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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

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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.

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 possession 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 mature, 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.” 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 rights— for 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

* 3d Com. 2d ed. 446.

Ricard r. Williams, 7 wheat. 109.

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