This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
40. Castner v. Riegel, 54 N right to conduct on one's land a business which pollutes the atmosphere, to the injury of the land adjoining,41 the right to extend eaves of a roof, or a cornice, or other part of a building, over another's land,42 the right to maintain gates or other structures on a private way,43 the right to stand horses and carriages on another's land,44 the right to turn one's horses on another's land in ploughing,45 the right to attach a sign to another's building,46 the right to maintain an air shaft through another's property,47 the right to use another's property for a ferry landing.48
There are, on the other hand, some easements which cannot be acquired by prescription, owing to the fact that the owner of the land is not in a position to prevent the exercise of the user claimed, or to sue on account thereof, and consequently the fact that he does not do so is no evidence of acquiescence on his part. On this principle it has been decided that the appropriation of an excessive quantity of water from a waterj. L. 498, 24 Atl. 484; Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep. 335; Adams v. Van Alstyne, 25 N. Y. 232.
41. Sturges v. Bridgman, 11 Ch. Div. 852; Dana v. Valentine, 5 Mete. (Mass.) 8.
42. Norwalk Heating & Lighting Co. v. Vernam, 75 Conn. 662, 96 Am. St. Rep. 246, 55 Atl. 168; Cherry v. Stein, 11 Md. 1; Mat-thys v. First Swedish Baptist Church of Boston, 223 Mass. 544, 112 N. E. 228; Grace Methodist Episcopal Church v. Dobbins, 153 Pa. St. 294, 34 Am. St. Rep 706, 25 Atl. 1120; Sorkin v. Sent-man, 162 Pa. St. 543, 29 Atl. 722. So there may be a presrrip-tive right to have vessels overlap another's wharf. Wellington v. Cambridge, 220 Mass. 312, 107 N. E. 976. But prescription, it has been decided, can give no right to have branches of trees overhang adjoining land, in view of the constant change incident to growth. Lemmon v. Webb, (1894) 3 Ch. 1.
43. Goodwin v. Bragaw, 87 Conn. 31, 86 Atl. 668; Moon v. Mills, 119 Mich. 298, 75 Am. St. Rep. 390, 77 N. W. 926; Ailes v. Hallam, 69 W. Va. 305, 71 S. E. 273.
44. Trauger v. Sassman, 14 Pa. St. 514.
45. Jones v. Percival, 5 Pick. (Mass.) 485, 16 Am. Dec. 415.
46. Moody V. Steggles, 12 Ch. Div. 261.
47. Bass v. Gregory, 25 Q. B. D. 481.
48. Clark v. White, 5 Buah. 353; Bird v. Smith 8 Watts (Pa.) 434. 34 Am. Dec. 488.
Course for the statutory period by a lower riparian proprietor does not give him any right to continue such appropriation as against an upper proprietor who may thereafter desire to use water therefrom, since the latter had no means of preventing such excessive appropriation other than appropriating the water himself.49 One cannot acquire by prescription a right to water percolating from other land to his land, since the owner of the land from which it percolates is not in a position to prevent its percolation.50 Nor can the owner of a lower tenement acquire by length of user, as against the upper tenement, a right to the flow of surface water.51 So, the owner of the upper tenement, who has no natural right to have surface water flow from his land on the lower tenement, cannot acquire such right by the fact that the owner of the latter does not prevent such flow until the prescriptive period has elapsed, since such flow gives no right of action.52
49. Sampson v. Hoddinott, 1 C. B. N. S. 590; Stockport Waterworks Co. v. Potter, 3 Hurl & C 300; Walker v. Lillingston, 137 Cal. 401, 70 Pac. 282; Miller & Lux v. Enterprise Canal & Land Co., 169 Cal. 415, 147 Pac. 567; Parker v. Hotchkiss, 25 Conn 321; Thurber v. Martin, 2 Gray (Mass.) 394; Pratt v. Lamson, 2 Allen (Mass.) 275, 288; Crawford v. Hathaway, 67 Neb. 325, 60 L. R. A. 889, 108 Am. St. Rep. 647, 93 N. W. 781; Davis v. Chamberlain, 51 Ore. 304, 98 Pac. 154; Mud Greek Irr. Agr. & Mfg. Co. v. Vivian, 74 Tex. 170, 11 S. W. 1078; Lawrie v. Silsby, 76 Vt. 240, 104 Am. St. Rep. 927, 56 Atl. 1106. See note to 93 Am. St. Rep. at p. 717. But one's ability to acquire a prescriptive right to divert water from a stream at a certain point is not affected by the fact that he owns riparian land lower down on the stream. Dontanello v. Gust, 86 Wash. 268, 150 Pac. 420.
50. Chasemore v. Richards, 7 H. L. Cas. 349; Hanson v. Mc-cue, 42 Cal. 303, 10 Am. Rep. 299; Roath v. Driscoll, 20 Conn. 533, 52 Am. Dec. 352; Elster v. Francis, 18 Pick. (Mass.) 117; Village of Delhi v. Youmans, 50 Barb. (N. Y.) 316; Frazier v. Brown, 12 Ohio St. 294; Elster v. Springfield, 49 Ohio St. 82, 30 N. E. 274; Wheatley v. Baugh, 25 Pa. St. 528, 64 Am. Dec. 721; Wheelock v. Jacobs, 70 Vt. 162, 43 L. R. A. (N. S.) 105, 67 Am. St. Rep. 626, 40 Atl. 51.
51. Wood v. Waud, 3 Exch. 748; Greatrex v. Hayward, 8 Exch. 291; Broadbent v. Rams-botham, 11 Exch. 602.
52. Parks v. City of Newburywhere the civil-law rule, giving the proprietor of the upper tenement a natural right to have his surface water flow off on the lower tenement, controls, he may lose this right by submitting to the obstruction of such flow for the prescriptive period.53 In case the owner of the upper tenement causes the water to flow on the lower tenement in a particular channel, the lower proprietor can prevent such action, and consequently his failure so to do may be regarded as acquiescence therein, which confers the right if continued for the statutory period.54
One cannot, in this country, by the maintenance of windows in one's building overlooking adjacent land for the statutory period, acquire an easement of light and air in such land, since this involves no injury to the land, or diminution of the value of the beneficial interest therein, and consequently gives no right of action to the landowner.55 Likewise, the right of support for a building by another building or by adjacent land cannot, by the weight of authority in this country, be acquired by prescription, since not only is the exercise of the right not one which causes injury to the port, 10 Gray (Mass.) 28; White v. Chapin, 12 Allen (Mass.) 516; Swett v. Cutts, 50 N. H. 439, 9 Am. Rep. 276. Compare Ross v. Mackeney, 46 N. J. Eq. 140, 18 Atl. 685.
53. Zerban v. Erdman, 258 I11. 486, 101 N. E. 925; Tootle v. Clifton, 22 Ohio St. 247, 10 Am. Rep. 732; Louisville & N. Ry. Co. v. Mossman, 90 Tenn. 157, 25 Am. St. Rep. 670, 16 S. W. 64.
54. Moody v. Fremd, 177 Ky. 5, 197 S. W. 433; White v. Chapin, 12 Allen (Mass.) 516; Schnitzius v. Bailey, 48 N. J. Eq. 409, 22 Atl. 732; Glenn v. Line, 155 Mich. 608, 119 N. W. 1097.
55. Western Granite & Marble Co. v. Knickerbocker, 103 Cal. Ill, 37 Pac. 192; Guest v. Reynolds, 68 111. 478, 18 Am. Rep. 570; Lahere v. Luckey, 23 Kan. 534; Pierre v. Fernald, 26 Me. 436, 46 Am. Dec. 573; Keats v. Hugo, 115 Mass. 204, 15 Am. Rep. 80; Parker v. Foote, 19 Wend. (N. Y.) 309; Mullen v. Strieker, 19 Ohio St. 135, 2 Am. Rep. 379; Haverstick v. Sipe, 33 Pa. St. 368; Napier v. Bulwinkle, 5 Rich. Law (S. C.) 311; Hubbard v. Town, 33 Vt. 295; Powell v. Sims. 5 W. Va. 1, 13 Am Rep. 629. Contra, Clawson v. Primrose, 4 Del. Ch. 643.
Supporting land or building, but the dependence of a building on such support is a fact which is in most cases not discoverable until the support is withdrawn.r,g In England, on the other hand, the right of support may be thus acquired.57
There are several decisions in this country that a right in the use of a party wall may be acquired by prescription,58 but this view, while clearly correct when it involves the placing of beams or other parts of a building in or on a wall upon adjoining land,59 is, it seems, in other cases, not involving any occupation of the space above such land, not reconcilable with the principle that the user, to be adverse, must be actionable,60 nor with the decisions above referred to, that a right of support for buildings from adjoining land or buildings cannot be acquired by prescription.