Iowa County democrat. [volume] (Mineral Point, Wis.) 1877-1938, 1901-06-20

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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, l03 Cal.
III; Ingersen V. Barry, 11S Cal. 342.
See also Burke V. Smith, SO Mich.
$780, Furthermore, the rule of common
law generally recognized in this coun-
try is that man not only has right
to build fence or other structure on
his own land as high as he pleases,
however much it may obstruct his
neighbours light and air, but that the
limit up to which man may impair
his neighbor's enjoyment of his estate
by thus using his own is fixed by eX'
ternal standards only, and his motives
are immaterial. Rideout V. Knox, l4S
Mass. 372. See also Gallagher V.
Dodge, AZ Conn. 387; Lord V. Langdon,
Of 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
a nuisance at common law. Burke
Y. Smith, 50 Mich. $50; Flaherty V.
Moran, 81 Mich. 81; Kirkwood v. Fine
gan, 95 Mich. SAB; Peek V. Roe, ITO
Mich. So, in each of which cases the
suit was in equity between adjoining
owners, and the plaintiff had a decree
either for the removal Of the fence, or
for an injunction against it's erection.
There Is public interest to restrain
the owner of premises from aggres.
sive annoyance of his neighbor by US
ing them purposely In noxious man
uer and for no object beneficial to
himself, although such use be not di-
rectIy injurious to the public at large.
Rideout " Knox, 14S Mass. 1913. And
to that end statutes regulating or
abolishing the common-law right have
been enacted in several of the states.
In Connecticut it is provided that IAN
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,
(1SS8), Sec. 1877. In Maine the statute
provides that amy fence or other
structure in the nature of fence I'M
necessarily exceeding eight feet in
height, maliciousIy kept and maintain.
ed for the purpose of annoying tho
owners or occupants of adjoining
property, shall be deemed a private
nuisance" Laws 1898, C. 1888, p. 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. 0SS3), C.
II, Sec. ~, 10. In Massachusetts and
New Hampshire the statutory provi-
sions are substantially the same as in
Maine. Mass. Stat. 1887 C. 34S; N. H.
Laws 1887, c. 81. Where a 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 UNI
doubtedly secure against legislative
encroaChment unless it be taken by
eminent domain. Ingwersen V. Barry
lis Cal. 342; Western Granite &
Marble Co. V. Knickerbocker, 1903 Cal.
III, 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 a
nuisance 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,
las Mass. 372, But in that case the
court Cpholding the constttutionality
of the Massachusetts statute, said:
ut 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
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, 1t may be assumed that
under our constitution the legislature
would not have the power to prohibit
putting up or maintaining stores or
houses with malicious intent and thus
to make large part of the property
of the commonwealth dependent upon
what jury might find to have been
the past or to be the present motives