Bush v. Mockett

• Decision Date: 13 March 1914
• Docket Number: 17,569
• Citation: 145 N.W. 1001,95 Neb. 552
• Parties: LIDA BUSH, APPELLANT, v. EBENEZER E. MOCKETT ET AL., APPELLEES
• Court: Nebraska Supreme Court

145 N.W. 1001

95 Neb. 552

LIDA BUSH, APPELLANT, v. EBENEZER E. MOCKETT ET AL., APPELLEES

No. 17,569

Supreme Court of Nebraska

March 13, 1914

APPEAL from the district court for Lancaster county: P. JAMES COSGRAVE, JUDGE. Affirmed.

AFFIRMED.

Burr Greene & Greene, for appellant.

Mockett & Peterson, contra.

SEDGWICK J. REESE, C. J., LETTON, J., dissenting.

OPINION

SEDGWICK, J.

The plaintiff began this action in the district court for Lancaster county to enjoin the defendants from interfering with the plaintiff in the erection, repairing and rebuilding of a fence which the plaintiff and her husband desired to maintain on or near the line between the residence lot of the plaintiff and that of the defendants. The defendants answered by way of cross-petition, alleging that while the defendants were away from home the plaintiff erected a rough, unsightly board fence between the lot occupied by the residence of the defendants and the lot so occupied by the plaintiff; that the fence was "about six feet high from the front sidewalk for fifteen feet back, and for the rest of its extent * * * was seven feet high; that the fence ran within about seven and one-half feet of the full west side of defendants' house; that the fence shut out the light, air, and view from the defendants' windows, and that defendants were unable to see the street or street cars or to have any view whatever from the windows on the west side of their house; and that the view was cut off from their front porch and front yard to the west and northwest," with other allegations as to the injury that the fence caused to the defendants, and then alleged "that the fence was not only high, but was made out of as rough material as possible, and was made for the express purpose of annoying and disturbing defendants and the members of their family, and was erected for no useful purpose." It was further alleged that the fence "was placed on, over and along said lot line immediately on the west of defendants' house, maliciously and out of spite, and for the express purpose of harassing defendants and their family, and for the purpose of annoying them and disturbing their peace of mind, and for the purpose of decreasing the value of their said property, and for the purpose of compelling them to sell their property for a less amount than it was really worth." The defendants asked that the plaintiff be enjoined from maintaining the fence. The reply denied the allegations of the cross-petition. The trial court enjoined the plaintiff from maintaining a specified portion of the fence, and enjoined the defendants from interfering with the remainder thereof. The plaintiff has appealed.

The defendants alleged that that part of the fence which the plaintiff is enjoined from maintaining extended in some points on to defendants' land, and that their placing and maintaining it there constituted a trespass. Several witnesses testified that some of the fence posts, and especially the cement in which the posts were set, extended on to the defendants' land about two inches. The county surveyor, who was called upon to make exact measurements for the purpose of determining this point, testified that he found one or two of the posts that were set a fraction of an inch on the defendants' land, and that no part of any of the fence extended more than two inches over the defendants' land. This variation is so slight that it does not appear to be considered as a material matter in the controversy. There are then but two questions, one of law and one of fact, involved in the case: First. Can a landowner erect any structure that he sees fit, without any useful purpose on his part, but for the sole purpose to annoy and punish his neighbor, when his neighbor is severely damaged thereby? Second. If this question of law is answered in the negative, was this fence built without any useful purpose on the part of the plaintiff, and for the sole purpose of annoying and punishing the defendants?

1. The common law of England strenuously adhered to the doctrine that the owner of real estate might use it as he pleased, without regard to the convenience or even the interests of his neighbors. Some exceptions were made as to "ancient lights," and perhaps other such considerations. This rule of the common law was not quite in harmony with the theory of the civil law as expressed in the maxim, "Sic utere tuo ut alienum non laedas." The earlier decisions in this country are inclined to the English view; but in recent years there have been some very notable departures from the strict rule of those courts. In 1909 the supreme court of North Carolina said that the maxim above quoted "is not founded in any human statute, but in that sentiment expressed by Him who taught good will toward men, and said, 'Love thy neighbor as thyself.' * * * No one ought to have the legal right to make a malicious use of his property for no benefit to himself, but merely to injure his fellow man. To hold otherwise makes the law an engine of oppression with which to destroy the peace and comfort of a neighbor, as well as to damage his property for no useful purpose, but solely to gratify a wicked and debasing passion." Barger v. Barringer, 151 N.C. 433, 66 S.E. 439. The opinion cites several Michigan cases and others, and is the subject of a somewhat extensive note, 25 L.R.A. n. s. 831.

Many of the states have by statute adopted the rule so announced. In 1888 the supreme court of Michigan, in the absence of any statute on the subject, declared the law of that state to be: "A fence erected maliciously, and with no other purpose than to shut out the light and air from a neighbor's window, is a nuisance." Burke v. Smith, 37 N.W. 838 (69 Mich. 380). The opinion by Mr. Justice Morse reviewed some of the earlier decisions upon both sides of the question, and stated at some length the reasons for the conclusions reached by the court. Chief Justice Campbell dissented. He discussed the common law doctrine of "ancient lights," and says that the right to have one's prospect into defendant's property left unobstructed "is an easement in the strictest sense of the term. * * * No man can create an easement for himself. If he has no such right, then he cannot complain that it is interfered with, either at law or in equity." He concludes that, where no such right has been acquired by prescription, "there is nothing to prevent the erection of any fence or barrier" to obstruct it. The doctrine of "ancient lights" has not been recognized in this state, and the reasoning of the great chief justice does not seem to have application here. Mr. Justice Champlin concurred in the dissenting opinion; but he based his opinion upon the earlier decisions of that and other courts, and said that it should be left to the legislature to declare the remedy, and that he thought "that legislation of the character contained in the statutes above cited is required and would meet my hearty approval." In Flaherty v. Moran, 81 Mich. 52, 45 N.W. 381, the rule established in Burke v. Smith, supra, was affirmed and followed, and Justice Champlin, then being chief justice, concurred in the opinion. These decisions are followed in Kirkwood v. Finegan, 95 Mich. 543, 55 N.W. 457, and Peek v. Roe, 110 Mich. 52, 67 N.W. 1080.

No doubt every one has the right to any beneficial use he may see fit to make of his own property, if the benefit he seeks is not out of all reasonable proportion to the injury caused to another. His neighbors have no legal cause to complain although it may interfere with some privileges formerly enjoyed. Courts of equity would fail in the service that history shows they were intended to render to society if they are unable to protect those common rights which more clearly appear, and become more valuable, as civilization advances and the relations of social life become more intricate and more enjoyable. As was said by Mr. Justice Hoke in his dissenting opinion in Barger v....