
    Isaac Story versus John Odin.
    In an action against one for stopping the plaintiff’s lights, &c., it is not necessary to allege that his house is an ancient one, or that he is entitled by prescription to the easement in question ; but, without such allegation, the plaintiff may prove an ancient right to the easement, if it be necessary to his case.
    Where one sells a messuage having doors or windows opening into a vacant lot adjoining and belonging to the vendor, without reserving a right to build on such lot, or to stop the doors and windows, neither he nor his grantee of such lot can lawfully stop them.
    The plaintiff declared in case, “ for that whereas, before and at the time of committing the grievance hereinafter mentioned, he was, and from thence hitherto has been, and still is, lawfully possessed of a certain building or store, with the appurtenances, situate in said Boston, on Dock-Square, so called ; in which said building there were, and still of right ought to be, divers, to wit, two windows and two doors, through which the light and air, during all the times aforesaid, ought to have entered, and still of 'right ought to enter, into the said building, for the convenient and wholesome use, occupation, and enjoyment thereof. Yet the said Odin, well knowing the premises, but contriving and wrongfully and unjustly intending to injure the plaintiff, and deprive him of the use, benefit, and enjoyment of the said building and its appurtenances, on, &c., wrongfully and unjustly erected and raised a certain wall and building near to the said windows and doors, and wrongfully, &c., kept and continued the said wall and building so erected and made, for a long time, to wit, from the day and year aforesaid, hitherto. By means of which said premises, the said building with the appurtenances, during all the time aforesaid, was, and still is, greatly darkened, and the light and air were, and still are, hindered and prevented from coming and entering into and through the said windows and doors into the same building, and the same hath thereby been rendered, and is, close and uncomfortable, and the plaintiff entirely deprived of the use of the said doors ; and the plaintiff hath thereby been, and still is, greatly annoyed and incommoded in the use, possession, and enjoyment of his said building and the appurtenances ; and * also [ * 158 ] by means of the premises hath been obliged, for the obtaining light in his said building, to lay out and expend a large sum of money, namely, &c., in and about altering the roof of said building,” &c.
    The cause was tried upon the general issue, at the last November term in this county, before the Chief Justice.
    
    ft was in evidence, that the plaintiff, in the year 1795, less than twenty years before the commencement of this suit, purchased of the town of Boston the land on which he erected the buildings described in his declaration ; and that there was then standing on said land a two-story building, with a door in each story opening into a vacant lot of ground then owned by the town, and encompassed by the building thus sold to the plaintiff, and by other -buildings then owned by the town, but open on the side facing the market; which vacant lot had been, by permission of the selectmen, from time to time occupied and used by the several tenants of the surrounding buildings, as a yard, for the purpose of depositing therein empty casks, boxes, &c., and sometimes used as a passage-way, from whence they received goods into their several stores.
    The yard continued vacant, or occupied as before mentioned, until it was sold by the town, in the year 1812, to the defendant, who soon after erected a building upon it, covering the whole ground, and adjoining the back wall of the said building belonging to the plaintiff; and thus obstructed the air and light, which used to pass into the back doors aforesaid ; and also obstructed the light of two or three windows, which were fixed in the plaintiff’s new building, corresponding to windows which were in the building standing upon the ground purchased by the plaintiff when he bought it of the town. It was also proved and found by the-jury, that the plaintiff’s new building covered the same ground which had been covered by the old one, being erected on the same foundation ; and that the old building had been standing, with the doors and lights aforesaid, more than sixty years before the commencement of this action.
    [*159] * If, upon these facts, the action was maintained, judgment was to be entered upon the verdict found for the plaintiff; otherwise, the verdict was to be set aside, and a new trial to be granted.
    The defendant filed a motion for a new trial, on the following grounds.
    1. That the plaintiff has not declared for an ancient and prescriptive right to the windows and doors in his declaration mentioned. — 2. The plaintiff purchased the land and building, in which said doors and windows are, within twenty years before the commencement of his action. — 3. The defendant purchased the land, upon which he erected his said buildings, from the same proprietor who conveyed to the plaintiff. The defendant insists, that, as the plaintiff proved the origin of his right and interest in his estate to be within twenty years, and has not prescribed for an ancient right, he is not entitled to maintain this action against a proprietor who is grantee of the adjoining estate, on which the said building is erected, and holds the said estate from the same grantor who granted to the defendant with n twenty years as aforesaid.
    
      
      Prescott, for the plaintiff.
    
      W. Sullivan, for the defendant.
   Jackson, J.,

delivered the opinion of the Court.

As to the first objection, we are satisfied, on the authorities cited for the plaintiff,, that it is unnecessary to set forth in the declaration, that the house is an ancient house, or that the plaintiff is entitled by prescription to the easement in question ; and the plaintiff might, if it had been necessary to his case, have proved such ancient right under this declaration. But the plaintiff’s right of action, in this case, does not depend on the antiquity of the building ; and we have not found it necessary to consider what would be the effect of the facts reported in that respect, nor what length of time would be necessary to give him such right as against a stranger.

* The town of Boston, in the year 1795, owned the [* 160] two pieces of land, now owned by the plaintiff and defendant. They then sold to the plaintiff the piece now owned by him. This piece then had upon it a building, like that afterwards erected by the plaintiff upon the same foundations ; and with doors and windows corresponding to those in the new building. This grant being without any exception, or any reservation of a right to build on the adjoining ground, or to stop the lights in the building which they sold ; it is clear that the grantors themselves could not after-wards lawfully stop those lights, and thus defeat or impair their own grant. As they could not do this themselves, so neither could they convey a right to do it to a stranger.

No lapse of time was necessary to confirm this right to the plaintiff. He might have maintained his action for such a nuisance immediately after his purchase, as well as after a lapse of twenty or of forty years. This point was decided in the reign of Charles II., in the case of Palmer vs. Fletcher, which was cited in the argument, and is reported in many books. One of the judges then dissented from that opinion, but we find do adjudication to the contrary in Comyns, nor in Finer, where the cases on this subject are collected ; and in the case of Roswell vs. Pryor the same principle is confirmed by Lord Chief Justice Holt. He says, that, “ if a man have a vacant piece of ground, and build thereon a house with lights, and lets this house to another; and afterwards builds on a contiguous piece of ground, or lets the contiguous ground to another who builds thereon, to the nuisance of the lights of the first house, the lessee of the first house shall have an action on the case against such builder, &c., for the first house was granted to him, with all the easements and delights belonging to it.”

We are therefore satisfied, upon authority as well as upon the •eason of the thing, that the action is well maintained, and there must be

Judgment on the verdict. 
      
       1 Vent. 237, 239. — Com. Dig., action upon the case for a nuisance, E.- 2 Saund. 175.
     
      
       2 Saund. 113 a, to 114 b. — Compton vs. Richards, 1 Price, 27. — 1 Saund. on Plead and Evidence, 79, 80.
     
      
       1 Lev. 122. —1 Sid. 167, 227. - Raym. 87. — 1 Keb. 553.
     
      
       1 Mod. 116.
     
      
      
        Coutts vs. Gorham, 1 M. & M. 396. — Compton vs. Richards, 1 Price, 27. —Riviere vs. Bowen, R. & M. 24. — 2 C. & P. 465. — Thurston vs. Hancock post, 220. — Grant vs. Chase el al., 17 Mass. Rep. 443.
     