
    Letts v. Kessler.
    
      Property rights — Slmiting off light and air from neighbor’s window — Motives of malice — Action to compel removal of fence— Law and eqtuty.
    
    L. and K. owned adjoining lots, and L. erected on his lot a board fence reaching to the roof of K’s house which stood on the line of the two lots, which fence shut off light and air from the windows of the house of K. to its injury, which fence was so erected by L. for no useful or ornamental purpose, but from motives of unmixed malice toward K. In an action by K. against L. to compel the removal of the fence, Held: That L. had a legal right to erect and maintain such fence, and that neither law nor equity could compel its removal.
    [Decided January 21, 1896.]
    ■ Error to the Circuit Court of Cuyahoga county.
    The plaintiff below, defendant in error here, filed her petition in the court of common pleas against defendant below, plaintiff in error here, averringthat she was the owner by purchase under a land contract of certain premises in the city of Cleveland, that defendant owned and occupied the lot on the east side thereof, that she used her premises as a hotel and boarding house, that he was erecting a high board fence on his ground which would obstruct her windows and deprive her of light and air, that said fence was not being erected for any useful or ornamental purpose, but from motives of pure malice alone, and for the express malicious purpose of annoying plaintiff, and excluding light and air from her house so as to render her house uninhabitable, to injure the value thereof, and that said fence would exclude the light and air.and thereby greatly injure the value of her house. She prayed that he might be restrained from completing said fence, and that upon the final hearing a mandatory injunction might compel its removal.
    Defendant below demurred to this petition, and the demurrer was overruled and exceptions taken. The ruling upon this demurrer is reported in 7 Circuit Court Rep., 108.
    He then filed an answer in substance a general denial, with an averment that the fence was erected • to prevent the rush of water and eve drip from her premises onto his. This she denied in her reply. The case went to the circuit court on appeal, and that court overruled the demurrer, and on the trial made a finding- of facts containing- in substance the allegations of the petition. The following is the finding- of facts and the judgment:
    “This cause came on to be heard upon the petition of the plaintiff, the answer of defendant, the reply of the plaintiff thereto, and the testimony, and the court being requested by the defendant to make a finding of facts in the case find the conclusions of fact as follows: That the plaintiff owns and occupies premises, situated on Lake street, in the city of Cleveland, known as “The Osborn,” and said plaintiff owned and occupied said premises at the time of the erection of the structure hereinafter described. Said premises were used by plaintiff as a boarding house. Defendant owns and occupies premises adjoining-plaintiff on the east. Between the two houses is a driveway and open space about twenty feet wide. Plaintiff and defendant had litigation in May, 1891, on account of defendant’s having attached a shed roof to her building without consent of said plaintiff. About two weeks after the trial of said lawsuit, the defendant took down said shed roof, and built up against the house of said plaintiff a tight board fence. The said fence was eighty-six feet long. The scantlings were placed against the wall of said plaintiff’s house and reached up under the eves of the same. Boards were, nailed onto the said scant-lings, beginning about two feet from the ground and extending to the sills of the second story windows. Defendant nailed onto the rear portion of said fence and extending about forty feet toward the front, a shed roof. Under this shed roof defendant had lumber piled. Said board fence completely covered up the bath room, kitchen, bed room and library windows, rendering said portion of the house dark, damp and uninhabitable, and causing substantial damage to the same. Said structure was erected upon the land of the defendant and belonged to him. The structure was erected by said defendant from motives of unmixed malice toward said plaintiff and for no useful or ornamental purposes of the property of said defendant, except said shed roof and its back wall below the shed roof, which may subserve some useful purpose of defendant, in the use of his property by protecting his lumber pile thereunder. The court, upon the foregoing facts, finds and decrees that said defendant be and is hereby enjoined from proceeding further with the erection of said fence. Adjudged and decreed that said defendant, within twenty days from the entering of this decree, take down all of said fence and scantling projecting above the roof of said shed, and all the remainder of said fence outside of and beyond said shed, and it is considered that the plaintiff recover her costs expended in the case, taxed at $-, and that the defendant pay his own costs, for which it is ordered that execution issue;, to all of which the defendant excepts.”
    
      A motion for a new trial was made, overruled and exceptions taken. Thereupon a petition in error was filed in this court to reverse the judgment of the circuit court.
    
      L. A. Willson and Edward David, for plaintiff in error. e
    ■ When we let down the bars and begin to inquire into men’s motives, we enter upon dangerous ground. The law is that the motive makes no difference. Frazier v. Brown, 12 Ohio St., 294. The act, to-wit, the use of his own property being lawful in itself, the motive with which the act was done is amatterof indifference. Mullen v. Stricker, 19 Ohio St., 134.
    An easement of light and air, to be supplied to one’s windows from the premises of another, cannot be acquired in Ohio, by use or prescription. Washburn on Easements, 2 ed. top p. 458 — star p. 380, chapter on rights in subterranean waters.
    We claim the fence in the ease at bar is not a nuisance. Falloon v. Schilling, 29 Kans., 289.
    If the improvement itself is legitimate and lawful, is not per se a nuisance, the law will not inquire into the motives with which he acts. It is true the law will interfere to prevent the erection of a nuisance such as a stable, outbuildings, etc., but not to prevent the erection of a store, tenement, or anything of that nature, even where the building may or may not become a nuisance, according to the manner in which it is used, the erection of the building will not be restrained. High, on Injunctions, section 438.
    We find no case in which a party seeking to place an improvement upon his own land, an improvement which will increase his income, which improvement is not a nuisance;, which, does not endanger the physical health or comfort of his neighbor, or disagreeable to such neighbor, that it does not correspond in character and kind with the improvement on such neighbor’s premises, that it will bring a different class of people socially into immediate proximity to his neighbor, and that all this was done or intended through spite against such neighbor. Mahan v. Brownis, 13 Wend., 261; Greenleaf v. Francis, 18 Pick., 123.
    It was a lawful act, and although it may have been prejudicial to the- plaintiff, it is damnum obseque injuria. Chatfield v. Wilson, 28 Vt., 49; Quintini v. Alderman, 60 Am. Rep., 62 Miss., 483.
    A private dwelling may not be declared a nuisance by authority of the legislature, simply because it may injure adjoining property by cutting off the breeze from, and view of the sea. Radcliff v. Mayor, etc., of Brooklyn, 52 Am. Dec., 359.
    But a man may do many things under lawful fj' authority, or in his own land, which may result in f an injury to the property of others, without being ¡¡ answerable for the consequences. Indeed, an act ; done under lawful authority, if done in a proper ‘ manner can never subject the party to an action, •whatever consequences may [follow. Nor will a man be answerable for the consequences of enjoying his own property in the way such property is usually enjoyed, unless an injury has resulted to another from the want of proper care or skill on his part. • The maxim: . “So use your own as not to injure another’s property,” extends only to legal .injuries, and does not condemn the darken-; ing of another’s windows, or depriving him of a,: prospect, by building on one’s own land, where no right has .been acquired by grant or prescription. 
      Packard v. Collins, 23 Barb., 458; Piere v. Fernald, 46 Am. Dec., 573; Humphrey v. Douglass, 11 Vt., 22.
    Motive with which a lawful act is done, can never alter the character of such an act. The plaintiff’s testimony tended to prove that the defendant acted with improper motives. This can never alter the character of a lawful act. Whatever a man had a legal right to do, he may do with impunity, regardless of his improper motives. Pitts. Ft. W. & C. R. R. Co. v. Bingham, Admx., 29 Ohio St., 369.
    Where no right has been invaded, although one has been injured, no liability has been incurred, any other rule would be manifestly wrong. Mullen v. Stricker, 19 Ohio St., 135; Frazier v. Brown, 12 Ohio St., 311.
    
      C. J. Estep and 8. 8. Ford, for defendant in error.
    We do not insist that when a person is putting his property to some useful or ornamental purpose, however small, that we can inquire into his motives. The doctrine we desire to see established as the law of Ohio, is that a person cannot under cover of ownership of a piece of real estate, use that real estate for the purpose of erecting structures thereon, which subserve no useful nor ornamental purpose, and are erected through motives of unmixed malice towards his adjoining neighbor.
    It is true that plaintiff in error can find cases that hold that an act legal in itself, violating no legal right, cannot be made actionable even though it be prompted by malice and is prejudicial to his neighbor. But many courts have held that if one does an act, wholly on his own land, legal but prejudicial to his neighbor, not for his own ornament, but through unmixed malice to his neighbor, then he has done an injury which is actionable. 74 Me., 164; 7 House of Lords, 387; 18 Pick., 117; 25 Penn., 548; 20 Conn., 533; 29 Pa. St., 559.
    We also do not contend that in Ohio we can acquire by use or prescription, an easement in light and air to be supplied to one’s windows from the premises of another. A person in the proper use of his own premises, for use, ornament or other good purpose, may erect buildings or structures, up to his line, doing no unnecessary damage to his neighbor, even if it closes up his neighbor’s windows or darkens them. The doctrine we contend for is not inconsistent with the law as we concede it to be, when we assert that a man cannot, being actuated by malice alone, and with the purpose of annoying his neighbor, and rendering his property undesirable, and subserving no useful or ornamental purpose, erect a structure to close up his windows. Peck v. Bowman, 22 Law Bulletin, 111.
    The most instructive case on the subject under discussion,' and the one which sustains our position in every particular, is the case of Burke v. Smith, 25 Mich., 595. In that case the civil law recognizes the moral law, and does not permit the owner of land to do an act upon his own premises for the express purpose of injuring his neighbor when the act brings no profit or advantage to himself. The law furnished redress because the injury is malicious and unjustifiable. The moral law imposes upon every man the duty of doing unto others as he would that they should do unto him; and the common law ought to, and in our opinion does, require him to so use his own privileges and property as not to injure the rights of others maliciously and without necessity.
   Burket, J.

The only question in this case arises upon the following findings of fact by the circuit court:

“Said structure was erected upon the land of the defendant and belong-ed to him. The structure was erected by said defendant from motives of unmixed malice toward said plaintiff, and for no useful, or ornamental purposes of the property of said defendant.”

It is not claimed that the person' of the plaintiff was interfered with in this ease, so that we have for consideration only the rights of property.

The fence complained of is upon the land of the defendant and belongs to him. Plaintiff fails to aver, and the court fails to find, that she has any right to, or upon, the lot of defendant below by contract, statute, or any other way known to the law for acquiring a right to, in, or upon lands, unless such right may be acquired by, and transferred to her, by means of the aforesaid “motives of unmixed malice.” This is a manner of acquiring on the one hand, and of transferring on the other, a right to property unknown to the law. .

But it is urged in her behalf,, that even if she had no right of property, and even if he was the owner of the lot, that he could not use his own land for the purpose of erecting structures thereon which sub-serve no useful or ornamental purpose, and are erected through motives of unmixed malice towards his adjoining neighbor.

It is and must be conceded that he might, by erecting a building on his lot, shut off her light and air to exactly the same extent as is done by this fence, and that in such case she would be without right and without remedy, even though done with the same feelings of malice as induced him to erect the fence; thus making his acts lawful when the malice is seasoned with profit, or some show of profit to himself, and unlawful when his malice is unmixed with profit, the injury or inconvenience to her, meanwhile, remaining- the same in both cases. If through feelings of malice he desires to shut the light and air from her windows, it is nothing to her whether he makes a profit or loss thereby. Her injury is no greater and no less in the one case than in the other. As to her it is the effect of the act, and not the motive.

In effect he has the right to shut off the light and air from her windows by a building on his own premises; and she is not in effect concerned in'the means by which such effect is produced, whether by a building or other structure; nor is she concerned as to the motive, nor as to whether he makes or loses by the operation. In the one ease she might have a strong suspicion of' his malice, while in the other such suspicion would be ripened into a certainty. But this is nothing to hér as affecting- a property right. ■ As long as he keeps on his own property, and causes an effect on her property which he has a right to cause, she has no legal right to complain as to the manner in which the effect is produced, and to permit her to do so, would not be enforcing a right of property, but a rule of morals. It would be controlling and directing his moral conduct by a suit in équity, by an injunction.

To permit a man to cause a certain injurious effect upon the premises of his neighbor by the erection of a structure on his own premises if such-structure is beneficial or ornamental, and to prohibit him from causing the same effect in case the structure is neither beneficial nor ornamental, but erected from motives of pure malice, is not p rotecting a legal right, but is controlling his. mo ral conduct. In this state a man is free to direct his moral conduct as he pleases, in so far as he is not restrained by statute.

But it is said that such acts are offensive to the principles of equity. Not so. There is no conflict between law and equity in our practice, and what a man may lawfully do cannot be prohibited as inequitable. It may be immoral, and shock our notions of fairness, but what the law permits, equity tolerates. It would be much more inequitable and intolerable to allow a man’s neighbors to question his motives every time that he should undertake to erect a structure upon his own premises, and drag him before a court of equity to ascertain whether he is about to erect the structure for ornament or profit., or through motives of unmixed malice.

The ease is not like annoying a neighbor by means of causing smoke, gas, noisome smells, or noises to enter his premises, thereby causing’ injury. In such cases something is produced on one’s own premises and conveyed to the premises of another; but in this case nothing is sent, but the air and light are withheld. A man may be compelled to keep his gas, smoke, odors and noise at home, but he cannot be compelled to send his light and air abroad. Mullen v. Stricker, 19 Ohio St., 135.

If smoke, gas, offensive odors, or noise pass from one’s own premises to or upon the premises of another to his injury, an action will lie therefor, even .though the smoke, gas, odor or noise should be caused by the lawful business operations of defendant and with the best of motives. Broom’s Legal Maxims, 372.

In such cases it is the effect or injury, and not the motive, that is regarded. The true test is, whether anything recognized by law as injurious, passes from the premises of one neighbor to that of another. Anything so passing invades the legal rights of him whose premises it reaches, and such rights will be protected. But courts cannot regulate or control the moral conduct of a man, unless authorized so to do by statute.

The following eases, cited by plaintiff in error, bear more or less upon the question involved in this case, and.seem to produce a decided weight of authority in his favor: Frazier v. Brown, 12 Ohio St., 294; Falloon v. Schilling, 29 Kan., 292; Mahan v. Brown, 13 Wendall, 261; Greenleaf v. Francis, 18 Pick., 123; Chatfield v. Wilson, 28 Vt., 49.

The following additional authorities are to the same effect:

Gould on Waters, section 280, citing: Chasmore v. Richards, 7 H. L. Cas., 349; Dickinson v. G. F. Canal Co., 7 Exch., 282; Acton v. Blundell, 12 M. & W., 324; Hammond v. Hall, 10, Sim., 552; Cooper v. Barber, 3 Taunt., 99; Balston v. Bensted, 1 Camp., 463; Galgay v. G. S. R'y Co., 4 Ir. C. L., 456; Chase v. Silverstone, 62 Me., 175; Roath v. Driscoll, 20 Conn., 533; Brown v. Illius, 27 Conn., 84; O. G. C. M. Ass'n v. A. P. Com'rs, 40 N. J. Eq., 447; Taylor v. Fickas, 64 Ind., 167; Delhi v. Youmans, 45 N. Y., 362; Dexter v. Providence Aq. Co., 1 Story, 387; Wheatly v. Baugh, 25 Pa. St., 528; 64 Amer. Dec., 721, note; Hough’s App., 102 Pa. St., 442; 48 Amer. Rep., 193, note; Haldeman v. Bruckhart, 45 Pa. St., 514; Coleman v. Chadwick, 80 Pa. St., 81; Trout v. McDonald, 83 Pa. St., 144; Lybe's App., 106 Pa. St., 626; Smith v. Adams, 6 Paige, 435; Elster v. Springfield, 49 Ohio St., 82; Ellis v. Duncan, 29 N. Y., 466; Radcliff v. Brooklyn, 4 N. Y., 195, 200; Pixley v. Clark, 35 N. Y., 520; Goodale v. Tuttle, 29 N. Y., 466; Bliss v. Greeley, 45 N. Y., 671; Clark v. Conroe, 38 Vt., 469; Taylor v. Welch, 6 Ore., 198; Mosier v. Caldwell, 7 Nev., 363; N. A. R'y Co. v. Peterson, 14 Ind., 112; Bassett v. S. Mfg. Co., 43 N. H., 573; 30 Cent. L. Jour,, 269; 23 Amer. L, Rev., 376; Davis v. Afong, 5 Haw., 216.

The defendant in error cites the cases reviewed in Frazier v. Brown, 12 Ohio St., 294, and also the case of Burke v. Smith, 69 Mich., 380. Most of the eases cited are cases arising out of interference with wells, springs and percolating waters; such cases bear but slightly upon the question. ^ The Michigan ease is substantially like the case under consideration. In that case the lower court enjoined the defendant, and that judgment was affirmed by an equally divided court. The syllabus says that the court being equally divided, nothing is decided. As nothing was decided, the ease is not an authority on either side of the question.

But it is strongly urged by counsel for defendant in error, that the maxim, ‘ ‘Enjoy your own propperty in such a manner as not to injure that of another person, ” applies in such eases ás this, and that as it must be conceded that the fence in question is an injury to the property of defendant in error, that his acts are in conflict with the above maxim.

At first blush this would seem to be so, but a careful consideration shows the contrary. The maxim is a very old one, and states the law too broadly. In this case, for instance, it is conceded that the plaintiff in error had the right to enjoy his property by erecting a house so as to do the same injury which was done by the fence, and that while that • would be an injury to the property ox defendant in error, she would be without remedy, and Ms act in erecting such house would not be regarded as violating the maxim.

In Jeffries v. Williams, 5 Exch., 797, it was claimed, and in Railroad Company v. Bingham, 29 Ohio St., 369, it was held, that the true and legal meaning of the maxim is, “So use your own property as not to injure the rights of another.” Boynton, J., in that case says: “Where no right has been invaded, although one may have injured another, no liability has been incurred. Any other rule would be manifestly wrong. ’ ’ The maxim should be limited to causing injury to the rights of another, rather than to property of another, because for an injury to the rights of another there is always a remedy, but there may be injuries to the property of another for which there is no remedy, as in draining a spring or well, or cutting off light and air or a pleasant view by the erection of buildings, and many other cases which might be cited.

Thus limiting the maxim to the rights of the defendant in error, it is plain that the acts of plaintiff in error in the use which he 'made of his property did hot injure any legal right of hers, and that therefore what he did, was not in violation of such maxim.

The circuit court erred in overruling the demurrer to the petition, and in rendering judgment in favor of defendant in error upon the facts as found by the court. The judgment of the circuit court is therefore reversed, and proceedings to render such judgment as the circuit court should have rendered upon the facts found, the petition of plaintiff below is dismissed at her cost.

Judgment reversed. ■  