By the Court,
Thе modern doctrine of ■ presuming a'right, by grant or otherwise, to easements and j incorporeal hereditaments after twenty years of uninterrupted ' adverse enjoyment, exerts a nriuch wider influence in j quieting possession, than the old ^'doctrine of title by pre- ; scriptiоn, which depended on immemorial usage. .The pe- ; riod of 20 years has been adopted by the courts in'analogy 1 to the statute limiting an entry into lands ; but as the stat- i
To authorize the presumрtion, the enjoyment of the~* : easement must not only be uninterrupted for the period of : 20 years, but it must be adverse, not by leave or favor, but | under a claim or assertion of right; and it must be with the ''knowledge and acquiescence of the owner. Campbell v. Wilson, 3 East, 294. Daniel v. North, 11 East, 372. Barker v. Richardson, 4 B. & Aid. 579. Hill v. Crosby,
The presumption we are considering is a mixed one of law and fact. The inference that the right is in him who has the enjoyment, so long /as nothing appears to the contrary, is a natural one—it ü a presumption of fact. But adverse enjoyment, when left to exert only its natural force as mere presumptive evidence, can never conclude the true owner. No length of possession could work such a consequence. Hence the necessity of fixing on some definite period of enjoyment, and making that operate as a presumpr tive bar to the rightful owner. This part of the rule is wholly artificial; it is a presumption of mere law. In general, questions depending upon mixed presumptions of this description (mustie submitted to the jury, under proper instructions from the court. fThe difference between length of time which operates as a bar to a claim, and that which is only used by way of evidence, was very clearly stated by Lord Mansfield, in the Mayor &c. v. Horner. Cowp. 102. “ A jury is concluded,” he says, “ by length of time that operates as a bar, as where the statute of limitatiоns is pleaded in bar to a debt; though the jury is satisfied that the debt is due and unpaid, it is still a bar. So in the case of prescription, if it be time out of mind, a jury is bound to conclude the right from that prescription, if there could be a legal commencement of the right. But length of time used merely by way of evidence, may be left to the сonsideration of a jury to be credited or not, and to draw their inference one way or the other, according to circumstances.” In Darwin v. Upton, 2 Saund. 175, note (2,) the question related to lights, and it was said by the same (earned judge, that “ acquiescence for 20 years is such decisive presump
Some of the cases speak of the presumption as conclusive. Bealey v. Shaw, 6 East, 208. Tyler v. Wilkinson,
In а plain case, where there is no evidence to repel the presumption arising from 20 years uninterrupted adverse user of an'-' incorporeal right, the judge may very properly instruct the jury that it is their duty to find in favor of the party who has had the enjoyment; but still it is a question for the jury. S The judge erred in this case in wholly withdrawing that question from the consideration of the jury. On this ground, if no other, the verdict must be set aside.
The bill of exceptions presents another question which may ' probably arise on a second trial, and it seems proper therеfore to give it some examination.
. As neither light, air nor prospect can be the subject of a . grant, the proper presumption, if any, to be made in this • case, is, that there was some covenant or agreement not to obstruct the lights. Cross v. Lewis, 2 Barn. & Cress. 628, per Bayley, J. Moore v. Rawson, 3 Barn. & Cress. 332, per Littledalе, J. But this is a matter of little moment. Where it is proper to indulge any presumption for the purpose of quieting possession, the jury may be instructed to make such an one as the nature of the case requires. Eldridge v. Knott, Cowp. 214.
Most of the cases on the subject we have been сonsider- ^ ing, relate to ways, commons, markets, water-courses, and the like, where the user or enjoyment, if not rightful, has been an immediate and continuing injury to the person against whom the presumption is made. His property has either been invaded, or his beneficial intеrest in it has been rendered less valuable. The injury has been of such a character that he might have immediate redress by action. But in the case of windows overlooking the land of another, the injury, if any, is merely ideal or imaginary. The light and air xyhich they admit are not the subjеcts of property beyond the^moment of actual occupancy; and for overlook
Although I am not prepared to adopt the suggestion of Gould, J. in Ingraham v. Hutchinson, 2 Conn. R. 597, that the lights which are protected may be such as project over thе land of the adjoining proprietor; yet it is not impossible that there are some considerations connected with the subject which do not distinctly appear in the reported cases. See Knight v. Halsey, 2 Bos. & Pull. 206, per Rooke, J. 1 Phil. Ev. 125.
The learned judges who have laid down this doctrine have not told us upon what principle or analogy in the law it can be maintained. They tell us that a man may build at the extremity of his own land, and [that he may lawfully have windows looking out upon the lands of his neighbor. 2 Barn. & Cres. 6*6. 3 id. 332. The reason why he may lawfully have such windows, must be, because heroes his nеighbor no wrong; and indeed, so it is adjudged as we have already seen; and yet some how or other, by the exercise of a law-j ful right in his own land for 20 years, he acquires a beneficial interest in the land of his neighbor. The original proprietor is still seized of the fee,"with the privilege of paying taxes and assessments : but the right to build on the land, without which city and village lots are of little or no value, has befen I destroyed by a lawful window. How much land can thus be
I There is, I think, no principle upon which the modern |English doctrine on the subject of lights can be supported. |lt is an anomaly in the law. It may do well enough in ’England; and I see that it has recently been sanctioned with some qualification, by an act of parliament. Stat. 2 & 3, Will. 4, c. 71, § 3. But it cannot be applied in the growing cities and villages of this country, without working the .most mischievous consequences. It has^iever, I think, been deemed a part of our law. 3 Kent’s Comm. 446, note (a.) Nor do I find that it has been adopted in any of the states. The сase of Story v. Odin,
There is one peculiar feature in the case at bar. It appears affirmatively that there never was any grant, writing- or agreement about the use of the lights. A grant may under certain circumstances be presumed, although, as Lord Mansfield once said, the court does not really think a grant has been made. Eldridge v. Knott, Cowp. 214. But it remains to be decided that a right by grant or otherwise can be presumed when it plainly appears that it never existed. If this had been the case of a way, сommon, or the like, and there had actually been an uninterrupted adverse user for 20, years under a claim of right, to which the defendant had submitted, I do not intend to say that proof that no grant was in fact made would have overturned the action. It will be time enough to dеcide that question when it shall be presented. But in>'this case the evidence of Stebbins, who built the house, in connection with the other facts which appeared on the trial, proved most satisfactorily that the windows were never enjoyed under a claim of right, but only аs a matter of favor. If there was any thing to leave to the jury, they could not have hesitated a moment about their verdict. But I think the plaintiffs should have been nonsuited.
The Chief Justice concurred on both points.
Cowen, J., only concurred in the opinion that the question of presumption of"á~grañt"slTóüld have been submitted to the jury. - ■ •
New trial granted.