Healey v. Spaulding

Emery, C. J.

The plaintiff and defendant owned and occupied dwellings on small adjoining lots in a city. The defendant built on his lot, but close to the plaintiff’s lot and within a foot of her house, a tight board fence extending from the street some thirty-five feet back. For a few feet next the street the fence was about six feet high, but for the rest of the distance it was some twelve feet high and up nearly even with the tops of the plaintiff’s lower story windows. It practically shuts in her back porch, materially darkens her lower story rooms on that side, and shuts off her view along the street in that direction. She claims that the fence was unnecessary and was built maliciously for the purpose of annoying her, against the provisions of the statute, R. S., ch. 22, sec. 6.

The defendant denies that the fence was built maliciously for the purpose of annoying the plaintiff, and claims it was built to protect himself and family from persistent insulting and annoying language and conduct on the part of the plaintiff and her family. Whether that was the real dominant motive for building the fence was the question, .as the defendant admits such a fence was not necessary for any other purpose.

The jury found for the defendant, but we think enough appears from the defendant’s own testimony to make it clear that the jury erred, either in their understanding of the law or of the force of the testimony. It was not necessary for the plaintiff to prove that malice, the purpose to annoy, was the sole motive for building the fence. It was only necessary to prove that such was the dominant motive. Grantin'g, as claimed, that the plaintiff and her daughters annoyed the defendant and his family by using opprobrious epithets, by mocking pantomime, and by shaking dirty rugs so that the dust would blow over on the defendant’s line of washed clothes, (and the annoyance does not appear to have been anything more) the tenor of the defendant’s testimony shows that he was not a patient sufferer acting only on the defensive. He was in his turn an aggressor and an exasperating aggressor. His aggressions appear to have been the beginning of the troubles. His testimony showed much animosity against the plaintiff and a disposition to ignore her rights. All this, and the extraordinary and unnecessary height of the fence (twelve feet) causing such serious injury to the plaintiff and her property, satisfy us, notwithstanding the verdict of the jury, that the fence was built to that extreme height more for retaliation, for punishment, than for defense. We fear the jury did not have in mind the distinction between retaliation and defense. The lay mind is too apt to regard retaliation as justifiable, but the law never does. In a well ordered state, no one is allowed to retaliate for any injury. He must resort to legal remedies which are ample. The defendant had complete protection from the plaintiff’s annoying conduct in the statute, Public Laws 1905, ch. 167, or by a ¡nuch lower fence.

Motion sustained.

Verdict set aside.