Bordeaux v. Greene
| Decision Date | 27 February 1899 |
| Citation | 56 P. 218,22 Mont. 254 |
| Parties | BORDEAUX v. GREENE. |
| Court | Montana Supreme Court |
Appeal from district court, Silverbow county; J. J. McHatton, Judge.
Action by John R. Bordeaux against Flora E. Greene. From a judgment for defendant entered on sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.
Action to abate a nuisance. Plaintiff was the owner of certain lots and a building thereon, in Butte. Defendant owned an adjoining lot, upon the front part of which she erected a brick building. In the rear of her lot were outbuildings. In August, 1896, defendant (so plaintiff alleged) "wrongfully and maliciously and unnecessarily, and for the purpose of injuring plaintiff and plaintiff's property," built a high board fence (40 feet high) within 2 1/2 or 3 feet from the rear of plaintiff's building,--so close to his building as to cut off light, air and view therefrom. The complaint also contained the following averment: "Plaintiff further alleges, from the manner in which the said fence is constructed, in the event of a heavy wind occurring and blowing from the northeast to the southwest, that the said fence is liable to be blown over and upon his said buildings, and may result in injuring the same by the reason thereof." General demurrer was sustained. Plaintiff declined to amend, and judgment went against him for costs. He appeals.
John W Cotter, for appellant.
Corbett & Wellcome, for respondent.
HUNT J. (after stating the facts).
Defendant built the fence upon her own property. That being true, we know of no statute of the state, or ordinance of the city of Butte, which, in the exercise of a police power, prevented her from putting up the structure. Nor will the law generally prevent it. The owner of a piece of property has a right to shut off air and light from his neighbor's windows by building on his own lots. This doctrine is too well settled in this country to require authorities. He cannot annoy his neighbor with the smell of his privy vaults, or with percolating sewer water, or other inconveniences which the law recognizes as injurious; but the free use of light and air by an owner of the soil are his, to any extent he pleases, without regard to his neighbor's convenience or inconvenience. Pickard v. Collins, 23 Barb. 444; Letts v. Kessler, 54 Ohio St. 73, 42 N.E. 765; Judge Campbell's opinion in Burke v. Smith, 69 Mich 380, 37 N.W. 838. It makes no difference whether ...
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