The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1871-08-23

The usual ioTm Ofthe deeds in that country,
or was considered m caSment acquired
by prescription AM has passed rs IN up
purfrnancc with the tenement; m rs Al
iR,plitd grant founded on necessity, oI
whether it was intended 10 lay down M
arbitrary rule which should be intleXibl,
and without qualification, can not be de
tCrmincd.
The rule was first laid down by tro d
OF the Judges, TwyGdcse and Wyndam
in the Of Palmer Is. Fletcher, while
Eynge j. doubted and Hyde C. j., was
absent, The proposition decided is brief
" stated TO be, that "ifa man erected a
house on his own land and amer sell the
house to one, and the lands adjoining tC
another, the other cannot, by putting
piles of lumber on his land ObstrlCt the
light Of the house, though It be a new
house, no more than the builder himself
could" And the only reason assigned i
that lie (the vendor "Can not derogatC
from his grant" For the lights arc a
necessary and essential part Of The house.
The next case, Cox rs, Matthews, simp.
ly Ndheres to the case OF Palmer o.
Fletcher, and the proposition Is stated by
Lord Hale, whOpronOunced the judgment
in the same form and nearly in the same
language rs in the first case, assigning no
reason except the remark that II was II
plain case "lOr the defendant fixed boards
TO the plaintiffs house" The proposition
Is also put in the same form and in simi-
lar language by Ch j. Hault in Roswell
~. Price, that followed soon Riter The
controversy In this case was between
landlord and tenant, and 1t Is stated
in the opinion or Judgment that 1t
was Rgled W all he Jmi9es that,
formerly the way was 90 declare
of ancient lights and ancient messuage,
but now that was altered" And Palmer
S. Fletcher and Cox az. Mathews are
cited to show that 1t was necessary in
those eases 10 aver ancient lights and
messuage. The facts Of this case are not
given; but iromR note of the reporter It
appears that an objection was raised, by
motion In arrest Of Judgment, after YER
dict, because the declaration failed TO
aver ancient lights and messuage, and
that it was held by tie wh0le Court that
"being after verdict it shall be intended
that II was given on evidence on the trial
tllat the house and windows were dncleHkn
From this II would seem that the cases
are mixed up and confused with the early
doctrine of ancient lights by prescription,
and TINT even In these cases It was neCes.
sary and Indispensable toa recovery for
stopping the lights, if not to aver it in the
declaration, to prove on the trial that the
house and lights were ancient. And ii
may therefore be, from anything that ap.
pears to the contrary, that In the cause
above referred TO the plaintiffs, in the
view of the Court, had acquired an case.
ment Of light by prescription under the
statute reducing tho period necessary 10
acquire such right to twenty years. not
withstanding II Is said in some the right
in suCll cases existed, though the house
or mesSuage be new.
A doctrine OF 80 much practical IN.
pOrtance thus established, unless founded
on wisdom and sound policy, 1t appears
to me would have but little TO recon-.
mend II to the favorable consideration of
Courts ut the present day, and ought not
to be adopted and applied here, unless on
account Of It's intrinsic worth 1t be con.
sidcrrd the proper better RI le, applicable
to the cases in this country.
Turning to the American authorities, |
think there can be no installing the ten.
dcncy Of the case II will be found that
in nearly oil the States, In which the
question has been raised, the English doc.
Irne of easements of light by prescrip-
tiOn-whiCh appears to be so tenaCiOusly
adhered to In that country-hAs been
reprObated and discarded altogether as
llnsuitcd to our people and condition,
and inconsistent with the exist
ing system Of registration in this
country. That in u lew instances
only has the principle established in
Palmer rs. Fletcher and that class of cases
been acquiesced In and followed, while 1t
has been greatly qualified in most Of the
cases where the. question arose, and llmi.
ted to cases Of strong necessity. And
there Is also a manifest tendency to reject
altogether the doctrine OF implied grants
Of easements of light and limit and con.
fine such rights to express, grants so that
the rights Of tho parties would De deter.
mined by the lace Of the deed under
which they hold. e Wnshburne on real
estate 3lG1s top; Myers @. GammCll, 10
Barham, 537; Parker "a. Foot, 10 Wendell
300; Morrison r.. Marquordth "a Iowa,
Il. %; lIaverstick ps. Spe, 81 Pa st.
36S Ray rs. Lines 10 Wendell.
This prevailing doctrine here would
seem to he, that an implied grant Of an
casmcnt of light, will be sustained only
in cases of real and obvious necessity,
md will be denied or rejected in cases
where 1t appears that tho Callse Of the
dominate estate con, at reasonable cost
md expenditure have or substitute other
lights to his building, so that he may con.
tinue and have Unreasonable enjoy.
ment Of the same leaving tho owner Of
the scrvient csthte, also to the enjoy.
ment Of hlS own property, free from the
restriction and burden that could other
wise be imposed upon it. .,s..
In The application Of this principle
doubtless some embarrassment will some
times be realized in determining the de-
gree of necessity that ought to be requlr-
cd to support the right 70 the easment,
and each case must necessarily be settled
IN The flcts md circumstances surround.
ing IT, ,
This rule. it appears to inc, is dictated
by wisdom and sound policy, and sus.
tnined by the plalnest principles Of jus.
tlco and evuity and ought therefore TO
be applied and enforced In this country.
II is IN accordance with the doctrine,
laws, and well established both In Eng.
land and this country, In reference TO i'm.
piled grants Of easments Of ways founded
on necessity Saunders r. SEQ, Note 0;
Holmes ~. Elliot Q Bling. 40 Proctor M.
HodgsOn, 30 Eng Law and 0E4, 453;
Washburn on Bas. and Sew. $50 I, and
authorities there cited. fs.a
Why should the rtile not he the same In
both cases Is there any difference in
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