1. The defendants Jamnadas and his brother being minded to rebuild their house, which lay contiguous to that of the plaintiff, commenced the requisite works in January or February 1872. The plaintiff Atmaram being apprehensive of injury to his house, through an obstruction to his upper windows, delivered to the defendants the notices, Nos. 34 and 35, dated, respectively, the 14th February and 9th March 1872. The defendants proceeded notwithstanding these notices to re-erect their house at a distance of one foot from Atmaram's, and carrying it up beyond its former height, they have so obstructed the plaintiff's windows that 'the two central rooms on the east side of his house, on the second floor, have been made unfit for occupation in the day time without artificial light.' The Assistant Judge holding that the plaintiff's property had thus been rendered 'in a material degree unsuitable for the purposes to which it is now applied,' followed Lord Westbury in Jackson v. The Duke of Newcastle 33 L.J. Ch. 698 in pronouncing the injury-one that did 'not admit of being measured and redressed by damages,' and directed the defendants to reduce their new structure to such a height as should prevent its interfering with the plaintiff's ancient lights. In this Court the injury and the right to redress have not been disputed; but it has been urged, first, that the injury was in its nature such that the proper remedy was an award of damages, or, at any rate, that the finding of the lower Court was not distinct that such an award would not satisfy the justice of this particular case; and, secondly, that, even if a mandatory injunction might originally have been with propriety demanded and granted, yet the delay of the plaintiff in not filing the present suit until the 7th October 1873, almost a year after the completion of the defendant's house, was of itself such an encouragement to the defendants to proceed with their building and to retain the advantage they had thus gained, that at the present stage, at any rate, an injunction ought to be refused; thirdly, it has been urged that the much greater injury that will arise to the defendants from the demolition of their building than to the plaintiff from his being compelled to accept pecuniary compensation, is an additional and strong reason for the Court's awarding damages only.
2. As to the first point, we think that the injury, as described by the Assistant Judge and the Subordinate Judge after an inspection of the premises, was clearly such that we cannot for a moment say that their findings on that subject are opposed to the facts proved in the case or unsupported by evidence. The complete darkening of some of his principal rooms is a serious injury to the plaintiff, and one which he cannot, with any justice, be forced to submit to in consideration of some money compensation guessed at by the Courts as a possible equivalent. The principle of law, which the Assistant Judge has applied to the facts, appears to have been widened, but in no respect narrowed by more recent decisions Bom. H.C. Rep. 184, Smith v. Smith L.R. 20 Eq. 500; Aynsley v. Glover, L.E. 18 Eq. 544. The case is one, we think, which falls within the ruling in Special Appeal 293 of 1873, and many others to the same effect in this Court, and one, therefore, in which a mandatory injunction was the proper relief for the plaintiff to seek.
3. The delay of the plaintiff in bringing his suit may be looked at from two points of view: Did it imply anything like acquiescence? Did it, apart from acquiescence, materially weaken the plaintiff's claim to the relief that he seeks? To the first question the plaintiff's whole course of proceeding furnishes an emphatic answer in the negative. The defendants having disturbed his foundations and upset the wall of his house, Atmaram took proceedings against them in the criminal Court. He complained also of the rafters of his house having been cut by the defendants to make room for their new edifice. These proceedings were going on until December 1872, and the notices given at an earlier stage were not withdrawn or qualified. There was no acquiescence, therefore on the plaintiff's part in the defendants' proceedings. They could not, at any moment before the completion of their building in October or November 1872, have said that they had been induced to do anything by an idea of the plaintiff's assent caused by his own acts or omissions; subsequently to that date there was no material change in the defendant's position which was induced or could have been induced by the plaintiff's omitting to pull down their new walls or to apply to the Court to have them pulled down. In the language of Blackburn, J., in Bennison v. Cartwright 33 L.J.Q.B. 137, 'The interruption was acquiesced in so far as that the wall was allowed to remain standing, but the plaintiff was protesting against his rights being interfered with.,' that is, there was no acquiescence at all; though there was, as to one kind of proceeding, acquiescence or forbearance which, in the absence of explanatory circumstances, might have been an impediment to the assertion of the plaintiff's right.
4. Putting acquiescence, however, out of the question, has the plain-tiff's delay disentitled him to the relief which he originally might have claimed? Down to October and even to December 1872 he appears to have been in a continual struggle with his encroaching neighbours. In the meantime their house had been completed. His legal right to relief would continue until it was barred by limitation, and the Courts could not properly impose any shorter period for its assertion. All that is urged is, that the discretional power of the Court as to mandatory injunctions should not, on account of the subsequent delay, be exercised in his favour, or rather that it should be exercised in favour of the defendants. But it is not shown or suggested that this delay has in any way prejudiced them. The supreme importance of this consideration is insisted on by the Privy Council in the judgment in Lindsay Petroleum Company v. Hurd L.R. 5 P.C. 239. 'Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct or neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted; in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. 'Taking it as a point determined, that the plaintiff's delay down to the end of 1872 was sufficiently covered by the other proceedings in which he was engaged; his delay from that time, down to October 1873, does not, under the circumstances afford any reason for curtailing his prior right to redress (see Durell v. Pritchard, L.R. 1 Ch. 244. The defendants have had a somewhat longer enjoyment of. their new building and of the luxury of annoying the plaintiff; but that is not a ground for refusing him the appropriate relief, where no new rights and interests have meanwhile come into existence.
5. It appears probable that the defendants will suffer more by the demolition of their house than the plaintiff, if his claim could be reduced to money, would suffer by being awarded merely a money compensation. But this is, except under special circumstances (as in Senior v. Pawson, L.R. 3 Eq. 330, no ground for depriving a plaintiff of the relief to which he is otherwise legally or equitably entitled. Here the defendants knew that they were doing wrong. They chose to go on in spite of the plaintiff's notices. They ran the risk with their eyes open; they cannot complain if they suffer through an ill event which they deliberately courted. The plaintiff has sustained an injury which can be effectually remedied in only one way, and to that one way the defendants, as wilful wrong doers, must submit.
6. Mr. Macpherson has not been able, on behalf of the defendants, to adduce any instance amongst the numerous cases to which he has called our attention, in which, after full notice that the plaintiff would take legal proceedings in the event of an injury to his property, he has been deprived of any portion of his remedy against a defendant through a mere delay in bringing his suit, not being such as to induce a reasonable supposition of final acquiescence, or one in which, under the same circumstances, the mere comparative greatness of the defendant's loss was allowed to liberate him from the ordinary consequences of wilful encroachment and wrong-doing.
7. For these reasons we must confirm the decree of the Assistant Judge. We add only a direction that, in executing that decree, the Court is to employ a professional man, agreed on by the parties if they can agree, but if not, then one nominated by itself, to determine what demolition is necessary to give effect to the decree in the way least injurious to the defendants.
8. Costs to be borne by the special appellants.