
    Frank P. Kirkwood v. Mary E. Finegan.
    
      Nuisance — Erection of fence — Malice—Abatement.
    This case is ruled by Flaherty v. Moran, 81 Mich. 52, the erection of the fence sought to be enjoined being the outcome of a quarrel between neighbors, and its character and style ind'cating the motive which prompted its construction.
    
    
      Appeal from Kent. (Grove, J.)
    Argued April 27, 1893.
    Decided May 31, 1893.
    Bill to enjoin the erection and maintenance of a fence. Defendant appeals.
    Decree affirmed.
    The facts are suf» ficiently stated in the opinion and in the foot-note.
    
      Dunham & Preston, for complainant.
    
      Thompson, Temple & McCormick, for defendant, contended:
    1. This case is devoid of all of the elements of malice found in Burke v. Smith, 69 Mich. 380, and Flaherty v. Moran, 81 Id. 52, the only facts or circumstances warranting the conclusion of its existence being the building of the fence at a height of 6 feet and 4 inches on complainant’s side, and of 4 feet and 4 inches on defendant’s side, and at a distance of 9 feet and 6 inches from complainant’s house.
    3. The only question in the case is, has a man a right to build a fence of lawful height on the dividing line, if his neighbor’s land happens to be lower than his, as in this case? — whether the level of his land or that of the adjoining land should govern as to the height of the fence.
    
      
       The premises are situated on a residence street. The posts used in constructing the fence were discarded street-railway ties, containing large spike holes, and were set about 7 feet apart', with stringers at the top and bottom, to which old boards were nailed on the side next to defendant’s lot. Complainant’s premises are about 2 feet lower than defendant’s, which had been filled in and terraced on the front.
    
   McGrath, J.

This is a bill to enjoin the erection and maintenance of a fence between premises occupied by the parties.

We think the case is ruled by Flaherty v. Moran, 81 Mich. 52. It is clear that the fence is the outcome of a quarrel between neighbors. Its character and style indicate the motive which prompted its construction, and the decree below must be affirmed, with costs.

The other Justices concurred.  