Ward v. Neal , 35 Ala. 602 ( 1860 )

R. W. WALKER, J.

The only question which the assignments of error present for our consideration is as to the sufficiency of the complaint. The demurrer was to the entire complaint, and not to each count separately. If either count sets forth a good cause of action, the demurrer should have been overruled.

[2.] The first count alleges,that the plaintiff was lawfully possessed of a cei'tain dwelling-house, in which “ there were, and still of right ought to be, four ancient windows, through which the light and air, during all the time aforesaid, ought to have entered, and still of right ought to enter into the said dwelling-house,” &c. Unless the introduction of the word ‘ ancient,’ into the description of the windows, has the effect of confining the plaintiff to proof of a right founded solely upon the long, uninterrupted enjoyment of the lights, there cannot be a doubt that the allegations of this count are broad enough to let in evidence of aright, founded either upon adverse enjoyment for the period prescribed as a bar to actions for laud, or upon grant, covenant, or agreement. In all other respects except the use of the word ‘ ancient,’ this count follows the most approved form of a declaration so framed as to authorize proof of any legal right in the plaintiff to the unobstructed enjoyment of the lights. — 1 Chitty’s Pl. 380-1; 2 Chitty’s Pl. 769-70 ; 2 Saunders’ R. 113 (6.;) Gerberv. Grabel, 16 Ill. 217, 224 ; 12 Mass. 159.

It is insisted, however, that the designation of the windows as ‘ancient,’ is equivalent to an averment that the plaintiffs right to preserve them unobstructed depends, not upon grant, covenant, or agreement, nor even upon adverse enjoyment, but solely upon the uninterrupted enjoyment of them for a long time. If this were so, the declaration would seem to assert a title founded on preseription ; that is, on the use and enjoyment of them for a time whereof the memory of man runneth not to the contrary. However improbable it may be that a right to this or any other easement should arise in this way in this country, we are not prepared to say, that a declaration alleging such a right, and its disturbance by the defendant, would not be considered good on demurrer. — See Gerber v. Grabel, 16 Ill. 221. The modern English doctrine, authorizing the presumption of a right to lights after an undisturbed enjoyment of them for the period prescribed as a bar to actions for the recovery of land, must not be confounded with the common-law title by prescription, which depended on immemorial usage.— 19 Wend. 312 ; 16 Ill. 217, 221.

But we cannot assent to the argument which assigns such an effect to the use of the word ‘ancient.’ Certainly, the mere fact that the windows are styled ancient, cannot so far narrow the scope, or alter the ordinary legal meaning of 1he other allegations of the complaint,as to confine the plaintiff to proof of a right arising from long and uninterrupted user. The windows may be ancient, and yet the plaintiff may have a right to the unobstructed enjoyment of them by grant from the servient owner.

[3.] Adopting this view of the complaint, it is obvious that the question raised by counsel, whether the right to this kind of easement can arise from the mere unobstructed enjoyment of it for the period prescribed by the statute of limitations as a bar to real actions, does not properly arise on this record ; and we will not now decide it. On this subject, see Angell Adv. Enj. 46, 92; 2 Saunders’ R. 175, &c.; Gale & W. on Easements, 191; 1 Esp. R. 148 ; Daniel v. North, 11 East, 371; 3 Kent, 448 ; Parker v. Eoote, 19 Wend. 309, 314-15; Myers v. Gemmel, 10 Barb. 537 ; Napier v. Bulwinkle, 5 Rich. Law, 311; Pierre v. Fernald, 26 Maine, 436; Cherry v. Stein, 11 Maryland, 1; Ingraham v. Hutchinson, 2 Conn. 597 ; Gerber v. Grabel, 16 Ill. 217; Atkins v. Chilson, 7 Metc. 398; Hoy v. Sterrett, 3 Watts, 331; Banks v. Am. Tr. Soc., 4 Sandf. Ch. 464 ; Robinson v. Pettinger, 1 Green’s Ch. R. 61; Manier v. Myers, 4 B. Monroe, 520; Ray v. Lynes, 10 Ala. 63; Stein v. Burden, 24 Ala. 148.

It follows from wbat has been said, that the court erred in sustaining the demurrer to the complaint. We have not considered tlie sufficiency of the second count.

Judgment reversed, and cause remanded.