150 Mass. 482 | Mass. | 1890
The defendant had been sued, under the St. of 1887, c. 348, for maintaining unnecessarily a fence over six feet in height, for the purpose of annoying the plaintiff. At some time previous to the trial, but after action brought, the defendant cut down the fence from sixteen feet to seven and a half feet in height. At the trial, the jury were instructed that they must be satisfied that, for some time after the passage of the statute and before the bringing of the action, the defendant had mali
That, if this order of the court was one within its discretion, no exception would lie thereto, will hardly be controverted. Codman v. Evans, 7 Allen, 431. The contention of the defendant is, that the only fence which had been adjudged a nuisance was one much higher than seven and a half feet; that there was no adjudication that the fence, as it existed when the order of abatement was passed, was a nuisance; that the court had no discretion in regard to the' subject; and that therefore such order was erroneously made. The provisions of the Pub. Sts. c. 180, concerning actions for private nuisances, are made applicable to cases arising under the St. of 1887, c. 348. Section 1 of this chapter authorizes the court, when the plaintiff has prevailed in an action for a nuisance, besides the costs and damages, to enter judgment that the nuisance be abated and removed. Section 3 of the same chapter, when a judgment is rendered for a continuance or repetition of the same nuisance, makes it the duty of the court to enter such an order.
The allegation made against the defendant was that of unnecessarily, and for the purposes of annoyance, maintaining a fence over six feet in height. If it was found that she had so done, it was for the court to determine whether it should be abated. By herself reducing the height of the fence, either before or after the trial, she did not prevent the court from exercising this discretion. The maintenance of the unlawful structure gave the court jurisdiction of the matter of which the plaintiff
We are therefore of opinion, that the court had authority to exercise its discretion in determining whether the fence should be abated. Exceptions overruled.