118 Easement

"118 easement and could prevent the adjoining landowner from obstructing access to light. 3 Although American courts have not been as receptive to protecting a landowner’s access to sunlight as the English courts, American courts have afforded some protection to a landowner’s interest in access to sunlight. American courts honor express easements to sunlight. American courts initially enforced the English common law doctrine of ancient lights, but later every state which considered the doctrine repudiated it as inconsistent with the needs of a developing country. Indeed, for just that reason this court concluded that an easement to light and air over adjacent property could not be created or acquired by prescription and has been unwilling to recognize such an easement by implication. Depner v. United States National Bank , 202 Wis. 405, 408 (1930); Miller v. Hoeschler , 126 Wis. 263, 268-69 (1905). Many jurisdictions in this country have protected a landowner from malicious obstruction of access to light (the spite fence cases) under the common law private nuisance doctrine. 4 If an activity is motivated by malice it lacks utility and the harm it causes others outweighs any social values. This court was reluctant to protect a landowner’ s interest in sunlight even against a spite fence, only to be overruled by the legislature. Shortly after this court upheld a landowner’s right to erect a useless and 3 Pfeiffer, Ancient Lights: Legal Protection of Access to Solar Energy , 68 ABAJ 288 (1982). No American common law state recognizes a landowner’s right to acquire an easement of light by prescription. Comment, Solar Lights: Guaranteeing a Place in the Sun , 57 Ore. L. Rev. 94, 112 (1977). 4 In several of the spite fence cases, courts have recognized the property owner’s interest in sunlight. Hornsby v. Smith , 191 Ga. 491, 500 (1941) (“the air and light no matter from which direction they come are God-given, and are essential to the life, comfort, and happiness of everyone”); Burke v. Smith , 69 Mich. 380, 389 (1888) (“the right to breathe the air and enjoy the sunshine, is a natural one”); Barger v. Barringer , 151 N.C. 4 33, 437 (1909) (“light and air are as much a necessity as water, and all are the common heritage of mankind”)."