There

both estates were in the possession of the plaintiff, Peter. could be no adverse enjoyment of the flow of air and light during that time, nor of anything that could be likened to an adverse enjoyment of it. The landlord could not prevent such enjoyment by his tenant in any way, for he could not enter upon the land while leased to the tenant, to make an erection to obstruct the light and air. And no presumption could be made, if the English doctrine were admitted here, which would enable the plaintiffs to maintain this action.

Plaintiffs nonsuit.

OBSTRUCTION OF ANCIENT LIGHTS whether a ground for an action on the case: See Mahan v. Brown, 28 Am. Dec. 461, and note thereto; an injunction to prevent a threatened obstruction of ancient lights, will be granted by a court of equity, upon an application disclosing facts sufficient to justify the issuance of the writ: Robeson v. Pittenger, 32 Id. 412 and note.

ANCIENT LIGHTS ARE WINDOws or openings which have remained in the same place and condition twenty years or more. In England a right to unobstructed light and air through such openings is secured by mere user for twenty years, and windows for which this right has been thus secured are technically termed ancient lights: Abb. L. Dic., tit. Ancient Lights; Bouv. L. Dic., tit. Ancient Lights. But the right to unobstructed light and air is a very different thing from the right to a view or prospect of external objects. The former may be annexed to the tenement as an easement, and may in England be acquired by occupancy or mere user, as we will presently show, but the latter can only be secured by an express covenant. This position seems to be old and well established. Wray, C. J., said: "For prospect, which is a matter only of delight and not of necessity, no action lies for stopping thereof, and yet it is a great recommendation of a house that it has a long and large prospect:" Aldred's Case, 9 Coke, 57 (b). And Twisden, J., said: 'Prospects may be stopped so you do not darken the light:" Knowles v. Richards, 1 Mod. 55; S. C., 2 Keb. 642. In Attorney General v. Doughty, 2 Ves. Sen. 45, Lord Hardwicke said: "I know no general rule of common law which warrants that (injunction to prevent obstruction of prospect), or says that building so as to stop another's prospect is a nuisance. Was that the case there could be no great towns, and I must grant injunctions to all the new buildings in this town." See also Fishmongers' Co. v. East India Co., 1 Dick. 163; Squire v. Campbell, 1 My. & C. 486; Wells v. Ody, 7 Car. & P. 410.

ANCIENT LIGHTS ACQUIRED BY OCCUPANCY OR PRESCRIPTION.-In England, the doctrine in regard to ancient lights has passed through three stages. In early history, the right was acquired by prescription proper; and to establish such a right, it was necessary that it had been enjoyed since the beginning of legal memory. In Sury v. Pigot, Poph. 166, Whitlock, C. J., said: "Where a man hath a house and windows in it, and another stops the light, then he may have an action upon the case; but true it is, that he shall not only count for the loss of the air, but also, he ought to prescribe that time out of mind light had entered by those windows." See, also, Tudor's Leading Cases in Conveyances, 127. To the same purport, Markham, J., said: "If I have a house by prescription upon my soil, and another erects a

new house upon his own soil next adjoining, so near to my house that it stops the light of my house, this is a nuisance to my house; for the light is of great comfort and profit to me:" Vin. Abr., Nuisance, G., pl. 10; 22 Hen. VI., 15. See, also, Bland v. Moseley, cited 9 Rep. 58 (a); and Hughes v. Keene, Yelv. 215. Even after hundreds of years had elapsed since 1189 A. D., the date at which "time out of mind” began, or "when the memory of man runneth not to the contrary" was settled to begin, proof that the enjoyment began at any time subsequent to that date was sufficient to defeat an action for the obstruction of ancient lights. So where the plaintiff, in 31 Eliz., brought an action for the obstruction of his ancient lights, and showed that the enjoyment thereof began in the reign of Queen Mary, the court held there was no cause of action, for the enjoyment was not shown to be for time out of memory, etc.: Bowry v. Pope, 1 Leon. 168; S. C., sub nom. Bury v. Pope, Cro. Eliz. 118.

As the period since the commencement of the time of legal memory became longer, the difficulty of proving the enjoyment from that period became greater, and the rule operated more harshly, until it became of little real value; but it had established the principle, that an easement in light might be acquired by prescription or occupancy for a sufficient time. In 1623, the passage of the statute of limitations, 21 Jac. I., c. 16, brought about the second stage in the history of ancient lights. By that act it was provided, "that no person who has any right or title of entry shall enter but within twenty years next after his right or title shall accrue." Twenty years adverse occupation became a bar in ejectment, and by analogy conferred title to an easement belonging to the house: Lewis v. Price, 2 Wm. Saund. 175 (a); Dougal v. Wilson, Id. 175 (a); Cross v. Lewis, 2 Barn. & Cress. 686; Cross v. Lewis, 4 Dow. & Ry. 234. Darwin v. Upton, 2 Wm. Saund. 175 (b), is the leading case in this stage. Lord Mansfield, in that case, declared that: "The enjoyment of lights, with the defendant's acquiescence, for twenty years, is such decisive presumption of a right by grant or otherwise that, unless contradicted or explained, the jury ought to believe it; but it is impossible that length of time can be an absolute bar, like a statute of limitation. It is certainly a presumptive bar, which ought to go to a jury."

But neither a tenant for years nor a tenant for life, nor any one holding a particular estate, can permit another to enjoy an easement on the estate so as to affect the landlord or him who has the inheritance in reversion or remainder: Yard v. Ford, 2 Wm. Saund. 175 (e); Maberley v. Dowson, 5 L. J., K. B. 261; Daniel v. North, 11 East, 372; and see Cross v. Lewis, 2 Barn. & Cress. 686; Bright v. Walker, 1 Cromp. M. & R. 211; Reg. v. Bliss, 7 Ad. & El. 554; Barker v. Richardson, 4 Barn. & Ald. 579; Wall v. Nixon, 3 Smith, 316; Wood v. Veal. 5 Barn. & Ald. 454. But see, as a seeming relaxation of this rule, Doe d. Foley v. Wilson, 11 East, 56.

The statute of 2 and 3 William IV., c. 71, passed in 1832, and which is better known as the Prescription act, brought about the third stage in the history of ancient lights in England. The statute of limitations which introduced the second stage, operated to shorten the period of prescription by raising a presumption from enjoyment for twenty years that a grant had been originally made. This presumption was, however, a rebuttable one, and the fact was left to the jury. The object of the prescription act was to make the presumption a conclusive one, and to render the possession a bar or title of itself without having recourse to the intervention of a jury to make it so: Bright . Walker, 1 Cromp. M. & R. 218. By this act the right to lights acquired by occupancy was based on positive enactment, instead of on a presumption

of a grant: Tapling v. Jones, 1 H. L. Cas. 290; S. C., 34 Law J. Rep. (N. S.) C. P. 342. The right thus acquired by occupancy is a right against all the world—a right in rem—and may be gained not only without the consent, but without the knowledge of the servient owner; and a tenant for life or years might allow his neighbor to acquire an absolute right to light over the land he occupies, and neither the reversioner nor remainder-man could do anything to prevent the right from accruing: Frewen v. Phillips, 11 C. B. (N. S.) 455; Jones v. Tapling, 12 Id. 853; S. C., 31 L. Rep. (N. S.) C. P. 349; S. C., 11 H. L. Cas. 312; S. C., 34 L. J. Rep. (N. S.) C. B. 348.

CONDITIONS REQUIRED TO RENDER RIGHT TO LIGHTS BY PRESCRIPTION SECURE.-1. The required number of years during which enjoyment of an easement must be had, must be the years next preceding the time when the action is brought: Parker v. Mitchell, 11 Ad. & El. 788; Richards v. Fry, 7 Id. 698; Ward v. Robins, 15 Mee. & W. 237; Lowe v. Carpenter, 6 Ex. 825. 2. The light must have been enjoyed for the full period of time without interruption. This is specially provided by statute. The interruption must be by some other person than the claimant, and not simply a cessation by him: Carr v. Foster, 3 Q. B. 581. Though the light be obstructed for twelve months, if the party making the obstruction promise to remove it before the twelve months expire, and twelve months have not elapsed since the promise, it is not such an interruption as will defeat the plaintiff's claim: Gale v. Abbott, 8 Jur. (N. S.) 987; Plasterers Co. v. Parish Clerks Co., 6 Ex. 635; Bennison v. Cartright, 3 Law. J. (N. S.) Q. B. 137. As the interruption must be for a year to be of any avail, it follows that a statutory title may be gained in a little more than nineteen years. This has been so decided: Flight v. Thomas, 11 Ad. & El. 688; S. C., 8 Cl. & Fin. 231. 3. The enjoyment must be had in the character of an easement distinct from the land over which it is had, and on which it is sought to impose the casement. So if one owns a house, and rents a garden over which the light comes, he can acquire no easement over it: Harbridge v. Warwick, 3 Ex. 552. 4. The enjoyment can not become a right until twenty years after the expiration of any lease or deed in writing, giving the right for a term of years: Mayor of London v. The Pewterers Co., 2 Moo. & R. 409.

LOSS OF ENJOYMENT OF ANCIENT LIGHTS may come in three ways: 1. By abandonment; 2. By release; 3. By unity of possession. "When a window has been shut up for twenty years the case stands as though it had never existed:" Laurence v. Obee, 3 Camp. 514. "There is nothing unreasonable in holding that a right which is gained by occupancy should be lost by abandonment." And a cessation of enjoyment for a much shorter period will put an end to it: Liggins v. Inge, 7 Bing. 693; Reg. v. Chorley, 12 Q. B. 518. So where plaintiff had a house with ancient windows, and tore it down, and put up a barn without windows instead, which stood seventeen years, and defendant erected a building next to the blank wall of the barn, and plaintiff then cut a window in the wall where the window had formerly been, and then brought an action for obstruction of this window, it was held that judgment should be in favor of the defendant: Moore v. Rawson, 3 Barn. & Cress. 332; S. C., 5 Dow. & Ry. 234; Stokoe v. Singers, 8 El. & Bl. 31.

WHETHER ALTERATION OF A WINDOW WILL BE CONSIDERED AN ABANDONMENT of a right to light to it, has been much discussed, and the decisions are conflicting upon the question. It was early decided that merely changing the sash and blinds, or even glass, would not be construed as an abandonment of the right: Cotterell v. Griffiths, 4 Esp. 69; Turner v. Spooner, 1 Drew. & Sm. 473; Jackson v. Duke of New Castle, 33 L. J. (N. S.) Ch. 702; 4 N. R. 450.

THE ADDITION OF NEW WINDOWS DOES NOT AFFECT THE PRIVILEGES OF OLD ONES; and the enlargement of a window leaves the space it occupied-still privileged: Chandler v. Thompson, 3 Camp. 80; East India Co. v. Vincent, 2 Atk. 83; Cherrington v. Abney, 2 Vern. 646; Thomas v. Thomas, 2 Cromp. M. & R. 39. This seems to be a rational doctrine, but a different view took possession of the courts; and in Renshaw v. Bean, 18 Q. B. 112, which was for a time a leading case upon the subject, it was held, that where the owner made such additions that the owner of the adjoining land could not obstruct the new windows without affecting the old, he might obstruct all: Hutchinson v. Copesleake, 8 C. B. (N. S.) 102, and 9 Id. 863; Wilson v. Townend, 1 Drew. & Sm. 324; Davies v. Marshall, Id. 557; Turner v. Spooner, Id. 467; Weatherley v. Ross, 1 Hem. & M. 349; Garritt v. Sharpe, 3 Ad. & El. 330. The original doctrine has been restored by the decision of the house of lords in the case of Tapling v. Jones, 11 H. L. Cas. 290; S. C., 34 L. J. (N. S.) C. P. 342. The case was elaborately argued, is a representative one in many particulars, and will undoubtedly fix the doctrine for the future.

RIGHT TO WINDOW LIGHTS MAY ALSO BE EXTINGUISHED BY EXPRESS RELEASE. But in order to be effectual it must, as in the case of any other incor. poreal hereditament, be under seal. Nevertheless a person may, by his conduct, release his right to ancient lights, or at least do that which accomplishes the same purpose. Thus where the owner has induced another to incur expense in a way that infringes upon such owner's rights, a court of equity will prevent his insisting on his legal rights so as to defeat the object for which the expense was incurred: Dann v. Spurrier, 7 Ves. 231; Dunball v. Walters, 12 L. T. (N. S.) 759.

WHEN THE OWNER OF WINDOW LIGHTS BECOMES ALSO THE OWNER OF THE LAND Over which the light comes, the right to light as an easement is suspended. In Simper v. Foley, 2 Johns. & H. 563, Wood, V. C., said: "I apprehend it is clear that the effect of a union of the ownership of dominant and servient tenements for different estates, is not to extinguish an easement of this description, but merely to suspend it so long as the union of ownership continues; and that upon a severance of the ownership the easement revives." But if the estates of the two tenements are of an equally high and perdurable character, unity of possession will operate to extinguish the easement: Rex v. Inhabitants of Hermitage, Carth. 239. And even unity of seisin alone is considered sufficient: Scott v. Scott, 16 East, 343; Clayton v. Corby, 2 G. & D. 174. But mere momentary seisin is not enough: James v. Plant, 4 Ad. & El. 766.

EXTENT OF RIGHT TO ANCIENT LIGHTS.-The general rule in regard to the extent of the right to ancient lights is that the owner of the servient tenement must not make any such use thereof as to render the dominant tenement uncomfortable for occupation or less beneficial for the purposes of business. He may lessen the light of the dominant tenement, but in order to give the owner of it a right of action, there must be such a privation of light as to render the house uncomfortable or prevent him from carrying on his accustomed business, as he had formerly done: Back v. Stacey, 2 Car. & P. 465; Dent v. The Auction Mart Co., L. R., 2 Eq. 245; S. C., 35 L. J. (N. S.) Ch. 560; Wells v. Ody, 7 Car. & P. 410; Parker v. Smith, 5 Id. 438; Pringle v. Wernham, 7 Id. 377; Embrey v. Owen, 6 Ex. 353; Wynstanley v. Lee, 2 Swan, 338; Clark v. Clark, L. R., 1 Ch. 20; S. C., 35 L. J. (N. S.) Ch. 153. Whether there is any difference between the town and the country as to the amount of light to which the owner is entitled, there has been some question, but the doctrine now seems to be established that there is no difference: Yates v.

Jack, L. R., 1 Ch. 299; S. C., 35 L. J. (N. S.) Ch. 544; Dent v. The Auction Mart Co., L. R., 2 Eq. 248; S. C., 35 L. J. (N. S.) Eq. 562; Tipping v. The St. Helena Smelting Co., Best & S. 608, 616; Lyon v. Dillimore, 14 W. R. 511; Martin v. Headon, L. R., 2 Eq. 430; S. C., 35 L. J. (N. S.) Eq. 604.

But contra, see Durell v. Pritchard, L. R., 1 Ch. 251; S. C., 35 L. J. (N. S.) Ch. 226; Clark v. Clark, L. R., 1 Ch. 16; S. C., 35 L. J. (N. S.) Ch. 151; Robson v. Whittingham, 35 L. J. (N. S.) Ch. 228.

THE AMERICAN DOCTRINE DIFFERENT FROM THE ENGLISH.-It is now quite well settled in America that no right to light is acquired laterally over the land of an adjacent owner by mere use or prescription for any length of time. In other words, the English doctrine that by an uninterrupted enjoyment for twenty years the owner acquires a right of action against his neighbor for stopping ancient windows by the erection of buildings upon his own lands, is repudiated, and forms no part of the law of this country. The ground for the decisions are: 1. The making of a window in one's own building on his own land, though looking out over the land of his neighbor, is no encroachments upon his neighbor's rights, and can not therefore be regarded as adverse to him. It lacks therefore one of the chief elements of a prescriptive right. 2. The English doctrine is not applicable to the state of things in this country, and would, if applied, work mischievous consequences in our cities and villages. In Parker v. Foote, 19 Wend. 308, the question came directly before the court, and the case became a leading one upon the subject. This was an action for obstructing the light of the plaintiff's house, which he had built twenty-four years before upon land bought from the defendant. Defendant, after this lapse of time, built a house on the land he retained, and by so doing, obstructed the light to the plaintiff's window. Bronson, J., after an able and exhaustive review of the decisions, repudiated the English doctrine and declared it to be an anomaly in the law. The decision is based upon the two points above mentioned, and in regard to them says: "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, "but it can not be applied in the growing cities and villages of this country without working the most mischievous consequences. It has never, we think, been deemed a part of our law." This decision has often been approved in New York, and may be considered the settled law of that state: Myers v. Gemmel, 10 Barb. 537; Doyl v. Lord, 64 N. Y. 439; Johnson v. Oppenheim, 12 Abb. (N. S.) 449; Pickard v. Collins, 23 Barb. 444; Radcliff's Ex'rs v. Mayor etc. of Brooklyn, 4 N. Y. 200; Auburn and Cato P. Road v. Douglass, 9 Id. 447; White v. Spencer, 14 Id. 252; Matter of Olive Lee & Co.'s B'k, 21 Id. 20; Lampman v. Milks, Id. 512; Adams v. Van Alstyne, 25 Id. 238; Flora v. Carbeau, 38 Id. 115; Hall v. Augsbury, 46 Id. 625; McKeon v. See, 4 Rob. 467; Wolf v. Frost, 4 Sandf. Ch. 90; Banks v. Am. Tract Society, Id. 464.

The view thus taken in New York has been followed by nearly all the states where the question has arisen: Pierre v. Fernald, 26 Me. 436; S. C., ante, 573; Hoy v. Sterrett, 2 Watts, 327; Wheatley v. Baugh, 25 Pa. St. 532; Haverstick v. Sipe, 33 Id. 368; Napier v. Bulwurkle, 5 Rich. 311, overruling McCready v. Thompson, Dudley, 131; Fifty Associates v. Tudor, 6 Gray, 259; Rogers v. Sawin, 10 Id. 376; Carrig v. Dee, 14 Id. 583; Richardson v. Pond, 15 Id. 387; Paine v. Boston, 4 Allen, 169; Randall v. Sanderson, 111 Mass. 119; Hubbard v. Town, 33 Vt. 295; Hieatt v. Morris, 10 Ohio St. 530; Mullen v. Stricker, 19 Id. 142; Klein v. Gehrung, 25 Tex. 238; Ward v. Neal, 37 Ala. 500; Powell v. Sitas, & Woró Va. 1; Stein v. Hauck, 56 Ind. 65; Ray v.