Low v Innes
| Jurisdiction | England & Wales |
| Judgment Date | 05 March 1864 |
| Date | 05 March 1864 |
| Court | High Court of Chancery |
English Reports Citation: 46 E.R. 929
BEFORE THE LORD CHANCELLOR LORD WESTBURY.
S. C. 11 L. T. 217; 10 Jur (N. S.), 1037.
LOW V. INNES 929 [286] Low t . innes. Before the Lord Chancellor Lord Westbury. Jan. 10, fei. 10, 24, 27, Jlfarcfc 5, 1864. [S. C. 11 L. T. 217 ; 10 Jur. (N. S.), 1037.] A lease contained a covenant on the part of the lessees to " rebuild " a new house and premises on the site of the demised messuage, which they covenanted to pull down. Held,- 1. That the covenant did not involve any obligation to erect the new house in the same manner and in the same style and shape and with the same elevation as the old building. 2. That even if it did, the implication would have been rebutted iu the case before the Court, inasmuch as the covenant stipulated that the new house and premises should be suitable for a purpose to which the old building was not applied. The lease also contained an agreement that such of the windows and lights in the new house and premises as occupied the site of ancient lights were to be considered as and should have all the rights of ancient lights. Held, that this was merely an agreement between the parties, amounting to an engagement by the lessees,that, so far as they were concerned and so far as they were owners of the adjoining property, the lights of the windows of the new house which should occupy the site of ancient lights should have the character of ancient lights; and that the extent of the covenant must bb limited to such rights and such estate and interest as the Appellants themselves might possess in the adjoining land. The lease further contained a provision that certain entrances from the demised messuage and the yard in its rear into an adjoining court and gateway, and the right of carriageway in respect of the messuage through such court should be preserved. Held, that the covenant must be construed with reference to the right-of-way and the user of the right-of-way which had existed as far back as could be traced by evidence in respect of the demised premises. The assistance afforded by the Court of Chancery by way of mandatory and prohibitory injunction in aid of specific performance is a jurisdiction the exercise of which is eminently discretionary, and ought to be guided and measured by what substantial justice requires as between the parties. Circumstances under which, by reason of a reasonable offer made by the Defendants, and upon terms, the Court declined to exercise the jurisdiction. Observations on the duty of the Court clearly to lay down, by the language of its injunction, what it permits and what it prohibits. Liberty should not be given to a Plaintiff, in a suit for a mandatory and prohibitory injunction in aid of specific performance of a building agreement, to apply to the Court in the event of the Defendants erecting any wall or building which should prevent free access of light and air. Either the application for such liberty is premature, in which case the liberty ought not to be given; or if reason for the application afterwards arises, it must be the subject of independent proceedings. This was an appeal by the Defendants from an order made at the hearing of the cause by the Vice-Chancellor Sir William Page Wood, granting, with costs up to the hearing, an injunction to restrain the Appellants from building or continuing the wall, in the [287] pleadings described as the main back wall, of a messuage covenanted to be rebuilt by them on the site of No. 27 Mincing Lane, otherwise than on the same site and extending over the same site as was formerly occupied by the main back wall of an original messuage formerly standing on the site, and which had been pulled down by the Appellants under a covenant for that purpose; and also from erecting the new messuage in such manner as not to preserve the back entrance into a court and gateway called Bell Court or Yard, and the right of carriageway in respect of the messuage through Bell Court; with liberty to the Respondent, the Plaintiff in the cause, to apply to the Court as he should be advised in the event of the Appellants erecting any wall or building either on the demised premises or on the property of the Appellants, which should prevent the free access of light and air C. xxvi.-30 930 LOW V. INNES 4DBO.J. & S. 288. to such of the windows of the newly-erected house as might occupy the site of the ancient lights of the messuage No. 27 Mincing Lane. The facts of the case, as also the scope of the argument, sufficiently appear from the Lord Chancellor's judgment. Mr. Eolt and Mr. Jessel appeared for the Eespondent; and Sir Hugh Cairns and Mr. Cotton, for the Appellants. Reference was made to The, Attorney-General v...
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...absolutely nothing of or concerning the Plaintiff; and this could not have been the intention of the court. The 1864 case ofLow v. Inness 46 ER 933 was called in aid. 21 Counsel for the Plaintiff submitted in reply to counsel for the Defendants' first submission above that the Defendants ha......
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