Collier v. Pierce
[7, Gray, 18.]
Right to air and light is not acquired by purchase of lot on which stands a building overlooking an adjacent lot, and placed in the wall close to the dividing line between the two, where the owner of the lots sells them both by auction on the same day, with the privileges and appurtenances belonging to each, and though the sale and conveyance to him respectively precede the sale and conveyance of the other lot.
Action of tort for obstructing the access of light and air to a window in the plaintiff’s shop. The lot on which the shop stood, as well as an immediately adjoining one, was owned by the Concord Mill-dam Company. On April 25, 1853, the company sold both lots at auction, and deeds were soon afterwards given to them, with all the privileges and appurtenances belonging to them. The opinion gives the other facts of sale. When the sale was made, there was a window in the plaintiff’s shop standing upon the first lot sold, and looking out upon the other lot having no building upon it. Soon after the conveyance to the defendant, he erected a building upon the latter lot, touching plaintiff’s shop, and entirely obscuring the window, which was the wrong sued for.
J.G. Abbott and S.A Brown, for the plaintiff.
G.M. Brooks, for the defendant.
By Court, Shaw, C.J. The present case involves no question respecting the right which the owner of a building may claim for light and air through one or more windows, from and over the land of another, through actual use and enjoyment for a required length of time. The question turns wholly upon the construction of the deed from the Concord Mill-dam Company to the plaintiff, and that question is whether, by implication, any right to air and light was granted by that deed to the plaintiff.
The material facts are that this corporation, being the owners of land including the respective lots held by the plaintiff and the defendant, offered the land for sale by auction, in lots designated by metes and bounds. The lots were put up for sale and sold on the same day, one purchased by the plaintiff and the other by the defendant, that to the plaintiff being bid off first, and subsequently deeds being given accordingly, that to the plaintiff being first. Neither by the terms of sale nor by the deeds was any specific easement for air or light expressed to be granted or reserved to one over the other. Under these circumstances, we think the plaintiff did not acquire a right by implication to air and light over the lot acquired by the defendant, at the same sale, through an aperture for a window in the wall on the dividing line.
There having been, up to the time of sale, a unity in title in the whole parcel, no easement had been acquired by one over the other. The allotment and sale proposed a new mode of holding, and for purposes different from those under which it had previously been occupied. The sale was much more like a partition than a grant by a proprietor of one part of his estate, retaining the residue. If it had been intended to subject one to a servitude in favor of another, it is strange that it is not expressed, especially as such a sale, which it was quite competent for the owner to make, would have the tendency to enhance the price of one and reduce that of the other. We cannot distinguish it from the case of Johnson v. Jordan, 2 MET 239 [38 Am. Dec. 85]. There it was found that the actually existing drain was not necessary for the use of the tenement for which it was claimed. And in the present case, it does not appear that the window in question is necessary to the convenient enjoyment of the plaintiff’s tenement.
A case similar to this in some respects was cited by the plaintiff: Swansborough v. Coventry, 9 Bing. 305. But in that case the tenement was sold as a dwelling-house, “with all the lights, easements, rights, privileges, and appurtenances, to the same belonging, or in any way appertaining.” The right to lights therefore, as they then existed, was thus expressly granted.
In the present case, we are of the opinion that the plaintiff did not acquire the right to air and light through the window in question, from and over the defendant’s land, by implication, as a necessary incident, and therefore that this action for obstructing it cannot be maintained.
Judgment for the defendant.
Ancient Lights Defined: See exhaustive note to Pierre v. Fernald, 46 Am. Dec. 578. The English law was, that an action was laid for their obstruction, but this is no part of American law: Id., although in Mahon v. Brown, 28 Id. 461, it was held that the obstruction of ancient lights is ground for an action on the case. In Robeson v. Pittenger, 32 Id. 412, it was held that such threatened obstruction would be enjoined; but in Woodruff v. Johnson, 55 Id. 246, it was held that building so as to shut up an alleged ancient window in a house erected on the line of a lot would not be enjoined.
Easement of Light and Air Implied: Story v. Odin, 7 Am. Dec. 46; Livingston v. Mayor of New York, 22 Id. 622. For discussion of this matter see extensive notes to Story v. Odin, 7 Id. 49; Robeson v. Pittenger, 32 Id. 416; Mahon v. Brown, 28 Id. 463.
The Principal Case Was Cited in Royce v. Guggenheim, 106 Mass. 205, to the point that in the commonwealth of Massachusetts no easement of light or air exists over adjoining ground unless by express grant or covenant; and in Randall v. Sanderson, 11 Id. 120, that as no easement was expressly granted in the deed there mentioned, the plaintiffs showed no easement of light or air over defendant’s land. A historical allusion was made to the principal case in Keals v. Hugo, 115 Id. 213.