WARD vs. NEAL

WARD vs. NEAL. [ACTION FOR DAMAGES FOR OBSTRUCTION OF ANCIENT LIGHTS.] 3. Easement founded on adverse enjoyment. — The English doctrine, that . a right to have ancient -windows unohstructed can arise from mere uninterrupted enjoyment for tile period prescribed by the statute of " limitations as a bar to actions for the recovery of land, does not pie- ■ vail in this country. .Appeal from the Circuit Court of Madison. .Tried.before.the Hon. S. D. Hale. This case was before this court, at its January term, 1860, on appeal from the judgment of the circuit court sustaining a demurrer to the complaint; and the judgment of the circuit court was Jthen reversed, and the cause remanded. — .See 35 Ala. 602. The action .was brought by Joseph Ward, against George W. Neal, to.recover damages for an obstruction of the plaintiff’s ancient Windows ; and a. trial was had, after the reversal, on the plea of not guilty, and the following agreed facts-: “Plaintiff'has title to, and is possessed . oí, a certain house and lot in the town of Huntsville,; and he and defendant,are adjacent proprietors. Plaintiff’s said, house has been built, .and situated as it was -at.the time of the injury complained of, for twenty years'.; and during all that time the light and air had passed through said windows into his house. His'possession has been quiet, exclusive, and undisturbed. 'The fence between the lots of plaintiff and defendant was built, upon a line which bad been agreed upon by preceding proprietors, about the year 18-36 or 1838, and was situated five or six feet from plaintiff’s house, and about eighty feet from defendant’s house.; and, during all that time, had been a common plank fence, six.feet six inches liigh, made of hoards nailed upright, at an 'interval -hi one inch between them. "The old line, prior to this compromise line, ran farther'from [plaintiff’s house. The distance from .tine ground, to 'the top of the windows- in plaintiff’s house, is ten feet ten inches ; and from the ground to the bottom of the windows, five feet fi\e inches. About, the- 15th .Séptember, 1856, the defendant erected a close battery, of weather-boarded pjanks against said fence, but' on his- own side of it, about fourteen feet, high, which excluded the light and air from .plaintiffls said windows. This action was commenced on the 23d January, 1858. 'If, on these facts, the plaintiff is entitled, to recover, the damage shall be assessed at $25.” On these facts, the court charged the jury, that the plaintiff was not entitled-to recover ; to which charge the plaintiff excepted, and. he now. assigns the same as error. Phelan & Phelan, for-appellánt..., Walker & Brickell,. centra. [MAJORITY — STONE, J.] STONE, J. The present suit is for obstructing ancient lights ; and the plaintiff .-founds his right of recovery, not upon grant, but upen-, his>- uninterrupted user of the easement for a period which would bar a recovery in ejectment against a trespasser. He makes-no other proof than uninterrupted enjoyment.- Will this,-without more, ripen into a title by prescription ? Under the English decisions, it would ; but, in the’ American States, .the English doctrine has-not been adopted, save by a few of the States. Speaking of the English doctrine-, the supreme court of New .York, in Parker v. Foote, (19 Wendell, 317,) said: “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. & Cress. 686; 3 ib. 332. The reason why he may lawfully have such windows, must be because he does his neighbor no wrong) and, indeed, so it is adjudged, as we have already seen; and yet, some how or other, by the exercise of a lawful right, on his own land, for twenty years, be acquires a beneficial interest in the land of bis 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 village or city lots are of little or no value, has. been destroyed by a lawful window. How much land can thus be rendered useless to the owner, remains yet to be settled'. Now, what is the acquiescence which concludes the owner:? No one has trespassed upon his land, or done him a legal ..injury of any kind. He has submitted to nothing but the . exercise of. a lawful right on the-, part of his neighbor. ' How, ithen, has-be‘.forfeited the beneficial interest in Ms property ?. He has neglected to incur the expense of build- ’ ing-a wall, twenty or fifty .feet high, as the case may be— not for his own benefit, but for the sole purpose of annoying bis neighbor. That was bis only remedy. A wanton .act of this kind, althouglrdone on one’s own land, is calculated to render a man o'dious.” And the court ruled in that case, that the English doctrine was not .'applicable to our country, and refused -to adopt it. To the same effect are Napier v. Bulwinkle, 5 Rich. Law, 322 ; Cherry v. Stein, 11 Md. 22-3; Ingraham v. Hutchinson, 2 Conn. 597. See, also, Criswell v. Clugh, 3 Watts, 330 ; and the authorities cited in this case when formerly here — 35. Ala. 602. That the length -of - time -during which, the plaintiff has enjoyed his windows, .is sufficient to perfect Ins right, if there had been in that enjoyment the properties necessary to constitute an adverse holding, is settled in this State. Stein v. Burden, 24 Ala. 130; Roundtree v. Brantley, 35 Ala. 544; Polly v. McCall, June term, 1860. We fully concur in, and adopt, the doctrine declared by the supreme court of New York, supra., Judgment affirmed,