There are situations where the owner voluntarily removes the spite obstructions which, the owner had maliciously erected to annoy or injure the adjacent landowner.  This may occur during the pendency of an action to remove such obstructions.  Courts have held that even where the defendant had abated or removed spite obstructions voluntarily after the action was brought, a permanent injunction may still be granted against any such obstruction. [i]

Courts base the reasoning on the maxim, “so use your own as not to injure another’s property.”  As such, courts look into the motive and purpose behind the actions of the owner who erects a controversial structure.  If the structure is erected solely for the purpose of annoying the adjoining landowner, law perceives it as a nuisance.  “A fence erected maliciously, and with no other purpose than to shut out the light and air from a neighbor’s window, is a nuisance.”[ii] Law states that no one should have the legal right to make a malicious use of his property for no benefit to himself, but merely to injure his neighbor.  “To hold otherwise makes the law an engine of oppression with which to destroy the peace and comfort of a neighbor, as well as to damage his property for no useful purpose, but solely to gratify a wicked and debasing passion.”[iii]

Therefore, even if the defendant removes the obstruction, the court’s discretion to grant an injunction in favor of the plaintiff depends on the good faith of the defendant.  For instance, in Dunbar, 117 Neb. 245, the homeowner contended that she was entitled to an injunction to prevent the neighbor from maliciously shutting off light and air from her basement.  The court examined the evidence and found that there was nothing in the evidence to prove justification for the creation or maintenance of the obstruction in front of plaintiff’s windows.  The court found that defendant’s action was in bad faith and was prompted by malice in the first instance, and there was nothing in the defendant’s pleadings or proof to show that he will not repeat his annoyance, had the litigation ended without any restraint upon his subsequent conduct.  Thus, the question whether an injunction against a malicious nuisance should be denied on the ground that the wrongdoer abated it after s/he had been sued depends on the person’s good faith and the attending circumstances.

[i] Dunbar v. O’Brien, 117 Neb. 245, 249 (Neb. 1928)

[ii] Flaherty v. Moran, 81 Mich. 52 (Mich. 1890).

[iii] Barger v. Barringer, 151 N.C. 433 (N.C. 1909)