148 Mass. 368 (1889), Rideout v. Knox

Citation148 Mass. 368, 19 N.E. 390
Opinion JudgeHOLMES, J.
Party NameRIDEOUT v. KNOX et ux.
AttorneyW.H. Niles and G.E. Carr, for plaintiff. J.R. Baldwin, for defendants.
Case DateJanuary 04, 1889
CourtSupreme Judicial Court of Massachusetts

Page 368

148 Mass. 368 (1889)

19 N.E. 390

RIDEOUT

v.

KNOX et ux.

Supreme Judicial Court of Massachusetts, Essex.

January 4, 1889

January 4, 1889

HEADNOTES

COUNSEL

Page 371

W.H. Niles and G.E. Carr, for plaintiff.

J.R. Baldwin, for defendants.

OPINION

HOLMES, J.

This is an action of tort under St.1887, c. 348. The plaintiff has had a verdict for nominal damages, and the first question raised by the bill of exceptions is the constitutionality of the statute. Another question more or less connected with the former is whether the structure, in order to bring it within the act, must be erected or maintained for the purpose of annoyance as the dominant motive, or whether it is

Page 372

enough if that purpose existed, although subordinate to a bona fide use for legitimate purposes.

At common law, a man has a right to build a fence on his own land as high as he pleases, however much it may obstruct his neighbor's light and air. And the limit up to which a man may impair his neighbor's enjoyment of his estate by the mode of using his own is fixed by external standards only. Walker v. Cronin, 107 Mass. 555, 564; Chatfield v. Wilson, 28 Vt. 49; Phelps v. Nowlen, 72 N.Y. 39; Frazier v. Brown, 12 Ohio St. 294; MARTIN B., in Rawstron v. Taylor, 11 Exch. 369, 378, 384. See Benjamin v. Wheeler, 8 Gray, 409, 413. But it is plain that the right to use one's property for the sole purpose of injuring others is not one of the immediate rights of ownership. It is not a 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. It has been thought by respectable authorities[19 N.E. 392] that even at common law the extent of a man's rights in cases like the present might depend upon the motive with which he acted. Greenleaf v. Francis, 18 Pick, 117, 119, 122. See Carson v. Railroad Co., 8 Gray, 423, 424; Roath v. Driscoll, 20 Conn. 533, 544; Wheatley v. Baugh, 25 Pa.St. 528; Swett v. Cutts, 50 N.H. 439, 447.

We do not so understand the common law, and we concede further that to a large extent the power to use one's property malevolently in any way which would be lawful for other ends is an incident of property which cannot be taken away even by legislation. It may be assumed that under our constitution the legislature would not have power to prohibit putting up or maintaining stores or houses with malicious intent, and thus to make a large part of the property of the commonwealth dependent upon what a jury might find to have been the past or to be the present motives of the owner. But it does not follow that the rule is the same for a boundary fence, unnecessarily built more than six feet high. It may be said that the difference is only one of degree. Most differences are, when nicely analyzed. At any rate, difference of degree is one of the distinctions by which the right of the legislature to exercise the police power is determined. Some small limitations

Page 373

of previously existing rights incident to property may be imposed for the sake of preventing a manifest evil; large ones could not be, except by the exercise of the right of eminent domain. Sawyer v. Davis, 136 Mass. 239, 243. The statute is confined to fences and structures in the nature of fences, and to such fences only as...

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105 practice notes
  • 171 F. 727 (N.D.Cal. 1909), 14,811, Pacific States Supply Co. v. City and County of San Francisco
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • July 26, 1909
    ...nuisances, although by so doing it affects the use or value of property. Sawyer v. Davis, 136 Mass. 239, 49 Am.Rep. 27; Rideout v. Knox, 148 Mass. 368, 19 N.E. 390, 2 L.R.A. 81, 12 Am.St.Rep. 560. It is still plainer that it may prohibit a use of land which the common law would regard as a ......
  • 273 N.Y. 250, Adamec v. Post
    • United States
    • New York New York Court of Appeals
    • March 9, 1937
    ...court quoted with approval from the opinion of Mr. Justice HOLMES, speaking for the Supreme Court of Massachusetts in Rideout v. Knox (148 Mass. 368): 'It may be said that the difference is only one of degree, most differences are when nicely analyzed. At any rate, difference of degree is o......
  • 146 N.W. 882 (Wis. 1914), Mehlos v. City of Milwaukee
    • United States
    • Wisconsin Supreme Court of Wisconsin
    • April 9, 1914
    ...v. Steele, 152 U.S. 133, 137, 14 S.Ct. 499, 38 L.Ed. 385; Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256; Rideout v. Knox, 148 Mass. 368, 19 N.E. 390; and Ely v. Niagara Co. 36 N.Y. 297), for courts and text-writers, in general, to appreciate that the final evidentiary test o......
  • 197 S.W. 295 (Ark. 1917), 97, Davis v. Moore
    • United States
    • Arkansas Supreme Court of Arkansas
    • July 9, 1917
    ...supra. 2. A law is not retrospective when it deals with future maintenance of existing conditions. 166 U.S. 290; 342; 133 N.Y.S. 152; 148 Mass. 368; 19 N.E. 390. 3. There is no estoppel. The action of the commissioner is conclusive. Cases supra. See also 63 S.W. 776. No order of a chancery ......
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100 cases
  • 171 F. 727 (N.D.Cal. 1909), 14,811, Pacific States Supply Co. v. City and County of San Francisco
    • United States
    • Federal Cases United States Courts of Appeals Court of Appeals for the Ninth Circuit
    • July 26, 1909
    ...nuisances, although by so doing it affects the use or value of property. Sawyer v. Davis, 136 Mass. 239, 49 Am.Rep. 27; Rideout v. Knox, 148 Mass. 368, 19 N.E. 390, 2 L.R.A. 81, 12 Am.St.Rep. 560. It is still plainer that it may prohibit a use of land which the common law would regard as a ......
  • 273 N.Y. 250, Adamec v. Post
    • United States
    • New York New York Court of Appeals
    • March 9, 1937
    ...court quoted with approval from the opinion of Mr. Justice HOLMES, speaking for the Supreme Court of Massachusetts in Rideout v. Knox (148 Mass. 368): 'It may be said that the difference is only one of degree, most differences are when nicely analyzed. At any rate, difference of degree is o......
  • 146 N.W. 882 (Wis. 1914), Mehlos v. City of Milwaukee
    • United States
    • Wisconsin Supreme Court of Wisconsin
    • April 9, 1914
    ...v. Steele, 152 U.S. 133, 137, 14 S.Ct. 499, 38 L.Ed. 385; Plessy v. Ferguson, 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256; Rideout v. Knox, 148 Mass. 368, 19 N.E. 390; and Ely v. Niagara Co. 36 N.Y. 297), for courts and text-writers, in general, to appreciate that the final evidentiary test o......
  • 197 S.W. 295 (Ark. 1917), 97, Davis v. Moore
    • United States
    • Arkansas Supreme Court of Arkansas
    • July 9, 1917
    ...supra. 2. A law is not retrospective when it deals with future maintenance of existing conditions. 166 U.S. 290; 342; 133 N.Y.S. 152; 148 Mass. 368; 19 N.E. 390. 3. There is no estoppel. The action of the commissioner is conclusive. Cases supra. See also 63 S.W. 776. No order of a chancery ......
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5 books & journal articles
  • 'The foundation of our 'regulatory takings' jurisprudence': the myth and meaning of Justice Holmes's opinion in Pennsylvania Coal Co. v. Mahon.
    • United States
    • Yale Law Journal Vol. 106 Nbr. 3, December - December 1996
    • December 1, 1996
    ...under Due Process Clause). (76.) See infra text accompanying notes 245-48. (77.) 59 N.E. 1033 (Mass. 1901). (78.) Id. at 1033. (79.) 19 N.E. 390 (Mass. 1889). (80.) The law declared a private nuisance every fence exceeding six feet in height and "maliciously erected or maintained for t......
  • 68 CBJ 98. Aquifer Protection in Connecticut: Environmental Land Use Restriction Run Deep.
    • United States
    • Connecticut Bar Journal Nbr. 2009, January 2009
    • January 1, 2009
    ...justice Holmes began while on the bench of the Massachusetts Supreme judicial Court, when he wrote, in Rideout v. Knox, 148 Mass. 368 (1889),[T]be difference [between police power and eminent domain] is only one of degree; most differences are when nicely analyzed .... S......
  • The Jurisprudence of Mixed Motives.
    • United States
    • Yale Law Journal Vol. 127 Nbr. 5, March 2018
    • March 1, 2018
    ...Holbrook v. Morrison, 100 N.E. 1111, 1111 (Mass. 1913) (discussing selling property to putatively undesirable owners); Rideout v. Knox, 19 N.E. 390, 391 (Mass. 1889) (discussing spite walls); cf. United States v. 480.00 Acres of Land, 557 F.3d 1297, 1308-11 (11th Cir. 2009) (noting that tak......
  • Taking and giving: police power, public value, and private right.
    • United States
    • Environmental Law Vol. 26 Nbr. 1, March 1996
    • March 22, 1996
    ...and the Limits of Private Property, 34 Kan. L. Rev. 539, 559 (1986). (115) Grant Gilmore, The Ages of American Law 50 (1977). (116) 148 Mass. 368 (1889) (117) Id. at 372. (118) 209 U.S. 349 (1908). (119) Id. at 355 (120) Pennsylvania Coal Co. v. Mahon, 260 u.s. 393, 415 (1922). (121) Hudson......
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