Carrig v. Dee

Shaw, C. J.

The court are of opinion that the plaintiff acquired no right to the use of air and light, coming laterally to his windows over the vacant lot of the defendant, though continued for twenty years before the St. of 1852, c. 144, took effect; and that the window on hinges, swinging outward over the defendant’s land, did not constitute such an adverse possessory use of the adjoining land, as to make any difference in the principle. It was not such a use as to encroach visibly or tangibly on the beneficial use and enjoyment of the land, over which such swinging window occasionally turned, or to diminish the owner’s enjoyment, and so bring it within the principle that the law presumes that a man will not suffer another to make use of his property to his injury and inconvenience, and therefore presumes, if one man does make such use of another’s property without objection on the owner’s part, it is because he has a right by some instrument or grant, which is lost or cannot be produced. It is on this ground that adverse, exclusive, actual use of another’s property, if continued twenty years, is taken to be proof of right and title; and the consideration of public policy comes in aid of this maxim, on the ground of quieting title, and the disturbance of long continued quiet possession.

Judgment for the defendant.