Bloom v. Koch. Second. Then it is said that complainant permitted a family or families of bad character to occupy the attic floor of his building, and that their behavior was such as to create a nuisance in the neighborhood. It appears that something of that kind did occur for a short time, but as soon as complainant was notified of it he ejected the offensive tenants. This forms no excuse. Further, to rebut the implication of a grant of the right of light and air over the lawn, the defendant points out and relies upon the fact that the house conveyed was provided with the recess or notch before referred to. It is argued with much force that that peculiarity in the structure of the house conveyed notice to the complainant when he bought it that it was intended for the purpose of permitting the owner of the adjoining property to build up to the line on his side. At first I was much struck with that argument, but upon reflection, I am unable to accede to it. If the notch was of sufficient depth to afford of itself reasonable light and air to the kitchens, the argument would have more force, but, in point of fact, it is quite clear that it is not of itself sufficient for that purpose, and may well have been contrived with a view to the hope that the party building on the adjoining lot would leave a similar notch in the house there to be erected, and that the two together might produce the desired result, or, as the best contrivance available, to give some light and air in case no arrangement could be made with the adjoining owner. We all know that human beings do live in places provided with a mere glimpse of light. But, standing by itself, I think it cannot be held to be an equivalent of an express notice by the grantor, the defendant, to the grantee, the complainant, that the deed of conveyance should not have the ordinary effect given to such a conveyance. And certainly it cannot have the effect of a reservation by the grantor of a right to build up to his line opposite those windows, and unless it has that effect, I do not see that it can have any. And then the whole situation must be considered. The defendant was the owner of all the properties. He had deliberately arranged the dwellings on them in such a manner as would Bloom v. Koch. give all the windows a good supply of light and air. He had erected a dwelling on lot No. 72, forty-five feet from the street, leaving a space of about ten feet in the rear of it, and a lawn, as we have seen, in front, and a paved alleyway of five feet between it and the line of lot No. 70, showing an intention to make a passageway from the rear of that house to the street on the side next to lot No. 70. Thus the indications were that if another dwelling were thereafter erected on the lawn in the front yard of lot No. 72 that passageway would continue along the east side of lot No. 70 to the street, and would not be built upon, and, if so continued, would afford a space of six and a half feet for light and air in front of the windows in question. Taking the situation as a whole, therefore, I cannot find that the notch in question can have the force claimed for it by the defendant. We now come to the main question, namely, did the fact that those windows opened, at such close proximity, upon the vacant space or lawn in the front of defendant's adjoining property at the time he made the conveyance, and the fact that the house was so constructed that the kitchens which they lighted could get light from no other source, make the use of light and air from defendant's lawn an easement over his land of such a character as that the right to continue the enjoyment of the influx of light and air passed with the conveyance? I had occasion to examine one phase of that question in the case of Toothe v. Bryce, 5 Dick. Ch. Rep. 589. I refer particularly to the cases there cited, namely, Palmer v. Fletcher, 1 Lev. 122; Cox v. Matthews, Vent. 239; Rosewell v. Pryor, 6 Mod. 116; Tenant v. Goldwin, 2 Ld. Raym. 1093; and see Gale Easem. *51, *53, *61, *63 et seq., and cases there cited. The question of apparent easement of light was distinctly dealt with by Chancellor Runyon in the case of Sutphen v. Therkelson, 11 Stew. Eq. 318, and after an elaborate examination of the authorities, the right of the complainant, in a case like this, to prevent the erection of a building which would darken his windows, was established and enforced against the grantee of the original grantor, who had no other notice of the complainant's right than that derived from the records. Bloom v. Koch. In addition to the authorities cited by Chancellor Runyon in the principal case of Sutphen v. Therkelson, Mr. Stewart has added a number of additional authorities in a note. The same question arose and was dealt with by Vice-Chancellor Bird in Ware v. Chew, 16 Stew. Eq. 493. There the complainant was a mere lessee of a one-story building adjoining a vacant lot, and with windows overlooking it belonging to the lessor, which was afterwards sold by the lessor to the defendant, Chew, who proposed to erect a building on it whose walls would be three feet and eight inches distant from the windows in the complainant's building, and he was enjoined. The point was taken that there should have been some proof produced to the court that a building erected at that distance from the windows would seriously affect the influx of light, but the learned judge held that the court would take notice of the laws of nature, and would itself determine the question of fact according to common experience; and, so acting, he held that the erection would necessarily be a nuisance. In Greer v. Van Meter, 9 Dick. Ch. Rep. 270, Vice-Chancellor Reed dealt with a similar question with the same result, and apparently without having his attention called to either of the two cases just cited. The contrariety of opinion among the jurists of this country upon the question of easements of light and air is dealt with exhaustively by Chancellor Runyon in Sutphen v. Therkelson, above cited, but I venture to make a suggestion as to one of the causes of that difference not noticed by him, and that is this: I think an examination of the authorities will show that the judges have given undue weight to one peculiarity of the casement of light and air, namely, the circumstance that the exercise of it by the owner of the dominant tenement over the servient tenement inflicts no actionable injury on the servient tenement. Ilence the exercise of it by the owner of the dominant tenement cannot be arrested or the enjoyment rendered contentious by the ordinary means of bringing an action at law by the owner of the servient tenement. Hence our jurists have denied the soundness of the whole doctrine of ancient lights as held in England, and held that an easement of light Bloom v. Koch. and air cannot be acquired by long use, and this is the foundation of the decisions in King v. Miller, 4 Halst. Ch. 559, and Hayden v. Dutcher, 4 Stew. Eq. 217. But some jurists have erroneously deduced from that doctrine the notion that there is no such thing as an easement of light and air. But the latter proposition is non sequitur. The circumstance that an easement cannot be acquired by long adverse user does not prove that there is no such easement. It is quite impossible to hold, with any kind of regard to the laws of our mother country adopted by us, that no such easement can exist. The fact that an easement cannot be acquired by adverse user does not prevent its being acquired by express or implied grant; by implied grant when it has the quality of being apparent and continuous. Another defence set up against the construction sought for is that the maxim expressio unius, exclusio alterius, or, in other language, expressum facit cessare tecitum, applies, because of the express grant of a right in the alley on the west side of the building. If the grant had applied to light on the east side, and had declared the distance from the windows within which the defendant might build, it would have been a complete answer. An illustration of that principle is found in the case of Denton v. Leddell, 8 C. E. Gr. 64. There two tenements had belonged to Dr. Leddell, who had devised one to the complainant and the other to the defendant, at a time when there was an apparent and continuous easement in use by the defendant's lot of flowage of water over the complainant's lot; but by his will he expressly stated the height to which the defendant might flow the complainant's land, which was less than the then actual flowage. Chancellor Zabriskie (at p. 67) states with accuracy the general doctrine upon which the complainant relies in this case, and then states the effect of the limitation contained in the will, namely, that it restrained the implied grant. But no case can be found where a restrictive grant of that kind of an easement on one part of grantor's land can have any restrictive force upon an implied grant of an apparent and continuous easement of an entirely different character on another part of the grantor's land. In the present case the easements on the west side have nothing to do with the easements on the east Bloom v. Koch. side of the lot granted. They are entirely disconnected, and they do not mention light or air. This question is also dealt with by Vice-Chancellor Reed in Greer v. Van Meter, and I refer to his forcible and unanswerable reasoning found in 9 Dick. Ch. Rep. 274 et seq. With regard to the right of the influx of light and air, it is clear that if the injury be serious and appreciable, this court has no right to refuse its aid on the idea that the complainant may be compensated by damages at law. The considerations which influence the English courts in that respect must be applied here with great care. Under the British constitution, the courts may be, and in some cases have been, invested by parliament with the right to compel a party to take a money equivalent for an injury to his property, even where it is not taken or injured for a public purpose; but courts in this country have no such right. This was distinctly held by me in a case of nuisance by fouling water. Beach v. Sterling Zinc and Iron Co., 9 Dick. Ch. Rep. 65. At p. 79, I quoted from the opinion of Mr. Justice Dixon, speaking for the court of errors and appeals, in Pennsylvania Railroad Co. v. Angel, 14 Stew. Eq. 316, where he says (at p. 329): "This principle rests upon the express terms of the constitution. In declaring that private property shall not be taken without recompense, that instrument secures to owners, not only the possession of property, but also those rights which render possession valuable. Whether you flood the farmer's fields so that they cannot be cultivated, or pollute the bleacher's stream so that his fabrics are stained, or fill one's dwelling with smells and noise so that it cannot be occupied in comfort, you equally take away the owner's property. In neither instance has the owner any less of material things than he had before, but in each case the utility of his property has been impaired by a direct invasion of the bounds of his private dominion. This is the taking of his property in a constitutional sense; of course, mere statutory authority will not avail for such an interference with private property. This doctrine has been frequently enforced in our courts." The decree advised by me in that case was affirmed, on oppeal, for the reasons stated in the court below. 10 Dick. Ch. Rep. 824. |