Spite fences and Oliver Wendell Holmes

Allow me a walk down memory lane. When I was in law school (late 1970s into the early 1980s) I was fascinated by the issue of "spite fences" at common law.

The bottom line is that in general there is no common law principle that would give you a case against me for blocking out the sun, so long as I do so without any physical touching of your property. This is different from a situation in which a poorly maintained car on my property, or on the street, leaks oil onto your driveway. It is also different from a habit I might have of setting bonfires on my property, which would involve the movement of smoke and fumes into yours.

There are at least two possible reasons why I might build a fence in a way that leads to the death of your grass. Maybe it has nothing to do with you. I just built the tall fence because I wanted to keep my dog in my yard, and my dog happens to be a good jumper so I built a high one. Your grass, in any such case, is collateral damage. The second possibility is that I'm a spiteful jackass who doesn't like you so I build the fence or put the truck there to irritate you. Question: should it matter?

No less of an august authority that Oliver Wendell Holmes addressed this point, when he was a judge on the Massachusetts Spreme Court in the 1880s. In that case, the state legislature had passed a statute prohibiting "spite fences" and a property owner objected, saying that it violated his constitutional property right to build his own fence as high as he damn well wanted for any damn reason at all.

RIDEOUT v. KNOX, 148 Mass. 368.

Holmes wrote, "It has been thought by respectable authorities, that even at common law the extent of a man's rights in cases like the present might depend upon the motive with which he acted....We do not so understand the common law, and we concede further that to a large extent the power to use one's property malevolently, in any case which maybe lawful for other ends, is an incident of property which cannot be taken away by legislation."

But Holmes did think that some existing rights may be modified by a legislature for the good fo the commonwealth, so the spiteful homeowner lost.

States and municipalities sometimes gave laws and ordinances changing this, though, and nowadays constitutional challenges on the basis of property rights rarely prevail, so the answer to the question nowadays is very location specific.

Ah, for the good old days.