Term v. Petitioner

• Decision Date: 31 January 1869
• Citation: 3 W.Va. 293
• Court: West Virginia Supreme Court
• Parties: Jan'y Term, Cunningham et al. v. Dorsey. 1869.3 ■>:»no 39iPatrick Cunningham ct al. v. William Dorsey.

3 W.Va. 293

Jan'y Term, Cunningham et al.

v.Dorsey. 1869.

3 ■>: »

no 39i

Patrick Cunningham ct al.

v.William Dorsey.

Supreme Court of Appeals of West Virginia.

January Term, 1869.

1. The common law of England, so far as it is not repugnant to the principles

of the bill of rights and constitution of the State of Virginia, was in force in that State when the constitution of this State took effect, and is, therefore, the law of the State unless repealed or modified by the general assembly of Virginia or the legislature of this State.

2. Adverse enjoyment of lights for a lime which must have exceeded thirty

years, does not give sufficient right to the party enjoying them to enable him to maintain an action for obstructing them.

3. D. owned and occupied property in which windows had been constructed

since 1803. C. owned adjoining property which had been in occupancy of the owners from 1803 to 1820 inclusive, and had been in actual occupancy of tenants paying annual rental value from that time till the bringing of the suit in 1800. IX sought to enjoin the tenants of C. from erecting buildings on his lot that would darken his windows and impair the enjoyment of his property. IIkld:

1. That the time from 1803 to 1820, when the property of C. had been in possession and actual occupancy of the owners thereof, was not sufficient to make the windows of D. ancient lights.

2i The time from 1820 to the bringing of the suit cannot be computed in the period necessary to make the windows ancient, as the property of C. was not in the actual occupancy of the owners thereof, but in the possession and actual occupancy of the tenants. The ■ enjoyment of the windows by D. was not a matter for which C, or those from whom he derived title, could bring an action for damages, and the only remedy was to obstruct them, which they could not do without committing a trespass on the rights of the tenants, which they were not required to do.

This cause was brought to April rules, 1866. The complainant below, William Dorsey, filed a bill in the circuit court of Berkeley county, alleging his ownership in fee of a certain lot in Martinsburg, on which was erected a build- ing fronting on Burke street with wing extending to the rear. That for fifty years he and those under whom he held had, without interruption, enjoyed the light and air derived from windows on the west side of the rear building; that one Patrick Cunningham was the owner of the lot adjoining on the west side, and had leased it to J. W. and C. M. Slyer for a period of five years, who proposed to erect a building that would deprive complainant of the use and benefit of the windows on the west side of his building. He asked that the parties named be restrained and enjoined from so interrupting his use and enjoyment of his ancient lights. The defendant Cunningham demurred to the bill, and answered that the building proposed to be erected would not be over fourteen feet high and would be five feet from the complainant's house; that the lot owned by him was in the business part of the town and if he was not permitted to build on it that it would be greatly impaired in value; that since he had been the owner of the lot it had been in the occupancy of tenants who had paid an animal rental value for the use thereof; that according to his information the former owners of the lot in fee simple, had not, within the memory of man, been in actual possession of it, but it had been in possession and occupancy of tenants who paid a rental value for the same. He denied that the consent of owners had ever been given, which was claimed by an amended bill, to the use of the windows by the defendant. J

The defendants Slyer answered that they had leased tho J lot and property of Cunningham for five years, and regarded themselves at liberty, under the lease, to erect any buildings they might think proper.

Several depositions were taken in the cause, from which it appears that the house and lot owned by Dorsey had been in the actual possession and occupancy of Dorsey and those under whom he claimed from 1808 to the bringing of the suit. That the property claimed by Cunningham had been in the actual occupancy of the owners thereof from 1803 to 1826, and that from that time to the bringing of the suit it ^ had been in the possession and occupancy of tenants, who paid an aunual rental value therefor. This is all-the testimony that it is necessary to show here, as it is all that bears on the point that was determined by this court.

The court below overruled the defendant's demurrer and perpetuated the injunction, whereupon they appealed to this court.

Stanton ft Allison for the appellants.

This case raises the question, is the English doctrine as to ancient lights the law of West Virginia?

We claim that a prescriptive right to light and air is not suited to the condition of this State or any other country which is growing and changing so rapidly in all its relations of property as well as its values and modes of enjoyment. See Wash on Eas., 582-589, 2 Ed.; 2 on Real Prop., 318, 3 Ed., 18G8.

Such is the declared opinion of the legislature of West Virginia. See new Code of 1869.

The English doctrine has been repudiated and declared not to be the common law in the United States by the highest courts of the following States, which include nearly all of those wherein the question has been decided. Pierre. vs. Ferword, 26 Maine Rep., 436; Hubbard vs. Town, 33 Vermont Rep., 295; Game)/ vs. Dee, 14 Gray, 583; Paine vs. Boston, 4 Allen, 169; Ingraham vs. Hutchinson, 2 Conn. Rep., 584; Parker vs. Foote, 19 Wend., 309; 10 Barb.. 537; 4 Corns., 195, 200; Havcrship vs. Sipe, 33 Penn. St., 368, 371; Cheny vs. Sline, 11 Md., 1, 24, overruling 5 Har. & J., 477; Ward vs. JVeal, 37 Ala., 501, overruling a former contrary decision; Napier vs. Bedwickle, 5 Rich., 311-324, overruling MeCready vs. Thompson, Dudley, 131; Morrison vs. Margatt, 7 Am. Law Reg., 336, April 1868.

But if the English doctrine is to be enforced in this State, the complainant was not entitled to the relief granted upon the record in this case.

1st. The complainant had an adequate remedy at law by an action on the case for damages and therefore the Chancellor should uot have interposed. His right was disputed, and, to say the least, was not clear. Wash. Eas., 668, p. 1, 780, p. 4.

2d. There was no acquiescence on the part of Cunningham and those under whom he claims. None is alleged in the bill.

" User and acquiescence are both necessary. User alone, although twenty yeai"s and unmolested, if it be not sanctioned by the acquiescence of the party against whom the easement is claimed, is insufficient to raise the presumption of a license or grant." Matthews' Pres. Ev., 320, margin, p. 305-6. See also his article "as to lights," p. 318, 322; 3 Kent, 448, last edition, 573.

Dorsey's bill simply alleges user without interruption. This is simply equivalent to an allegation of "user unmolested" with language of the above authority and is insufficient and demurrable, unless it is also alleged that it was acquiesced in by the adjoining owner. See next quotation.

There is no allegation even that the user was with the knowledge of the adjoining owner.

"Nor can the presumption be made if the party who is alleged to have authorized the use of the easement, possessed only a particular interest in the estate prejudiced by it." Matthews, 321.

In order to acquire an easement of light over a parcel of land by adverse enjoyment, the same must have been had while the servient estate was in possession of the owner of the inheritance. No length of enjoyment as against a tenant can bind the rights of a reversioner. Baker vs. Riekirdson, 4 Barn. & Aid., 578; Daniel vs. North, 11 East, 372; Wash. Easements, 579, (margin, 493-4); Holland vs. Long, 7 Gray, 486; 3 Kent, 448.

In the case before the court the owner was not in the occupancy a sufficient time to secure to Dorsey an easement under the English rule. It is claimed that he was by Dorsey, but this should be clearly proved. If there is a reasonable or fair doubt upon this point the complainant should have been required to first resort to his remedy at law, where the question of fact would have been tried by a jury.

The proof does not establish that Dorsey would sustain real injury.

"To enable the party to maintain an action for the injury there must be a substantial privation of light sufficient to render the occupancy of the house uncomfortable, and to prevent the owner from carrying on his accustomed business on the premises as beneficially as he had formerly done, and it is for the jury to discriminate between practical inconvenience and a real injury to the enjoyment of the premises." Wash. Easement, 582, margin 4971, and authorities there cited.

"The common law of England is at this day the law of this commonwealth, except so far as it has been altered by statute or so far as its principles are inapplicable to the state of the country, or have been abrogated by the revolution and the establishment of free institutions. It adapts itself to the situation of the society, being liberalized by the courts according to the circumstances of the country and the manners and genius of the people, so as to effect a reasonable and substantial rather than literal compliance with its principles." 1 Tucker's Commentaries, 9; 1 Wash., 83; 1 H. & M., 162; 4 II. & M., 19; 6 Munf., 148; 3 Leigh, 339.

In pleading a right arising from long and uninterrupted enjoyment, the paHy who relies upon it must allege a grant of the right, though in point of fact no such grant was ever made. And there must be an adverse user under a claim of right or the presumption will not arise. 1 Tucker Com., book 2, p. 6; Wash. Ensments, 124; 4 Rand., 66.

Daniel Marker testifies that he owned the Dorsey house twenty-five years ago, and v&8 the owner from three to five years, and he made no claim of a right to light or air through those west windows. That he sold to ...