Welsh v. Todd

Supreme Court of North Carolina

Welsh v. Todd

133 S.E.2d 171, 260 N.C. 527, 1963 N.C. LEXIS 754

CourtSupreme Court of North Carolina

DecidedNovember 20, 1963

Docket176

StatusPublished

Cited by7 cases

This text of 133 S.E.2d 171 (Welsh v. Todd) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Welsh v. Todd, 133 S.E.2d 171, 260 N.C. 527, 1963 N.C. LEXIS 754 (N.C. 1963).

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Opinion

SHARP, J.

Since the decision in Barger v. Barringer, 151 N.C. 433, 66 S.E. 439, it has been, ¡established law in this State that a spite fence is a private nuisance. A spite fence is one which is of no ¡beneficial use to the owner ¡and which is erected ¡and maintained solely for the purpose of ¡annoying ¡a neighbor. It may be abated, subject to ¡the same equitable principles which govern injunctive relief generally, ¡and damages recovered if ¡any have ¡been sustained. Burris v. Creech, 220 N.C. 302, 17 S.E. 2d 123; 22 Am. Jur., Fences, §§ 43, 46; Annot., Spite Fences, 133 A.L.R. 691, 720.

Plaintiffs’ evidence, viewed in ¡the light most favorable to. them, permits the inference that ¡the fence, constructed to ¡a height of seven *529 'amid' a half .feat 'along the property lime, serves mo. useful purpose and itlhait defendants erected it solely to satisfy a vengeful and malicious motive to injure plaintiffs. Therefore, the motion for nonsuit was improvidently granted. Whether the fence does in fact serve any purpose beneficial to tlhe defendants in the legitimate use and enjoyment of tlheir property or whether defendants erected it in good faith reasonably believing that it would perform a useful function are questions for the jury.

Counts have denied equitable relief where the walls and fences complained of screened a defendant’s premises from objectionable noises, odors, and unseemly conduct on the plaintiff’s property. Stroup v. Rauschelbach, 217 Mo. App. 236, 261 S.W. 346; Daniel v. Birmingham Dental Mfg. Co., 207 Ala. 659, 93 So. 652; D’Inzillo v. Basile, 40 N.Y.S. 2d 293.

On cross-examination, Mr. Welsh testified that ¡he bad erected a flood light on the rear of bis house. However, the answer contains no allegation that defendants constructed the fence to shield their premises from such a light or from any obj ection'al .conduct -whatever on the part of tlhe plaintiffs. Defendants merely admit -the erection of the fence 'and stand upon their rights ais .property owners to maintain it. A jury must determine whether this fence comes within the protection of those rights.

The judgment of nonsuit is Reversed.

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SHARP, J.

Since the decision in Barger v. Barringer, 151 N.C. 433, 66 S.E. 439, it has been, ¡established law in this State that a spite fence is a private nuisance. A spite fence is one which is of no ¡beneficial use to the owner ¡and which is erected ¡and maintained solely for the purpose of ¡annoying ¡a neighbor. It may be abated, subject to ¡the same equitable principles which govern injunctive relief generally, ¡and damages recovered if ¡any have ¡been sustained. Burris v. Creech, 220 N.C. 302, 17 S.E. 2d 123; 22 Am. Jur., Fences, §§ 43, 46; Annot., Spite Fences, 133 A.L.R. 691, 720.

Plaintiffs’ evidence, viewed in ¡the light most favorable to. them, permits the inference that ¡the fence, constructed to ¡a height of seven *529 'amid' a half .feat 'along the property lime, serves mo. useful purpose and itlhait defendants erected it solely to satisfy a vengeful and malicious motive to injure plaintiffs. Therefore, the motion for nonsuit was improvidently granted. Whether the fence does in fact serve any purpose beneficial to tlhe defendants in the legitimate use and enjoyment of tlheir property or whether defendants erected it in good faith reasonably believing that it would perform a useful function are questions for the jury.

Counts have denied equitable relief where the walls and fences complained of screened a defendant’s premises from objectionable noises, odors, and unseemly conduct on the plaintiff’s property. Stroup v. Rauschelbach, 217 Mo. App. 236, 261 S.W. 346; Daniel v. Birmingham Dental Mfg. Co., 207 Ala. 659, 93 So. 652; D’Inzillo v. Basile, 40 N.Y.S. 2d 293.

On cross-examination, Mr. Welsh testified that ¡he bad erected a flood light on the rear of bis house. However, the answer contains no allegation that defendants constructed the fence to shield their premises from such a light or from any obj ection'al .conduct -whatever on the part of tlhe plaintiffs. Defendants merely admit -the erection of the fence 'and stand upon their rights ais .property owners to maintain it. A jury must determine whether this fence comes within the protection of those rights.

The judgment of nonsuit is Reversed.

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133 S.E.2d 171, 260 N.C. 527, 1963 N.C. LEXIS 754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/welsh-v-todd-nc-1963.

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