Burke v. Smith

• Decision Date: 20 April 1888
• Citation: 37 N.W. 838,69 Mich. 380
• Court: Michigan Supreme Court
• Parties: BURKE v. SMITH.

37 N.W. 838

69 Mich. 380

BURKE v. SMITH.

Supreme Court of Michigan

April 20, 1888

Appeal from circuit court, Kalamazoo county, in chancery; ALFRED J MILLS, Judge.

Suit to abate a nuisance, by Patrick H. Burke against John G. Smith. Judgment for complainant, and defendant appeals.

CAMPBELL C.J., and CHAMPLIN, J., dissenting.

MORSE J.

The parties to this suit own adjoining lots in the city of Kalamazoo. The complainant built two dwelling-houses on his lot for the purposes of rental. One house fronts on Park street; the other upon Osborn street. These houses came up within about two feet of the line between him and the defendant. When the houses were built, Smith had a house on his lot, fronting on Park street, with room for a drive-way between his house and complainant's premises. About the time complainant erected his houses, Smith built a house on his lot fronting on Osborn street. Complainant's houses were about 14 feet front, with a single tier of rooms running back from the street. These parties got into a quarrel, and as a result of petty annoyances on both sides, the defendant finally put up a screen or fence in front of the lower side windows of the complainant, as it is claimed covering, obscuring, and darkening the same, and shutting out the light and air therefrom. The evidence shows these screens to be two in number, and about eleven feet high, coming up to the top of the lower windows of complainant's houses. They were built by setting posts in the ground, and nailing boards against them. They were open at the bottom below the windows. I think it is established by the evidence that these screens were not put up for a fence, or any other necessary or useful or ornamental purpose, but simply to shut out the view of defendant's premises from complainant's windows. Smith claims that he did not wish the occupants of complainant's houses to gaze into his windows, or to witness the getting out of and into carriages of his family at the horse block beside the drive-way, and for that reason put up these barriers. There is plenty of evidence that when he was erecting these screens he said he was doing it to shut the light out of Burke's windows. I think there was nothing but malice in his motives. The complainant files his bill of complaint alleging the ownership, value, and use of the property belonging to him; the desirability of these houses for rental to families being averred as constituting their chief value. He alleges that these screens were unnecessarily erected from malicious motives, and for the express and avowed purpose of darkening the windows of his two houses, and cutting off the light from entering the windows of said houses, obstructing the view from them, and thereby injuring the value of the houses. Avers that they are an intolerable nuisance; that, by their existence, light and air are prevented from freely entering his houses, the view from the windows is wholly obstructed and cut off, the looks and appearance of the houses greatly injured, their desirability as homes greatly lessened, their rental value depreciated, and their actual market value reduced more than $500. Prays that said screens may be abated as a nuisance, and a perpetual injunction allowed against a continuation or renewal of the same. The court below granted the prayer of the complainant's bill.

These screens are erected entirely upon the lot of the defendant, and he appeals to this court, claiming that he has a perfect right to erect and maintain them, and that the question of his motives has nothing to do with the legal aspects of the case, though he disclaims any malice against complainant. It must be taken for granted, in discussing this case, that these screens were not erected for the purposes of a fence, or for any other necessary, useful, or ornamental purpose. The pretense that they were built to keep prying eyes from observing what was going on in the houses or yard of the defendant is not supported by the proofs. The evidence is clear to my mind that malice alone entered into the reason and motive of their erection. The proofs are conclusive upon this subject. It is admitted by the counsel for the complainant that he would have no redress had the defendant erected houses or useful buildings or structures as near to complainant's line as these screens are, even though the consequent damage of such erection would have been as great or greater than it has been and now is from the effect of these screens upon the dwellings of complainant in every respect here complained of. But his contention is that these screens being a damage to the houses of complainant, and being erected for no good or useful purpose, but with the malicious motive of doing injury, they become and are such a nuisance to the property of complainant that equity will cause their removal, and enjoin their future erection or continuance. He invokes the legal maxim that "every man in the use of his own property must avoid injury to his neighbor's property as much as possible;" and argues that, while it is true that when one pursues a strictly legal right his motives are immaterial, yet no man has a right to build and maintain an entirely useless structure for the sole purpose of injuring his neighbor. The argument has force, and appears irresistible, in the light of the moral law that ought to govern all human action. And the civil law, coming close to the moral law, declares that "he who, in making a new work upon his own estate, uses his right without trespassing either against any law, custom, title, or possession, which may subject him to any service towards his neighbors, is not answerable for the damages which they may chance to sustain thereby, unless it be that he made that chance merely with a view to hurt others without advantage to himself." Thus the civil law recognizes the moral law, and does not permit the owner of land to do an act upon his own premises for the express purpose of injuring his neighbor, when the act brings no profit or advantage to himself. The law furnishes redress, because the injury is malicious and unjustifiable. The moral law imposes upon every man the duty of doing unto others as he would that they should do unto him; and the common law ought to, and in my opinion does, require him to so use his own privileges and property as not to injure the rights of others maliciously, and without necessity. It is true that he can use his own property, if for his own benefit or advantage, in many cases to the injury of his neighbor; and such neighbor has no redress, because the owner of the property is exercising a legal right which infringes on no legal right of the order. Therefore, and under this principle, the defendant might have erected a building for useful or ornamental purposes, and shut out the light and air from complainant's windows; but when he erected these "screens" or "obscurers" for no useful or ornamental purpose, but out of pure malice against his neighbor, it seems to me a different principle must prevail. I do not think the common law permits a man to be deprived of water, air, or light for the mere gratification of malice. No one has an exclusive property in any of these elements except as the same may exist or be confined entirely on his own premises. If a pond of water lies entirely within his lands, without inlet and outlet, he may do with it as he pleases while he keeps it upon his own premises. He may also use as he pleases what air or light he can keep and hold within his dominion upon his own lands. But to the air and light between the earth and the heavens the right of each man is more or less dependent upon that of his neighbor. His neighbor must bear the inconvenience and annoyance that the legal and beneficial use of his premises engenders in this respect, if such use falls short of what the law treats as a nuisance; but the right to use one's premises to shut out or curtail the use of either of these elements by his neighbor, out of mere malice and wickedness, when such use is not beneficial to him in any sense, does not exist in law or equity. The complainant in this case had a right to the use of the air and light about his houses, and over defendant's lands, until such right came in conflict with the defendant's enjoyment of his property. This air and light was free and unconfined, and the common property of all.

The leading case relied upon by the defendant, and which has been followed by the courts of several of the states, is Mahan v. Brown, 13 Wend. 261. The action was brought for the obstruction of lights. It was averred that the defendant had wantonly and maliciously erected near to and in front of plaintiff's windows a fence of the height of 50 feet, without benefit or advantage to himself, and for the sole purpose of annoying plaintiff by means whereof her house was greatly darkened, and the light and air obstructed from entering the same through the windows, rendering the house uninhabitable, so that her boarders had left her, and her apartments were untenanted, etc. This fence was built, as the screens in this case were, by the defendant under the pretense of preventing his yard from being overlooked by the windows of the plaintiff's house, but in fact from mere malice, and with the intent to exclude the light and air from the windows of the plaintiff. The court, SAVAGE, C.J., delivering the opinion, held that a person who makes a window in his house overlooking the privacy of his neighbor does an act which strictly he has no right to do, although it is said no action lies for it. "He is therefore encroaching, though not strictly and legally trespassing, upon the rights of another. He enjoys an easement, therefore, in his neighbor's property, which in time may ripen into a right....