Jenkins v. McCabe ( 1928 )

TANNER, P. J.

This 'is a bill in equity brought to enjoin the maintenance of a so-called spite fence.

It is alleged that the fence is greater than the height permitted by statute and is erected at or near the division line between the land of the complainant and the land of the respondent; that said fence was erected by the respondent for the purpose of annoying the complainant and interfering with the use and enjoyment of her property. At the close of the evidence produced by the complainant, the respondent moved that the bill be dismissed because the statute created a new right and the remedy therefor was exclusive, the remedy being an action at law.

We think the motion is well grounded. The great weight of authority in this country is to the effect that no easement of light and air is created except by a grant or by prescription, neither of which is claimed in this case. The statute, therefore, does create a new right and the remedy in this state is restricted to an action at law. In some states, as in Connecticut, the statute permits an injunction through a bill in equity. Such, however, is not the case in this state.

We must, therefore, grant the motion to dismiss the bill.