White v. Bernhart

• Decision Date: 25 November 1925
• Citation: 241 P. 367,41 Idaho 665
• Parties: E. C. WHITE, Respondent, v. J. B. BERNHART, Appellant
• Court: Idaho Supreme Court

241 P. 367

41 Idaho 665

E. C. WHITE, Respondent, v. J. B. BERNHART, Appellant

Supreme Court of Idaho

November 25, 1925

ADJOINING LAND OWNERS - NUISANCE - WHAT CONSTITUTES PRIVATE NUISANCE.

A dwelling-house placed by the owner upon his residence lots for legitimate and profitable improvement of the same and for a lawful purpose is not subject to abatement as a private nuisance merely because it detracts from the desirability of adjoining dwellings and obstructs the view of their occupants, even though its exact location upon such lots may have been chosen through spite.

APPEAL from the District Court of the Fifth Judicial District, for Bannock County. Hon. O. R. Baum, Judge. Action to enjoin maintenance of private nuisance. Judgment for plaintiff. Reversed.

Walter H. Anderson, for Appellant.

A private dwelling-house cannot be a nuisance. (Quintini v Board of Aldermen, 64 Miss. 483, 60 Am. Rep. 62, 1 So 625.)

A building that is merely unsightly and located in a residence district is not a nuisance. (Annotation in 107 Am. St. 232.)

An owner may erect structures on his own premises anywhere he likes for useful purposes, though done maliciously. (Kuzniak v. Kozminski, 107 Mich. 444, 61 Am. St 344, 65 N.W. 275; Letts v. Kessler, 54 Ohio St. 73 42 N.E. 765, 40 L. R. A. 177; Pickard v. Collins, 23 Barb. 444; Dawson v. Kemper, 32 O. L. J. 15; Jenkins v. Fowler, 24 Pa. 308.)

A man may erect on his own property structures even though he acts maliciously, and if it is otherwise not a nuisance the state of mind cannot make it so. (Phelps v. Nowlen, 72 N.Y. 39, 28 Am. Rep. 93; Anthony Wilkinson Livestock Co. v. McIlquam, 14 Wyo. 209, 83 P. 364, 3 L. R. A., N. S., 733, Falloon v. Schilling, 29 Kan. 292, 44 Am. Rep. 642; Metger v. Hochrein, 107 Wis. 267, 81 Am. St. 841, 83 N.W. 308, 50 L. R. A. 305; Jones v. Williams, 56 Wash. 588, 106 P. 166; Bordeaux v. Greene, 22 Mont. 254, 74 Am. St. 600, 56 P. 218; 20 R. C. L. 430.)

Finis Bentley and H. B. Thompson, for Respondent.

"Anything which is injurious to health or morals, or is indecent, or offensive to the senses, or an obstruction to the free use of property so as to interfere with the comfortable enjoyment of life or property . . . . is a nuisance." (C. S., sec. 6420; Sweet v. Ballentyne, 8 Ida. 431, 69 P. 995; Cavanaugh v. Corbin Copper Co., 55 Mont. 173, 174 P. 184; Hunter v. Wood, 277 Pa. 150, 120 A. 781; Kobielski v. Belle Isle Creamery Co., 222 Mich. 656, 193 N.W. 214, 31 A. L. R. 183; Everett v. Paschall, 61 Wash. 47, 111 P. 879, Ann. Cas. 1912B, 1128, 61 Wash. 47, 111 P. 879, 31 L. R. A., N. S., 827; State v. Houghton, 144 Minn. 1, 174 N.W. 885.)

"While the doing of certain acts by a person in the use of his premises as a dwelling-house might not in themselves amount to a private nuisance, yet when the same acts are done wantonly and maliciously for the mere purpose of annoying his neighbor and to destroy the peace and quiet of his home, and they have such effect, they amount to a nuisance, which a court of equity will restrain." (Medford v. Levy, 31 W.Va. 649, 13 Am. St. 887, 8 S.E. 302, 2 L. R. A. 368; 11 R. C. L. 877; Hibbard v. Holliday, 58 Okl. 244, 158 P. 1158, L. R. A. 1916F, 903.)

BUDGE, J. William A. Lee, C. J., and Wm. E. Lee, Givens and Taylor, JJ., concur.

OPINION

BUDGE, J.

This is an action to abate a private nuisance. As the facts upon which the injunction is sought the complaint alleges that Sixth Avenue South, in Pocatello, is a street devoted exclusively to neatly kept residences, with the east front of all houses on the west side of the street located approximately 25 or 30 feet back from the sidewalk line; in block 266 respondent is the owner of Lots 1 and 2, the south half of Lot 5 and all of Lot 6, on the west side of the street, and had erected upon Lot 6 and the part of Lot 5 a six-room modern brick dwelling at a distance of 25 or 30 feet back from the sidewalk; prior to acts of the appellant which it is sought to enjoin, the said premises were attractive, inviting and desirable for residence purposes and free from obstructions to the view or of objects unsightly or offensive to the senses; 50 per cent of the value of the building lies in its location on an attractive residence street, its freedom from buildings obstructing the view to the north or south, or in any other direction, and offensive to the senses in that respect, or otherwise. Appellant is the owner of the north half of Lot 5 and the south half of Lot 4 in the same block, immediately to the north of the premises on which respondent's dwelling is located, and has caused to be moved from another location on to the premises owned by him an old, dilapidated frame dwelling-house approximately 26x30 feet. This house at the time the action was commenced had not yet been placed upon a foundation but was still jacked up or stilted on wooden blocks and metal jacks, but appellant proposes to, and unless restrained by order of the court, would locate it permanently upon the ground in such a position that the rear of the building would face Sixth Avenue South, within 11 feet of the sidewalk, and the front of the building would face the rear of the lot, and with its greatest dimension crosswise of the lot, instead of lengthwise, though the parcel of ground is 30 feet wide by 140 feet deep, and there are no trees, buildings or other structures within over 50 feet to the rear of the building as appellant proposed to locate it.

There are also allegations in the complaint to the effect that respondent made overtures to appellant to purchase the lots upon which the building above described has been placed and of appellant's refusal to reach an agreement with respondent to sell the same. Further allegations recite that due to certain business transactions appellant in placing the frame building on his premises was prompted to do so by reason of malice and ill will, for the sole purpose of injuring the respondent in the lawful use of his property, and that the location of said building by appellant upon the lots above described was done with the intent and for the purpose that the same should be offensive to the senses of anyone purchasing or occupying respondent's building on the adjoining lot, and be an obstruction to the comfortable and free use and enjoyment of the same. The location by the appellant of his building on said lot would in fact be without any benefit or advantage to appellant, and would greatly reduce both the rental value and the sale value of respondent's building. The complaint further alleges that the respondent has no plain, speedy or adequate remedy at law, and concludes with a prayer that an injunction issue enjoining and restraining the appellant from locating or continuing to maintain said building on said lot, and, pending the final determination and decision of said cause, that the defendant be restrained and enjoined from further proceeding with the permanent location and construction of his building.

An injunction was issued by the trial court, a motion thereafter filed seeking its dissolution, which was denied. To the complaint a demurrer was filed which was overruled. Appellant thereafter answered admitting ownership of the respondent in the lots as alleged in the complaint, and ownership in himself of the lots upon which he also admits the frame building is located, and that he placed the same thereon as alleged in the complaint, but denies that he did so by reason of ill will toward the respondent or for the purpose of revenge, or at a sacrifice of his own best interests, or that the respondent would be damaged or injured thereby.

The cause was tried to the court, judgment was had in favor of the respondent, perpetually enjoining the appellant, his agents, servants and attorneys and employees, and all persons succeeding to appellant's rights in the premises, from proceeding with the erection or maintenance of the house or building on the lot heretofore referred to, except in such position that it will be at the same distance back from the street...