Knickerbocker

The defendants appeal from the judgment, and from a refusal of a new trial.

The appellants and respondent own adjoining lots in the city of San Jose. The complaint contains two *113 counts. The first describes plaintiff’s lot, and avers that it has erected a building thereon for its offices, which building has six windows in the northerly wall, through which, only, light and air are or can be admitted into that portion of the building; and if such light and air be materially obstructed, said portion of plaintiff’s building will become useless. Plaintiff has been using the building and office for more than six months.

Defendant owns the adjoining lot, which he occupies as a residence, but, until the grievances complained of, has never obstructed the passage of light and air over that part of his premises to plaintiff's building, and has no use whatever for that portion of his premises whereby said light and air would be obstructed.

Nevertheless, on the 19th of June, 1891, defendant commenced to build a°long the division line a solid board fence twenty feet high, in such manner as to prevent the passage of light and air into said windows. That the defendant has not obtained the…