Turner v. Thompson

• Decision Date: 31 January 1877
• Citation: 58 Ga. 268
• Parties: Ann W. Turner, plaintiff in error. v. Joseph C. Thompson, defendant in error.
• Court: Georgia Supreme Court

58 Ga. 268

Ann W. Turner, plaintiff in error. v. Joseph C. Thompson, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1877.)

Easements. Estoppel. Equity. Before Judge Harris. Chatham Superior Court. May Term, 1876.

Reported in the opinion.

John M. Guerard, for plaintiff in error.

A. P. Adams, for defendant. Jackson, Judge.

Mrs. Turner, as executrix of her husband\'s will, sold *a half lot in Savannah, on which the mansion-house stood, to Thompson, or rather to the vendor of Thompson, and at the same sale bought herself the adjoining half lot. The testator, Turner, had owned the whole lot for many years; he had built on the half lot sold to Thompson, and erected outhouses in its immediate rear; the other half lot, which the executrix bought, had been used as a shrubbery and flower garden, and other outbuildings were in its immediate rear, also erected by testator; there had been no dividing fence on the lot, separating it into two half lots, in testator\'s lifetime, nor at the date of the sale; the tenement, or mansion-house, had some windows opening upon the garden at the date of the sale, and which had been there all the time testator occupied the lot, more than twenty years; Mrs. Turner had her purchase of the garden half lot ratified by all the legatees of testator, and thus she and Thompson were both purchasers at the sale of the lot, and held under the same title. Sometime after the purchase, Mrs. Turner put up a high planking, or wooden obstruction within a few inches of Thompson\'s house, which obstructed to some extent the light and air entering at these old windows, and ran a line of fence dividing the lot so as to cut into the outbuildings of The opson some eleven inches. This line was an exact division of the lot, if it ought to be cut in two according to the old lines which divided it from adjoning tenements and lots, separated by old palings and houses; but it was not a correct division, according to the map of the city of Savannah, nor was it correct according to the outbuildings before mentioned in rear of the two half lots, nor according to a well of water dug on what was regarded as the dividing line to be afterwards used by occupants of both half lots in case of division and sale, nor according to the descriptive words in Thompson\'s deed. But another line nearer the garden lot, and marked by the city surveyor, was the true line, according to these last mentioned tests.

Thompson filed a bill in equity against Mrs. Turner to compelthe removal of these obstructions to the light of his *windows, and to remove this fence from off his land and put it where the true line was; and on the trial of the cause the foregoing facts were developed, and it was further proved that the obstructions were unsightly and injured Thompson\'s property; and on the other hand it was proved that refuse and slops were thrown from these windows by the occupants of Thompson\'s house upon Mrs. Turner\'s garden, injuring her shrubs, and causing her frequently to be put to extra labor and expense in cleaning up; and also that her privacy was very much interrupted in her garden, and she had been accosted rudely when in the garden by people from the windows.

Under the charge of the court the jury found that the line located by the city surveyor as the true line, which divided thelot substantially equally between the contestants, and gave to each half lot its appropriate rear buildings and ran through the centre of the wall, was the true line, and that the fence be accordingly moved on it; and further, that the obstructions were a nuisance and should be. torn down. Whereupon the chancellor decreed accordingly, and that the defendant, Mrs. Turner, be perpetually enjoined from ever obstructing the light and air through these windows; to which decree, on a motion for a new trial, exception was taken, and the case is before us for review.

The evidence is not clear in the record whether or not these obstructions are on the defendant's half lot according to the line testified to as the true one by the surveyor and so found by the jury; but from the map in the record, we take it that they are not on her half, but on the Thompson half lot.

1. The decree of the chancellor involves the subject of easements in ancient lights, the English doctrine thereon, the American view thereof, and what shall be the Georgia rule touching title to such lights derived from long use and possession thereof. There can be no doubt that the doctrine is well established by the common law of England, that long and uninterrupted use of such light, will give an *easement to the tenant so using it, to the light and air passing over the adjoining lands of another, and a property in such easement will thereby be acquired as certainly and completely as by grant or deed thereto—Washburn on Easements, 3d ed., 608, et seq.; Tyler on Fences and Lights, 521, et seq.; 1 Dick., R., 163; 2 Williams' Saunders R., 175. But the overwhelming current of American authority is the other way, and it runs upon the idea that such a principle is not appropriately applicable to this country, or the habits of our people. At one time, the earlier decisions, both in New York and Massachusetts, favored the English principle, which is now settled by act of parliament in the present reign, at twenty years' user to presume a grant; but the later decisions in both states, and, indeed, in almost, if not altogether, all the American states which have passed upon the subject, repudiate the principle as wholly inapplicable to us. Washburn on Easements, 612, et seq.; Tyler on Boundaries, etc., 531, et seq.; 19 Wendell, 309; 10 Barbour, 537; 10 Gray, 376; 14 Gray, 583; 15 Gray, 387. Our own statute, which adopted the English common law and the old English statutes, adopted them only where applicable to our people in this new country, and the circumstances surrounding them here; and that which is applicable to the situation of our sister states of the American Union will, in the main, be...