Spaulding v. Smith

39 N.E. 189, 162 Mass. 543, 1895 Mass. LEXIS 327

Opinion

Barker, J.

A verdict was rightly ordered for the defendants. The fence which the plaintiff contends was a private nuisance for which he has an action under the provisions of St. 1887, c. 348, was not a boundary fence between his lands and those of the defendants. It was upon the opposite side of the highway, at least twenty-one feet from the nearest part of 'his land, and separated from all his land which was not part of the highway by a space forty-two feet wide. It is true that he and the defendants own the soil of the highway subject to the public easement, each of the parties so owning to the centre of the way, and that in that sense they are owners of adjoining properties. But we think that the fence was not so situated with reference to the land of the adjoining owner, who complains that it is a private nuisance, as to be within the meaning of the statute.

In Rideout v. Knox, 148 Mass. 368, in holding the statute constitutional, it was said that it was at least doubtful whether the act applied to fences not substantially adjoining the injured party’s land; and one reason given for sustaining the statute was because its curtailment of the rights of property was insignificant, the limitations imposed being small enough in degree to be upheld under the police power, while larger limitations of the rights of owners can be imposed only by the exercise of the right of eminent domain. To hold the fence of which the plaintiff complains to be within the meaning of the statute would, we think, be a greater limitation of the rights of owners than the Legislature intended to impose. Exceptions overruled.