Atkins v. Chilson

Dewey, J.

The plaintiff relies upon two distinct grounds, either of which, he insists, will authorize and require the court to grant the injunction prayed for.

1st. It is contended that he may maintain his bill upon the right acquired by the principles of the common law, as held in England, by force of which twenty years’ adverse use of light and air gives to the possessor an easement of a perpetual character. The defendant denies this position to be well maintained in the present case, either by the facts or the principles of law as held in this Commonwealth. In relation to the rules of law, it is urged by the defendant, that the later English doctrines have not been sanctioned with us, and that they are not adapted to the state of things existing in this country, and especially are unsound and unreasonable when applied to the case of a mere use of lights, where such use might well have been enjoyed while yet doing nothing beyond what the. owner of a tenement has a perfect right to do, viz. placing a window in his own building and entirely upon his own premises ; indeed, doing nothing by reason of which he would subject himself to an action, and as to which the adjacent proprietor could only signify his dissent by the unneighborly act of erecting a wall or other obstruction sufficiently high to darken such window.

This question is an interesting one; and the view taken of it by the counsel for the defendant seems to have been sanctioned by the courts of the States of New York and Connecticut.

The tendency of our decisions has been the other way ; and the provisions of the Rev. Sts. c. 60, §§ 27, 28, may present this question, in this Commonwealth, in a different aspect from that in which it would otherwise have been considered. This statute provision obviates one of the strong objections against the English doctrine, inasmuch as it provides a very simple mode of preventing the mere use of light and air from ripening into a right, by filing a notice in the office of the register of deeds, and serving a copy of the same upon the party enjoying the use of such light and air. But, for the reasons which I shall hereafter state, we have not found it necessary to consider, or express any opinion upon the point whether any such legal easement in the light and air ever vested in the plaintiff, nor whether, if it once attached to the plaintiffs building, it has been subsequently lost by abandonment. This latter question of loss by abandonment would also have required a deliberate consideration ; but upon both these points no opinion is expressed by the court.

2d. Another and distinct ground, upon which the plaintiff places his right to an injunction restraining the defendant from the erection of a building on the adjacent lot of land, is that arising from the relation of the parties under the plaintiff’s lease to the defendant of the warehouse, by certain articles of agreement made on the 30th of December 1841. This lease is made with sundry exceptions, of which the one material to the present question is as follows : “ The said Atkins reserving to himself and his assigns the right to stop up, and build upon and against the five windows in said store, which front upon Ann Street, and to build against and put timber into the wall on the side of said store in which the said five windows are, at his and their pleasure.”

The plaintiff contends that this lease may be properly construed to contain an implied covenant that he shall enjoy all the rights reserved, free from any interruption by the lessee, and that the defendant may properly be enjoined to fulfil this covenant.

No doubt an injunction will lie, to restrain the lessee from violating his covenant, in a proper case, and when it is necessary to prevent irreparable mischief; as in the cases, stated in the books, of an injunction to restrain a lessee from ploughing up pasture lana contrary to the articles of indenture between landlord and tenant. Whether, in the present case, the plaintiff can raise any such covenant upon this indenture, as would support an action at law for the supposed breach, we do not deen> it necessary to decide. In the view we have taken of the merits ot the plaintiffs case, the present bill may properly be disposed of without pronouncing an opinion upon this point; for if the right be only doubtful, or the injury complained of trivial; if it be one easily compensated in damages; if there exist no immediate cause for the application of the power of the court in this peculiar mode; we should be slow to grant this prayer for an injunction. How far this application for an injunction, founded upon this implied covenant, is obnoxious to any or all of these objections, I shall hereafter consider.

When we recur to the principles upon which injunctions are granted in cases like the present, we shall find the doctrine to be, that the injury must be substantial; that it is to be abated because it operates clearly to destroy or diminish the beneficial use of the house or tenement thus deprived of its accustomed light and air. Upon this point, the case of the plaintiff" is entirely without merits. He has no house, or store, or building, as to which he has the occupation or right of occupation, that is affected in the slightest degree by the acts of the defendant in darkening these windows. If they are required to give light and air to the warehouse, it is no private injury, surely, to the plaintiff, who has demised that warehouse to the defendant, by a lease extending to the year 1852. This is the tenement to which the rights, if any exist, attach; and such is the nature of the plaintiffs interest therein. He has transferred to the defendant the right of occupation of the warehouse for the next ensuing eight years. Of course, any thing done by the defendant, in obstructing and darkening these windows, does no present injury to the plaintiff, so far as the warehouse is concerned.

But then it is said, that the plaintiff has a reversionary interest in the warehouse ; and he insists that this may avail him to sustain the present bill. The principle settled in Ingraham v. Dunnell, 5 Met. 118, bears directly upon this point. It was there held, that an injunction will not be granted to restrain an injury caused to a reversionary interest in an estate, unless such injury will probably be irreparable, or cannot be compensated in damages recoverable in a suit at law. Now it is quite obvious, that the injury occasioned by the erecting of the new building on the adjacent lot, is not irreparable. The new building may at any future time be taken down by the defendant, and removed, without the slightest injury to his tenement. It may as easily be done just before the plaintiffs reversionary right shall ehtitle him to resume the possession of the store, as at this early period.

The plaintiff relies, apparently with more confidence, upon his right to maintain this bill for an injunction, as a compulsory process restraining the defendant under the implied covenant in the indenture. How stands this part of the case upon the matter of deprivation of the plaintiff’s rights ? What is the substantial injury ? What is the deprivation of enjoyment of any right arising under such a covenant as is supposed, admitting the legal right to exist under the covenant, as claimed by the plaintiff? The reservation to the plaintiff was the right to stop up and build against the five windows in the southeasterly wall of the warehouse, and to insert timbers in the wall, at his pleasure. Does the erection of the new building on the adjacent lot constitute the only obstacle to the use by the plaintiff of the warehouse and its easements, in the manner reserved in the indenture ? Suppose the new building had not been erected, or suppose it now prostrated by order of the court; is the plaintiff any better able to use beneficially his rights reserved by the indenture ? He is not the owner of the adjacent lot, and has no right to the use of it. Unless, therefore, he can go farther than to obtain an order of the court for abating the supposed nuisance occasioned by the erection of this building on the adjacent lot, and can also obtain a decree of the court setting aside the lease of the Stodders to Chilson, he can acquire the present enjoyment of no privilege, by obtaining the injunction prayed for. And further; unless the plaintiff can obtain a decree of the court, compelling the Stodders to convey their adjacent lot to him, he would be without the means or the legal right to avail himself of the reservation. The wrong, therefore, which the defendant has done to the plaintiff, in the matter of the adjacent lot, is not to be remedied by granting the prayer for an injunction as to the erection of the building complained of. If any such breach of this covenant has occurred, it is much more properly a subject for an action at law. It is peculiarly a question to be settled at law, whether there is any such covenant, and, if so, whether there has been a breach ; and the injury alleged will admit of pecuniary compensation fully.

If it be urged that it may be necessary to sustain this bill in favor of the reversioner, in order to prevent the alleged encroachment upon his easement from ripening into a right by adverse use ; it may be replied, that the provision of the Rev. Sts. c. 60, § 28, on this subject, affords the plaintiff a simple and very economical remedy, fully adequate to the emergency.

Sill dismissed.