Evening star. [volume] (Washington, D.C.) 1854-1972, 1930-11-03
4SP|IE-FENCE' LAW
IS HELD INVASION
Justice Martin Reverses Po-
lice Court Fine Against
D. ]. DUNCAN, Inc.

The "spite-fence" regulation Of the
District of Columbia, which forbids the
erection of fence on the dividing line
between two pieces of property to the
height of more than seven feet above
the street level without permission of
the adjoining owner was declared today
by the District Court of Appeals to work
discrimination against lot owners
whose lots lie above the street level and
"unlawfully tends to invade the prop
erty rights of such owners"
The opinion was rendered by Chief
Justice George E. Martin and reversed
the action of the Police Court, which
had imposed fine on the D. j. Duni-
gan, Inc, for refusing to remove a wall
complained against by Henry F. Wood
ard, local lawyer, who resides next door
to the home of the late David j. Dulni-
gan and who had not given permission
for its erection. The properties are
located on Woodland drive, Cleveland
avenue and Thirty-second street.
Regulation Is Invoked.
In November, 1927, the DUNCAN firm
applied to the building inspector for
permission to construct brick wall z
feet high and 240 feet long. on its own
property, and when it was nearly COM
pleted in April, 1928, Mr.. Woodland
called attention to the fact that the
wall was more than feet above the
street level and invoked the regulation,
which had been adopted January ",
1927, and which was aimed against
spite fences" DUNCAN was ordered
to remove the portion of the wall that
extended higher than feet above the
street level. The company refused, and
the conviction and fine in Police Court
followed. 1t was shown that the Dun1-
gan property was considerably above
grade and that at some points the wall
was more than Is feet above the street
level.
In our opinion" says Chief Justice
Martin, the regulation as thus con-
strued and applied is unreasonable,
arbitrary and unjustly discriminatory
and the conviction based upon 1t should
not be sustained. Under such regula-
ton, for illustration, an owner OF
building lot which is on the same level
as the established street grade may be
permitted to erect such wall to the
height of z feet above the foundation
without first obtaining the written con-
sent of the adjoining lot owner, and If
the lot level be or more feet lower
than the established grade the owner
may be permitted to build a wall to
the height of IA feet or more without
consent, but If the level Of the owners
lot be z feet or more above the estab-
lished grade he cannot secure permit
to build such a wall to any height
without first securing consent Of the
adjoining cwner."
No Spite or Malice"
The court suggests that it Is unbe-
lieveable that the Commissioners in
tended the regulation to be so applied,
since there is no question of spite or
malice" in the construction of the
DUNCAN wall. The chief justice points
out that, although regulation may be
lawful on its face and apparently fair
in its terms, yet, If enforced in such
manner as to work a discrimination
against a part of the community for
no lawful reason, such exercise Of power
will be invalidated by the courts.
The lots which brought about the
enactment OF the regulation, 1t Is stated,
we're on the street level, and no pro-
vision was made for properties whose
level was above grade.