
    First Circuit—Hamilton Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Swing, Cox and Smith, JJ.
    DAWSON v. KEMPER.
    
      1. Right of owner over his property — Closing •windows in party wall — A man has the right to use his property for his own health and enjoyment, as he thinks best, provided he do not, by doing so, unlawfully injure his neighbor. The law does'not interfere so as to compel the doing of certain acts which good neighborhood would cheerfully accord.
    Appeal from the Court of Common Pleas of Hamilton county.
    ' The plaintiff and the defendant aré owners of adjoining property on Broadway, Cincinnati, separated by a party wall, in which there were vyindows of opaque glass. These windows were boarded up by the defendant, for the reason that he had been annoyed by persons in the house of the plaintiff looking through them into his rooms. The plaintiff charged that the boarding up of these windows was malicious, and petitioned for an injunction. The defendant, by answer and cross-petition, denied the char'ge of malice, and asked for $2,000 damages on account of the annoyance of having people peeping through these windows into his rooms, which were used by him' (a physician) as an office, where operations were performed.
   Swing, J.

From the evidence we find that the defendant, Kemper, did not do' the acts complained of in the petition from a spirit of malice, as therein charged; but on the contrary,we-find that he was perfectly justified in taking whatever course-was necessary in order that the privacy of his own dwelling-might be secured so far as this was interfered with by persons improperly using the space in defendant’s wall for the-purpose of looking into defendant’s premises. It was not shown that the acts complained of were done by plaintiffs-with their knowledge or consent. The act complained of was on the defendant’s own property, and he had the right to use his property for his own health and enjoyment in such way as he thought best, provided he did not by doing so unlawfully injure his neighbor. The plaintiff had no right to keep these spaces open in the wall any more than he had the right to make other and new spaces in the wall, as against the right of the defendant to close them whenever it became proper and necessary to the enjoyment of his property he should conclude to do so. For instance, it is admitted that’ he might close them by building against the wall. So, we think, when it was found that these spaces in his own wall were being used to his injury, he had a right to close them. Not that he had a right to injure his neighbor, but he had a. right to protect himself; and having conceded him the righp to effectually protect himself, even to the extent of closing the windows, we are unable to see how in law we are able to say to him that hejshould put in opaque glass instead of boards or brick. The glass hitherto put in had proven inadequate. Was heJUound to try it again? We think not. Good neighborship, we think, would be content with the opaque glass; but the law does not go quite so far as to compel the doing of certain acts, which good neighborship cheerfully accords.

J. M. Dawson, for plaintiff.

Gholson & Cabell, contra.

The petitionr,and the answer and cross-petition of the defendant will be dismissed.  