Horan v. Byrnes

• Decision Date: 07 April 1908
• Citation: 72 N.H. 93,54 A. 945
• Parties: HORAN v. BYRNES.
• Court: New Hampshire Supreme Court

54 A. 945

72 N.H. 93

HORAN

v. BYRNES.

Supreme Court of New Hampshire. Hillsborough.

April 7, 1908.

Transferred from Superior Court; Peaslee, Judge.

Action by Jeremiah J. Horan against James J. Byrnes. Verdict for plaintiff, and case transferred from the superior court on defendant's exceptions. Exceptions sustained in part.

Case, under sections 28, 29, c. 143, Pub. St. 1901, for maintaining a structure in the nature of a fence, in violation of the statute. The defendant moved for a nonsuit on the ground that the statute upon which the action is based is unconstitutional. The motion was denied, and he excepted. The following testimony was admitted subject to exception: The defendant's wife, Ann, who was a witness in his behalf, was asked upon cross-examination if she had not said to the plaintiff: "The fence is going higher. We won't leave you a bit of room." Upon her denial of the statement, she was asked if at another trial, when she was present, this statement had not been testified to, and if she did not fail to then deny it. This she admitted. She denied having any ill will toward the plaintiff or his family. The plaintiff's wife testified that she lost her wedding ring on the Byrnes premises, and that the ring came into the hands of Mrs. Byrnes, who refused to deliver it to the witness, but compelled her to go to the police station to recover her property.

Patrick H. Sullivan, for plaintiff.

Brown, Jones & Warren, for defendant.

PARSONS, C. J. "Any fence or other structure in the nature of a fence, unnecessarily exceeding five feet in height, erected or maintained for the purpose of annoying the owners or occupants of adjoining property, shall be deemed a private nuisance.

"Any owner or occupant, injured either in his comfort or the enjoyment of his estate by such nuisance, may have an action of tort for the damages sustained thereby.

"If the plaintiff recovers judgment in the action, the defendant shall cause the removal of the nuisance within thirty days from the date of the judgment, and for each day he shall permit the nuisance to remain after the expiration of said thirty days he shall incur a penalty of ten dollars for the use of the party injured."

Pub. St. 1901, c. 143, §§ 28-30.

The act forbids the use by one landowner of his land for the unnecessary erection of a fence exceeding five feet in height when the purpose of such unnecessary height is the annoyance of the adjoining owner or occupant if such unnecessary height injures the adjoining owner in his comfort or the enjoyment of his estate. The claim of the defendant in support of his motion for a nonsuit that the statute is unconstitutional raises the question whether the statutory prohibition is an unwarranted interference with the defendant's "natural, essential, and inherent" right of "acquiring, possessing, and protecting property," or deprives him of that protection in its enjoyment which is the right of "every member of the community." Bill of Rights, arts. 2, 12.

"The structure here referred to is one designed to take the place of a fence in the ordinary meaning of the term—a structure erected upon or near the dividing line between adjoining owners for the purpose of separating the occupancy of their lands." Lovell v. Noyes, 69 N. H. 263, 46 Atl. 25; Spaulding v. Smith, 162 Mass. 543, 39 N. E. 189. The correlative right and duty of adjoining owners and occupants of lands at the common boundary between them is matter of general and public concern. The existence or not of an obligation to fence, what should constitute performance, and what liabilities should follow from nonperformance, are matters as to which the establishment of a definite rule plainly promotes the public peace and comfort and the security of property rights in real estate. All these questions were early settled by the Legislature. It prescribed the obligation to fence as between adjoining owners, provided a method for the enforcement of the duty, declared the legal liability for failure to fence, and defined a sufficient fence. There was legislation upon the subject in 1687, 1692, 1743, and 1792 (1 N. H. Prov. Laws, 200; 3 Prov. Papers, 176; Laws 1696-1725, p. 117; Laws, Ed. 1761, p. 225; Act Feb. 8, 1791; Laws, Ed. 1797, p. 331); while in 1842 (Rev. St. p. 254, c. 136, § 4) the requirements of a sufficient fence were prescribed. Such a fence need not be more than four feet high. Pub. St. 1901, c. 143, § 5. Although these provisions in one sense imposed a burden upon real estate ownership, the purpose of the Legislature, as shown by the titles of the earlier acts "for the regulation of cattle, cornfields, and fences," was to make provision in reference to the control of domestic animals—"to regulate the use and keeping of such property." Morey v. Brown, 42 N. H. 373, 375. No one has ever been required to fence his land who does not improve it, or who "lays it in common." Pub. St. c. 143, § 14. The theory of these statutes is simply that, where adjoining owners each desire the exclusive use of their land, the expense of effecting the mutual purpose should be equally divided between them. Pub. St. 1901, c. 143, § 1. The constitutional objection made to the present statute raises the question, if it appears that the statute is an interference with the defendant's property right, whether the interference is or not one which the Legislature might properly make as a regulation of the use of property. The constitutionality of similar statutes has been upheld upon the latter ground, as being merely a small limitation of existing rights incident to property, which, under the police power, may be imposed for the sake of preventing a manifest evil. "it is hard," it has been said, "to imagine a more insignificant curtailment of the rights of property." Rideout v. Knox, 148 Mass. 368, 372, 373, 19 N. E. 390, 2 L. R. A. 81, 12 Am. St. Rep. 560; Karasek v. Peier, 22 Wash. 419, 61 Pac. 33, 50 L. R. A. 345; Western Granite & Marble Co. v. Knickerbocker, 103 Cal. 111, 37 Pac. 192. Similar statutes in Maine, Vermont, and Connecticut have been before the courts, but it has not been suggested that the power of the Legislature to adopt them has been attacked in those states. Lord v. Langdon, 91 Me. 221, 39 Atl. 552; Harbison v. White, 46 Conn. 106; Gallagher v. Dodge, 48 Conn. 387, 40 Am. Rep. 182, 183, note.

The present statute was passed in 1887. Laws 1883-87, p. 469, c. 91. In Hunt v. Coggin, 66 N. H. 140, 20 Atl. 250, the verdict was for the defendant; and in Horan v. Byrnes, 70 N. H. 531, 49 Atl. 569, the defendant waived any objection to the statute upon this ground. In Lovell v. Noyes, 69 N. H. 263, 46 Atl. 25, the question was whether a building was within the terms of the statute. The constitutional question is now presented for the first time.

It is objected in answer to the argument that statutes like the present are within the constitutional exercise of the police power, involving for the general good some slight limitation of existing property rights; that, if one incident of the property right in real estate is the right to use it maliciously for the sole purpose of injuring another, it is as much an invasion of the right to take it from a small portion as from the whole of one's property; and that the matter in question concerns private individuals, and not the public in general, and hence does not come within the police power. State v. White, 64 N. H. 48, 50, 5 Atl. 828. It may be thought these objections are successfully answered in the cases cited, or that, if not there answered, a satisfactory answer can be found. But a discussion of these objections does not reach the fundamental question in the case.

"The statute was designed to prevent an act the sole effect of which would be to annoy or injure another." Lovell v. Noyes, 69 N. H.263, 46 Atl. 25. The primary question, therefore, is whether one's right to use property solely to injure another is a part of his property right in real estate, which is so protected by the constitution that the prohibition of such use is not within the general power of legislation "for the benefit and welfare of this state and for the governing and ordering thereof." Const art. 5. Upon the question whether a fence on or near the division line between adjoining landowners, maliciously built to an unreasonable height for the sole purpose of annoying and injuring the adjoining owner or occupant, is a nuisance which can, in the absence of statutory authority, be abated by an injunction, the courts are in conflict. Letts v. Kessler, 54 Ohio St. 73, 42 N. E. 765, 40 L. R. A. 177, answers the question in the negative, while an opposite conclusion is reached in Michigan. Burke v. Smith, 69 Mich. 380, 37 N. W. 838; Flaherty v. Moran, 81 Mich. 52, 45 N. W. 381, 8 L. R. A. 183, 21 Am. St. Rep. 510; Kirkwood v. Finegan, 95 Mich. 543, 55 N. W. 457. In Rideout v. Knox, 148 Mass. 368, 19 N. E. 390, 2 L. R. A. 81, 12 Am. St. Rep. 560, and Karasek v. Peier, 22 Wash. 419, 61 Pac. 33, 50 L. R. A. 345, cases in which the power of the Legislature to enact a statute similar to that under consideration is attacked and upheld, it is conceded "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." Rideout v. Knox, 148 Mass. 372, 19 N. E. 392, 2 L. R. A. 81, 12 Am. St. Rep. 560.

The conclusion that a landowner's property right in real estate includes the right to use it solely for the injury and annoyance of his neighbor, without intending to subserve any useful purpose of his own, is "based upon a narrow view of the effect of the land titles," and is reached "by the strict enforcement of a technical rule of ownership briefly expressed in an ancient maxim," "Cujus est solum, ejus est usque ad cœlum." The courts of this state have had, in some respects, at least, a different understanding of the elements of...