On the Merits.
“The ownership of the soil carries with it all that is directly above and under it.” C. O. 505. “The prohibition of building on an estate, or of building above a particular height,” is a continuous, non-apparent, servitude, which “can be established only by title. Immemorial possession itself is not sufficient to acquire it.” O. 0, 728, 766. No servitude of light and-view, such as plaintiffs claim to have acquired by prescription, can include this servitude of “prohibition” which can not be so acquired. Mourlon, Vol. 1, p. 861; Laurent, Vol. 8, p. 54; Oldstein vs. Building Association, 44 Ann. 492. In Jeannin vs. De-Blanc, 11 Ann. 466, Mr. Justice Spofford, as the organ of this court, said: “By the same right that defendant builds a wall with apertures, undoubtedly, the plaintiff may build one, facing it, without apertures, if it shall so please him.” So, in this case, by the same right that the plaintiffs’ authors built the house now owned by them with apertures overlooking the adjoining lot, undoubtedly, the owners of the adjoining lot might, or may, build a house, or any other structure, facing those apertures, if it shall so please them. And this last mentioned right is never barred by prescription.
Plaintiffs’ claim for damages has no other foundation than the fact that, for a while, the screen erected leaned three and a half inches over the line, and we are unable to discover that any damage was sustained on that account. The main complaint is that the screen, whether perpendicular, 'or leaning as it was, cuts off the light and view and prevents the opening of the blinds, and this complaint is unfounded in law.
Judgment affirmed.
Rehearing refused.
Provosty, J., takes no part.