1. This is a suit for a declaration that the plaintiff is entitled to an easement of light and air and for an injunction restraining the defendants from interfering, in certain respects, with the enjoyment by the plaintiff of her house and window. The facts as found by the learned Judge (and we see no reason to differ from his conclusions) are as follows: The plaintiff's house adjoins the defendants' house to the north and in the plaintiff's southern wall there is a window, which, has been in existence for nearly 30 years. The defendants have recently re-built the portion of their house opposite to this window, with the result that the eaves of the roof are now above the level of the plaintiff's window sill and the shutters of the plaintiff's window which open outwards cannot now be shut and opened as usual, because the defendants' roof obstructs their movement. The defendants have also constructed a channel to catch the rain water from their roof, which runs on the same level as the plaintiff's window sill and encroaches on plaintiff's wall and finally discharges into the plaintiff's courtyard. The water from this channel also overflows at times through the window into the plaintiff's bedroom. In the room opposite the plaintiff's window the defendants have constructed two chimneys, one If feet and one 5 or 6 feet from the window and the smoke from them goes into the plaintiff's room. The learned Judge has accordingly granted the declaration prayed for and an injunction ordering the defendants.
2. (a) to remove the two chimneys opposite to the said window and adjacent to it;
3. (b) to lower the roof of the house and ground No. 8, Ramanuja Iyer Street, George Town, Madras, opposite to the said window so as to enable the plaintiff to open and close the window doors freely to the width of the said window by one foot;
4. (c) to re-align the channel in such a manner as to, prevent the rain water from flowing into the plaintiff's room or into any portion of the plaintiff's house; and
5. (d) to remove two inches along the whole drain which encroaches on the wall of the plaintiff's said house.
6. There is no appeal as regards (d), and as regards (e) we need only say that defendants have failed to prove that they have any right to discharge water on to plaintiff's premises and consequently the plaintiff is entitled to an injunction restraining them from doing so.
7. The two orders to which objection is chiefly taken are (a) and (5). It has been found that defendants have not caused any serious diminution of light and air, but the smoke from the two chimneys pollutes the air passing into the plaintiff's house. As one of the chimneys discharges directly into the plaintiff's window from a distance of If feet, it is clear that a substantial nuisance must be caused, and of this we have evidence on the plaintiff's side. The chimneys have been newly constructed and the appropriate relief is to order their removal as being a nuisance to the plaintiff. Objection is taken to order (6) on the ground that the plaintiff, having only an easement of light and air, can have rid right to open the shutters of her windows outwards and that such a right cannot be acquired as an easement. It is not suggested that the outer shutters have not been in existence ever since the window was made and consequently if any right can be acquired, plaintiff has acquired such right by prescription. It is contended on behalf of defendants that a right to open and shut windows cannot be held to be an easement, but Mr. Seshachariar is unable to quote any authority in support of his contention. The right appears to be an easement within the meaning of Section 4 of the Easements Act, for it is a right which the plaintiff, as owner of her house and site, has, as such, for the beneficial enjoyment of that land to do something, i.e., to swing the shutters upon certain other land not her own. A similar right, i.e., the right to hang clothes on a line above another person's yard was regarded as an easement in Drewell v. Towler (1832) B k 3. and Ad. 1 L.J.K.B. 228 and in America the same right of swinging shutters over a passage way was also regarded as an easement (Jones on Easements, Section 10). This being so, we agree with the learned Judge that the plaintiff has acquired such an easement. It would be impossible to make an accurate estimate of the pecuniary damage sustained by the plaintiff in respect of the several injuries caused by the defendants and consequently an injunction is the only appropriate remedy. Defendants cannot complain of any hardship, for they disregarded the plaintiff's notice in writing given before the erection of their roof and even denied all the plaintiffs rights. The appeal is accordingly dismissed with costs.