22 Wash. 419 | Wash. | 1900
Lead Opinion
The opinion of the court was delivered hy
The respondent and the appellant are owners of adjoining lots fronting on G- street, in the city of Tacoma. There is situated on the respondent’s premises-a dwelling house, which is some distance hack from the street, hut so near the side of her land next to that of the-appellant that the roof projects over the boundary line thereof, causing the rain water falling thereon to be discharged on the appellant’s lot. The appellant’s dwelling-house is located about twenty-five feet from the respondent’s lot, and the intervening portion of his land is used-for a flower garden and lawn. The surface of the lots of both of the parties contiguous to the street is about four-feet below the grade of the sidewalk, and gradually descends to the alley in the rear. The respondent’s house, it appears, was erected several years before the appellant, owned or occupied his premises, and has usually been occupied by tenants, the respondent herself residing in. another house located on her land. Before, and at the time, the appellant purchased his lots there was a fence-about five feet high along the boundary line of the respondent’s lot, but on the land of the appellant, extending from the front of her house to the sidewalk; but at that time*
At the trial the court found, among other facts, that the plaintiff used the house in question for the purpose of renting to tenants; that at the time of erecting said fence said dwelling house was occupied by a tenant, who after-wards vacated it on account of the darkening of the windows by said fence; that said fence, owing to the unusual height and character of the same, was and is a nuisance to the plaintiff and her tenants; that said fence was not erected by said defendant for any useful or ornamental purpose, but for the sole purpose of spiting and annoying-plaintiff ; that a fence five feet high would have answered for any lawful, useful, or ornamental purpose, or for the protection of defendant’s said premises; and that, if said fence is allowed to remain at the height it now is, plaintiff will suffer great injury and damage on account thereof.
“ Upon the plaintiff’s constructing a sufficient gutter or eaves trough under the eaves of the roof of her said dwelling described in the pleadings and findings of fact on file herein, to prevent the water from running off of her roof onto the defendant’s premises, she have a peremptory injunction ordering and compelling the defendant to remove or cause to be removed the said fence described in the pleadings on file herein, or cause the same to be cut down to a height not exceeding five feet all the way from G- street to a point at the rear end or northeast corner of said dwelling; that, if said defendant shall neglect or refuse to so remove or cut down said fence as herein directed for a period of thirty days after the plaintiff shall have constructed the eaves trough herein specified, the sheriff of Pierce county be, and is hereby, directed to cut down or remove the same at the cost and expense of the said defendant.”
This action is based upon § 5433 of Ballinger’s Code (2 Hill’s Code, §268), which reads as follows:
“An injunction may be granted to restrain the malicious erection, by any owner or lessee of land, of any structure intended to spite, injure or annoy an adjoining proprietor; and where any owner or lessee of land has maliciously erected such a structure with such intent, a mandatory injunction will lie to compel its abatement and removal.”
This section of the statute was enacted in the year 1883, and embodied in an act entitled, “An act to correct errors and supply omissions in the Code of Washington;” and it is contended on the part of the appellant that the section is void for the reason that it is in contravention of § 1924 of the organic act of the territory of Washington, which declares that every law shall embrace but one subject, and that shall be expressed in the title; and the case of Harland v. Territory, 3 Wash. T. 131 (13 Pac. 453), is cited in
.The appellant also -contends that, even if the statute is not invalid upon the ground of insufficiency of title, still it does not cover this case, for the reason that a fence is not a structure, within the meaning of the act. Webster defines a structure to be: “That -which is built; a building; especially a building of some size or magnificence; an edifice.” (Webster’s International Dictionary.) And hence it is argued that the term “structure,” as used in the statute, must mean an offensive building of some kind, apparently serving no purpose but to spite and annoy an adjoining owner. In support of the position that a fence is not a structure, in contemplation of this statute, the appellant cites the case of Rutherford v. Cincinnati, etc., R. R. Co., 35 Ohio St. 559; and it is true that in that case the supreme court of Ohio held that a railroad was not a structure, within the meaning of a statute providing for mechanic’s liens on “any house, mill, manufactory or other building, fixture, bridge or other structure.” But that conclusion was arrived at by the application of the well-known rule of statutory construction, that, where general words follow an enumeration of specific persons or things, they are limited to the same class of persons or things as
It is further contended that this section is unconstitutional because it empowers the courts to restrain by injunction the commission of an act not prohibited by any law of the state, or of the United States. This position is clearly not tenable. Although the legislature has not, in express words, declared it illegal for an owner or lessee of land maliciously to -erect any structure intended to spite, injure, or annoy an adjoining owner, it has, in legal effect, done so, by providing a remedy in favor of a party thus injured. To say that the commission of a certain act may be enjoined is to declare, substantially, that such act is illegal. If, therefore, this section is unconstitutional, it is not so because it authorizes the enjoining of an act not prohibited by law, but because it is inimical to some provision of the constitution; or, in other words, because the legislature exceeded its constitutional power in its enactment.
“The reasonable enjoyment of one’s real estate,” says Mr. Tiedeman, “is certainly a vested right, which cannot be interfered with or limited arbitrarily. The constitutional guaranty of protection for all private property ex
According to this maxim, every one must so use his own property as not to injure the rights of others. Subject to this qualification, every person has the right to exercise complete control over his own land, to the exclusion of all others, and this right has been recognized from the earliest times by the courts. 1 Wood, Nuisances (3d ed.), 127.
Upon the common law maxim above quoted rests, as we have seen, what is termed the police power of the state, which, in its broadest acceptation, means the general power of the state to preserve and promote the public welfare, even at the expense of private rights. 18 Am. & Eng. Enc. Law, 740, 741.
It has often been said that it is difficult, if not impossible, to give an exact and satisfactory definition of “police powerbut it is said by an eminent text writer that this power, “like that of taxation, pervades every department of business and reaches to every interest and every subject of profit or enjoyment.” Cooley, Constitutional Limitations (5th ed.), p. 706.
In the exercise of police power the legislature may, to a reasonable extent, and with due regard to the public welfare, prohibit or regulate the use of private property; but
The respondent, as we have stated, bases her claim to an injunction upon the allegation in her complaint that the light has been cut off from her windows, and her house made less rentable and consequently damaged, by the erection of the fence by the appellant. But neither, or both, of these effects upon her property constitutes a cause of action in her favor unless they are the result of an unreasonable, and therefore unlawful, use by the appellant of his own premises. 1 Wood, Nuisances (3d ed.), pp. 2, 3.
At common law a man has a right to build a fence or other structure on his own land as high as he pleases, although he thereby completely obstructs his' neighbors’ light and air, and the motive by which he is actuated is immaterial. Rideout v. Knox, 148 Mass. 368 (19 N. E. 390, 2 L. R. A. 81, 12 Am. St. Rep. 560); Mahan v. Brown, 13 Wend. 261 (28 Am. Dec. 461); Letts v. Kessler, 54 Ohio St. 73 (40 L. R. A. 177, 42 N. E. 765); Frazier v. Brown, 12 Ohio St. 294; Falloon v. Schilling, 29 Kan. 292 (44 Am. Rep. 642); Chatfield v. Wilson, 28 Vt. 49; Lord v. Langdon, 91 Me. 221 (39 Atl. 552); Phelps v. Nowlen, 72 N. Y. 39 (28 Am. Rep. 93); 2 Washburn, Real Property (5th ed.), p. 362.
The only exception to this rule of law is found in cases where one has acquired, by long user, a right in the nature of an easement to have light pass to his windows across the land of his neighbor. But in the United States the
An easement of light and air can be acquired in this country only by grant, either expressed or implied, and no such grant is claimed by the respondent in this case. Whatever right, therefore, she may have to an injunction, is derived solely from the statute, and not from the common law; and, in order to ascertain such right, it is necessary to determine the meaning and validity of the statute. The language employed by the legislature is sufficiently comprehensive to authorize an injunction against the erection, by a land owner of a dwelling house or a business block on his own land, providing his. motive in so doing is malevolent. If it was the intention of the legislature to prohibit the erection of such structures, we are clearly of the opinion that the statute is, to that extent at least, unconstitutional, for the reason that to prohibit such a use of real estate would, in effect, deprive the owner of his property without due process of law and compensation. But, inasmuch as it must have been well known to the legislature that useful and valuable structures, such as houses, are rarely or never erected merely to annoy or injure an adjoining owner, we feel justified in holding that it was not the intention to prohibit the erection of such structures as really enhance the value, usefulness, or enjoyment of land, but such only as are primarily or solely in
The constitutionality of a statute of Massachusetts, providing that “any fence or other structure in the nature of a fence unnecessarily exceeding six feet in height, maliciously'erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance,” was called in question in Rideout v. Knox, supra; and the act was held constitutional, for the reason, as stated by the court, that it simply restrained a noxious use of the owner’s premises, and, although the use was not directly injurious to the public at large, there was a public interest to restrain this kind of aggressive annoyance of one neighbor by another, and to mark a definite limit beyond which it is not lawful to go. In that case it was also held that, in order to maintain an action under the statute, it must be shown that the fence was erected or maintained from an actually malevolent motive, as distinguished from mere technical malice, and that it is not enough to satisfy the words of the statute that malevolence was one of the motives, but that malevolence must be the dominant motive, and motive without which the fence would not have been built or maintained.
In Lord v. Langdon, supra, which was a case involving the construction of a statute substantially like that of Massachusetts, the supreme court of Maine approved and ap
The Massachusetts statute was again held constitutional in the case of Smith v. Morse, 148 Mass. 407 (19 N. E. 393), but the court there decided that, notwithstanding the use of the word “nuisance,” the statute did not create an easement in favor of the plaintiff’s land, but only made it unlawful to do maliciously what the defendant still had a right to do from other motives. And the same thing may properly be said as to the scope and intention of our statute.
In Connecticut there is a statute providing that, “An injunction may be granted against the malicious erection by an owner or lessee of land of any structure upon it, intended to annoy or injure any proprietor of adjacent land in respect to his use or disposition of the same.” This statute, it will be observed, is in substance similar to the first provision of our statute, and it has heen construed by the supreme court of that state in at least two cases. In Harbison v. White, 46 Conn. 106, the petitioner sought the abatement of a structure erected of rough boards, at a distance of little more than three feet from his block of houses, and which was eighteen feet high and of a nature to exclude the light and air, to a great extent, from the basement, lower story, and one-half of the second story of the block, on the ground that it was erected maliciously and with intent to injure and annoy the petitioner, as an adjoining proprietor of land; and, it appearing to the court that it was in fact maliciously erected and was in
“ The finding is that malice prompted the erection of the structure in question. That it protected from observation must be regarded as an incident. The statute concerns itself wholly with the motive; therefore it enquires for that; that found to be malicious, the statute disregards the incident, and puts an immediate end to the wrong by injunction.”
In that case, however, nothing was said, except in a very general way, as to the quality or quantum of malice necessary to be shown in order to maintain an action under the statute; but in the subsequent and well-considered case of Gallagher v. Dodge, 48 Conn. 387 (40 Am. Rep. 182), the court held that, “the malicious intent must be so predominating as a motive as to give character to the structure,” and that “it must be so manifest and positive that the real usefulness of the structure will be as manifestly subordinate and incidental.” As to the proof of motive, the court was of the opinion that the question whether the structure was maliciously erected is to be determined by its character, location, and use, rather than by an inquiry into the actual state of mind of the person erecting it. Upon this point the learned court observed:
“ . . .we think no rule can be laid down that is on the whole more easy of application, and more likely to be correct in its application, than that the structure intended by the statute must be one which, from its character, or location, or use, must strike an ordinary beholder as manifestly erected with a leading purpose to annoy the adjoining owner or occupant in his use of his premises.”
Although we concede that this rule will generally be more correct in its application than any other general rule
The judgment and decree is affirmed.
Gordon, O. J., and Dunbar, J., concur.
Concurrence Opinion
I concur in the conclusion; viewing the statute as meaning to confine the power to interfere only where the motive is malevolent in the construction of the structure; and I think that malevolence must clearly appear as the dominating impulse, to make a ease within the statute.