Welsh v. Todd

133 S.E.2d 171 (1963) 260 N.C. 527

Landis H. WELSH and wife, Margaret W. Welsh,
v.
Leon M. TODD and wife, Mittie J. Todd.

No. 176.

Supreme Court of North Carolina.

November 20, 1963.

J. C. Wessell, Jr., and Carr & Swails, Wilmington, for plaintiff appellants.

William K. Rhodes, Jr., Wilmington, for defendant appellees.

SHARP, Justice.

Since the decision in Barger v. Barringer, 151 N.C. 433, 66 S.E. 439, 25 L.R.A.,N.S., 831, it has been established law in this State that a spite fence is a private nuisance. A spite fence is one which is of no beneficial use to the owner and which is erected and maintained solely for the purpose of annoying a neighbor. It may be abated, subject to the same equitable principles which govern injunctive relief generally, and damages recovered if any have been sustained. Burris v. Creech, 220 N.C. 302, 17 S.E.2d 123; 22 Am.Jur., Fences, §§ 43, 46; Anno., Spite Fences, 133 A.L.R. 691, 720.

Plaintiffs' evidence, viewed in the light most favorable to them, permits the inference that the fence, constructed to a height of seven and a half feet along the property line, serves no useful purpose and that defendants erected it solely to satisfy a vengeful and malicious motive to injure plaintiffs. Therefore, the motion for nonsuit was improvidently granted. Whether the fence does in fact serve any purpose beneficial to the defendants in the legitimate use and enjoyment of their property or whether defendants erected it in good faith reasonably believing that it would perform a useful function are questions for the jury.

Courts have denied equitable relief where the walls and fences complained of screened a defendant's premises from objectionable noises, odors, and unseemly conduct on the plaintiff's property. Stroup v. Rauschelbach, 217 Mo.App. 236, 261 S.W. 346; Daniel v. Birmingham Dental Mfg. Co., 207 Ala. 659, 93 So. 652; D'Inzillo v. Basile, 180 Misc. 237, 40 N.Y.S.2d 293.

On cross-examination, Mr. Welsh testified that he had erected a flood light on the rear of his house. However, the answer contains no allegation that defendants constructed the fence to shield their premises from such a light or from any objectional conduct whatever on the part of the plaintiffs. Defendants merely admit the erection of the fence and stand upon their rights as property owners to maintain it. A jury must determine whether this fence comes within the protection of those rights.

The judgment of nonsuit is

Reversed.