Bordeaux v. Greene

Montana Supreme Court

Bordeaux v. Greene

56 P. 218, 22 Mont. 254, 1899 Mont. LEXIS 16

CourtMontana Supreme Court

DecidedFebruary 27, 1899

DocketNo. 1,046

StatusPublished

Cited by11 cases

This text of 56 P. 218 (Bordeaux v. Greene) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bordeaux v. Greene, 56 P. 218, 22 Mont. 254, 1899 Mont. LEXIS 16 (Mo. 1899).

Pincite

Opinion

HUNT, J.-

Defendant built the fence upon her own property. That being true we know of no statute of the State, or ordinance of the city of Butte, which, in the exercise of a police power, prevented her from putting up the structure. Nor will the law generally prevent it. The owner of a piece of property has a right to shut off air and light from his neighbors’ windows by building on his own lots. This doctrine is too well settled in this country to require authorities. He cannot-annoy his neighbor with the smell of his privy vaults, or with percolating sewer water, or other inconveniences which the law recognizes as injurious; but the free use of light and air by an owner of the soil are his, to any extent he pleases, without regard to his neighbor’s convenience or inconvenience. (Picard v. Collins, 23 Barb. 444; Letts v. Kessler, 54 Ohio St. 73, 42 N. E. 765; Judge Campbell’s opinion in Burke v. Smith, 69 Mich. 380, 37 N. W. 838.) It [256]*256makes no difference whether defendant’s motive in building the fence was one of malice towards her neighbor, or a desire to improve or ornament her property. She could, with a purely malicious motive, shut out her neighbor’s light and air by a magnificent building; and why not, though prompted by a like mbtive, by a fence 40 feet high ? (Rideout v. Knox, 148 Mass. 368, 19 N. E. 390.) Either method would be equally inconvenient and damaging to plaintiff, but the motive would have no' more effect in the one case than in the other.

A person having a legal right can enforce the enjoyment of it without having his motive inquired into. (Phelps v. Nowlen, 72 N. Y. 39.)

The allegation that the fence is liable to be blown over upon plaintiff’s building, and may result in injuring the same, is very bad. It is not stated directly that the construction of the fence is defective or poor, or how it is dangerous to plaintiff’s property, or that it is on account of any weak or negligent construction that plaintiff’s property is endangered. The allegation is one of conclusions, and insufficient to withstand a general demurrer.

Judgment affirmed. Affirmed.

Brantly, C. J., and Pigott, J.,. concur.

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HUNT, J.-

Defendant built the fence upon her own property. That being true we know of no statute of the State, or ordinance of the city of Butte, which, in the exercise of a police power, prevented her from putting up the structure. Nor will the law generally prevent it. The owner of a piece of property has a right to shut off air and light from his neighbors’ windows by building on his own lots. This doctrine is too well settled in this country to require authorities. He cannot-annoy his neighbor with the smell of his privy vaults, or with percolating sewer water, or other inconveniences which the law recognizes as injurious; but the free use of light and air by an owner of the soil are his, to any extent he pleases, without regard to his neighbor’s convenience or inconvenience. (Picard v. Collins, 23 Barb. 444; Letts v. Kessler, 54 Ohio St. 73, 42 N. E. 765; Judge Campbell’s opinion in Burke v. Smith, 69 Mich. 380, 37 N. W. 838.) It [256]*256makes no difference whether defendant’s motive in building the fence was one of malice towards her neighbor, or a desire to improve or ornament her property. She could, with a purely malicious motive, shut out her neighbor’s light and air by a magnificent building; and why not, though prompted by a like mbtive, by a fence 40 feet high ? (Rideout v. Knox, 148 Mass. 368, 19 N. E. 390.) Either method would be equally inconvenient and damaging to plaintiff, but the motive would have no' more effect in the one case than in the other.

A person having a legal right can enforce the enjoyment of it without having his motive inquired into. (Phelps v. Nowlen, 72 N. Y. 39.)

The allegation that the fence is liable to be blown over upon plaintiff’s building, and may result in injuring the same, is very bad. It is not stated directly that the construction of the fence is defective or poor, or how it is dangerous to plaintiff’s property, or that it is on account of any weak or negligent construction that plaintiff’s property is endangered. The allegation is one of conclusions, and insufficient to withstand a general demurrer.

Judgment affirmed. Affirmed.

Brantly, C. J., and Pigott, J.,. concur.

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56 P. 218, 22 Mont. 254, 1899 Mont. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bordeaux-v-greene-mont-1899.

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