49 Ga. 19 | Ga. | 1872
Statutes of limitation apply to cases where one is in adverse possession of property that may be claimed by another, and if the statutory period elapses before a counter-claim is asserted by action, the right or title of the one in possession is held legal and perfect. The doctrine of presuming a right, by grant or otherwise, to easements, etc., exists where one is in the adverse use or enjoyment for a certain period of an incorporeal right. This use or enjoyment cannot be adverse unless it be exercised in denial of the title and in derogation of the rights of any other owner. It cannot be adverse to another owner unless he has a right of action on account of a wrong
This rule, then, of presumption of right, by grant or otherwise, may well apply to claims which relate to commons, marJcets, toater-courses, ways, and the like, where an adverse user or enjoyment is a direct and overt injury to the person -who may be the true owner, and against whom the presumption is to be made. In all these instances there is an invasion on the property of another, or his beneficial interest in it is lessened. The wrong done may be redressed by immediate action. During all the time, which, by its lapse may raise the presumption against him, he has it in his power to arrest that presumption by asserting his right and.having it settled by a judgment. But it is difficult, if not impossible, to see how this doctrine can be made to apply to those instances of easeidfcnts, so called, where there is no possession of anything belonging to another, no encroachment upon another’s right, no adverse user, in fact, nothing done whatever, against which another could complain, or for which an action could be brought, and no remedy existing whereby to prevent such a presumption from arising. If it does so apply, a person would be compelled to submit to the loss or depreciation of important rights, or to a damaging interest accruing to another by mere lapse of time, and be utterly powerless to prevent it, save, perhaps, by some churlish or expensive appropriation of his property to uses or purposes hurtful to himself and offensive to his neighbor. Thus, for instance: if this doctrine exists in the case of lights or windows overlooking the premises of an adjoining proprietor, simply because they have been used for twenty years, (and after that time no building can be erected to interfere with such lights,) then as such proprietor of the adjacent land has no right of action, no claim for damages for-a wrong done, he will be forced to build at the dicta
It is true this doctrine of acquiring a presumptive right to light and air by mere length of enjoyment, has been held for many years in England, and in a few of the States of the Union. But in most of the States it has been decided not to have been the doctrine of the ancient common law, is not the law of this country, and is not suited to the condition of a country which is growing and changing so rapidly in all its relations of property, as well as its value and modes of enjoyment: 19 Wend., 309; 10 Barb., 537; 15 Gray, 387; 33 Pa. St. R., 368; 37 Ala., 501; 5 Rich., 311; 2 Conn., 584; 26 Me., 436; 11 Md., 1; Wash on Easements, 498; Cooley’s Blackstone, 2 book, 36 (note 20.) In Parker vs. Foote, 19 Wendell, it is styled “ the modem English doctrine,” “ an anomaly in the law,” “ a departure from the old law.” It is further said, “ it may do well enough in England, * * but it cannot be applied to the growing cities and villages of this country without working the most mischievous consequences : 3 Kent’s Com., 446, (note a.)
The decisions thus far referred to were cases involving the question of a prescriptive right, from long enjoyment, to light and air. But every principle or reason advanced in support of them applies with full force to a claim of right by the owner of a building erected on the line of his lot to the lateral support of the adjacent soil, on the ground that his building has been standing there for a given number of years. Neither in the case of the window opening out on another man’s land, or of a building erected on the dividing line, has the owner committed an act against which his neighbor can protest. He has not touched his property, or invaded any right, or given any cause of action. He had a right to use or build on his lot to the farthest limit of his boundary. He has only done this, and never has had any use, or possession, or enjoyment
As was said of the doctrine of a prescriptive right to lights, already quoted, so it may be said of this, as claimed by plaintiff in error, “it cannot be applied to the growing cities and towns of this country without working the most mischievous consequences.” In Mayor and Council of Rome vs. Om-berg, Judge Lumpkin said: “People purchase property and build in towns with full knowledge of the public necessity to have streets by excavating or elevating as the case may demand; and they must take the chances and consequences.” I conclude on this point with the words of our young brother who ably argued it for defendant in error. “ One building on his own land is clearly in the exercise of his legal rights. There is no encroachment upon the land or rights of another; no occupation of that which belongs to another; no adverse possession under a claim of title. No one can have a right of action against him, for he has not trespassed upon or vio
New trial granted.