Russell v. The State

Decision Date14 January 1904
Docket Number5,074
Citation69 N.E. 482,32 Ind.App. 243
CourtIndiana Appellate Court

From Marion Criminal Court (33,336); Fremont Alford, Judge.

James A. Russell and another were convicted of maintaining a nuisance, and appeal.


W. W Herod, W. P. Herod and H. D. Merrifield, for appellants.

C. W Miller, Attorney-General, C. C. Hadley, W. C. Geake, L. G Rothschild and Frank Hendricks, for State.



This action was commenced by the State of Indiana against appellants, upon the affidavit of one August Haug, for erecting and maintaining a common nuisance, under § 2154 Burns 1901, § 2066 Horner 1901. The cause was first tried before a justice of the peace. From the justice's court an appeal was taken to the Marion Criminal Court, in which court appellants were found guilty, and fined $ 10 and costs.

Appellants separately assign errors--Mary, that the affidavit does not state facts sufficient to constitute a cause of action against her; James, that it does not state facts sufficient to constitute a cause of action against him; each, that it does not state facts to constitute an offense against the State of Indiana, and that the court erred in overruling their separate motions for a new trial.

The affiant Haug owned a residence property facing Dugdale street, in Indianapolis, occupied by one Kintz and family as tenants. Appellants owned the vacant lot immediately adjoining on the south facing the same street and the residence in which they lived immediately adjoining on the north of affiant's property, facing said Dugdale street. Appellants caused to be erected a fence from ten to twelve feet high wholly on their own land, beginning at the corner of their residence and running along a line from six to twelve inches from the line fence to the street; a like fence on their vacant lot running from the corner to Haug's house to the street; and two screens of the same height, made of dressed pine boards, opposite two windows in Haug's house looking out upon appellant's vacant lot. These screens were about four feet wide and placed about five feet from the windows. The fence and screens were erected because of ill feeling between appellants and the Kintzs. The evidence as to the reasons of their ill feeling is conflicting. The affidavit charges a common nuisance. So much of the statute as is material reads as follows: "Whoever * * * erects, continues, or maintains any obstruction to the full use of property, so as to injure the property of another or essentially to interfere with the comfortable enjoyment of life shall be fined," etc.

By § 290 Burns 1901 nuisance is defined as "whatever is injurious to health, or indecent, or offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property." It has been held that the injury referred to, whether to property or the occupants thereof, is physical. "Acts which do not reach the adjoining property in a physical sense, yet diminish its value and desirability for a particular use, as for dwelling-house purposes, have not been supposed to constitute an actionable nuisance." Metzger v. Hochrein, 107 Wis. 267, 83 N.W. 308, 50 L. R. A. 305, 81 Am. St. 841. Smoke, noise, and noisome smells may, from the property of an annoying neighbor, enter the premises of another, and thereby invade the legal right of him whose premises it reaches. Such right will be protected.

In the case of Metzger v. Hochrein, supra, it was held that maliciously to erect an unsightly high, board fence on one's own property in such a way as to obstruct the passage of light and air and obstruct the view to and from a neighbor's dwelling, by reason of which its value is injured, and the use of the house as a dwelling-house will have to be abandoned, is not an actionable wrong.

Letts v. Kessler, 54 Ohio St. 73, 42 N.E. 765, 40 L. R. A. 177, was a case in which L. and K. owned adjoining lots, and L. erected on his own lot a board fence reaching to the roof of K.'s house, which set upon the line of the lots, which fence shut off the light and air from the windows of the house of K., to his injury, which fence was so erected by L. for no useful or ornamental motives, but from motives of unmixed malice toward K. In the action by K. against L. to compel the removal of the fence, it was held that L. had a legal right to erect and maintain such fence, and that neither law nor equity could compel its removal.

In Glendon Iron Co. v. Uhler, 75 Pa. 467, 471, 15 Am. Rep. 599, Jenkins v. Fowler, 24 Pa. 308, and Fowler v. Jenkins, 28 Pa. 176, it is said that a lawful act is not actionable, although it proceeds from malicious motives. These decisions are upon the ground that malicious motives can not make that wrong which in its own essence is lawful.

In Knabe v. Levelle, 23 N.Y.S. 818 at 818-824, it is held that the mere fact that a structure built by one upon his own land obstructs the view and shuts off the light and air from his neighbor's premises affords no ground for action, and the doctrine of prescription has no application.

There is a conflict of opinion upon the question presented in Letts...

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