Worcester daily spy. [volume] (Worcester [Mass.]) 1850-1888, 1857-01-20

LIGHT AND AIR.-The vexed question with
regard to the right of one proprietor Of piece
Of real estate to overlook, travel upon. or
drain through the land of neighbor, was
settled for all future legal action in Massach-
usetts by the law of 1852, which decided that
no.such advantage could be obtained unless it
was bargaineI and paid Tor. But under the
Indefinite old law, case came before the SUI
perior Court of the county of Suffolk yester-
day, in which the plaintiff sued for damages
for the closing of a window in his fourth sto-
ry, by the rebuilding of house adjoining,
higher than that of the previous structure.
1t was not pretended that the defendant had
encrosched at all upon the land Of the plain
tiff, though in running up his building he
had cut off the light aud air of the latter, in
closing window OF one of his upper rooms
The case came before Judge Huntington,
who gave to it much consideration as a ques-
ton of law, and his charge to the jury was in
substance as follows:
The plaintiff claims an easement in the adj
joining estate of the defendant, to subject it
to a servitude or burden. The burden rests
upon, him 10 prove that the essential inere,
dents constituting this servitude or burden
exist Twenty years, use and enjoyment of
the light and air prior to 1852 is not sufficient
The plaintiff must not only prove the use for
twenty years prior but that it was continued
and uninterrupted is not SO much in dispute as
that it was adverse What is an adverse nos
session, or what in this case must the plain
tin posse sion have been to render it adj
verse: .rl 4,Ife
Possession, to be adverse, must be under a
claim OF right-not by reason Of any permis-
sion, license, courtesy, or favor of the owner
1t must have been with his knowledge and
acq uiescence--not in the use, but in the claim
OF right. Adverse possession is possession
IN opposition to, conflicting with, OF invading
some substantial light of the owner of the es-
tate IN which the easement is claimed-work-
ing some wrong, both in its commencement
and continuance-depr him Of some ben :
ehcial enjoyment of his estate. An adverse
use cannot arise from mere permissive en-.
joyment, nor from mere omission by the
owner to give notice that he disputes the
right.
Judge Huntington stated further that q
similar case had alredy come before the Su-
preme Court OF the State. and which had been
decided IL the same way by one judge, whose
colleagues OF the whole Court agreed with
him, but which case had not been officially
reported. IL was stated before the Jury
that the case would go up to the higher
Court, however il might be decided III the
Superior Court. The jury decided In favor
Of the defendant, and against any prescTiptiye
right of the plaintiff.
The law of 1852 was generally received
with much favor, as il settled question Of
right against an uncertain demand Of privi-
lege. sThe above mentioned action was
brought under the law in the Revised Stat
tuies OF Massachusetts which stated that no
person could have an adverse claim against
his neighbor for any easement unless il had
been enjoyed for twenty years, and by i'm
plication, with the knowledge, consent aud
concurrence of the opposite party Bost0s
Courier. n I'll. ~ IL : - + Il n 4