
    Ellen Mullen v. Francis Stricker.
    1. An easement in light and air, to he supplied to one’s windows from the premises of another, cannot he acquired in Ohio hy use or prescription.
    2. Where the owner of two adjacent lots conveys one of them, no grant or reservation of such easement for light and air will he implied merely from the nature or use of the structures existing upon the lots at or prior to the time of the conveyance.
    Error to the -superior court of Cincinnati.
    The plaintiff and defendant are the owners of adjacent lots, Nos. 51 and 53 Broadway, Cincinnati, on each of which is a four-story brick house. The house on-No. 51 covers the entire lot, the centre of its south wall being the dividing line between it and No. 53. Between this wall and the house upon No. 53 is an area or space-way, some four or five feet wide, extending part the length of the wall. Several of the windows in the house on lot 51 open into and are lighted from this area. For many years prior to April 24,1866, both lots, with the houses thereon, had been owned by Clement Deitrieh, and occupied and used by him, in their present condition. On the 24th of April, 1866, Deitrieh, in pursuance o£ a public notice, offered the lots for sale at auction, when lot 51 was struck off to the' defendant in error, Francis Strieker, and lot 53' to another person. Strieker complied with the terms of sale,, and, on the 30th of April, his lot was conveyed to him by Deitrich. The other purchaser failed to comply with the- terms of sale ; but before the execution of the deed to Strieker, the plaintiff in error, Mrs. Mullen, purchased lot 53, and on the 1st day of May, one day after the execution of Strieker’s deed, she received her deed from Deitrich for lot 53. Both deeds contained covenants of general warranty, and against incumbrances, and in' both, the centre of the partition wall aforesaid is described as being the boundary line between the lots. It is admitted that a substitute for the windows opening into the area can be had, by which* air and light will be provided from above, at an expense of from $300 to $1500.
    Shortly after the execution of these- deeds, Mrs. Mullen being about to obstruct the windows aforesaid, by building upon and filling up the area from which they were so lighted, Strieker brought his, action against her in the superior court of Cincinnati, to enjoin her from so doing. The cause was reserved by that court for hearing in general term, where a perpetual injunction was awarded ; and Mrs. Mullen now seeks to reverse the judgment of the superior court by her petition in error here.
    
      Hoadly, Jaolcson <& Johnson, and J. c& It. A. Johnston for plaintiff in error.
    1. The easement in question, which Strieker seeks to attach to the premises of Mrs. Mullen, is nowhere expressly created, or directly recognized, in the chain of title. It exists, if at all, only by implication, as a matter of necessity, oías the result of construction, applied to the deeds.
    2. A distinction has been sometimes attempted between easements of necessity, and those depending on the principle that the grant of a thing includes all things without which the thing granted cannot be enjoyed. But no such distinction is practicable. In the last analysis the cases ^re the same. That without which the thing granted cannot be enjoyed, is that which is implied, because necessary to the enjoyment of the thing granted. These are but slightly different methods of stating the same proposition. An easement of necessity must be strictly sttch; and is not implied because of convenience,, even great convenience. Washburn on Easements, 31, 32, 33, 164, and cases cited; McDonald v. Lindell, 3 Rawle, 492; Randall v. McLaughlin, 10 Allen, 366; Dodd v. Burchell, 1 Hurlstone & Coltman, 113; Gayetty v. Bethune, 14 Mass. 55; Nichols v. Luce et al., 24 Pick. 102; Warren v. Blake, 54 Maine, 287.
    In the case at bar, there is no such strict or absolute necessity. For the plaintiff’s premises, as is admitted, can be supplied with light and air, just as city lots ordinarily are, from above, or the front, at a reasonable expense — from $300 to $1500.
    It is quite clear that such easement was not conveyed by the use of the word “ appirrtenanees ” in the deed from Deitrich to Strieker. That word, so used, only embraces those rights and easements which were enjoyed as “ appurtenances ” by Deitrich. It, of coursé, does not apply to the usages or modes of enjoyment of one part as affected by the use of another part of Deitrich’s property. Hieatt v. Morris, 10 Ohio St. 530; Pearson v. Spencer, 1 Best & Smith (101 Eng. Com. Law.), 571; Pheysey et ux. v. Vicary, 16 M. & W. 483; Whalley v. Tompson, 1 Bos. & Pull. 371; Morris v. Edgington, 3 Taunton, 34; Worthington v. Gimson, 6 Jurist, N. S. 1053; Daniel v. Anderson, 8 ib. 328; Russel v. Hanford, Law Rep. 2 Eq. Cas. 507; Grymes v. Peacock, 1 Bulstrode, 17; Saundeys v. Oliff, Moore, 467; Barlow v. Rhodes, 1 Cr. & Mees. 448.
    3. As far as was in his power, Deitrich conveyed to Mrs. Mullen by a title not subject to the burthen of this easement. He did not intend to impose such subserviency upon her lot. He covenanted that the title so -conveyed was free from incumbrances. And it is clear that such a servitude is an incumbrance. And he described the premises by metes and bounds, as extending to the centre of the “ partition wall,” without reservations of any kind.
    “ Where both lots are passing out of the vendor at the same instant, it is impossible to imply that he is making one servient to the other; and this is especially so when he is selling both lots clear of incumbrances, for an easement is an incumbrance.” Maynard v. Esher, 17 Penn. St. 227.
    “ But where there is a grant of land, by metes and bounds, without express reservation, and with full covenants of warranty against incumbrances, we think there is no just reason for holding that there can be any reservation by implication, unless the easement is strictly one of necessity,” etc. Carberry v. Willis, 7 Allen, 370.
    See also Suffield v. Brown, 10 Jurist, N. S. 111, 112, 113; Randall v. McLaughlin, 10 Allen, 366; Haverstick v. Sipe, 33 Penn. St. 368; Polden v. Bastard, Law Rep. 1 Queen's Bench, 160; Morrison v. Marquadt et al., 24 Iowa, 35, 59, 60.
    In the October number, 1869, of the American Law Review, vol. iv. p. 40, the subject of easements by implied grant is discussed with great learning, and all the recent cases are considered, and their differences sought to be rec onciled.
    4. If such easement exists, but was not reserved by Deitricli, expressly or by implication, when he conveyed to Mrs. Mullen, it must be because such is the just and necessary result of the deed to Strieker.
    No such easement is expressed in that conveyance. On the contrary, it seems to us that the language used forbids even the implication. Por the line between the lots in this deed, as well as that to Mrs. Mullen, is defined to be, from front to rear, the centre of a “partition wall.” Six inches of this wall stand on the land of Mrs. Mullen, and it is a “ partition wall.” It is not only so called in both deeds, but the term is used with strict legal propriety. Hieatt v. Morris, 10 Ohio St. 527, and cases there cited; Washburn on Easements, pp. 454, 456, 458; Campbell v. Meiser, 4 Johns. Ch. 334.
    
      5. The principle stated in the following passage from Maynard v. Esher, 17 Penn St. 227, “ Where both lots are passing out of the vendor at the same instant, it is impossible to imply that he is making one servient to the other,” is well established. See also Johnson v. Jordan, 2 Metc. 234, 239, 240; New Ipswich Factory v. Bachelder, 3 N. H. 190; Leonard v. White, 7 Mass. 8; Grant v. Chase, 17 Mass. 443; Collier v. Pierce, 7 Gray, 18; Myers v. Gimmel, 10 Barb. 537; Palmer v. Wetmore, 2 Sandf. Sup. Ct. Rep. 316.
    Both lots were sold, substantially, at the same time, and neither purchaser acquired any advantage over the' other. Within an interval so brief as practically not to separate the transactions, Mrs. Mullen took the place of the defaulting purchaser, and she is no worse off than if she had taken an assignment of his bid. Johnson v. Jordan, 2 Metc. 234; Collier v. Pierce, 7 Gray, 18.
    6. Two cases in Ohio are referred to as decisive against us, viz.: Morgan v. Mason, 20 Ohio, 401, and Elliott v. Sallee, 14 Ohio St. 10. They do not appear to us to have this effect. They are effectually distinguished from the case at bar, by the principle well stated by the supreme court of Pennsylvania in Haverstick v. Sipe, 33 Penn. St. 368.
    That in Ohio light and air are not the subjects of adverse enjoyment, and cannot be acquired by prescription, is admitted in Hieatt v. Morris, 10 Ohio St. 523. Such is the general American doctrine. Washburn on Easements, 497, 498. If the basis of the rule of prescription be the presumption of a grant, it seems that no length of time warrants this presumption as to light and air. If so, how then can an actual grant, which describes the premises without reference to the easement, be presumed to convey it ?
    And again, in Hieatt v. Morris it clearly appears that all easements in cities are to receive a reasonable construction, having reference to the changing character of the circum stances.
    
      Stallo & Kittredge for defendant in error:
    The principle upon which we rely is expressed in the Ianguage of this court in the case of the Street Railway v. Cumminsville, 14 Ohio St., on page 544: “Whatever is fairly within the contemplation of a grant, whether voluntary or forced, and necessary to its beneficial enjoyment, is within the legal operation of the instrument or proceeding by which it is effected.”
    The thing granted in this case to Mr. Strieker by Mr. Deitricli, in whose place the plaintiff in error now stands, was a house and lot, and if the principle quoted applies to such a case, the question is whether the eight windows in Mr. Strieker’s house are "necessary to the beneficial enjoyment of the house.
    The necessity in such a case is a question of degree. In one case it may amount to a slight convenience; in another case the convenience may be so great as to make it substantially necessary to the beneficial enjoyment of the thing granted.
    If, in the argument of plaintiff’s counsel, in using the expression “ strict necessity,” it is intended to signify that the necessity must be absolute, we answer such a necessity is not possible. Or, if it is, it is not the necessity contemplated in this statement of the principle upon which we rely ; if it was, t should read “ and absolutely necessary to its enjoyment at all, in any manner,” instead of “ necessary to its beneficial enjoyment.”
    These, it will be found, are the three chief qualities which determine the character of an easement; viz.: 1. Its being' open and manifest in its enjoyment. 2. Its being more or less onerous to the servient estate. 3. Its being more or less important or necessary to the dominant estate.
    And these qualities all concur in the case we present. Nothing could be more obvious to the parties invited to the public sale of Mr. Deitrich, than the existence of these eight windows, which, without excluding the plaintiff from the use of her area, are fairly necessary to the beneficial use of the house sold to the defendant, without which his house, wrhich he bought, must be torn down, and another built in its place. Now, this being so, we conceive that an arbitrary rule that sought to reject a right as not being fairly within the contemplation of a grant, because of the class of things in which the right is claimed — it being, in the one case, a right to have, light and air in a particular way; and in another, to have water in a particular way; and in another, a right to have access to one’s property in a particular way — would be most unreasonable and illogical. It is said that this has been done in an analogous class of cases; that the doctrine of ancient lights has been rejected in this country generally, and has no prospect of being recognized in Ohio. As to the ground upon which this doctrine has been rejected, see Rogers v. Parvin, 21 Law Reports, 104. The foundation of the doctrine failing, or being found unsubstantial, of comse the superstructure has gone with it. But what application has that result to the case in hand ? "We claim that the party has granted a house, having eight windows in it, the existence and use of which was open and manifest, and which, without being greatly onerous to his property, which he retained, were, necessary to the convenient and beneficial use of the house he conveyed. The .question is one of - the construction of the grant, and the reason which applies in the other cases referred to applies in its full force to this case.
    Such an easement as we claim will be held to pass by a grant of the principal thing in any case: Palmer v. Fletcher, 1 Leving, 122; also reported in 1 Keble’s Rep. 553, 625; Cox v. Matthews, 1 Ventris, 239; Rosewell v. Pryor, 6 Modern, 116; Compton v. Richards, 1 Price, 27; Swansborough v. Coventry, 9 Bingham, 305; Coutts v. Gorham, 22 Eng. Com. Law, 338; 1 Moody & Malkin, 396; Ewart v. Cochrane, 4 Macqueen, 117; White v. Bass, 7 H. & N. 722, 731; Hall v. Lund, 1 Hurlstone & Coltman, 676; Street Railway v. Cumminsville, 14 Ohio St. 544; Story v. Odin, 12 Mass. 157; Myers v. Gemmel, 10 Barbour, 537; United States v. Appleton, 1 Sumner, 492; Morgan v. Mason, 20 Ohio, 401; Durel v. Boisblanc, 1 La. Annual, 407; Robeson et al. v. Pittenger, 1 Green's Ch. 57; Cherry v. Stein, 11 Md. 24; Fifty Associates v. Tudor, 6 Gray, 259; Lapman v. Milks, 21 N. Y. 505; Phillips v. Phillips, 48 Penn. St. 178; 
      Fellers v. Humphreys, 3 C. E. Green, 260; 101 Eng. Com. Law. 583, 586, note.
    So far as the facts disclosed by the record go, Mrs. Mullen had nothing whatever to do with the auction sale. It does not appear that she was even present at it. It is not and can not be claimed, that Mrs. Mullen became the assignee of the original bidder; but this bidder having failed to take the j)roperty, Mr. Deitrich- treated the contract with him as wholly annulled, and made a new sale to Mrs. Mullen. She stands precisely in the place, and with the rights, of Clement Deitrich, the vendor, after the auction sale, and not in the place of the unknown person to whom the lot was bid off at auction. Swansborough v. Coventry, 9 Bingham, 305; Durel v. Boisblanc, 1 La. Annual, 407; Maynard v. Fisher, 17 Penn. St. 222; Keiffer v. Imboff, 26 Penn. St. 438, 445; Elliott v. Sallee, 14 Ohio St. 10; Kilgour v. Ashcom, 5 Har. & J. 82.
    This case presents a case of such necessity as to secure the right claimed, to the grantee. We refer, upon this question of necessity, to Pryor v. Carter, 1 Hurlstone & Norman, 922, which has never been overruled upon this point; and to the case in 4 Macqueen, and the other cases cited by us.
   Welch, J.

The whole case is a question of the construction of Deitrich’s deed to Strieker. If Strieker has any right to the easement in controversy, he acquired it by that deed. That the deed does not expressly grant the easement, is admitted. Its language is unequivocal, making the “partition wall” the dividing line between the two lots. Nor is it claimed that the easement had attached or become appurtenant to lot 51, by user or prescription. On the contrary it is conceded, and so we understand the law to be in Ohio (Hieatt v. Morris, 10 Ohio St. 523; Washb. Easm. 497), that no prescriptive right to the use of light and air through windows can be acquired by any length of use or enjoyment. But it is claimed that the easement is granted by implication, arising upon the circumstances sui’rounding the execution of the deed. In other words, it is claimed that the grant is to be implied from the fact that the windows were in use at the time of the conveyance, and were necessary to the convenient enjoyment of the property, and that this implication is not rebutted by the fact that the lots were simultaneously sold at. auction.

In the view we take of this case, it is unnecessary to consider the effect of the circumstance that the lots were simultaneously sold at auction. In a proper case, no doubt, that fact might go far to rebut the implication of a grant, and there are a number of decisions -to that effect. In such a case 'it would, perhaps, be quite immaterial which deed was executed first, as the parties to the first deed would be held to have known and intended, at the time of its execution, that the other deed was to be executed also, and was to be made conformable to the terms and conditions of the sale, neither purchaser having any preference over the other. But we place our decision of the case upon other'grounds, and need not, therefore, discuss the question whether it is varied by the fact that the lots were simultaneously sold.

Nor do we deem it necessary to discriminate between the ease of an implied grant and that of an implied reservation in a grant. Some of the early English decisions stand upon the ground of such a distinction, holding that the same circumstances, of necessity or use, which would support an implication of grant, where the dominant estate is first sold, will not support an implication of reservation where the servient estate is first sold.

What we hold is, that the law of implied grants and implied reservations, based upon necessity or use alone, should not be applied to easements for light and air over the premises of another in any case. In our view, therefore, the law of the present case is not in the least varied by the fact thal the dominant estate was conveyed first, or by the fact that both lots were sold at the same time. It seems to us that this doctrine of easements in light and air, founded upon sheer necessity and convenience, like the kindred doctrine of ancient windows,” or prescriptive right to light and air by long user, is wholly unsuited to our condition, and is not in accordance with, the common understanding of the community. Both doctrines are based upon similar reasons and considerations, and botli should stand or fall together. They are nnsuited to a country like ours, where real estate is constantly and rapidly appreciating, and being subjected to new and more costly forms of improvement, and where it so frequently changes owners as almost to become a matter of merchandise. In cases of cheap and temporary buildings, the application of the doctrine would be attended with great uncertainty, and be a fruitful souree of litigation. It would, moreover, in many cases, be .a perpetual incumbrance upon the servient estate, and operate as a veto upon improvements in our towns and cities. It will be safer, we think, and more likely to subserve the ends of justice and public good,.to leave the parties, on questions of light and air, to the boundary lines they name, and the terms they express in their deeds and contracts.

We know that the authorities on this subject are not uniform. But we believe the weight of American decisions are in accordance with the opinion here expressed. (See Maynard v. Esher, 17 Penn. St. 222; Haverstick v. Sipe, 33 id. 368, 371; Dodd v. Burchell, 1 H. & C. 112; Myers v. Gimmel, 10 Barb. 537; Palmer v. Wetmore, 2 Sandf. Sup. C. R. 316; Collier v. Pierce, 7 Gray, 18.)

In Haverstick v. Sipe the court hold, that the grant of an easement for light and air is not implied from the fact that such a privilege has been long enjoyed; and that a contract for such privilege is not implied on the sale of a house and lot, from the character of improvements on the lot sold, and the adjoining lots. The court say: “There is a sort of necessity for such an implication relative to ‘ other apparent easements, such as roads and alleys, in order to account for a use of another man’s land that would otherwise be a wrongful encroachment; and the implication is -easily framed or defined, for it appears on. the ground. But how can we define an easement for light and air by implication, without arresting all change in the style .of buildings, all enjoyment of a man’s house, according to the demands of a growing or improving family ? A purchaser of a house in a crowded town never supposes that his neighbor will have a right to prevent him from changing the form of it according to his taste.”

We fully concur in the opinion thus expressed, and in the reasoning upon which it is based.

Judgment reversed, and cause remanded for a new trial.

Beinkerhoff, C.J., and Scott, White, and Day, JJ., concurred.  