arrived,
and should say that the evidence of experience
and of fact is not to be set aside in consequence
of the evidence of those scientific witnesses.
One knows-and one might give instances of ithow frequently scientific witnesses of the greatest
experience and skill are found to be wrong, and
proved by facts to be wrong, and I cannot therefore think Kekewich, J. came to a wrong conclusion as regards the result of the evidence.
Then there is one other point which was pressed
upon us by Mr. Roberts. He says that the acts
of the plaintiff's predecessor and her husband
amounted to acquiescence so as to prevent the
plaintiff here from obtaining the relief to which
she is otherwise entitled. But how has there
been acquiescence? There has been no acquiescence in the thing complained of, because that
has not been done until recently. There was, no
doubt, an acquiescence in a smaller amount
of light being blocked, for Isaacs put machines
here, some of which probably did substantially
interfere with the access of light. But, to my
mind, that can be no acquiescence in the act
which the defendant has recently done ; and
it might be that it was such an interference
that Mr. Myers thought, "'Well, I do not like this,
but I must not be taken as in any way acquiescing in it." That acquiescence cannot be held
out to anybody, who looks at it reasonably, to
mean that the plaintiff's husband was not
interested about his light, or that he was willing
that anything should be done which would
prevent the light which formerly came down this
archway from coming to his premises. In my
opinion, this appeal fails.
BowEN, L.J.-I am of the same opinion.

As

to the question of fact involved in the appeal, I

should really say nothing after what the Lord
Justice has said, with this slight exception: that
I do not consider that one has in a case of this
sort to review the decision of the judge below,
who has seen the witnesses, just as if one had
seen the witnesses one's self. We are not in that
position. I am further impressed in the present
instance by this, that the judge below seems to
me to have founded his view of the facts very
much-upon the importance and weight which he
gave to the evidence of one gentleman in this
case, namely, Dr. Tanner, and the judge seems to
have been impressed by that gentleman's evidence.
It is impossible to say if Dr. Tanner was a firstrate witness, and worthy of all the attention and
respect which thp judge seems to have paid to
him, that his evidence does not justify the finding that the light here has been substantially or
appreciably diminished by the hoarding. The

208-Vol. LXII, N.s.]

CT. oF

APP.]

THE LAW TIMES.

[April 5, 1890.

MYERS V. CATtERSON.

[CT. OF APP.

learned. judge does seem to have attached to Dr.

Tanner that precise amount of importance. I
think, therefore, the matter being one peculiarly
within his cognisance, we cannot review his
decision, even if we differed from him. It must not
be at all supposed that I differ from the learned
judge in his conclusion; upon the evidence that is
before us I do not say that I should not have
come to the same conclusion. But as to the
point of law, which is perhaps of more general
interest, and not merely of interest because of this
cause, I will only add one or two words. Here is
a railway company which is possessed of a large
piece of land, along a portion of which the railway
is conducted, and along a portion of which the
railway is intended to be constructed. On the
residue of the land, close to the place where the
line will in the end be carried, the railway company agree to allow a purchaser to come in to
occupy the land under an agreement, and finally
to build a house there upon the land, which was
the house they finally conveyed to him. Now,
what is the implind obligation that the company
come under as regards the use of so much of the
land as they retain for the purposes of their own
railway? As in the case of all other implied
covenants or implied obligations, in order to see
what the measure of the obligation is, we must
look at the reason of the thing and at the circumstances, in order to ascertain, if we can, what
is the obvious intention of the parties, so as to
get to the transaction between them-that mini.
mum of efficacy and value which, upon any view
of the case, it must have been their common
intention it should have. Supposing this were
the case, not of a railway company, but an owner
of land. The owner has two pieces of land
which either adjoin or ar e so near to one another
that the enjoyment of the one, perhaps for all
purposes-at any rate,for some purposes for which
it may be enjoyed-depends upon the user to be
made of the other portion of land. What is the
obligation which the law assumes to arise between
the parties as soon as the conveyance has been
made, and on the conveyance coming into effect ?
The owner of the piece of land which is not sold
is, notwithstanding, selling the piece of land the
full enjoyment of which depends upon the user
he makes of that portion which is not sold.
Surely it must be in the contemplation of the
parties that, in the absence of any express agreement one way or the other, the vendor shall not
so use that land which he retains as 'to preclude
any possible use of the building or land which he
sells, or to prevent that use of it for which he
knows he is selling it to the other man. It would
be contrary to one's common notion of justice
and fair dealing if it were otherwise. The truth
is, that the law in such a case assumes, when the
parties have entered into the relation of vendor
and purchaser, from the circumstances of the
case, an obligation is on the man who sells not to
do anything with his own land which would defeat
the known and obvious intention of both parties in
making the sale. Now, apply that to a house.
Suppose I have a large piece of land, on one part
of which is standing a house. The house may be
a mere series of bricks, never intended to be
used as a house, but which may be pulled down
and carted away so as to be sold as bricks. If I
sold a house merely as bricks, of course the transaction would be different. But if I sell the

house which is standing on part of my land as a

house with windows in it, to be used as a house
andthe windows in it to be used as windows, the
least that the law implies, from the necessary
reason of the thing, is that I am not, upon the
remainder of my land which I keep back, immediately I have sold the house and its windows, to
do something which prevents all use of the house
as a house, and all use of the windows as windows.
The law expresses that obvious duty in the form
of what it calls an "implied obligation," or
"implied covenant or contract," on the part of
the vendor, who is selling one portion of his property and retaining the other, under circumstances like this, that he will not, on the property
which he retains, use all his rights as owner with
respect to the property which he retains. The
law requires that he will only use such of his
rights as owner as can be used consistently with
the convenient and reasonable enjoyment of the
house he has sold as a house. That is the ordinary implication. But, as it is clear that this
implication depends upon what one gathers from
observing the transaction and trying to find in
it a clue to the intention of the parties, as soon
as you add facts which make it obvious that the
intention of the parties was one way or the other,
then you have facts which give a colour to the
inference which the law draws, and which very
often lessen the obligation, which in the absence
of those facts or that fact, would be supposed to
have arisen. I keep a piece of land, and sell the
house as a house. The obvious intention, in the
absence of anything else, is that I intend it to be
used as a house. But if at the time I sell it I
make it clear to the person who is taking the
house-or the circumstances of the case make it
clear to him-that, although I sell it to him as a
house, I am intending nevertheless to use the
remainder of my land, which I keep, in a way
which may interfere in some degree with the
full enjoyment of the house as a house, then
you get a new fact or a new element introduced
into the case. That new fact or new element
shows that the intention of the parties was a
limited one, and that it was not intended by the
parties that the full use of the house as a house,
or the full enjoyment of the lights and windows
as windows, was the essence of the transaction.
Now, here it is said that at the time the railway
company sold this house as a house, with its
window lights to be used as lights, the purchaser had notice that the railway company
intended to use the remainder of the land
in a particular way which would necessarily
interfere with the enjoyment of the light
to the windows, and, so to speak, modify
the ordinary implication which the law would
extract from the transaction.
Therefore it
becomes necessary to look at what was the exact
character of the conveyance, and at what was the
purchaser of the house told at the time it was
sold. It is clear he was told that the railway
company intended to construct their line on a
portion of the remainder. I neglect for the
purpose of this judgment any consideration of
what the exact terms would be about anything
else except this part of the land which immediately
fronts the windows of the plaintiff. But the
purchaser was told, what it was most material
for him with reference to his window lights to
know, that the railway company, when they sold

April t, 1890.j

TE LAW 'IMS.

[vol. miI., N. SAO

CT. oF APP.1

TURNOCK V. SARTORIS.

[CT. OF APP.

him the ho use and gave him the windows, nevertheless did intend to carry out the line in the
way in w hich I presume was most convenient to
their interests. He was told that they required
the remainder of the land for the construction
of the railway. Now, to what extent did that
modify the implied obligation which the law
would infer? I think it would modify it to
this extent: that the -vendor would no longer be
bound to leave the window lights intact, but he
would have a right to diminish the light to the
windows, and to interfere with the enjoyment of
the land so granted, so far as he was required
to do so for the purpose of constructing the
line, but no further. Unless you had some
further fact or some further notice-something
further to modify the intention of the parties
to the transaction-of course the broad rule
applies, that the person who gives a thing to be
enjoyed, intends that it is to be enjoyed, and
has no right afterwards to do anything which
defeats the enjoyment to which he has consented,
and which is the creature of his own gift. I
think, therefore, that the appellant's argument
breaks down in this, that, although it is clear
that the purchaser of this property could in
no way complain of the railway company
constructing their line, and interfering with
his windows so far as the construction of
their line did interfere with them, yet if the
matter was one which went beyond the construction of the line, then the ordinary presumption of
the law would not be ousted so far as that was concerned. It seems to me that what has been done
by means of this hoarding is certainly not for
the purpose of the construction of the line, but
goes beyond it. We put itonthebroadgroundthat
a vendor cannot derogate from his own grant, and
he is bound to allow such convenient use of the
premises which he gives to be held as is consistent with such notice. He is bound to allow
the premises which he has granted to be enjoyed so far as they reasonably can be enjoyed,
limiting the enjoyment only by that class of user
of his own land which he must be taken to have
desired. So much for the law of the case. The
appellants seem to me to fail upon that. I only
wish to say something more about the position in
which the parties stand. This, to my mind,
although I daresay the room is no doubt of some
value in the eyes of the owner, is a very small
affair. Kekewich, J. sums up this litigation in
these words: He says he has distinct evidence of
the answer to be given to the question. The
question is, whether this little sitting-room,
"otherwise dark, lighted only otherwise by means
of a passage eight feet wide, and always dark
and ill-lighted, will be rendered less comfortable
for the ordinary use and occupation of the sittingroom by persons in the plaintiff's condition of
life." The question was, whether the use of a
sitting-room like that has been interfered with by
the hoarding, and that interference is the subjectmatter of this litigation-litigation wbich has
gone through the court below, and comes to us
accompanied by printed notes of the evidence to
the extent of 120 pages. I have no doubt the
parties now attach importance to the way in
which we decide this case. But the misfortune
is that, however we decide it, we cannot decide
in this action the exact way in which that railway
arch is to be used in the future, and the exact

state in which light might be acquired from it.

We can only decide the case as regards the
hoarding, and if the appellants had asked us,
under Lord Cairns' Act instead of an injunction,
to grant compensation only, on the ground that
it was on the whole better, in our judgment, to
do so, I should have liked to have heard further
argument on the question whether that was not
the most convenient and just way of dealing with
the case. But we were not asked to do that.
The case was rather presented to us giving the
go-by to that view. Therefore I agree in affirming
the injunction which was given in the court
below. That is the necessary conclusion-that
we are not to give compensation. I hope that I
am not doing wrong in speaking for myself, but
I earnestly press upon the parties the desirability
of doing that which the court might have been
asked to do, namely, to substitute a money equivalent for this injunction-to come to some convention or agreement by which the hoarding
should be left up, and a money value given which
would thoroughly compensate the owner of the
room for the injury sustained. Of course that is
not part of my judgment. I only mention it to
explain why it is I acquiesce in giving the relief
in the form of an injuncuion. As to the building
on the other side of the arch, I agree with what
the Lord Justice has said. My judgment then
would be, dropping the inquiry, and confirming
the judgment as to the hoarding.
Fny, L.J.-I have nothing to add, except to
express my concurrence in what has been said.
I entirely adopt the view of Bowen, L.J. with
regard to the expediency for the parties to take a
course by which this litigation will be finally
concluded. 1 hope that will be the result.
Solicitors for the appellant, Saffery, Huntley,
and Son.
Solicitors for the respondent, Hicklin, Washington, and Pasmore.
Wednesday, Dec. 11, 1889.
(Before COTTON, BOWEN, and FRY, L.JJ.)
TURNoCK v. SARTORIS. (a)
APPEAL FROM THE CHANCERY DIVISION.

Arbitraticn- Questions not covered by arbitration

clause-Reference-Common,Law Procedure Act
1854 (17 "18 Vict. c. 125), s. 11.
A lessor granted in 1870 to the plaintiff's predecessor in title a lease for sixty years of a manufactory, and covenanted to supply a certain

quantity of water daily to the demised premises.

The lease contained a clause providing for the
reference to arbitration of any dispute or difference between the parties" touching thesepresents
. . . or any matter in any way connected
with these presents." In 1885 a further agreement was entered into between the parties, which
imposed upon the lessorfresh liabilities as to the
supply of water, and to a certain extent modified
the plaintiff's rights under the lease. The plaintiff subsequently brought an action against the
executors of the lessor, claiming damages for
alleged breaches of the lease, and also of the
agreement of 1885, in respect of the supply of

water to the demised premises. The defendants

appliedfor a stay of proceedings in the action,
(a) Reported by,A. J. SPECNER, Esq., Barrister-at-Law.