Ray v. Sweeney
| Decision Date | 21 March 1878 |
| Citation | 77 Ky. 1 |
| Parties | Ray v. Sweeney. |
| Court | Kentucky Court of Appeals |
APPEAL FROM GARRARD COMMON PLEAS COURT.
BURDETT & HOPPER FOR APPELLANT.
1. The English doctrine of ancient lights and implied grants has no application in this state. Our ancestors did not bring with them all the English common law, but only so much of it as suited the condition of this country. (1 Tucker's Blackstone, 8, 9.) If not repealed by the Revised and General Statutes the English doctrine is inconsistent with natural justice, and hence must be considered as not adapted to this country.
2. When Sweeney built his house upon the line of his lot, and left a door there, he knew that Ray, the owner of the adjacent lot had as great a right to build to the line as he had.
3. It is conceded that an ancient light can not be claimed in the absence of an express grant, unless it has been enjoyed for fifteen years.
In order to establish title to land by limitation the claim must be adverse. Light and air are not subject to appropriation or adverse claim.
4. An adverse claim is a right of action in the other party for the thing claimed. No such right of action exists for light or air, and therefore there can be no adverse user or claim of either. No prescriptive right can be acquired to light or air.
5. The first purchaser does not acquire a dominant estate unless there is an express grant to that effect. Nicholas v. Chamberlain, Cro. (Jac.) 121, relates to lead pipes under the surface of the land, and not to air or light. In Janes v. Jenkins, 34 Md. 1, much stress is laid upon the terms of the deed.
6. The English doctrine is disapproved. (2 Washburn on Real Estate, 316, 318, top pp.; Myers v. Gemmel, 2 Barb. 537; Parker v. Foote, 19 Wend. 309; Morrison v. Marquardt, 24 Iowa 35; Haverstick v. Sipe, 33 Penn. St. 368; Mullen v. Stricker, 19 Ohio St. 145; Rogers v. Sawin, 10 Gray, 376; Carrig v. Dee, 14 Gray, 583.)
7. A grant of light or air can only be implied in cases of absolute necessity. (1 Saunders, 323, note 6; Holmes v. Elliott, 2 Bing. 76; Proctor v. Hodgson, 29 Eng. L. & E. 453; Wash. on Eas. and Serv. 586, 587; Gerber v. Grabel, 16 Ill. 221.) But the broader ground is contended for, that in no state of case can the easement of light or air be implied. (Mullen v. Stricker, 19 Ohio 135; Cherry v. Stein, 11 Md. 1.)
R. M. & W. O. BRADLEY FOR APPELLEE.
1. The common law of England prior to fourth year of James I (1607) is in force in this state. (Sec. 8, art. 8, Const. Ky.; Hunt v. Warnicke, Hard. 62; Gen. Stat. 137.)
2. The leading case holding doctrine " ancient lights," unknown to common law of England prior to April 19, 1775 ( Parker v. Foote, 19 Wend. 309), and upon which all the decisions adverse to that doctrine are founded, is a plain but popular error. The doctrine was recognized in 1 Leon, 168 (1554); S. C. Cro. Eliz. 118 (1582); Aldred's case, 5 Coke, 104 (1611); Ryppon v. Bowles, 3 Cro. (Jac.) 373 (1615); Lewis v. Price, Spring Assizes, 176, notes p. 175, 3 Saund. (1761).
3. Time out of mind enjoyment was fixed at a period commencing before Richard I. Reduced to sixty years, reign of Henry VIII, afterward to thirty years, and then to twenty years. (Hale's Hist. Com. Law; Tomlin's Law Dic., " " Prescription." ) Under our law reduced to fifteen years. (See Gen. Stat.)
4. Uninterrupted enjoyment of light, air, water, or any other easement for twenty years affords ground for presuming a right.
5. An obstruction of ancient lights is a nuisance, and for such obstruction the party injured hath an action on the case. (Lewis v. Price, supra; Black.'s Com., star-pages 217, 220, 402; 2 Comyns's Dig., " Action on the Case; " 9 Co. 58; F. N. B. 154; 9 Reps. 58; Cro. Eliz. 118; 1 Leon, 168; 3 Salk. 247, 259.)
6. The doctrine of limitation is analogous to prescription. The decisions contra ancient lights are based upon a confounding of the two doctrines. Limitation is founded upon the actual adverse holding of a thing corporeal; prescription, the adverse use of a thing incorporeal, a mere enjoyment of that which another hath the right to discontinue for the period of limitation, and a user of which presumes an agreement or covenant, and this prescription exists in light, air, water, etc. The cases in United States holding that the doctrine of ancient lights does not apply here because this is a growing country, furnish the best reason why the rule should be held applicable, for if applicable in a crowded country, more the reason and greater the facilities in an open, growing country. In nearly all the states which have dispensed with this time-honored doctrine, the result has been attained by overruling opinions upholding the rule. In Maryland, Cherry v. Stein, 11 Md. 1-24, overrules Wright v. Freeman, 5 Harr. & J., 4, 77. In South Carolina Napier v. Bulwinkle, 1 Rich. 361, overrules McCready v. Thomson, 1 Dud. L. & E. 131. The question has also been decided both ways in Massachusetts and Alabama. In Maine the statute repeals the common law.
The doctrine has been fully recognized in Illinois (26 Ill. 219), in New Jersey (1 Green Chy. 64), in Louisiana (Lou. Ann. 407), and in Kentucky (Keasy v. City of Louisville, 4 Dana, 154; Manier v. Myers, 4 B. Mon. 520; City of Louisville v. Rolling Mill, 3 Bush, 426).
7. Long acquiescence and clear recognition of the doctrine by the people of the state should be held conclusive of its existence and application. This court has gone so far in this principle of general acquiescence as to declare that notwithstanding a statute is unconstitutional, such acquiescence gives satisfactory evidence that the true doctrine on the subject is different from that expressed in the fundamental law. (Robinson v. Swope, 12 Bush, 21.)
8. Although offense indictable, jury may give smart-money. This is not a double punishment, but a recompense to society and outraged law on the one hand, and to the individual on the other. (Chiles v. Drake, 2 Met.; Maddox v. Jennings, 8 B. Mon. 430.)
9. No exception or objection was had in the court below to the instructions enunciating the principle of ancient lights, and certainly none can be entertained here. Appellant himself asked for an instruction embodying the doctrine contended for. (Secs. 333, 334, Civil Code, and authorities cited.)
10. This court will not reverse except for error to the prejudice of substantial rights (sec. 756, Civil Code); nor will it reverse for error in instruction as to one point when the verdict is clearly right on another. (Lively v. Ball, 2 B. Mon. 54.)
[NOTE.--The opinions in this and the next case were suspended by petitions for rehearing at the time the opinions then delivered were sent to the printer.-- REP.]
The appellee is the owner of a lot in the town of Lancaster on which is situated a storehouse. In the rear of the storehouse is a room used as a tailor's shop and counting-room. The north end of the counting-room abuts on a house owned by the appellant, and the walls of the two houses extend to the division-line between their respective proprietors. The west wall of appellee's store and counting-room extends to his line on that side, and a building extending along the whole length of that line excludes from his counting-room light and air on that side. East of his store is a building adjoining it and extending about to the partition between the store and counting-room. Immediately east of the counting-room is an open lot in the possession of and claimed by the appellant and having on it a stable, privy, and cistern, used in connection with his house abutting on the north end of the store, and occupied as a residence. In the wall of the counting-room, separating it from the open lot, there is a door opening out into and a window overlooking the lot, through which light and air reach the counting-room.
In December, 1875, the appellant erected a small wooden building on the open lot opposite, and so near to the door and window in the counting-room as to substantially exclude the light and air.
To recover damages for the injury sustained in consequence of the obscuration of his window and door the appellee brought this suit, claiming that by long-continued and uninterrupted enjoyment of light and air flowing into his counting-room over appellant's lot, he had acquired a right to enjoy them as ancient lights.
The appellant answered in substance denying the right of the appellee to the enjoyment of the window and door as ancient lights.
Verdict and judgment were rendered for the plaintiff, and ...
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