Malicious erection of a structure means the erection of a fence or wall or other structure by the owner of the land on his own property with an intention to annoy and injure the owner of adjacent land.  The adjacent land owner can seek injunction and damages for such injury and also seek removal of such structures from the owner’s property.  In order to prove a malicious intent, the following factors need to be proved:

• The structure must be erected on the owner’s land;
• The erection of the structure must be with an intention to injure the enjoyment of the adjacent landowner’s land;
• an impairment of the value of adjacent land occurs because of the structure;
• the owner does not have any particular gain by erecting the structure or the  structure is useless to the owner;
• Such erection prejudices the enjoyment of the adjacent landowner’s land.

“The question whether a structure was maliciously erected is to be determined rather by its character, location, and use than by an inquiry into the actual motive in the mind of the person erecting it.”[i]

The intent to injure must be discovered mainly from the fact that the structure does impair the value of adjacent land and injure the owner in its use, coupled with the absence of the reasonable possibility of any real advantage, whether in the form of any profit, protection, or pleasure, in the use of the land.  A malicious intention can be inferred from the character, location and surroundings of the structure itself.  For instance, in Rapuano, 21 Conn. Supp. 110, plaintiff neighbors brought an action against defendant fence owners to remove a fence alleged to have been erected on the fence owners’ land maliciously and with intent to annoy and injure the neighbors in the use and disposition of their land.  The court found that the portion of the disputed  fence had been erected three feet east of the common boundary line of the parties on the fence owners’ own land, that the smooth or finished part faced the neighbor’ property and had been painted an unobtrusive brown color.  The court found that on such facts, it was obvious that there was no deliberate malicious intention to injure the neighbors’ enjoyment of their property.  Also, there was no evidence of any ill will or hard feelings between the parties.  The court held that malice and intent to injure had to have been found, from the very nature of the structure and its physical relationship to the neighbors’ enjoyment of their property.  However, the court granted plaintiff’s prayer for injunction with respect only to that portion of the fence owners’ westerly fence rising to a height of more than six feet four inches above ground level and enjoined the fence owner from a fence in such location higher than designated.[ii]

Courts find malice and grant remedy to the adjacent landowners if the structure in question is erected in knowing disregard of the law and the rights of others.

[i] Rapuano v. Ames, 21 Conn. Supp. 110, 115 (Conn. Super. Ct. 1958).

[ii] Id. At 116.