Hornsby v. Smith

• Decision Date: 16 January 1941
• Docket Number: 13545.
• Citation: 13 S.E.2d 20,191 Ga. 491
• Parties: HORNSBY v. SMITH.
• Court: Georgia Supreme Court

13 S.E.2d 20

191 Ga. 491

HORNSBY v. SMITH.

No. 13545.

Supreme Court of Georgia

January 16, 1941

Syllabus by the Court.

While the owner has a right to use his land for any lawful purpose which violates no right of another person yet when he uses it maliciously for the sole purpose of injuring another, he thereby invades the rights of such other person and such use is unlawful and is not supported by any right of the owner. The present petition seeking to prevent the maintenance of a fence by the owner upon her own land alleging that the defendant built and is maintaining near the land line between the parties, for the sole purpose of maliciously injuring the petitioner, a fence made of wood eight feet in height, which shuts off the light and air from petitioner's residence, thereby causing great injury to her and her property, stated a cause of action, and was not subject to the demurrer assailing it upon the ground that it alleged no cause of action.

Mrs. A. M. Smith brought suit against Mrs. Lola Hornsby, alleging substantially the following facts: The petitioner is the owner of a house and lot located at 1299 Lakewood Avenue, S.E. , Atlanta, Georgia. The defendant owns vacant lots and a house adjacent to the land of petitioner. In November, 1936, the defendant built a high fence along the property line separating the property of plaintiff and defendant. This fence was built of heavy thick planks about eight feet high, and it obscured the vision of petitioner to the south of her residence. No benefits flow to defendant in any manner whatsoever from said fence, but it was built maliciously for the sole purpose of injuring the plaintiff. It has been maintained as a nuisance to injure and damage petitioner. It obscures the view and obstructs the free passage of air into petitioner's home from the south side thereof, and the obstructing of light in petitioner's home has necessitated the payment of larger electric-light bills and has caused a depreciation in the value of petitioner's property of at least $1,250. The fence serves no lawful purpose and gives no useful advantage to the defendant, but she has recently repaired the fence. The plaintiff prayed for judgment for damages; that defendant be enjoined from improving, enlarging, or extending the fence until further order of the court; and that the fence be decreed a nuisance and be abated as such. The defendant demurred to the petition, on the grounds (1) that no cause of action is alleged, and (2) that the allegations failed to support or authorize the equitable relief sought. The demurrers were overruled, and the defendant excepted.

Claud F. Brackett and A. J. Hall, both of Atlanta, for plaintiff in error.

H. W. McLarty and Lewis H. Fowler, both of Atlanta, for defendant in error.

DUCKWORTH Justice.

If the alleged conduct of the defendant constitutes a continuing nuisance as defined in the Code, § 72-101, the plaintiff is entitled to equitable relief. Code, § 55-101; Russell v. Napier, 80 Ga. 77, 4 S.E. 857; Spencer v. Tumlin, 155 Ga. 341, 116 S.E. 600; Phinizy v. Gardner, 159 Ga. 136, 125 S.E. 195; Rosser v. Styron, 171 Ga. 238, 155 S.E. 23; 2 C.J.S., Adjoining Landowners, 46, § 52(b). But, in reaching a solution of the main question, we encounter the following questions: (a) whether the defendant's right to make use of his land is qualified or absolute, (b) whether the petitioner has any right to the free passage of light and air laterally over defendant's land onto her own, and (c) whether the defendant's motive affects her right to the use of her own property; all of which questions will be dealt with in deciding the main question involved. This court has not heretofore ruled upon the exact question made by this record. Courts of other jurisdictions are divided. One line of decisions sustains the proposition that the owner of land has a right to erect thereon any structure, fence or otherwise, that in itself is lawful, and that the motive in erecting such structure is not open to inquiry. They sustain the right of such owner to maintain such structures, although his sole motive is malevolent and such structures are intended to injure his neighbor or the adjoining landowner. Supporting this view is 12 Am. & Eng.Enc. of Law, 2d Ed., 1058, where it is declared: 'According to the received view of the common law, the erection of a fence upon one's own land is not an actionable injury to one's neighbor, although the erection may deprive him of light and air, and may be dictated by motives of ill will.' Supporting this statement of the rule and restating the substance in different language is 1 Am.Jur. 535, §§ 51, 52, and 22 Am.Jur. 546, § 43. In Letts v. Kessler, 54 Ohio St. 73, 42 N.E. 765, 40 L.R.A. 177, the Ohio court taking this view, supports its opinion with very forceful and persuasive arguments. It begins with the premise that the owner of land has the undeniable right to cut off the passage of light and air laterally over his own land by the erection of a building for a profitable use, and concludes that this right authorizes the erection of a fence that would have the same result, although the builder acted with deliberate intent to injure his neighbor and the fence was of no value to him. The opinion lays down the proposition that to allow the right to maintain an action against the builder of the fence to turn on the question whether or not the fence is profitable to the builder or is erected because of malice toward the adjoining owner would not be to protect a legal right, but would constitute an attempt to control moral conduct. Another decision supporting this view is Metzger v. Hochrein, 107 Wis. 267, 83 N.W. 308, 50 L.R.A. 305, 81 Am.St.Rep. 841, where it is said that where the rules of the common law have not been changed by legislation, and the courts have kept strictly within their legitimate sphereas administrators of the law, the general rule is that whatever a man may lawfully do on his own property under any circumstances he may do regardless of the motive for his conduct. To the same effect, see Koblegard v. Hale, 60 W.Va. 37, 53 S.E. 793, 116 Am.St.Rep. 868, 9 Ann.Cas. 732, and numerous cases cited in the notes to 50 L.R.A. 305.

On the other hand the opposite view is supported by numerous decisions of other jurisdictions. This side of the question is well stated and forcefully argued in Bush v. Mockett, 95 Neb. 552, 145 N.W. 1001, 1002, 52 L.R.A.,N.S., 736. The fence there involved was about six feet high from the front sidewalk for a distance of fifteen feet back, and for the rest of its extent it was seven feet high. It was alleged that the fence shut out the light and view from the premises of the complaining party. The opinion conceded that the common law of England strenously adhered to the doctrine that the owner of real estate might use it as he pleased, without regard to the convenience or interest of his neighbors, and that the earlier decisions of this country are inclined to the English view; but it was said that 'in recent years there have been some very notable departures from the strict rule of those courts.' The opinion cited with approval Barger v. Barringer, 151 N.C. 433, 66 S.E. 439, 25 L.R.A.,N.S., 831, 19 Ann.Cas. 472, and quoted from that opinion as follows: '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.' In discussing the duty and power of a court of equity to grant relief in such case, it was said: '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. Barringer, supra, we cannot 'allow causes of action to be based upon motive alone. For here we enter upon the domain of taste and temperament, involving questions entirely too complex, varied, and at times fanciful for satisfactory inquiry and determination by municipal courts.' But when it appears that, not only was the motive wholly malicious, but the intention and result were to seriously injure another, without benefit to any one, courts of equity are not so impotent in these modern times that they are unable to prevent such a wrong.'

Another decision supporting this view is Hibbard v Halliday, 58 Okl. 244, 158 P. 1158, 1159, L.R.A.1916F, 903. There the court conceded that at common law no actionable wrong can arise, unless there has been an invasion of another's right; and the owner of land has the right to make any reasonable use of his property without liability for any loss that may result to his neighbor from such use, and that a lawful act can not be actionable though it proceeded from a malicious motive. Then the opinion stated: 'We can nowhere find it stated broadly as a principle of the common law that a landowner's property right in real estate includes the right to use it malevolently solely for the injury and annoyance of his neighbor without intending to subserve any useful purpose of his own. Therefore, when we concede that the owner of land has a right to make any reasonable use of his property and when employed for such use, may rightfully injure another, it does not follow that by its use for a wholly wrongful purpose he may also rightfully injure another. * * * As was said by Mr. Justice Doe in the case of ...