95 Neb. 552 | Neb. | 1914
Lead Opinion
The plaintiff began this action in the district court for Lancaster county to enjoin the defendants from interfering with the plaintiff in the erection, repairing and rebuilding of a fence which the plaintiff and her husband desired to maintain on or near the line between the residence lot of the plaintiff and that of the defendants. The defendants answered by way of cross-petition, alleging that while the defendants were away from home the plaintiff erected a rough, unsightly board fence between the lot occupied by the residence of the defendants and the lot so occupied by the plaintiff; that the fence was “about six feet high from the front sidewalk for fifteen feet back, and for the rest of its extent * * * was seven feet high; that the fence ran within about seven and one-half feet of the full west side of defendants’ house; that the fence shut out the light, air, and view from the defendants’ windows, and that defendants were unable to see the street or street cars or to have any view whatever from the windows on the west side of their house; and that.the view was cut off from their front porch and front yard to the west and northwest,” with other allegations as to the injury that the fence caused to the defendants, and then alleged “that the fence was not only high, but was made out of as rough material as possible, and was made for the express purpose of annoying and disturbing defendants and the members of their family, and was erected for no useful purpose.” It was further alleged that the fence “was placed on, over and along said lot line, immediately on the west of defendants’ house, maliciously and out of spite, and for the express purpose of harassing defendants and their family, and for the purpose of annoying them and disturbing their peace of mind, and for the
The defendants alleged that that part of the fence which the plaintiff is enjoined from maintaining extended in some points on to defendants’ land, and that their placing and maintaining it there constituted a trespass. Several witnesses'testified that some of the fence posts, and especially the cement in which the posts were set, extended on to the defendants’ land about two inches. The county surveyor, who was called upon to make exact measurements for the purpose of determining this point, testified that he found one or two of the posts that were set a fraction of an inch on the defendants’ land, and that no part of any of the fence extended more than two inches over the defendants’ land. This variation is so slight that it does not appear to be considered as a material matter in the controversy. There are then but two questions, one of law and one of fact, involved in the case: First. Can a landowner erect any structure that he sees fit, without any useful purpose on his part, but for the sole purpose to annoy and punish his neighbor, when his neighbor is severely damaged thereby? Second. If this question of law is ansAvered in the negative, was this fence built without any useful purpose on the part of the plaintiff, and for the sole purpose of annoying and punishing the defendants?
1. The common law of England strenuously adhered to the doctrine that the owner of real estate might use it as he pleased, Avitliout regard to the convenience or even the interests of his neighbors. Some exceptions were made as to “ancient lights,” and perhaps other such considerations. This rule of the common law was not quite in har
Many of the states have by statute adopted the rule so announced. In 1888 the supreme court of Michigan, in the absence of any statute on the subject, declared the law of that state to be: “A fence erected maliciously, and with no other purpose than to shut out the light .and air from a neighbor’s window, is a nuisance.” Burke v. Smith, 37 N. W. 838 (69 Mich. 380). The opinion by Mr. Justice Morse reviewed some of the earlier decisions upon both sides of the question, and stated at some length the reasons for the conclusions reached by the court. Chief Justice Campbell dissented. He discussed the common law doctrine of “ancient lights,” and says that the right to have one’s prospect into defendant’s property left unobstructed “is an easement in the strictest sense of the term. * * * No man can create an easement for himself. If he has no such right, then he cannot complain that it is interfered with, either at law or in equity.” He concludes that, where no such right has been acquired by prescription, “there is nothing to prevent the erection of any fence or barrier” to obstruct it. The doctrine of
No doubt every one has the right to any beneficial use he may see fit to make of his own property, if the benefit he seeks is not out of all reasonable proportion to the injury caused to another. His neighbors have no legal cause to complain although it may interfere with some privileges formerly enjoyed. Courts of equity would fail in the service that history shows they were intended to render to society if they are unable to protect those common rights which more clearly appear, and become more valuable, as civilization advances and the relations of social life become more intricate and more enjoyable. As was said by Mr. Justice Hoke in his dissenting opinion in Barger v. Barringer, supra, we cannot “allow causes of action to be based upon motive alone. For here we enter upon the domain of taste and temperament, involving questions entirely too complex, varied, and at times fanciful for satisfactory inquiry and determination by municipal courts.” But when it appears that, not only was the motive wholly malicious, but the intention and result were to seriously injure another, without benefit to any one, courts of equity are not so impotent in these modern times that they are unable to prevent such a wrong. That the defendants would be seriously injured by this act of plaintiff is shown without contradiction. Several disinterested witnesses testified that the value of
2. The question, then, remains whether the evidence in this record proves that this plaintiff erected and sought to maintain this fence, not for any useful purpose on her part, but for the sole purpose of maliciously injuring and annoying the defendants. The plaintiff was the owner of lot 9 and the defendants were the owners of the adjoining lot 8, fronting to the north on South street in the city of Lincoln. It, is strictly a residence locality, several blocks distant from any business section of the city. It appears that the defendants were required to lay a cement walk in front of their lot, the grade of which was fixed by the city authorities. This grade so fixed was about 4 inches higher than the cement walk which connected with it, and which had been laid by the plaintiff in the front of her lot, so that the plaintiff would be required to raise her walk to meet the walk of the defendants. The plaintiff seriously objected to this, and insisted that the defendants’ walk should be laid to the grade of her walk. When the defendants were not allowed to do this, the plaintiff declared that, if she was compelled to raise the grade of her walk, she would erect a fence between the lots. Mr. Bowery, the paving inspector for the city, testified that the plaintiff and her husband seemed! very indignant because they were required to bring the sidewalk up to the level; that he had instructions to require them to raise it, and told the plaintiff and her husband so, and that the plaintiff’s husband said: “That when they brought the sidewalk up then up would go a high board fence.” Another witness testified that he was working under a contract with the city in raising the plaintiff’s walk, and, while so employed, the plaintiff told him that “she was going to put up a fence on the east side of her place,” and that she “was going to put the names of Mr. Bates, I believe his name was, the assistant city engineer, and Mr. Bowery and all who had anything to do with the raising of that sidewalk, * * * on the
There was already a fence on the line between these lots which is not complained of, and which was apparently suitable. The evidence shows beyond any question that the plaintiff’s fence was not built for any useful purpose to promote their own convenience or Avelfare in any way, but for the sole purpose of annoying and punishing the defendants. Soon after the fence was constructed the defendants forcibly removed it, breaking some of the boards in doing so. The plaintiff rebuilt it, and it was again tom down. This action on the part of the defendants is seriously complained of in the briefs, and we have no inclination to approve of this conduct. This is not the form of action usually employed to redress such grievances,
The judgment of the district court is
Affirmed.
Dissenting Opinion
dissenting.
I agree that, if plaintiff placed any part of her fence over the lot line on defendants’ property, defendants had the right to remove it where it thus encroached, or by injunction restrain the trespass. To that part of the opinion of the majority which holds that, if an adjoining lot owner, prompted alone'by spite and a desire to annoy the adjacent lot owner, and for no useful purpose, should erect or should construct an unreasonably high fence, whether upon the lot line or his side of the line exclusively, equity could in a proper case protect the rights of the adjoining lot owner from what would be, in effect, a trespass. But I am fully persuaded that, so long as one keeps upon his own property, he has the right to the free use thereof, within reason, and to some exercise of his own judgment and preference as to the exercise of such use. If the use is lawful and within his rights, it is not for the courts to inquire as to his motive.
It does not strike me that the fence was so unsightly as to shock the sensibilities of any one, however refined they might be. The fence was 6 feet high, constructed of material planed and dressed upon both sides, and painted a dark, green color, which is not an objectionable color. The decree of the district court, and indeed of this court, orders no interference with plaintiff’s fence opposite the windows of defendants’ house. That ques
Dissenting Opinion
dissenting.
While I agree with the modern doctrine, I think the motive is not material, unless the structure is offensive, unsightly, or is built for no useful or proper purpose. If the fence was lawful, proper, and not unsightly, the courts should not interfere.