[*489] *SECTION VI. EASEMENTS AND SERVITUDES OF LIGHT AND AIR. 1. Of the nature of the easement of light and air. 2. Servitudes in this respect by the civil law. 3. Whether the right be a negative servitude or positive easement. 4. How far the right is a proper subject of prescription. 5. Theory of the right being by grant or covenant. 6. Right treated in England as one of prescription. 7. No easement of prospect at common law. 8. Easement of light only gained against owner of inheritance. 9. How far grant of house carries easement of light. 10. Does not apply against vendee of vacant land. 11. Swansborough v. Coventry. New building has only rights of old. 12. Compton v. Richards. Rights of light affected by state of premises. 13. Coutts v. Gorham. Same subject where rights are fixed. 14. Unity of the two estates extinguishes easement of light. 15. How extent of easement is measured. 15 a. English rule as to distance of obstructing objects. 16. What interruption of light lays foundation for an action. 16 a. Same rule as to country and city. 17. American law as to light and air. 18, 19. Parker v. Foote, Myers v. Gemmel. New York law. 20. Law of Massachusetts on the subject. 21. Law of Maine on the subject. 22. Law of Connecticut. 23. Law of Maryland. Cherry v. Stein. 24. Law of South Carolina as to light and air. 25. Cases in Pennsylvania on same subject. 26. Easement of light passes, if necessary to enjoy the grant. 26 a. How far grantee may obstruct grantor's light. 27. In what States the English rule of law prevails. 28. United States v. Appleton. Effect of sale of house with lights, &c. 29. Hills v. Miller. Easement of light and prospect by grant. 30. Easement of wind for windmill. 31. Easement of noisome trade, &c. 31 a. In what cases a manufactory a nuisance. 32. Negative easement to prevent certain trades. [* 490] *1. THERE has long been recognized by the English common law, and now by the statute of 2 & 3 Will. IV. c. 71, a right, under certain circumstances, to enjoy, in favor of escapes and discharges itself upon the premises of the adjacent owner, where it was held that an action will lie, the general principle being that one is responsible for bringing upon his premises that which causes damage to others, if of a nature to cause such damage. See also in the same case the remarks of the court upon the case of Tenant v. Goldwin, p. 283. See Smith v. Fletcher, 20 W. R. 987. one tenement, the light and air which naturally reaches it in coming laterally from and across the land of an adjacent proprietor. It is treated of as an easement in favor of the one, and a servitude upon and over the other, though it obviously wants many of the incidents of those easements which are required by the adverse enjoyment, in some form, of a benefit in favor of one estate which injuriously affects another. A question has sometimes been made, whether this right is a positive easement in favor of the estate which enjoys the benefit of the light, and which the adjacent owner may not impair, or a negative servitude imposed upon the adjacent land to which the owner is bound to submit. 2. In the civil law, among the negative services which might be imposed upon lands, one was, that the owner should not darken his neighbor's windows; another was, that he should not hinder. his prospect by building or planting trees; and another, that he should not make any windows to overlook his neighbor, and in that way take away the privacy of his house. And it is said, if one has no service of this kind upon him, he may make as many windows as he pleases, but the other party may erect sheds against them, and so make them useless, unless the windows have been there time out of mind.1 A somewhat recent case in Massachusetts bears indirectly upon the construction which courts are inclined to give to grants of easements of light and air. The owner of land laid out a court thereon extending from a street, and sold house-lots bordering upon the court, which, by the terms of the grant, was to be kept open for light and air. It was held that the owner of the lot bordering upon the court next to the street had no right of way over the court beyond his own lot, nor any cause of action against the owner of an adjacent lot bordering upon the court, for erecting a fence across the court which obstructed the passage of the owner of the corner lot beyond the limits of it along the court.2 3. Cresswell, J., seems to regard it rather as a negative servitude upon the land adjacent to the tenement, than a positive easement in favor of the tenement itself. "There are many cases in Ayl. Pand. 310; Wood, Inst. Civ. Law, 93; Inst. 2, 3, 1; D. 8, 2, 15; Ersk. Inst. B. 2, tit. 9, § 10. 2 Oliver v. Pitman, 98 Mass. 46. which the principle has been recognized, that one land-owner cannot, by altering the condition of his land, deprive the [*491] owner of the adjoining land of the privilege of using his own as he might have done before. Thus he cannot, by building a house near the margin of his land, prevent his neighbor from building on his own land, although it may obstruct windows, unless, indeed, by lapse of time the adjoining land has become subject to a right analogous to what in the Roman law was called a servitude." 1 4. This right of excluding the owner of vacant land from building thereon, because a neighboring proprietor had enjoyed his own estate in such way as he saw fit, without in any manner injuriously affecting or interfering with the rights of the first, is admitted by most who have discussed it to be difficult if not impossible to sustain, upon any notion of prescription or grant known to the law. In the first place, such enjoyment is had upon the land of the one who claims it, and the subject-matter of such enjoyment is not anything which is the subject of grant from another, for light and air belong to no man except as they may be enjoyed upon, and in connection with, his own land or tenement. And in the next place, such enjoyment can in no sense be adverse to any one, since he thereby uses simply what is his own, and in no manner affects or interferes with the enjoyment of the same light and air by other persons, in such manner as they please. And the cases are uniform, that such adjacent owner may deprive his neighbor of the light coming laterally over his land, by the erection of a wall, for instance, upon his land within the period of prescription, although he may do it for the mere purpose of darkening his neighbor's windows. So far, therefore, as it prevails, this right, as it results from long enjoyment, may be deemed to exist rather by a positive rule of law than by the application of any of the ordinary principles of prescription, and is derived from a simple occupancy, without its being in any sense adverse in its enjoyment.2 1 Smith v. Kenrick, 7 C. B. 515, 565. 2 Moore v. Rawson, 3 Barnew. & C. 332, 340; Renshaw v. Bean, 18 Q. B. 112; Cox v. Matthews, 1 Ventr. 239; Chandler v. Thompson, 3 Campb 80; per Bayley, J., Cross v. Lewis, 2 Barnew. & C. 686; Parker v. Foote, 19 Wend. 309, 317; Mahan v. Brown, 13 Wend. 261; Pickard v. Collins, 23 Barb. 444; Ray v. Lynes, 10 Ala. 63; Cherry v. Stein, 11 Md. 122; Tud. Lead. Cas. 123; 2 Washb. Real Prop. 61; Cook v. Mayor, &c., L R. 6 Eq. Cas. 179. *And it is said, that, as a rule of law, it never became [* 492] settled in Westminster Hall until 1786, in Darwin v. Upton, found in 2 Wms. Saund. 175 d, note.1 But in Calthrop's reports, published in 1661 (pp. 3-8), it is shown that by the custom of London one might not erect a new house upon a vacant lot so as to obscure the windows of an ancient house, for the ancient house had, by the enjoyment, acquired an easement of light by prescription. If both were new houses, no such custom obtained, nor did it, if the windows which are obscured be new ones. So if one built upon an old foundation, but no larger than the foundation itself, he would not be liable, if he built higher than the original building, and thereby obscured ancient windows which opened from the adjoining houses which had not been obscured by the original building. But no one could claim an easement of prospect by prescription.2 But the right to build upon an old foundation, so as to obscure ancient windows, is taken away by the statute of 2 & 3 Wm. IV. c. 71.3 5. There is a view, indeed, by which the so-called prescriptive right of light and air is sometimes sustained, which is more compatible with the general rules of law than by treating it as a thing gained by grant or covenant evidenced by adverse enjoyment, and that is as evidence on the part of the owner of the land over which it is claimed, that, for a sufficient consideration, he, or those under whom he claims, had covenanted or agreed not to use his land so as to interrupt the enjoyment of the buildings standing upon the adjacent lot. It is but carrying out what has already been shown to be a familiar rule of law, that, if one grant an estate to which certain apparent and continuous subjects of enjoyment belong, and are used therewith, like that of an aqueduct, lateral support by adjacent soil, and the like, he cannot afterwards derogate from the benefit of his own grant by interfering therewith. Upon the same principle, if one who has a house with windows looking upon his own vacant land sell the same, he may not erect upon his vacant land a structure which shall essentially deprive such house of the light through its windows. And if the length of enjoyment is sufficient to raise a presumption that it was done under some such actual or implied covenant or agreement, the doctrine may be sus1 Parker v. Foote, 19 Wend. 309, 317. 2 See Anon., Com. Rep. 273. Truscott v. Merch. Tailor's Co., 11 Exch. 855. tained without violating the ordinary rules of prescription, as they have generally been understood.1 [* 493] * But how this right to light and air over another's land be considered as acquired by law is spoken of by Patteson, J., as "a question of some nicety."2 may 6. Upon whatever ground the claim rests, it has long been held in England that one may prescribe for the right of light and air to come to his windows unobstructed across the land of another, if enjoyed for twenty years, or the period of ordinary prescription.3 But there can be no prescription for light and air over open ground, except it be in favor of ancient lights. So that where one owning land adjoining another's garden raised his wall so as effectually to detract from the use of the land as a garden, it was held that the owner of the garden was without remedy for the injury thereby sustained." 7. It may be stated, however, in respect to the civil-law easement or servitude of a right of prospect, that it cannot be acquired at common law, by any mere length of enjoyment.5 1 Moore v. Rawson, 3 Barnew. & C. 332, 340; Palmer v. Fletcher, 1 Lev. 122; Aldred's Case, 9 Rep. 58 b; Darwin v. Upton, cited 3 T. R. 159; 2 Wms. Saund. 175 d, note; Harbridge v. Warwick, 3 Exch. 522. But see Rowbotham v. Wilson, 8 Ellis & B. 143, per Watson, B.; United States v. Appleton, 1 Sumn. 492, 501. See Crompton, J., Stokoe v. Singers, 8 Ellis & B. 31, 38. See White v. Bass, 7 H. & Norm. 722. 2 Blanchard v. Bridges, 4 Adolph. & E. 176. 8 Cross v. Lewis, 2 Barnew. & C. 690; Aldred's Case, 9 Rep. 58 b; Renshaw v. Bean, 18 Q. B. 112, 131; Sury v. Pigott, Poph. 166. Contra, Bury v. Pope, Cro. Eliz. 118; Lewis v. Price, 2 Wms. Sauud. 175 a, note; 3 Kent, Comm. 448. Numerous cases have arisen in the English courts upon the acquisition of a prescriptive right to easements, like light and air, under the provisions of the statute of 2 & 3 Will. IV. c. 71, and the construction given to it by the courts, among which is that of Flight v. Thomas, 8 Clark & F. 231, which are purposely omitted in this work, as being matters of local statute law, except so far as they may have served to illustrate some doctrine of the common law. See Ward v. Robins, 15 Mees. & W. 237, 242; Wright v. Williams, 1 Mees. & W. 77; Plasterers' Co. v. Parish Clerks' Co., 6 Eng. L. & Eq. 481. See Cooper v. Hubbuck, 12 C. B. N. s. 456. 4 Potts v. Smith, L. R. 6 Eq. 318; s. c. 38 L. J. N. 8. Ch. 58; Roberts v. Macord, 1 M. & Rob. 230. 5 Aldred's Case, sup. ; Com. Dig. Action on the Case for a Nuisance, C; Parker v. Foote, 19 Wend. 309; Calthorp's Rep. 5; Butt v. Imp. Gas Co., L. R. 2 Ch. Ap. 161; Beadell v. Perry, L. R. 3 Eq. Cas. 465. |