The present case involves no question respecting the right which the owner of a building may claim for light and air through one or more windows, from and over the land of another, by actual use and enjoyment for a required length of time. The question turns wholly upon the construction of the deed from the Concord Milldam Company to the plaintiff, and that question is whether, by implication, any right to air and light was granted by that deed to the plaintiff.
*20The material facts are that this corporation, being the owners of land including the respective lots now held by the plaintiff and the defendant, offered the land for sale by auction, in lots designated by metes and bounds. The lots were put up for sale, and sold on the same day, one purchased by the plaintiff, the other by the defendant, that to the plaintiff being bid off first, and subsequently deeds given accordingly, that to the plaintiff being first. Neither by the terms of sale, nor by the deeds, was any specific easement for air or light expressed to be granted or reserved to one over the other. Under these circumstances, we think the plaintiff did not acquire a right by implication to air and light over the lot granted to the defendant, at the same sale, through the aperture for a window in the wall on the dividing line.
There having been, up to the time of the sale, a unity of title in the whole parcel, no easement had been acquired by one over the other. The allotment and sale proposed a new mode of holding, and for purposes different from those under which it had been previously occupied. The sale was much more like partition, than a grant by one proprietor of part of his estate, retaining the residue. If it had been intended to subject one to a servitude in favor of another, it is strange that it was not expressed, especially as such a sale, which it was quite competent for the owner to make, would have a tendency to enhance the price of the one, and reduce that of the other. We cannot distinguish it from the case of Johnson v. Jordan, 2 Met. 239. There it was found that the actually existing drain was not necessary for the use of the tenement for which it was claimed. And in the present case it does not appear that the window in question is necessary to the convenient enjoyment of the plaintiff’s tenement.
A case similar in some respects to this was cited for the plaintiff, Swansborough v. Coventry, 9 Bing. 305. But in that case the tenement was sold as a dwelling-house, “ with all the lights, easements, rights, privileges and appurtenances, to the same belonging, or in any way appertaining.” The rig! t to lights therefore, as they then actually existed, was thus expressly granted.
*21In the present case, we are of opinion that the plaintiff did not acquire the right to ah- and light through the window in question, from and over the defendant’s land, by implication, as a necessary incident, and therefore that this action for obstructing it cannot be maintained. Judgment for the defendant.