ing land owner, or in the mere usurpation of the party. In both these cases, unless perhaps the permission in the former has been lately acknowledged, the effect of long unmolested possession is to confer a legal title to the supply of light. It has accordingly been held in a numerous series of adjudications, that enjoyment of light for twenty years affords presumptive evidence of an agreement, license, or grant." This is also the language of the English books generally. The same doctrine is substantially adopted by chancellor Kent in his commentaries, though he seemed to consider it by no means as safe and equitable in its general application, and he remarks upon it in a note: "The common law right of prescription in favor of ancient lights, does not reasonably or equitably apply, and it is not the presumed intention of the owners of city lots, that it ever should be applied to buildings on narrow lots in the rapidly growing cities of this country. By such a prescriptive claim, the value of vacant lots with old and low buildings upon them would be destroyed, if substantial buildings could not be erected on them, lest they might obstruct the lights and prospect of the side lights of some building on an adjoining lot which had stood twenty years." So general had the notion become among our own profession, that the same doctrine was taken for granted in the case of Mahan v. Brown, already referred to, by the late chief justice Savage. That case did not indeed call for any such opinion, no such point being involved in it, but the chief justice said, after adverting to the old rule: "Now, however, it is perfectly settled, that as the occupant may acquire a right to the house itself by twenty years uninterrupted possession under claim of title, so in the same time he shall by occupation acquire a right to an easement belonging to the house. It is true that twenty years posses

1 3d Com. 2d ed. 446.

sion does not confer a right absolutely, but it raises a presumption of a grant. The person who thus opens a window overlooking the privacy of his neighbor enjoys an easement in that which does not belong to him. Yet no action lies for this encroachment upon the rights of the person whose lands have thus been overlooked; the encroachment will in twenty years ripen into a right; and it is said that the only remedy is to build on the adjoining land opposite the offensive window." Although as an opinion, this had no binding authority, it was regarded by the profession, so far as my knowledge extends, as decisive of the rule in this state also. I have seen the report in a newspaper of a case in Louisiana, where the same rule was laid down, and a recovery had upon it. Upon an examination, however, of the case in which the new rule was first promulgated in England, it will be seen not only to be a departure from the common law, but founded altogether in false analogy. That case arose at nisi prius in England, in 1761, before Wilmot, J., and by the name of Lewis v. Price, was first reported in a note to the 2d Saunders's reports, 175, by serjeant Williams, the learned editor of the most valuable edition of that work. The report was not published, however, until the year 1799. The reason given by judge Wilmot is, "that twenty years is sufficient to give a man a title in ejectment on which he may recover the house itself, and he saw no reason why it should not be sufficient to entitle him to any easement belonging to the house." In a later case at nisi prius, he alluded to the same reason and said, "if my possession of the house cannot be disturbed, shall I be disturbed in my lights? It would be absurd." These nisi prius decisions could not properly be considered as altering the old rule, especially as the question seems never to have been deliberately argued and considered by the judges in bank. Nor could they operate in such manner as to change the common law and

render the new rule obligatory upon us, by reason of the adoption by that article of the constitution to which I have referred. Still they have since been implicitly followed in England. And the reason there upon which the rule is to rest, is the same as that which prevails to sustain a defence of adverse possession in ejectment, or a presumption of a grant from a co-tenant, where there has been an ouster and an adverse holding by his fellow, or a presumption of a grant arising from actual adverse occupation of a watercourse, common, way or fishery. In cases not within the statute of limitations, these presumptions were adopted by analogy to that statute and in order to quiet the possession. "They are adopted" as judge Story says, "from the general infirmity of our nature, the difficulty of preserving muniments of title and the public policy of supporting long and uninterrupted possession. They are founded upon the consideration that the facts are such that they could not, according to the ordinary course of human affairs, occur, unless there was a transmutation of title to or an admission of an existing adverse title in the party in possession."1 Moreover, in all these cases, there is an actual possession of something and the other party is deprived of some substantial benefit. And for this encroachment upon his rightsfor depasturing his common, flowing his land, using his field as a way, or taking fish upon his premises, he may maintain an action and recover damages, and thus prevent a continuance of that which unnoticed would at the end of twenty years ripen into a right. But the overlooking one's grounds by means of a window has none of these incidents. As has been shown, it is using nothing in the natural state of the soil, but what the party is entitled to; there is indeed no manual or pedal occupation; it is simply -if such a possession can be-merely ocular. The person

whose grounds are overlooked cannot have a remedy by action for doing it he has no means of preventing it, except by making a useless erection against the offensive window-and in short is wholly without any legal remedy whatever by action or otherwise. The overlooking one's grounds under such circumstances furnishes very little, if it does any evidence, of a claim of title or right to do so; which claim of title is an indispensable prerequisite to a defence of adverse possession and to authorize a presumption of a grant to land or to an easement. It would seem to result, therefore, that the reason given by judge Wilmot in support of his opinion, was the very one which should not have been given, and that instead of its being "absurd,” that the reason which would give a title to the house should not to the lights also, it was grossly absurd that it should, where there is such a great dissimilarity in the facts. And one can hardly restrain his surprise at the false analogy by which the learned judge was misled, when he recurs to the rule which is well settled, that in cases under the statute of limitations, there must have been an usurpation of right by one party to the prejudice of the other, and for which the latter might have maintained an action before the expiration of the time prescribed by the statute or the original right is not barred, and that where such enjoyment by one party has occasioned no injury or inconvenience of which the other could have complained, there is no such acquiescence by the latter as to raise any presumption whatever.'

Without pursuing the history of this branch of my subject further, it is only necessary to add, that in the case2 to which I alluded as attempting to introduce the English rule here, the question was brought directly before the supreme

12 Saund. 175, note, Bradley v. Greensil, 3 Camp. R 80, Chandler v. Thompson.

2 This case has been reported since the delivery of this lecture, in 19th Wendell's Reports, 309, Parker & Edgarton v. Foote.

court within the last year, where the law underwent a full discussion, and the result was that in a learned opinion delivered by judge Bronson, the English rule was pronounced unsound and was repudiated, the obiter opinion of chief justice Savage overruled, and the doctrine of presumptions declared to have just application to such a case. Still the rule prevails in England, and has recently received the sanction of a legislative enactment, probably from some doubt as to its validity independent of a statute.' By the custom of London, however, it never prevailed in that city, a person being authorized to build to any height upon ancient foundations, although he should thereby exclude the light from his neighbor's windows; provided the four walls belonged to him, but he was not thus privileged if he owned only three of the walls.

It may therefore be considered as clear that in New York there is no legal presumption of a title, or license arising from the use of lights and that however long they may have been enjoyed, unless they come strictly within the denomination of ancient lights, the owner of the adjoining soil may erect a wall against them.

I may be permitted to remark here, for the encouragement of bold and independent thought and investigation on the part of the members of our profession, that this history furnishes a salutary example of the danger of following cases implicitly, without an inquiry into the principles upon which they are based. The greatest and wisest judges frequently fall into error, and it is our province to point them out and thus to correct and amend them. Let your minds be well stored with legal principles, and there is little danger of being lost or long led astray among the mass of cases, with which we are and I fear will continue to be overburthened. Scrutinize every case with rigor, take no

11 Chitty's Pr. 207.