Rideout v. Knox

• Citation: 148 Mass. 368,19 N.E. 390
• Parties: RIDEOUT v. KNOX et ux.
• Decision Date: 04 January 1889
• Court: United States State Supreme Judicial Court of Massachusetts

148 Mass. 368

19 N.E. 390

RIDEOUT v. KNOX et ux.

Supreme Judicial Court of Massachusetts, Essex.

January 4, 1889

January 4, 1889

HEADNOTES

COUNSEL

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 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 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 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 unnecessarily exceed six feet in height. It is hard to imagine a more insignificant curtailment of the rights of property. Even the right to build a fence above six feet is not denied when any convenience of the owner would be served by building higher. It is at least doubtful whether the act applies to fences not substantially adjoining the injured party's land. The fences must be "maliciously erected, or maintained for the purpose of annoying" adjoining owners or occupiers. This language clearly expresses that there must be an actual malevolent motive, as distinguished from merely technical malice. The meaning is plainer than in the case of statutes concerning malicious mischief. Com. v. Walden, 3 Cush. 558; Com. v. Goodwin, 122 Mass. 19, 35. Finally, we are of opinion that it is not enough to satisfy the words of the act that malevolence was one of the motives, but that malevolence must be the dominant motive,--a motive without which the fence would not have been built or maintained. A man cannot be punished for malevolently maintaining a fence for the purpose of annoying his neighbor merely because he feels pleasure at the thought he is giving annoyance, if that pleasure alone would not induce him to maintain it, or if he would maintain it for other reasons, even if that pleasure should be denied him. If the height above six feet is really necessary for any reason, there is no liability, whatever the motives of the owner in erecting it. If he thinks it necessary, and acts on his opinion, he is not liable because he also acts malevolently. We are of opinion that the statute, thus construed, is within the limits of the...