Rogers v. Sawin

Metcalf, J. It is enacted by St. 1852, c. 144, that “ no person, who has erected or may erect any house or other building near the land of any other person, with windows overlooking such land of such other person, shall by mere continuance of such windows acquire any easements of light or air, so as to prevent such other person, and those claiming under him, from erecting any building on such land.” The question in the present cases has, by this statute, ceased to be of practical importance in any future case. We shall therefore omit such a discussion of that question, as we might otherwise have deemed advisable. By the English common law, as shown by the authorities cited by Mr. King, the open and uninterrupted use, by the plaintiff, of the window in question, for more than twenty years before the St. of 1852 took effect, constituted, or was at least prima facie evidence of, such an adverse possession and use thereof, as entitled him to an easement of light and air, and to an action for an interruption of such easement by the defendant ; and this, upon the ground that such uninterrupted use and possession would warrant, if not require, a jury to find a grant from the defendant, or from those under whom he claims, of a right to such possession and use. Is this the common law of Massachusetts ? We think not, and for the reasons given in the [379] American decisions cited by Mr. Sotuer, and the additional case of Cherry v. Stein, 11 Maryland, 23. The case of Pierre v. Fernald, 26 Maine, 436, satisfactorily answers the plaintiff’s argument drawm from the Rev. Sts. c. 60, §§ 27, 28. The short grounds of the decisions cited are, 1st. That the making of a window in one’s building, on his own land, and overlooking the land of his neighbor, is no encroachment on his neighbor’s rights, and therefore cannot be regarded as adverse to him : 2d. That 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. And we may add, that even by the English law, before St. 2 & 3 W. 4, c. 71, was passed, the defendant might lawfully have done in the oily of London what he has done in Boston. Hughes v. Keeme, Calthrop, 41. Anon. Com. R. 273. Truscott v. Wardens of Merchant Tailors’ Co. 11 Exch. 855. The plaintiff has no ground of exception to the instructions given to the jury. Exceptions overruled. * Footnotes [*] See Carrig v. Dee, 14 Gray, 583; Radcliff v. Mayor &c. of Brooklyn, 4 Comst. 200; Lampman v. Milks, 21 N. Y. 511; Haverstick v. Sipe, 33 Penn. State R. 368; Webb v. Bird, 10 C. B. N. S. 285, 286, and 8 Jur. N. S. 621