Morrison v. Marquardt

Dillon, Ch. J.

i. Dedication: Ry paroi. I. The principles involved in this cause have never been judicially settled in this State, They are principles of no ordinary importance. The a(jjLidieations elsewhere upon the same or similar questions are not uniform. This court is charged with the duty of deciding, which is the better, or what is the true rule in cases of this character.

Before proceeding further it should be observed that the testimony is voluminous, and upon some points conflicting. So far as the case involves questions of fact merely, it is not proposed to enter into an extended review of the evidence.

So far as it involves questions of law, and principles applicable to future cases, a more extended examination is not only proper, but is required, both by the importance of the cause itself, and the conspicuous ability with which it has been argued by the respective counsel.

It should be further remarked that the defendant admits the existence of the four feet right of way immediately south of the plaintiffs’ premises, and claims no right to build thereon.

There is evidence tending to show a dedication or contemplated dedication by Robinson of an alley ten (10) feet in width, on the east side of the premises, extending from the four feet right of way south to the public alley. But the existence or otherwise of the ten feet alley is not put in issue by the pleadings, nor is relief prayed in respect *54 thereof. Under these circumstances we leave open all questions in relation thereto.

Plaintiff insists that the property on which the defendant now proposes to build was dedicated by Eobinson as an open ar.ea, for access to the various stores, for the convenience of such stores as a place whereon to deposit barrels, boxes, etc., and to supply the rear of the stores with light and air. It is claimed also that the defendant knew of this dedication prior to his purchase, made June 12, 1866, and referred to in the statement of facts. No map or plat showing, and no writing expressing, such dedication, was ever made. But plaintiffs contend that there may be a dedication by parol, and that the present is a case of that character.

That there may be a dedication to public tose without a deed or other written evidence, is undoubtedly true. But in such cases the intent to dedicate should be clear, and the acts or circumstances relied on to establish such intention unequivocal and convincing. The present case does not meet this requirement. The plaintiffs testify that as an inducement to the purchase of their respective parcels, Eobinson stated to them that the area should remain open to the use of all the stores around it, the same as before. But this is positively denied, both by Eobinson and Judge Miller, his son-in-law and agent.

It is argued that plaintiffs are corroborated by the almost uniform depth of the various stores, and the fact that the ground had been left open and remained open, without objection, until about the time this suit was brought. But this is more than overcome by the circumstances that Eobinson always claimed to own the open ground in question, paid taxes thereon, exercised control thereover; and by the silence of the conveyances to the plaintiffs respecting any such right as that now claimed.

*55 It appears that the conveyances were made with deliberation and examined with care before being received and accepted. They are minute as to other rights and privileges, — rights of way, use of privy, etc., — but silent as to any rights in, to, or over the vacant ground, the alleged dedication of which is now claimed to have been a controlling inducement to the purchase.

If it was understood that plaintiffs were to have such valuable rights in the vacant ground, or if it was understood that it was dedicated to their use or that of the public, it is scarcely credible that they would have been satisfied with deeds making specific mention of “ mint and anise and cummin,” yet wholly “ omitting the weightier matters ” of the contract.

Again, Robinson had not the power to leave it all open, as it is claimed he represented he would. For Wheeler had his lease for 99 years, for 90 feet in depth, and up to within 20 feet of plaintiffs’ stores. Wheeler might build on or inclose this at his pleasure» He was not restricted as to the depth of the building to be erected by him. When Morrison purchased, Marquardt owned the land south of the window in the cellar and lower story of the Morrison building; and this was known to Morrison, and it is not likely that he would buy, relying upon Robinson’s promise that all the land should be kept open.

The maxim, expressio unius, etc., or, at least, the reason upon which it rests, would seem justly to apply here. For why mention a right of way four feet wide, if all was to remain open for a rear drive, access, place of deposit, etc.?

Again, the weight of testimony decidedly is that the plaintiffs, or at least one of them, wished to purchase of Robinson, to build thereon, the ground which they now claim was dedicated by him as an open area.

Upon the whole, the court is well satisfied that the *56 plaintiffs’ claim of dedication is not established. The case is essentially unlike Maxwell v. East River Bank ( 3 Bosw. 125 ; 26 N. Y. 105 ), and other cases cited on this head by the plaintiffs’ counsel.

2. easement: ana air. II. The next point made by the plaintiffs is, that it is an established principle of law, that if one man builds a house with windows or doors looking over or opening upon his adjoining vacant land, and sells the house, neither he nor his grantee can afterward build upon the vacant ground, so as seriously to obstruct the flow of light and air to the windows and doors of that house. Plaintiffs do not contend for the English doctrine of a prescriptive right to light and air.

But the exact position they take, as expressed in the written argument, is, “ That Bobinson, the former owner of the parcels sold to Morrison and Startsman (the plaintiffs), and at the same time of the open ground (subsequently sold defendant} and upon which he proposes to build), having sold to plaintiffs their respective parcels with buildings having windows, cannCt afterward build upon that portion retained by him in such a way as to obstruct the light and air necessary to the comfortable enj’oyment of the plaintiffs’ said buildings, and what Bobinson himself could not do, Marquardt, his grantee, cannot.” Defendant’s counsel deny that the above is an established principle of law.

That this principle is recognized by the English courts, admits of no doubt. Mr. Washburn states it thus : “If one who has a house with windows looking upon his own vacant ground, sell the same, he may not erect upon his own vacant land a structure which shall essentially deprive such house of the light through its windows.” Easements, 492, pi. 5.

Speaking of this subject, Chief Justice Tindal (in Swansborough v. Coventry, 9 Bing. 305, C. B. 1833) says:

*57 “ It is well established by tbe decided cases that where the same person possesses a house, having the actual use and enjoyment of certain lights, and also possesses the adjoining land, and sells the house to another person, although the lights he new, he cannot, nor can any one who claims under him, build upon the adjoining land so as to obstruct or interrupt the enjoyment of those lights. The principle is laid down by Twisden and Wtndham, JJ-., in the case of Palmer v. Fletcher, 1 Lev. 122, ‘ That no man shall derogate from his own grant.’ The same law was adhered to in the case of Cox v. Mathews, 1 Ventr. 237; by Holt, Ch. J., in Roswell v. Pryor, 6 Mod. 116; 12 Id. 215, 635 , and lastly, in the ease of Crompton v. Richards, 1 Price, 27” (A. D. 1814).

*101

Principal and toSborrow°wer money.

*100 “ 1. An agent has no right to borrow money on the *101 responsibility of his principal, unless he is authorized by his principal to do so, or unless authority to do so can be justly inferred from the acts of principal in connection with the business of the agency.

*57 The doctrine in question rests upon Palmer v. Fletcher, Cox v. Mathews, and Roswell v. Pryor, above cited. The other cases in England follow these as establishing the principle laid down by Chief Justice Tindal, in the extract just given. These cases are very briefly reported, and for convenience, and that what was decided may be exactly seen, they are given in a note. *

*58 The decisions in this country on the exact point as to whether the right to light and air will pass by implied grant are neither very numerous nor uniform. As sustaining the doctrine that a vendor of a house cannot afterward, on his adjoining vacant land, make an erection which shall deprive such house of light, see Story v. Odin, 12 Mass. 157 ; U. S. v. Appleton, 1 Sumn. 492 (arguendo per Story, J.); Lampkin v. Mills, 21 N. Y. 505 (arguendo per Selden, J.); Gerber v. Grubel, 16 Ill. 217 (arguendo). Opposed to this doctrine, see Myers v Gemmel, 10 Barb. 537 ; Palmer v. Wetmore, 2 Sandf. S. C. 316; Parker v. Foote, 19 Wend. 309 (arguendo per Bronson, J.); Haverstick v. Sipe, 38 Pa. St. 368 (arguendo per Lowrie, Ch. J.)

The grant of easements by implication has been much discussed in the courts of England of late years, as will *59 be seen by tbe following cases: Pyer v. Carter, 1 Hurlst. and Norm. (1 Exch.) 916, 1857 (as to drain) ; explained, Polden v. Bastard, 116 Eng. C. L. 257 (use of pump); Glare v. Harding, 3 H. and N. 937; White v. Bass, 7 Hurlst. and Norm. 722, 1862 (as to light); Curriers’ Co. v. Corbett, 2 Dr. and Sm. 355; Suffield v. Brown, 10 Jur. N. S. 111; Crossley v. Lightower, 2 Law Rep. Eq. 279, 1866; Clark v. Clarke, 1 Id. 16; Id. 442; Martin v. Headon, 2 Id. 425; Dent v. Auction Manf. Co., Id. 238; Podd v. Burchill, 1 Hurlst. and Coltm. 113, 119, commenting on Pyer v. Carter, supra. And see, also, Judge Redfield’s observations in Am. Law Reg. Jan, 1865, pp. 134, 135.

After this glance at tbe state of the adjudications, the question recurs, Is it a principle in our law, that, if a man sells a house with windows and doors opening on to his vacant ground, be, or bis grantee, cannot afterward build upon such vacant ground in such a manner as seriously to obstruct tbe flow of light and air to such bouse, without express reservation of tbe right so to do ?

Did the question depend alone upon the authority of the English cases, it would have to be answered in the affirmative. It is justly observed by Mr. Washburn that the decisions as to implied easements of light and air are not uniform, nor in all cases satisfactory. Easements, 497, pi. 17. If it be held that there may be implied easements as to light and air — as this implication arises wholly from the condition and circumstances of the estates to which tbe easement relates, and as this condition and these circumstances are almost infinitely varied — ■ it is easy to perceive tbe difficulties which environ tbe practical application of tbe doctrine.

Perhaps the law as to implied easements generally cannot be said to be fully settled, and this is particularly true in this country as to easements of light and air. Tbe *60 right to light and air seems in many respects to be different in its nature from easements relating to artificial erections on the servient estate, such as drains, gutters, pipes, etc., or rights of way and the like. See Parker v. Foote, 19 Wend. 309 , per Bronson, J.; Dodd v. Burchell, 1 Hurlst. and Coltm. 113, 119, per Pollock, C. B.; Haverstick v. Sipe, 33 Pa. St. 368, 371, per Lowrie, Ch. J.

As to light and air, I am free to say that I do not believe the rule, as applied to our situation and circumstances, a sound one, which holds that under any circumstances this right can by implication be burdened upon an adjoining estate, as to prevent the owner thereof from building upon or improving it as he pleases. I reverse the rule and hold that he who claims that ten, twenty or thirty feet adjoining him (which in Ssifjes may be very valuable) shall remain vacant and Áüimproved, should found such claim upon an express grank-or covenant.

.. This rule is simple. Grantor and grantee would both know .that the deed is the measure of their rights. Is it -¿aby,- hardship upon the purchaser to secure by expjress grant, rights so valuable to him and so detrimental to his grantor, — rights which, unless limited and defined by written stipulations, are of uncertain extent and uncertain duration ? See remarks of Patterson, J., in Blanchard v. Bridges, 4 Ad. & Ellis, 176. Such a rule also harmonizes with the purpose of our registration laws. A denial of an easement by mere implication, as respects light and air, may, in my judgment, well be, without denying that other easements of a different character maj^, and, in some cases should, be held to exist by implication.

But in the case at bar the court do not regard it as necessary to deny the general doctrine contended for by the plaintiff’s counsel.

*61

3_by impiication. The doctrine of implied easements rests upon the supposed intention of the parties, as deduced from the situaEon and condition of the two estates to which the easement relates. An easement may be briefly defined to be a charge or'burden upon one estate (the servient) for the benefit of another (the dominant).

In this case it would be a burden upon the estate retained by Eobinson, and afterward sold to the defendant, for the advantage of the plaintiff’s estate. This burden or servitude is that this should remain vacant, if to improve it would materially obstruct the passage of light and air to the plaintiff’s store.

4_must be clearly given. Now the circumstances surrounding this transaction make it quite clear that it was never intended that this easement should exist. In discussing a similar questi0n, Mr. Justice Story well remarks “ That in the construction of grants the court ought .ter: take into consideration the circumstances attendant upon, the transaction, the particular situation of the parties, the state of the country, and the state of the granted, for the purpose of ascertaining the intention’^!.*4^ the parties.” United States v. Appleton, 1 Sumner, 492, 520; see also 2 Wash. Real Prop. 26; Broome’s Leg. Max. 261; Wash, on Easements, 36, pi. 12; Karmuller v. Krotz, 18 Iowa, 352 ; Haverstick v. Sipe, 33 Pa. St. 368, 371.

The first circumstance we refer to as evincing this intention is the language and character of the conveyances to the plaintiffs. These conveyances contain express language as to several easements. The right of way is an easement. And in the deeds to both plaintiffs that is expressly secured. The right to the use of the privy is an easement. And in both deeds it is stipulated for in terms. The right of Startsman to right of way on the east (two and a half feet in width) was an easement, as *62 was also his right to extend the second story of his building over it. Noth of these were provided for in express words in his deed.

And the same is true as respects the right of Morrison to the roof under the Downey contract with Nobinson. This is also set down in his deed. Now, these are all easements; and are carefully secured by the deeds. If the parties had contemplated any other easement, such as the important one of light and air, would it not also most likely have been secured by the deed ?

This will be more manifest by other considerations. We allude next to the character and situation of the buildings purchased by the plaintiffs of Robinson. They both fronted on Washington street, which was one hundred feet wide. Morrison’s store (No. 7 on the plat) was built by Nobinson; that is, the first and second stories were built by him, and the third story by Cook, S. & Downey, in conjunction with him. It is only fifty feet deep, and seventeen feet wide inside. The stories are about fourteen feet high. The front in the first story is an open one composed of glass and iron, the windows being show-windows ten feet high, with two sets of lights each. In the rear of the first story was one door and one window, beyond which extended the eleven feet embraced in defendant’s original purchase, which was prior to Morrison’s purchase. The rear cellar window was very small, about eighteen inches or two feet square, with but two or three inches above the ground. There was a front cellar window, and the outside entrance to the cellar was in front! The second story had two large windows in front and one in the rear. When Morrison bought, the only access to the second story was by a stairway in the rear of the first story. The first and second stories had one room each, and were “finished off for one storeroom, counter and shelves below, and shelves above.” *63 Such was the condition when Morrison purchased. Since then, Morrison has entirely changed the interior arrangement. The stairway to the second story has been removed; an entrance has been obtained to the second story from the west; the second story has been partitioned off into two rooms, and is used for offices, the rear window being relied on for light to the back office.

When Startsman purchased No. 8, there was upon it a one story frame house with an open front, and with an addition extending back to near the south line. In the rear there was but one small window of but six or eight panes of glass. This old building was removed, and the present structure erected by Startsman, with an open front like Morrison’s in the first story, and three windows in the front of the second story. In the rear of the first story there is a sash door, and a large window. It is proper to observe that Nobinson knew, when he sold, that Startsman intended to replace the frame building with a new structure. These circumstances have been mentioned for the purpose of showing that these buildings, for the purposes for which they were erected, and in the condition in which they were sold, were not essentially dependent upon the rea/r windows for light. See Wash, on Easements, 504, pi. 26 ; 502, pi. 20; Blanchard v. Bridges, 4 Adol. and Ell. 174; Fifty Associates v. Tudor, 6 Gray, 255 , approving Back v. Stacey, 2 Car. and P. 465; Parker v. Smith, 5 Id. 438; 7 Id. 377, 410, and recent English equity cases before cited, as to what amount of light a party is entitled to under an implied grant or prescriptive right.

If not thus dependent upon the rear openings for “ such an amount of light and air as is reasonably necessary to the comfortable and useful occupation ” of the building, the necessity for an implied grant does not exist, and the *64 presumption that there was such a grant is very much weakened, if not entirely overthrown.

Surely, such an easement, uncertain in its extent and duration, without any written or record evidence of its existence, fettering estates and laying an embargo upon the hand of improvement which carries the trowel and the plane, and, as applied to a subsequent purchaser, against the spirit of our recording acts, and not demanded by any consideration of public policy — surely, such an easement should not be held to exist by mere implication, when such implication originates in no reasonable necessity. Mr. Washburn, assuming that there may be an implied grant of such easements, observes that “ the test seems to be whether what is claimed is reasonably necessary to the enjoyment of the part granted, and where that is not the case, it requires descriptive words of grant in the deed, to create an easement in favor of one part of a heritage over another.” Easements, 61 pi. 42; 36 pi. 12; 504 pi. 26.

Again he says the implied easements (according to the tendency of the cases) will be held not to exist, except in instances where, if the grantor were to build on his vacant land, the owner of the house would be “ virtually deprived” of the enjoyment thereof. Id. p. 502 pl. 20.

But there are other strong circumstances in the situation of the property against the existence of the supposed easement. Defendant, who now proposes to build, purchased his store (No. 4), before Morrison did, and at the same time purchased eleven feet in the rear. This eleven feet extended east beyond the rear window of Morrison. Robinson retained no rights in this eleven feet. Could not defendant at once have built upon this eleven feet, although it should obstruct the light to (store No. 7), still retained by Robinson ?

Plaintiffs’ counsel have seen the importance of this *65 point, and argue that the defendant could not build on the eleven feet so as to darken the windows in No. 7, even though Eobinson were yet the owner thereof. In their written argument they say: “ The doctrine of implied reservation keeps almost equal pace with, and is as fully recognized as, that of implied grant. The rule is, that if a man have a house with lights, and sell the same, but retain the land adjoining, he may not build thereon to the damage of the lights in the house sold; so if he sells the land and retains the house, the purchaser may not bmld hereon to the damage of lights of the house."

Such, it seems to us, cannot be the law. Such a doctrine, as applicable to cities, would be intolerable. The vendor sells the land, makes no reservation of any rights therein, parts with his dominion over it, receives his pay for it, and when his vendee proposes to build, he stays his hand with an implied reservation, and the vendee finds that he has made a barren, unprofitable purchase; that he owns and pays taxes upon a lot, to afford the vendor an unobstructed supply of air and sunlight. Lord Holt denied such to be the law in Tenant v. Goldwin, 2 Ld. Raym. 1093, and his opinion was recently (A. D. 1862) approved by the Court of Exchequer, in White v. Bass, 7 H. and N. 722 (denying the doctrine of implied reservation of an easement for light). See also Curriers’ Co. v. Corbett, 2 Dr. and Sm. 355; Suffield v. Brown, 10 Jur. N. S. 111; Crossley v. Lightower, 2 Law Eq. 279, 1866; Wash. Easements, 35, pl. 11; Id. 494, pl. 10; Johnson v. Jordan, 2 Metc. (Mass.) 234; Haverstick v. Sipe, 33 Pa. St. 368, 1859.

Therefore, the defendant had the right to build and darken the rear window of No. 7, and Eobinson could •not resist it. His right, then, to build was not affected by the subsequent sale of that store by Eobinson to *66 Morrison. This being so. there was no implied grant in the sale to Morrison from Bobinson, that the windows should remain unobstructed by buildings in the rear. The store of Startsman was not then erected. Although Bobinson knew he intended to build, there is no evidence that he knew such building, when erected, would essentially or reasonably need light and air from the rear; and, hence it seems difficult to say that there was an implied grant of such an easement. This consideration alone, it seems to us, is conclusive against the claim of-Startsman. Another and quite important eireumstance against the implied easement of light and air over the entire vacant ground owned by Bobinson at the time of his sales to the plaintiffs, is the express grant of a four feet right of way. This has before been alluded to in respect to other questions in the case.

In all the cases we have examined, in which an implied grant of light and air has been recognized, the house sold, and the land to which the easement has been attached, were adjoining. See Palmer v. Fletcher, Cox v. Mathews, Roswell v. Pryor, and other cases before referred to and stated.

We have found no case, although we have directed particular attention to the point, in which an implied grant of light and air has been holden to exist when the vendor, at the time of the sale of the first parcel, laid out a space or passage between it and the portion of the heritage or estate retained by him. The sei’vient tenement is thus disconnected from the dominant. It is argued by plaintiffs’ counsel that this is simply a way, and has no reference to light and air. So is a street or an alley a way ; but it is also an open space which admits the flow of light and air. The object of this way in the present case was to secure a passage to the privy, also an outlet through the right of way on the east, and possibly *67 a right of way to the contemplated ten feet alley; and also to secure the plaintiffs’ estate against the erection of buildings nearer than the four feet. If the alvunde testimony is competent to show the purposes for which the private way was laid out by Robinson, it shows that these were the purposes.

Without positively deciding that there may not, under any circumstances, be an implied easement of light and air, we hold that the circumstances before enumerated negative any such implication or easement in the case under consideration.

5. nuisance : abatement, III. The next and only remaining question relates to the plaintiffs’ rights in respect to the privy. This was situated on land owned by Robinson at the ^me he sold to the plaintiffs, and it adjoined the private way in the rear of their stores. The plaintiffs’ deeds, in express terms, granted to them “ the right to the use of the privy.” The right was embraced in the consideration paid for the property. It was not revocable at the will of Robinson or his grantee. It would exist at least as long as the privy should stand and have a right to stand. Defendant purchased the land upon which it was situated, and removed it at night, without the consent of the plaintiffs. He justifies this act upon two grounds: First, he claims that the vault was full, and hence the easement was at an end. Second, if this is not so, he claims the structure had become a nuisance, and therefore he had a right to abate it, and he abated it by removing it.

The first ground is not supported by the evidence. The vault was not entirely filled, and if it were, we think the plaintiffs might, if they saw proper, remove the contents and thus continue the right to the use of the structure. The point is made that it was Robinson’s duty to keep it in order, and that the defendant, by his purchase, takes *68 Robinson’s place. But tbe deed is silent upon this point, and it is not essential to determine upon whom the duty of keeping it in order would rest. See Wash. Easements, ch. 6, § 1, p. 564. Nor do we think the defendant was justified in removing it with strong .hand and against the plaintiffs’ wishes, on the ground that it was a nuisance. A party may, with his hand, abate that which is to him a nuisance, but such abatement does not consist in the destruction of the property unless such destruction be absolutely necessary. It is the offensive use of it that he is justified in abating. Barclay v. Commonwealth, 25 Pa. St. 503; 2 Hilliard on Torts, 95. Plaintiffs asked to try disinfectants. Defendant refused, claimed the right to remove it, and did remove it the same night.

The right to the use of this outhouse was property; and the plaintiffs’ right could not be thus summarily determined by the defendant. Defendant claims that the plaintiffs’ right to use the privy ended when Robinson conveyed to him; that the grant of the use is not a covenant running with the land. The plaintiffs’ rights were in the nature of a burden upon the estate on which the privy stood. The conveyance to the defendant of the estate did not disburden it of this servitude; particularly is this so, as the deed to the defendant is expressly made subject to the plaintiffs’ rights.

6 _restoratl0n' Again, the defendant claims “ that whether it was removed legally or illegally, the destruction of the privy extinguished the easement.” If the plaintiffs had destroyed it, this might well be held to extinguish the easement; but not when such destruction is by the party owning the estate which owes the servitude. The law holds out no such bonus for the commission of torts ; nor does it allow a party to gain and base a right upon an illegal act.

Again, it is contended that being destroyed, the only *69 remedy of the plaintiffs is an action for damages, as the court has no power to restore the privy. But it has the power to order the defendant to restore it, or to allow this to be done by the plaintiffs at his expense.

As respects the privy, we think the plaintiffs have a right under the circumstances above stated, to be put m statu quo. The cause will be remanded with directions to the court below to dismiss the plaintiffs’ bill, except as to the rights in relation to the privy; to enter a decree that defendant shall restore this, or in default thereof that plaintiffs may do so, and the expense, or so much thereof as may be equitable, to be charged to the defendant. The decree will also enjoin the defendant from erecting his proposed building so as to interfere with the site of the privy. Plaintiffs may, if they elect, claim damages and waive the right to a restoration of the privy. All rights in relation to the supposed ten feet alley on the east of the premises to remain open, not being embraced in this adjudication.

Reversed.

Palmer v. Fletcher (1 Lev. 122; S. C., 1 Siderf. 167, K. B. 15 Charles II). This was an action on the case for stopping lights. Absente le Ohiefe Justice. A erected a house upon part of his land, and demised the house to B, and the residue of the land to C, and C, with “loggs and auters chases sur le tekke ’adjoynant,” so obstructed the windows of the house as to render them dark and useless. It was held, that neither A, who built the house, nor C, claiming under him, could stop up the existing windows in the house. The reason given is that the grantor of the house could not derogate from his own grant.

Kelynge and Twisden, JJ., differed as to the effect, had the vacant land been sold first and the house afterward; the first contending that in that case the purchaser of the vacant ground might have stopped the lights; the latter denying that this would make any difference. [Kelynge was right, as shown by subsequent cases: Tenant v. Goodwin, 2 Lord Raym. 1093; White v. Bass, 7 Hurlst. and Norm. 722.]

Cox v. Mathews, 1 Vent. 239, was decided in 25 Charles II. It was an action for stopping lights. Lord Hale delivered the judgment of the court as follows;

“ If a man builds a house upon his own ground, he that hath the contiguous ground may build upon it, although he doth thereby stop the lights of the other house; for cujus est solum $jus est usque ad cesium, unless there be a custom to the *58 contrary, as in London.” But, “if a man should,build a house upon his own ground, and then grant the house to A, and grants certain lands adjoining to B, B could not build to the stopping up of A’s lights in that case.” This is all of the judgment except the remark of his Lordship that the present was- a plain case, for “ the defendant fixed boards to the plaintiff’s house.”

Note: That the case before the court was one where the obstruction to the light was upon land immediately adjoining, and the defendant had undertaken to nail up plaintiff’s windows.

Roswell v. Pryor, in different phases, was three times before the court; (5 Mod. 116; S. C., 12 Id. 215, 635. It was decided by the K. B, in 2 Anne.

The action was for stopping lights. The question before the Court (6 Mod. 116) was one of pleading, viz.: Whether the declaration was good without saying that the plaintiff’s house was an ancient messuage. The declaration did not show, though such seems to have been the case, that plaintiff and defendant were lessees under a common lessor.

Lord Holt’s opinion is in the following words:

“If a man have a vacant piece of ground, and builds thereupon, and that house has very good lights, and he lets this house to another, and afterward builds upon a contiguous piece of ground, or lets the contiguous piece of ground to another who builds thereupon to the nuisance of the lights in the first house, the lessee of the first house shall have an action upon the case against such builder; for the first house was granted to him with all the easements and delights then belonging to it.”

Note : That the facts of the case are not reported so that its exact nature is known; also, that the case put relates alone to landlords’ right to erect upon condguous ground buildings which shall operate to the nuisance of the lights in the lessee’s house.