117 Restatement

"117 Restatement (Second) of Torts, Sec. 821D, Comment b, p. 101 (1977) Although the defendant’s obstruction of the plaintiff’s access to sunlight ap pears to fall within the Restatement’s broad concept of a private nuisance as a nontrespassory invasion of another’s interest in the private use and enjoyment of land, the defendant asserts that he has a right to develop his property in compliance with statutes, ordinances and private covenants without regard to the effect of such development upon the plaintiff’s access to sunlight. In essence, the defendant is asking this court to hold that the private nuisance doctrine is not applicable in the instant case and that his right to develop his land is a right which is per se superior to his neighbor’s interest in access to sunlight. This position is expressed in the maxim “cujus est solum, ejus est usque ad coelum et ad infernos,” that is, the owner of land owns up to the sky and down to the center of the earth. The rights of the surface owner are, however, not unlimited. U. S. v. Causby , 328 U.S. 256, 260-1 (1946). The defendant is not completely correct in asserting that the common law did not protect a lando wner’s access to sunlight across adjoining property. At English common law a landowner could acquire a right to receive sunlight across adjoining land by both express agreement and under the judge- made doctrine of “ancient lights.” Under the doctrine of ancient lights if the landowner had received sunlight across adjoining property for a specified period of time, the landowner was entitled to continue to receive unobstructed access to sunlight across the adjoining property. Under the doctrine the landowner acquired a negative prescriptive"