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Pleading and Proof

A “spite fence” is a fence erected for no benefit or pleasure to the person erecting it, but solely with the malicious motive of injuring the adjoining owner by shutting off his light, air, and view.[i] In a proceeding for abatement of a spite fence, a plaintiff has to prove the following factors to restrain the defendant: (1) the defendant intends to and will, unless restrained, maliciously build a fence; (2) the fence is of no benefit to the defendant; (3) defendant build the fence solely for the purpose of annoying and injuring the plaintiff by shutting out the light, air, and view from defendant’s building.

Law stipulates that the right to the use of property is a qualified rather than absolute right and the malicious use of property resulting in injury to another is unlawful.  “Property in land must be considered, for many purposes, not as an absolute, unrestricted dominion, but as an aggregation of qualified privileges, the limits of which are prescribed by the equality of rights, and the correlation of rights and obligations necessary for the highest enjoyment of land by the entire community of proprietors.”[ii]

No statute or rule of law confers a right to individuals to maliciously injure another’s property.[iii] The air and light, regardless of the direction they come from are God-given, and are essential to the life, comfort, and happiness of every one.  Rules of law permit a justifiable intervention to a limited extent in order to secure benefits to others.  But, law prohibits any departure from this limitation upon such interference on the right to light and air done solely from malice, and will authorize a court to grant relief.[iv]

In addition, in a proceeding for the abatement of a spite fence, the evidence should be clear and convincing before the plaintiff will be accorded relief.[v] Therefore, an owner may build upon his/her property any fence for his/her benefit or pleasure or any good reason notwithstanding owner causes an injury to adjoining landowner, but if owner builds a fence without any benefit or pleasure to himself/herself, but solely with malicious motive of injuring adjoining landowner by shutting out his light, air, or view, the owner thereby violates the rights of the adjoining landowner and may be enjoined from doing so.

In an action to secure the demolition of a spite fence as a nuisance, the complainant should allege that the structure complained of is entirely useless to the respondent and without value to his/her property, and also that it was maliciously erected for the purpose of injuring the complainant in the use and enjoyment of his/her property. [vi]

[i] Racich v. Mastrovich, 65 S.D. 321 (S.D. 1937)

[ii] Burke v. Smith, 69 Mich. 380 (Mich. 1888)

[iii] Hornsby v. Smith, 191 Ga. 491, 499 (Ga. 1941)

[iv] Id. at 500.

[v] Id.

[vi] Norton v. Randolph, 176 Ala. 381 (Ala. 1912)


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