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Malicious Intent

A fence erected without the motive of spite or malice does not constitute a nuisance, if the owner erected it in the exercise of a lawful right to improve and benefit his or her own property.  The owner is not compelled to consult the “aesthetic taste” of their neighbors as to the kind of a fence they should build or whether the smooth or the rough side thereof faced in or out, or as to the color of the paint they should use thereon.  The law only takes cognizance of sensible and substantial discomforts and inconvenience. [i] Thus, a neighbor’s temporary placement of a chain-link dog kennel near the adjoining property line was not a malicious erection of a structure, where the location was apparently the flattest area providing easier access for one neighbor who recently had shoulder surgery.

[i] Bixby v. Cravens, 57 Okla. 119, 126-127 (Okla. 1916)

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