By the court,
Savage, Ch. J.That an action upon the case lies for stopping the ancient lights of another is too well settled to require discussion or authority to support it. Formerly, indeed, it was holden that the lights must be ancient and beyond the memory of man. And in the case of Bury v. Pope, Cro. Eliz. 118, it was agreed by all the justices that where two own adjacent lands, and one builds and makes windows looking on the lands of the other, and continues for 30 or 40 years, yet the other may lawfully erect on his own-soil anthouse or other thing against said lights, without being liable to an action ; for it was the folly of the first to build his house so near the other’s land. And the maxim is quoted, cujus est solum, ejus estsummitas usque ad ccelum. Now,however, it is perfectly settled, that as the occupant may acquire a right to the house itself by 20 years uninterrupted possession under claim of title, so in the same time he shall by occupation acquire a right to an easement belonging to the house. Yelv. 216. 2 Saund. 175, a. b. c. It is true that 20 years possession does not strictly confer a right absolutely, but it raises a presumption of a grant. 2 Barn. & Cress. 686. The person who thus opens a window overlooking the privacy of his neighbor, enjoys an easement in that which does not belong *264to him. Yet no action lies for this encroachment upon the rights of the person whose lands are thus overlooked ; the encroachment will in 20 years ripen into a right, and it is said that the only remedy is to build on the adjoining land opposite to the offensive window. 3 Campb. 80.
The present is not a case of ancient lights. It is not contended that the action can be sustained upon that ground, but upon the principle that no one shall so use his own property as to injure another. Thus, no man has a right to erect upon his own land, near the house of another, any manufactory which shall poison the air, and render it unwholesome. So in Morley v. Pragnell, Cro. Car. 510, an action was held to lie by an innkeeper against the defendant for erecting a tallow furnace, which annoyed his house with stenches, by reason of which his guests- left him, and his family became unhealthful. So in Aldreds’ case, 9 Co. 48, the plaintiff brought an action against Burton, the defendant, for erecting a hog-house and putting his hogs therein; and by reason of the fetid smells the plaintiff and his family could not remain in his house. The plaintiff recovered. The defendant moved in arrest of judgment, that one ought not to have so delicate a nose that he cannot bear the smell of hogs, for they are necessary to the food of man; but it was resolved that the action lay. In these cases, however, it is to be observed that a positive right was invaded. Every person is entitled to the use of the elements in their natural purity, and whoever poisons them or renders them unhealthy, violates that righd| The person who makes a window in his house which overlooks the privacy of his neighbor, does" an act which strictly he has no right to do ; although it is said no action lies for it. He is therefore encroaching, though not strictly and legally trespassing upon the rights of another. He enjoys an easement therefore in his neighbor’s property, which in time may ripen into a right. But before sufficient time has elapsed to raise a presumption of a grant, he has no right, and can maintain no action for being deprived of that easement, let the motive of the deprivation be what it may; and the reason' is, that in the eye of the law he is not injured, He is deprived of no right, but only prevented from acquiring a right, without con*265sideration, in his neighbor's property. Suppose an obliging farmer permits his neighbor to pass and repass through his fields, to go to the lands of that neighbor; if this is permitted for 20 years, it becomes an easement, a right of way, which the owner of the soil cannot infringe; but at the end of ten years, he chooses, from mere malice or wantonness, to shut up this passage, and refuses permission to his neighbor to pass over his lands, as he used to do for ten years past; does an action lie ? Most certainly not. And yet that case is not distinguishable, in principle, from that under consideration. The defendant has not so used his own property as to injure another. No one, legally speaking, is injured or damnified, unless some right is infringed. The refusal or discontinuance of a favor gives no cause of action. The plaintiff in this case has only been refused the use of that which did not belong to her; and whether the motives of the defendant were good or bad, she has no legal cause of complaint.
The motion to set aside the nonsuit denied.