¶1dissenting:
¶2The deed from Downey to Sims, considered in Powell v. Sims, 5 W. Va. 1, relied upon by the majority, was dated March 29, 1869. The provisions of the 1868 Code, now Code, 2-1-2, providing that “It is hereby declared that the common law of England, touching ancient lights, is not and never has been in force in this State”, did not become effective until April 1, 1869. The Powellcase was not decided until the July term, 1871, and does not mention the statute, but clearly bases its authority upon the common law rule relating to implied grants of easements for light, and very materially limits that rule by declaring: “The common law of England is in force in this State only so far as it is in harmony with its institutions, and its principles applicable to the state of the country and the condition of society.” Since the statute above quoted declared the common law rule relating to ancient lights not to be the law of this State, and since the effective date of the statute was subsequent to the date of the deed. I am of the view that the Powellcase can not be considered authority for the position of the majority in the instant case. The common law rule permitted an easement for air and light only upon the presumption of an implied grant. When the rule was abrogated, by the statute the right to imply such a grant was necessarily destroyed.
¶3*511Assuming, however, that the rule of the Powellcase remains the law of this State, I can not believe it was intended to be given the broad meaning attributed to it by the majority in the instant case. The rule is laid down in the first clause of Point 3 of the syllabus as follows: “An implied grant of an easement of light will be sustained only in cases of real necessity; … The opinion says only in cases of “real and obvious necessity.” The last clause of Point 3 merely applies the rule to the facts of that case. It merely says that the rule could not be applied in that case for the reason that light could be obtained from a different source at a “reasonable cost”, and does not necessarily mean that the grant of an easement would be implied in a case where “real and obvious” necessity did not exist, even though light could not be obtained at a reasonable cost. The word “real” is often used as synonymous with such words as absolute, intrinsic and actual. Webster’s International Dictionary, 2d Edition. I think that the rule intended to be laid down in the Powellcase was that the necessity for the easement must be absolute and also obvious. Such a meaning would not permit uncertainties as to the existence of such easements and would not make titles to real properties depend upon proof as to such matters as costs of altering buildings, upon the utility of the building before or after alterations, or as the opinions of persons, living or dead. Such meaning would, I believe, bring the rule practically into accord with our “existing system of registration” of titles, as pointed out in the Powellcase, and practically in accord with “the manifest tendency to reject altogether the doctrine of implied grants of easements for light, and limit and confine to express grants, so that the rights of the parties would be determined by the face of the deed under which they hold”, as also pointed out in the Powellcase. In Rennyson’s Appeal, 94 Pa. 147, 39 Am. Rep. 777, cited in the majority opinion, the Powellcase is relied upon as holding that such an easement could not be implied beyond what “is absolutely necessary” to the enjoyment of the premises conveyed. Since it is admitted in this case that light and air can be obtained otherwise than by virtue *512of the claimed easement, and there is no absolute and obvious necessity for the easement, I would reverse the ruling of the lower court.
¶4If forced to the conclusion of the majority, I would not hesitate to overrule the Powellcase. Less harm would result, I believe, by doing so than to permit to stand such a plainly erroneous decision, one almost universally condemned. “The common law of England, touching ancient lights, though recognized in the United States in some early cases, and apparently adopted in some of the States, has generally been almost unanimously repudiated. … 1 Am. Jur., Adjoining Land Owners, Section 49. “It is generally held, in this country, that there is no implied grant of right to light or air over the grantor’s land adjoining the land conveyed.” 2 Thompson on Real Property, Permanent Edition, Page 205. In Baird v. Hanna, 328 Ill. 436, 159 N. E. 793, the Court pointed out that the law of implied grants and implied reservations should “not be applied to easements for light and air”, citing Guest v. Reynolds, 68 Ill. 478, 18 Am. Rep. 570; Keating v. Springer, 146 Ill. 481, 34 N. E. 805, 22 L. R. A. 544, 37 Am. St. Rep. 175, and others. Undoubtedly the great weight of authority supports such a rule. 3 Kent’s Commentaries, 14th Ed., 698; 1 Am. Jur., Adjoining Land Owners, Section 50; Miller v. Hoeschiler, 126 Wis. 263, 105 N. W. 790, 8 L. R. A. (N. S.) 237; Knight v. Mitchell, 154 Md. 102, 140 A. 74, 56 A. L. R. 1135. To permit such a rule as contended for by the majority to stand necessarily brings into question numerous titles upon which adjoining buildings have been erected. The purchasers thereof must take the risk of the existence or nonexistence of such easements and there is no possible way for them to determine what evidence may be produced in the future as to the necessity for or as to the existence of such an easement, or what evidence can be produced at some given time as to “reasonable costs” of alterations claimed necessary, or even what alterations would be deemed necessary. Under such a rule reasonable costs today may be the controlling feature in determining the nonexistence of an easement, while tomorrow the *513costs may prove unreasonable, creating the easement. It seems clear that under such circumstances purchasers will have no way of determining whether their properties are to be encumbered with such easements or to remain free therefrom. There is no way to make titles certain and, at the same time, make them depend upon proof of “facts and circumstances of the particular situation presented.” In Keats v. Hugo, 115 Mass. 204, 15 Am. Rep. 80, where many authorities are reviewed, the Court stated:
“By nature, air and light do not flow in definite channels, but are universally diffused. The supposed necessity for their passage in a particular line or direction to any lot of land is created, not by the relative situation of that lot to the surrounding lands, but by the manner in which that lot has been built upon. The actual enjoyment of the air and light by the owner of the house is upon his own land only. He makes no tangible or visible use of the adjoining lands, nor indeed any use of them which can be made the subject of an action by their owner, or which in any way interferes with the latter’s enjoyment of the light and air upon his own lands, or with any use of those lands in their existing condition. In short, the owner of the adjoining lands has submitted to nothing which actually encroached upon his rights, and cannot therefore be presumed to have assented to any such encroachment. The use and enjoyment of the adjoining lands are certainly'no more subordinate to those of the house where both are owned by one .man, than where the owners are different. The reasons upon which it has been held that no grant of a right to air and light can be implied from any length of continuous enjoyment are equally strong against implying a grant of such a right from the mere conveyance of a house with windows overlooking the land of the grantor. To imply the grant of such a right in either case, without express words, would greatly embarrass the improvement of estates, and, by reason of the very indefinite character of the right asserted, promote litigation. The simplest rule, and that best suited to a country like ours, in which changes are continually taking place in the ownership and the use of *514lands, is that no right of this character can be acquired without express grant of an interest in, or covenant relating to, the lands over which the right is claimed.”
¶5Obviously, cases considering implied grants of easements for rights of way should be given little, if any, weight, in determining the proper rule to be applied to implied grants of easements for light and air. In such cases the true facts can always be readily determined by an examination of the record title and a view or survey of the premises. Moreover, there is no statute in this State prohibiting the creation of such an easement by an implied grant.
¶6I am not impressed with the belief that the rule of the Powellcase, as contended for by the majority, has become a valuable “rule of property”. On the contrary, the fact that no matter which involves the rule has been brought before this Court since the decision of the Powellcase, almost eighty years ago, notwithstanding the great number of congested building areas existing in this State, causes me to believe that no reliance whatever has been placed on the decision. However that may be, there seems no good reason for the continuance of a rule fraught with so many dangers and uncertainties. A case decided erroneously should be the law of that case only. See Falconer v. Simmons, 51 W. Va. 172, 41 S. E. 193; Weston v. Ralston, 48 W. Va. 170 at 188, 36 S. E. 446; Harbert v. Railroad Company, 50 W. Va. 253, 40 S. E. 377. I would not blindly follow a rule making titles to real properties now owned, as well as those to be acquired in the future, so uncertain and questionable, and deprive owners of valuable rights and uses of their properties, merely out of deference to an erroneously stated rule.
¶7Being of the views indicated, I respectfully dissent. I am authorized to say that Judge Lovins joins me in this dissent.
¶8NOTE BY JUDGE LOVINS
¶9As above indicated, I join the dissenting opinion of Judge Given. I would go farther. The provisions of Code, *51536-1-1, reading as follows: “No estate of inheritance or freehold, or for a term of more than five years, in lands, or any other interest or term therein of any duration under which the whole or any part of the corpus of the estate may be taken, destroyed, or consumed, except for domestic use, shall be created or conveyed unless by deed or will.”, militate against the creation of estates by implication. Especially is this true as to a claimed easement for light and air, which elements are intangible and cannot be the subject of exclusive possession.
¶10Considering the operation of the conveyance from Lizzie Coles to her grantors, I do not think the creation of an easement in derogation of the original grant by Lizzie Coles -should be permitted. “A deed which purports to convey a greater right or interest in real property than the person making it may lawfully convey shall operate as an alienation of such right' or interest in such real property as such person might lawfully convey. …” Code, 36-1-10.
¶11I think that Code, 36-1-10, does not support the construction of a deed so as to derogate from the grant contained in the deed from Lizzie Coles in which there is no reservation.
¶12I am aware of the fact that this Court has upheld implied grants of easements in land and flowage rights, but I do not think that an implied easement in land or flowage rights is analagous to a claimed easement in light and air for the reason that one concerns tangible and the other intangible elements. Moreover, an implied grant rests on a different basis from an implied reservation contrary to an explicit grant.