TWO HUNDRED YEARS OF SPITE

INTRODUCTIONIn 2013, Alan Markovitz erected a twelve-foot-high, spotlit, bronze statue on his Michigan lakefront property. It faced his neighbor's windows. That neighbor, Lea Tuohy, was Markovitz's former wife, and the statue was shaped as a hand with its middle finger raised.1 Markovitz's act was undeniably blunt, but it was not distinctive in intent-many other owners before and after have sought to annoy their neighbors.2 Markovitz's undertaking was noteworthy, nonetheless: other owners aiming to torment their neighbors normally settle for constructing a fence obstructing those neighbors' views.3 Markovitz diverged from this more traditional route since he found it too subtle.4 Unintentionally, however, his choice was also legally sensible. Had he opted for a fence facing Tuohy's windows, the common law could have held him liable.5 As a legal matter, such a fence could have been deemed motivated by spite and thus a nuisance. Against the statue facing her windows, on the other hand, Tuohy had no viable legal recourse.6 As a legal matter, a statue-even one shaped as a middle finger-cannot be perceived as motivated by actionable spite.These contrasting results would strike most observers as somewhat odd. A middle finger statue more easily smacks of spite than a fence, even when that fence intentionally blocks a neighbor's lake views. Apparently, spite in the law does not correspond to the behavior and attitude conventionally associated with the terms "spiteful" or "spite." But if legal spite does not stand for spite, what does it stand for? This Article will, for the first time, answer this question.The question respecting spite's legal function is exceedingly important because property law's recognition of spite stands out. The prohibition on spite, even if laboriously constrained, eliminates an owner's freedom to engage in activities on her land that are otherwise-as far as the law is concerned-wholly uncontroversial. An owner is normally free, for example, to construct a fence on her land even when that fence interferes with a neighboring property's exposure to light and air,7 or its aesthetically pleasing environs.8 This most basic freedom to build the fence is lost, however, if the constructing owner acted on spite. Of course, there are other limits on the owner's freedom: an owner may be barred, for instance, from developing her land in a manner that floods neighboring lands;9 or she may be prohibited from choosing entrants based on race.10 But the curb on the owner's freedom instituted here through spite law is still remarkable. When an American court first recognized spite as a limit to an owner's freedom to build, in the case of Burke v. Smith, the dissenting judge was aghast: "[But] the motives of a party in doing a legal act cannot form the basis upon which to found a remedy against such party."11 This laconic assertion of an elemental property truism should have sufficed, in the dissenter's mind, to deflect any legal claim based on spite.For property law is always agnostic to actors' intent.12 None of the other legal checks on an owner's freedom concerns her motives.13 Yet the rein spite law places on an owner's freedom to engage in otherwise legitimate activities appears to be distinctly based on her subjective goals. The majority opinion enjoining the fence the defendant constructed in the pioneering Burke case, stated as much:What right has the defendant, in the light of the just and beneficent principles of equity, to [act on his land] . . . simply to gratify his own wicked malice against his neighbor? None whatever. . . . [N]o man can pollute the atmosphere, or shut out the light of heaven, for no better reason than that . . . he . . . wishes to gratify his spite and malice towards his neighbor.14Thus formulated, spite law illustrates that "the law does sometimes care about owners' reasons for deciding, and this fact . . . provides a crucial insight into the nature of ownership . …