Tripue, Judge.
1. The ancient doctrine of title by prescription which depended on immemorial usage, has given way to the modern rule of presuming a right by grant or license to easements and incorporeal hereditaments, after twenty years of uninterrupted adverse enjoyment. To authorize the presumption, the enjoyment must not only be uninterrupted for the space [26]*26of twenty years, but it must be adverse and under a claim or assertion of right, and not by the consent or favor of another claimant or true owner: 2 Pick., 466; 11 East, 372; 4 B. & Ald., 579. The fact that the user must be adverse, must exist in every such case, to authorize the necessary presumption. If the use of the easement be, ab initio, legal or rightful, the title of the occupant is as good at the outset as it could be by the lapse of any length of time, and there is no necessity of any presumption. But if it be the usurpation of the property of another under a claim of right, it then becomes adverse, for it is in hostility to the title and in derogation of the rights of the original owner — an actual ouster of him. In such cases a grant, or license, or covenant, is presumed for the purpose of quieting the enjoyment or possession thus adversely held or used. The injured party, who may for such a long time sleep over his rights, cannot complain of this rule. He could have had redress any day during the twenty years by action, and could have arrested by suit, at any time within that period, the continued'' and uninterrupted possession or enjoyment. His remedy was in his own hands. This right of the injured party is a cardinal fact that must exist, else all statutes of limitation, and all rules of prescription or of presumption, of license or grant, would be but rules of spoliation or robbery. And thus exist those provisions which suspend the running of the rules of limitation against the rights of any one laboring under disabilities to assert his claim by action.
Statutes of limitation apply to cases where one is in adverse possession of property that may be claimed by another, and if the statutory period elapses before a counter-claim is asserted by action, the right or title of the one in possession is held legal and perfect. The doctrine of presuming a right, by grant or otherwise, to easements, etc., exists where one is in the adverse use or enjoyment for a certain period of an incorporeal right. This use or enjoyment cannot be adverse unless it be exercised in denial of the title and in derogation of the rights of any other owner. It cannot be adverse to another owner unless he has a right of action on account of a wrong [27]*27done him. The damages may be but nominal, but if his right has been invaded, and there be danger that by lapse of time he may be barred from denying the claim of his adversary, he can, by a judgment, establish his title and forever determine the question of presumption of a grant. At any rate, he has the means of self-protection.
This rule, then, of presumption of right, by grant or otherwise, may well apply to claims which relate to commons, marJcets, toater-courses, ways, and the like, where an adverse user or enjoyment is a direct and overt injury to the person -who may be the true owner, and against whom the presumption is to be made. In all these instances there is an invasion on the property of another, or his beneficial interest in it is lessened. The wrong done may be redressed by immediate action. During all the time, which, by its lapse may raise the presumption against him, he has it in his power to arrest that presumption by asserting his right and.having it settled by a judgment. But it is difficult, if not impossible, to see how this doctrine can be made to apply to those instances of easeidfcnts, so called, where there is no possession of anything belonging to another, no encroachment upon another’s right, no adverse user, in fact, nothing done whatever, against which another could complain, or for which an action could be brought, and no remedy existing whereby to prevent such a presumption from arising. If it does so apply, a person would be compelled to submit to the loss or depreciation of important rights, or to a damaging interest accruing to another by mere lapse of time, and be utterly powerless to prevent it, save, perhaps, by some churlish or expensive appropriation of his property to uses or purposes hurtful to himself and offensive to his neighbor. Thus, for instance: if this doctrine exists in the case of lights or windows overlooking the premises of an adjoining proprietor, simply because they have been used for twenty years, (and after that time no building can be erected to interfere with such lights,) then as such proprietor of the adjacent land has no right of action, no claim for damages for-a wrong done, he will be forced to build at the dicta[28]*28tion of another, or to set up an obstructing wall, merely to show he is lord of his own soil, or forever lose the right of the free use of his property. A servitude on his land might become fixed, simply because he might not be prepared to build within a given time.
It is true this doctrine of acquiring a presumptive right to light and air by mere length of enjoyment, has been held for many years in England, and in a few of the States of the Union. But in most of the States it has been decided not to have been the doctrine of the ancient common law, is not the law of this country, and is not suited to the condition of a country which is growing and changing so rapidly in all its relations of property, as well as its value and modes of enjoyment: 19 Wend., 309; 10 Barb., 537; 15 Gray, 387; 33 Pa. St. R., 368; 37 Ala., 501; 5 Rich., 311; 2 Conn., 584; 26 Me., 436; 11 Md., 1; Wash on Easements, 498; Cooley’s Blackstone, 2 book, 36 (note 20.) In Parker vs. Foote, 19 Wendell, it is styled “ the modem English doctrine,” “ an anomaly in the law,” “ a departure from the old law.” It is further said, “ it may do well enough in England, * * but it cannot be applied to the growing cities and villages of this country without working the most mischievous consequences : 3 Kent’s Com., 446, (note a.)
The decisions thus far referred to were cases involving the question of a prescriptive right, from long enjoyment, to light and air. But every principle or reason advanced in support of them applies with full force to a claim of right by the owner of a building erected on the line of his lot to the lateral support of the adjacent soil, on the ground that his building has been standing there for a given number of years. Neither in the case of the window opening out on another man’s land, or of a building erected on the dividing line, has the owner committed an act against which his neighbor can protest. He has not touched his property, or invaded any right, or given any cause of action. He had a right to use or build on his lot to the farthest limit of his boundary. He has only done this, and never has had any use, or possession, or enjoyment [29]*29of any right, corporeal or incorporeal, belonging to another, to which objection could in any form be made, and “ it would, therefore, be a misuse, as well as an abuse, of the terms license, grant and acquiescence, to say he has acquired a right by means thereof from the owner of the adjacent lot. This was so expressly decided in Hoy vs. Sterrett, 2 Watts, 227; Richart vs. Scott, Ibid., 460. The grounds upon which these decisions are put are precisely the same as those in the cases applicable to lights and air.
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Tripue, Judge.
1. The ancient doctrine of title by prescription which depended on immemorial usage, has given way to the modern rule of presuming a right by grant or license to easements and incorporeal hereditaments, after twenty years of uninterrupted adverse enjoyment. To authorize the presumption, the enjoyment must not only be uninterrupted for the space [26]*26of twenty years, but it must be adverse and under a claim or assertion of right, and not by the consent or favor of another claimant or true owner: 2 Pick., 466; 11 East, 372; 4 B. & Ald., 579. The fact that the user must be adverse, must exist in every such case, to authorize the necessary presumption. If the use of the easement be, ab initio, legal or rightful, the title of the occupant is as good at the outset as it could be by the lapse of any length of time, and there is no necessity of any presumption. But if it be the usurpation of the property of another under a claim of right, it then becomes adverse, for it is in hostility to the title and in derogation of the rights of the original owner — an actual ouster of him. In such cases a grant, or license, or covenant, is presumed for the purpose of quieting the enjoyment or possession thus adversely held or used. The injured party, who may for such a long time sleep over his rights, cannot complain of this rule. He could have had redress any day during the twenty years by action, and could have arrested by suit, at any time within that period, the continued'' and uninterrupted possession or enjoyment. His remedy was in his own hands. This right of the injured party is a cardinal fact that must exist, else all statutes of limitation, and all rules of prescription or of presumption, of license or grant, would be but rules of spoliation or robbery. And thus exist those provisions which suspend the running of the rules of limitation against the rights of any one laboring under disabilities to assert his claim by action.
Statutes of limitation apply to cases where one is in adverse possession of property that may be claimed by another, and if the statutory period elapses before a counter-claim is asserted by action, the right or title of the one in possession is held legal and perfect. The doctrine of presuming a right, by grant or otherwise, to easements, etc., exists where one is in the adverse use or enjoyment for a certain period of an incorporeal right. This use or enjoyment cannot be adverse unless it be exercised in denial of the title and in derogation of the rights of any other owner. It cannot be adverse to another owner unless he has a right of action on account of a wrong [27]*27done him. The damages may be but nominal, but if his right has been invaded, and there be danger that by lapse of time he may be barred from denying the claim of his adversary, he can, by a judgment, establish his title and forever determine the question of presumption of a grant. At any rate, he has the means of self-protection.
This rule, then, of presumption of right, by grant or otherwise, may well apply to claims which relate to commons, marJcets, toater-courses, ways, and the like, where an adverse user or enjoyment is a direct and overt injury to the person -who may be the true owner, and against whom the presumption is to be made. In all these instances there is an invasion on the property of another, or his beneficial interest in it is lessened. The wrong done may be redressed by immediate action. During all the time, which, by its lapse may raise the presumption against him, he has it in his power to arrest that presumption by asserting his right and.having it settled by a judgment. But it is difficult, if not impossible, to see how this doctrine can be made to apply to those instances of easeidfcnts, so called, where there is no possession of anything belonging to another, no encroachment upon another’s right, no adverse user, in fact, nothing done whatever, against which another could complain, or for which an action could be brought, and no remedy existing whereby to prevent such a presumption from arising. If it does so apply, a person would be compelled to submit to the loss or depreciation of important rights, or to a damaging interest accruing to another by mere lapse of time, and be utterly powerless to prevent it, save, perhaps, by some churlish or expensive appropriation of his property to uses or purposes hurtful to himself and offensive to his neighbor. Thus, for instance: if this doctrine exists in the case of lights or windows overlooking the premises of an adjoining proprietor, simply because they have been used for twenty years, (and after that time no building can be erected to interfere with such lights,) then as such proprietor of the adjacent land has no right of action, no claim for damages for-a wrong done, he will be forced to build at the dicta[28]*28tion of another, or to set up an obstructing wall, merely to show he is lord of his own soil, or forever lose the right of the free use of his property. A servitude on his land might become fixed, simply because he might not be prepared to build within a given time.
It is true this doctrine of acquiring a presumptive right to light and air by mere length of enjoyment, has been held for many years in England, and in a few of the States of the Union. But in most of the States it has been decided not to have been the doctrine of the ancient common law, is not the law of this country, and is not suited to the condition of a country which is growing and changing so rapidly in all its relations of property, as well as its value and modes of enjoyment: 19 Wend., 309; 10 Barb., 537; 15 Gray, 387; 33 Pa. St. R., 368; 37 Ala., 501; 5 Rich., 311; 2 Conn., 584; 26 Me., 436; 11 Md., 1; Wash on Easements, 498; Cooley’s Blackstone, 2 book, 36 (note 20.) In Parker vs. Foote, 19 Wendell, it is styled “ the modem English doctrine,” “ an anomaly in the law,” “ a departure from the old law.” It is further said, “ it may do well enough in England, * * but it cannot be applied to the growing cities and villages of this country without working the most mischievous consequences : 3 Kent’s Com., 446, (note a.)
The decisions thus far referred to were cases involving the question of a prescriptive right, from long enjoyment, to light and air. But every principle or reason advanced in support of them applies with full force to a claim of right by the owner of a building erected on the line of his lot to the lateral support of the adjacent soil, on the ground that his building has been standing there for a given number of years. Neither in the case of the window opening out on another man’s land, or of a building erected on the dividing line, has the owner committed an act against which his neighbor can protest. He has not touched his property, or invaded any right, or given any cause of action. He had a right to use or build on his lot to the farthest limit of his boundary. He has only done this, and never has had any use, or possession, or enjoyment [29]*29of any right, corporeal or incorporeal, belonging to another, to which objection could in any form be made, and “ it would, therefore, be a misuse, as well as an abuse, of the terms license, grant and acquiescence, to say he has acquired a right by means thereof from the owner of the adjacent lot. This was so expressly decided in Hoy vs. Sterrett, 2 Watts, 227; Richart vs. Scott, Ibid., 460. The grounds upon which these decisions are put are precisely the same as those in the cases applicable to lights and air. As has been well said by a writer in the American Law Review, 1 volume, 10 — “How can the assent of the adjoining proprietor be implied when he never had the opportunity of expressing his dissent ? He could bring no action against his neighbor for doing what he had a perfect right to do. It is a mockery to say he might have dug up his land during the period of prescription. The doctrine has been very much shaken in England since the recent case of Solomon vs. Vinters Company, 4 H. & N., 585 and adds further, “ the analogous doctrine of lights has been so generally discarded in this country that we are disposed to believe that the prescriptive right of support to houses will be also rejected when fairly presented for decision.”
As was said of the doctrine of a prescriptive right to lights, already quoted, so it may be said of this, as claimed by plaintiff in error, “it cannot be applied to the growing cities and towns of this country without working the most mischievous consequences.” In Mayor and Council of Rome vs. Om-berg, Judge Lumpkin said: “People purchase property and build in towns with full knowledge of the public necessity to have streets by excavating or elevating as the case may demand; and they must take the chances and consequences.” I conclude on this point with the words of our young brother who ably argued it for defendant in error. “ One building on his own land is clearly in the exercise of his legal rights. There is no encroachment upon the land or rights of another; no occupation of that which belongs to another; no adverse possession under a claim of title. No one can have a right of action against him, for he has not trespassed upon or vio[30]*30lated the rights of any other person. How then, can he, by this lawful use of his own land for twenty years, acquire a beneficial interest in the land of his neighbor?”
2. We do not think there was any liability on the part of the city for any work that might have been done by the direction or consent of either of the plaintiffs. They were tenants in common, and were in joint possession, and are joint plaintiffs. If one had confederated with third parties to have committed willful damage or trespass, the question might be different. But if it be proven that work is done upon the common property by the approval or direction, of a joint owner in possession, there is no liability on the one who does the work simply for executing the directions of his employer.
3. But where it was a question in issue whether such consent or direction was given, we think the Court went too far in charging the jury, “what they (the City Council) do so far out of the line of their own business as to be evidently done in the execution of sombody else’s job, if such owner was present and knew what was going on, and made no objection, will be presumed to be done by direction or consent of such property owner, if nothing appears to the contrary. But such presumption may be rebutted,” etc. In the first place, the charge assumes that what was done, of which complaint is made and for which suit is brought, was evidently somebody else’s job — to-wit: that somebody, other than the City Council had it done. That was a disputed fact, and one for the jury exclusively. Secondly, section 3699 of the Code, says presumptions of fact are exclusively questions for the jury. We think it was the right of the jury in this case to determine what presumption arose from the facts proven by the evidence, and for this reason remand the case for a new trial: See Macon and Western Railroad vs. McConnell, 27 Ga., 482.
New trial granted.