used by me in such a reasonable manner as not to divert the natural course of the stream from the lands below, or essentially to destroy the same use of it as it naturally flowed

over the lands of the proprietors above and below me.a *447 Prior occupancy short of *the statute term of prescription, and without consent or grant, will not confer any exclusive right, as between different riparian proprietors, to the use of a running stream. If, however, the prior occupant has enjoyed the use of water in any particular mode for twenty years, so as to have acquired a title by prescription, he is, in that case, entitled to remain undisturbed in his possession, in the mode and to the extent commensurate with the right as it has been acquired and defined by enjoyment. (1) But if the prior use of the stream should have been materially altered within the twenty years, to the injury or annoyance of any adjoining occupant, who had, in the mean time, possessed himself of the use of the water, the *448 title by prescription would be wanting as to such *al

Platt v. Johnson, 15 Johns. Rep. 213. In Hatch v. Dwight, 17 Mass. Rep. 289, the Ch. J. went beyond the doctrine in the text, for he said, that the first occupant of a mill-site, by erecting a dam and mill, had a right to water sufficient to work his wheels, even if it should render useless the privilege of any one above or below upon the same stream. If the right of prior occupancy, in the case stated, did not go thus far, the water privilege would seem to be rendered wholly useless for mill purposes to all parties. A more limited rule was laid down in Martin v. Bigelow, 2 Aiken's Vermont Rep. 184; for it was there held, that a mere prior occupancy of a running stream by a mill, did not prevent another person from using the same water above, on the same stream, in a prudent way, unless the mill below had been erected, and the water used for it more than fifteen years, being the period of limitation. The court said, that the common law on this point was not applicable in Vermont, as it would go to allow the person who erected the first mill on a small stream to control and defeat all mill privileges on the same stream above him. So, in Anthony v. Lapham, 5 Pick. 175, it was declared, that the owner of land, through which a natural stream flows, may use it for watering his cattle or irrigating his land, but he must use it in the latter way so as to do the least possible injury to his neighbour below, and he must return the surplus into the natural channel.

Tyler v. Wilkinson, 4 Mason, 401, 402.

• Saunders v. Newman, 1 Barnw. & Ald. 258. Van Bergen v. Van Bergen, 8 Johns. Ch. Rep. 282. Sherwood v. Burr, 4 Day's Rep. 244.

(1) If the channel be enlarged or varied, no right is acquired for this alteration, unless by the use of it for twenty years. Colten v. Pocasset M. Co. 13 Met. R. 429. See Dickenson v. Grand Junction Canal, 9 Eng. L. & E. R. 518.

terations, and they would be unlawful, and, consequently, a ground of action.a

2. The elements of air and light are rights or incidents attached to the enjoyment of real estate, and the law gives weight and effect to the first appropriation of them. They may be classed under the head of incorporeal hereditaments, and the Roman law considered things of this kind, consisting in rights and privileges, as res incorporales. If I build my house close to my neighbour's wall, I cannot compel him to demolish it, though it may obstruct my light, for the first occupancy is in him. On the other hand, the owner of a house will be restrained by injunction, and be liable to an action upon the case, if he makes any erections or improvements so as to obstruct the ancient lights of an adjoining house. The lights must be ancient to entitle them to this special protection; and it would seem, from the opinion of the judges in Bury v. Pope, that lights of thirty or forty years' standing were not deemed ancient within the purview of the old rule on the subject. There was no doubt, as early as the English revolution, that window lights which had become established by the legal time of prescription, were entitled to be protected against obstructions. In modern times the period of prescription or limitation has been shortened, and the uninterrupted and exclusive enjoyment of window lights for twenty years, has been held to be sufficient to raise a presumption of title to the unobstructed enjoyment of that protection. In Daniel v. North,f it was considered as settled law, that twenty years' quiet and uninterrupted possession of window lights was sufficient ground for a jury to presume a grant or covenant, provided there was evidence that the owner or

• Goodrich v. Knapp, M. S. case, decided in the Supreme Court of New-York, 1828.

b Inst. 2. 2.

• Cro. Eliz. 118.

d Villers v. Bell, 1 Show. 7. Palmer v. Fletcher, 1 Lev. 122. Aldred's Case, 9 Co. 58.

• Wilmot, J., 1761, in Lewis v. Price, Esp. Dig. 636, 2d edit. S. C. Williams' Saund. Rep. vol. ii. 175. note a. b. c. Darwin v. Upton, Williams, note, ibid. 8 Term, 159, cited by Buller, J. Back v. Stacy, 2 Russell, 121. Manier v. Myers &

Johns, 4 B. Monroe, 520, 521.

111 East's Rep. 371.

landlord (and not the tenant merely) of the opposite premises had knowledge during the twenty years of the fact. The right so acquired is not absolute, but prima facie evidence only of right, and it is liable to be rebutted and destroyed by proof to the contrary, and it is likewise subject to qualifications. Thus ancient lights are entitled to protection as such, in the precise mode, and to the extent enjoyed during the period which gave them the claim to be ancient lights, and no further.a (1) Nor can a person sustain a claim to an ancient window light, in derogation of his own grant of the adjoining ground, without reservation.b

This doctrine of ancient lights, or, in the language of the writers on the civil law, borrowed from the law itself, of "servitudes of lights or prospect " attached to estates, is laid down with great precision in the Pandects, and in the codes of those modern nations which have made the civil law the basis of their municipal law ; and it is evidence of much civilization and refinement in the modifications of property. But the doctrine is not much relished in this country, owing to the rapid changes and improvements in our cities and villages. A prescriptive right, springing up under the narrow limitation in the English law, to prevent obstructions to window lights, and views, and prospects, or, on the other hand, to protect a house or garden from being looked in upon by a neighbour, would effect essentially the value of vacant lots,

Martin v. Goble, 1 Campb. N. P. Rep. 320.

Palmer v. Fletcher, supra. Cox v. Matthews, 1 Vent. 237. Holt, Ch. J., in Roswell v. Pryor, 6 Mod. 116. Crompton v. Richards, 1 Price, 27. Story v. Odin, 12 Mass. Rep. 157. Nor will the making and enjoying window lights for twenty years conclude the adjoining neighbour, and prevent him from building up against such lights, unless there be evidence of his knowledge of the fact sufficient to presume a grant. A tenant in possession during the time is not sufficient of itself to raise the presumption, for he might have been indifferent to the encroachment. Daniel v. North, 11 East's R. 372. By the custom of the city of London, a man may build to any height, upon ancient foundations, although he darkens his neighbour's lights thereby, provided all the four walls belong to him. A reversioner may recover for obstructing ancient lights, to the injury of his reversionary interest. Shadwell v. Hutchinson, 3 Carr. & Payne, 615.

• Vide supra, p. 486, n. a.

(1) Renshaw v. Bean, 10 Eng. L. & E. R. 417.

or of lots with feeble and low buildings upom them. It was admitted, in Mahan v. Brown,b that a man might open a window in his own house overlooking the privacy of B., and unless the right to the window light had been secured by grant, acquiescence or otherwise, the only remedy for B. would be the erection, on his own soil, of an obstruction opposite the offensive window, and in that way shut out the light. At length the Supreme Court of New-York, in Parker v. Foote,c went so far as to declare that the modern English doctrine, on the subject of lights, was an anomaly in the law, and not applicable to the condition of the cities and villages in this country. (1) The injury resulting from window views was deemed rather speculative, and not analogous to the case of ways, commons, markets, water-courses, &c., where the injury was direct, palpable and material; and the same rule of presumption ought not to apply to two classes of cases so essentially different. (2) Though this incorporeal servitude of light is familiar to the laws of all civilized nations, and is under due regulations, a very valuable incident to the enjoyment of property, there does not seem to be any well founded objection to the decision in the case last referred to, so far as it goes to declare that the enjoyment of the easement must be uninterrupted for the period of twenty years, and under a claim or assertion of right, and with the knowledge and acquiescence of the owner; and that the presumption of right, under these circumstances, is not an absolute bar, and conclusive, but it may be explained and repelled, and is only a matter of evidence for a jury to infer the right.d

The English law does not recognise a servitude of mere prospect, except by express grant or covenant. Aldred's Case, 9 Co. 58. Tindal, Ch. J., in Penwarden v. Ching, Moo. & Mal. 400.

b13 Wendell, 261.

19 Wendell, 309.

d The Court of Appeals in South Carolina, in the case of M'Cready v. Thomson, 1 Dudley's Law and Equity Reports, 131, held, that an action on the case lay for obstructing the air and light of the plaintiff's windows, which he had the uninterrupted enjoyment of as an easement by the prescriptive right of twenty years and

(1) In Connecticut it is declared by statute, that a right to light cannot be acquired by prescription. Rev. Stat. 1849, tit. 29. ch. 1. sec. 18. See, confirmatory of the doctrine of Parker v. Foote, the case of Myers v. Gemmel, 10 Barb. R. 537.

(2) The same rule was declared in Ray v. Lines, 10 Ala. R. 63.

3. The right to the enjoyment of free and pure air, as incident to the estate, is likewise under the protection of the law. If, therefore, any thing offensive be erected so near the house of another, as to corrupt or pollute the air, it becomes a nuisance, and an action lies for the injury. On the other hand, if a tan-yard, for instance, renders the air of the house and garden, subsequently established, adjoining it, less pleasant and salubrious, the nuisance is remediless as to the person who voluntarily plants himself near it.a

(9.) Easements lost by abandonment.

A right acquired by use may, however, be lost by non-user; and an absolute discontinuance of the use for twenty years, affords a presumption of the extinguishment of the right in favour of some other adverse right. As an enjoyment for twenty years is necessary to found a presumption of a grant, the general rule is, that there must be a similar non-user to raise the presumption of a release. The mere non-user of an easement, for twenty years, will afford a presumption of a re

upwards. It is a reasonable right contributing to the comfort and value of a person's habitation. So the Court of Chancery will, by injunction, in a proper case, prevent the obstruction of light enjoyed for twenty years. Robeson v. Pittinger, 1 Green's N. J. Ch. R. 57.

2 Blacks. Com. 402, 403. Com. Dig. tit. Action upon the Case for a Nuisance, A. C. Rex v. Cross, 2 Carr. & Payne, 483. See supra, p. 441, n. a. 442. n. d. See further as to nuisance disturbing the rightful enjoyment of easements, Sir Wm. Jones, 222. Doddridge, J., in Jones v. Powell, Palmer, 536. 2 Rol. Abr. Nusans, G. pl. 1. 8, 9. Bower v. Hill, 1 Bing. N. C. Rep. 546. Hall v. Swift, 6 Scott, 167. Gale & Whatley on Easements, 395, 396. It is said by the Chancellor, in Catlin v. Valentine, 9 Paige's R. 575, that a slaughter-house in a city is prima facie a nuisance to the neighbourhood, and that it was not requisite to constitute a nuisance that the noxious business should endanger the health of the neighbourhood. It is sufficient if it be offensive to the senses, and renders the enjoyment of life there uncomfortable.

The remedies for disturbance in the rightful enjoyment of an easement, are, 1. By act of the party; for the injured party may enter upon another's land and abate the nuisance. 2. By action at law. 3. By suit in equity. See Gale & Whatley on Easements, part 4, c. 2.

b Prescott v. Phillips, decided in 1797, and reported in 2 Evans' Pothier, 136. Lawrence v. Obee, 3 Campb. Rep. 514. Bracton laid down the same principle, that incorporeal rights acquired by use may be equally lost by disuse. Lib. 4. De assisa nova disseisinæ, c. 38, sec. 3. Corning v. Gould, 16 Wendell, 581. The last case contains a full and learned view of the law on the subject.