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to, or exercisable within the same. So it is equally within the definition given according to Blackstone by logicians: Corporeal hereditaments are the substance which may be always seen, always handled; incorporeal, a sort of accidents, which unite in and are supported by that substance, and may belong or not belong to it without any visible alteration therein. Their existence is merely an idea, an abstract contemplation, though their effects and profits which are totally distinct may be objects of our bodily senses. From the nature therefore of the thing itself, it is clear, that it is only as an incident to real estate and essential to its use, that light can be the object of the protecting care of the law. And as such incident to real estate, the legal right to it is secured by the comprehensive maxim which governs in such cases, and which includes not only things below the surface, but above it, water, air and light: cujus est solum ejus est usque ad cælum, et ad inferos. (He who owns the soil, has it even to the sky and to the lowest depths.)

2. The annunciation of the maxim just repeated has anticipated somewhat the second division of my subject— the legal rights of persons to the enjoyment and use of light.

And it has already been evident, that the proprietor of land has a right to the full and free enjoyment of all the light, which in its ordinary condition would come to the estate of which he is possessed, and that as a general rule he would be entitled to an action for any violation of this right. To this rule there are however important exceptions, and one meets us at the threshold of the matter. The right being equal in the case of adjoining proprietors of land, how are their respective obligations and duties as between each other regulated? The obvious answer is, without the intimation of any claim arising from prescrip

1 Coke Lit. 19, 20.

VOL. XXIII.-NO. XLV.

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22 Com. 20.

tion, or long continued use, that each would be authorized to use side lights or not, as he chose, in case he built on the margin of his land or otherwise, and the other by building on his own soil would equally be at liberty to stop the lights, if he could, if malice or wantonness or any other reason should prompt him to do so. This is a rule now perfectly well settled, upon the principle, that their rights to the enjoyment of the respective lands are the same, and neither is entitled to prevent the other from enjoying his own property in such manner as he chooses. The law upon this subject was declared in New York in Mahan v. Brown, and will be found quaintly and succinctly stated in the case of Bury v. Pope,' which I shall hereafter quote more at length. It must be borne in mind, however, that this rule only applies to those cases, where the lands are in a state of nature, without buildings, and where they are held under titles not derived from the same source. The rule in such cases deserves a distinct consideration and will be stated hereafter.

I have thus far laid down the rule only in respect to lands originally unoccupied, and in cases where the owners themselves commence the erection of buildings requiring lights. There is another and much more extensive class of cases: that in which buildings have been erected, with lights in them, the free use of which is invaded; for the sake of convenience I shall arrange these into different heads :

(1.) Those where the building is an ancient building, and the lights also ancient lights. In this country, except perhaps in some of the towns which were settled by the early colonists, such lights can hardly be said to exist, as they must have been in use beyond the time of legal memory-certainly not a very definite period-undoubtedly, however, commencing with the reign of Richard the First,

1 13 Wend. 261.

2 Cro. Eliz. 118.

and in regard to subsequent transactions, being a period beyond which there is no knowledge when the thing did not exist, nor any record, law, deed or charter showing the contrary. If such an ancient light can be found in this state or in others where the common law of England prevails, it is not doubted, that even an adjoining proprietor, who had suffered his land to lie vacant, would not be permitted to build upon it so as entirely to stop or even essentially diminish the light, which his neighbor had been accustomed to enjoy by means of his ancient window. By the common law of England, this is an undisputed position. The cases are numerous, commencing with the earliest reports, and quoted and confirmed to the present time. They may be consulted in 1 Shower's Reports 7, and 2 Chitty on Pleading (new ed.) 367, and notes, and indeed are referred to in nearly all the elementary treatises. In the case in Shower, it is said: "If lights be stopt by the erection of a building on a man's own soil against the windows of another, it must be averred that they were ancient, for otherwise he has a right to build upon his own soil." This rule of the common law was adopted by us and became a part of the law of New York at the ratification of the constitution of the state by the people, the twenty-fifth section of which provided, that such parts of the common law as formed the law of the colony of New York on the 19th of April, 1775, should be and continue the law of this state.

It must be observed, however, that these ancient lights, and indeed all others which are entitled to protection from any cause, must always be used as they originally existed. They cannot be enlarged or extended in any way, so as to admit more light than originally passed through them. Even if the building in which they existed is destroyed or from any other cause requires rebuilding-a new one erected on the old foundation must have its windows in the same place and of the same dimensions, and admit

the same quantity of light. This rule would seem to be a fatal enemy to modern improvements in building, but it nevertheless is well settled upon principle and authority. The general rule is that a new building on the same site is entitled to the same rights as its predecessor and' no more. And it has been held, that if a building which has been used twenty years as a malt-house (to which time, as will be mentioned presently more at large, the protection is extended in England) is converted into a dwelling-house, it is in its new condition entitled only to the same degree of light as was necessary to it in its former state, and that the owner of the adjoining ground might therefore lawfully erect a wall which prevented the admission of sufficient light for domestic purposes, if what was still admitted would have been enough for the making of malt. This rule is founded upon principles of natural justice, to the propriety of which all must assent. In the case of a light strictly an ancient one, and in that of others, whether the exclusive protection to which they are entitled arises from prescription or length of user, which is generally regarded as evidence of a grant, the use had its origin in an encroachment upon the rights of another and an acquiescence, of which the user is evidence, or in a grant coextensive only with the use; and it would obviously be unjust to permit an extension of the use beyond the original enjoyment, for that would be allowing the party a benefit to which he had no legal claim. The law therefore strictly confines the use to its original limits.

(2.) A second class of cases where buildings have been erected requiring lights, and the use of which is infringed upon, is that where the lights have been used for more than twenty years. By the common law of England, as it was formerly declared by some of the wisest and ablest

1 1 Chitty's Pr. 208.

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1 Camp. N. P. R. 322.

judges which that country has produced, such lights were not entitled to any exclusive protection, nor did the user furnish any evidence of a right to prevent the adjoining proprietor from building on his own soil, to the prejudice of those lights. As the history of the decisions upon this point furnishes an instructive and interesting lesson upon the subject of departures from principle, as well as from the earlier and better considered cases, I shall examine them a little in detail. It will not be necessary for this purpose to go any further back than the case of Bury v. Pope,' already referred to. That was an action on the case for stopping the plaintiff's lights, and the reporter says, which indeed is the whole case: "It was agreed by all the justices, that if two men be owners of two parcels of land adjoining, and one of them doth build a house upon his land and makes windows and lights looking into the other's lands, and this house and the lights have continued by the space of thirty or forty years, yet the other may upon his own land and soil lawfully erect a house or other thing against the said lights and windows and the other can have no action; for it was his folly to build his house so near to the other's lands and it was adjudged accordingly.' With this rational rule, all the earlier cases concur and so far as I have been able to discover, this decision remained the law of England, for more than a century after it was pronounced. Now, however, it will be found that a different rule is stated to prevail there, and all the recent elementary works and some of the reports, contain opinions and dicta to sustain that altered rule. It is stated by Mr. Mathews, in this manner: "The right to lights or windows overlooking another person's land is a privilege, which, though generally obtained by purchase, originates not unfrequently either in a temporary permission by the adjoin

1 Cro. Eliz. 118.