The terms of the motion were: for an order that defendants pull down and remove a fence erected along the boundary between B. C. Lots 117 and li7e, and that defendants be restrained until judgement in the action from placing any erection on the side of lot 117 to be a nuisance to the plaintiffs, or to obstruct or damage access of light and air over B. C. lot 117 to the windows in the building on Lot 117¢ facing lot 117, or any of them.
Srarewent or Cram.
The Bible Society is the registered owner of B. O, lot 117c. The plaintiff Tam Wah has purchased the said lot, and is beneficiary owner. The buildings are in the occupation of the Society as tenants of the plaintiff Tam Wah.
Defendants are a British company, registered owners of lot 117, situated immediately to the west and north of Lot 117e.
The land comprised in lot 117¢ was, prior to November 20, 1868, part of Lot 117. The owners or occupiers of the buildings on lot 117e have enjoyed the free access of light and air over lot 117 ta the said windows from the time of erection until Jue 26, 1920.
On or about June 26 or 97. defendants erected a fence about 8ft high along the boundary between the lots which obstructs the access of light and air to 11 windows on the ground floor. The fence is a nuisance to the building. and has rendered it dark and of much less value to the plaintiffs.
Plaintiffs claim a declaration that they are entitled to free access of light and air over B.C. Lot 117 to the windows in Lot ive. (2) An order that defendants shall remove the fence. (3) An injunction. restraining defendants or their agents from placing any erection on lot 117 so, as to be a nuisance to the plaintiffs, or to obstruct or diminish the aces of light.
R. M. Saker, manager to the defendant company, put in an affidavit, in which he stated that the fence in question only reached to approximately half-way up the windows of plaintiff's buildings and access of light and air thereto was not seriously obstructed. Further, that negotiations were proceeding for the sale of defendant's property, and any order for da the removal of the fence would be calculated to cause serious damage, since the intending purchaser would be led to believe that the right to light had been established by the plaintiffs, and that the owners of defendants' property, would be unable to build thereon. Further, that he was advised, and verily believed, that plaintiffs" building had no right to light, and that no such light as appurttenant to a building is known in China.
Mr. H. L. Ward appeared for plaintifis and Mr. Reader Harris for defendants, Tae Fence as Test.
Mr. Ward stated that lot 1170 was carved out of the original lot and transferred to the predecessors of Tam Wah, whilst what remained of lot 117 retained that designation and was transferred to the defendants. The buildings on plaintiffs' lot as they stood at present were in substantially the same condition as when the transfer took place in 1868, and along the boundary there were a number of windows in the plaintiffs' building which were also there in 1868. The boundary between the two properties was practically that on the plaintiffs' property. there being only a few inches of land belonging to the plaintiff between, Ever since 1868, unrestricted light and air had come across defendants' property to these windows, until the fence complained of was put up in June this year. This was obviously done by the defendants for the purpose of raising this question and getting the law determined. The cost of erecting the fence was very slight, and so would be the cost of its' reuioval. answer to his Lordship, Mr. Reader Harris said defendants were not prepared to take the fence down.
Mr. "Ward, continuing, said there had been correspondence, and the proper course for the defendants would have been to inform plaintiff that they were going to erect the fence. An injunction could then have been applied for and the matter settled. The idea obviously was either to force the plaintiff to sell his property or buy a portion of the defendants' land. The question involved was probably as important as any question that had ever come before the Court, since the judgement whichever way it went would be of cerions importance to peoples' lives. Counsel said he would not argue that the law of land in China was surrounded by all those technical. which applied in England. but he would ask for a decision on_ principles which applied ta _all—common sense and natural justice.
Tue Doctrine or Iuprtcation.
Counsel went on to say that he would rely on what he might call "the doctrine of implication)" upon which he argued that the transfer of land included the transfer of all rights of accommotion by implication. No two persons when they entered into a transaction did in fact state everything that was in their minds. In employing a servant, they did not set out at interminable length the things that he
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