#### Parker & Edgarton *vs.*Foote.

NEW-YORK,

May, 1838.

The doctrine of presumption of right by grant or otherwise as applied to the windows of oneperson overlooking the land of another, so that by an uninterrupted enjoyment for twenty years the owner acquires a right of action against his neighbor for stopping the lights by the erection of a building upon his own land, forms no part of our law : such a rule is not adapted to the circumstances or existing state of things in this country.

The question of presumption of right by grant or otherwise, although there ha s been an uninterrupted enjoyment of an incorporeal hereditament for more than twenty years, must be submitted to the jury; a judge is not justified in telling them that they must, but should instruct them that they may presume a grant, except in a plain case where there is no evidence to repel the presumption arising from twenty years uninterrupted adverse user.

To authorize the presumption of a grant, the enjoyment of the easement must not only be uninterrupted for the period of twenty years, but it must be adverse, not by leave or favor, but under a claim or assertion of right; and it must be with the knowledge and acquiescence of the owner.

Whether when it is affirmatively proved that in fact there never was a grant, a jury would be warranted in a proper case to presume a grant, *quere.*

The doctrine that there may be cases relating to the use of water, which form exceptions to the rule that the enjoyment must be adverse to authorize the presumption of a grant, questioned.

This was an action on the case for stopping *lights*in a dwelling house, tried at the Oneida circuit in April, 1836, before the Hon. Hiram Denio, then one of the circuit judges.

In 1808 the defendant being the owner of two village lots situate in the village of Clinton, adjoining each other, sold one of them to Joseph Stebbins, who in the same year erected a dwelling house thereon *on the line*adjoining the other lot with windows in it overlooking the other lot. The defendant also in the same year built an addition to a house which stood on the lot which he retained, leaving a space of about *sixteen feet*between the house erected by Stebbins and the addition put up by himself. This space was subequently occupied by the defendant as an alley leading to buildings situate" on the rear of his lot, and was so used by him until the year 1832, when *(twenty four years*after the erection of the house by Stebbins,) he erected a store *310' on the alley, filling up the whole space between the two houses, and consequently *stopping the lights*in the house erected by Stebbins. At the time of the erection of the store, the plaintiffs were the owners of the lot originally conveyed to Stebbins, by the title derived from him, and were in the actual possession thereof, and brought this action for the stopping of the lights, Stebbins (the original purchaser from the defendant,) was a witness for the plaintiffs, and on his cross-examination, testified that he never had any written agreement, deed or writing granting permission to have his windows overlook the defendant’s lot, and that nothing was overpaid upon the subject. The village of Clinton is built upon a square called Clinton Green, the sides of the square being laid out into village lots, and contained at the time of the trial about 1000 inhabitants. On motion for a nonsuit, the defendant’s counsel insisted that there was no evidence of a *user*authorizing the presumption of a grant as to the *windows ;*that the *user*in this case ^as merely permissive, which explained and rebutted all presumption of a grant. That if the *user,*in the absence of other evidence, authorized the presumption of a grant, still that here the presumption was rebutted by the proof, that in fact there never had been a grant. The circuit judge expressed a doubt whether the modern English doctrine in regard toj stopping lights, was applicable to the growing villages or] this country, but said he would rule in favor of the plaintiffs, and leave the question to the determination of this court. He also decided that the fact, whether there was or was not a grant in writing as to the windows, was not for the jury to determine; that the law presumed it from the user, and it could not be rebutted by proving that none had in truth been executed. After the evidence was closed, the judge declined leaving to the jury the question of presumption of right, and instructed them that the plaintiffs were entitled to their verdict. The jury accordingly found a verdict for the plaintiffs, with $225 damages. The defendant having excepted to the decisions of the judge, now moved for a new trial.

*311*W.*C. Noyes, for the defendant, insisted that the plaintiffs ought to have been nonsuited; that although in England, it had been holden in the later cases, that an action lies for stopping or obstructing lights founded on a *user*of twenty years, such formerly was not the law *there,*and the new rule has never been adopted here. In *Bury*v. *Pope,*Cro. Eliz. 118, it is said “It was argued by all the justices, that if two men be owners of two parcels of land adjoining, and *one of them*doth build a house upon his land and makes windows and lights looking into the other’s lands, and this house and the lights have continued for the space of 30 or 40 years, yet *the other*may upon his own land and soil lawfully erect a house or other thing against the said lights and windows, and the other can have no action, *for it was his folly to build his house so near to the other’s land*and it was adjudged accordingly. The same doctrine is holden in 1 Shower, 7. Presumptions of grants in support of long and uninterrupted enjoyment of easements had prevailed for centuries in England, but an action on the case for *stopping and obstructing lights*was never sustained until 1761, when Wilmot, J. at the Assizes, for the first time, ruled that such action lay, and he afterwards held the same doctrine at the C. B. Sittings in 9 Geo. III. (1769,) as stated by Serj. Williams, in *2*Saund. 175, *a.;*but it does not appear to have been adopted in'the K. B. until 26 Geo. III. (1786,) when on a motion for a new trial as said by Buller, J., it had been held that *twenty years*quiet and uninterrupted possession of ancient lights was a sufficient ground from which a jury might presume a grant, 3-T. R. 159, *n. c.*In 1 f•§ however, in the case of *Daniel*v. *North,*11 East, 371, the doctrine appears to have been conceded by all the judges, and the later decisions are all in conformity to it. The counsel however contended that those decisions, were not obligatory upon our courts, because the'y were a departure from the common law as it existed in 1776 when adopted here, and were not supported by the principle of the liw upon which was based the doctrine of presumption of grants^ In the.case of ways, *commons, fisheries, the flowing of lands*and the like, a grant is presumed after a con*312tinued and uninterrupted enjoyment of twenty years, upon" the ground that the right exercised is in hostility to the title, and in derogation of the rights of the original owner—an actual ouster of him ; for to lay the foundation for the presumption of a grant, the enjoyment must be adverse, under a *claim of title,*and with the knowledge and acquiescence of the opposite party : in such cases a grant is presumed for the purpose of quieting the possession thus adversely held and used. All which is totally imapplicable in reference to windows or lights overlooking the land of another. The enjoyment in such cases is *no encroachment*upon the rights of another; *no occupation*of that which before belonged to another; *no adverse possession*under a *claim of title;*it is the exercise of a lawful right for which no action lies ; and it would be strange indeed that the mere continuance of such enjoyment, lawful in itself, interfering with no one, exercising no dominion over the property of another, and asserting no title in opposition to the title of such other, should by the lapse of time on the one hand ripen into a right, and on the other deprive a party of his own ; and yet it is part of the modern doctrine upon this subject that such will be the effect, unless the owner of the adjoining land does within twenty years *build opposite to the windows*which thus overlook his property. The counsel farther insisted, that if in this case, it could be deemed that there was such an *user*as, unexplained, would have warranted the presumption of a grant, that the evidence was conclusive to rebut the presumption ; and that the judge erred in refusing to submit the question to the jury.

*C. P. Kirkland*and *J. A. Spencer,*for the plaintiffs.

*By the Court,*

Bronson, J.

The modern doctrine of ■ presuming a'right, by grant or otherwise, to easements and j incorporeal hereditaments after twenty years of uninterrupted ' adverse enjoyment, exerts a nriuch wider influence in j quieting possession, than the old ^'doctrine of title by pre- ; scription, which depended on immemorial usage. .The pe- ; riod of 20 years has been adopted by the courts in'analogy 1 to the statute limiting an entry into lands ; but as the stat- i *313ate does not apply to incorporeal rights, the adverse user not regarded as a legal bar, but only as a ground for pre|| suming a right, either by grant or in some other form. The case of *Holcroftv. Heel,*1 Bos. & Pull, 400, apparently proceeds on the ground of a legal bar ; but the report is inaccurate, as will be seen by the explanation of Le Blanc, J. in *Campbell*v„ *Wilson,*3 East, 298.

To authorize the presumption, the enjoyment of the~* : easement must not only be uninterrupted for the period of : 20 years, but it must be adverse, not by leave or favor, but | under a claim or assertion of right; and it must be with the ''knowledge and acquiescence of the owner. *Campbell*v. *Wilson,*3 East, 294. *Daniel*v. *North,*11 East, 372. *Barker*v. *Richardson,*4 B. & Aid. 579. *Hill*v. *Crosby,*2 Pick. 466. *Sargent*v. *Ballard,*9 Pick. 251. *Bolivar Comp.*v. *Neponset Comp.,*16 Pick. 241. *Chalker*v. *Dickinson,*1 Conn. R. 382. See also *Doe*v. *Butler,*3 Wendell, 149, It is said that there may be cases relating to the use of water, which form exceptions to the rule that the enjoyment must be adverse to authorize the presumption of a grant. See *Healey*v, *Shaw,*6 East, 208. *Ingraham*v„ *Hutchinson,*2 Conn. R. 584. To this doctrine I cannot subscribe. Without reviewing the cases in relation to the rights of diEerent riparian proprietors on the same stream, I think it sufficient at this time to say, that in whatever manner the water may be appropriated or enjoyed, it must of necessity be either rightful or wrongful. The use of the stream must be such:'as is authorized by the title of the occupant to the soil over which the water flows, or it must be / a usurpation on the rights of another. If the enjoyment is ; rightful, there can be no occasion for presuming a grant., The title of the occupant is as perfect at the outset, as it can be after the lapse of a century. If the user be wrongful, a usurpation to any extent upon the rights of another, it/ is then adverse; and if acquiesced in for 20 years, a reasonable foundation is laid for presuming a grant. If the enjoyment is not according to the title of the occup- ' the injured party may have redress by action. His reme, y does *314not depend on the question whether he has built on his mill-’.f'sjte or otherwise appropriated the stream to his own use. It is enough that his right has been invaded ; and although! TM a Particular case he may be entitled to recover only | nominal damages, that will be a sufficient vindication of his 4 title, and will put an end to all ground for presuming a grant. *Hobson*v. *Todd,*4 T. R. 71. *Bolivar Co.*v. *Neponset Co.,*16 Pick. 241. *Butman*v. *Hussey,*3 Fairfield, (Me.) 407.

The presumption we are considering is a mixed one of law and fact. The inference that the right is in him who has the enjoyment, so long /as nothing appears to the contrary, is a natural one—it ü a presumption of fact. But adverse enjoyment, when left to exert only its natural force as mere presumptive evidence, can never conclude the true owner. No length of possession could work such a consequence. Hence the necessity of fixing on some definite period of enjoyment, and making that operate as a presumpr tive bar to the rightful owner. This part of the rule is wholly artificial; it is a presumption of mere law. In general, questions depending upon mixed presumptions of this description (mustie submitted to the jury, under proper instructions from the court. fThe difference between length of time which operates as a *bar*to a claim, and that which is only used *by way of evidence,*was very clearly stated by Lord Mansfield, in the *Mayor*&c. v. *Horner.*Cowp. 102. “ A jury is concluded,” he says, “ by length of time that operates as a bar, as where the statute of limitations is *pleaded in bar*to a debt; though the jury is satisfied that the debt is due and unpaid, it is still a bar. So in the case of prescription, if it be time out of mind, a jury is bound to conclude the right from that prescription, if there could be a legal commencement of the right. But length of time *used merely by way of evidence,*may be left to the consideration of a jury to be credited or not, and to draw their inference one way or the other, according to circumstances.” In *Darwin*v. *Upton, 2*Saund. 175, note (2,) the question related to lights, and it was said by the same (earned judge, that *“*acquiescence for 20 years is such decisive presump *315ition of a right by grant or otherwise, that unless contradicted or explained, the jury ought to believe it, but it is impossible that length of time can be said to be an absolute bar, like a statute of limitations ; it is certainly a presumptive bar which ought to go to the jury.” Willes, J. mentioned a case before him, in which he held uninterrupted possession of a pew for 20 years to be presumptive evidence merely ; in which opinion he was afterwards confirmed by the C. B. The other judges concurred; and Gould J.,[ before whom the action was tried, said, he never had an idea but it was a question for a jury; and he compared it to the case of trover, where a demand and refusal are evidence of, but not an actual conversion.!

Some of the cases speak of the presumption as conclusive. *Bealey*v. *Shaw,*6 East, 208. *Tyler*v. *Wilkinson,*4 Mason, 397. This can only mean that the presumption is conclusive, where there is no dispute about the *factsji*upon which it depends. It has never been doubted that the inference arising from 20 years enjoyment of incorporeal rights, might be explained and repelled : nor so far as I have observed, has it ever been denied that questions of this description belong to the jury. The presumption we are considering has often been likened to the inference which is indulged that a bond or mortgage has been paid, when no interest has been demanded within 20 years. Such questions must be submitted to the jury to draw the proper conclusión from all the circumstances of each particular case. *Jackson*v. *Wood,*12 Johns. R.0242. *Jackson*v. *Sackett, 7*Wendell, 94. (In Sivett v. *Wilson,*3 Bing. 115, the question was on a right of way: the defendant pleaded a grant, and the judge left it to the jury to say, whether they thought the defendant had exercised the right - of way uninterruptedly for more than 20 years, by virtue of a deed ; and Best, C* J.," said the direction was perfectly right. He added *“*I do not dispute that if there had been an uninterrupted usage for twenty years, the jury might be authorized to presume it originated in a deed; but even in such a case a judge would not be justified in saying that they must, but that they may presume the deed.| If, how*316ever, there are circumstances inconsistent with the existence of a deed, the jury should be directed to consider them, and to decide accordingly.” In *Hill*v. *Crosby, 2*Pick. 466, the court set aside the verdict, although they thought it right, because the question had not been referred to the jury.

In a plain case, where there is no evidence to repel the presumption arising from 20 years uninterrupted adverse user of an'-' incorporeal right, the judge may very properly instruct the jury that it is their duty to find in favor of the party who has had the enjoyment; but still it is a question for the jury. S The judge erred in this case in wholly withdrawing that question from the consideration of the jury. On this ground, if no other, the verdict must be set aside.

The bill of exceptions presents another question which may ' probably arise on a second trial, and it seems proper therefore to give it some examination.

. As neither light, air nor prospect can be the subject of a . grant, the proper presumption, if any, to be made in this • case, is, that there was some covenant or agreement not to obstruct the lights. *Cross*v. *Lewis, 2*Barn. & Cress. 628, per Bayley, J. *Moore*v. *Rawson,*3 Barn. & Cress. 332, per Littledale, J. But this is a matter of little moment. Where it is proper to indulge any presumption for the purpose of quieting possession, the jury may be instructed to make such an one as the nature of the case requires. *Eldridge*v. *Knott,*Cowp. 214.

Most of the cases on the subject we have been consider- ^ ing, relate to ways, commons, markets, water-courses, and the like, where the user or enjoyment, if not rightful, has been an immediate and continuing injury to the person against whom the presumption is made. His property has either been invaded, or his beneficial interest in it has been rendered less valuable. The injury has been of such a character that he might have immediate redress by action. But in the case of windows overlooking the land of another, the injury, if any, is merely ideal or imaginary. The light and air xyhich they admit are not the subjects of property beyond the^moment of actual occupancy; and for overlook*317ing one’s privacy no action can be maintained. The party shas no remedy but to build on the adjoining land opposite the •offensive window. *Chandler*v. *Thompson,*3 Campb. 80, . *Cross*v. *Lewis,*1 Barn. & Cress. 686, per Bayley, J. Upon what principle the courts in England have applied the same rule of presumption to two classes of cases so essentially different in character, I haveibeen unable to discover. If one commit a daily trespass on the land of another, under a claim of right to pass over, or feed his cattle upon it; or divert the water from his mill, or throw it back upon his land or machinery; in these and the like cases, long continued ac-' quiescence affords strong presumptive evidence of right. But in the case of lights, there is no *adverse user,*nor indeed any use whatever of another’s property ; and no foundation is laid for indulging any presumption against the rightful owner.

Although I am not prepared to adopt the suggestion of Gould, J. in *Ingraham*v. *Hutchinson, 2*Conn. R. 597, that the lights which are protected may be such as *project*over the land of the adjoining proprietor; yet it is not impossible that there are some considerations connected with the subject which do not distinctly appear in the reported cases. See *Knight*v. *Halsey, 2*Bos. & Pull. 206, per Rooke, J. 1 Phil. Ev. 125.

The learned judges who have laid down this doctrine have not told us upon what principle or analogy in the law it can be maintained. They tell us that a man may build at the extremity of his own land, and [that he may *lawfully*have windows looking out upon the lands of his neighbor. 2 Barn. & Cres. 6*6. 3 id. 332. The reason why he may lawfully have such windows, must be, because heroes his neighbor no wrong; and indeed, so it is adjudged as we have already seen; and yet some how or other, by the exercise of a law-j ful right in his own land for 20 years, he acquires a beneficial interest in the land of his neighbor. The original proprietor is still seized of the fee,"with the privilege of paying taxes and assessments : but the right to build on the land, without which city and village lots are of little or no value, has befen I destroyed by a lawful window. How much land can thus be *318rendered useless to the owner, remains yet to be settled. *2*Barn. & Cres. 686. *2*Carr. & Payne, 465. 5 id. 438. Now what is the acquiescence which concludes the owner? one ^as tresPassed upon his land, or done him a legal injury of any kind. He has submitted to nothing but the exercise of a *lawful*right on the part of his neighbor. How then has he forfeited the beneficial interest in his property ? He has neglected to incur the expense of building a wall 20 or 50 feet high, as the case may be—not for his own benefit, but for the sole purpose of annoying his neighbor. That was his only remedy. A wanton act of this kind, although done in one’s own land, is calculated to render a man odious. Indeed, an attempt has been made to sustain an action for erecting such a wall. *Mahan*v. *Brown,*13 Wendell, 261.

I There is, I think, no principle upon which the modern |English doctrine on the subject of lights can be supported. |lt is an anomaly in the law. It may do well enough in ’England; and I see that it has recently been sanctioned with some qualification, by an act of parliament. Stat. 2 & 3, Will. 4, c. 71, § 3. But it cannot be applied in the growing cities and villages of this country, without working the .most mischievous consequences. It has^iever, I think, been deemed a part of our law. 3 Kent’s Comm. 446, note (a.) Nor do I find that it has been adopted in any of the states. The case of *Story*v. *Odin,*12 Mass. R. 157, proceeds on an entirely different principle. It cannot be necessary to cite cases to prove that those portions of the common law of England which are hostile to the spirit of our institutions, or which are not adapted to the existing state of.tjijngs in this country, form no part of our law.' And besides, it would be difficult to prove that the rule in question was known to the common law previous to the 19th of April, 1775. Const. N. Y., art. 7, § 13. There were two *nisi prius*decisions at an earlier day, *(Lewis*v. *Price*in 1761, and *Dongal*v. *Wilson*in 1763.) but the doctrine was not sanctioned in Westminster Hall until 1786, when the case *of Darwin*v. *Upton*was decided by the K. B. 2 Saund. *319175, note (2.) This was clearly a departure from the old law. *Bury*v. Pope, Cro. Eliz. 118.

There is one peculiar feature in the case at bar. It appears affirmatively that there never was any grant, writing- or agreement about the use of the lights. A grant may under certain circumstances be presumed, although, as Lord Mansfield once said, the court does not really think a grant has been made. *Eldridge*v. *Knott,*Cowp. 214. But it remains to be decided that a right by grant or otherwise can be presumed when it plainly appears that it never existed. If this had been the case of a way, common, or the like, and there had actually been an uninterrupted adverse user for 20, years under a claim of right, to which the defendant had submitted, I do not intend to say that proof that no grant was in fact made would have overturned the action. It will be time enough to decide that question when it shall be presented. But in>'this case the evidence of Stebbins, who built the house, in connection with the other facts which appeared on the trial, proved most satisfactorily that the windows were never enjoyed under a claim of right, but only as a matter of favor. If there was any thing to leave to the jury, they could not have hesitated a moment about their verdict. But I think the plaintiffs should have been nonsuited.

The Chief Justice concurred on both points.

Cowen, J., only concurred in the opinion that the question of presumption of"á~grañt"slTóüld have been submitted to the jury. - ■ •

New trial granted.