The plaintiff relies upon two distinct grounds, either of which, he insists, will authorize and require the court to grant the injunction prayed for.
1st. It is contended that he may maintain his bill upon the right acquired by the principles of the common law, as held in England, by force of which twenty years’ adverse use of light and air gives to the possessor an easement of a perpetual character. The defendant denies this position to be well maintained in the present case, either by the facts or the principles of law as held in this Commonwealth. In relation to the rules of law, it is urged by the defendant, that the later English doctrines have not been sanctioned with us, and that they are not adapted to the state of things existing in this country, and especially are unsound and unreasonable when applied to the case of a mere use of lights, where such use might well have been enjoyed while yet doing nothing beyond what the. owner of a tenement has a perfect right to do, viz. placing a window in his own building and entirely upon his own premises ; indeed, doing nothing by reason of which he would subject himself to an action, and as to which the adjacent proprietor could only signify his dissent by the unneighborly act of erecting a wall or other obstruction sufficiently high to darken such window.
This question is an interesting one; and the view taken of it by the counsel for the defendant seems to have been sanctioned by the courts of the States of New York and Connecticut.
The tendency of our decisions has been the other way ; and the provisions of the Rev. Sts. c. 60, §§ 27, 28, may present this question, in this Commonwealth, in a different aspect from that in which it would otherwise have been considered. This statute provision obviates one of the strong objections against the
2d. Another and distinct ground, upon which the plaintiff places his right to an injunction restraining the defendant from the erection of a building on the adjacent lot of land, is that arising from the relation of the parties under the plaintiff’s lease to the defendant of the warehouse, by certain articles of agreement made on the 30th of December 1841. This lease is made with sundry exceptions, of which the one material to the present question is as follows : “ The said Atkins reserving to himself and his assigns the right to stop up, and build upon and against the five windows in said store, which front upon Ann Street, and to build against and put timber into the wall on the side of said store in which the said five windows are, at his and their pleasure.”
The plaintiff contends that this lease may be properly construed to contain an implied covenant that he shall enjoy all the rights reserved, free from any interruption by the lessee, and that the defendant may properly be enjoined to fulfil this covenant.
No doubt an injunction will lie, to restrain the lessee from violating his covenant, in a proper case, and when it is necessary to prevent irreparable mischief; as in the cases, stated in the books, of an injunction to restrain a lessee from ploughing up pasture lana contrary to the articles of indenture between landlord and tenant. Whether, in the present case, the plaintiff can raise any such covenant upon this indenture, as would support an ac
When we recur to the principles upon which injunctions are granted in cases like the present, we shall find the doctrine to be, that the injury must be substantial; that it is to be abated because it operates clearly to destroy or diminish the beneficial use of the house or tenement thus deprived of its accustomed light and air. Upon this point, the case of the plaintiff" is entirely without merits. He has no house, or store, or building, as to which he has the occupation or right of occupation, that is affected in the slightest degree by the acts of the defendant in darkening these windows. If they are required to give light and air to the warehouse, it is no private injury, surely, to the plaintiff, who has demised that warehouse to the defendant, by a lease extending to the year 1852. This is the tenement to which the rights, if any exist, attach; and such is the nature of the plaintiffs interest therein. He has transferred to the defendant the right of occupation of the warehouse for the next ensuing eight years. Of course, any thing done by the defendant, in obstructing and darkening these windows, does no present injury to the plaintiff, so far as the warehouse is concerned.
But then it is said, that the plaintiff has a reversionary interest in the warehouse ; and he insists that this may avail him to sustain the present bill. The principle settled in Ingraham v. Dunnell, 5 Met. 118, bears directly upon this point. It was there held, that an injunction will not be granted to restrain an injury caused to a reversionary interest in an estate, unless such injury will probably be irreparable, or cannot be compensated in
The plaintiff relies, apparently with more confidence, upon his right to maintain this bill for an injunction, as a compulsory process restraining the defendant under the implied covenant in the indenture. How stands this part of the case upon the matter of deprivation of the plaintiff’s rights ? What is the substantial injury ? What is the deprivation of enjoyment of any right arising under such a covenant as is supposed, admitting the legal right to exist under the covenant, as claimed by the plaintiff? The reservation to the plaintiff was the right to stop up and build against the five windows in the southeasterly wall of the warehouse, and to insert timbers in the wall, at his pleasure. Does the erection of the new building on the adjacent lot constitute the only obstacle to the use by the plaintiff of the warehouse and its easements, in the manner reserved in the indenture ? Suppose the new building had not been erected, or suppose it now prostrated by order of the court; is the plaintiff any better able to use beneficially his rights reserved by the indenture ? He is not the owner of the adjacent lot, and has no right to the use of it. Unless, therefore, he can go farther than to obtain an order of the court for abating the supposed nuisance occasioned by the erection of this building on the adjacent lot, and can also obtain a decree of the court setting aside the lease of the Stodders to Chilson, he can acquire the present enjoyment of no privilege, by obtaining the injunction prayed for. And further; unless the plaintiff can obtain a decree of the court, compelling the Stodders to convey their adjacent lot to him, he would be without the means or the legal right to avail himself of the reservation. The wrong, therefore, which the defendant has done to the plaintiff, in the matter of the adjacent lot, is not to be remedied by granting the prayer for an injunction as to the erection of the build
If it be urged that it may be necessary to sustain this bill in favor of the reversioner, in order to prevent the alleged encroachment upon his easement from ripening into a right by adverse use ; it may be replied, that the provision of the Rev. Sts. c. 60, § 28, on this subject, affords the plaintiff a simple and very economical remedy, fully adequate to the emergency.
Sill dismissed.