Cunningham v. Dorsey , 3 W. Va. 293 ( 1869 )

Maxwell, J.

The property owned by Dorsey has been in his actual possession and'occupancy, and the actual possession and occupancy of those under whom he claims, since 1803 to the time the bill was filed in this case.

The property claimed by Cunningham as to the part thereof overlooked by the windows in the house claimed by Dorsey, Was in the possession and occupancy of the owners thereof from the year 1803 to the year 1826 inclusive, and has ever since that time been in the possession of the tenants of the owners.

Upon this state of facts it is claimed that Cunningham, and those claiming under him, cannot erect any building on his lot which will exclude the light or air from the windows of the Dotsey house. It is well settled by the English common law that the owner of a house or lot will be restrained by injunction and be liable to an action on the case if he makes any erections or improvements so as to obstruct the ancient lights of a house adjoining.

The Virginia convention, in May, 1776, by an ordinance then passed, declared.-that “the common law of England, and all Statutes or acts of parliament made in aid thereof, prior to the 4th year of James the First, which are of a general nature and local to that kingdom, together with the several acts of the colony then in force, so far as the' same may'consist with the several ordinances, declarations and resolutions of the general convention, shall be considered as in full force until the same shall be altered by the legislative power of the commonwealth.”

The Same provision is found in the Code of Virginia, 1860, page 112, in the following form: “The common law of England, so far as it is not repugnant to the principles of the bill of rights and constitution of this State, shall continue in full force within the same, and be the rule of decision., except in those respects wherein it is or shall be altered by the general assembly;”

By the 8th section of the Xlth article of the constitution of this State, “such parts of the common law and of the laws of the State of Virginia as are in force within the boundaries of the State of West Virginia when this constitution goes into operation, and are not repugnant thereto, shall be and continue the law of this State until altered or repealed bythe legislature.”

The common law of England, so far as it is not repugnant to the principles of the bill of rights and the 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 this State, unless repealed or modified by the general assembly of Virginia or the legislature of this State.

It becomes materia] in the examination of the case under consideration t.o ascertain what the' common law applicable to the principles of this case is.

What the common law is cau only be ascertained with any degree of certainty from the decisions of the common law courts on questions similar-to the questions involved in any given case.

The counsel on both sides of this case have cited, -as the leading case on the doctrine of aucient lights, Bury vs. Pope. The counsel for the appellants cite the case as reported in 1 Croke, 118, while the counsel for the appellee cites.it as reported in Leonard’s Reports, 168.

The court decided in this case that adverse enjoyment of lights for a time which must have exceeded thirty years did not give sufficient right to the party enjoying them to enable him to maintain an action for obstructing them. Both reports agree in this. The report in Leonard contains the following, which is not in the report in Croke : “But if it were an ancient window, time out of memory, &c., there the light or benefit of it ought not to be impaired by any act ■whatsoever,” and such was the opinion of the whole court. This case was decided in 31 Elizabeth, which I believe ivaa in the year 1589. What was then decided was that the enjoyment of the window for over thirty years was notsufficient to enable the plaintiff to maintain his action, and what was said by the coart was that if it had been “an aucient win» dow, time out of memory,” &c., the action might have been maintained.

What was said by the court in Bury vs. Pope, was after-wards repeatedly held to bo the common law of England, William Aldred’s case, 5 Coke’s Reports, 58; Hughes vs. Kerne, Yelverton’s Reports, 215; Newhall vs. Barnard, Ibid, 225. In Aldred’s case, decided in 1812, Bland’s case is referred to and approved, where it was said by the court in respect to the.windows, that “it may be that before time of memory, the owner of said piece of land has granted to the owner of the said house to have the said windows without any stopping of them, and so the prescription may have a lawful beginning.”

The last of this class of cases, holding that the use must be time out of mind, referred to, is that of Newhall vs. Barnard, decided in 1614.

The next case referred to is that of Darwin vs. Upton, 2 William Saunders, 175 a, in which it was-held that the enjoyment of lights, with the defendant’s acquiescence, for twenty years, created a presumptive bar to be left to a jury, Darwin vs. Upton was decided in 1786, and has since been followed by all the cases in England.

.It is apparent that the principles of the case of Darwin vs. Upton are widely different from those of the case of Bury vs. Pope, in respect to the time of enjoyment to give right.. There must be some reason for this difference existing somewhere. Although it has not been referred to in ány of the cases the reason must be found in the English statute of limitations, passed in 1623. , This statute limits the right of entry into any lands, tenements or hereditaments to twenty years. Certain it is that no case of the class of Bury vs. Pope has occurred since this statute, nor did any case of the class of Darwin vs. Upton occur before it. It would seem plain that the modern English rule has been adopted by apalogy to this statute.

If this English statute of limitations was ever in force in Virginia it was repealed by the act of 1792, .repealing all British statutes theretofore in force, with certain savings'.

The common law of England in force in this State as applicable to the case under consideration must therefore remain as laid down in Bury vs. Pope, and kindred cases.

The time that the property claimed by Cunningham was in the occupancy of the owners thereof, as we have seen, was from 1803 to 1826, a period of twenty-three years. This is not sufficient time to make the windows in the house now owned by Dorsey ancient, according to Bury vs. Pope.

The time intervening since 1826 cannot be computed against Cunningham, because for all that time the property was not in the actual occupancy of the owners thereof, but was in the possession and occupanev cf their tenants. Daniel vs. North, 11 East, 372; Washburn on Easements, &c., 493.

The reason for this seems to be that the enjoyment by the owners of the Dorsey house of the air and light admitted by the windows was not the source of any damage to the owners of the Cunningham property for which an action could be maintained by them, and their only remedy was to build a wall or put up some other obstruction on the lot near the windows to obstruct them. This they could not do while the lot was in the possession of tenants without committing a trespass on their rights, which they are not required to do.

So far as my examination has extended I do not find any decision of any court in this country where it has been decided that the common law rule in respect to ancient lights, as settled in the case of Bury vs. Pope, is or is not in force in any one of the United States, but the principles of the case of Darwin vs. Upton, as applicable to this country, have been reviewed by the courts of last resort in the States of Maine, Massachusetts, Vermont, Connecticut, New York, Pennsylvania, Maryland, Alabama, South Carolina and Iowa, and have been overruled by the courts of all these States, while upon the other hand they have been reviewed and sustained only in the States of Illinois and New Jersey.

The decree complained of will have to be reversed at the costs of the appellee, and this court, proceeding to enter such decree as the.court below ought to have rendered, must dissolve the injunction and dismiss the complainant’s bill.

The other judges concurred.

Decree reverse».

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