5 W. Va. 1 | W. Va. | 1871
The principles to be settled in this case are certainly important to the parties to be immediately affected by our decision, but they are much more so in their wider application to the citizens at large. And as the rule established in this case is to apply to and govern future cases in this State, the case has been examined and considered with the attention and care which its importance would seem to require. Each of the parties to this ^'controversy claim under deeds from a common vendor, Owen D. Downey, who it appears, was the owner of both tenements at the time of the sale and conveyance to the appellee, which sale and conveyance were prior to that to the appellant. Downey, it also appears, built both of the houses — the one conveyed to the appellee
The question of easement of light does not appear ever to
The prevailing doctrine here would seem to be, that an implied grant of an easement of light will be sustained only in cases of real and obvious necessity, and will be denied or rejected in cases when it appears that the owner of the dominant estate can, at a reasonable cost and expenditure, have or substitute other lights to his building, so that he may continue and have the reasonable enjoyment of the same; leaving the owner of the servient estate also to the enjoyment of his own property free from the restriction and burden that would otherwise be imposed upon it. In the application of this principle, doubtless, some embarrassment will sometimes be realized in determining the degree of necessity that ought to-be required to support the right to the easement, and each case must necessarily be settled on the facts and circumstances, surrounding it.
This rule, it appears to me, is dictated by wisdom and sound policy, and sustained by the plainest principles of justice and equity, and ought therefore to be applied and enforced in this ' country. It is in accordance with the doctrine, long and well
Decree Reversed