
    
      Thomas Napier vs. Henry Bulwinkle.
    
    Plaintiff’s windows in his house at the extremity of his own land, looked over defendant’s house, and the enjoyment of light and air through them continued for fifty years: defendant then obstructed them by a new house built on the foundation of his old one, and carried to greater height: action for the obstruction: it was held, that the enjoyment of every easement must be adverse, that is as of right, to raise by twenty years continuance the presumption of a grant, which implies the assent of the servient owner: that in the case of any easement claimed, which, if not rightful, constitutes a legal injury for which an action will lie, neglect to sue for the period of twenty years, during which the enjoyment continued, furnishes evidence of assent; and so proof of the enjoyment, when nothing else appears, raises the presumption: but that in the case of a window, which gives no cause of action to the owner of the space over which it looks, he is not bound to obstruct within twenty years to prevent the acquisition of a right; and without some other circumstance, from which his assent to the easement as a right may be inferred, his grant cannot be presumed from the mere unobstructed enjoyment.
    
      Before Wardlaw, J. at Charleston., May Term, 1851.
    The report of his Honor, the presiding Judge, is as follows :
    “ Plaintiff and defendant own adjoining lots on the west side of East Bay, the defendant’s being at the corner of Tradd-street, and plaintiff’s the next on the north. Whether both lots were formerly owned by one person ; who was the owner of either more than fifty years ago ; who built the houses on them.; and what agreement, if any, ever subsisted as to the servitude of one to the other ; are matters which did not appear in evidence.
    “ Fifty years ago plaintiff’s lot belonged to Davis; about 1820 it was purchased by Edmondston; in 1822 it was conveyed by Edmondston to Hilman, and in 1842 was devised by Hilman to the plaintiff. Hilman kept a respectable boarding house there ; but although the house has continually been occupied by some tenant living in it, houses in that neighborhood have latterly been used for stores, and not for residences.
    
      “ The corner house on defendant’s lot was many years ago occupied by Dobson and others as a store, and in it the defendant has long kept a grocery store.
    “ The plaintiff’s house has stood for more than fifty years.— The defendant’s house was old and decayed before 1847, and then it was pulled down and rebuilt.
    “ The plaintiff’s was a three story brick house, having windows N. E. & W. in all of the stories ; on the S. there were two windows in the second story, and three in the third, each of which gave light and air lo a separate chamber. The defendant’s was a brick building of one story and a half, and its roof was overlooked by the southern windows in the second and third stories of plaintiff’s house.
    
      “ The beams of défendant’s roof were let into the plaintiff’s wall, and about three feet from that wall there was a wooden partition in defendant’s house, which cut off from the main building a narrow covered gangway, to which there was a door from East Bay, which the defendant used as an entrance into his yard.
    
      “ In 1847 the defendant pulled down his old house, and erected a large brick building, touching the plaintiff’s wall, and so high as to shut up the plaintiff’s south windows, those in the second story entirely, and those in the third story up to the top of the lower sash. This is the obstruction for which the, action was brought.
    “ Some witnesses thought that by the obstruction, plaintiff’s house had been diminished in value $1,000; others thought that as a store, for which it might be most profitably used, its value had been increased by the additional security from fire which defendant’s improvements gave to it. The annual rent paid by plaintiff’s tenants since the obstruction, has been as great as it was before ; but a good tenant went out because of' the obstruction, and the next comer did harm to the house.
    “ I directed the jury that twenty years continuous and adverse possession of an easement has an artificial force in raising a presumption of right, which juries are expected to apply, and ought to apply; that the term adverse is used, not as the opposite of peaceable, but as the opposite of permissive, and is intended to convey the idea of a right claimed, distinguished from a favor enjoyed; that the possession of an easement, which impairs the owner’s enjoyment of the servient estate, should, if nothing to the contrary be shown, be taken to be adverse, for every act of such possession, if not rightful, gives cause of action to that owner; but the possession of a window, which overlooks a neighbor’s land, gives no cause of action to him, and cannot be considered adverse, unless by some assertion of right on one side, or acknowledgment on the other, it appeals to be not the mere lawful enjoyment of one’s own, but an interference with another’s property in derogation of his dominion over it; that such assertion or acknowledgment might be distinct and express or indistinct and circumstantial, — it must be such as to be perceived by the jury; that the defendant, in answer to an injury done to a right of the plaintiff’s, could not set off some compensating advantage which he had brought to him, but that the actual damage done to the plaintiff was the loss and inconvenience which the obstruction had already occasioned, and that that damage with proper smart money should be the measure of the verdict, without regard to speculations concerning what would be the effect on plaintiff’s property which a continuance of the obstruction would produce ; for the plaintiff’s right being established by one verdict, could be enforced by others until the obstruction was removed.
    “ I said that I thought, if the circumstances of the cases which had been decided concerning ancient lights could be exactly known, it would be found that in no case had the mere possession of a window on one’s own land been held to affect a neighbor’s property, without proof of some fact or circumstance tending to establish some right to have the window unobstructed ; such circumstance, for instance, as the accommodation of the neighbor’s buildings to the use of the window. I held, that against a window which overlooked his unoccupied land, a proprietor was not bound to guard his right of property, by a wall or other erection useless to himself, and only hurtful to his neighbor.
    “ I called the attention of the jury to the manner in which the two buildings were connected, and submitted it to them to decide whether in this circumstance, or any other part of the evidence, there was enough to satisfy them that the plaintiff’s possession of the windows had been adverse.
    The verdict was for the defendant.”
    The plaintiff appealed, and now moved for a new trial, upon the following grounds:
    1. Because his Honor charged that it’was a material enquiry in tbe case, whether the enjoyment of the air and lights had been adverse or not, and that it was necessary for the plaintiff to prove that there had been a distinct assertion of the right on one side, or an acknowledgment of it on the other: whereas, it is submitted, that the uninterrupted use of the easement for twenty years and upwards, establishes a prescriptive right, and is legal evidence of it.
    2. Because his Honor charged that, in his opinion, a claim for ancient lights had never been sustained where there was not proof of facts or circumstances (over and above the free and unquestioned enjoyment of the lights) to show an assent to the use of them: whereas, it is submitted, the true principle of law is, that every prescriptive right is supposed to have commenced in consent, and that the uninterrupted use of the easement for the period above mentioned, is all that the law requires as evidence of the prescription.
    3. Because his Honor charged that the true measure of damages was what the plaintiff had lost in the enjoyment of the premises since the obstruction, together with what the jury chose to give in punishment of the defendant: whereas, it is submitted, that in an action by the reversioner, where the allegation is of injury to the reversion, the jury are at liberty to find a compensation in damages to the extent of injury proved to have been done to the reversionary interest.
    4. Because it was proved that the lights had been used without interruption or hindrance for half a century, and had been so enjoyed by the plaintiff and his devisor alone for upwards of twenty years ; and, it is submitted, .that in the absence of any contravening proof, the plaintiff was entitled to a verdict to establish his right to the easement.
    5. Because the verdict was contrary to law and evidence.
    Porter, for the motion,
    cited 3 Kent, 357 ; 2 Saund. 175, note 2; 9 Bing. 305 ; Dud. 131; 1 Mill, 140 ; 61 Eng. C. L. R. 255.
    
      Yeadon, contra,
    cited Rice Eq. 80 ; 3 East, 294; 2 B. & P. 206; Cowp. 102; 19 Wend. 309, 315; 3 Bing. 115; 2 Pick. 465 ; 9 Pick. 251; Cro. Eliz. 118 ; 1 Show. 7.
   The opinion of the Court was delivered by

Waedlaw, J.

The verdict excludes from our consideration in this case, the rights concerning light and air which may be established between subsequent owners, by the disposition of a former owner of two tenements. It has also ascertained that-there was nothing in the mode of connexion between the two houses of plaintiff and defendant, which showed the assent of the defendant to the plaintiff’s acquisition -of the easement now here urged : and that of that assent there is no evidence, nor ground of presumption, besides the plaintiff’s enjoyment for more than twenty years unobstructed by the defendant. The real question is, whether that is sufficient evidence; or, in other words, whether, from the unobstructed enjoyment for so long a time, the assent should be presumed.

I' It might seem, from the grounds of appeal, that there was disagreement concerning the necessity of adverse character in the possession which raises the presumption of right to an easement, and concerning the theory upon which such presumption proceeds. But on all sides, it is agreed that the possession or enjoyment must be adverse, that is as of right and not of favor: and that where the right is established by presumption arising from possession, the presumption is of a grant, covenant, or other proper legal assurance of the right, necessarily implying the origin of the possession in consent, and its continuance with the assent of the party who is to receive damage from the establishment of the right, or in spite of his opposition. () It is not questioned that in the case of any easement, which if not rightful, gives c.ause of action to the owner of the servient estate, enjoyment for twenty years without action by him is evidence of his assent, and that, if nothing to the contrary appears, the enjoyment must be taken to have been with his acquiescence in the right. Does the easement of receiving light and air through an ancient window stand upon the same footing? )

It is argued that the plaintiff’s opening, upon his own land, a window which looked upon the land of the defendant, his neighbour, was no encroachment upon the defendant, and could have given to him no cause of action : the defendant says that his assent to a right in derogation of rights not at all trespassed upon or impaired, cannot then be inferred from the continuance of the window: the plaintiff replies that the defendant might, if he did not assent to the plaintiff’s acquisition of a right to have the window ever afterwards unobstructed, have erected a wall or otherwise have obstructed the window, and that from his neglect to do so, his assent may be inferred. The dispute, then, is concerning the duty of the defendant to make the obstruction. Does the same inference arise from his omission to obstruct what was doing him no harm, as from his neglect to sue for what was a continuing trespass, if it was not rightful ?

A resort to the law for redress is usually demanded by a just regard for the peace of society, and is encouraged by the theory that justice is dispensed at the cost of the wrong doer. ' He who omits, for a long time, to take the usual, well known and theoretically unexpensive means of arresting acts, which, if wrongful and doing him injury, thp law affords, may well be supposed to refrain because he knows that the acts are rightful. ( ) Bat it is a different thing, when one’s assent to a perpetual right that may seriously interfere with his dominion over his own property, is to be inferred from his neglect to hinder what was no legal wrong to him, caused him no inconvenience, and contributed to the pleasure of a neighbour. ( ) The window may have been high and a'wall would have been expensive: but the principle of the matter cannot depend upon the more or less expense of the obstruction. A very low and very narrow window might have been obstructed by a board; it may look to the east, and may have admitted the morning sunshine for some useful art to which such sunshine is necessary: a building of great height within fifty feet of it may exclude the sunshine :— shall the neighbour’s neglect to put up the board be evidence, now that twenty years have passed since the window was opened, that he assented to the right of its remaining unobstructed, so that his lofty building must come down 1

The owner’s dominion over property should be subject to no controul or restraint not required by considerations of justice or public expediency. He who owns the ground overlooked by a window, may desire that it should remain unoccupied, and why should another have the right to compel him to forego his desire ? The very space which a board would occupy, he may wish to be free for light and air, and what harm does the indulgence of his whim do to the owner of the window 1 Both do as they please with their own — neither encroaches on the other. Both understand that any accidental advantages which one derives from the other’s property may be cut off at pleasure by that other: and as the owner of the vacant space would not be allowed to acquire the easement of having the window kept open, upon the ground, that for twenty years the immission of light and air from his space into it had been acquiesced in: so neither should the easement to have the window unobstructed be acquired on the other hand by mere enjoyment for the same time, upon the ground, that acquiescence in the right to receive light and air from the space is thence to be presumed.— Where no other evidence of assent is given, the fair inference from unobstructed enjoyment of such a window is, that there was acquiesence in a favor but not in a right; that the obstruction was forborne not because an easement had been granted, or the acquisition of one was thought of, but because, to the owner of the space, it was immaterial to what use another might turn the elements that had passed through his space and served his purpose. Ho was unwilling to alter the disposition of his property, merely to do an unneighbourly act, confident that his dominion over it remained subject to his own discretion. In this view, the enjoyment of the window could not have been'ad verse, and so could not have raised the presumption of any right. Where nothing besides the unobstructed enjoyment appears to sustain the right, he who complains of his window being darkened by the alterations of his neighboui’s property, may well be told that these he should have anticipated: as was said, in Bury vs. Pope, (Cro. Eliz. 118,) it was his folly so to build — he chose to run the risk.

The instructions which were given to the jury, seem to contemplate the assertion of right, on the side of him who owned the window, as a circumstance which might shew the adverse nature of his enjoyment. Such assertion without denial on the other side, might be evidence of assent to the right asserted: — but a positive denial opposed to a distinct assertion would seem to bring the case back to the original question, whether the right to obstruct is sufficient evidence of assent to the right.

The point in this case has been discussed with boldness and ability in the case of Parker vs. Foote, (19 Wend. 309,) and to the opinion of Judge Bronson in that case, we refer for much learning and many forcible remarks which we will not repeat. We undertake not to decide what was the ancient common law on this subject of windows. The case of Bury vs. Pope we have already referred to: it occurred before the statute of 21 Jac. I fixed the period of twenty years for limitation of posses-sory actions, and probably had reference to windows which neither by prescription, nor by any presumption analogous to the statute of limitations then prevailing, could be considered ancient. The dicta of Sir Edward Coke in Aldred’s case. (9 Rep. 58,) supported by the cases he has cited, shew that, at a much earlier day, an action would lie for obstructing ancient lights.

Many modem decisions (in the course of which the doctrine of presumptions as distinguished from prescription, has been carefully sifted and applied to easements as well as to many other rights, ) have fully established in England the following propositions: — The strict right of property entitles the owner to so much light and air only as falls perpendicularly on his' land. He may build to the very extremity of his own land, and no action can be maintained against him for disturbing his neighbour’s privacy, by opening windows which oyerlook the adjoining property ■: but it is competent to such neighbour to obstruct the windows so opened by building against them on his own land, at any time during twenty years after their construction, and thus prevent the acquisition of the easement: if, however, that period is once suffered to elapse, his .long acquiescence becomes evidence, as in the case of other easements, of a title by the assent of the party whose land is subject to it.” ()

To measure the extent of the easement thus acquired, no rule more certain than the verdict of a jury seems yet to have been adopted in England. Attention to some of the cases, there decided, gives great force to the arguments ab inconvenienti which have been urged against our admitting the presumption of assent which we are considering. In Cross vs. Lewis, (2 B. & C. 686), the plaintiff’s house was four feet from a wall, which constituted his boundary : his windows on that side were unobstructed for thirty years, in the absence of those under whom the defendant claimed; the defendant built on his side, within one foot of the wall, five feet from the plaintiff’s windows: the distinction between the case of a window and those easements which could not be enjoyed without a trespass, if there was not a right, was noticed, but it was held that the defendant’s only remedy, to prevent the acquisition of an easement by the plaintiff, was to have obstructed the windows, and that under the circumstances, the plaintiff’s right required that the building which darkened his windows should be removed. In Back vs. Stacey, (2 C. & P. 465,) Best, C. J. at nisi prius directed the jury that it was not sufficient for the plaintiff to shew merely that there was less light; there must be such a substantial privation of light, as to render the house uncomfortable, and to prevent the plaintiff from carrying on his accustomed business in it, as beneficially as before he had done : it might be difficult to draw the line, but the jury must distinguish between a partial inconvenience and a real injury to the plaintiff in his enjoyment of the premises. In Parker vs. Smith, (5 C. & P. 438,) Tindal, C. J. distinguished between a speculative exclusion of light, and such diminution of it as really makes the premises, to a sensible degree, less fit for the business done in them. If there was such diminution of light and air, he directed a verdict for the plaintiff of nominal damages, which would, he said, be notice to the defendant that he must pull down the building complained of. In Pringle vs. Wernham, (7 C. & P. 377) the defendant’s building was twenty-three and a half feet from the plaintiff’s. Lord Denman said, the merely taking off a ray or two of light was not sufficient; there must be a considerable obstruction. The verdict was for the plaintiff the amount of the damages in the declaration, to be reduced to one shilling upon his altering his building to the satisfaction of a referee. In Wells vs. Ody, (7 C. & P. 410) the obstruction was by reason of a wall raised in height, which was seven, feet nine inches from plaintiff’s house: the question submitted was, whether there was such a diminution of light as sensibly to diminish the value of the premises, and verdict wTas rendered for the plaintiff.

It will be seen how seriously improvements might be here hindered, by our deducing a proprietor’s assent to a right, which would be a perpetual restraint upon his dominion over his own, from his neglect to obstruct windows for a time which would seem short to his retrospect, during all of which he had no occasion to occupy the space upon which they looked. The extent of the right, after all the precision had heen given to it which results from the finding of a jury upon a question of value, would depend much upon the lowness of the windows and the nature of the business which they were accustomed to serve, circumstances which might subject valuable building ground to the extortionate demands, or ill natured controul, of the owner of an adjoining hovel.

For a proper appreciation of the authority which should be given to the late English decisions on this subject, it should be noted that, under the 2d and 7th sections of the statute of 2 & 3 W. IY, c. 71, (Lord Tenterden’s Act), a plea that any easement there mentioned had been enjoyed for twenty years, must state that the enjoyment was had as of rightbut under the third section, it is enacted, that where the access of light to a dwelling house shall have been enjoyed therewith for twenty years without interruption, the right shall be deemed absolute and indefeasible, notwithstanding any local custom. This 3d section, it has been decided, extends to London, where custom had previously authorized one to obstruct another’s ancient lights by building on an ancient foundation ( ): and in a case where the enjoyment of windows commenced under permission verbally asked for, it was held that the 3d section did not require the enjoyment to be of right or adverse (). It cannot but be supposed that this statute has largely influenced all the decisions concerning windows which have been made in England since it passed.

With us, the necessity of obstructing windows to prevent the acquisition of an easement has not been established.The case of McCready vs. Thomson, (Dud. 131) which, by the general terms used in the decision, may seem to have recognized the English doctrine, was but the refusal to set aside a verdict, and the facts of the case, as they are reported, shew that the jury may have found evidence of the defendant’s assent to the plaintiff’s right in the long continued accommodation of the defendant’s buildings to the plaintiff’s enjoyment. We have, in reference to the evidence which may serve to shew adverse character in the use of a way over another’s land, introduced a distinction between forest land unenclosed and cultivated land, a distinction which was required by the old principles of the rule concerning presumptions, when the rule came to be applied under new circumstances. In like manner, the wider spaces and more rapid changes of our country, with the less jealous habits of our people, without any the less lofty notions of proprietary rights, make it proper that, under the principle which requires the assent of him who is to suffer from this establishment of a right, to be shewn before his grant of it shall be presumed, a different rule of evidence concerning assent to the easement of having windows unobstructed, involving a different notion of the duty to obstruct the windows for prevention of the right, should prevail here, from that which obtains where lands are more fully occupied and of more steady value, and where every encroachment upon them, even potential, is more carefully watched.

The case of windows is, as we have seen, now made peculiar in England by statute: but the general principle, which before that statute prevailed there as to all easements, and since has prevailed as to all with the exception of windows, is, that | the enjoyment must be adverse or of right to raise by twenty years continuance the presumption of a grant. There are, besides windows, very few instances of advantages enjoyed from* a neighbour’s land of the kind which if not rightful give him no cause of action, that have ever been supposed to ripen by' time into indefeasible easements. Such instances have, however, been sometimes considered in England : there may be dispute as to what are considered ancient, and as to the rights which would be accorded to ancient possessions, but in no case, besides that of windows, has a proprietor ever been required to do what he did not please to do with his own, to prevent another from acquiring a right therein. The distinction of windows from other cases, has, independent of the statute, rested on the ground , that, as to thorn, a proprietor had, in his own hands, the means of obstruction more cheap and easy than in other cases.

The necessary support which is given by the soil' of one owner to the soil of another, is regarded as a natural right, — an incident of property, rather than an easement (). But where the lateral pressure of the soil of one has been increased by super-incumbent buildings that have stood, for twenty years, the question as to the right of the other to make an excavation on his own soil, which would not have disturbed the natural condition of the adjoining soil, but would injure the buildings that have increased the pressure, has several times been presented. A ruling of Lord Ellenborough at nisi prms, () and an observation of Liltledale, J. made in the course of an argument, () seem to maintain that mere lapse of time within the memory of man, without any other evidence of assent on the part of him against whom a right was claimed, produced, by force of presumption, a state of things like their natural or prescriptive state, which made rightful what had long existed: but on several occasions () a bench of Judges carefully abstained from confirming this doctrine. Where the enjoyment was in its nature ¡hidden, or although it was apparent, there was no ready means of resisting it within the power of the servient owner, assent was not implied, and the influence of twenty years time, therefore, not acknowledged.

In reference to the support given by one building to another, cases have arisen concerning the relative duties of the parties to provide shores, when the supporting building is to be removed, and concerning negligence in the removal, ( ) but it has not been decided that, when a building has tottered and rested upon a neighbour’s building which stands perpendicular on his line, doing him no harm, and giving him neither right of action, nor right to enter for its removal, the continuance of this condition of things for twenty years shall prevent the neighbour from taking down his wall, although thereby the supported building must be made to fall.

He who has, by a steam engine, raised a stream of water, which after- serving his uses, has flowed, according to a right acquired by time, over the land of a neighbour who has applied it to turn a mill, is not held bound after twenty years to keep up his engine against his will for the benefit of his.neigh-bour ( ). It is considered to be immaterial to him, what use the neighbour makes of that, which he himself originated and continued for his own benefit: and distinctions are taken between doing and suffering, and between the dominant and the servient estates. Under these distinctions an easement would be denied to one who should urge against a neighbour’s pulling down his own wall, a right to the shelter of the wall, on the ground that, with the knowledge of the neighbour he had enjoyed it more than twenty years: and the same distinctions would prevent the acquisition of an easement in the shade of a tree which stands on a neighbour’s land near his boundary, or of an easement to have continued the protection against winds which a neighbour’s forest or a hill on his land had long afforded to another’s orchard.

With us, cattle may roam upon unenclosed land without trespassing upon the owner of the land. Why should not a neigh-bour by twenty years continuous use of such land by his cattle acquire against the owner of the land the right of pasturage ? The neglect to enclose might be taken as evidence of the owner’s assent to the right, for in some instances enclosing would not be more expensive than the erection of a wall to obstruct a high window. The answer is to be found in the general principles which we think applicable as well to the window as the cattle. Every proprietor is permitted to use his own at his own pleasure, provided, that no one else is thereby injured: an incidental advantage which another derives from his land, if it does him no legal wrong, gives him no cause of action; it should not then constrain him to alter little or much his pleasure in the use of his own, and the enjoyment of it should not, of itself, be evidence of his assent to any right acquired in derogation of his proprietary dominion. >

The motion is dismissed.

O’Neall, EvaNs, Frost and Withers, JJ. concurred.

Whitner, J. heard the case and assented to the result, but was absent when the opinion was pronounced.

Motion dismissed. 
      
      (a) Campbell vs. Wilson, 3 East, 294.
     
      
      (c) See 1 Wms. Saund. 346, b.
     
      
      (d) Mason vs. Hill, 5 B. & Ad. 1.
     
      
      (e) 2 Saund. 175, n. 2.
     
      
      (f) Gale & "W. on Easem. 191.
     
      
      
        (g) 3 Ad. & El. N. S. Ill; 2 Gate & What. 414.
     
      
      (A) London Mayor vs. Pewterer’s Company, 2 M. & R. 407.
     
      
      (i) Gale & W. on Easem. 216.
     
      
      (k) Stansell vs. Jollard, 1 Selw. N. P. 441.
     
      
      (l) Dodd vs. Holme, 1 Ad. & Ell. 493, 3 Nev. & M. 739.
     
      
      (m) Wyatt vs. Harrison, 3 B. & Ad. 871; Dodd vs. Holme, supra; Partrige vs. Scott, 3 Mees. & W. 220; Gale & W. on Easem. 219, 227, 253.
     
      
      
        (n) Peyton vs. Mayor of London, 9 B. & C. 725; Gale & W. on Easem. ch. 6, § 3, 4.
     
      
      (o) Arkwright vs. Gell, 5 Mees. & W. 203; Gale & W. on Easem. 182.
     