We think the English courts, in applying the doctrine of the presumption of grants from long use and acquiescence to this class of cases, clearly departed from the ancient common-law rule as laid down in Berry v. Pope, Cro. Eliz. 118, and the error, as it seems to us, consists in placing cases like the present upon the same footing and making them subject to the same rules that govern another class of cases, to which they really have no analogy. In Lewis v. Price, 2 Saund. 175a., Wilmot, J., said: 'That when a house had been built forty years, and has had lights at the end of it, if the owner of the adjoining ground builds against them so as to obstruct them, an action lies; and this is founded on the same reason as where they have been immemorial, for this is long enough to induce a presumption that there was originally some agreement between the parties and . . . that twenty year3 was sufficient to give a man a title in ejectment on which he may recover the house itself, and he saw no reason why it should not be sufficient to entitle him to an easement belonging to the house." As we have already seen, no presumption of an agreement arises, as none was necessary to justify the act. The man who occupies his own house for twenty years has no better title to it at the end of that time than he had in the outset. Does he acquire any greater right to the light by the occupation than to the house? Clearly not; having usurped no right, he can acquire none by lapse of time. The error in the reasoning is in saying that because the man who takes possession of his neighbor's house and holds it adversely for twenty years (his neighbor acquiescing therein) acquires a title to it, therefore, the man who opens windows in his own house that in no way interfere with the rights of his neighbor, and of which such neighbor has no legal right to complain, and keeps them open for twenty years, thereby acquires a right to insist that no act shall be done by his neighbor on his own land that in any respect interferes with or obstructs the light to those windows. In the one case there is an infringement of the rights of another for which the law gives a remedy by action; in the other there is not. This constitutes a radical difference between the two cases, and that, too, in respect to the very point upon which the whole doctrine of presumption in cases like those under consideration depends.
It might be urged with much force that a man who conveys a house with the privileges, etc., would not have a right to make an erection on his own land adjoining that would shut out the light from the windows in the house so conveyed, and it may be said that he who has occupied another's house for such a length of time and under such circumstances that a grant will be presumed, stands upon the same footing as an ordinary grantee. However that may be, this case involves no such question. In those cases the question turns upon the fact that the title to the premises was derived bydeed, actual or presumed, from the party who seeks to deprive his grantee of the enjoyment of the right he has conveyed. The right does not depend upon the lapse of time, but is as perfect in the grantee the moment the deed is executed as it can ever be. Here the title to the premises of the plaintiff was never in the defendant, but has been in the plaintiff through the whole period.
This question was fully considered in New York, in the case of Packer v. Foote, 19 Wendell, 309. Bronson, J., says: "Upon what principle courts in England have applied the same rule of presumption to two classes of cases so essentially different in character, I have been unable to discover. If one commit a daily trespass upon the land of another, under a claim of right to pass over, or feed his cattle upon it, or divert the water from his mill, or throw it back upon his land or machinery, in these and the like cases long-continued acquiescence affords strong presumption of right. But in the case of lights there is no adverse user, nor, indeed, any use whatever of another's property, and no foundation is laid for indulging any presumption against the rightful owner." And again he says: "There is no principle, I think, upon which the modern English doctrine of ancient lights can be supported."
The same doctrine was held in Pierre v. Fernald, 26 Maine, 436, and in Napier v. Bulwinkle, 5 Richardson (S. C), 312, in both of which cases the subject was fully discussed.
We see no reason growing out of the nature or necessities of this class of cases that require us to extend the doctrine of the presumption of grants to them; but, on the other hand, the establishment of a rule that would require a man to erect a building or wall that he did not need on his own premises, for the sole purpose of excluding the light from his neighbor's windows, would lead to continual strife and bitterness of feeling between neighbors, and result in great mischief. The judgment of the County Court is affirmed.1
6. Public (quasi) EasemEnts - Highways.2
a. Rights of the public.
Parker, J., in
17 NEw Hampshire, 524. - 1845.
The first special plea of the defendant sets forth a right of way in all the inhabitants of the town of Hampton across the plaintiff's close; and we are of opinion that this is a sufficient plea for the matters attempted to be justified by it. 7 N. H. 236, Perley v. Langley, and authorities there cited. It is not necessary to show an open public highway. There may be a way across the land of an individual, over and along which all persons have a right to pass, with a right in the owner of the soil to keep up gates and bars across it, for the protection of his field. So there may be other limitations or restrictions upon a public easement, - as that it shall be used by persons on foot only, or by those, and persons riding on horseback. And in such cases a plea in justification must qualify the right accordingly. Chitty on P1. 111 6, note y, 9th Am. ed.