123 Disregarding

"123 and disregarding any interest of the plaintiff in the use and enjoyment of his land. This we refuse to do. 8 Private nuisance law, the law traditionally used to adjudicate conflicts between private landowners, has the flexibility to protect both a landowner’s right of access to sunlight and another landowner’s right to develop land. Private nuisance law is better suited to regulate access to sunlight in modern society and is more in harmony with legislative policy and the prior decisions of this court than is an inflexible doctrine of non-recognition of any interest in access to sunlight across adjoining land. 9 8 Defendant’s position that a landowner’ s interest in access to sunlight across adjoining land is not “legally enforceable” and is therefore excluded per se from private nuisance law was adopted in Fontainebleau Hotel Corp. v. Forty-five Twenty-five, Inc. , 114 So.2d 357 (Fla. App. 1959), cert. den. 117 So.2d 842 (Fla. 1960). The Florida district court of appeals permitted construction of a building which cast a shadow on a neighboring hotel’s swimming pool. The court asserted that nuisance law protects only those interests “which [are] recognized and protected by law,” and that there is no legally recognized or protected right to access to sunlight. A property owner does not, said the Florida court, in the absence of a contract or statute, acquire a presumptive or implied right to the free flow of light and air across adjoining land. The Florida court then concluded that a lawful structure which causes injury to another by cutting off light and air-whether or not erected partly for spite-does not give rise to a cause of action for damages or for an injunction. See also People ex rel Hoogasian v. Sears, Roebuck & Co. , 52 Ill. 2d 301 (1972). We do not find the reasoning of Fountainebleau persuasive. The court leaped from rejecting an easement by prescription (the doctrine of ancient lights) and an easement by implication to the conclusion that there is no right to protection from obstruction of access to sunlight. The court’s statement that a landowner has no right to light should be the conclusion, not its initial premise. The court did not explain wh y an owner’s interest in unobstructed light should not be protected or in what manner an owner’s interest in unobstructed sunlight differs from an owner’s interest in being free from obtrusive noises or smells or differs from an owner’s interest in unobstr ucted use of water. The recognition of a per se exception to private nuisance law may invite unreasonable behavior. 9 For a discussion of nuisance law, see Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules, and Fines as Land Use Controls , 40 U. Chi. L. Rev. 681 (1973); Comment, Nuisance as a Modern Mode of Land Use Control , 46 Wash. L. Rev. 47 (1970)."