
    Morrison et at. v. Marquardt et al. 
    
    1. Dedication ¡ by parol. There may he a dedication of land to public use without deed or other written evidence. But in such cases the intent to dedicate should he clear, and the acts or circumstances relied on to establish such intention unequivocal and convincing.
    2. Easement: right to light and air. It seems, though not expressly decided, that the English doctrine that if a man sells a house with windows and doors looking upon his own vacant ground, he or his grantee, cannot afterward huild upon such vacant ground in such a manner as to seriously obstruct the flow of light and air to such house, is not applicable to our situation and circumstances, and not in force here.
    3.-by implication. The doctrine of implied easements rests upon the supposed intention of the parties as deduced from the circumstances, situation and condition of the two estates, servient and dominant.
    4.-must be clearly given. An easement of the character above referred to, preventing the owner of land from improving it as he pleases, should not he implied where it is not clearly given. The circumstances which were held in the present case to negative the implication of such an easement, enumerated by Dillon, Ch. J.
    5. Nuisance ¡ abatement. A party may witb bis own hand abate that which is to him a nuisance. But such abatement does not consist in the destruction of the property, unless such destruction he absolutely necessary.
    6. -restoration : basements. Where a building is illegally destroyed, under the pretense that it i.s a nuisance, the parties having easements therein do not lose them, and are not remitted to their action for damages, but may enforce the restoration of the building.
    
      Appeal from Johnson District Court.
    
    Tuesday, January 28.
    Dedication : implied easements : light and air by implication: destruction op easements, etc.—The following plat will' materially assist in understanding the facts involved in the controversy between the parties:
    
      
      
    
    
      James Eobinson originally owned in fee tbe lot in Iowa ^city, fronting on Clinton street 150 feet, and on'Washington street, 100 feet. On the south was a public alley running through the block. Shephard & Hess owned on the east of Eobinson. The numbers from 1 to 8, inclusive, indicate the number of stores and business houses built upon said ground. Eobinson himself erected on this ground, stores No. 1, 2, 4, 5 and 8. One Wheeler, under a lease hereinafter referred to, built two stores (No. 3 on the plat). Cook, Sargent & Downey built No. 6, marked “ Bank ” on the plat. Startsman (one of the plaintiffs) erected a new store or building (No. 8), on a site occupied by a frame building at the time he purchased from Eobinson. Startsman (plaintiff) still owns No. 8, upon which is a store the whole size of the lot, viz.: 20 feet wide and 50 feet deep. Morrison and his children (also plaintiffs) own No. 7, a store 17-| feet wide by 50 feet deep; Startsman and Morrison’s stores run south to a passage or right of way 4 feet wide. This store No. 7, was built by Eobinson and sold by him to the wife, since deceased, of the plaintiff Morrison. Store No. 5 was built by Eobinson, and by him sold to Hamilton, and by the latter since sold to, and now owned by, the defendant Marquardt. In this building there was a door (“ D ” on plat) opening into the 4 feet right of way. Defendant Marquardt purchased store No. 4 of Eobinson, also 11 feet on the rear thereof, being 20 feet by 66 feet. This purchase was made August 11, 1863. The store thus purchased was 20 feet wide and 55 feet deep.
    Eobinson’s disposition of the various stores was as follows: In 1856, he sold the ground of No. 6 to Cook, Sargent & Downey, and that firm, in that year, or the next, erected a bank building thereon 30 by 60 feet in size. August 3, 1858, Eobinson leased to Wheeler No. 3, being 40 feet on Clinton street, and 90 feet deep, for 99 years. Prior to this time, Robinson had built stores 1, 2 and 4. Wheeler, in the lease, “ agreed to erect upon said ground leased to him a three story building to correspond to a plan made by said Wheeler, of which plan the building known as the jewelry store of G. W. Marquardt (i. e. No. 4 on the plat) forms a part.” This lease was acknowledged and recorded. Wheeler erected thereon two brick stores, each 20 by 50 feet, the east end being of wood, so as the more readily to admit of being enlarged by being extended east. No. 1 was built by said Robinson in a similar manner, and with the same view. Robinson still owns No. 1, and the barn in the rear thereof.
    June 1, 1863, Robinson sold store 5 (20 by 60 feet in size) to one Hamilton, “ granting also right of way four (4) feet in width, extending from the southeast corner of said premises east, across ground of the said Robinson, to a 10 feet alley running south to an established alley; granting also the right to the use of the privy now standing on ground of the said Robinson almost due east from the S. E. corner of said premises, also gas fixtures and awning frame.” This deed was recorded the same day (Sept. 18, 1866) defendant Uarquardt purchased No. 5 of Hamilton.
    June 3, 1863, two days after Hamilton’s said purchase, the plaintiff Startsman purchased of Robinson 20 by 50 feet (No. 8), on which there was then an old frame building. The deed from Robinson to Startsman, after the description of the property conveyed, contained the following: “ Granting hereby also the right of way, 4 feet in width along the south end, and 2 feet 6 inches in width along the east side of said premises ; granting also a right to the use of the privy, in the rear of said premises ; also hereby granting to said Startsman the right to extend the second story of any building he may erect on said premises over the 2 feet 6 inches alley or right of way on the east side thereof.” Startsman soon after erected the brick store now owned by him, making the same 20 by 50 feet, but not availing himself of the right to extend his second story 2 feet 6 inches east over the 2^ feet right of way. Subsequently, viz., in 1865, Shepard & Hess, who owned land which adjoined Startsman on the east, wished to build; Startsman did not want the 2J feet passage left, but did want S. & H. to build clear up to him and pay him for one-half of the wall they used. To this S. & H. consented. To effect this arrangement, Startsman conveyed (Sept. 2, 1865), to Robinson, all his right to the 2 feet 6 inches strip, and the same day Robinson conveyed this strip by warranty to Shepard & Hess. The latter built so as to close up this passage or right of way. This Avas done by the consent of Startsman, and the latter received compensation for half of his wall used by Sheperd & Hess.
    August 11, 1863 (i. e. after Startsman’s purchase of No. 8, and before Morrison’s purchase), Robinson sold and conveyed for $3,500 to the defendant Marquardt, store No. 4 on the plat; the store being 20 by 55 feet, and also the unoccupied 11 feet east of the store, the ground being 20 by 66 feet in all.
    After the description of the property the deed continues thus : “ With the privilege of right of way four (4) feet in width running from the N. E. corner of the building on said premises east, to an alley 10 feet wide, running south to city alley : granting also the right to use a privy due east of said premises, also the right of stairway secured to Robinson by the Wheeler lease recorded in book 16, p. 377.”
    At the time of this sale of No. 4 to Marquardt, the said Robinson still owned store No. 7, soon afterward sold by him to Morrison. The eleven feet east of the store on No. 4 was vacant, but as before stated was included in Robinson’s deed to Marquardt, of August 11,1863. This eleven feel extended east to a point beyond the window in the rear of store No. 7.
    September 15, 1863, Morrison purchased of Robinson for $3,500, store No. 7, being 17£ by 50 feet. The deed contained the following special provisions: All right to roof under Robinson’s contract with Downey: “ Granting also hereby the right of way four (4) feet in width along the south end of said premises / also the right to use a primy in the rea/r of said premises.”"
    February 20, 1866, Robinson sold store No. 2, and 20 feet in the rear thereof, to Riggs.
    June 12, 1866, Robinson, in consideration of $300, conveyed to the defendant Marquardt, the ground on the east of No. 4, and the 10 feet east of the property leased to Wheeler. The property thus sold is indicated on the plat by the words, “ Groimd sold by Robinson to Marguardtp The deed contains this clause: “saving and excepting the right of way to a strip four (4) feet xoide off the north side of said premises, heretofore granted to the owners of land immediately north of the above named premises, and the privileges granted said parties by the said RobinsonP
    
    After his last purchase, claiming that the privy vault thereon situate was full, and a nuisance, Marguaa'dt removed the privy / and commenced prepa/ratñons to extend store No. 4 eastward, clear across the open ground, and over the site of the privy, up to the walls of the store of Shepard c$s Ness. Whereupon plaintiffs, Morrison and Startsman, as the owners of Nos 7 and 8 bring this suit in equity. They claim first, that Robinson dedicated the ground east of the stores fronting on Clinton street, and south of the plaintiff’s stores as a court, area, or space, to be permanently left and kept open for the use and convenience of asid stores; second, that when Robinson sold them tbe said property, they became entitled to an easement of light and air, and that tbis easemfent will be destroyed by the erection of the proposed addition to bis building by tbe defendant Marquardt; third, that tbey had an easement in the privy, and tbat Marquardt bad no right to remove or destroy the building. The petition makes Robinson and Marquardt defendants. The prayer thereof is as follows : “ Tbat a temporary injunction be granted enjoining defendants from building on tbe open area aforesaid, or any part thereof; that the same, on final hearing, be made perpetual; that plaintiffs be entitled to bave erected and maintained at tbe expense and costs of said Robinson, said privy so removed as aforesaid, and for tbeir costs and general relief.”
    Tbe answer denies any dedication of tbe open area. Admits tbe removal of the privy, and claims that it was a nuisance, and the vault full. Also, admits that Marquardt does propose to extend his store two or three stories in height east, but not so as to interfere with tbe 4 feet right of way south of plaintiff’s premises. Denies that the proposed erection would substantially interfere with the comfortable or reasonable enjoyment of the plaintiff’s stores as respects air and light. Tbe cause was referred to Hon. Rush Clark as a referee, whose report is set out in the margin.
    
    
      A decree was entered accordingly. Both parties appeal. Plaintiffs’ claim that Marquardt should have been restrained from* erecting any building whatever in the rear of their stores. On the other hand, Marquardt claims that the injunction should have been dissolved, and that he should have been allowed to build without cmy restriction as to light.' The other questions made appear in the opinion.
    
      Fairall & Boal, and Edmonds & Ransom, for the
    plaintiffs, in the course of- a lengthy argument, made, among others, the following points :
    1. Robinson, by his acts, the use to which he devoted •it, and his continued assent, dedicated the area to a common use. City of Cmcimatti v. White, 6 Pet. 431; Hunter -v. Trustees, etc., 6 Hill, 407.
    A dedication may be made without writing, by act in pais as well as by deed.
    
      It is not at all necessary that tbe owner should part with the title which he has, for dedication has respect to possession and not the permanent estate. Wash. Real Prop. vol. 2, marginal page 460.
    A dedication of real property is that devotion to use, which estops the owner of the fee; not a technical estoppel which must be by deed, or matter of record, but an estoppel in pans. Hobbs v. Lowell, 19 Pick. 405-409.
    The learned judge in this case in discussing what constitutes a dedication says, “ a dedication may be presumed from circumstances from which the assent of the owner of the soil may be inferred.” See also Beatty v. Hurts, 2 Peters, 566; Town of Pa/wlett v. Clark, 9 Oranch ; Maxwell v. East River Bank, 3 Bqsw. (N. T.) 125, where this kind of dedication is fully considered.
    2. Robinson, formerly owner of the parcels sold Morrison and Startsman, and at the same time of the open area, having sold off to complainants the portions described, with, the buildings thereon, having lights, etc., could not afterward build upon that portion retained by him, in such a way as to obstruct the light and air necessary to the buildings on the part sold complainants ; and what Robinson himself could not do, Marquardt, his grantee, cannot.
    The general rule, we find laid down in Wash, on Easements, p. 31, “ that the grant of a thing carries all things as included, without which the thing granted cannot be enjoyed, by which are to be understood, things incident and directly necessary to the thing granted.”
    The current of authorities will undoubtedly sustain this view, to wit: That the grantor can only avoid the servitude by express reservation, otherwise it passes by implication and attaches to the benefit of the grantee. See the following English authorities: 1 Mod. 55 ; Hob. 131; 2 Lev. 194; Palmers. Fletcher, 1 Yentris, 274; 2 Salkeld, 459; Poswell v. Prior, Holt, 500. See also Tenant v. Goldwin, Id.; Riviere v. Bower, Ryan & Moody, 373 ; Moore v. Rawson, 3 Barnw. & C. 332; Harbridge v. Warwick, 3 Exch. 552 ; Aldred's case, 9 Rep. 58 b ; Palmer v. Fletcher, 1 Lev. 122 ; Swansborough v. Coventry, 9 Bingh. 305; Cow v. Mathews, 1 Yent. 237; Compton v. Richards, 1 Price, 27, 36, 28 ; Robins v. Bcvrnes, Hob. 131; Coutts v. Graham, 1 Mood. & M. 396; Martin v. Goble, 1 Campb. 320.
    Nor is it against the policy of courts in this country to sustain the doctrine of grants of light and air by implication.
    Our courts have carefully adhered to the long line of able precedent English decisions, quoting and relying upon them, affirming and reaffirming them, until they have become an essential part of our law. Bampman v. Milks, 21 N. Y. 505; Story v. Odin, 12 Mass. 157; Gerber v. Grabel, 16 Illinois, 217; United States v. Apple-
      
      ion, 1 Sumn. 492; Maxwell v. East River Bank, 3 Bosw. 124.
    Pierront, J., in the case of Hubbard v. Town (33 Yt. [4 Shaw] 295), after discussing and denying the English doctrine of ancient lights, says, that one who has conveyed to another a building, has no right to make an erection on his own land, which shall shut out the light from the building so conveyed. United States v. Appleton, 1 Sumn. 492; Robeson <& Maxwell v. Pitti/nger, 1 Green Oh. 65 — strongly in point. In the case of Gerber v. Grabel (16 111. 211), the precise question is presented, discussed, and the doctrine we contend for maintained, referring to and affirming the. English cases cited, and Story v. Odin, and denying the correctness of Myers v. Gemrnel, and treating the rule as merely waived in Palmer v. Wetmore; citing Mahan v. Brown, 13 Wend. 263; The American Tract Society, 4 Sandf. Ch. 464; see also 31 Conn. 150, in point.
    3. When Robinson sold store No. 4, running back the depth of 55 feet, including in the conveyance 11 feet of ground east of the store, not yet built on, which 11 feet extend about half way across the rear of Morrison’s store (then the store of Robinson) as between Robinson and Marquardt, Marquardt could not afterward build on the 11 feet and obstruct the light and air passing to Robinson’s windows and rooms. The doctrine of implied reservation keeps almost equal pace with and is as fully recognized as that of implied grant. The rule is, that if a man have a house with lights, and sell the same, but retains the land adjoining, he may not build thereon to the damage of the lights in the house sold ; also, that if he sells the land and retains the house, the purchaser may not build thereon to the damage of the lights of the house. The rule is laid down with emphasis in the case of Partridge v. Gilbert et al., 1 Smith, and 3 Duer, 202; see also John W. Tracy v. Alomo Atherton et al., a case in the Supreme Court of Vermont, for the January Term, reported in the Law Register, September, 1862. This case was determined against the plaintiff on demurrer for the reason that there was no averment of a former unity of ownership or possession of the two parcels of land; but Barrett, J., argues, that the result must have been otherwise had there been a former unity of ownership of the two parcels, citing Clarke v. Gogge, Cro. Jac. 170; 1 Saund. 323; Bullard v. Harrison, 4 M. & S. 387; 15 Com. 423; Collins v. Prentiss, 15 Conn. 39. The argument that the grant of 4 feet excluded all presumptions of any further or implied grant, is certainly without any force. The grant of a way in express terms can never be construed as intended to supersede an easementoOiglat and "air. See Bowen v. Lease, 5 Hill. 224, 225 {'Be.Jidnx. People, 17 N. Y. 520; Poler v. P. P. Co., 16 Id. '*79; -2->Wash. Real Prop. 722, § 35; Tates v. Caldwell, .7,-Mass. 68; Sumner v. Williams, 8 Mass. 201; Punk'Y. Tbv}0idá, 11 S. & R., 109; lioébuak v. Dupuy, 2 -Ala. 535 f^Añdre v Welles, .7 Johns. 259; 10 Gray, -376; 6 G-ray, -2¡¡ro; 2 Sandf. 316.
    
      illiam Penn Clark and William C. Caston, for
    the defendants, submitted an elaborate printed argument, from which the following points and authorities are condensed :
    1. The representations alleged in the bill, that Robinson intended to keep the open area open, for a rear drive and for light and air, are not sustained by the testimony.
    2. But, if- the declarations of Robinson were proved as alleged, they could not help the complainants’ case, for the following reasons: First, the alleged declarations at or before the sale, were merged in the deed, and no mistake or fraud in the deed is averred. 2 Iowa Dig. 227, 228; Howe v. Walker, 4 Gray, 318 ; Pilmer v. State Bank, 16 Iowa, 321; Qelpcke, Winslow da Co. v. Blake, 15 Id. 387; Jack v. Haber, Id. 450; Squire v. Campbell, 13 Eng. Oh. 474, in point. Second, an easement in real estate can only be created by deed or prescription. 2 Hilliard on Peal Prop. 5, § 16; Id. 6, § 19; Morse v. Copeland, 2 Gray, 302; Cook v. Stearns, 11 Mass. 533; 2 Wash, on Peal Prop. 26; Hewlins v. SMppam, 11 Eng. Com. Law, 437. Third, and even if this was a parol license, which if given by deed, would create an easement, it is revokdble, although executed by the licensee. Morse v. Copeland, 2 Gray, 302; Fentiman v. Smith, 4 East. 347; Wallis v. Harrison, 4 M. & W. 538; Wood v. Leadbitter, 13 M. & W. 837.
    3. DecbieaMon. There was no dedication of this open area, to the use of the surrounding buildings? ■ There is no evidence of such dedication. No plat was ever^ made or recorded. And the evidence of both Pobiííísón and Judge Miller show that Pobinson continued,!» < cise acts of ownership over the same. ft pvt.
    To constitute a dedication of land to a,publjbuse,'th'e^2-s must first be an intention to do it, on the Í£á owner. Wash, on Easements, 132, 135; Mmw'iblH''SWa^t River Bank, 3 Bosw. 124. ^ *4
    4. The English doctrine on the subject of lights, t. 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,” is not sustained by the weight of authority in this country, is inapplicable to our condition, and should not be enforced in this State.
    “A rule thus blindly fettering estates, without any written evidence of right, and equally annoying to buyer and seller, should not be adopted here.” Myers v. Gernmel, 10 Barb. 537, decided in 1851, never overruled, and subsequently followed.
    “ There is, I think, no principle upon which the modern English doctrine on the subject of lights can be supported. It is an anomaly in the law. It may do well in England, * * * it cannot be applied to the growing cities and villages of this country, without working the most mischievous consequences. It has never, I think, been deemed a part of our law.” Parker v. Foote, 19 Wend. 309.
    “Where there is no question of ancient lights (and there is none in this case), the owner of a lot adjoining a house, may so improve and build upon his lot, as to shut up the windows of such house, that are situated in the end or side adjacent to his lot. If this were not so, he would be deprived of the full benefit of his own property. Palmer v. Wet/more, 2 Sandf. S. C. 316; Collier v. Pierce, 7 Gray, 18, is also in point.
    It may be well to state here, generally, that this question is uniformly mixed up in the books with the doctrine of gaining a prescriptive right to light and air, by mere length of enjoyment; and that in those states where the latter doctrine is repudiated, the other is also. 2 Wash, on Beal Prop. 60. This, we think, is particularly true of New York, Massachusetts and Pennsylvania. The authorities bearing on both questions, are generally cited together and have some bearing on each. It is now understood that New York, Massachusetts, Pennsylvania, Maine, Connecticut, South Carolinia and Maryland have discarded the English doctrine of light and air, as unsuited to the condition of this country, while the same is sustained in Illinois, New Jersey and Louisiana, and recognized rather than approved in Alabama. As contradicting and repudiating the English doctrine, see the following authorities. Rogers v. Sawi/n, 10 Gray, 376 ; Garrig v. Dee, 14 Id. 583 ; Fifty Associates v. Tudor, 6 Id. 259 ; Mahcm v. Brown, 13 Wend. 216 ; Atkins v. Ohilson, 7 Mete. 398; Fierce v. Fernald, 26 Maine, 436 ; Ingraham v. Hutchinson, 2 Conn. 584; Cherry v. Stein, 11 Md. 1; Napier v. Bulwvnkle, 5 Rich. 311; Hay v. Sterrell, 2 Watts. 231; Hmerstick v. 33 Penn. 368; May-v. Esher, 17 Id. 222.
    5. Admitting, however, for the sake of the argument, that the doctrine contended for by the other side is sound law, we contend that it is subject to two qualifications, namely: First, that it is strictly a question of, and depends upon the grant. The United States v. Appleton, 1 Sumn. 492. And second, that the light and air must be necessary to the reasonable enjoyment of the premises. In other words, this right passes only as an incident to the grant, and nothing passes by implication except it be necessary. Upon this point see the following authorities. Wash, on Easements, 504; Nicholas v. Lace, 24 Pick. 102; Fifty Associates v. Tudor, 6 Gray, 259 ; 2 Wash, on R. Prop. 30, 31.
    And convenience is not sufficient to raise the implication of a grant, or pass the easements as an incident to the thing granted. Nicholas v. luce, 24 Pick. 102; Wash, on Ease. 505.
    Believing that the doctrine contended for by the other side as shown by the authorities,, is limited and controlled by the peculiar facts of each case,, we claim that from the facts of this case it is shown : First, that a grant by implication of light and air, to the extent claimed, is rebutted or denied by the circumstances, of the case: Second, that if the grant exists, it is limited to the buildings and premises as they stood at the time of the purchase of each, and cannot be enlarged or extended to meet the requirements of alterations in said buildings, nor other buildings erected subsequently to tbe grant, requiring more light and air. That this is the law, there can be no question. See Blanchard v. Bridges, 4 Adol. & Ellis, 174 (31 Eng. Com. Law, 94), which is exactly in point. To the same point are the following authorities : Sioansborough v. Coventry, 9 Bing. 306 ; 23 E. O. L. 592; Qarritt v. Sharp, 3 Adol. and E. 323; E. O. L. 163; Martin v. Goble, 1 Camp. 320; United States v. Appleton, 1 Sumn. 492. Third, that the light and air claimed, is not necessa/ry to the reasonable enjoyment of the premises of either of the complainants.
    
      “ In a city tenement, an easement for light and air, derived from use and enjoyment, or implied gran.t, can only extend to a reasonable distance, so as to give to the tenement entitled to it such amount of air and light as is reasonably necessary to the comfortable and useful occupation of the tenement for the purposes of habitation or business ; not the amount which, under some circumstances would be agreeable and pleasant, nor the full amount which the tenement has been accustom,ed to receive, but the a/mount reasonably necessary.” Per Shaw, Ch. J., in Fifty Associates v. Tudor, 6 Gray, 255.
    
      “ To constitute an illegal obstruction of the plaintiff ’s ancient lights by building, it was not sufficient that the plaintiff had less tight them before; there must be such a privation of light as would render the occupation of his house uncomfortable, and prevent him., if in trade, from carrying on his business as beneficially as he had previously done. In order to give a right of action, there must be a substantial deprivation of light.” Per Best, Ch. J., in Bach v. Stacey, 2 Car. & P. 465. To the same point are the following: Parher v. Smith, 5 Carr. & P. 438; 24 E. C. L. 644; Priigle v. Wernham, 7 Carr. & P. 377; 32 E. C. L. 664; Wells v. Ody, 7 Carr. & P. 410; 32 E. C. L. 680 ; Lampman v. Milhs, 21N. Y. 505.
    
      6. As to the removal of the privy by Marquardt. Marquardt having become the owner in fee of store five, by purchase from Hamilton, as well as of store four, by the deed of June 12, 1866, conveying to Marquardt the land on which the privy stood and that covered by the right of way, these easements, as to stores four and five, by unity of title and estate, were merged and ceased to exist. Wash, on Easements, 516, 518; Hcmooekv. Went-worth, 5 Mete. 446 ; Grant v. Ohase, IT Mass. 443.
    The question then recurs what are the rights of Startsman and Morrison in this privy ? This is to be determined by the language and nature of the grant itself. In terms, it is a mere grant to use the privy, so long as it was allowed to remain by the owner, and subject to his will. The grant conferred no right in the soil on which the building stood, nor in the building itself. Clark v. Way, 11 Rich. Law (S. C.) 621, cited in Ryan v. Wilson, 9 Mich. 262. And the obligation to maintain the privy, if any such obligation exists, is personal to Robinson, and not upon his grantee, Marquardt. Fellows v. Brown, 42 New Hamp. 364.
    The grant of the use of the privy was, therefore, not a covenant running with the land, and by the conveyance to Marquardt in fee, of the land on which the privy stood, it (the privy) became his property, relieved of the right of Startsman and Morrison to use the same. To constitute a covenant running with the land, so as to bind it in the hands of the assignee of the covenantor, who is a stranger to the covenant, two things must concur: First, there must be privity of estate between the covenantee and the subsequent assignee of the covenantor; and, second, the covenant must be to be performed upon or about the land of the covenantor. American note to Spencer’s case, 1 Smith’s Lead. Cas. 123 ; Taylor v. Owen, 2 Blacbf. 301; Hurd v. Curtis, 19 Pick. 459; 
      Morse v. Aldrich, 19 Pick. 449; Keppel v. Bailey, 2 Mylne & 3L 518 ; 7 Eng. Ch.; Inhdb. of Plymouth v. Carver, 16 Pick. 183 ; Wheeloclc v. Thayer, Id. 68; Dea/n of Windsor v. Glover, 2 Saund. 302, cited in the opinion of Hosmbr, Ch. J., in Mitchell v. Warner, 5 Conn. 519. And in The Mayor of Congleton v. Patterson, 5 East. 316; 1 Smith’s Lead. Cas. 128.
    
      7. But even if the grant of the use of the privy was binding on Marquardt, as being a covenant running with the land, yet the testimony shows that the privy became a nuisance. Being a nuisance, it was properly removed, and might have been so removed by any other person, as well as the respondent, to whom it was an annoyance. Barnes v. JV. B. Worsted Co., 11 Mete. 570; Inhdb. of Arundel v. McCullough, 10 Mass. 70; Adams v. Beach, 6 Iiill, 271; Oliver v. Loftin, 4 Ala. 240 ; . Weimore v. Tracy, 14 Wend. 250 ; MeeTcer v. Van Renssalear, 15 Id. 397; Rogers v. Stewart, 5 Term. 215; 3 Black. Com. 5 ; Pome v. Badger, 12 Mass. 64; Wash, on Easements, 564; Bollard v. Butler, 30 Maine, 94.
    8. Whether legally or illegally removed, the destruction of the privy extinguishes the easement. Easement may be lost or extinguished in various ways, as by the unity of the two estates in the same person, by title and possession, the purpose of the easement ceasing by non-user, and the like. The general doctrine is, “ that where a right, title or interest is destroyed or taken away by the act of God, operation of law, or act of the party, it is called an extinguishment, and an easement is one of the lights which may be extinguished or destroyed.” Hcmcoch v. Wentworth, 5 Mete. 446; Wash. on Easements, 534; Sherred v. Cisco, 4 Sandf. 480 ; Pa/rt/ridge v. Gilbert, 15 N. T. 601.
    9. There being no power to restore the privy, the only remedy of the complainants, if any they have, is an action for damages. Hastings v. Imermore, 7 Gray, 194 ; Hancock v. Wentworth, 5 Mete. 446. And when the action is for interfering with the plaintiff’s right of easement, and not for an act done on his own land, the form of the action is case. Baer v. Ma/rtin, 8 Blackf. 317; "Wash, on Easements, 570.
    
      
       A number of cases, including the present one, were argued before, but not submitted until after, tbe accession of Hon. J. M. Beck to the Supreme bench. Hence, in their.decision he took no part. These cases will bo found designated by a * affixedtp. the title thereof.
    
    
      
       Report of Referee. — 1. No importance is attached to the alleged representations of James Rohinson, the common grantor, which the complainants aver were made to them previous to and at the time of the conveyances to them, since, in the judgment of the referee, the deeds to the parties are conclusive in this suit as to any intention Robinson may have had, or represented to exist, regarding the disposition of the premises. Wash, on Easements, 44, 45; 13 Eng. Ch. 474.
      2. Touching that portion of the area mentioned in the petition and running east 11 feet from the rear of Marquardt’s present building, and which was parcel of his first purchase from Robinson by deed of Aug. 11, 1863, and previous to purchase of Hannah C. Morrison, I find that no reservation or restriction was made by Robinson, in conveying, as to the right of the purchaser to build thereon, and that as to that portion of the area in the bill mentioned, the complainants are not entitled to relief. Wash, on Easements, p. 33, and cases cited.
      3. That .as to the residue of the said area in rear of the complainant’s premises, and lying north of the north line of Wheeler’s premises, I find that there was not expressly reserved by Robinson in conveying to Morrison and Startsman the right of building thereon unrestrictedly, that there was impliedly granted thereby to said Morrison and Startsman the right to drive over the portion of the said area last referred to, and which was still owned by Robinson, and the light and air reasonably necessary to the substantial use and enjoyment of the premises purchased by complainants respectively. And I conclude upon the whole testimony that the erection upon the area, or portion of ground last referred to, of a building of two or more stories in height, would deprive the complainants to a substantial degree in the use of their premises. But on the other hand I conclude that the erection on the portion of the area mentioned last aforesaid, of a building of one story, not exceeding in height the first story of the building in front of said portion of the area, and now occupied by Marquardt, to be so built as not to encroach on the passage way of four feet, and with covering not extending higher than necessary for safety and protection of such building, would not work such substantial deprivation to the complainants. Roswell v. Prior, Holt. 500; Palmer v. Fletcher, 1 Vent. 274; The United States v. Appleton, 1 Sumn. 492; Story v. Odinf 12 Mass. 157, and other cases cited by complainants.
      
        {Note. I have adopted and applied to this case the rule to be gathered from the cases cited, and have extended it as far as seems to me proper in the case in hand, one general test is, how far the incidents claimed are necessary to the reasonable enjoyment of what is expressly granted.” Wash, on Easements, p. 36.) 
        4. As to the alleged alley way of ten (10) feet along the east side of the premises owned by said Robinson, I find that no dedication or devotion thereof to the use of complainants has ever been made, nor was such alley way expressly granted; that such alley way is not a necessity; and that the implication of such easement is forbidden by the express grant of a way of four (4) feet along the rear of complainants’ premises. (On the other hand I conclude that the express grant of the four feet passage way does not affect the implication of the grant of light and air.) And as to such supposed alley way along the east side, and as to the residue of the premises conveyed to Marquardt, and lying north of Wheeler’s north line, the complainants are not entitled to the relief asked.
      5. Of the question as to the right asserted by complainants in the privy % a license to Use which accompanied their several purchases, it is only necessary to say: first, the license granted does not, I find, amount to a covenant running with the land purchased by Marquardt; and second, such right was extinguished by the destruction of the privy. See authorities cited by respondents.
      6. It is urged that the complainants forfeited any right to the implied grant of necessary light and air by altering the condition of their buildings. I find as to Morrison’s, that no external changes have been made and have considered the question of light and air in reference to the property as purchased from Robinson. I find that Startsman purchased with the view of immediately building as he did, and that he built in reference to the remaining premises as then held by Robinson. But if complainant Startsman were altogether out of the case the decree recommended for Morrison should, in the judgment of the referee, be the same as now proposed.
    
   Dillon, Ch. J.

I. The principles involved in this cause have never been judicially settled in this State, They are principles of no ordinary importance. The a(jjLidieations elsewhere upon the same or similar questions are not uniform. This court is charged with the duty of deciding, which is the better, or what is the true rule in cases of this character.

Before proceeding further it should be observed that the testimony is voluminous, and upon some points conflicting. So far as the case involves questions of fact merely, it is not proposed to enter into an extended review of the evidence.

So far as it involves questions of law, and principles applicable to future cases, a more extended examination is not only proper, but is required, both by the importance of the cause itself, and the conspicuous ability with which it has been argued by the respective counsel.

It should be further remarked that the defendant admits the existence of the four feet right of way immediately south of the plaintiffs’ premises, and claims no right to build thereon.

There is evidence tending to show a dedication or contemplated dedication by Robinson of an alley ten (10) feet in width, on the east side of the premises, extending from the four feet right of way south to the public alley. But the existence or otherwise of the ten feet alley is not put in issue by the pleadings, nor is relief prayed in respect thereof. Under these circumstances we leave open all questions in relation thereto.

Plaintiff insists that the property on which the defendant now proposes to build was dedicated by Eobinson as an open ar.ea, for access to the various stores, for the convenience of such stores as a place whereon to deposit barrels, boxes, etc., and to supply the rear of the stores with light and air. It is claimed also that the defendant knew of this dedication prior to his purchase, made June 12, 1866, and referred to in the statement of facts. No map or plat showing, and no writing expressing, such dedication, was ever made. But plaintiffs contend that there may be a dedication by parol, and that the present is a case of that character.

That there may be a dedication to public tose without a deed or other written evidence, is undoubtedly true. But in such cases the intent to dedicate should be clear, and the acts or circumstances relied on to establish such intention unequivocal and convincing. The present case does not meet this requirement. The plaintiffs testify that as an inducement to the purchase of their respective parcels, Eobinson stated to them that the area should remain open to the use of all the stores around it, the same as before. But this is positively denied, both by Eobinson and Judge Miller, his son-in-law and agent.

It is argued that plaintiffs are corroborated by the almost uniform depth of the various stores, and the fact that the ground had been left open and remained open, without objection, until about the time this suit was brought. But this is more than overcome by the circumstances that Eobinson always claimed to own the open ground in question, paid taxes thereon, exercised control thereover; and by the silence of the conveyances to the plaintiffs respecting any such right as that now claimed.

It appears that the conveyances were made with deliberation and examined with care before being received and accepted. They are minute as to other rights and privileges, — rights of way, use of privy, etc., — but silent as to any rights in, to, or over the vacant ground, the alleged dedication of which is now claimed to have been a controlling inducement to the purchase.

If it was understood that plaintiffs were to have such valuable rights in the vacant ground, or if it was understood that it was dedicated to their use or that of the public, it is scarcely credible that they would have been satisfied with deeds making specific mention of “ mint and anise and cummin,” yet wholly omitting the weightier matters ” of the contract.

Again, Robinson had not the power to leave it all open, as it is claimed he represented he would. For Wheeler had his lease for 99 years, for 90 feet in depth, and up to within 20 feet of plaintiffs’ stores. Wheeler might build on or inclose this at his pleasure» He was not restricted as to the depth of the building to be erected by him. When Morrison purchased, Marquardt owned the land south of the window in the cellar and lower story of the Morrison building; and this was known to Morrison, and it is not likely that he would buy, relying upon Robinson’s promise that all the land should be kept open.

The maxim, expressio unius, etc., or, at least, the reason upon which it rests, would seem justly to apply here. For why mention a right of way four feet wide, if all was to remain open for a rear drive, access, place of deposit, etc.?

Again, the weight of testimony decidedly is that the plaintiffs, or at least one of them, wished to purchase of Robinson, to build thereon, the ground which they now claim was dedicated by him as an open area.

Upon the whole, the court is well satisfied that the plaintiffs’ claim of dedication is not established. The case is essentially unlike Maxwell v. East River Bank (3 Bosw. 125; 26 N. Y. 105), and other cases cited on this head by the plaintiffs’ counsel.

II. The next point made by the plaintiffs is, that it is an established principle of law, that if one man builds a house with windows or doors looking over or opening upon his adjoining vacant land, and sells the house, neither he nor his grantee can afterward build upon the vacant ground, so as seriously to obstruct the flow of light and air to the windows and doors of that house. Plaintiffs do not contend for the English doctrine of a prescriptive right to light and air.

But the exact position they take, as expressed in the written argument, is, “ That Bobinson, the former owner of the parcels sold to Morrison and Startsman (the plaintiffs), and at the same time of the open ground (subsequently sold defendant} and upon which he proposes to build), having sold to plaintiffs their respective parcels with buildings having windows, cannCt afterward build upon that portion retained by him in such a way as to obstruct the light and air necessary to the comfortable enj’oyment of the plaintiffs’ said buildings, and what Bobinson himself could not do, Marquardt, his grantee, cannot.” Defendant’s counsel deny that the above is an established principle of law.

That this principle is recognized by the English courts, admits of no doubt. Mr. Washburn states it thus : “If one who has a house with windows looking upon his own vacant ground, sell the same, he may not erect upon his own vacant land a structure which shall essentially deprive such house of the light through its windows.” Easements, 492, pi. 5.

Speaking of this subject, Chief Justice Tindal (in Swansborough v. Coventry, 9 Bing. 305, C. B. 1833) says:

“ It is well established by tbe decided cases that where the same person possesses a house, having the actual use and enjoyment of certain lights, and also possesses the adjoining land, and sells the house to another person, although the lights he new, he cannot, nor can any one who claims under him, build upon the adjoining land so as to obstruct or interrupt the enjoyment of those lights. The principle is laid down by Twisden and Wtndham, JJ-., in the case of Palmer v. Fletcher, 1 Lev. 122, ‘ That no man shall derogate from his own grant.’ The same law was adhered to in the case of Cox v. Mathews, 1 Ventr. 237; by Holt, Ch. J., in Roswell v. Pryor, 6 Mod. 116; 12 Id. 215, 635, and lastly, in the ease of Crompton v. Richards, 1 Price, 27” (A. D. 1814).
“ 1. An agent has no right to borrow money on the responsibility of his principal, unless he is authorized by his principal to do so, or unless authority to do so can be justly inferred from the acts of principal in connection with the business of the agency.

The doctrine in question rests upon Palmer v. Fletcher, Cox v. Mathews, and Roswell v. Pryor, above cited. The other cases in England follow these as establishing the principle laid down by Chief Justice Tindal, in the extract just given. These cases are very briefly reported, and for convenience, and that what was decided may be exactly seen, they are given in a note.

The decisions in this country on the exact point as to whether the right to light and air will pass by implied grant are neither very numerous nor uniform. As sustaining the doctrine that a vendor of a house cannot afterward, on his adjoining vacant land, make an erection which shall deprive such house of light, see Story v. Odin, 12 Mass. 157; U. S. v. Appleton, 1 Sumn. 492 (arguendo per Story, J.); Lampkin v. Mills, 21 N. Y. 505 (arguendo per Selden, J.); Gerber v. Grubel, 16 Ill. 217 (arguendo). Opposed to this doctrine, see Myers v Gemmel, 10 Barb. 537; Palmer v. Wetmore, 2 Sandf. S. C. 316; Parker v. Foote, 19 Wend. 309 (arguendo per Bronson, J.); Haverstick v. Sipe, 38 Pa. St. 368 (arguendo per Lowrie, Ch. J.)

The grant of easements by implication has been much discussed in the courts of England of late years, as will be seen by tbe following cases: Pyer v. Carter, 1 Hurlst. and Norm. (1 Exch.) 916, 1857 (as to drain) ; explained, Polden v. Bastard, 116 Eng. C. L. 257 (use of pump); Glare v. Harding, 3 H. and N. 937; White v. Bass, 7 Hurlst. and Norm. 722, 1862 (as to light); Curriers’ Co. v. Corbett, 2 Dr. and Sm. 355; Suffield v. Brown, 10 Jur. N. S. 111; Crossley v. Lightower, 2 Law Rep. Eq. 279, 1866; Clark v. Clarke, 1 Id. 16; Id. 442; Martin v. Headon, 2 Id. 425; Dent v. Auction Manf. Co., Id. 238; Podd v. Burchill, 1 Hurlst. and Coltm. 113, 119, commenting on Pyer v. Carter, supra. And see, also, Judge Redfield’s observations in Am. Law Reg. Jan, 1865, pp. 134, 135.

After this glance at tbe state of the adjudications, the question recurs, Is it a principle in our law, that, if a man sells a house with windows and doors opening on to his vacant ground, be, or bis grantee, cannot afterward build upon such vacant ground in such a manner as seriously to obstruct tbe flow of light and air to such bouse, without express reservation of tbe right so to do ?

Did the question depend alone upon the authority of the English cases, it would have to be answered in the affirmative. It is justly observed by Mr. Washburn that the decisions as to implied easements of light and air are not uniform, nor in all cases satisfactory. Easements, 497, pi. 17. If it be held that there may be implied easements as to light and air — as this implication arises wholly from the condition and circumstances of the estates to which tbe easement relates, and as this condition and these circumstances are almost infinitely varied — ■ it is easy to perceive tbe difficulties which environ tbe practical application of tbe doctrine.

Perhaps the law as to implied easements generally cannot be said to be fully settled, and this is particularly true in this country as to easements of light and air. Tbe right to light and air seems in many respects to be different in its nature from easements relating to artificial erections on the servient estate, such as drains, gutters, pipes, etc., or rights of way and the like. See Parker v. Foote, 19 Wend. 309, per Bronson, J.; Dodd v. Burchell, 1 Hurlst. and Coltm. 113, 119, per Pollock, C. B.; Haverstick v. Sipe, 33 Pa. St. 368, 371, per Lowrie, Ch. J.

As to light and air, I am free to say that I do not believe the rule, as applied to our situation and circumstances, a sound one, which holds that under any circumstances this right can by implication be burdened upon an adjoining estate, as to prevent the owner thereof from building upon or improving it as he pleases. I reverse the rule and hold that he who claims that ten, twenty or thirty feet adjoining him (which in Ssifjes may be very valuable) shall remain vacant and Áüimproved, should found such claim upon an express grank-or covenant.

.. This rule is simple. Grantor and grantee would both know .that the deed is the measure of their rights. Is it -¿aby,- hardship upon the purchaser to secure by expjress grant, rights so valuable to him and so detrimental to his grantor, — rights which, unless limited and defined by written stipulations, are of uncertain extent and uncertain duration ? See remarks of Patterson, J., in Blanchard v. Bridges, 4 Ad. & Ellis, 176. Such a rule also harmonizes with the purpose of our registration laws. A denial of an easement by mere implication, as respects light and air, may, in my judgment, well be, without denying that other easements of a different character maj^, and, in some cases should, be held to exist by implication.

But in the case at bar the court do not regard it as necessary to deny the general doctrine contended for by the plaintiff’s counsel.

The doctrine of implied easements rests upon the supposed intention of the parties, as deduced from the situaEon and condition of the two estates to which the easement relates. An easement may be briefly defined to be a charge or'burden upon one estate (the servient) for the benefit of another (the dominant).

In this case it would be a burden upon the estate retained by Eobinson, and afterward sold to the defendant, for the advantage of the plaintiff’s estate. This burden or servitude is that this should remain vacant, if to improve it would materially obstruct the passage of light and air to the plaintiff’s store.

Now the circumstances surrounding this transaction make it quite clear that it was never intended that this easement should exist. In discussing a similar questi0n, Mr. Justice Story well remarks That in the construction of grants the court ought .ter: take into consideration the circumstances attendant upon, the transaction, the particular situation of the parties, the state of the country, and the state of the granted, for the purpose of ascertaining the intention’^!.*4^ the parties.” United States v. Appleton, 1 Sumner, 492, 520; see also 2 Wash. Real Prop. 26; Broome’s Leg. Max. 261; Wash, on Easements, 36, pi. 12; Karmuller v. Krotz, 18 Iowa, 352; Haverstick v. Sipe, 33 Pa. St. 368, 371.

The first circumstance we refer to as evincing this intention is the language and character of the conveyances to the plaintiffs. These conveyances contain express language as to several easements. The right of way is an easement. And in the deeds to both plaintiffs that is expressly secured. The right to the use of the privy is an easement. And in both deeds it is stipulated for in terms. The right of Startsman to right of way on the east (two and a half feet in width) was an easement, as was also his right to extend the second story of his building over it. Noth of these were provided for in express words in his deed.

And the same is true as respects the right of Morrison to the roof under the Downey contract with Nobinson. This is also set down in his deed. Now, these are all easements; and are carefully secured by the deeds. If the parties had contemplated any other easement, such as the important one of light and air, would it not also most likely have been secured by the deed ?

This will be more manifest by other considerations. We allude next to the character and situation of the buildings purchased by the plaintiffs of Robinson. They both fronted on Washington street, which was one hundred feet wide. Morrison’s store (No. 7 on the plat) was built by Nobinson; that is, the first and second stories were built by him, and the third story by Cook, S. & Downey, in conjunction with him. It is only fifty feet deep, and seventeen feet wide inside. The stories are about fourteen feet high. The front in the first story is an open one composed of glass and iron, the windows being show-windows ten feet high, with two sets of lights each. In the rear of the first story was one door and one window, beyond which extended the eleven feet embraced in defendant’s original purchase, which was prior to Morrison’s purchase. The rear cellar window was very small, about eighteen inches or two feet square, with but two or three inches above the ground. There was a front cellar window, and the outside entrance to the cellar was in front! The second story had two large windows in front and one in the rear. When Morrison bought, the only access to the second story was by a stairway in the rear of the first story. The first and second stories had one room each, and were “finished off for one storeroom, counter and shelves below, and shelves above.” Such was the condition when Morrison purchased. Since then, Morrison has entirely changed the interior arrangement. The stairway to the second story has been removed; an entrance has been obtained to the second story from the west; the second story has been partitioned off into two rooms, and is used for offices, the rear window being relied on for light to the back office.

When Startsman purchased No. 8, there was upon it a one story frame house with an open front, and with an addition extending back to near the south line. In the rear there was but one small window of but six or eight panes of glass. This old building was removed, and the present structure erected by Startsman, with an open front like Morrison’s in the first story, and three windows in the front of the second story. In the rear of the first story there is a sash door, and a large window. It is proper to observe that Nobinson knew, when he sold, that Startsman intended to replace the frame building with a new structure. These circumstances have been mentioned for the purpose of showing that these buildings, for the purposes for which they were erected, and in the condition in which they were sold, were not essentially dependent upon the rea/r windows for light. See Wash, on Easements, 504, pi. 26 ; 502, pi. 20; Blanchard v. Bridges, 4 Adol. and Ell. 174; Fifty Associates v. Tudor, 6 Gray, 255, approving Back v. Stacey, 2 Car. and P. 465; Parker v. Smith, 5 Id. 438; 7 Id. 377, 410, and recent English equity cases before cited, as to what amount of light a party is entitled to under an implied grant or prescriptive right.

If not thus dependent upon the rear openings for such an amount of light and air as is reasonably necessary to the comfortable and useful occupation ” of the building, the necessity for an implied grant does not exist, and the presumption that there was such a grant is very much weakened, if not entirely overthrown.

Surely, such an easement, uncertain in its extent and duration, without any written or record evidence of its existence, fettering estates and laying an embargo upon the hand of improvement which carries the trowel and the plane, and, as applied to a subsequent purchaser, against the spirit of our recording acts, and not demanded by any consideration of public policy — surely, such an easement should not be held to exist by mere implication, when such implication originates in no reasonable necessity. Mr. Washburn, assuming that there may be an implied grant of such easements, observes that “ the test seems to be whether what is claimed is reasonably necessary to the enjoyment of the part granted, and where that is not the case, it requires descriptive words of grant in the deed, to create an easement in favor of one part of a heritage over another.” Easements, 61 pi. 42; 36 pi. 12; 504 pi. 26.

Again he says the implied easements (according to the tendency of the cases) will be held not to exist, except in instances where, if the grantor were to build on his vacant land, the owner of the house would be “ virtually deprived” of the enjoyment thereof. Id. p. 502 pl. 20.

But there are other strong circumstances in the situation of the property against the existence of the supposed easement. Defendant, who now proposes to build, purchased his store (No. 4), before Morrison did, and at the same time purchased eleven feet in the rear. This eleven feet extended east beyond the rear window of Morrison. Robinson retained no rights in this eleven feet. Could not defendant at once have built upon this eleven feet, although it should obstruct the light to (store No. 7), still retained by Robinson ?

Plaintiffs’ counsel have seen the importance of this point, and argue that the defendant could not build on the eleven feet so as to darken the windows in No. 7, even though Eobinson were yet the owner thereof. In their written argument they say: The doctrine of implied reservation keeps almost equal pace with, and is as fully recognized as, that of implied grant. The rule is, that if a man have a house with lights, and sell the same, but retain the land adjoining, he may not build thereon to the damage of the lights in the house sold; so if he sells the land and retains the house, the purchaser may not bmld hereon to the damage of lights of the house."

Such, it seems to us, cannot be the law. Such a doctrine, as applicable to cities, would be intolerable. The vendor sells the land, makes no reservation of any rights therein, parts with his dominion over it, receives his pay for it, and when his vendee proposes to build, he stays his hand with an implied reservation, and the vendee finds that he has made a barren, unprofitable purchase; that he owns and pays taxes upon a lot, to afford the vendor an unobstructed supply of air and sunlight. Lord Holt denied such to be the law in Tenant v. Goldwin, 2 Ld. Raym. 1093, and his opinion was recently (A. D. 1862) approved by the Court of Exchequer, in White v. Bass, 7 H. and N. 722 (denying the doctrine of implied reservation of an easement for light). See also Curriers’ Co. v. Corbett, 2 Dr. and Sm. 355; Suffield v. Brown, 10 Jur. N. S. 111; Crossley v. Lightower, 2 Law Eq. 279, 1866; Wash. Easements, 35, pl. 11; Id. 494, pl. 10; Johnson v. Jordan, 2 Metc. (Mass.) 234; Haverstick v. Sipe, 33 Pa. St. 368, 1859.

Therefore, the defendant had the right to build and darken the rear window of No. 7, and Eobinson could •not resist it. His right, then, to build was not affected by the subsequent sale of that store by Eobinson to Morrison. This being so. there was no implied grant in the sale to Morrison from Bobinson, that the windows should remain unobstructed by buildings in the rear. The store of Startsman was not then erected. Although Bobinson knew he intended to build, there is no evidence that he knew such building, when erected, would essentially or reasonably need light and air from the rear; and, hence it seems difficult to say that there was an implied grant of such an easement. This consideration alone, it seems to us, is conclusive against the claim of-Startsman. Another and quite important eireumstance against the implied easement of light and air over the entire vacant ground owned by Bobinson at the time of his sales to the plaintiffs, is the express grant of a four feet right of way. This has before been alluded to in respect to other questions in the case.

In all the cases we have examined, in which an implied grant of light and air has been recognized, the house sold, and the land to which the easement has been attached, were adjoining. See Palmer v. Fletcher, Cox v. Mathews, Roswell v. Pryor, and other cases before referred to and stated.

We have found no case, although we have directed particular attention to the point, in which an implied grant of light and air has been holden to exist when the vendor, at the time of the sale of the first parcel, laid out a space or passage between it and the portion of the heritage or estate retained by him. The sei’vient tenement is thus disconnected from the dominant. It is argued by plaintiffs’ counsel that this is simply a way, and has no reference to light and air. So is a street or an alley a way ; but it is also an open space which admits the flow of light and air. The object of this way in the present case was to secure a passage to the privy, also an outlet through the right of way on the east, and possibly a right of way to the contemplated ten feet alley; and also to secure the plaintiffs’ estate against the erection of buildings nearer than the four feet. If the alvunde testimony is competent to show the purposes for which the private way was laid out by Robinson, it shows that these were the purposes.

Without positively deciding that there may not, under any circumstances, be an implied easement of light and air, we hold that the circumstances before enumerated negative any such implication or easement in the case under consideration.

III. The next and only remaining question relates to the plaintiffs’ rights in respect to the privy. This was situated on land owned by Robinson at the ^me he sold to the plaintiffs, and it adjoined the private way in the rear of their stores. The plaintiffs’ deeds, in express terms, granted to them “ the right to the use of the privy.” The right was embraced in the consideration paid for the property. It was not revocable at the will of Robinson or his grantee. It would exist at least as long as the privy should stand and have a right to stand. Defendant purchased the land upon which it was situated, and removed it at night, without the consent of the plaintiffs. He justifies this act upon two grounds: First, he claims that the vault was full, and hence the easement was at an end. Second, if this is not so, he claims the structure had become a nuisance, and therefore he had a right to abate it, and he abated it by removing it.

The first ground is not supported by the evidence. The vault was not entirely filled, and if it were, we think the plaintiffs might, if they saw proper, remove the contents and thus continue the right to the use of the structure. The point is made that it was Robinson’s duty to keep it in order, and that the defendant, by his purchase, takes Robinson’s place. But tbe deed is silent upon this point, and it is not essential to determine upon whom the duty of keeping it in order would rest. See Wash. Easements, ch. 6, § 1, p. 564. Nor do we think the defendant was justified in removing it with strong .hand and against the plaintiffs’ wishes, on the ground that it was a nuisance. A party may, with his hand, abate that which is to him a nuisance, but such abatement does not consist in the destruction of the property unless such destruction be absolutely necessary. It is the offensive use of it that he is justified in abating. Barclay v. Commonwealth, 25 Pa. St. 503; 2 Hilliard on Torts, 95. Plaintiffs asked to try disinfectants. Defendant refused, claimed the right to remove it, and did remove it the same night.

The right to the use of this outhouse was property; and the plaintiffs’ right could not be thus summarily determined by the defendant. Defendant claims that the plaintiffs’ right to use the privy ended when Robinson conveyed to him; that the grant of the use is not a covenant running with the land. The plaintiffs’ rights were in the nature of a burden upon the estate on which the privy stood. The conveyance to the defendant of the estate did not disburden it of this servitude; particularly is this so, as the deed to the defendant is expressly made subject to the plaintiffs’ rights.

Again, the defendant claims that whether it was removed legally or illegally, the destruction of the privy extinguished the easement.” If the plaintiffs had destroyed it, this might well be held to extinguish the easement; but not when such destruction is by the party owning the estate which owes the servitude. The law holds out no such bonus for the commission of torts ; nor does it allow a party to gain and base a right upon an illegal act.

Again, it is contended that being destroyed, the only remedy of the plaintiffs is an action for damages, as the court has no power to restore the privy. But it has the power to order the defendant to restore it, or to allow this to be done by the plaintiffs at his expense.

As respects the privy, we think the plaintiffs have a right under the circumstances above stated, to be put m statu quo. The cause will be remanded with directions to the court below to dismiss the plaintiffs’ bill, except as to the rights in relation to the privy; to enter a decree that defendant shall restore this, or in default thereof that plaintiffs may do so, and the expense, or so much thereof as may be equitable, to be charged to the defendant. The decree will also enjoin the defendant from erecting his proposed building so as to interfere with the site of the privy. Plaintiffs may, if they elect, claim damages and waive the right to a restoration of the privy. All rights in relation to the supposed ten feet alley on the east of the premises to remain open, not being embraced in this adjudication.

Reversed. 
      
      
        Palmer v. Fletcher (1 Lev. 122; S. C., 1 Siderf. 167, K. B. 15 Charles II). This was an action on the case for stopping lights. Absente le Ohiefe Justice. A erected a house upon part of his land, and demised the house to B, and the residue of the land to C, and C, with “loggs and auters chases sur le tekke ’adjoynant,” so obstructed the windows of the house as to render them dark and useless. It was held, that neither A, who built the house, nor C, claiming under him, could stop up the existing windows in the house. The reason given is that the grantor of the house could not derogate from his own grant.
      Kelynge and Twisden, JJ., differed as to the effect, had the vacant land been sold first and the house afterward; the first contending that in that case the purchaser of the vacant ground might have stopped the lights; the latter denying that this would make any difference. [Kelynge was right, as shown by subsequent cases: Tenant v. Goodwin, 2 Lord Raym. 1093; White v. Bass, 7 Hurlst. and Norm. 722.]
      
        Cox v. Mathews, 1 Vent. 239, was decided in 25 Charles II. It was an action for stopping lights. Lord Hale delivered the judgment of the court as follows;
      “ If a man builds a house upon his own ground, he that hath the contiguous ground may build upon it, although he doth thereby stop the lights of the other house; for cujus est solum $jus est usque ad cesium, unless there be a custom to the contrary, as in London.” But, “if a man should,build a house upon his own ground, and then grant the house to A, and grants certain lands adjoining to B, B could not build to the stopping up of A’s lights in that case.” This is all of the judgment except the remark of his Lordship that the present was- a plain case, for “ the defendant fixed boards to the plaintiff’s house.”
      Note: That the case before the court was one where the obstruction to the light was upon land immediately adjoining, and the defendant had undertaken to nail up plaintiff’s windows.
      
        Roswell v. Pryor, in different phases, was three times before the court; (5 Mod. 116; S. C., 12 Id. 215, 635. It was decided by the K. B, in 2 Anne.
      The action was for stopping lights. The question before the Court (6 Mod. 116) was one of pleading, viz.: Whether the declaration was good without saying that the plaintiff’s house was an ancient messuage. The declaration did not show, though such seems to have been the case, that plaintiff and defendant were lessees under a common lessor.
      Lord Holt’s opinion is in the following words:
      “If a man have a vacant piece of ground, and builds thereupon, and that house has very good lights, and he lets this house to another, and afterward builds upon a contiguous piece of ground, or lets the contiguous piece of ground to another who builds thereupon to the nuisance of the lights in the first house, the lessee of the first house shall have an action upon the case against such builder; for the first house was granted to him with all the easements and delights then belonging to it.”
      Note : That the facts of the case are not reported so that its exact nature is known; also, that the case put relates alone to landlords’ right to erect upon condguous ground buildings which shall operate to the nuisance of the lights in the lessee’s house.
     