Northern Wisconsin advertiser. [volume] (Wabeno, Wis.) 1898-1925, 1901-06-20

aosement over the property OF M
neighbor so as to make tne ia1'e
uahle for obstructing the passage y
light and air by structures etc.,
without malice. western ola
Marble CO. v. Knickerbocker, lOo va,
III. Ineersen V. Barry, 1lS Cal. a4z
cae also Burke v. Smith, 6s Mlcn
/. 900 Furthermore, the rule OF common
law generally recognized in TINS couh
NV "a that man not only has rign
"a huild fence or other structure OF
his own land as high as ne pieaSea
however much 1t may opstruct ni'
ne,ghbors light and air, but tna' 'n'
l,yoit nm to which a man may impair
HE neighbor's enjoyment OF MS esUaee
bv thus using his own Is nxeo Wy ga
terna, standards only, and ms mo'ise SO
are immaterial. Rideout v. Knox, Lao
Mass 372. See also Gallagher "
Dodge, AZ Conn. S87i Lord v. LansuUn I
81 Me, POI. Michigan appears W 20
nc only state where 1t is the clearly
recognized doctrine that a renee vi
/. screen erected maliciously, and WIN
no other purpose than to shut out ilsne
and air from a neighbours windows 10
. nuisance at common law. burKe
v. Smith, 60 Mich. $50; Flanerey "
Moran, 81 Mich. So; Kirkwood V. FINE,
gan. 95 Mich. SAB; Peek v. Hoe' iio
Mich. ~. in each of which cases inc
anti was in equity between adjoining
owners. and the plaintiff had decree
either for the removal of the fence, OF
for an Injunction against its erection
There is a. public interest to restrain
tha owner of premises from aggres'
sive annoyance of his neighDor by us
ing them purposely In a noxious man
ner and for no object beneficial 10
himself, although such use be not ui-
rectly Injurious to the public at large.
Rideout v. Knox, 14S Mass. S1S. Ana
to that end statutes regulating OF
abolishing the common-law right nave
been enacted in several of the states.
In Connecticut 1t is provided that an
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 1t Intended 10 an
nov and injure any owner or lessee OF
adjacent land in respect to his use or
disposition OF the same" Rev. stat
(1SSS), Sec. 1877. In Maine the statute
proyides that ANY fence or other
structure In the nature Of a fence un'
necessarily exceeding eight feet In
height, maliciously kept and maintain
ed for the purpose OF annoying inc
owners or occupants OF adjoining
property. shall be deemed private
nuisance" Laws 1898, c. 1SS, p. 2O5'
The party injured may recover dam
ares 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. (lSS3), c.
II, Sec. IL, 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 1t 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. 4S2.
The common-law right mentioned al
the beginning of this article is un
doubtedly secure against legislative
encroachment unless II be taken by
eminent domain. Ingwersen V, Barry
IFS Cal. 342; Western Granite 4
Marble Co. v. Knickerbocker, 1903 Cal
III, where the court said: The legis
lature cannot thus create an easemen
In favor of certain proprietors owe
the lands of another. nor declare tn
usual and ordinary use of property
nuisance when such use infringes vi
on the legal rights of no one An
where the common-law right of tn
owner OF land to erect structures o
his own land is sustained regardless
of the existence of malicious intent,
Is also conceded that to large exten
the power to use ones property male
violently, in any way which would b
lawful for other ends, is an incident
property which cannot be take
even by legislature. Rideout V. Kno'
las Mass. 372. But in that case tn
court, rpholding the constitutionalit
OF the Massachusetts statute, said
ut is plain that the right TO use one
property for the sole purpose OF II
Turing others is not one of the In
mediate rights of ownership: 1t is nc
a right for the sake of which propert
Is recognized by the law, but is only
more or less necessary incident G
rights which are established for yer
different ends 1t may be assumed tina
under our constitution the legislator
would not have the power to prohibit
putting up or maintaining stores o
houses with malicious intent and thu
Ia make large part of the propert,
OF the commonwealth dependent upol
what a jury might find TO have beef
the past or TO be the present motives
Of the owners. But il does not follow
that the rule is the same for bound
airy fence unnecessarily built NOR,
than six feet high. II may be said tina