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

In the Court OF Appeals last FRIDAY IN
following opinion of the court was dcliy
cred by Judge Berkshire, president "
the Court.
Gilmore +. Sims
49,
Robert Powell
The PRINCIPLES to be settled in this cast
ARE certainly important to the parties tc
he Immediately affected by our decision
but they are much more SO in their wldGl
application to the citizens at large, AnC
vs. the rule established in this case is L
apply 10, and govern future cases in thi!
State, the case has been examined AM
considered with the attention and carr
which its Importance would seem to re
Quire,
Each Of the parties to this controversy
claim under deeds from u common vendor
Uwen D, DOwney, who, il appears, wa'
the owner Of both tenements ut the time
ol the sale and conveyance to the ap
pelees; which sale and conveyance were
prior to that, to the appellant.
DOwney, 1t also appears, built both Of
the houses, the one conveyed to the up
pCllec first, and afterwards occupied then
together as q hotel But at the time o.
and for some time prior to the sale to the
appellee, they were separately occupied
by different persons or families and IOI
different purposes, In the deeds to the
parties, the boundaries of their respective
premises arc accurately described by metcs
and bounds, and the partition line OF
boundary between these Is called for and
clearly defined in each of the deeds
II further appears that each Of the par.
lies examined the premises, and had full
notice Of their location and condition at
The time Of their purchases. Also that
the wing or rear building of the appel.
lees house extends southwark from the
main building, along and Immediately
upon the division line of the two proper.
ties, the windows in said wing being in
the west side and overlooking the open
space and yard Of the appellant so con.
,cycd to him by Downey; and that the
appellant when enioined by the appellee,
was erecting, on his own ground, porch,
extending from his own building along
the said wing TO the street in the rear OF
the building which porch, when com.
prcd, 1t Is conceded would close mp said
windows and thereby exclude the flow
of light md air through the wing and
rear building
The case was fully and ably argued and
uNr hbOrs in It's examination, thereby
much relieved and facilitated row.
On behalf of the appellee, It wNs strong.
" and earnestly maintained that by his
Iced from DOwnOy, he acquired, by an
nJltd OrHt, IN Gasment of light and air
through the windows In controversy, and
that a perpetual restriction and incum.
brancc was thereby imposed on the nd
oning property Of the appellant, which
made Il unlawful for him to Obstruct and
close the windows, by the erection Of tho
porch now In dispute.
On behalf Of the appellant 1t was in.
sisted, with equal earnGstnGss, that under
the circumstances of this case, no such
right or easement, under his deed, passed
Ia the appellee, and that he had no right,
therefore, 10 hinder or restrain the appel.
liant from making any necessary or useful
improvements on his own property, in.
Guiding the porch In controversy.
II was also cOntended by the counsel
tor the appellee, that this case should be
determined upon the doctrine and princi-
pies Of the common law, rs established in
England, in reference to Casments Of light
III similar cases; while on the other side,
il was maintained that the English doc.
irne ~ applied to similar cases there, Is
Icnngnant to and inconsistent with our
institutions, and unsuitGd and inappropri.
ate to the state OF things in this country,
and ought not, therefore, 10 he applied In
this instance, and that the rule, rs cstah.
iIshcd by the American cases, should be
applied to and govern this case. And, in
ny view, our decision must depend main.
" on tho fact whether we follow the M.
lh0rltios Of the one country or tho other.
For II cannot be questioned, that II we ad.
here to and arc governed solely by the
rule as established and applied under
the English authorities in that country,
the appellee here must prevail while on
the other hand, II Is clear that II we adopt
and apply the rule rs settled by the de-
ritlrh weight Of the American cases and
authorities independent Of the effect Of
our TegarNtlOn' acU, the case must be dc.
tcrmincd for the appellant
II now, therefore, becomes material to
inquire how iar we are bound under the
constitution, to adopt and apply the
English rule; and II moi so bound, wheth-
or II or the prevailing doctrines rs estHb.
l'hcd in this country, ought to be ap'
piled in this instance.
70 what extent, then, Is the common
law Of England in force in this State?
BY section 8, Of article II, Of tho Con.
stiLition, 1t Is provided that "such parts Of
The common law md the laws Of the
State Of Virginia rs are in force within
the boundaries of the State Of West Nir.
Fnia, when this Constitution goes into
operation, md not repugnanl thereto,
Nhal be and continue the law Of the State
until altered or repealed by the I,cgisla.
nre"
The Constitution Of the State NJ Nir.
ginla, In force ut the time Of the creation
VI the State, as well rs all previous Con.
stitntons VI the former State, contained
similar provisions, adopting the common
law so lar rs its principles were not re-
pugnanttO said Constitution. And ] be
eyc quite all ut the States, by like pro
Visions, have plso adopted the common
law 50 lar rs IL is not inimiCal To thesI
Constitutions. s " .
But although so adopted, ii was early
hpll hv thn r0iirIu If Niruinia--aa wnl