The action was brought to recover damages for the malicious, useless and unlawful erection of a high board fence, commonly called a "spite fence," on defendant's lot, immediately adjoining plaintiff, for the sole purpose of cutting off light and air from plaintiff's windows. At the close of the evidence, his Honor, being of opinion that plaintiff could not recover, granted defendant's motion to nonsuit, and plaintiff appealed.

The facts are stated in the opinion of the Court.

(434) BROWN, J.

The plaintiff's evidence in this case tends to prove that the premises of plaintiff and defendant adjoin, and that they mutually constructed a four-foot wire fence on the division line; that thereafter the plaintiff, as chief of police of the town of West Hickory, was compelled by his duty to report the filthy condition of defendant's stables; that, from pure, unadulterated vengeance and malice, the defendant erected a very rude, unsightly board fence, eight feet six inches high, on his side of the division fence and within four feet of plaintiff's windows, which cuts off plaintiff's view, air and light, so much so that plaintiff testifies he cannot see how to shave by sunlight since the fence was built.

His Honor's ruling was based upon what we admit to be the generally received view of the common law of England, that the erection of a fence upon one's own land is not an actionable injury to one's neighbor, although he may be deprived of light and air thereby and the act may be dictated by motives of ill will. Counsel for plaintiff does not deny the general proposition that one has a right to improve his property as he sees fit, and that resultant injury would be damnum absque injuria. But it is contended that if one in the use of his property is actuated solely by a malicious purpose to injure his neighbor, with no benefit accruing to himself, he will not be permitted to use his property for such an unworthy purpose.

It must be admitted that this position embodies good morals, and we think it is supported by recognized authority and well-considered precedent. We are therefore disposed to follow those courts which in this respect teach that the principle of the common law above stated should not be held to authorize the creation and maintenance of a nuisance for the sole purpose of gratifying a most ignoble passion. There are respectable authorities in this country which support the view that malice makes that actionable which would otherwise not be so, and the doctrine has been held to be well founded, both in law and morals, that "a fence erected maliciously and with no other purpose than to shut out the light and air from a neighbor's window is a nuisance." 12 A. E., 1058, and cases cited in note; 1 Cyc., 789.

This question came before the Supreme Court of Michigan in 1888 and the court was equally divided. An elaborate and well-reasoned opinion was delivered by Justice Morse ( 69 Mich. 383), from which we cannot do better than quote at length. The learned Justice says: "It is arged that, while it is true that when one pursues a strictly legal right, his motives are immaterial, yet no man has a right to build and maintain an entirely useless structure for the sole purpose of injuring his neighbor. The argument has force and appears irresistible in the light of the moral law that ought to govern all human action. And (435) the civil law, coming close to the moral law, declares that he who, in making a new work upon his own estate, uses his right without trespassing, either against any law, custom, title or possession which may subject him to any service towards his neighbors, is not answerable for the damages which they may chance to sustain thereby, unless it be that he made that change merely with a view to hurt others without advantage to himself. Thus 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, where the act brings no profit to himself. The law furnishes redress, because the injury is malicious and unjustifiable. The moral law imposes upon every man the duty of doing unto others as they would that they should do unto him; and the common law ought to and, in my opinion, does require him to so use his own privileges and property as not to injure the rights of others maliciously and without necessity. It is true that he can use his own property, if for his own benefit or advantage, in many cases, to the injury of his neighbor; and such neighbor has no redress, because the owner of the property is exercising a legal right which infringes on no legal right of the other. Therefore, and under this principle, the defendant might have erected a building for useful or ornamental purposes and shut out the light and air from complainant's window; but when he erected these screens or obscurers for no useful or ornamental purpose, but out of pure malice against his neighbor, it seems to me a different principle must prevail. I do not think the common law permits a man to be deprived of water, air or light for the mere gratification of malice. No one has an exclusive property in any of these elements, except as the same may exist or be confined entirely on his own premises."

This opinion was approved by a unanimous court, the personnel of which had been changed in 1890, in Flaherty v. Moran, 81 Mich. 52, in which it is held that a fence erected maliciously and with no other purpose than to shut out light and air from a neighbor's windows is a nuisance. This ruling was again unanimously approved in 1893 by the Michigan Court, although its membership had again been changed, in Kirkwood v. Finegan, 95 Mich. 543, and again in Kuznak v. Kozminsky, 107 Mich. 444. In 1896 the same court, again differently constituted, unanimously followed and approved those precedents. Peak v. Roe, 110 Mich. 52; Sanky v. Academy, 8 Mont. 267; Havens v. Klein, 49 (436) How. Pr., 95. The same principle has been applied by other courts where the owner of land upon which there is an underground spring of water attempts to cut off the underground flow from his neighbor.

It is held generally that any person may rightfully appropriate the whole of the water from the spring on his own land, or of water which percolates through it, without forming a well-defined stream. Hale on Torts, 425; Roath v. Driscol, 20 Conn. 533.

Nevertheless there are able courts which hold that if such appropriation is maliciously done to injure a neighbor, it is actionable. Hale, 426; Wheatley v. Baugh, 25 Pa. St., 528, and cases cited. In this last case Lewis, C. J., quotes the same extract from the civil law (Domat, sec. 1047) quoted by Justice Morse, and says "these principles of the civil law are the recognized doctrines of the common law." In a strong opinion in Greenleaf v. Francis the Massachusetts Court holds that the owner of land may dig a well on any part of it, notwithstanding he thereby diminishes the water in his neighbor's well, unless in doing so he is actuated by a mere malicious intent to deprive his neighbor of the water without benefit to himself. 18 Pickering, 117.

In commenting on this case Lewis, C. J., says: "Neither the civil law nor the common law permits a man to be deprived of a well or spring or stream of water for the mere gratification of malice. The reason is that water, like air, is of such a nature that no man can have an exclusive right to it."

This doctrine is approved by the Supreme Court of Maine in an elaborate opinion citing the above cases. Chesley v. King, 74 Me. 177. In that case the defendant dug a well on his own land, as alleged, solely to injure plaintiff, without benefit to himself. The court, recognizing the defendant's paramount rights, says: "It cannot be regarded as a maxim of universal application that malicious motives make that a wrong which in its own essence is lawful." The court further says: "We think this plaintiff had rights in that spring which, while they were completely subject to the defendant's right to consult his own convenience and advantage in the digging of a well in his own land for the better supply of his own premises with water, should not be ignored if it were true that defendant did it `for the mere, sole and malicious purpose' of cutting off the source of the spring and injuring the plaintiff, and not for the improvement of his own estate."

Judge Cooley also recognizes that malice makes a decided difference when human actions, otherwise lawful, are weighed in the scales of justice. "If a discomfort is wantonly caused from malice or (437) wickedness, a slight degree of inconvenience may be sufficient to render it actionable." Torts, 596.

Mr. Washburne, in his treatise on Easements, quotes with favor Wheatley v. Baugh, and says: "Neither the civil nor the common law permits a man to be deprived of a spring or stream of water for the mere gratification of malice." We fail to see why this principle should not apply with equal force to light and air, especially in a State where no prescriptive rights can be acquired in windows.

Justice Morse, in his admirable opinion already cited, asks this pertinent question: "If a man has no right to dig a hole upon his premises, not for any benefit to himself or his premises, but for the express purpose of destroying his neighbor's spring, why can he be permitted to shut out air and light from his neighbor's windows, maliciously and without profit or benefit to himself?"

Light and air are as much a necessity as water, and all are the common heritage of mankind. While, for legitimate purposes, a person's rights in them may sometimes be curtailed without consulting his comfort or convenience, the common welfare of all forbids that this should be needlessly permitted in order to gratify one of the basest and most degrading passions that sometimes take possession of the human heart.

The law would be untrue to its soundest principles if it declared that the wanton and needless infliction of injury can ever be a legal right.

Instead of saying that malice will not make a lawful act unlawful, it is much more consistent with elementary principles of right and wrong to say that willful and wanton damage done to another is actionable unless there is some just or legal cause or excuse for it. An eminent English judge has declared this to be a general rule of English law, in these words: "At common law there was a cause of action whenever one person did damage to another willfully and intentionally and without just cause or excuse." Lord Justice Bowen, in Skinner v. Shaw (1893), 1 Ch., 422.

Mr. Justice Holmes, delivering the opinion of the Supreme Court of the United States, stated the same rule more fully: "It has been considered that prima facie the intentional infliction of temporal damage is a cause of action which, as a matter of substantive law, whatever may be the form of pleading, requires a justification, if the defendant is to escape. . . . If this is the correct mode of approach, it is (438) obvious that justifications may vary in extent according to the principles of policy upon which they are founded; and, while some, for instance, at common law, those affecting the use of land, are absolute, others may depend upon the end for which the act is done." Aikens v. Wisconsin, 195 U.S. 194; Pollock on Torts (7 Ed.), 319. See, also, Law Quarterly Review, 1906, 118.

In the administration of the criminal law the motive with which an act is committed has a marked effect upon the guilt of the accused and in determining the degrees of crime. Why not, for the same reasons, let it become a potent element in determining civil rights, so as to deter malicious persons from the infliction of wanton injury upon their fellowmen?

This involves no harmful restriction upon the right of ownership of property. There are many limitations placed by the common law upon such rights, and we see no difficulty in principle in limiting an owner's rights so far that he shall not be permitted to use his land in a particular way, with no other purpose than to damage his neighbor. This has been done without injurious effect in the matter of so-called "spite fences" by some of the most enlightened States of this Union, which have remedied by legislation the errors of the courts in failing to recognize this "fundamental doctrine of the rights of man" when dealing with this kind of injury.

In cases brought under such statutes the courts have declared that malevolence must be the dominant motive, without which the fence would not have been built, in order to bring the case within the statute. 12 A. E., 1058, and cases cited; Lord v. Langdon, 91 Me. 221; Rideout v. Knox, 148 Mass. 368; Smith v. Morse, 148 Mass. 407; Hunt v. Coggin, 66 N. H., 140.

If the right to use one's property solely for malicious purposes, in a manner which would be lawful for other ends, is a legal right and an incident to the legal exercise of such property, which the courts ought not and cannot rightfully deny, how can such right be taken away by legislation, as legislatures, no more than courts, have power of confiscation? Yet those statutes have been upheld by the courts and approved by the people of those States wherein they have been enacted.

The truth is that the right to use one's property for the sole purpose of injuring others is not one of the immediate and indestructible rights of ownership, and such acts may and ought to be prohibited by courts without the aid of legislation. Such rights are established for very different ends, and, as is said by Holmes, J., in Rideout v. Knox, supra, "It has been thought by most respectable authorities that, even at common (439) law, the extent of a man's rights in cases like the present, might depend upon the motive with which he acted," citing with approval Greenleaf v. Francis, supra; Carson v. R. R., 8 Gray, 423; Rooth v. Driscoll, 20 Conn. 533; Sweet v. Cutts, 5 N. H., 439, and Wheatley v. Baugh, supra.

In an action brought under the statute of Connecticut, the Supreme Court of that State recognizes a right of action at common law for damages by saying: "Where one, from pure malice, shuts air and light from his neighbor's dwelling, this statute obviously intends to give the injured person more effective and speedy relief than comes from successive and long-delayed actions at law for damages." Harbison v. White, 46 Conn. 108.

In commenting upon the enactment of such statutes, Mr. Justice Morse says, with much force: "It is said that the adoption of statutes in several of the States, making this kind of injury actionable, shows that the courts have no right to furnish the redress without statutory authority. It has always been the pride of the common law that it permitted no wrong with damage, without a remedy. In all the cases where this class of injuries have occurred, proceeding alone from the malice of the defendant, it is held to be a wrong accompanied by damage. That courts have failed to apply the remedy has ever been felt a reproach to the administration of the law; and the fact that the people have regarded this neglect of duty on the part of the courts so gross as to make that duty imperative by statutory law, furnishes no evidence of the creation of a new right or the giving of a new remedy, but is a severe criticism upon the courts for an omission of duty already existing and now imposed by statute upon them, which is only confirmatory of the common law." Burke v. Smith, 69 Mich. 389.

We are aware that this Court has recognized the general principle that malice disconnected with the infringement of a legal right is not actionable, as in Richardson v. R. R., 126 N.C. 100, where the master discharged his servant, there being no fixed term of employment. It was properly held, the present Chief Justice speaking for the Court, that as either party had the legal right to terminate the service at will, the motive could not be inquired into.

We also adhere to the law, as declared in Lindsey v. Bank, 115 N.C. 553, that in this country the easement of light and air cannot be acquired by prescription, upon which ground this Court refused to enjoin the erection of a building, one wall of which excluded the light from plaintiff's photograph gallery. There was no allegation that the obstruction was useless and erected for malicious purposes solely. The difference between these cases and this is apparent upon (440) even a cursory reading.

We are not aware that this Court has ever extended the rights of ownership in property so far as to authorize an owner to use it for the express purpose of creating a nuisance, and no other; and if it had, in the light of further investigation, we should feel impelled to hold the case not well decided. There are many annoyances arising from legitimate improvements and businesses which those living near must endure, but no one should be compelled by law to submit to a nuisance created and continued for no useful end, but solely to inflict upon him humiliation as well as physical pain.

The ancient maxim of the common law, Sic utere tuo ut alienum non laedas, is not founded in any human statute, but in that sentiment expressed by Him who taught good will toward men, and said, "Love thy neighbor as thyself." Freely translated, it enjoins that every person, in the use of his own property, should avoid injury to his neighbor as much as possible.

No one ought to have the legal right to make a malicious use of his property for no benefit to himself, but merely to injure his fellow-man. To hold otherwise makes the law an engine of oppression with which to destroy the peace and comfort of a neighbor, as well as to damage his property for no useful purpose, but solely to gratify a wicked and debasing passion.

The doctrine of private nuisances is founded upon this humane and venerable maxim of the law. If it can be successfully invoked to prevent the keeping of stables and hogpens so near one's neighbor as to cause discomfort, why cannot he whom it is sought to needlessly and maliciously deprive of air and sunlight also seek the aegis of its protection?

The right thus to injure one's neighbor with impunity cannot long continue to exist anywhere in an enlightened country where God is acknowledged and the Golden Rule is taught. On this subject, if need be, we will do better to follow the pandects of the heathen Romans, whose jurists have inculcated a doctrine more consistent with the teachings of Him whom they permitted to be crucified than to be governed by the principles of the common law as expounded by some Christian courts and text writers.

The judgment of nonsuit is set aside and the cause remanded, to be proceeded with in accordance with the principles laid down in this opinion.

New trial.