The daily exchange. [volume] (Baltimore, Md.) 1858-1861, 1858-03-05
Reported for the Daily Exchanged
COURT OF APPEALS OF MARYLAND.
JUNE TERN, 1851.

with cares projecfinj over the adjoining lot so as
throw thereon the water from the roof tccny gears
acquiescence in this encroachment is sufficient to lay
the foundation for presuming grant to use
the adjacent.
3. But an injunction to prevent the obstruction
of such right will be dissolved unless it clearly
appears by the proof that such obstruction would
infict upon the rights of the complainant an impor
tant and irreparable injury, such as could not be
fully compensated by an action at law.
Eccleston, j., in delivering the opinion of the
court upon the above points, SAYS:
''Concedng it to be true that the defendants
erecting wall upon their ground, to
which the complainant had neither a legal nor
equitable title still it is said the Injunction should
be sustained because the wall, when finished would
etfecually shut up, darken, and render utterly
less certain lights and windows in the building
upon the lot purchased by him, which windows
were ancient and have been used free of any OBJ
structlon for more than twenty years, admitting
light and air across and over the premises now
claimed to be owned by the defendants. This right
as being based upon more than twenty years user
was not urged with much earnestness by of the
solicitors for the appellant, but was by the other.
"On behalf of the defendants it has been said the
averments in the bill not sufficient to sustain
such claim. But deem it unnecessary to inquire
into the character OF the averments or the suti-
cheney of the evidence on the subje It: because we
do not consider applicable to the cities and vii
lagos in this State such right to lights by twenty
years of them, in some of the American
has been called the ''Modern English Doctrine"
To adopt it would greatly interfere WITH and i'm
pede the rapid changes and Improvements which
are here constantly going on.
''The question has never been settled by decision
of our Court of Appeals directly on the subject
The only case having any bearing upon it is that of
Wright Us. Freeman, II. J. AT, where the late
Judge Waiter Dorsey says, by way Of illustration,
in regard to the question there under consideration:
$50 the enjoyment of lights for twenty years. with
the acquiescence of the owner of the fee of the ad
joining ground is such decisive presumption of
right by grant, or otherwise unless contradicted
aynainpl. hal he " uobt IN hall hove
however, the question not in reference to lights
The inquiry was whether from twenty years non
user OF private right of the way. the jury could
presume release OF it. And the Court held that
the adversary user of right of way over the lands
OF another for twenty years would be Il sufficient
foundation to presume that the right originated in
grant, and consequently for the purpose of quoting
possession, it must follow that twenty years non
user OF the right would extinguish it, BY creating
presumption of a release.
'.Making use of a mans land without his consent
or by authority of law, as road or way is such an
encroachment upon his property gives him a
right of action for every such act and if he submits
to the. user for more than twenty years without oh
lection, it may well be presumed he has been pre-
vented from Directing in consequence of the user
being rlghtul. 1t is not the common course of men
to submit to having their property appropriated to
the constant or frequent of others having no
authority to do so, and yet take steps to prevent
1t. But where makes window in his own house.
overlooking the open grounds of B. it is no
the property of the latter. Neither is it an act
for which he can maintain action or resort to
any means by which he compel the former
to shut up the window And vet under the
English rule, if the window remains open and
unobstructed for morethan twenty years. B
cannot afterwards erect a building on his own
land, if it obstruct the light. To prevent such a
consequence the rule does not give him any rght of
action or legal proceeding, but his only remedy is
the seemingly ll-natured one of rendering the win
dow of his neighbor useless by building wall or
other obstruction for that purpose alone if at the
time he has no wish to build a house on his own
property; and if the window be of considerable
height, the expense of obstructing it might be
equivalent or nearly so, to the value of the unim-
proved or vacant land designed to be protected =
The effects and legal consequences resulting from
the user OF way and that of light are so essen
TALLY different we do not perceive the proprety of
holding that the twenty years rule which is appli-
cable to the former, should not be applied to the
latter.
'The question was presented and decided in
Smith ps. White, in Baltimore County Court by
Chief Justice Archer and his Associate. r. b. Ma
gruder, Judges of much distinction. In their opin-
ion they say: "although the law NAV now be re-
garded as settled in England, since the modern de-
clsions there, that notwithstanding the windows
whose obstruction is now contemplated by the de-
fendant, Mrs White, are not what are strictly called
ancient, yet, Ito use the expression of Tindall Oh
j., IN the case of Pen0arden as. Ching, Mood d.
ualtk. 400, and same case in % Sargt d Lowb 34Ol
they are such the law in indulgence to lights has
IN modern times so called, and to which the com
plainant would have right, if the question now
before us were before Court in England vet we
are not satisfied that upon principle, the common
law as it existed at the time of the separation of
Maryl land from the mother country, and at the
adoption of our Bill of Rights recopnized tho mod
ern doctrine in England on the subject of lights
They refer to Wright as. Freeman as the ONLY case
In Maryland bearing upon the subject And in re-
gard to the language of Judge Dorsey, already quo
ted by us, they very correctly consider it as not of
bpcausp he -bo
Their twenty years would give right to lights
was not before the court In the opinion of those
two Judges, they likewise hold that the reason upon
which the rule established in England rests is moi
the same as that which prevails to sustain defence
OF adverse possession in eectment or presumption OF
grant arising from actual adverse occupation of g
water course, way, or fishery. And they adopt the
ruling of the Court in Parker o. Foote 10 Wnd
319.
'W edeemit unnecessary to enter into an elaborate
examination of the authorities, because in Porke,
az. Fooe, Judge Bronson has reviewed them anc
has given the subject careful and able inyestip
ton. His reasoning, in opinion, is so correc
that we cannot avoid yielding our assent to the pro
priety of his conclusion, which is adverse to tn,
view insisted upon by the appellant. The Judg,
says There is, think, no principle upon which
the modern English doctrine on the subject of light
can be supported. 1t is an anomaly in the law
1t may do well enough in England. And see il
has recently been sanctioned, with some qualifca
ton, by an act OF Parliament, Statute g. 3, VAL 4th
oh. II, sec. 3. But it cannot be applied in tn,
growing cities and villages of this country withou
working the most mischievous consequence;
aents CON- 446, Note Gay. Nor do l find that i
has been adopted in any of the States. The case o
Story rs. Odin, II BASS. l57, proceeds on an en-
tirely different principle See also, Myera ps Gem
'aeH 10 Barb 537; Pierce rs. Fer,cald, &c Name
436; hgrahan Us. Hutchinson, 2 Conn. 597; Maple
rs. Bu,,einkle, 5 Richardson's Lac Rep 81: Ho
rs. SterreH Watts, 331.
"Another ground relied on by the appellant il
support of his right to the injunction is based upo
the doctrine recognised in the decision of Story Us
Odn, and in Sun,ner's Rep. SOL, United States Us
Appleton. According to those cases, if man
owner of two adjoining lots of land, one of which
vacant, the other having upon it a building witt
nights overlooking the former, and he sells the lat
ter without any exception, or any reservation of
right to build on the vacant lot or to stop the light
in the building sold by him, he cannot afterward
lawfully obstruct those lights And as he cannot d
this himself so neither can he convey to another RI
right to do it.
g From an examination of the authorities on thi
subject it clearly appears that the principle is on
applicable where the vendor of the house havlni
me nights was, at the time of SALE not only owne
thereof, but likewise owner of the adjoining vacan
lot. Now 1t might be conceded that the doctrine O
the cases referred to is the law of MARYLAND an,
still 1T would not sustain the appellants claim t.
nave his lights protected by injunction His lot ant
that OF the defendants at the time of his purchase
were not owned by the same persons 1t is tru
both lots were sold by Fite, but he was acting in tn
character of an agent or of representative Anc
1t appears from the evidence that the parties fo
whom he acted as owner of Lot No. were not tn
same as those having an interest in Lot No. l. Som
OF the parties had interest in both but other
were part owners of No. without having anv inter
est in the other lot, and rice rersa Under thes
circumstances, the doctrine above stated is not ap
plicable to this case.
90 The appellant insists that he is entitled to relic
by injunction, on account of the injury he wou
sustain by the erection of the defendants wall i
would injuriously interfere with the caves of hi
back building and the drainage of water therefrom
The allegation is that for forty years prior t.
the sale, the caves and roof of the bodybuilding hal
projected over the piece of ground in controversy
and the water falling on said roof had been accus
toned to run and drain over said piece of ground
and the h.d vacant lot adjacent that the
disputed piece of ground in contact with The raa
wall OF the complainant ack-buiding, which wall
If carried up as designed, would interfere with an,