July Term, Powell vs. Sims, 1871. "for the lights are a necessary and essential part of the house." The next case, Cox vs. Mathews, simply adheres to the case of Palmer vs. Fletcher, and the proposition is stated by Lord Hale, who pronounced the judgment in the same form and nearly in the same language as the first case, assigning no reasons except the remark that it was a plain case, "for the defendant fixed boards to the plaintiff's house." The proposition is also put in the same form and in similar language by Ch. J. Hautt, in Roswell vs. Prior, that followed soon after. The controversy in this case was between landlord and tenant, and it is stated in the opinion or judgment, that it was agreed by all the judges that, "formerly the way was to declare of ancient lights and ancient messuage, but now that was altered." And Palmer vs. Fletcher and Cox vs. Mathews are cited to show that it was necessary in these cases to deed ancient lights and messuage. The facts of the case are not given; but from a note of the reporter, it appears that an objection was raised, by motion in arrest of judgment, after verdict, because the declaration failed to aver ancient lights and messuage, and it was held by the whole court, that "being after verdict, it shall be intended that it was given in evidence on the trial that the house and windows were ancient." From this, it would seem that the cases are mixed up and confused with the early doctrine of ancient lights by prescription, and that even in these cases it was necessary and indispensable to a recovery for stopping the lights, if not to aver it in the declaration to prove on the trial, that the house and lights were ancient. And it may therefore be, from anything that appears to the contrary, that in the cases above referred to, the plaintiffs, in the view of the court, had acquired an easement of light by prescription under the statute reducing the period necessary to acquire such right to twenty years, notwithstanding it is said in some of them the right in such cases existed though the house or messuage be new. A doctrine of so much practical importance thus established, unless founded in wisdom and sound policy, it appears to me would have but little to recommend it to the favorable consideration of courts at the present day, and ought not to be adopted and applied here, unless on account of its intrinsic worth, it be considered the proper and better rule applicable to the cases in this country. Turning to the American July Term, Powell vs. Sims. 1871 authorities, I think there can be no mistaking the tendency of the cases. It will be found that in nearly all the States in which the question has been raised, the English doctrine of easements of light by prescription, which appears to be so tenaciously adhered to in that country, has been reprobated and discarded altogether as unsuited to our people and condition, and inconsistent with the existing system of registration in this country; that in a few instances only has the principle established in Palmer vs. Fletcher, and that class of cases, been acquiesced in and followed, while it has been greatly qualified in most of the cases where the question arose, and limited to cases of strong necessity. And there is also a manifest tendency to reject altogether the doctrine of implied grants of easements of light, and limit and confine such rights to express grants, so that the rights of the parties would be determined by the face of the deed under which they hold. 2 Washburn on Real Estate, 316, 18, top; Myres vs. Gemmell, 10 Barbour, 537; Parker vs. Foot, 19 Wendell, 309; Morrisson vs. Marquaidth, 24 Iowa R., 35; Haverstick vs. Sipe, 33 Pa. St., 368; Mullen vs. Strickler, 19 Ohio (State) R., 135; Rogers vs. Swann, 10 Gray R., 376; Carrig vs. Dee, 14 Id., 583. The prevailing doctrine here would seem to be, that an implied grant of an easement of light will be sustained only in cases of real and obvious necessity, and will be denied or rejected in cases when it appears that the owner of the dominant estate can, at a reasonable cost and expenditure, have or substitute other lights to his building, so that he may continue and have the reasonable enjoyment of the same; leaving the owner of the servient estate also to the enjoyment of his own property free from the restriction and burden that would otherwise be imposed upon it. In the application of this principle, doubtless, some embarrassment will sometimes be realized in determining the degree of necessity that ought to be required to support the right to the casement, and each case must necessarily be settled on the facts and circumstances surrounding it. This rule, it appears to me, is dictated by wisdom and sound policy, and sustained by the plainest principles of justice and equity, and ought therefore to be applied and enforced in this country. It is in accordance with the doctrine, long and well July Term, Powell vs. Sims. 1871. established both in England and this country, in reference to implied grants of easements of ways founded on necessity; 1 Saunders R., 323, Note 6. Holmes vs. Elliott, 2 Bing., 76; Procter vs. Hodgson, 29 Eng. Law and Eq., 453; Washburn on Eas. and Sev., 586-7, and authorities there cited. Why should the rule not be the same in both cases? Is there any difference in principle? If, as between coterminous land owners, an implied grant of an easement of way will not be permitted (as is well settled) where the party claiming it can have another way over his own property, why, it may with propriety be asked, should it not be so in the case of lights? I can recall no sufficient reason why it should not be the case, and it is conceived none could be suggested. Applying this principle to the case before us, it is easily settled, it being clear from the testimony in the record, that the appellee, for a very moderate and reasonable expenditure, can obtain other lights and air sufficient for the useful and reasonable enjoyment of the property in controversy, by substituting and shifting the windows from the west to the east front of said building; which would, at the same time, leave the appellant to the like use and enjoyment of his own property according to the boundaries designated in each of their deeds. And this would seem to accord with the intention and understanding of the parties at the time of their respective purchases, as it appears from the evidence of Stephen W. Downey, that at the time of the consummation of the sale to the appellee, and before the delivery of the deed, he was notified by said Downey, acting as the agent of the vendor, that the brick part of the property was under mortgage, and would have to be sold-and probably to the appellant-and that the vendor would put certain restrictions on the brick property if the appellee would remove certain other restrictions which had been placed on a certain house and lot which had been conveyed by the latter to the former in part payment for the property in dispute, and that the appellee then stated that he had no right to place any restrictions on the brick part, and the matter had never occurred to him before. And it further appears that certain other easements were secured to the appellee by express stipulations in his deed, which fact of itself has been held to be sufficient to rebut any presumptions of implied easements July Term, Powell vs. Sims. 1871. (such as is claimed here) founded on necessity or otherwise. Morrison and others vs. Marquard, 24 Iowa, 35. And it may moreover be well doubted whether under our registration act providing that "no estate of inheritance or freehold in lands shall be conveyed unless by deed or will," any such easements could be acquired except by express grant in the deed. Code, ch. 71, s. 1 p. 459. Upon the whole case the decree, in my view, should be reversed, the injunction dissolved, and the bill dismissed with costs to the appellant here and in the circuit court. The other Judges concurred. DECREE REVERSED. July Term, Barnum vs. B. & O. Railroad Company. Calbeeling. ALLEN S. BARNUM vs. BALTIMORE AND OHIO RAILROAD COMPANY. July Term, 1871. 1. An action of trespass on the case may be maintained (by reason of the Statute, Code 1860, ch. 148, sec. 7,) in any case in which trespass will lie. But the converse of the proposition is not provided for by Statute. Trespass, therefore, remains as at the common law. 2. Where a party is ejected forcibly from a car, and brings an action of trespass, and in his declaration alleges secondary or consequential damages by reason of detention, &c, a demurrer is properly sustained, as the declaration shows a case in which trespass at the common law will not lie, that action being always for immediate and direct injury. 3. In an action for being ejected from a railroad car; it is not sufficient to aver generally that the party was wrongfully ejected, but it must be sufficiently set forth that his expulsion was improper and wrongful; i, e.. being rightfully in the car he was illegally expelled. This was an action of trespass, brought to February rules, 1866, in the circuit court of Wood county. As the questions determined here arose upon the demurrer to the declaration, it is here inserted: "The Baltimore and Ohio Railroad Company were summoned in said circuit court to February rules, 1866, to answer the said Allen S. Barnum of a plea of trespass. And therefore, the said plaintiff complains for that on the sixth day of January, 1866, in a certain car belonging to said defendants (which are a body corporate created by the Legislature of the State of Maryland, but owning a railroad and property in the State of West Virginia), to wit, in a certain. car attached to the mail train running on said day, between certain places, among others between the town of Grafton and the city of Parkersburg, both in the State of West Virginia, the said defendants then and there, by their servant or agent, 1871. |