4 Del. Ch. 643 | New York Court of Chancery | 1873
Two preliminary objections were taken to the relief sought by the bill. One of them was this : that, even, conceding to the complainant, the right claimed, to receive light and air over the defendant’s lot, yet, that the proposed obstruction will not impair his enjoyment of the dwelling house in such degree as to warrant the interference of a court of equity, but that he should be left to seek redress in damages at law. The rule on this point as first announced by Lord Eldon, in Attorney General vs. Nichol, 16 Ves. Jr. 337, and followed in all subsequent cases is, that a court of equity does not in all cases restrain the obstruction of lights by erections on adjoining lands, even though the right is unquestioned or established, but only when the privation of light and air by a proposed erection will be in such degree as to render the occupation of the complainant’s house uncomfortable, if it be a dwelling house, or if it be a place of business, the privation must render the exercise of the business materially less beneficial than it had formerly been. Wymstanly v. Lee, 2 Swanst. 373; Sutton v. Lord Montfort, 6 Eng. Ch. R. 257; Dent v. Auction Mar. Co., 2 Law Reports, Equity Cases,
In the present case the threatened obstruction, if the the complainant’s title be conceded, is sufficient, within the rule, to be the subject of equitable relief. The windows on the north side of the house overlooking the defendant’s lot will be wholly closed. One of these is in the cellar, and, without this window, there could be no means of lighting and airing the cellar. Another window is in the kitchen, at the rear of the dwelling The kitchen would be left with one window on the opposite or south side. Another window is in the attic, at present the only window in that part of the house, though a witness states that other arrangements might be made for lighting that part of the house.
Another, and the most important of the windows threatened, is on the north side of the dining room. There is no window on the south side of the dining room opening out of doors. There was such a window in former years opening into a covered porch, but some sixteen years since the porch was enclosed and made a part of the interior of the house. It so remains. Mr. Stockley, who occupied the house before the porch was enclosed, testifies that, even with the south window opened as it then was, the room could not be comfortably lighted or ventilated without the north window, the porch having a
But it is objected further that the complainant, having an open space on the South side of his house, can, by other arrangements, supply the deficiency of light and air, and that there is therefore no necessity for the interference of the Court. Without stopping to inquire whether adequate arrangements of that kind could be made, it is enough to say that such a consideration is not admissible to affect the right of the complainant to enjoy his property after the manner in which he previously held it. If the English doctrine of ancient lights b.e our law and the complainant has by twenty years user acquired a title to this servitude, most clearly the title gained is the right to enjoy his dwelling as he has so long held it, and he cannot be compelled to alter his house so as to suit the convenience of his neighbor. This principle has been recently adjudged by V. C. Sir Wm. Pagewood in the case of Dent et al. vs. The Auction Mart Co., before cited. There the injunction was sought against the erection of a house at some short distance from the complainant’s house, the effect being partially to darken a window, and one of the defenses was that the complainant could avoid the injury by enlarging his window. But the defense was not sustained. “ The complainants,” says the V. C., “are clearly entitled to “ retain the right as they acquired it without being com“pelled to make any alterations in their house to enable “ other people to deal with their property.” I have found no other case on this point in England or in America, though after diligent search.
We are then brought unavoidably to the main question in controversy, viz.: whether in this State uninterrupted enjoyment, by the owner of a tenement, of light
Incorporeal rights generally, such as ways, water courses, See., are the subjects of presumptive title, arising from twenty years’ adverse user, by analogy to the Statute limiting entries into lands, and that, both in England and in this country. In England this general doctrine of presumptive title to' incorporeal rights or easements includes, as one of them, the servitude of light and air. Does the law of. presumptive title in this State, in like manner, extend to light and air ? That is the question.
A careful reading of all that could be found to bear upon the subject, with much reflection, has led me irresistibly to the conclusion that the doctrine of presumptive title to light and air from twenty years enjoyment, as it was held in England prior to the Statute of 3 & 4 Will. IV (which simply converted the presumption of title into an absolute bar) was a part of the common law of title to real estate in England at the period of our separation from that country, and that by force of the constitution of this State, adopted in the year of its independence, that doctrine became the law of this State, subject only to alteration by the Legislature.
The Constitution of September 20, 1776, adopted, upon our separation from England, and organization into an independent State Government, provides by Art. 25, that “ the common law of England, as well as so much of “the statute law as has been heretofore adopted in practice “in this State, shall remain in force unless they shall be “altered by a future law of the Legislature, such parts only “ excepted as are repugnant to the rights and privileges “contained in this Constitution and the declaration of “rights, &c., agreed to by this convention.”—Delaware Laws, Appendix, page 89.
This attachment to the common law pervaded all the colonies. The Congress of 1774, in its enunciation of certain fundamental rights and immunities which were claimed for the American subjects of Great Britain, placed among the foremost of them the declaration that they were entitled to the common law of England, as also to such English statutes as were in force at the date of their colonization, and which by experience they had found applicable to their circumstances.—1 Story on the Constitution, sec. 158, n.
The provision of our State Constitution of 1776, adopting for the new State Government, the body of the common law, and in part the statutes of England, is the same in substance with the declaration of the Congress of 1774 of what had before been held to be the force of the English common and statutory law in the Colonies ; and the obvious purpose and effect of the 25th Article of the Constitution was to give to the common law in this State by constitutional adoption, the same force under the new Government which in their previous political condition it
We now come to the two principal questions raised by the argument, viz :
(1) —Whether the English doctrine of a presumptive title to light and air from twenty years’ enjoyment, by analogy to the Statute of 21 James I, was part of the common law of England prior to 1776—and
(2) —If so, whether under our State constitution of 1776 it became the law of this State.
First, then, was the English doctrine part of the common law prior to 1776?—
It has sometimes been spoken of as a modern doctrine. Its origin has been referred to two or three judicial decisions made between the years 1761 and 1786, viz : Lewis vs. Price, Dougal vs. Wilson, and Darwin vs. Upton. Even were these cases taken to have first incorporated the doctrine into the English common law they would carry it back to a period anterior to our State constitution of 1776. But it will be strictly correct to say that the English doctrine is in its principle a very'ancient one. The principle is that uninterrupted user raises a prescriptive title to incorporeal rights and to the servitude of light and air as one of these incorporeal rights. This has been a principle of the common law from the beginning. It is true that the prescriptive period or the duration of the user requisite to raise the prescriptive title has been modified
First. It is beyond any doubt, whatever, that the ancient common law of presumptive title to incorporeal rights founded on immemorial user, included and protected the enjoyment of light and air as one species of such incorporeal rights. This was held to be settled law as far back as the 28th Elizabeth, in Bland vs. Manly, cited in Aldred's case, 9 Co. Rep. 58. That was an action at law for the obstruction of the lights of a dwelling house alleged in the narr to have been enjoyed from time immemorial, i. e. time whereof the memory of man runneth not to the contrary, which was the prescriptive period then in force. The obstruction was by the erection of a new building on the adjoining land of the defendant. The Court of King’s Bench sustained the action, holding the prescription, from time whereof the memory of man runneth not to the contrary, sufficient to raise a presumption that, originally, there had been a grant of the privilege of having the windows unobstructed. Following this case and extending through the long interval which elapsed before the prescriptive period was finally reduced to the present limitation of twenty years
But here we meet the fact that the ancient law of prescription has undergone several successive modifications and that the present inquiry is not whether the-servitude of light and air was protected by the common law of the reign of Elizabeth, but whether by the later rule of title presumed from twenty years’ possession, by analogy to the statute of James I.
Second. This brings me to observe a second fact in the history of this subject, which is that under the several successive modifications of the English law of prescriptive title, commencing with the most ancient rule of prescription from immemorial user, up to, and including, the comparatively modern rule of presumptive title from twenty years’ enjoyment, by analogy to the statute of James, the rule, however modified at any period of its history, continued to be applied as well to the servitude of light and air as to any other species of incorporeal rights. The modifications undergone were not such as to narrow at all the scope or application of the rule of prescriptive title as to exclude at any period a species of incorporeal
The policy just stated, of conforming the period of prescription to incorporeal rights with the statutory limitation for real actions, so as to give uniformity to the mode of acquiring possessory titles to both species of real estate, has obtained from the earliest times. Thus when by the statute of Westminister 2 Ch. 46 3 Edw. I, the coronation of Richard I, was fixed as the period of legal memory within which a seisin must be proved in order to maintain a writ of right, it was from thenceforth adopted as the convenient period of legal memory for all purposes and became the prescriptive period for acquiring title to incorporeal rights as well as to lands. So stood the rule until the statute of 32 Henry VIII, fixed a progressive period of limitation, sixty years, for writs of right. After this time, although, as it seems, the period of Richard’s reign continued to be nominally adhered to as the beginning of legal memory for the purpose of working an absolute bar, yet, in analogy to the statute of Henry VIII, sixty years’ possession came to be considered as sufficient evidence of an enjoyment from the reign of Richard I. so as to raise a title unless rebutted by proof that the possession or user commenced subsequently to his reign. As such proof could rarely be made, the sixty years became practically the measure of legal memory.
Third. We come now to notice a third point in the history of this subject, which will show quite clearly that the rule of presumptive title from twentyye^rs’ possession to the servitud 4)^ight apd air was part of the common law many years prior to the American, Revolution. The poifit is^thík whensoever the rule of presumptive title frotn t»v#&fty¿yéá!t-s’ .j^issession by analogy to the statute of James was adopted for incorporeal rights gen
We are now prepared for the direct question ; when did the present English doctrine of presumptive title to light and air from twenty years’ enjoyment become a part of the common law ? The answer is that whenever the
At what time we may then inquire, was the equitable extension of the statute of James admitted as to any incorporeal right ? The precise date it is not easy to determine. So great a reduction of the prescriptive period as from sixty years to twenty years, the Courts, in the conservative spirit of that age, were slow to sanction ; and through several reigns following that of James I, the cases proceed upon the old doctrine of immemorial user. It was not until early in the eighteenth century that, pressed by the inconvenience and often impossibility of proving an enjoyment beyond legal memory, even after sixty years had become the measure of stich legal memory, and also yielding to the importance of a reasonable uniformity in the law of possessory titles to real estate, the courts admitted the equitable extension of the statute of James to incorporeal rights, so far as to hold twenty years’ possession to be, not a bar, but presumptive only of an original title by grant.
Thus far we have considered the question as though no judicial decision holding the servitude of light and air to be within the rule of analogy to the Statute of James had occurred prior to 1776, and even had no such case occurred before that date we should be obliged to hold the doctrine as having been then a part of the common law. But it does certainly appear that before the period of our separation from Great Britain, cases for the application of the new term of twenty years’ presumption, by analogy to the statute, to light and air did occur, and the Court. without any doubt or hesitation held that the rule long before settled as a general one, extended to this species of incorporeal right. This was done in a series of cases both in the King’s Bench and Common Pleas. These are Lewis vs. Price in 1761, Dougal vs. Wilson in 1769, and Darwin vs. Upton, in 1789, all reported
Secondly. We must now return to the constitutional provision of 1776, and inquire whether by force of it, what we have seen to be the common law doctrine of ancient lights at the date of the Constitution, became the law of this State. It cannot be overlooked that notwithstanding the broad language of the Constitution, there were many parts of the common law of England, as it stood prior to 1776, xvhicti never have in fact been regarded by our courts as of force in this country: yet it is to be observed that the Courts have not herein acted arbitrarily in adopting some parts of the common law and rejecting other parts, according to their views of the policy of particular rules or doctrines. On the contrary those parts of of the common law of England, which have not been here practically administered by the courts, will be found on examination, to reduce themselves to two classes, resting upon grounds which render them proper to be treated as implied exceptions to the constitutional provision, in addition to the expressed exception of such parts of the common law as j'were repugnant to the fights apd privileges gontajped ip the Constitution,” &c,
We pass then to the other class of rules which, though parts of the common law of England, have never been administered by the courts under the Constitution of 1776. This class embraces those parts of the common law which in the terms usually employed were at the period of our independence inapplicable to the existing circumstances and institutions of our people. This was a well understood limitation upon the extent to which the Colonies were considered to have carried with them the laws of the mother country, (1 Black. Com., 108, 1 Story on Cons., See. 148,) and without doubt the same limitation, though not expressed did attach to the provision of the Constitution of 1776. But this limitation will not be found to touch the present subject. There is less difficulty in applying the limitation practically than in attempting to define it. I understand it as excluding those parts of the common law of England which were applicable to subjects connected with political institutions and usages peculiar to the mother country, and having no existence in the Colonies, such for example as offices, dignities, advowsons, tithes, &c. ; also, as excluding some of the more artificial rules of the common law, springing out of the complicated sys-. tem of police, revenue and trade, among a great commercial people and not therefore applicable to the more simple transactions of the Colonies or of the States in their early history; also it maybe understood as excluding or modifying many rules of what is known as the common law of practice, and possibly of evidence, which the greater simplicity, in our system for the administration of justice, would render unnecessary or inconvenient.
It is a noticeable fact that the English doctrine was recognized without question as part of the common law by the early judges of the State and of this country; judges certainly more likely than later ones to receive correct impressions of the state of our common law as originally derived from the mother country. No early adjudged cases directly upon the point are found, but the incidental expressions of opinion in the courts, sufficiently indicated the general direction of judicial and professional opinion, as in favor of the doctrine ; and this, though not authority, is evidence of no small weight that as a matter of judicial history the English rule was, at the period of our independence, regarded as part of the common law, and was not then inapplicable to the circumstances of the Colonies. The first expressions of opinion in New York were decidedly that way. Mahan vs. Brown, 13 Wend. 261 (1835); Banks vs. American Tract Society, 4 Sandf. Ch. R. 438. In Massachusetts the early tendency of judicial opinion was in that direction, and a statute was passed in 1852 expressly excluding the English rule. Dewey J. in Atkins vs. Chilson and others, 7 Metc. 403 (1846); C. J. Shaw in Fifty Associates vs. Tudor, 6 Gray, 259 (1856). So in Maryland, Dorsey J. in Wright vs. Freeman, 5 Harr. & J., 477. So in South Carolina, where in in 1838, McReady vs. Thom pson, Dudley, 131, upon very full consideration the Court held and applied the English doctrine as to lights. In New Jersey, and in Illinois also there have been direct decisions holding the English rule in force. Rabeson vs. Pettinger, 1 Greene, Ch. R. 57; Gerber vs. Grabel, 16 Ill. 217. It was not until the year 1838, in the case of Parker vs. Foote, 19 Wendell, 318, that any
The objections to the doctrine taken by these cases are two—one is that the enjoyment of light and air in a tenement received over adjoining land is not an invasion of the possession of the servient owner for which he could maintain an action, and therefore is not such an adverse user as to raise against him the presumption of a grant. This objection assumes that under the true principle of prescriptive title, the presumption of a grant, arises only upon the omission of the servient owner to take a legal remedy against the easement or servitude exercised. Some learned judges have gone so far as to speak of the doctrine as “an anomaly in the law,” 19 Wend. 318
A few words in conclusion upon a point that has frequently pressed itself into my reflections upon this case ; that is, the danger of drawing too strictly and narrowly against the Courts the limitation between the judicial and the legislative authority to change or modify rules of the common law. It is, of course, true that any system of jurisprudence, in order to meet the wants of society, more especially the common law, which less than any other, is codified, must have a progressive development, expansion and improvement, and new adaptations to changes in the condition of society and to newly arising interests, while becoming subjects of legal protection ; and this slow and silent growth has been, and, of necessity, must be, in part, and to a large extent, the work of the Courts. Many and important modifications in the common law, both in its principles and remedies, have gradually and imperceptibly grown up, based upon what is termed a course of judicial decisions. There is one large field within which this moulding influence of the Courts may be legitimately and usefully exercised. It embraces what may be termed the administration of the common law, its process, remedies, rules of practice and of evidence. In all that concerns these it is difficult to see why the Courts should feel themselves restricted in modifying and re-adapting them in details from time to time as experience or changes in the condition of society may render obviously expedient. For those who administer the system and are personally cognizant of the operation of its rules and modes of procedure can better comprehend the necessity, and precise extent of any changes or re-adaptations which may be required, and the best methods of effecting them. And certainly the conservative temper, so characteristic always of the
With respect to the law of property there is an additional and very important reason for this caution, i. e„ that judicial decisions, in theory at least, are supposed not to alter but simply to declare and administer the law ; so that a decision or a course of decisions which in effect should change or modify a rule of property by declaring it otherwise than it has before been understood to be, operates retrospectively, affecting not only future titles, but also titles before acquired and transactions entered into in reliance upon a different state of the law. So great a mischief is the unsettling of confidence in titles held to be, that, rather than incur the hazard of it, the Courts have not unfrequently refrained from declaring, as
Now, to apply this conservative rule of judicial action to the present case, how can it be doubted that during the long interval after the adoption of our State Constitution in 1776 until at least the year 1838 when the doctrine of ancient lights as part of the common law of this country was first drawn into question, it must have been practically recognized as the law of this State in any transaction depending upon the question ; and that it would have been so adjudged had any case arisen for its judicial application ? And can there be doubt that at this day there may exist in this State, rights materially affecting the value and enjoyment of property supposed to have been acquired under the common law of ancient lights, since, as yet, no contrary rule has been declared by our courts or could reasonably have been inferred to exist ? Certainly it is wise not now'to risk the unsettling of such interests by judicially declaring the rule to be what, until recently, neither our courts nor the bar nor the people concerned could with reason have supposed it to be; on the other hand a legislative alteration of the law will serve all the considerations of policy which have been urged against continuing the doctrine of ancient lights, and yet by operating, as it would, prospectively, will leave undisturbed any interests which may have grown up under a reasonable belief that the old law was still in force.
Note. This case will be found annotated in the American Law Register, for January 1876, Vol. XV, p. 26, N. S. There are however few cases referred to in addition to those cited in the opinion. Neither the comments of the annotator nor the extracts given from the authorities attempt any answer to the reasoning of this opinion. The only value of the note, therefore, is by way of reference to some additional cases, all of which appear upon examination to rest upon grounds which are fully discussed and criticised in this case.
There is some confusion in the different writers’ statement of the law of this period,some holding that the ancient period of legal memory,/, e. from the beginning of the reign of Richard I, continued unaffected by the statute of 32 Henry VIII., 2 Wend. Black. 31 note (21) ; while others considered that this statute ■yyas equitably extended to incorporeal rights as had preyiqusly tjeen tlie Statute
It is noticeable that at about the same time, i. e., early in the 18th century both the courts of law and of equity were influenced by some common considerations (probably the rendering uniform possessory titles) to adopt the analogy of the statute of James. For it is at that period we find the court of equity first applied the limitation of the statute to the protection of equitable titles. Sir Joseph Jekylle, arg. in Flayer vs. Lavington, 1 P. Wms. 268, in 1714; Cook vs. Arnham, 3 P. Wms. 287 in 1734.
We should certainly be slow to suppose that there could have crept into a system, wrought with such delicate care and such completeness as was the common law of real estate, an anomaly unperceived by the great technical learning and acuteness of the earlier judges, and reserved to be discovered as late as the year 1838. It would be certainly less remarkable if the later judges should have misconceived the real principle upon which the law of prescriptive title operated, especially so, as the opinions expressed by them do not appear to be based upon an investigation into the judicial history of the subject. Such an investigation might show that the early law of prescriptive title to an in-l corporeal right proceeded not upon the ground of loches or neglect on the part of the servient owner to take a remedy by action, against the exercise of such right on the part of his neighbor, but that- the law proceeded upon the broader ground of quieting men in the enjoyment of a privilege or benefit appurtenant to land after it had been long acquiesced in without obstruction.
A prescriptive title rests upon a different principle from that of a title arising under the statute of limitations. Prescription operates as evidence of a grant, and confers a positive title. See Cmise’s Dig. Title 31 Ch. 1, Sec. 4. The statute of limitations operates not so much to confer positive title on the occupant, as to bar the remedy, long neglected, of the real owner. Hence the statute is said to be properly called a negative prescription. Cruise Dig, Title
The breadth of the principle as thus stated, upon which the English rule of prescription operated: that is that the presumptive title by grant arises from a user acquiesced in whether the user were of a nature actionable or not, was not peculiar to the English law. In all civilized countries where prescriptive
See also a full discussion of the English doctrine of prescription in Washburn on Easements and Servitudes, Chap. 1, Sec. 4, pp. 66 et seq.