In some of the states it is provided by statute that a prisoner shall be entitled to bail, if, without just ground therefor, the prosecutor allows a term to pass without trial. But bail cannot be claimed as a matter of right for this cause when no such statutory provision exists. Delay in bringing on the trial, on the part of the prosecutor, without just cause, might be sufficient ground to induce the court to exercise the discretionary power of admitting to bail. But the circumstances must be very strong to induce the court to allow bail for such a cause: 3 Wash. 224.

THOS. F. DAVIDSON.

RECENT AMERICAN

DECISIONS.

Court of Chancery of Delaware.

JAMES E. CLAWSON v. JOSEPH PRIMROSE.

The English doctrine of presumptive title to light and air received over land of another person, arising from the uninterrupted enjoyment of it for twenty years and upward, through the window of a dwelling-house, was part of the common law of England and of the colonies at the period of American Independence, and as such continued to be the law of Delaware under the constitution of the state adopted at the organization of the state government in 1776.

A court of equity will restrain the obstruction of lights by erections on adjoining land, even where the right is unquestioned or established, only when the privation of light and air by a proposed erection will be in such degree as to render the occupation of the complainant's house uncomfortable, if it be a dwelling-house, or if it be a place of business, the privation must render the exercise of the business materially less beneficial than it had formerly been.

A fair test of what is such a privation of light, etc., is the fact that a jury would give substantial and not merely nominal damages.

Construction of that clause of the Constitution of 1776, declaring the common law of England to be in force in this state.

Principles for determining what parts of the English common law are inapplicable in this country.

BILL in equity. The complainant was the owner and occupier of a dwelling-house, situated in the town of Smyrna, and adjoining, on the northerly side, an unimproved lot of the defendant. In the complainant's house were several windows overlooking the defendant's lot, through which light and air were received into the house. At what precise time these windows were opened, did not appear; but it was proved that they had been in their present condition, and used by the successive owners and occupiers of the dwelling-house, for a period of over thirty-five years past. The

defendant being about to remove a frame tenement to the lot, and to locate it against the northerly side of the dwelling-house, so as wholly to darken the windows, the bill was filed for an injunction to restrain the proposed obstruction. The material facts touching the precise location of the windows and the effect of the obstruction, are stated in the opinion of the chancellor.

J. Alexander Fulton, for the complainant.

George V. Massey, for the defendant.

The opinion of the court was delivered by

BATES, Chancellor.-Two preliminary objections were taken to the relief sought by the bill. One of them was this: that even conceding to the complainant the right claimed to receive light and air over the defendant's lot, yet that the proposed obstruction will not impair his enjoyment of the dwelling-house in such degree as to warrant the interference of a court of equity, but that he should be left to seek redress in damages at law. The rule on this point, as first announced by Lord ELDON, in Attorney General v. Nichol, 16 Ves. Jr. 337, and followed in all subsequent cases, is, that a court of equity does not in all cases restrain the obstruction of lights by erections on adjoining land, even though the right is unquestioned or established, but only when the privation of light and air by a proposed erection will be in such degree as to render the occupation of the complainant's house uncomfortable, if it be a dwelling-house, or, if it be a place of business, the privation must render the exercise of the business materially less beneficial than it had formerly been: Wynstanly v. Lee, 2 Swanst. 358; Sutton v. Lord Montfort, 6 Eng. Ch. R. 257; Dent v. Auction Mart Co., L. R. 2 Equity Cases 238. In the latter case, Sir WM. PAGE WOOD, V.-C., enables us, by an easy test, to determine what is such a substantial privation of light and air as should induce this court to relieve. He says "that where substantial damages would be given at law, as distinguished from some small sum of 57., 107. or 207., the court will interpose; and on this ground, that it cannot be contended that those who are minded to erect a building that will inflict injury upon their neighbor have a right to purchase him out without an Act of Parliament for that purpose having been obtained."

In the present case, the threatened obstruction, if the complainant's title be conceded, is sufficient, within the rule, to be the

subject of equitable relief. The windows on the north side of the house overlooking the defendant's lot will be wholly closed. One of these is in the cellar, and without this window there could be no means of lighting and airing the cellar. Another window is in the kitchen, at the rear of the dwelling. The kitchen would be left with one window on the opposite or south side. Another window is in the attic, at present the only window in that part of the house, though a witness states that other arrangements might be made for lighting that part of the house.

Another, and the most important of the windows threatened, is on the north side of the dining-room. There is no window on the south side of the dining-room opening out of doors. There was such a window in former years opening into a covered porch, but some sixteen years since the porch was enclosed and made a part of the interior of the house. It so remains. Mr. Stockley, who occupied the house before the porch was enclosed, testifies that, even with the south window opened as it then was, the room could not be comfortably lighted or ventilated without the north window, the porch having a roof so low and wide as to admit but little light and air. It must be sufficiently apparent that the obstruction of these windows will very materially impair the complainant's enjoyment of his property.

But it is objected further that the complainant, having an open space on the south side of his house, can by other arrangements supply the deficiency of light and air, and that there is therefore no necessity for the interference of the court. Without stopping to inquire whether adequate arrangements of that kind could be made, it is enough to say that such a consideration is not admissible to affect the right of the complainant to enjoy his property after the manner in which he previously held it. If the English doctrine of ancient lights be our law, and the complainant has by twenty years' user acquired a title to this servitude, most clearly the title gained is the right to enjoy his dwelling as he has so long held it, and he cannot be compelled to alter his house so as to suit the convenience of his neighbor. This principle has been recently adjudged by V.-C. Sir WM. PAGE WOOD, in the case of Dent et al. v. The Auction Mart Co., before cited. There the injunction was sought against the erection of a house at some short distance from the complainant's house, the effect being partially to darken a window, and one of the defences was that the complainant could avoid the injury by enlarging his window. But the defence was

not sustained. "The complainants," says the V.-C., "are clearly entitled to retain the right as they acquired it, without being compelled to make any alterations in their house to enable other people to deal with their property." I have found no other case on this point in England or in America, though after diligent search.

We are then brought unavoidably to the main question in controversy, viz.: whether in this state the uninterrupted enjoyment, by the owner of a tenement, of light and air received laterally over the land of another for more than twenty years, raises a title to the future unobstructed use of the same.

Incorporated rights generally-such as ways, water-courses, &c. are the subjects of presumptive title, arising from twenty years' adverse user, by analogy to the statute limiting entries into lands, and that both in England and in this country. In England this general doctrine of presumptive title to incorporeal rights or easements includes, as one of them, the enjoyment of light and air. Does the law of presumptive title in this state, in like manner, extend to light and air? That is the question.

A careful reading of all that could be found to bear upon the subject, with much reflection, leads me irresistibly to the conclusion, that the doctrine of presumptive title to light and air from twenty years' enjoyment, as it was held in England prior to the statute of 3 & 4 Will. IV. (which simply converted the presumption of title into an absolute bar), was a part of the common law of title to real estate in England at the period of our separation from that country, and that by force of the constitution of this state, adopted in the year of its independence, that doctrine became the law of this state, subject only to alteration by the legislature.

The Constitution of September 20th 1776, adopted upon our separation from England and organization into an independent state government, provides, by art. 25, that "the common law of England, as well as so much of the statute law as has been heretofore adopted in practice in this state, shall remain in force, unless they shall be altered by a future law of the legislature, such parts only excepted as are repugnant to the rights and privileges contained in this constitution and the declaration of rights, &c., agreed to by this convention:" 1 Delaware Laws, Appendix, p. 89.

The object of this clause was to secure to the people, in their

VOL. XXIV.-2

transition from a colonial to an independent political state, a jurisprudence already complete, and adequate immediately to define and to protect their rights of person and property, and of citizenship generally, without awaiting the slow growth of a new system to be thereafter matured by legislation and judicial decisions. They had already, in their colonial state, as subjects of Great Britain, an established jurisprudence in the common law of England. It was a system of jurisprudence to which our ancestors of that day were deeply attached. They had esteemed it, throughout their colonial condition, to be their birthright, as English subjects, and their safest rule of conduct, so declaring it in several legislative acts. See Preamble to Act of 1719, 1 Del. Laws 64. This attachment to the common law pervaded all the colonies. The Congress of 1774, in its enunciation of certain fundamental rights and immunities, which were claimed for the American subjects of Great Britain, placed among the foremost of them the declaration that they were entitled to the common law of England, as also to such English statutes as were in force at the date of their colonization, and which, by experience, they had found applicable to their circumstances: 1 Story's Constitution, sect. 158, n.

The provision of our state constitution of 1776, adopting for the new state government the body of the common law, and in part the statutes of England, is the same in substance with the declaration of the Congress of 1774 of what had before been held to be the force of the English common and statutory law in the colonies; and the obvious purpose and effect of the 24th article of the constitution were to give to the common law in this state, by constitutional adoption, the same force under the new government which, in their previous political condition, it had by virtue of their colonial relationship to the mother country. By the common law was of course meant the common law of England as it then stood, so far as it was applicable to the circumstances of the people, and was not repugnant, as the constitution expresses it, "to the rights and privileges contained in that instrument and the declaration of rights."

We now come to the two principal questions raised by the argument, viz.:

1. Whether the English doctrine of a presumptive title to light and air from twenty years' enjoyment, by analogy to the statute of 21 James I., was part of the common law of England prior to 1776; and