Karasek v. Peier

• Citation: 22 Wash. 419,61 P. 33
• Court: United States State Supreme Court of Washington
• Decision Date: 04 May 1900
• Parties: KARASEK v. PEIER.

61 P. 33

22 Wash. 419

KARASEK v. PEIER.

Supreme Court of Washington

May 4, 1900

Appeal from superior court, Pierce county J. A. Williamson, Judge.

Action by Anna Karasek against Anton Peier for an injunction to restrain the erection of a fence, or, if the fence should have been completed before the final hearing, that a mandatory injunction might issue to compel its removal. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

John M Boyle and J. P. Cass, for appellant.

W. H Harris and Ernest Hoppe, for respondent.

ANDERS J.

The respondent and the appellant are owners of adjoining lots fronting on G street, in the city of Tacoma. There is situated on the respondent's premises a dwelling house which is some distance back from the street, but so near the side of her land next to that of the appellant that the roof projects over the boundary line thereof, causing the rain water falling thereon to be discharged on the appellant's lot. The appellant's dwelling house is located about 25 feet from the respondent's lot, and the intervening portion of his land is used for a flower garden and lawn. The surface of the lots of both of the parties contiguous to the street is about 4 feet below the grade of the sidewalk, and gradually descends to the alley in the rear. The respondent's house, it appears, was erected several years before the appellant owned or occupied his premises, and has usually been occupied by tenants; the respondent herself residing in another house located on her land. Before and at the time the appellant purchased his lots there was a fence about 5 feet high along the boundary line of the respondent's lot, but on the land of the appellant, extending from the front of her house to the sidewalk; but at that time the back part of the lots of both parties seems not to have been inclosed, and the people residing in the neighborhood were in the habit of passing over that portion of appellant's premises in going to and returning from the business portion of the city. The appellant, having concluded to inclose his premises with a more substantial fence, requested the respondent to join him in erecting such a fence on the line dividing their respective lots. This the respondent declined to do; claiming that she had no need of another fence, and that she could not afford to build one. Appellant at the same time also requested the respondent to so alter the roof of her house that water would not fall therefrom upon his land and damage his lawn and flowers, which she also refused to do. These refusals greatly provoked and irritated the appellant, and, according to the testimony of the respondent, he became very angry and said to her: 'You will do nothing. Never mind. I will fix you.' Thereafter the appellant commenced to construct a high board fence upon his own land, along and close to the boundary line between his lot and that of the respondent. The respondent thereupon instituted this action for the purpose of restraining the appellant from further proceeding with the erection of the fence, averring in her complaint, among other things not necessary to be mentioned, that the fence was maliciously commenced for the purpose of annoying and spiting the plaintiff by shutting off the light from the three windows on the north side of her dwelling house, and for no other purpose; that, if the defendant is allowed to erect and maintain said fence, her house will be darkened thereby in such a manner as to shut out and obscure the light almost entirely from the said three windows, and her house greatly damaged on account thereof; and that the tenant now occupying said house is threatening to, and will, vacate the same if the plaintiff is permitted to erect and maintain said fence. She prayed that, in case the fence should have been completed before the final hearing and disposition of the cause, a mandatory injunction might issue, compelling its removal. The defendant, after denying the material allegations of the complaint, alleged affirmatively in his answer that he was constructing the fence on his own land, as an improvement thereon, and for the proper use and enjoyment of the same, and denied that it was being constructed wantonly or maliciously, with the intent to injure or annoy the plaintiff. Before the cause came on for trial the fence had been completed. It was 8 feet high at the street, and something more than 9 feet high opposite respondent's windows, owing to the fact that the soil had been 'dug out' considerably in that locality. It was constructed of inch boards nailed to stringers attached to posts set in the ground, and unplaned on the side next to respondent's house, and extended up to the top of the lower sash of respondent's windows.

At the trial the court found, among other facts, that the plaintiff used the house in question for the purpose of renting to tenants; that at the time of erecting said fence said dwelling house was occupied by a tenant, who afterwards vacated it on account of the darkening of the windows by said fence; that said fence, owing to the unusual height and character of the same, was and is a nuisance to the plaintiff and her tenants; that said fence was not erected by said defendant for any useful or ornamental purpose, but for the sole purpose of spiting and annoying plaintiff; that a fence 5 feet high would have answered for any lawful, useful, or ornamental purpose, or for the protection of defendant's said premises; and that, if said fence is allowed to remain at the height it now is, plaintiff will suffer great injury and damage on account thereof. After filing its findings of fact and conclusions of law, the court adjudged and decreed that 'upon the plaintiff's constructing a sufficient gutter or eaves trough under the eaves of the roof of her said dwelling described in the pleadings and findings of fact on file herein, to prevent the water from running off of her roof onto the defendant's premises, she have a peremptory injunction ordering and compelling the defendant to remove or cause to be removed the said fence described in the pleadings on file herein, or cause the same to be cut down to a height not exceeding five feet all the way from G street to a point at the rear end or northeast corner of said dwelling; that, if said defendant shall neglect or refuse to so remove or cut down said fence as herein directed for a period of thirty days after the plaintiff shall have constructed the eaves trough herein specified, the sheriff of Pierce county be, and is hereby, directed to cut down or remove the same at the cost and expense of the said defendant.'

This action is based upon section 5433, Ballinger's Ann. Codes & St. (2 Hill's Ann. St. & Codes, § 268), which reads as follows: 'An injunction may be granted to restrain the malicious erection, by any owner or lessee of land, of any structure intended to spite, injure or annoy an adjoining proprietor; and where any owner or lessee of land has maliciously erected such a structure with such intent, a mandatory injunction will lie to compel its abatement and removal.' This section of the statute was enacted in the year 1883, and embodied in an act entitled 'An act to correct errors and supply omissions in the Code of Washington' (Laws 1883, p. 44), and it is contended on the part of the appellant that the section is void for the reason that it is in contravention of the organic act of the territory of Washington (Rev. St. U. S.§ 1924), which declares that every law shall embrace but one object, and that shall be expressed in the title; and the case of Harland v. Territory, 3 Wash. T. 131, 13 P. 453, is cited in support of this contention. It is, no doubt, true that under the decision in the Harland Case the title of the act in question was insufficient; but under the rule announced by this court in the subsequent case of Marston v. Humes, 3 Wash. St. 267, 28 P. 520, and which has since been followed, it would seem that the title is not open to the objection here urged against it. But whether this statute was originally valid or invalid under the organic act is now quite immaterial, for the act of which it is a part was expressly ratified and confirmed, as a whole, by an act passed by congress in July, 1884. See 23 Stat. 122, c. 226.

The appellant also contends that, even if the statute is not invalid upon the ground of insufficiency of title, still it does not cover this case, for the reason that a fence is not a structure, within the meaning of the act. Webster defines a structure to be 'that which is built; a building especially a building of some size or magnificence; an edifice.' Webst. Int. Dict. And hence it is argued that the term 'structure,' as used in the statute, must mean an offensive building of some kind, apparently serving no purpose but to spite and annoy an adjoining owner. In support of the position that a fence is not a structure, in contemplation of this statute, the appellant cites the case of Retherfoord v. Railroad Co., 35 Ohio St. 559; and it is true that in that case the supreme court of Ohio held that a railroad was not a structure, within the meaning of a statute providing for mechanics' liens on 'any house, mill, manufactory or other building, fixtures, bridge or other structure.' But that conclusion was arrived at by the application of the wellknown rule of statutory construction, that, where general words follow an enumeration of specific persons or things, they are limited to the same class of persons or things as those specifically mentioned. But here the word 'structure' stands alone, and is not confined to any class of erections, and therefore the above-mentioned case is not an authority in favor of appellant's contention. Of course, it is true that a house is a...