Odger's English Common Law

THE RIGHT TO LIGHT. 573
for merely omitting to repair the way ; he is not, as a rule,
bound to do anything. It is the duty of the grantee of the
right to repair a way or to clean out a watercourse, and he
has a right to go upon the servient tenement for such a
purpose.
In order to succeed in an action for the obstruction of
ancient lights, it is not enough for the plaintiff to prove that
owing to the obstruction he enjoys less light ; he must show
that the obstruction amounts to a nuisance to him, having
regard to his previously existing easement of light. 1
In other
words, he must prove that it is of such a character as to
render his tenement materially less fit for the purposes of
business, if it be a place of business.
" Any substantial interference with an owner's comfortable use and enjoy-
ment of his house according to the usages of ordinary persons in the locality
is actionable as a nuisance at common law. ... It is still, as it has always
been, a question of nuisance or no nuisance, but the test of nuisance is not
—How much light has been taken, and is that enough materially to lessen the
enjoyment and use of the house that its owner previously had ? but—How
much is left, and is that enough for the comfortable use and enjoyment of
the house according to the ordinary requirements of mankind ?" 2
Defence*.
There are many matters which a defendant may urge in
answer to a prima facie case which the plaintiff has established.
For instance, it is open to him to show if he can that the user
relied on by the plaintiff was forcible, or secret, or by
permission. The Prescription Act makes no change in the
old rule that the enjoyment relied upon must have been nee
vi, nee clam, nee precario. Hence the action will still be
defeated by any evidence which prior to the statute would
have been an answer to the claim—as, for instance, by proof
that the user could not have been as of right, or that the
owner of the servient tenement was during any portion of the
period of prescription incapable of making a grant of a right
such as the plaintiff claims, .