58 So. 283 | Ala. | 1912
The bill is filed by the appellee, Randolph, against the appellant, Mrs. Norton, seeking to abate an alleged nuisance erected by her on a vacant lot adjoining his residence property in the city of Birmingham. The averments of the bill are substantially as folloAvs: Complainant is the owner of a lot on which he has erected for selling or renting a valuable dwelling house, costing about $6,000. This dAvelling is in a desirable part of the city, and many other dwellings of like character have been erected on the same street. Respondent oaatis a vacant lot, immediately adjoining complainant’s lot, “Avhich is vacant and unimproved property and is not used by her for any purpose.” She has nevertheless erected on said vacant lot, within three or four feet of complainant’s house, “a large plank Avail or structure about 20 feet high and 30 feet long, by means of which she has almost entirely excluded the air and light from the rooms on that side.” This structure is alleged to be useless, and also unsafe, in that it endangers the adjoining dAvelling by its liability to be blown over and thus cause damage thereto. It is fur
The jurisdiction of equity to abate nuisances by injunction is too well settled to require discussion. The main question therefore involved in this case is whether the allegations of the bill, which are admitted to be true by the demurrer, establish such a nuisance as to justly invoke the intervention of a court of equity.
We come then to the decisive questions raised by the fifth ground of demurrer: Is the structure described in the bill brought by appropriate averment within the class known in legal parlance as “spite fences”; that is, was it erected by respondent solely for the malicious purpose of vexing and injuring complainant in the lawful use and enjoyment of his dwelling house, and was it at the same time devoid of all benefit or value to respondent in the use or improvement of her property? And, if so, is it legally a nuisance?
It is of course true, as argued by appellant, that the old English doctrine of ancient lights is not, and never has been, in force in this state. — Ward v. Neal, 37 Ala. 500. And the general rule is well settled that the owner of land has no right as against adjoining owners to the unobstructed access of light.and air to his premises over adjoining premises, unless such right has been acquired by grant express or implied.
Many of the cases dealing with the subject of malicious structures like the one here complained of are cited and reviewed in a case note to Koblegard v. Hale, 60 W. Va. 37, 53 S. E. 793, 116 Am. St. Rep. 868, 9 Ann. Cas. 732-734, and the great weight of authority, it must be conceded, is oposed to the equity of complainant’s bill. — Bordeaux v. Greene, 22 Mont. 254, 56 Pac. 218, 74 Am. St. Rep. 600; Metzger v. Hochrein, 107 Wis.
The doctrine of these cases, based on the alleged right of the owner of land to use it according to his malicious fancy, and without any advantage to himself or his land, for the sole purpose of injuring his neighbor in the lawful and beneficial use of his adjoining property, has been carried to such an extent as in many cases to be justly characterized as “odious.” And hence statutes have been passed in a number of states abrogating the principle on account of the unjust and injurious effects resulting from its enforcement.
The authority of precedents, however, must often yield to the force of reason, and to the paramount demands of justice as well as the decencies of civilized society, and the law ought to speak with a voice responsive to these demands.
We have examined the decisions and the reasoning of the various courts upon this question; and, unfettered by any precedents óf our own, we are led to the deliberate conclusion that the majority view, as above stated, is founded upon a vicious fallacy, and is violative of sound legal principle as well as of common justice.
This conclusion has already found eloquent and forcible expression in decisions of the Supreme Courts of Michigan and North Carolina. — Burke v. Smith, 69 Mich. 380, 37 N. W. 838; Flaherty v. Moran, 81 Mich. 52, 45 N. W. 381, 8 L. R. A. 183, 21 Am6. St. Rep. 510; Kirkwood v. Finegan, 95 Mich. 543, 55 N. W. 457; Peek v. Roe, 110 Mich. 52, 67 N. W. 1080; Barger v. Barringer, 151 N. C. 433, 66 S. E. 439, 25 L. R. A. (N. S.) 831, 19 Ann. Cas. 472. And, it may be added, its underlying reasons have been convincingly stated in
As said by Parsons, C. J., in Horan v. Byrnes, supra: “The conclusion that a landowner’s property right in real estate includes the right to use it solely for the injury and annoyance of his neighbor, without intending to subserve any useful purpose of his own, is based upon a narrow view of the effect of the land title, and is reached by the strict enforcement of a technical .rule of ownership briefly expressed in an ancient maxife^ ’’Cujus est solum, ejus est usque ad ccelum.’ * * * Because when employed for a useful purpose such use may rightfully injure another, it does not follow that the same use for a wrongful purpose may also rightfully injure another, except upon the theory of absolute dominion, for the character of the use is an element of the right. * * * As, therefore, the statute does not deprive the plaintiff of any right to a reasonable use of his land, but only prohibits an unnecessary, unreasonable use, it does not deprive him of any property right.”
And as said by Holmes, J., in Rideout v. Knox, supra: “But it is plain that the right to use one’s property for the sole purpose of injuring others is not one of the immediate rights of ownership; it is not a right for the sake of which property is recognized by the law, but is only a more or less necessary incident of rights which are established for very different ends.”
We approve the judicial reasoning as Avell as the Christian ethics of the Michigan court as expressed in the language of Morse, J., in Burke v. Smith, supra:
We quote also the following language of Brown, J., in Barger v. Barringer, supra, adopted by the North Carolina court: “There are many annoyances arising from legitimate improvement and business which those living near must endure, but no one should be compelled to submit to a nuisance created and continued for no useful end, but solely to inflict upon him humiliation as well as physical pain. The ancient maxim of the com
But little else remains to be said in support of the rule of reason and good morals. The rule of malice was, we think conceived in error, and has indeed become a caliban of the law — the ugly and misshapen offspring of a decent and honorable parentage — and we are unwilling to sanction in this jurisdiction its evil and odious sway. We therefore hold that there is equity in the bill of complaint.
As a matter of pleading, however, we think the averments of the bill are not sufficient to bring the case
The fifth ground of demurrer should therefore have been sustained, and to that extent the decree of the chancellor will he reversed and a decree here rendered to that effect.
Reversed and rendered.