22 Mont. 254 | Mont. | 1899
Defendant built the fence upon her own property. That being true we know of no statute of the State, or ordinance of the city of Butte, which, in the exercise of a police power, prevented her from putting up the structure. Nor will the law generally prevent it. The owner of a piece of property has a right to shut off air and light from his neighbors’ windows by building on his own lots. This doctrine is too well settled in this country to require authorities. He cannot-annoy his neighbor with the smell of his privy vaults, or with percolating sewer water, or other inconveniences which the law recognizes as injurious; but the free use of light and air by an owner of the soil are his, to any extent he pleases, without regard to his neighbor’s convenience or inconvenience. (Picard v. Collins, 23 Barb. 444; Letts v. Kessler, 54 Ohio St. 73, 42 N. E. 765; Judge Campbell’s opinion in Burke v. Smith, 69 Mich. 380, 37 N. W. 838.) It
A person having a legal right can enforce the enjoyment of it without having his motive inquired into. (Phelps v. Nowlen, 72 N. Y. 39.)
The allegation that the fence is liable to be blown over upon plaintiff’s building, and may result in injuring the same, is very bad. It is not stated directly that the construction of the fence is defective or poor, or how it is dangerous to plaintiff’s property, or that it is on account of any weak or negligent construction that plaintiff’s property is endangered. The allegation is one of conclusions, and insufficient to withstand a general demurrer.
Judgment affirmed. Affirmed.