The Daily empire. (Dayton, Ohio) 1865-1867, 1866-01-20
La w R RI.
SUPERIOR COURT.
JUDGE HAYNES.

shop by defendant, adjacent to plaintiffs
premises. Plaintiffs also asked that defend
ant be enjoined from interfering with said
windows, plaintiff having had undisturbed
| possession for over thirty years-detendant
denies such possession, he also denies that
there are ancient windows through which
light and air did or ought to have entered,
or that the erection of his shop upon his
own premises was wrongful or malicious,
and denies plaintiffs having any right to
the same. He alleges that plaintiff con-
sented to the erection of said building and
| expressed satisfaction in regard to the
same, which is denied in to to by the plain
tiffs.
Tho case was given TO the jury on the adj
Journment of the Court yesterday noon.
Judge Haynes, In his charge, called the at
tention of the jury to the following points:
by the common law of England n man
may acquire by prescription, thatis, by use
aud occupation for twenty-One years or
over the right TO the unobstructed use of
light and air through windows in his house
overlooking the premises of an adjoining
owner. Such windows are called 'ancient
lights" and the adjoining owner would
have no right by the erection of buildings
or other distractions to interfere with the
natural flow of light and air through such
windows on his premises.
On this question there has in this country,
been great diversity in the decisions Of
the Courts of different States. Some have
followed strictly the English decisions, but
in most of the States this doctrine of
"ancient lights" has not been considered
applicable to n new country like ours, owing
to our rapid growth, changes and improve
ments. In this opinion this Court concurred
and held, that in this State no such right TO
the use of such lights could be acquired by
mere prescription. But there were other
modes in which such right could be ac-
quired by grant or deed 1t might also be
acquired by parol license or verbal per-
mission by the owner of the adjoining lot
for the construction and use of said lights
1t was time that a mere verbal contract
granting such right could not be enforced,
but where such verbal permission had been
given by one party, and acted upon by the
other, who had in good faith under such Ii
cense, constructed such windows, he there
by acquired perfect right to their free and
unobstructed use and enjoyment. If in this
case Abram Darst, the original owner. gave
such license to Jacob Stutsman, the hus-
band and father of the plaintiffs, under
which the windows In question were con-
structed, the plaintiff would have a right of
action against defendant for wrongfully OBJ
structing them. But the plaintiff must
establish this license by proof. No such Ii
cense can be presumed from the fact that
the windows have been so constructed and
1t Is the undoubted right of the owner of
building to construct as many windows
as he chooses overlooking the adjoining
premises, and the owner of such premises
is without remedy to prevent IL, except by
some distractions on his own land. But
the party to whom such license is given,
must act upon it strictly and not exceed it.
The right to construct and use two windows
would not authorize the party to construct
and use other windows, or any windows
except those particularly designated in the
license. The plaintiffs must show that the
windows which it is claimed the defendant
Obstructs were the identical windows in
cluded i'm the license.
On the question of notice, the Court held
that ifthe defendant had bought this prop
erty without notice of the rights of the
plaintiff, he would not be bound by them.
but the fact that he found the windows al
ready constructed aud overlooking the
premises and also found the cOrnicc and gut
ter projecting over it. several inches was
sufficient notice to put him on inquiry. If
the jury found for the plaintiffs, they could
only award to them damages for injuries
sustained up to this date and not Tor pros
pective damages, on account of the contin-
tinued obstruction, for the defendant might
tear down his house, and so remove the OBJ
struction tomorrow.
| Counsel for defendant took exceptions to
the charge of the Court.
| The jury returned verdict for one hun
dred dollars damages in favor of the plain
tiffs. Howard & Son for plaintiffs and
Jordan and Vallandigham for the defen-
dant.