Stroup v. Rauschelbach
| Decision Date | 05 May 1924 |
| Citation | 261 S.W. 346,217 Mo.App. 236 |
| Parties | I. A. STROUP, Appellant, v. W. S. RAUSCHELBACH, Respondent. |
| Court | Kansas Court of Appeals |
Appeal from Circuit Court of Morgan County.--Hon. Henry D. Westhues Judge.
AFFIRMED.
Decree affirmed.
John J Jones and Roy D. Williams for appellant.
Embry & Embry and Richard H. Woods for respondent.
This is an action in equity brought to abate a high board fence between adjoining lot owners on the ground that it obstructs the view from plaintiff's property, and prevents the circulation of air thereto. The petition further alleges that said fence is not ornamental, is not useful, since a fence three or four feet high would answer every purpose, and that it was erected solely for the purpose of injuring plaintiff and was without advantage to defendant, and is a continuing nuisance.
Plaintiff and defendant own and reside upon adjoining lots in the town of Versailles, Missouri. The lots are about seventy-five feet front by 150 feet in depth; and they front west. Plaintiff's lot is north of defendant's.
Plaintiff's residence is located about six feet from the South line of his lot, which, of course, is the divisional line between the lots.
Before the erection of the solid board fence complained of, the parties had, by agreement, erected on said divisional line a woven wire fence about eight feet high, beginning at a point forty feet east of the west or front lines of said lots and running east a distance of forty-seven feet. (Apparently this fence began at a point about even with the southwest corner of plaintiff's house, though the record does not explicitly so state.) At some unnamed point (possibly at the east end of the fence), on or near to said divisional line the north side of defendant's garage stood, and it was a little higher than the fence.
A few inches south of said wire fence, and wholly on his own lot defendant erected a solid board fence eight feet high beginning at the point where the wire fence began and running back the same distance, but he afterward took away the easternmost twenty feet thereof. This board fence is six feet nine inches south of plaintiff's porch on the south of his house. It is this board fence that plaintiff seeks to have removed as a nuisance.
The court heard the evidence and, with no declarations of law or findings of fact being requested, rendered a decree in which he found that the defendant did not build the fence maliciously but that the erection of the same was made necessary to protect him and his family from the offensive conduct of plaintiff and his family, whereupon judgment was entered for defendant, dismissing plaintiff's bill. Plaintiff has appealed.
We cannot interfere with the learned chancellor's disposition of the case. Plaintiff's theory is that the fence was erected solely for the purpose of maliciously injuring plaintiff, being the outcome of a quarrel, and that the fence could be of no possible benefit to defendant. He urges that no one has a right to use his property to injure another unless the use is either beneficial to him or to his property, and cites in support thereof Givens v. Van Studdiford, 4 Mo.App. 498; S. C., 72 Mo. 129; Burke v. Smith, 37 N.W. 830; Flaherty v. Moran, 45 N.W. 381; Kirkwood v. Finegan, 55 N.W. 457. Also that when the use is willful, actuated solely by malice, and of no possible benefit to the owner of the property, if there is an injury to the adjoining owner, it becomes a nuisance and a court of equity will interfere, citing the above authorities and also Medford v. Levy, 8 S.E. 302; Quincy v. Jones, 76 Ill. 231. It is not absolutely necessary to decide this precise question since the court found that the fence was not built maliciously but for the purpose of protecting defendant's family. The evidence is ample to show...
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