The only question involved in this case is, whether the plaintiff by such long and uninterrupted use of his windows, and the light passing through them, has thereby acquired the right so to continue his windows and thus to have the light pass through them, so that any act of the defendant which shall materially obstruct such light will make him a wrongdoer, and liable for any damage to the defendant that may ensue therefrom.

The rule seems now, to be well settled in England, that such long and uninterrupted use of light gives the right to continue its use, and to insist upon its remaining unobstructed by the adjoining proprietor for all time. The courts place this upon the same ground as rights of way, and other rights acquired in and over the premises of another by long and undisturbed use; presuming from the long exercise of the privilege by the one, and an acquiescence therein by the other, that the right had its origin in a grant.

While the general doctrine has been universally adopted in this country, its application to cases of this kind has not been generally recognized, and in many of the States has been expressly denied.

Our statute of limitations cannot be brought in aid of the plaintiff's claim. The statute in terms only deprives the aggrieved party of the right of action after the limited period from the time the cause of action accrues, and although our courts have held that the exercise of the right by one party, and an acquiescence therein by the other, for such period, vests in the party so exercising it an absolute right, still in determining the question whether such right has in fact become an absolute one, the time that the one has so exercised it is to be computed from the period when a cause of action therefor first accrued to the other, which he has omitted to enforce; so that no right can be lost or acquired by virtue of the statute where there has been no act done by the one for which the law gives a remedy by action to the other; and it is conceded in the case that the defendant had no right of action against the plaintiff for any act of his in erecting his building and opening and continuing his windows on the side adjoining to and overlooking the defendant's premises.

This reason would seem to imply with equal force against the plaintiff's right to recover on the ground that a grant will be presumed from lapse of time to sustain his claim.

The principle upon which a grant is presumed is, that in no other way can the acts of the parties be rationally accounted for. Such presumption is required to account for the exercise of the right by the one, and the acquiescence therein by the other, for so long a period.

The right must be exercised adversely or under a claim of a right so to exercise it by the one, and it must be acquiesced in by the other.

This of itself presupposes that the exercise of the right by the one, without a grant, is a violation of some right of the other; otherwise it could not be adverse, within the meaning of the rule; neither could the other acquiesce, for that presupposes a legal right to object and resist.

If, then, there is no violation of the rights of another, no presumption of a grant by such other arises; there is no occasion for it. There is no right exercised or claimed by the one, that belongs to the other, or which he could grant, if he should attempt it.

How, then, can this doctrine of presumption apply to a case like the present? The erection of the building by the plaintiff on the line between him and the defendant was no violation of any right of the defendant; he could not complain of or prevent it, and his assent or dissent could in no manner affect the transaction. The legal right to do the act was perfect in the plaintiff. His right to erect his building on the division line is not controverted; the wisdom of the act is more questionable. He might have made his walls solid, thus entirely excluding the light from that direction; he chose to leave apertures therein, thereby allowing the light to remain unaffected to that extent; but how can it be said that by excluding the greater part, he acquires any better right to the remainder, than he would have had to the whole of it if he had not excluded any? He has not done any act which has had any effect to control or influence the light, except to exclude it. He did not draw or cause the light to pass in upon his premises in any other than its natural manner; it remained upon and over the defendant's premises as it had always been. As there was no interference with the rights of the defendant, it is difficult to see upon what the presumption of a grant can be based. Lapse of time and the presumption arising therefrom are resorted to only to justify in one that which would otherwise be a usurpation of the rights of another.

If a man can acquire, by use, a right to an uninterrupted enjoyment of light under circumstances like the present, why not acquire a right to a like enjoyment of the prospect from the same windows, or to a free access of the air to the outside of his building to prevent decay, and many other rights of a similar and no more ethereal character?

The result of which would be, if allowed, an utter destruction of the value of the adjoining land for building purposes. Windows are often of more importance for the prospect they afford than for the light they admit. The light may be obtained from other directions, the prospect cannot. A pleasant prospect from the windows of a dwelling always contributes more or less to the enjoyment of the occupants, and often enters largely into its pecuniary estimate. But to admit that a mere enjoyment of such prospect for fifteen years gives him the right to insist that it shall remain uninterrupted for all future time, would be to recognize a principle at variance with well established rules, and one that could not be tolerated in this country.

No such right can be acquired by use, for the same reason that its exercise by one is no infringement of the rights of another, for which the law gives an action. Le Blanc, J., in Chandler v. Thomp-son, 3 Camp. 82, says: "That although an action for opening a window to disturb the plaintiff's privacy was to be read of in the books, he had never known such an action to be maintained, and he had heard it laid down by Eyre, Ch. J., that such an action did not lie."