ANCIENT LIGHTS, estates. Windows which have been opened for twenty years or more, and enjoyed without molestation1 by the owner of the house. 5 Har. & John. 477; 12 Mass. R. 157,.220.
2. It is proposed to consider, 1. How the right of ancient light is gained. 2, What amounts to interruption of an ancient light. 3, The remedy for obstructing3 an ancient light.
3. – 1. How the right of opening or keeping a window open is gained. 1. By grant. 2. By lapse4 of time. Formerly5 it was holden that a party could not maintain an action for a nuisance to an ancient light, unless he had gained a right to the window by prescription6. 1 Leon. 188; Cro. Eliz. 118. But the modern doctrine7 is, that upon proof of an adverse8 enjoyment9 of light; for twenty yers or upwards10, unexplained, a jury may be directed to presume a right by grant, or otherwise. 2 Saund. 176, a; 12 Mass. 159; 1 Esp. R. 148. See also 1 Bos. & Pull. 400.; 3 East, 299; Phil. Ev. 126; 11 East, 372; Esp. Dig. 636. But if the window was opened during the seisin of a mere11 tenant12 for life, or a tenaucy for years, and the owner in fee did not acquiesce13 in, or know of, the use of the light, he would not be bound. 11 East, 372; 3 Camp. 444; 4 Camp. 616. If the owner of a close builds a house upon one half of it, with a window lighted from the other half, he cannot obstruct2 lights on the premises14 granted by him; and in such case no lapse of time necessary to confirm the grantee's right to enjoy them. 1 Vent15. 237, 289; 1 Lev. 122; 1 Keb. 553; Sid. 167, 227; L. Raym. 87; 6 Mod. 116; 1 Price, 27; 12 Mass. 159, Rep. 24; 2 Saund. 114, n. 4; Hamm. N. P. 202; Selw. N. P. 1090; Com. Dig. Action on the Case for a Nuisance, A. Where a building has been used twenty years to one purpose, (as a malt house,) and it is converted to another, (as a dwelling-house,) it is entitled in its new state only to the same degree of light which was necessary in its former state. 1 Campb. 322; and see 3 Campb. 80. It has been justly remarked, that the English doctrine as to ancient lights can hardly be regarded as applicable to narrow lots in the new and growing cities of this country; for the effect of the rule would be greatly to impair16 the value of vacant lots, or those having low buildings upon them, in the neighborhood of other buildings more than twenty years old. 3 Kent, Com. 446, n.
4. – 2. What amounts to an interruption of an ancient light. Where a window has been completely blocked up for twenty years, it loses its privilege. 3 Camp. 514. An abandonment of the right by express agreement, or by acts from which an abandonment may be inferred, will deprive the party having such ancient light of his right to it. The building of a blank wall where the lights formerly existed, would have that effect. 3 B. & Cr. 332. See Ad. & Ell. 325.
5. – 3. Of the remedy for interrupting an ancient light. 1. An action on the case will lie against a person who obstructs17 an ancient light. 9 Co. 58; 2 Rolle's Abr. 140, 1. Nusans, G 10. And see Bac. Ab. Actions on the Case, D; Carth. 454; Comb.481; 6 Mod. 116.
6. – Total deprivation18 of light is not necesary to sustain this action, and if the party cannot enjoy the light in so free and ample a manner as he did before, he may sustain the action; but there should be some sensible diminution19 of the light and air. 4. Esp. R. 69. The building a wall which merely obstructs the right, is not actionable. 9 Ca. 58, b; 1 Mod. 55.
7. – 3. Nor is the opening windows and destroying, the privacy of the adjoining property; but such new window may be immediately obstructed20 to prevent a right to it being acquired by twenty years use. 3 Campb. 82.
8. – 5. When the right is clearly established, courts of equity21 will grant an injunction to restrain a party from building so near the plaintiff's house as to darken his windows. 2 Vern. 646; 2 Bro. C. C. 65; 16 Ves. 338; Eden on Inj. 268, 9; 1 Story on Eq 926; 1 Smith's Chan. Pr. 593.; 4 Simm. 559; 2 Russ. R. 121. See Injunction; Plan.
See generally on this subject, 1 Nels. Abr. 56, 7; 16 Vin. Abr. 26; 1 Leigh's N. P. C. 6, s. 8, p. 558; 12 E. C. L. R. 218; 24 Id. 401; 21 Id. 373; 1 id. 161; 10 Id. 99; 28 Id. 143; 23 Am. Jur. 46 to 64; 3 Kent, Com. 446, 2d ed. 7 Wheat. R. 106; 19 Wend. R. 309; Math on Pres. 318 to 323; 2 Watts22, 331; 9 Bing. 305; 1 Chit. Pr. 206, 208; 2 Bouv. Inst. n. 1619-23.
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