Vilas County news. [volume] (Eagle River, Vilas County, Wis.) 1896-1927, 1901-06-17


a lot does not give the proprietor an
easement over the property OF his
neighbor so as to make the latter
liable for obstructing the passage OF
light and air. by structures erected
without malice. Western Granite &
Marble Co. v. Knickerbocker, lO3 Cal.
I'LL; Ingersen " Barry, 118 Cal. 342.
See also Burke v. Smith, SO Mich.
$50 Furthermore, the rule of common
law generally recognized in this coun-
try is that a man not only has a right
to build fence or other structure on
his own land as high as he pleases,
| however much. it may obstruct his
neighbors light and air, but that the
limit up to which a man may impair
his neighbours enjoyment of his estate
by thus using his own is fixed by ex-
/ ternal standards only, and his motives
are immaterial Rideout v. Knox, 148
Mass. 372. See also Gallagher v.
Dodge, 48 Conn 387 Lord v. Langdon,
81 Me- 221. Michigan appears to be
the only state where it is the clearly
recognized doctrine that a fence or
screen erected maliciously, and with
no other purpose than to shut out light
and air from neighbours windows, is
nuisance at common law. Burke
| v. Smith, SO Mich. $50; Flaherty v.
Moran, 81 Mich. 81; KirkwoOd v. Fine
gan, 95 Mich. 543; Peek " Roe, ITO
Mich. 81, in each of which cases the
suit was in equity between adjoining
owners, and the plaintiff had decree
either for the removal of the fence, or
for an injunction against it's erection.
There is a public interest to restrain
| the owner of premises from aggres.
sive annoyance of his neighbor by u.s.
ing them purposely in a noXiOus man
ner and for no object beneficial to
himself, although such use be not di-
| rectly injurious to the public at large.
! Rideout " Knox, 148 Mass. 373. And
to that end statutes regulating or
abolishing the common-law right have
been enacted in several of the states.
| injunction may be granted against the
malicious erection by or with the con
sent of an owner. or lessee, or person
entitled to the possession of land, of
any structure upon it intended to an
noy and injure any owner or lessee of
adjacent land in respect to his use or
disposition of the same" Rev Stat
/ (1888), Sec. 1877. In Maine the statute
provides that amy fence or other
structure in the nature of a fence I'M
necessarily exceeding eight feet in
height, maliciously kept and maintain
ed for the purpose of annoying the
owners or occupants of adjoining
property, shall be deemed a private
nuisance" Laws 1893, C. 1873, %. 205
The party injured may recover dam
| ages in an action at law, in which case
! the court may also order the nuisance
! abated or removed at the expense Of
the defendant. Rev. Stat. 1883, c.
| II, Sec. II, Is. In Massachusetts and
| New Hampshire the statutory provi-
sions are substantially the same as in
Maine. Mass. Stat. 1887, c. 348; N. H.
| Laws 1887, c. 81. Where judgment
for an abatement is ordered it may, in
the discretion of the court, be directed
against SO much of the fence as ex-
ceeds the statutory limit of height at
the time of entering judgment, though
previous to the trial, but after suit
brought, the defendant has reduced
the original height. Rice v. Morehouse.
$50 Mass. 1872
The common-law right mentioned at
the beginning of this article is I'M
doubtedly secure against legislative
encroachment unless it be taken by
eminent domain. Ingwersen v. Barry
11S Cal. 342; Western Granite &
Marble Co. v. Knickerbocker, 1O3 Cal.
Ill, where the court said: The legis-
lature cannot thus create an easement
in favor of certain proprietors over
the lands of another, nor declare the
usual and ordinary use of property
J nuisandB when such use infringes up
on the legal rights of no one" And
where the cOmmOn-law right of the
owner of land to erect structures on
his own land is sustained regardless
of the existence of malicious intent, it
is also conceded that to large extent
the power to use ones property male
| violently, In any way which would be
lawful for other ends, is an incident of
property which cannot be taken
even by legislature Rideout v. Knox,
148 Mass. 372. But in that case the
court, UNFOLDING the constitutionality
of the Massachusetts statute, said
1T is plain that the right to use ones
property for the sole purpose of in
juring others is not one of the i'm
mediate rights of ownership; it is not
a right for the sake of which property
. is recognized by the law, but is only q
more or less necessary incident OF
rights which are established for very
: different ends. 1t may be assumed tina,
!; under our constitution the legislature
: would not have the power to prohibit
putting up or maintaining stores OF
: houses with malicious intent and thus
) to make large part of the property
! OF the commonwealth dependent upor
what i1JrU iChf fin N