When a fence is erected maliciously, and with no other purpose than to shut out the light and air from a neighbor's window, it is a nuisance.
Plaintiff began construction of a house, and after his foundation was laid, defendant built a fence on his side of the lot line. Plaintiff filed action to have the fence removed. He claimed that the fence was built maliciously and to darken his rooms. The trial court ordered defendant to remove the fence, and defendant sought review. The court affirmed.
Was the fence built by defendant attended by malice therefore making it a nuisance?
The court found that when a fence was erected maliciously, and with no other purpose than to shut out the light and air from a neighbor's window, it was a nuisance. Because defendant's wife testified that she ordered the fence in retaliation for plaintiff's home construction, it was clear from the record that the fence was built maliciously. Therefore, it was a nuisance and subject to removal.