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right of said Hutchinson & Ingers II to pledge or nego- is equally conclusive upon all the parties to the action tiate it. Nor did the railroad company know or bus- and their privies. It may not be invoked or repudiated pect that the firm had parted with or hypothecated at the pleasure of one of the parties as his interest said note until August 15, 1873.

may happen to require. The company, by reason of certain advances made The liability of the maker and indorsers was not to its use by Hutchinson & Ingersoll, became indebted joint, but several, and therefore a judgment in an acto the latter, on the 8th of August, 1873, in the sum of tion against the indorsers, upon the contract of iu$600. On the 15th day of August, 1873, it tendered dorsement, could not bar a separate action by the that sum to the firm, and demanded a return of the bank against the maker -- certainly not, where the $5,000 note. During the same month it made a like maker was without notice from the indorsers of the tender to the bank, and demanded the note.

pendency of the action against them. The $36,000 loan was paid in full out of the collate- Second. The next proposition involves the right of rals given to secure its payment, as they respectively the railroad company to show, as against the bank, matured, without resorting to the note in suit, the first that the note was executed and delivered to Hutchinpayment of $4,580 being July 22, 1873, and the last pay- son & Ingersoll for the purpose only of raising money ment being April 4th, 1874, leaving the $5,000 note in upon it for the company, and that consequently they the bank's possession.

had no authority to pledge it as collateral security for Hutchinson & Ingersoll are insolvent. The collate- their own indebtedness to the bank. It will have been rals collected exceeded the $36,000 loan by $4,503.61. observed, from the statement of facts, that the note in

On the $10,000 loan of July 11, 1873, there was a bal- suit was among those pledged to the bank as security ance due the bank, November 21, 1876, of $5,136.68 after for the call loan of $36,000, made on June 19, 1873; exhausting all collaterals in its possession which had that Howes, Hyatt & Co., whose notes had been been specially pledged to secure that loan, and cred- pledged as security for the call loan of $10,000, made iting the amount, with interest collected, of a certain on June 19, 1873, having become insolvent, Hutchinjudgment to be now referred to.

son & Ingersoll, July 22, 1873, at the request of the Iu 1874 the bank sued Palmer & Co., as indorsers | bank, executed the writing dated June 19, 1873, whereby upon the note in suit, in the Supreme Court of New they pledged all securities, bonds, stocks, things in acYork. The case was sent to a referee, who rendered tion, or other property theretofore deposited with the judgment in favor of the bank for $601, which seems bank, whether specifically or not, as security for the to be the amount due from the railroad company to payment of any and every indebtedness, liability, or Hutchinson & Ingersoll. That judgment, with the engagement held by the bank for which they were, or costs, was satisfied.

should become, in any way liable. Although, thereThe present action is by the bank against the railroad fore, the call loan of $36,000 was extinguished, without company to recover the amount of the $5,000 note exe- resorting to the note in suit, that note, under the cuted by the latter on the 9th of May, 1873, and placed agreement made on the 224 of July, 1873, stood pledged in the hands of Hutchinson & Ingersoll for sale for the as collateral security also for the $10,000 call loan of benefit of the company.

July 11, 1873. The court below gave judgment for the bank, to re- The bauk, we have seen, received the note before its verse which the company has prosecuted this writ. maturity, indorsed in blank, without any express

First. The first proposition of the plaiutiff in error agreement to give time, but without notice that it was is that there has been a final determination by a court other than ordinary business paper, or that there was of competent jurisdiction, between the same parties any defenso thereto, and in ignorance of the purposes or their privies, upon the same subject-matter as that for which it had been executed and delivered to here in controversy. This contention rests upon the Hutchinson & Ingersoll. Did the bank, under these judgment of the Supreme Court of New York in the circumstances, become a holder for value, and as such action instituted by the bank against Palmer & Co., as entitled, according to the recognized principles of the indorsers of the note in suit.

commercial law, to be protected against the equities or The judgment in the State court clearly constitutes defenses which the railroad company may have against no bar to the present action. Personal judgments bind the other parties to the note? only parties and their privies. The railroad company This question was carefully considered, though perwas in 110 sepse a party to the separate action against haps it was not absolutely necessary to be determined, Palmer & Co. Nor did it receive notice from the lat- in Swist v. Tyson, 16 Pet. 1. After stating that the ler of the pendency of that suit. It was therefore in law respecting negotiable instruments was not the law no manner affected by the judgment. Had the com- of a single country only, but of the commercial world, pany received such notice in due time, it would, per- the court, speaking by Mr. Justice Story, said: “And haps, although not technically a party to the record, we have no hesitation in saying that a pre-existing have been estopped, at least as between it and its debt does constitute a valuable consideration in the accommodation indorsers, from saying that the latter sense of the general rule already stated as applicawere not bound to pay the judgment, if obtained with- ble to negotiable instruments. Assuming it to be out fraud or collusion. Being however an entire true (which, however, may well admit of some doubt stranger to the record, it had no opportunity or right, from the generality of the language) that the holder of in that proceeding, to controvert the claim of the bank, a negotiable instrument is unaffected with the equities to control the defense, to introduce or cross-examine between antecedent parties, of which he has no notice, witnesses, or to prosecute a writ of error from the only where he receives it in the usual course of trade judgment.

and business for a valuable consideration, before it If, in the action against Palmer & Co., the bank becomes due; we are prepared to say that receiving it had obtained judgment for the full amount of the in payment of, or as security for a pre-existing debt, is note, and being unable to collect it, had sued the rail- according to the known usual course of trade and busiroad company, the latter would not have been pre- ness. And why, upon principle," continued the court, cluded by the judgment in that action, to which it “should not a pre-existing debt be deemed such a was not a party, and of the pendency of which it had valuable consideratiou? It is for the benefit and connot been notified, from assertiug any defense it might venience of the commercial world to give as wide an have against the note. This being so, it results that extent as practicable to the credit and circulation of the company cannot plead the judgment in the State negotiable paper, that it may pass not only as security court as a bar to this action. An estoppel arising out for new purchases and advances, made upon the transof the judgment of a court of competent jurisdiction fer thereof, but also iu payment of and as security for pre-existing debts. The creditor is thereby enabled to to recover on the note, when it might not, as between realize or to secure his debt, and thus may safely give the original parties, be valid. But Chancellor Kent a prolonged credit, or forbear from taking any legal adds: “Mr. Justice Story, on Promissory Notes, p. steps to enforce his rights. The debtor also has the 215, note 1, repeats and sustains the decision in Swisl v. advantage of making his negotiable securities of Tyson, and I am inclined to concur in that decision as equivalent value to cash. But establish the oppo- the plainer and better doctrine. Of course it did not site conclusion, that negotiable paper cannot be ap- escape his attention that the court in Swift v. Tyson plied in the payment of, or as security for pre-existing declared the equities of prior parties to be shut out as debts, without letting in all the equities between the well when the note was merely pledged as collateral original and antecedent parties, and the value and security for a pre-existing debt, as when transferred circulation of such securities must be essentially in payment or extinguishment of such debt. diminished, and the debtor driven to the embarrass- According to the very general concurrence of judiment of making a sale thereof, often at a ruinous dis- cial authority in this country as well as elsewhere, it count, to some third person, and then by circuity to may be regarded as settled in commercial juris;ruapply the proceeds to the payment of his debts. dence there being no statutory regulations to the What, indeed, upon such a doctrine would become of contrary – that whero negotiable paper is received in that large class of cases, where new notes are given by payment of an antecedent debt; or where it is transthe same or by other parties, by way of renewal or ferred, by indorsement, as collateral security for a security to banks, in lieu of old securities discounted debt created, or a purchase made at the time of transby them, which have arrived at maturity? Probably fer; or the transfer is to secure a debt, not due, under more than one-half of all the bank transactions in our an agreement express or to be clearly implied from the country as well as those of other countries are of this circumstances, that the collection of the principal debt nature. The doctrine would strike a fatal blow at all is to be postponed or delayed until the collateral madiscounts of negotiable securities for pre-existing tured; or where time is agreed to be given and is acdebts."

tually given upon a debt overdue in consideration of After a review of the English cases, the court pro- the transfer of negotiable paper as collateral security ceeded. “They directly establish that a bona fide therefor; or where the transferred note takes the holder, taking a negotiable note in payment of, or as place of other paper previously pledged as collateral security for a pre-existing debt, is a holder for a valu- security for a debt; either at the time such debt was able consideration, entitled to protection against all contracted or before it became due; in each of these the equities between the antecedent parties."

cases the holder who takes the transferred paper beThe opinion in that case has been the subject of fore its maturity, and without notice, actual or othercriticism in some courts, because it seemed to go be- wise, of any defense thereto, is held to have received yond the precise point necessary to be decided, when it in due course of business, and in the sense of the declaring that the bona fide holder of a negotiable commercial law, becomes a holder for value, entitled note, taken as collateral security for an antecedent to enforce payınent without regard to any equity or debt, was protected against equities existing between defense which exists between prior parties to such the original or antecedent parties. The brief dissent paper. of Mr. Justice (atron was solely upon that ground, Upon these propositions there seems at this day to which renders it quite certain that the whole court be no substantial conflict of authority. But there is was aware of the extent to wbich the opinion carried such conflict where the note is transferred as collateral the doctrines of the commercial law upon the subject security merely, without other circumstances, for a of negotiable instruments transferred or delivered as debt previously created. One of the grounds upon security for antecedent indebtedness. In the judg- which some courts of high authority refuse in such ment of this court, as then constituted (Mr. Justice cases to apply the rule announced in Swift v. Tyson is, Catron alone excepted), the holder of a negotiable in- that transactions of that kind are not in the usual and strument, received before maturity, and without no- ordinary course of commercial dealings. But this tice of any defense thereto, is unaffected by the objection is not sustained by the recognized usages of equities or defenses of autecedent parties, equally the commercial world, nor, as we think, by sound whether the note is taken as collateral security for, or reason. The transfer of negotiable paper as security in payment of, previous indebtedness. And we under- for antecedent debts, nothing more, constitutes a mastand the case of McCarty v. Roots, 21 How. 439, to terial and an increasing portion of the commerce of affirm Swift v. Tyson, upon the point now under con- the country. Such transactions have become very sideration. It was there said: Nor does the fact that common in financial circles. They have grown out of the bills were assigned to the plaintiff as collateral the necessities of business, and in these days of great security for a pre-existing debt, impair the plaintiff's commercial activity they contribute largely to the benright to recover. * * * The delivery of the bills to efit and convenience both of debtors and creditors. the plaintiff as collateral security for a pre-existing Mr. Parsons, in his Treatise on the Law of Promisdebt, under the decision of Swift v. Tyson, was sory Notes and Bills of Exchange, discusses the genlegal."

eral question of the transfer of negotiable paper under It may be remarked in this connection that the three aspects -- one, where the paper is received as courts holding a different rule have uniformly referred collateral security for antecedent debts. We concur to an opinion of Chancellor Kent in Bay v. Codding- with the author, “that when the principles of the law ton, 5 Johns. (N. Y) 56, reaffirmed in Coddinyton v. merchant have established more firmly and unreseryBay, 20 id. 637. There is, however, some reason to be- edly their control and their protection over the instrulieve that the views of that eminent jurist were sub- ments of the merchant, all of these transfers (not sequently modified. In the 6th edition of his Com- affected by peculiar circumstances) will be held to be mentaries, side page 81, note b, prepared by himself, regular, and to rest upon a valid consideration." 1 reference is made to Stulker v. JcDonald, 6 Hill, 93, in Pars. on Notes and Bills, 218, 2d ed. which the principles asserted iu Buy v. Coddington Another ground upon which some courts have dewere re-examined and maintained in an elaborate clined to sanction the rule announced in Swift v. Tyson opinion by Chancellor Walworth, who took occasion is, that upon the transfer of negotiable paper merely to say that the opinion in Swift v. Tyson was not cor- as collateral security for an antecedent debt, nothing rect in declaring that a pre-existing debt was, of itself, is surrendered by the indorsee that to permit the and without other circumstances, a sufficient consid- equities between prior parties to prevail reprives him eration to entitle the bona fide holder, without notice, of no right or advantage enjoyed at the time of transfer; imposes upon him no additional burdens, and sub- $ 4, ch. 6; and Redfield & Bigelow's Lead. Cas. on Bills jects him to no additional inconveniences.

of Ex. and Prom. Notes, where the authorities are This may be true in some, but it is not true in most cited by the authors. cases, nor, in our opinion, is it ever true when the note, Third. It is, however, insisted that by the course of upon its delivery to the transferee, is in such form as judicial decision in New York, negotiable paper transto m ke him a party to the instrument, and impose ferred merely as collateral security for an antecedent upon him the duties which, according to the commer- debt, is subject to the equities of prior parties existcial law, must be discharged by the holder of negoti- ing at the time of transfer; that the bank being loable paper in order to fix liability upon the indorser. cated in New York, and the other parties being citizens

The bank did not take the pote in suit as a mere of the same State, and the contract having been there agent to receive the amount due when it suited the made, this court is bound to accept and follow the convenience of the debtor to make payment. It re- decision of the State court whether it meets with our ceived the note under au obligation imposed by the approval or uot. This contention rests upon the procommercial law to present it for payment and give vision of the statute which declares that “the laws of notice of non-payment in the mode prescribed by the the several States, except where the Constitution, settled rules of that law. We are of opiniou that the treaties, or statutes of the United States otherwise undertaking of the bank to fix the liability of prior require or provide, shall be regarded as rules of decisparties by due presentation for payment and due no- ion in trials at common law, in the courts of the tice in case of non-payment -- an undertaking neces- United States, in cases where they apply." sarily implied by becoming a party to the instrument It is undoubtedly true that if we should apply to this — was a sufficient consideration to protect it against case the principles announced in the highest court of equities existing between the other parties, of which the State of New York, a different conclusion would it had no notice. It assumed the duties and responsi- have been reached from that already announced. That bilities of a holder for value and should have the rights learned court has held that the holder of negotiable and privileges pertaining to that position. The cor- paper transferred merely as collateral security for an rectness of this rule is apparent in cases like the one antecedent debt, nothing more, is not a holder for now before us. The note in suit was negotiable in form, value within those rules of commercial law, which and was delivered by the maker for the purpose of being protect such paper against the equities of prior parnegotiated. Had it been regularly discounted by the ties. bank at any time before maturity and the proceeds The question here presented is concluded by our either placed to the credit of Hutchinson & Ingersoll, or former decisions, applied directly to the discharge, pro tanto, of any one We remark, at the outset, that the section of the of the call loans previously made to them, it would riot statute of the United States already quoted is the same be doubted that the bank would be protected against as the 34th section of the original judiciary act. the equities of prior parties. Instead of procuring its In Swift v. Tyson, supra, the contention was that formal discount Hutchinson & Ingersoll used it to this court was obliged to follow the decisions of the secure the ultimate payment of their own debt to the State courts in all cases where they apply. But this bank. At the time the written agreement of July 22, court said: “In order to maintain the argument it is 1873, was executed, by which this note, with others, essential therefore to hold that the word laws'in was pledged as security for any debt then or thereafter this section, includes within the scope of its meaning held against them, the bank had the right to call in the decisions of the local tribunals. In the ordinary the $10,000 loan, that is, to require immediate pay- use of language it will hardly be contended that the ment. The securities upon which that loan rested had decisions of courts constitute laws. They are, at become in part worthless, and it is evident that but most, only evidence of what the laws are, and not of for the deposit of additional collateral securities the themselves laws. They are often re-examined, rebank would have called in the loan, or resorted to its versed, and qualified by the courts themselves, whenrightful legal remedies for the enforcement of pay- ever they are found to be either defective, or illment. It wils, under the circumstances, the duty of founded, or otherwise incorrect. The laws of a State the debtors to make such payment, or to secure the are more easily understood to mean the rules and debt. It was important to them, and was in'the usual enactments promulgated by the legislative authority course of commercial transactions, to furnish such thereof, or long-established local customs having the security. If the bank was deceived as to the real own- force of laws. In all the various cases which have ership of the paper, or as fo the purposes of its execu- hitherto come before us for decision this court have tion and delivery to Hutchinson & Ingersoll, it was uniformly supposed that the true interpretation of the because the railroad company intrusted it to those 34th section limited its application to State laws parties in a form which indicated that the latter were strictly local; that is to say, to the positive statutes of its rightful holders and owners, with absolute power the State, and the construction thereof adopted by to dispose of it for any purpose they saw proper. the local tribunals, and to rights and titles to things

Our conclusion, therefore, is that the transfer, be- having a permanent locality, such as the rights and fore maturity, of negotiable paper as security for an titles to real estate, and other matters immovable and antecedent debt merely, without other circumstances, intraterritorial in their nature and character. It hus if the paper so indorsed that the holder becomes a ever been supposed by us that the section did apply, party to the instrument, although the transfer is with- or was designed to apply, to questions of a more out express agreement by the creditor for indulgence, general nature, not at all dependent upon local statutes is not an improper use of such paper, and is as much or local usages of a fixed and permanent operation; in the usual course of commercial business as its trans- as for example, to the construction of ordinary confer in payment of such debt. In either case the bona tracts or other written instruments, and especially to fide holder is unaffected by equities or defenses be- questions of general commercial law, where the State tween prior parties of which he had no notice. This tribunals are called upon to perform the like functions conclusion is abundantly sustained by authority. A as ourselves; that is, to ascertain upon general reasondifferent determination by this court would, we appre- ing and legal analogies, what is the true exposition of hend, greatly surprise both the legal profession and the contract or instrument, or what is the just rule the commercial world. Bigelow's Bills and Notes, 502 et furnished by the principles of commercial law to gorseq.; 1 Daniel on Neg. Instr. (2d ed.) ch. 25, SS 8.20 to 833; ern the case. And we have not now the slightest Story on Prom. Notes, $$ 186 and 195 (7th ed.) by difficulty in holding that this section, upon its true Thorndy ke; 1 Pars, on Notes and Bills, 218 (2d ed.), intendment and coustruction, is strictly limited t.


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local statutes and local usages of the cbaracter before statute which makes the laws of the States rules of destated, and does not extend to contracts and other cision in trials at common law.' We apprehend, howinstruments of a commercial nature, the true inter- ever, that no one would go thus far in asserting the pretation and effect whereof are to be sought, not in biuding force of State decisions upon the courts of the the decisions of the local tribunals, but in the general United States when the latter are required, in the disprinciples and doctrines of commercial jurisprudence. charge of their judical functions, to consider questions Undoubtedly the decisions of the local tribunals upon of general law, arising in suits to which their jurisdicsuch subjects are entitled to and will receive the most tion extends. To so hold would be to defeat one of the deliberate attention and respect of this court; but objects for which those courts were established, and they cannot furnish positivo rules, or conclusive au- introduce infinite confusion in their decisions of such thority, by which our own judgments are to be bound questions. Further elaboration would seem to be unup and governed.”

necessary. The judgment is affirmed. In Carpenter v. Providence Washington Ins. Co., 16 Mr. Justice Miller dissents. Pet. 495, decided at the same term with Swift v. Tyson, it was necessary to determine certain questions in the law of insurance. The court said: “The questions

IMPLIED COVENANT AS TO ANCIENT under our consideration are questions of general com

LIGHTS. mercial law, and depend upon the construction of a contract of insurance, which is by no means local in its PENNSYLVANIA SUPREME COURT, MAY 3, 1880. character, or regulated by any local policy or customs. Whatever respect therefore the decisions of State

RENNYSON'S APPEAL. tribunals may have on such a subject, and they certainly are entitled to great respect, they cannot con- There is no rule of the English courts in regard to ancient clude the judgment of this court. On the coutrary,

lights which is final and conclusive in Pennsylvania. we are bound to interpret this instrument according

Defendant owned a house which had been erected more to our own opinion of its true intent and objects, aided

than twenty-one years, containing windows overlook

ing his land which were in rooms having other winby all the lights which can be obtained from all exter

dows. He conveyed this house, making no agreement nal sources whatsoever; and if the result to which we

as to the right of light or air through the overlooking have arrived differs from these learned State courts, windows. Held, that defendant was entitled to erect a we may regret it, but it cannot be permitted to alter structure on his own land shutting off light and air our judgment."

from such windows. In Oates v. National Bank, 100 U. S. 239, we had

The American doctrine as to light and air requires an exbefore us the precise question now under considera

press grant or agreement, unless a real and actual netion. That was an action by a National bank, located

cessity exists, to vest a dominant tenement with such

right. in Alabama, against a citizen of that State, upon a promissory note there executed and negotiated. It ILL to restrain defendant from erecting a building was contended that the decision of the Supreme Court of Alabama should be accepted as tho law governing | in plaintiff's house. Defendant at one time owned two the rights of parties. We however held — referring lots of land upon one of which was a house containing to some of our previous decisions — that the Federal

windows overlooking the other lot. This house had courts were not bound by the decisions of the State been erected for more than twenty-one years when he courts upon questions of general commercial law.

sold and conveyed the lot containing it to plaintiff's We have already seen that the statutes of grantor. There was in the conveyance, or when it Alabama placed under the protection of the commer- was made, no express grant or agreement on the part cial law, promissory notes payable in money at a cer- of defendant in reference to the windows or a right to tain designated place, but how far the rights of parties light through them. There were other windows in here are affected by the rules and doctrines of that law the building affording light and air to the rooms in is for the Federal courts to determine upon their own which the windows in question were. The Court of judgment as to what these rules and doctrines are."

Common Pleas of Montgomery county denied the inTo this doctrine, which received the approval of all junction and dismissed the bill, the following opinion the members of this court when first announced, we being delivered by Ross, P. J., which was adopted by have, as our decisions show, steadily adhered. the Supreme Court: perceive no reason for its modification in any degree whatever. We could not infringe upon it in this case Churles Hunsicker and E. Coppee Mitchell, Esq., for without disturbing or endangering that stability which appellant. is essential to be maintained in the rules of commercial B. M. Boyer, Esq., for appellee. law. The decisions of the New York court, which we are asked to follow iu determining the rights of parties Ross, P. J. It is certainly true that the question under a contract there made, are not in exposition of presented by this record has not been definitely ruled any legislative enactment of that State. They express in Pennsylvania; and it is equally true that the English the opinion of that court, not as to the rights of parties authorities have not been recognized or adopted by under any law local to that State, but as to their rights our court of last resort. The doctrine of ancient lights, under the general commercial law existing throughout and the right to light and air, by prescription, has as the Union, except wbere it may have been modified or yet no recognition in our Commonwealth. Hazlitt v. changed by some local statute. It is a law not peculiar Powell, 6 Casey, 296; Wheatley v. Baugh, 1 id. 528; to oue State, or dependent upon local authority, but Hoy v. Sterretl, 2 W. 331. one arising out of the usages of the commercial world. In Wheatley v. Baugh, supra, Lewis C. J., says: Suppose a State court, in a case before it, should deter- " The Roman law, founded upon an enlightened conmine what were the laws of war as applicable to that sideration of the rights of property, declared 'that he and similar cases. The Federal courts, sitting in that who in making a new work upon his own estate, uses State, possessing, it must be conceded, equal power with his right without trespassiug either against any law, the State court in the determination of such questions, custom, title or possession which may subject him to must, upon the theory of counsel for the plaiutiff in any service toward his neighbors, is not answerable for Sarror, accept the conclusions of the State court as the the damages which they may chance to sustain thereby, yrue interpretation, for that locality, of the laws of unless it be that he made that change merely with a "war, and as the 'law' of the State in the sense of the view to hurt others without any advantage to himself.

* *



He may raise his house as high as he pleases, although extent irreconcilable upon general principles, and are by the elevation he should darken the light of his pressed upon the court by the able contending counsel, neighbor's house.' * * These principles of the who have made this case a specialty, and who by their civil law are also the recognized doctrine of the com- intellectual exertions have awakened a vivid interest mon law. Birg v. Pope, 1 Cro. Eliz. 118; Parker v. in the court. It cannot be denied that Story v. Odin, Wendell, 19 Wend. 309; 2 id. 331; 18 Pick. 121. It is 12 Mass. 157, rules the point at issue, so far as the true that several nisi prius decisions introduced a opinion of the court is concerned, squarely; for it does modern doctrine in relation to ancient lights, in oppo- declare that the owner of a servient tenement may not sition to that held in the reign of Queen Elizabeth by interfere with the light and air of the owner of the all the judges in the Exchequer Chamber. 1 Cro. Eliz., dominant tenement. This clearly is the force and supra. But the modern doctrine was never recognized scope of the opinion, though the special facts of the by the King's Bench until the decision in 2 Saunders, caso would have sustained the judgment on the ground 175, note 2. As that decision was since the American of necessity. If it stood alone I should be governed Revolution, after which the English courts ceased to by it, notwithstanding the wise dictum of Ilaverstick have authority here, and is an anomaly in the law, the v. Sipe, supra, and the modifying influences of Keiffer modern doctrine founded upon it has not been received v. Imhoff, 2 Casey, 445; 6 id. 293–299, as well as of as suitable to the condition of the country. 19 Wend. Washburn on Easements, 589, 590, and authorities 309; 2 Watts, 331."

there cited. A careful examination of Maynard v. It is clear from this extensively cited authority Escher, 5 Harr. 226 (a case miscited through error in that the English rule of new adoption compara- the syllabus), 6 Casey, supra, of 14 Wr. 423, and the tively does not prevail in Pennsylvania. Following authorities cited by Agnew, J., will demonstrate that this case, Lowrie, C. J., says, in Haverstick v. Sipe, 9 the broad ruling of Odin v. Story, supra, has not been Casey, 370: “It has never been considered in this adopted in Pennsylvania. Still, as has been said, a State that a contract for the privilege of light and respectful regard for the Supreme Court of Massachuair, over another man's ground, could be implied from setts would induce me to follow its ruling, were there the fact that such a privilege has been long enjoyed, no other adjudicated cases. But the same tribunal, at or that on a sale of a house and lot, such a contract a much later period, in Keats v. Hugo, 115 Mass. 208, would be implied from the fact that such a privilege adopts a different rule, and one which accords with my has been long enjoyed, or that on a sale of a house and own views of this question, as affected by public policy lot such a contract could be implied from the character and business interests. I understand this case to overof the improvements on the lot sold and the adjoining rule Story v. Odin, or, at least, to explain it to such an lots."

extent that its right as a precedent fails. Story v. There is, therefore, no rule of the English courts Odin was ruled in 1815 by Jackson, J., and it will be which is final and conclusivo in Pennsylvania. The noticed that it is based upon English authorities, and case is to be adjudged therefore either upon general that its reasoning is therefore weakened in Pennsylprinciples applicable to our civilization, and in accord- vania by what is said by our Supreme Court in ance with general public policy, or to be determined Wheatley v. Baugh, supra. by the light cast by the decisions of our sister Com- Keats v. Hugo was ruled in June, 1874, and beginmonwealths.

ning with Story v. Odin reviews in analytical detail all To adjudicate the question fully the proposition to the cases adjudicated in Massachusetts and some other be adjudged must be distinctly stated and clearly un- States upon this question. This case rules that the derstood.

easement of light and air is not implied from the grant It is clear that Mr. Rozell, the defendant, is the of a house having windows overlooking land retained owner of the servient tenement. The plaintiff pur- by the grantor. It declares that since Story v. Odin chased with his house and windows overlooking the and the obiter dicta in 12 Mass. 220, 17 id. 443, 1 Sumner, lot of the defendant. The latter built, closing the 492, the cases have been more fully considered on prinwindows of the former, and the question presented is, ciple, and that the tendency of judicial decisions in whether a servient tenement can close the windows on Massachusetts and most other States has been to deny one side, and thus deprive the dominant tenant of the tho doctrine of acquiring a right to light and air by light and air which he desires from that side. I think presumption or implication. Chief Justice Gray adds: I have stated the question fairly. It is new in Penn- “In no judgment of this court since Odin v. Story, has sylvania, and it is entitled to a broad ruling. The law any right of light or air been upheld, except by express should be clear on so important a topic, and this court grant or agreement." In this most learned and exwill endeavor to rule su explicitly that all doubt will haustive opinion the learned judge first notes that be at an end when its conclusion is affirmed or denied Odin v. Story is based upon English authorities; that by the court of last resort.

neither in the opinion of the court nor in the arguThe inquiry is by no means free from difficulty. ment of counsel is it suggested that a different rule This question has never been distinctly met and ruled may be required by the exigencies of a new country, in Pennsylvania; and in other States the rulings are with new wants, under a new and developing system conflicting. Ilaverstick v. Sipe, supru, is the case of a of civilization and improvement, and that the facts of dominant tenant, and while in dictum it is decisive, is, the case themselves did not require a decision upon upon the question involved by this record, no more the general principle. He then reviews the authorities than a dictum. Though largely cited, it does not at great length. Among these is Collier v. Pierce, 7 definitely rule, as contended or as quoted. One case Gray, 18, which has the authority of Chief Justice has been ruled in Pennsylvania, by Finletter, J., Kay Shaw to uphold it. I will not pause to cite the other v. Stallman, 2 Weekly Notes, 643. This stands alone, authorities quoted in the opinion. Many of them are and is, I have no doubt, well ruled uuder the special used to show the tendency of the courts to hold in this facts of the case, which, when understood, demon- country, that easements of light, air, overhanging prostrate that the dominant tenement would have lost its jections, are not implied in favor of the dominant ais light and air and also its means of access, if the erection against the servient tenement. The principal case is upon the servient tenement had been maintained. strong, clear, and most emphatic, and its concludinig This case, therefore, involves the question of necessity reasoning is so sound that I cannot forbear quoting it -an element which the master here has found is not in extenso. “By nature air and light do not flow in involved by this record.

definite channels, but are universally diffused. Tine In other States two cases stand prominently forward. supposed necessity for their passage in a particular They conflict as to their conclusious; are to a great line or direction to any lot of laud is created not buy

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