Sundowner, Inc. v. King
| Decision Date | 10 May 1973 |
| Docket Number | No. 11043,11043 |
| Citation | 95 Idaho 367,509 P.2d 785 |
| Parties | SUNDOWNER, INC., an Idaho corporation, Plaintiff-Respondent, v. James C. KING and Agnes C. King, husband and wife, Defendants-Appellants. |
| Court | Idaho Supreme Court |
Donald E. Downen, Gigray, Downen & Morgan, Caldwell, for defendants-appellants.
Robert P. Tunnicliff of Miller, Weston & Tunnicliff, Caldwell, for plaintiff-respondent.
This is an appeal from a judgment ordering partial abatement of a spite fence erected between two adjoining motels in Caldwell, Idaho. This action is evidently an outgrowth of a continuing dispute between the parties resulting from the 1966 sale of a motel. See: King v. H. J. McNeel, Inc., 94 Idaho 444, 489 P.2d 1324 (1971).
In 1966 Robert Bushnell sold a motel to defendants-appellants King. Bushnell then built another motel, the Desert Inn, on property immediately adjoining that sold to the Kings.
The Kings thereafter brought an action against Bushnell (H. J. McNeel, Inc.) based on alleged misrepresentations by Bushnell in the 1966 sale of the motel property. See: King v. H. J. McNeel, Inc., supra. In 1968 the Kings built a large structure, variously described as a fence or sign, some 16 inches from the boundary line between the King and Bushnell properties. The structure is 85 ft. in length and 18 ft. in height. It is raised 2 ft. off the ground and is 2 ft. from the Desert Inn building. It parallels the entire northwest side of the Desert Inn building, obscures approximately 80% of the Desert Inn building and restricts the passage of light and air to its rooms.
Bushnell brought the instant action seeking damages and injunctive relief compelling the removal of the structure. Following trial to the court, the district court found that the structure was erected out of spite and that it was erected in violation of a municipal ordinance. The trial court ordered the structure reduced to a maximum height of 6 ft.
The Kings appeal from the judgment entered against them and claim that the trial court erred in many of its findings of fact and its applications of law. The Kings assert the trial court erred in finding that the 'sign' was in fact a fence; that the structure had little or no value for advertising purposes; that the structure cuts out light and air from the rooms of the Desert Inn Motel; that the structure has caused damage by way of diminution of the value of the Desert Inn Motel property; that the erection of the structure was motivated by ill-feeling and spite; that the structure was erected to establish a dividing line; and that the trial court erred in failing to find the structure was necessary to distinguish between the two adjoining motels.
We have examined the record at length and conclude that the findings of the trial court are supported by substantial although conflicting evidence. The trial court had before it both still and moving pictures of the various buildings. The record contains testimony that the structure is the largest 'sign' then existing in Oregon, Northern Nevada and Idaho. An advertising expert testified that the structure, because of its location and type, had no value for advertising and that its cost, i. e., $6,300, would not be justified for advertising purposes. Findings of fact will not be set aside on appeal unless they are clearly erroneous, and when they are supported by substantial though conflicting evidence they will not be disturbed on appeal. Hisaw v. Bishop, 95 Idaho 145, 504 P.2d 818 (1972); I.R.C.P. 52(a).
The absence of findings of fact may be disregarded by an appellate court if the record is so clear that they are not necessary for a complete understanding of the issues. Call v. Marler, 89 Idaho 120, 403 P.2d 588 (1965).
The pivotal and dispositive issue in this matter is whether the trial court erred in requiring partial abatement of the structure on the ground that it was a spite fence. Under the so-called English rule, followed by most 19th century American courts, the erection and maintenance of a spite fence was not an actionable wrong. These older cases were founded on the premise that a property owner has an absolute right to use his property in any manner he desires. See: 5 Powell on Real Property, 696, p. 276 (1949 ed. rev'd 1968); Letts v. Kessler, 54 Ohio St. 73, 42 N.E. 765 (1896).
Under the modern American rule, however, one may not erect a structure for the sole purpose of annoying his neighbor. Many courts hold that a spite fence which serves no useful purpose may give rise to an action for both injunctive relief and damages. See: 5 Powell, supra, 696, p. 277; IA Thompson on Real Property, § 239 (1964 ed.). Many courts following the above rule further characterize a spite fence as a nuisance. See: Hornsby v. Smith, 191 Ga. 491, 13 S.E.2d 20 (1941); Barger v. Barringer, 151 N.C. 433, 66 S.E. 439 (1909); Annotation 133 A.L.R. 691.
One of the first cases rejecting the older English view and announcing the new American rule on spite fences is Burke v. Smith, 69 Mich. 380, 37 N.W. 838 (1888). Subsequently, many American jurisdictions have adopted and followed Burke so that it is clearly the prevailing modern view. See: Powell, supra, 696 at p. 279; Flaherty v. Moran, 81 Mich. 52, 45 N.W. 381 (1890); Barger v. Barringer, supra; Norton v. Randolph, 176 Ala. 381, 58 So. 283 (1912); Bush v. Mockett, 95 Neb. 552, 145 N.W. 1001 (1914); Hibbard v. Halliday, 58 Okla. 244, 158 P. 1158 (1916); Parker v. Harvey, 164 So. 507 (La.App.1935); Hornsby v. Smith, supra; Brittingham v. Robertson, 280 A.2d 741 (Del.Ch.1971). Also see the opinion of Mr. Justice Holmes in Rideout v. Knox, 148 Mass. 368, 19 N.E. 390 (1889).
In Burke a property owner built two 11 ft. fences blocking the light and air to his neighbors' windows. The fences served no useful purpose to their owner and were erected solely because of his malice toward his neighbor. Justice Morse applied the maxim sic utere tuo ut...
To continue reading
Request your trial
-
Prah v. Maretti
...nuisance law at least in the narrow context of the modern American rule invalidating spite fences. See, e.g., Sundowner, Inc. v. King, 95 Idaho 367, 509 P.2d 785 (1973); Restatement (Second) of Torts, sec. 829 This court's reluctance in the nineteenth and early part of the twentieth century......
-
Obolensky v. Trombley
...only to structures which serve no useful purpose and are erected for the sole purpose of injuring adjoining property owners.” 95 Idaho 367, 509 P.2d 785, 787 (1973) ; see also Fontainebleau Hotel Corp. v. Forty–Five Twenty–Five, Inc., 114 So.2d 357, 359 (Fla.Dist.Ct.App.1959) (“[W]here a st......
-
Alberino v. Balch
...affect his right to use his own property." 9 R. Powell, Powell on Real Property § 62.05, at 62-45. Compare Sundowner, Inc. v. King, 95 Idaho 367, 509 P.2d 785, 786 (1973) (stating that "[u]nder the so-called English rule, followed by most [nineteenth] century American courts, the erection a......
-
Dowdell v. Bloomquist
...judicially providing whatever remedies may be available at common law to abate such a private nuisance. See Sundowner, Inc. v. King, 95 Idaho 367, 509 P.2d 785, 785-87 (1973) (adopting as a rule of common law that a spite fence is a nuisance, and as such, holding that the lower court did no......
-
PUTTING THE EQUITY BACK INTO INTELLECTUAL PROPERTY REMEDIES.
...forward in the face of protest or warnings from the owner and places a structure on the land."). (28) See, e.g., Sundowner, Inc. v. King, 509 P.2d 785, 787 (Idaho 1973) (enjoining as a spite fence a large sign erected solely to annoy neighbor); Stewart E. Sterk, Neighbors in American Land L......