#### Samuel M. Wilson & Mary C. Wilson v. Mordecai Cohen.

Bill for an injunction — complainants alleged “ that there is a window on the west side of their house, which has been used as an ancient light for more than *thirty years,*and that there is attached to the said window, on the outside thereof, a hanging shutter, which has been used for closing the same, and that the erection of the defendant’s building, according to his proposed plan, will obstruct the light and the opening and closing of the said shutter, and will prevent the use and enjoyment thereof.” Held, not to be such a *material injury*to the *comfort*of the existence of those who occupy the house, as to demand the intervention of this court. Bill dismissed.

*Before JOHNSTON, Chancellor, at Charleston, June Term,*1838.

The complainants’ house has been built about thirty years, and the wall stands on the western line. On the western side stood a small dwelling house of the defendant’s, which had been erected more than sixty years, and was burnt down in 1836. Above the roof of defendant’s house, a window is cut in complainants’ wall, and a large iron shutter, about a foot wider than the window, is fastened to it, and is very seldom used, but is sometimes opened to give light or air to the staircase. Defendant proposed to build a new house on the old foundation, and to raise it a story, which would block up complainants western window. The bill is filed for an injunction.

The defendant insists on the right to raise his house ; and the question is, whether the complainants have a right to prevent him from adding a story to his house : and whether the court will interfere by injunction, for a light of so little value.

His honor Chancellor Johnston, heard the case on the 8th June, 1838, and pronounced the following decree:

“ It is admitted that the light and shutter of the plaintiff’s house mentioned in the bill, have existed and been enjoyed by the occasional use of them, whenever wanted, for upwards of thirty years : *81And on the other hand, it is agreed, that the structure which the defendant is putting up, is upon the foundation of a building which existed from 1763 until 1836, when it was burned, the roof of which did not reach to the plaintiffs window in question.

The case of M’Crady v. Thompson, Dud. R. 131, establishes that the uninterrupted enjoyment of lights for more than 20 years, gives such a prescriptive right to them, as to lay the ground of an action against the owner of an adjoining lot, if he obstruct them. This seems to be decisive of the question of law. Nevertheless, I should if it had not been declined, have retained the bill until the legal right was established.

It is contended, that as the defendant is building on the foundation of a structure older than the plaintiffs, he is entitled to exalt his new building to any height he pleases, even if by so doing he elevates it above that of his old building, and thereby obstructs the lights of the plaintiffs : and in support of this position, cases have been quoted to show, that by the custom of London, this right exists. But I am of opinion, the custom of London does not govern here. The instances in which it is supposed to prevail, mentioned by defendant’s counsel, do not support him. If the custom prevailed here in the instances mentioned by him, there would have been no need of legislation. But statutes were enacted, and the custom has only been resorted to for the purpose of giving construction to them. The common law right, by prescription, is therefore all that we have to govern us in the case before the court. The case of M’Crady v. Thompson, gives us the law of this case, and however much I may be opposed, (and I sincerely am so,) to the converting of a gratuitous privilege into a right, against him who has generously allowed it, and however I may be opposed, on the ground of policy, to the prescription claimed in this case, I must obey that decision.

That case and all others upon the subject of prescription, lay the foundation of the right, in a supposed grant from the other party. If, therefore, we suppose that the defendant executed a deed, by which he granted the perpetual right to the plaintiffs, to use their light and swing their shutter above the roof of his house, we have the whole case. There can be no difference on principle, between *82raising a *grant*by prescription, operating over another property at the surface of the earth, or at any given distance above it.

It is ordered, that the defendant be forever enjoined from erecting a wall within such distance of the plaintiffs house, as to obstruct the swing of the plaintiffs shutter, mentioned in the pleadings.— That will allow, as is admitted, the proper degree of light.

I am much inclined, in all such cases, where a right is claimed to shut another out of the free use of his own property, to make the claimant pay the costs. But here are minors, who might not, if of age, make the claim. Let each party pay his own costs.”

From this decree the defendant appealed and insisted :

1. That no precedent of a claim, such as the complainants make, can be found in our country: and that being a case of the first impression, the court is at liberty to adjudicate, according to the rules of common right and justice, and to look for those rules in the policy and practice of the city, and to refer to the custom of London, as evidence of the conclusions of reason and experience, in the application of those rules to a similar state of things.

2. That the remedy in chancery, by injunction, is not co-extensive with the remedy at law, by an action of trespass on the case; and that the insignificance of the *right, even if it does exist at law,*is a sufficient reason why the plaintiffs bill should be dismissed.

Cuma, per Dunkin, Ch.

Since the case of the Fishmonger’s Company v. East India Company, decided by Lord Hardwicke, and reported 1 Dick. 164, 165, it seems to have been well understood, that the foundation of this court’s jurisdiction, in cases'of this character, is the probability of irreparable mischief, that sort of material injury by one to the comfort of another, which requires the application of a power to prevent, as well as to remedy the evil. — ■ In the Attorney General v. Nichol, 16 Ves. *342, Lord*Eldon says, cases may exist, upon which this court could not interfere, yet an action upon the case might be very well maintained: assuming the defendant had no right to erect the obstruction, that from circumstances of enjoyment, usage or interest, some contract could be implied, that he should not build upon that portion of his premises, and that an action upon the case could be maintained upon that *83ground, the Lord Chancellor proceeds to show, that these circumstances would not necessarily/ induce this court to interpose by injunction: there is, says he, little doubt that the court will not interpose upon every degree of darkening ancient lights or windows, and that there are-many obvious cases, of new buildings darkening those opposite to them; but not in such a degree, that an injunction could be maintained. After examining the circum*stances, he*dissolved the injunction which had been granted.— This case was followed by the Master of the Rolls, in Winstanley v. Lee, 2 Swans, 336, and by the Vice-Chancellor, in Sutton v. Lord Montfort, 4 Sim. 559, (6 En. Cond. Ch. R. 257,) — and the ground for the intervention of the court, distinctly recognized as “that sort of material injury to the comfort of the existence of those who dwell in the neighboring house, which requires the power to prevent, as well as remedy the evil.” In Van Bergen v. Van Bergen, 3 John C. R. 287, Chancellor Kent says, “Lord Eldon put the jurisdiction of the court upon the ground of material injury, and that of special and troublesome mischief, which required a preventive remedy, as well as a compensation in damages. I have had occasion frequently, since I have been sitting in this court, to allude to this very doctrine, and to consider it as sound.”

Apply the principle of these decisions to the case under consideration. The complainants allege, “that there is a window on the west side of their house, which has been used as an ancient light for more than thirty years, and that there is attached to the said window, on the outside thereof, a hanging shutter, which has been used for closing the same,” and that the erection of the defendant’s building, according to his proposed plan, will obstruct the light, and the opening and closing of the said shutter, and will prevent the use and enjoyment thereof The facts seem to be well understood on the argument in this court, although they were not so distinctly brought to the notice of the circuit chancellor, that the window opened on a stair case, and that a large iron shutter, about a foot wider than the window, was fastened to it; the shutter was only occasionally opened, although the complainants had opened it whenever they thought proper. It can with difficulty be con*84ceived, that to obstruct a window on a stair case, having an iron shutter, which is not generally opened, is such a material injury to the comfort of the existence of those who occupy the house, as to demand the intervention of this court. It is incumbent on the complainant, clearly to make out a substantial grievance. It may be, that an action on the case would lie, and that the defendant must proceed at the peril of the damages which a jury might award. This is a matter for the consideration of the parties. A case has not been made for the extraordinary aid of the court of chancery.

*Petigru*& *Lesesne,*for defendant.

The decree is reversed, and the bill dismissed.

Johnson, Harper and Johnston, Chancellors, concurred.